C.F. CASE No. : CC/09/85
COMPLAINANT : Sri Ramkrishna Ghosh,
S/o. Late Ganesh Ch. Ghosh
Vill & P.O. Putia via Habra, P.S. Ashoknagar,
Dist. North 24 Parganas
OPPOSITE PARTIES/OPs: 1) New Holland Tractor ‘India’ Pvt. Ltd.
having its registered office at
50, Okhia Industrial Area III,
New Delhi – 110020
2) Mr. Madan Chakraborty,
Proprietor of “Chakraborty Enterprise”
of N.H. 34, Palpara More,
P.O. Bhatjangla, Krishnagar,
P.S. Kotwali, Dist. Nadia
3) The Branch Manager,
AXIS Bank, Nabapally Branch,
P.O. & P.S. Barasat, Dist. North 24 Parganas.
PRESENT : SHRI KANAILAL CHAKRABORTY PRESIDENT
: SMT SHIBANI BHATTACHARYA MEMBER
: SHRI SHYAMLAL SUKUL MEMBER
DATE OF DELIVERY
OF JUDGMENT : 25th May, 2011
: J U D G M E N T :
In brief, the case of the complainant is that he purchased a tractor under the name and style ‘New Holland Tractor’ 5500 Model 55HP from the show-room of the OP No. 2. It is his further case that since very beginning the tractor was defective in nature and oil consumption was very high also. To that effect he made a written complaint to the OP No. 2 and the OP No. 2 orally assured that after 600 hours of service the fuel service would be normal, but after 1200 hours of service the fuel consumption was enhanced to 9.6 litre per bigha, as a result of which the complainant incurred huge financial loss in his potato cultivation in that year. Thereafter he sent many letters to the OP No. 1, 2 & 3, but to no effect. For mechanical defect the vehicle was sent to the OP No. 2 on 12.12.08 and the same was delivered to him on 22.03.09 but after running for 40 to 50 hours the oil problem cropped up and it was not possible for him to ply the tractor any more. So all the difficulties were brought to the OP No. 2 within the warranty period who took no step to remove the defects. The crank and piston of the tractor were defective and in such a situation it was not possible to repair it also. So he met the OP No. 2 with a request to replace the old one by delivering a new one, but to no effect. Therefore, having no other alternative he has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 2 has filed a written version in this case, inter alia, stating that the case is not maintainable in its present form as the complainant is not a consumer as per the provision of law. It is his specific contention that the tractor in question was delivered to complainant along with all the necessary documents including the warranty certificate, warranty booklet and the operator’s manual. The warranty period is valid for 2 years since the delivery and warranty is subject to the terms and conditions of warranty agreement and also subject to the security measures taken by the customer as provided in the operator’s manual. He also submits that the complainant used duplicate inferior quality of filter not manufactured by the manufacturer of the tractor i.e., the OP No. 1. It is a violation of the warranty agreement. Due to use of said inferior quality filter the engine of the tractor became defective as the liner, piston and the ring were cut due to suction of the sand / dust particles inside the engine and due to this said reason oil consumption of the vehicle raised on a higher side. The warranty of the vehicle is always given by the manufacturer and the agreement for warranty is always between the manufacturer and the customer. As per demand of the complainant this OP repaired the vehicle of the complainant free of cost which will be evident from the challan and tax invoice dtd. 29.01.09. Thereafter, this complainant never visited the office of the OP, or lodged any complaint regarding the vehicle. He has already denied that the tractor in question was defective since its beginning or the alleged consumption of oil very high. The defect of the complainant’s vehicle cropped up only due to the negligence on the part of the complainant and violation of the terms and conditions of the agreement made by and between the parties. This complainant is not at all entitled to get the tractor replaced by the OP as there is no deficiency in service on his part. So the complainant has no cause of action to file this case and the same is liable to be dismissed against him.
OP No. 3 has also filed a separate written version in this case, inter alia, stating that the case is not maintainable in its present form and it is barred by law of limitation. In the petition of complaint practically no allegation is made by the complainant against him. So no question of praying for any relief against him does arise. Rather he is an unnecessary party in this case. Hence, the case is liable to be dismissed against him.
Notice was also served upon the OP No. 1, but he has not contested this case by filing any written version.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint and the written versions filed by the OPs along with the annexed documents filed by the parties and also after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant purchased one ‘New Holland Tractor’ 5500 model, 55HP from the OP No. 2. But the date of purchase is not mentioned in the petition of complaint. From one road challan filed by the complainant issued by the OP No. 2, it is available that the same was issued on 08.10.07 with regard to disputed tractor. Complainant’s specific case is that after a few days of purchase the tractor consumed oil more than the quantity stated by the OP and some defects were also detected by him. But in the petition of complaint he has not stated actually what was the limit of consumption of oil per hour by the tractor and which amount was consumed by it. No document is filed by him to show that at the time of purchase the OP assured that after 600 hours of service the fuel service would be normal, but actually after 12000 hours of service the fuel service was enhanced to 9.6 litre per bigha as alleged in ‘Para-3’ of the complaint. Regarding mechanical defect he has not filed any report of any other mechanic stating the defects. Rather he has relied upon the job card issued by the OP in which this complainant reported that the oil consumption was high and it could not carry load and there was smoke from the engine. In this job card also there is no report of the mechanic supporting the allegation of the complainant. Complainant has categorically stated that piston and the crank of the vehicle were defective. In this regard no document is filed by the complainant. To that extent he made some correspondence to the OP No. 2 with a request to repair the defects. As per his request the OP No. 2 repaired the tractor on 29.01.09 at a cost of Rs. 7,995/- but nothing was charged by the OP No. 2 for this repair which is available from the challan of the OP No. 2 filed by the complainant. It is alleged by the OP No. 2 that violating the terms of the warranty principles the complainant used some parts purchasing from outsider due to which the tractor became defective. In reply of interrogatories, the complainant has admitted that he purchased some parts from outsider and not from the original company. From the warranty certificate it is available that there is no clause to that extent that in case of any defect the OP No. 2 is bound to exchange it with a new one. The defects were detected by the OP No. 2 within the warranty period and as per the warranty certificate it any other defect crops up after the expiry of warranty period i.e., on 14.10.09, this OP had no liability to repair the said defect of the tractor. The complainant has claimed a compensation of Rs. 3,00,000/- from the OP No. 1 & 2 but for which reason he claimed this amount is not at all explained by him in the petition of complaint or in his evidence i.e., examination-in-chief. The OP No. 3 is the bank from whom this complainant took loan for purchasing this tractor. So we find that there is borrower and lender relationship between the complainant and the OP No. 3. But in the four corners of the petition of complaint no allegation is made against the OP No. 3 and no relief is also prayed against him in this case though he is made a party in this case. In this connection ld. lawyer for the OP has cited a ruling from (2008) 1 WBLR (CPC) 455 where the Hon’ble State Commission has decided that “In case of hire purchase agreement the disputes cannot be decided in consumer Forum and the matter must be referred to the civil court.” The Hon’ble State Commission has relied on a decision of the Hon’ble National Commission in case of M/S Agarwal Dying Industries Vs. Rajasthan Financial Corporation & Others in which it was decided by the Hon’ble National Commission that “In a relation between the complainant and the OP being that of borrower and creditor complainant cannot be said to be a consumer in respect of loan transactions and cannot maintain complaint before the consumer Forum.”
On a careful perusal of both the rulings our considered view is that there is borrower and creditor relationship between the complainant and the OP No. 3, AXIS bank. So this complainant cannot sue him before this Forum. We do also hold that the OP No. 3 is not a necessary party in this case.
In view of the above discussions and considering the facts and circumstances of this case our considered view is that the complainant has not become able to prove his case. So he is not entitled to get the relief as prayed for. In result the case fails.
Hence,
Ordered,
That the case, CC/09/85 be and the same is dismissed on contest against the OPs without any cost.
Let a copy of this judgment be delivered to the parties free of cost.
