Andhra Pradesh

Chittoor-II at triputi

CC/31/2013

N.Sivakesavulu Naidu S/o.Krishnama Naidu - Complainant(s)

Versus

M/s. Sriram Enterprises, - Opp.Party(s)

R.Madhusudhan Rao

07 Jan 2015

ORDER

Filing Date:09.04.2013

Order Date: 07.01.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

TIRUPATI

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

WEDNESDAY THE SEVENTH DAY OF JANUARY, TWO THOUSAND AND FIFTEEN

 

C.C.No.31/2013

 

Between

 

N.Sivakesavulu Naidu,

S/o. Krishnama Naidu,

Residing at Tirumalakuppam village and post,

Puttur Mandal,

Chittoor District.                                                                              … Complainant

 

 

And

 

1.         M/s. Sriram Enterprises,

            Authorized Dealer for John Deere Equipment Pvt. Ltd.,

            19-3-1K, Renigunta Road,

            Tirupati.

 

2.         M/s. John Deere Equipment Pvt. Ltd.,

            Tower-14, Magar Patta City,

            Hadapsar,

            Pune – 411 013.                                                                    …  Opposite parties.

 

 

            This complaint coming on before us for final hearing on 30.12.14 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.R.Madhusudhan Rao, counsel for the complainant, and Sri.G.Ramaiah Pillai, counsel for the opposite party No.1, and opposite party No.2 remained exparte, and  having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

 

            This complaint is filed under Section-12 of C.P.Act 1986, by the complainant praying the Forum to direct the opposite parties 1 and 2 a) to provide spare parts box afresh and rectify the mistake regarding the weight and also to pay Rs.2,00,000/- spent towards spare parts and for costs of the complaint.

            2.  The brief averments in the complaint are:- that on 15.02.2011, the complainant purchased John Deere Standard Harvester (Tractor) for Rs.14,00,000/- bearing temporary registration No.AP 03 TQ TR 7456. The complainant has taken delivery of the tractor under invoice No.JD 090 dt:15.02.2011. He has purchased the tractor / harvester for his day to day agricultural works. The opposite parties in Sale Certificate mentioned gross weight of the vehicle as 2100 kgs, as against its actual weight of 6510 kgs. The complainant further contended that in view of wrong particulars mentioned by the opposite parties in sale certificate regarding the weight of the vehicle, the vehicle could not be registered, as such he was unable to move the vehicle to the service station for getting the services. Hence the complaint.

            3. The opposite party No.2 remained exparte.

            4. The opposite party No.1 filed the written version admitting the sale of the tractor cum harvester to complainant on 15.02.2011 under invoice No.JD 090 for Rs.14,00,000/-. He further contended that the unladen weight shown in sale certificate is relating to tractor only. The harvester is additional fitting to the tractor. The sale certificate is down loaded from the website of A.P.Transport Authority, that the spare parts box is delivered to complainant, who verified the tools in the box and in the receipt, acknowledging the receipt of tool box along with the list of tools, the complaint is false and frivolous and prays the Forum to dismiss the complaint with costs.

            5.  The complainant and opposite party No.1 have filed their respective chief affidavits and also written arguments. Heard the counsel for both the parties. Exs.A1 to 18 were marked for the complainant and Exs.B1 to B4 were marked for the opposite parties. Heard the counsel for both the parties.

            6.  Now the points for consideration are:-

            (i).  Whether mentioning of the unladen weight as 2100 kgs in sale certificate

                   causes mental agony to the complainant?

            (ii)  Whether the tools were delivered along with tool box to the complainant?

            (iii). Whether the complainant is entitled for the reliefs sought for?

            (iv).  To what relief?

            7.  Point No.(i):-  As could be seen from the pleadings of both the parties, it is found that opposite party No.1 admitted that they have mentioned the unladen weight of the tractor only as 2100 kgs and the harvester purchased along with the tractor was an additional fitting to the tractor. If this version is correct, in the sale certificate the opposite party No.1 would have mentioned the description of the vehicle purchased as ‘tractor’ only but sale certificate under Ex.A8 description of the vehicle sold to the complainant under invoice No.JD 090 is mentioned as “tractor driven combined harvester”. When the opposite party No.1 has sold away the tractor driven combined harvester, the opposite party No.1 is expected to furnish the exact weight of the said vehicle but not only the tractor as it appears. This version of the opposite party is only a lame excuse. Furnishing wrong particulars amounts to unfair trade practice as defined under Section-2(i)(r) of the C.P.Act. “The protection from unfair trade practice”, this has been provided by the amended Act-50 of 1993, which ensures protection to consumer against unfair trade practice of traders.

            8.  The term unfair trade practice has been used in the same sense as used under Section-36(A) of Monopolies Restrictive Trade Practice Act 1969. The purpose of this Act has been extended in protecting the consumers by covering unfair trade practice with the purview of this Act. Therefore, when the Act ensures the consumer protection from unfair trade practice of traders and this type of furnishing false statement such as showing the weight of the vehicle under-weighing the same amounts to unfair trade practice, for which the opposite parties are liable to pay compensation. Ex.A5 Form No.24 discloses the unladen weight of the vehicle as 6610 kgs. Ex.A6 temporary certificate of registration discloses the description of vehicle as tractor driven combined harvester. The vehicle was registered on 31.03.2011 under registration No.AP 03 AR 4818. The complainant has not mentioned either in the notice under Ex.A2, in the complaint or in his chief affidavit or in the written arguments as to when the vehicle was seized by the registering authority, how many days the vehicle was retained with them and when the vehicle was released. Unless these particulars are mentioned, the contention of the complainant, that he sustained huge loss during the period from the seizure and release of the vehicle. Therefore, it can be said that because of unfair trade practice of the opposite parties, the complainant suffered mental agony, for which the opposite parties are liable to pay compensation. Accordingly, this point is answered.

            9.  Point No.(ii):-  So far as this point is concern Ex.B3 discloses the items of tools from Sl.No.1 to 47 along with some attachments were delivered to the complainant on 15.02.2011. The complainant also signed on Ex.B3 acknowledging the same as “received harvester with tools railing set”. Having received the list of details mentioned in Ex.B3 and having acknowledging the same on 15.02.2011 itself, the complainant now agitating that no tools were delivered to him in the tool box, that too after 2 years from the date of receipt of tools under Ex.B3. Therefore, the complainant is not entitled to either the cost of the tools or the amount, said to have been spent for the purpose. The complainant also failed to furnish or file any evidence to show that he has spent particular amount for the purpose of purchasing the tools, where he purchased, when he purchased or what are the items and description of tools he purchased etc. Therefore, his request for awarding Rs.2,00,000/- for the purpose cannot be accepted.

            10.  Another important aspect to be considered here in this case is during the pendency of the proceedings, the complainant has sold away the vehicle to one Kishore Babu on 25.01.2014. Therefore, the learned counsel for opposite parties argued that since the complainant is not the owner of the vehicle from 25.01.2014, he is not entitled to any compensation and relied on decision reported in II (2014) CPJ 665 (NC), in the said decision, the brief facts are that the complainant purchased a Tata Indigo LS-Diesel car on 29.06.2006 from opposite party No.2 M/s.Sanya Automobiles Pvt. Ltd. According to the complainant, the respondent No.2 sold a second hand car to the complainant, that was started giving problems immediately after purchase. He reported the matter to the opposite parties and he was assured that the defects in the vehicle could be removed, however, the problems could not be rectified although the vehicle was subjected to repeated repairs. The power steering of the vehicle was changed, but still the problem continued. On 23.09.2006, the rack and pinion were changed, on 18.11.2006, steering column was changed, on 08.01.2007, power steering and pumps were changed, but defects could not be rectified. Within     6 months of purchase, the paint from the roof of the vehicle started peeling off, giving rise to the suspicion that an old car had been sold after repainting. The District Forum after taking into account the evidence of both parties directed that the vehicle should be replaced with a new car by the petitioner / opposite party and a sum of Rs.25,000/- as compensation for mental harassment and Rs.5,000/- as cost of the litigation should be paid to him. Against the said order, an appeal was preferred before Sate Commission. The State Commission modified the order of the District Forum and directed that the cost of the vehicle should be refunded to the complainant after completing the formalities of transfer of registration certificate in the name of the petitioner. During the course of hearing before National Commission notices were sent to complainant / respondent No.1 and  respondent No.2 dealer for appearance. The complainant / respondent No.1 appeared in person. None appeared on behalf of respondent No.2. On 08.08.2013, at the time of hearing before National Commission, the complainant stated that he had already sold the vehicle in question on 25.12.2011. The learned counsel for the petitioner / opposite party stated that the complaint shall required to be dismissed because the complainant / respondent No.1 had already sold the vehicle without permission of the Court. Their Lordship held that in Rajiv Gulati Vs. M/s.Tata Engineering & Locomotive Company Ltd. and Others reported in III (2013) CPJ 273 (NC) in F.A. No.466 of 2008 decided on 23.04.2013, the National Commission observed that since the vehicle was sold during the pendency of the proceedings before the Consumer Fora, the complainant was not entitled for any compensation in the absence of material evidence of manufacturing defect in the vehicle. Their Lordship also held that “we had examined the entire material on record and given a thoughtful consideration to the arguments advanced before us. The State Commission vide impugned order directed that the petitioner should refund the cost of the vehicle on return of the vehicle after completing the formalities of transfer of registration certificate in the name of the petitioner. Under the present circumstances, when the vehicle has already been sold by the complainant / respondent No.1, the execution of the order passed by the State Commission is not possible, because the vehicle no longer remains with the complainant. Their Lordship observed in para.8 at line.7 to 13 as “it can also be stated that the status of complainant as consumer, vis-à-vis, the opposite parties has to be considered on the day of the cause of action or filing of the complaint and a person may not lose that status merely because of the sale of the vehicle due to any reason”. In the said case, the Hon’ble State Commission ordered to refund the cost of the vehicle on producing the vehicle before the manufacturer after completing the formalities of transferring the registration in the name of the opposite party, since the vehicle was already sold away their Lordship observed that implementation of that order is not possible, as no vehicle available, whereas in the case on hand, the complainant seeking compensation for causing mental agony to him due to mentioning of wrong particulars in respect of weight of the vehicle in sale certificate. So, the status of the complainant will remains as consumer though the vehicle is sold away. Therefore, the facts of the above decision are also helpful to the complainant. Accordingly, this point is answered.

            11.  Point No.(iii):-  In view of our holding on point Nos.1 and 2, we are of the opinion that the complainant is entitled for compensation against the opposite parties for causing mental agony to the complainant due to furnishing wrong particulars in the sale certificate regarding the weight of the vehicle and the complainant is not entitled for the cost of the tools or tool box or the amount he spent towards purchase of tool box, as he has not filed any proof of purchase of tools as against the facts under Ex.B3 and the complaint is liable to be allowed in part. Accordingly this point is answered.

            12.  Point No.(iv):-  In the result, the complaint is partly allowed directing the opposite parties 1 and 2 to pay a sum of Rs.20,000/- (Rupees twenty thousand only)  towards compensation for causing mental agony to the complainant with interest at 9% p.a. from the date of complaint, till realization and also to pay Rs.3,000/- (Rupees three thousand only) towards cost of the complaint. Opposite parties 1 and 2 are directed to comply the order within six (6) weeks from the date of this order.

Typed to dictation by the stenographer, corrected by me and pronounced in the Open Forum this the 7^th day of January, 2015.   

 

        Sd/-                                                                                                                     Sd/-                                         

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESS EXAMINED ON BOTH SIDES

 

 

PW-1: N.Sivakesavulu Naidu (Evidence Affidavit filed).

RW-1: R.Srinivasa Rao (Evidence Affidavit filed)

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1	A Photocopy of Invoice for purchase of vehicle filed on behalf of the complainant. Dt: 15/02/2011.
2	Office copy of notice with postal receipt filed on behalf of the complainant. Dt: 21/01/2013.
3	Reply notice of opposite party filed on behalf of the complainant. Dt: 11/02/2013.
4	Original Receipt issued by the Srikrishna Weigh Bridge, Tiruvuru, Krishna District. Dt: 18/06/2014.
5.	Original copy of B-Register Extract issued by Additional Registering Authority, Tirupati. Dt: 25/10/2014.
6	A photocopy of Temporary Certificate of Registration filed. Dt: 15/02/2011.
7	Brochure showing the features of John Deere Tractor.
8	A Photocopy of Form-21 (Sale certificate). Dt: 15/02/2011.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Description of Documents
Ex.B1	A Copy of sale certificate (Form-21). Dt: 15/02/2011.
2	Reply to the Legal Notice. Dt: 11/02/2013.
3	A Photocopy of acknowledgement of delivery of Customer Tool Kit. Dt: 15/02/2011.
4	A True copy of Dealership for STANDARD HARVESTER TSC-513 to M/s. Sriram Enterprises, Tirupati. Dt: 01/04/2010.

 

 

                                                                                                                                                                   Sd/-    

                                                                                                                President

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:-     1. The Complainant.

                        2. The opposite parties.