Punjab

Ludhiana

CC/20/300

Bhajan Kaur - Complainant(s)

Versus

Punjab Farm & Agri Tech - Opp.Party(s)

Mandeep Sharma Adv.

03 Sep 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                             Consumer Complaint No:  300 dated 12.11.2020.                                       Date of decision: 03.09.2024. 

 

Bhajan Kaur wife of Ram Singh, Resident of Agand Patti, Vilage Jharon, District Sangrur.                                                                                                                                                                         ..…Complainant

                                                Versus

1. Punjab Farm & Agri Tech. SCO no.1028-1029, Sector 22-B, Near Mohi Nursing Home, G.T. Road, Mandi Mulanpur, District Ludhiana through its Partners/Proprietor/Manager.
2. Kubota Agricultural Machinery India Private Limited, 8^th Floor, 94, TVH, Beliciaa Tower-1, MRC Nagar, Chennai (Tamil Nadu) through its Managing Director.                                                                                                                                                         …..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Mandeep Sharma, Advocate.

For OP1                         :         Sh. Balwinder Singh Rupal, Advocate.

For OP2                         :         Sh. Harjot Singh, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant is having agricultural under her cultivation for her livelihood at Village Jharon, District Sangrur. On 20.04.2020, she purchased a Kubota Paddy Planter NSP6W S. No.7002564 Engine No.3000454 for Rs.3,52,000/- from the OPs. At the asking of the complainant, OP1 issued a delivery challan of Rs.3,52,000/- in the name of Balldev Singh. The complainant stated that on 25.06.2020, OP1 issued bill of Rs.3,42,000/- through it received amount of Rs.3,52,000/- of above said Paddy Planter NSP. Further at the time of purchase of said paddy planter, OP1 assured that the same is new 2020 latest Model/manufactured and also assured that they will be liable and responsible for any kind of problem and same will be removed free of costs, otherwise, machine will be replaced with new one, as such, believing the said assurance, the machine was purchased by the complainant.

                   The complainant further stated that after some days of purchase of machine, she came to know that the machine is not latest 2020 model but same was manufactured in April 2019, which the OPs sold her under the garb of mode 2020 and even charged Rs.10,000/- in excess. Further the machine was not working properly for which the complainant requested the OPs many times to remove the defect but they could not remove the defect despite their best efforts as the same was having some manufacturing defect. The complainant approached the OPs but they put the matter off on one pretext or the other. In the middle of July 2020, the OPs flatly refused to entertain her complaint and refused to replace the machine with new one of 2020 model. The complainant issued a legal notice dated 28.07.2020 upon the OPs to replace the said Paddy Planter NSP Machine with latest one and pay compensation to which the OPs gave their separate vague and false replies. According to the complainant, the act and conduct of the OPs amounts to deficiency in service and unfair trade practice due to which she has suffered mental tension, pain and agony and she is entitled to compensation. In the end, the complainant has prayed for issuing directions to the OPs to refund of Rs.3,52,000/- charged for sale of old and defective machine along with interest or to replace the machine with new one of 2020 model. The complainant also prayed to pay compensation of  Rs.1,00,000/- and litigation expenses of Rs.22,000/-.

2.                Initially, OP1 was proceeded against exparte vide order dated 04.05.2021 but later on, OP1 filed application for setting aside exparte proceedings. Vide order dated 13.10.2021, OP1 was permitted to join the proceedings from the stage the complaint is pending at.

                   As the complaint was at the stage of filing written statement and as such, OP1 filed written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability; the complainant has not come with clean hands; suppression of material facts; the complainant has no locus standi to file the present complaint; the complainant being estopped by her own act and conduct; the complaint being an abuse of process of law etc. OP1 stated that in fact, the complainant also purchased a Seeder along with Kubota Paddy Planter Machine. The actual price of seeder is Rs.15,000/- but on the request of the complainant, OP1 gave a discount of Rs.5000/- on Seeder implement and as such, on the delivery challan whole amount is shown as Rs.3,52,000/-. Even otherwise, the delivery challan is a token of delivery of farm implements to the complainant whereas the bill raised by OP1 is detailed description of machinery sold to the complainant along with GST and other taxes. OP1 further stated that the seeder is used to sow the Paneeri of Paddy crop and is a mere a tool of Kubota Paddy Planter Machine which is optional to the customer for its purchase. Further the Paddy Planter Machine is a latest mode being manufactured by OP2 directly imported from Japan to India through shipments. The said Paddy Planter Machine is only an agricultural implement which is not required to be registered under Motor Vehicle Act. The machine supplied by OP1 to the complainant is latest model in technique. OP1 also provides technical support and training to its customers and also extends after sale service as per standards and rules of manufacturer i.e. OP2.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections. OP1 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

3.                OP2 filed separate written statement and assailed the complaint by taking preliminary objections on the grounds of maintainability; the complainant has not come with clean hands; suppression of material facts; lack of jurisdiction; the complaint is bad for mis-joinder of parties etc. Op2 stated that the complainant has entered into a sale contract with OP1 to buy the Paddy Planter NSP6W S. No.7002564 bearing Engine No.3000454. However, the complainant has failed to make any specific allegations against OP2 and has not sought any relief against it. OP2 has failed to mention any specific manufacturing defect in the machine in question. OP2 further stated that it works on a principle to principle basis with OP1 wherein it is settled that OP1 is not an agent of OP2. The arrangement as governed by the Dealership Agreement executed between OP1 and OP2 as per clause 12.1.3 and clause 30 ipso facto depicts that in the matter of discount and other incidental things OP2 is not at all a privy.

                   On merits, OP2 reiterated the crux of averments made in the preliminary objections. However, OP2 stated that the products manufactured by it are sold to its dealers where OP1 happens to be dealer, who further sells the machinery/products to their customers under their own invoice. OP1 is a separate legal entity carrying its own business. OP2 neither received the price of the machinery from the complainant nor delivered the machinery to the complainant directly. OP2 is not privy to the sale contract executed between the complainant and OP1 and as such, OP2 is not liable for any omission or commission on the part of OP1. OP2 further stated that OP1 intimated to it that the complainant purchased the Transplanter for an amount of Rs.3,42,000/- and also purchased a seeder for an amount of Rs.10,000/- which is mentioned in the delivery challan of Rs.3,52,000/-. Even the legal notice dated 28.07.2020 sent by the complainant does not find any mention about any such alleged defect. The complainant has failed to produce a single document to prove her allegations. OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of delivery challan dated 20.04.2020, Ex. C2 is the copy of tax invoice dated 20.06.2020, Ex. C2 is the copy of legal notice dated 28.07.2020, Ex. C4 and Ex. C5 are the copies of postal receipts, Ex. C6 is the copy of reply dated 19.08.2020 sent by OP1 to legal notice, Ex. C7 is the copy of reply dated 27.08.2020 sent by OP2 to legal notice, Ex. C8 is the copy of Aadhar Card of the complainant and closed the evidence.

5.                On the other hand, the counsel for OP1 tendered affidavit  Ex. R1/A of Sh. Kanwaljeet Singh, Proprietor of OP1 and closed the evidence.          

                   The counsel for OP2 tendered affidavit Ex. R2/A of Sh. Jaswinder Singh, Regional Sales Manager of OP2 along with documents i.e. Ex. R1 is the copy of letter dated 03.03.2021 written to OP1 by OP2, Ex. R2, Ex. R3 is the copy of terms and conditions of sale, Ex. R4 is the copy of Authority letter dated 11.03.2021 and closed the evidence.            

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statements along with affidavits and documents produced on record by the parties.                

7.                From the pleadings and evidence of the parties, the following points in issue arises for consideration of this Commission:-

(i) Whether OP1 sold an old machine of 2019 Model by misrepresenting it to be of 2020 Model to the complainant or not?

(ii) Whether an amount of Rs.10,000/- was charged in excess of the agreed sale price or not?

(iii) Whether the transplanter was having any manufacturing defect which the OPs failed to rectify?

8.                OP2 is a manufacturer of transplanter and has entered into a dealership agreement with OP1 for the purpose of sale, service of the product being manufactured by OP2. Undeniably, the complainant purchased Kubota Paddy Planter for which a delivery challan Ex. C1 was generated. The delivery challan Ex. C1 depicts the price of the product along with details of engine number and chassis number and it is issued in the name of one Baldev Singh at the instance of the complainant. Subsequently, after 5 days, a bill Ex. C2 was generated in the name of the complainant having the same particulars of the model, Engine and chassis number. The year of manufacturing was neither mentioned in the challan Ex. C1 as well as bill Ex. C2. Meaning thereby, the year of manufacturing was not an issue at the time of purchase of the transplanter. According to the OPs, it is the latest model in terms of technique. The cardinal principle “buyers beware” also applies in the present case. When the detail of model, engine number and chassis number has been specifically mentioned, the complainant could have inspected the transplanter to ascertain its year of manufacturing. It is not clear that how and when the complainant came to know about the year of manufacturing. As such, the evidence on record is not sufficient to conclude  that OP1 misrepresented the complainant with regard to year of manufacturing to the complainant and sold an old model of the machine.

9.                There is a suppression of material fact on the part of the complainant as the complainant purchased the paddy planter as well as paddy seeder. Both are two different and distinct agricultural implements having specific purpose and both cannot be treated to be a single machine. The OPs have explained the receipt of Rs.3,52,000/- out of Rs.3,42,000/- is price of planter and Rs.10,000/- is the discounted price of seeder. As such, the OPs did not charge any price in excess of the agreed sale consideration.

10.              The complainant has alleged that the machine was not properly working and it had manufacturing defect. The manner of malfunctioning of machine has not been explained or whether said machine was ever brought to the service center of the OPs or it was ever subjected to any kind of repairs. It is settled law that in order to prove the manufacturing defect opinion of an expert is essential. No expert has been examined by the complainant to substantiate the allegations of any manufacturing defect in the machine. Rather there is a consistent and categoric stand of the OPs that the machine is functioning properly without any defect. So the complainant has failed to discharge initial onus to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.  The Hon’ble Supreme Court of India in its judgment in SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India while relying upon on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. As well as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544), has held as under:-

“19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.”

 

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.   

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

 

Announced in Open Commission.

Dated:03.09.2024.

Gobind Ram.