Presented by Miss R. Pattnayak, President .

(1) The case of the Complainant is that, he had purchased a “Mahindra Gujurat Tractor S-30 bearing Regd No. OR-17-G-5662 on dated 04/02/2010 from Opposite Party No.1(one) namely M/s Sri Ram Motors, Kalapani, Bargarh for Rs.4,75,000/-(Rupees four lakh seventy five thousand)only by availing loan from the Opposite Party No.2(two) i.e. State Bank of India, Padampur. Complainant's allegation is that the rear tyres of tractor were got damaged within short period of purchase so are defective ones and have to be replaced with new tyres and the front small tyres attached to the tractor at the time of purchase were not new tyres and were resoled tyres which was malpractice done by the Opposite Party No.1(one). Although he reported the matter to the Opposite Parties with a request to give him new tyres by replacing the defective tyres but to no effect. Ultimately he filed this case with a prayer to direct the Opposite Parties to replace the tyres of the said tractor with a new one in place of defective tyres or to pay the present market price of the same along with compensation of Rs.50,000/-(Rupees fifty thousand)only towards mental agony and loss.

(2) Notices were duly served upon the Opposite Parties and they have entered their appearance through their learned counsels and filed their written version on Dt.22/09/2011 and Dt.17/11/2011 respectively.

(3) The Opposite Party No.1(one) makes a complete denial of all the allegations made by the Complainant. While admitting that the Complainant had purchased the tractor from him (Opposite Party No.1(one)) but contended that it was delivered in a good running condition along with relevant documents and the tractor was fitted with new tyres which was supplied by the good years company. So the Opposite Party No.1(one) submits that the Complainant is entitled for relief from the alleged tyre company as per the warranty issued by the tyre company for its products but not from the present Opposite Party No.1(one) and took the pleas that the case is not maintainable due to non-joinder of necessary party, as he has not made party to the manufacturer of the tyre company. It is also admitted by the Opposite Party No.1(one) that after running of five months of the Tractor, the Complainant reported about the defect of one back side tyre of the vehicle and the Opposite Party No.1(one) called for the technical person of the good year company and visited the alleged tyre available in the village of the Complainant which was throughly examined by its technical person was found to be brust due to mis-use of the tyre. Opposite Party No.1(one) requested the Forum to direct the Complainant to produce the tyre in question before it to enable it to explain how it was got damaged. The Opposite Party No.1(one) also submit that, the Complainant never agitated before him for any such grievance as alleged. So he prays before this Forum for dismissal of the Complaint case with cost.

(4) The Opposite Party No.2(two) contended in his version that, he (Opposite Party No.2(two)) being the financer of the vehicle and its accessories is in no way require to provide any service to the Complainant in respect of any defect found with the vehicle or its accessories which the Complainant has purchased with the financial assistance of the Opposite Party No.2(two). So the Opposite Party No.2(two) prays for dismissal of the case as the Complainant has no cause of action or claim against the Opposite Party No.2(two).

(5) The Complainant in support of his case has filed certain documents. On the other hand, the Opposite Party No.1(one) file owner's manual in support of his case.

(6) We have heard the learned counsel for both the Parties at length and have carefully gone through the documents/materials available on record along with the Complaint petition and written version filed by the counsels of the Opposite Parties.

There is absolutely no doubt in our mind that the Complainant is a “consumer” and fulfills all the condition of a consumer. Since this is a sale out and out with warranty and there is a contract for effecting repairs or replace, the Complainant being a party to the contract is a consumer entitled to file the Complaint. Such consideration for the same stand included in the total price of the vehicle purchased and thus the Complainant being a consumer is entitled to the claim relief against the Opposite Party.

On this point we rely on the decision of our own State C.D.R. Commission reported in 91(2001) CLT (O.S.C.) 29, Sri Binod Kumar Bhawsinka Vrs the Tata Engineering and Locomotive Co. Ltd and others where the Hon'ble Court heed that:-

Consumer Protection Act, 1986- Section 2(I)(d)- sale of a vehicle with warranty. There is a contract for effecting repairs on replace. The Complainant being a party to the contract is a consumer.

Admittedly, the Tractor was purchased on Dt.04/02/2010, through finance proved further through the retail invoice of M/s Sri Ram Motors (Opposite Party No.1(one), Copy of money receipts bearing Sl. No. 45(forty five) issued by Opposite Party No.1(one) regarding the receiving of cheque bearing No. 807480 Dt.04/02/2010 for Rs. 4,75,000/-(Rupees four lakh seventy five thousand)only from Opposite Party No.2(two) and also through the version of the Opposite Parties. The problems cited by the Complainant are also covered under the warranty services as is seen from the owner's manual filed by the Opposite Party No.1(one). On the point we rely on the decision reported in Antrex, Ambience Vrs M/s Alpha Radio and another, where Hon'ble National Commission held that Manufacturer/ Authorized dealer fail to rectify the defects during warranty period – the same amounts to deficiency in service.

Opposite Party No.1(one) in his version at para 5(five) and 6(six) accepted the occurring of problem with the tyre of the vehicle, after running of the Tractor for 4(four) to 5(five) month on a single occasion the rectification of defects which is properly discharged by him. The letter Dt.25/08/2010 bearing L.N.-ADV 41/04 sent by Opposite Party No.2(two) to the Opposite Party No.1(one) and copies of postal receipt and postal A.D. showing sending of letter to the Opposite Party No.1(one) proves that, the Complainant has placed his grievance before the Opposite Parties requesting them to take necessary steps. The Opposite Party No.2(two) through his letter also advised the Opposite Party No.1(one) to arrange and replace the tyres as per the warranty coverage to the party but the Opposite Party No.1(one) instead of solving the problem deferred the matter on different plea who is well responsible for the after sale service Opposite Party No.1(one) says at para-4(four) that he is not responsible for the deficiency in service as he is not the authorized service provider of that tyre part which is supplied by the other “good years company”. But even though the Forum feels that he is the one to assist to purchaser to proceed with the processes when grievance occur on the whole, because Complainant has purchased the whole tractor attaching with tyres from the Opposite Party No.1(one). It is well understood that a purchase occurred with some hope and aspirations which are not full filled in this case and the purchaser suffered from the transaction to a considerable high amount frustrating the whole purpose of transaction. It is the bounded duty of the dealer to attend the said defects. Whenever a new vehicle is sold to a consumer there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault, or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.

On Dt.05/12/2011, the Opposite Party No.1(one) had requested the Forum through a petition to direct the Complainant to produce the alleged tyre before the Forum for physical verification as it necessary for proper adjudication of the case, to which petition was allowed by the Forum with a direction for production of the tyre by the Complainant before the Forum. On Dt.11/12/2012 and Dt.16/01/2013 the Forum in presence of Complainant and in presence of learned advocates of both the Parties, physically verified the tyres.

After physical verification by the Forum, found the genuineness of the grievance of the Complainant almost fully. We find no merit in the plea raised by the Opposite Parties that the defects originated subsequent to the delivery of the vehicle to the Complainant. The defects were so glaring that no purchaser of a new and expensive tractor would tolerate them. There is also no requirement of further expert opinion as the facts of the case and the tyres after physical verification by the Forum it is established that the tyres were in damaged condition. There is also no genuine reason given by the Opposite Party No.1(one) as to why defects were not attended to in detail during the warranty period when the Complainant approached or in contrary failed in establishing its non entitlement for attending services for the fault and defect found in tyres as per clause-3(three) of is warranty coverage. We find that Complainant has established his case that unfair trade practice has been committed by the Opposite Party No.1(one). So the Complainant is entitled for relief from Opposite Party No.1(one).

In the light of the fact and circumstances of the complaint and the nature of evidence placed before us, we arrive at the conclusion that, the tyres in questions were defective and needs replacement. The Complainant has also claimed compensation. We feel that he is entitled to be compensated for the inconvenience and hardship he has suffered because the Complainant was deprived of the use of the tractor.

Opposite Party No.2(two) how ever being the financer is exonerated from all the charges because the Complainant has no allegation against the Opposite Party No.2(two) and repayment of loan amount, is not a matter of dispute in this case.

- O R D E R -

In the result the Complaint is allowed. We direct the Opposite Party No.1(one) either to replace the defective tyres in question by New ones of the same mark which shall be free from any defect or alternatively reimburse the present market price of the same along with compensation of Rs.2,000/-(Rupees two thousand)only within thirty days from the date of receipt of this Order, failing which the cost of the tyres (present market price of tyres) shall carry interest @12%(twelve percent) per annum from the date of the order till the realization of actual amount.

The Complaint is allowed and disposed off accordingly.

Typed to my dictation

and corrected by me.

                I agree,                                                          I agree,                                                                I agree,                                                   (Miss Rajlaxmi Pattnayak)                                 ( Smt. Anjali Behera)                                           (Sri Pradeep Kumar Dash) 

            P r e s i d e n t.                                                 M e m b e r.                                                               M e m b e r.