Punjab

StateCommission

FA/13/181

Zimidar Tractors - Complainant(s)

Versus

Rashpal Singh - Opp.Party(s)

Rajeshwar Singh, Nasib Singh Gull, Sanjay Singh

01 Jul 2015

ORDER

                                                                                                                         2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,  DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

                          First Appeal No.181 of 2013

 

                                                                      Date of institution   :   19.02.2013      

                                                            Date of decision      :   01.07.2015

 

Zimidara Tractors, Mehar Chand Road, Tibri Chowk, Gurdaspur (Authorized Dealer Eicher Tractors) through its Proprietor/Manager.

                                                                                                                                    …….Appellant/Oppo    Versus

Rashpal Singh son of Pritam Singh, R/o Village Kattowal, Tehsil and District Gurdaspur.                                                                                                                                                                               ……Respondent/complainant

First Appeal against the order dated 29.11.2012 passed by the District Consumer Disputes Redressal Forum, Gurdaspur. 

Quorum:- 

 

          Mr. Gurcharan Singh Saran, Presiding Judicial Member

          Mr. Vinod Kumar Gupta,Member.

          Mrs. Surinder Pal Kaur, Member.

 

Present:-

     

         For  the appellant          : None

         For  the respondent      : Sh. B.S. Dhillon, Advocate

 

MRS. SURINDER PAL KAUR, MEMBER:-

ORDER

                   The appellant/opposite party (hereinafter referred as the OP) has filed the present appeal against the order dated 29.11.2012 passed by the District Consumer Disputes Redressal Forum, Gurdaspur, (hereinafter referred as “the District Forum”) in Consumer Complaint No.298/2012 vide which the complaint filed by the respondent/complainant (hereinafter referred as complainant) was allowed and the OP was directed to remove the defect in the gears of the tractor. If the defect was not reparable then the tractor of the complainant be replaced with new one within 30 days. The  OP was further directed to pay Rs 10,000 as compensation for harassment to the complainant..

2.      A consumer complaint was filed by the complainant under the Consumer Protection Act 1986(in short 'the Act’) against the OP alleging that he purchased the Eicher Tractor Modal 5560 bearing Chassis No. 919015145422 Engine No. 518826406251 in the month of November 2011 from the OP for Rs. 6,00,000/- for agriculture  purpose. The  complainant had given his Sonalika 750 tractor in exchange of Rs.3,20,000/- and remaining amount of Rs.2,28,000/-  was paid by him in cash to the OP. From the date of purchase of tractor the gears of tractor were defective.  While,   plying the tractor gears had been suddenly jumped and intermingled with each other  due to that reason he was unable to ply the tractor smoothly while ploughing the fields and taking the sugarcane to the mills.  He also got the services of the tractor through OP on 29.11.2011 and 20.03.2012 and the defect was also brought to the notice of the OP at that time but the OP could not remove that defect. The complainant had many times requested the OP to remove that defect permanently or replace the tractor with another tractor with the same make. But the OP put off the matter on  one pretext or the other. It appeared that the defect in the gears was manufacturing defect and the defect was not curable. At the time of sowing and harvesting of wheat crop and paddy crop, the complainant had to hire the tractor from his neighbour for the last two seasons. For that the complainant had spent Rs. 1,00,000 on hiring the tractor. The above said act of the OP amounts to deficiency in services. Hence, the complaint before the District Forum seeking the following directions against the OP:-  

1. to replace the tractor with  another  tractor of  same mark or remove that defect in gears;
2. to pay Rs.200,000, as compensation for physical and mental harassment.

3.      Notice of the complaint was served to the OP on 23.7.2012 but none had appeared on its behalf. On 27.8.2012 the OP was proceeded against  ex-parte. Ex-parte evidence of the complainant was recorded and the case had been listed for  arguments. On 20.09.2012  Kanwar Manjinder Singh, Advocate,  appeared on behalf of the OP and filed  Vakalatnama and also filed the application for setting aside the  ex parte proceedings against the OP. Vide Order dated 04.10.2012 the District Forum held that there was  no jurisdiction to set aside the ex-parte order Therefore, the application was dismissed and the case  was listed for filing the written arguments which was not filed by the OP.

4.      In support of his allegations, the complainant had tendered into evidence his affidavit Ex.C-1, affidavit of Balraj Singh Ex.C-2, affidavit of Jagdev Singh Ex.C-3, and documents  Ex.C-4 to Ex.C-9  and closed his evidence.

5.      After going through the allegations levelled in the complaint, evidences and documents brought on record the learned District Forum finding deficiency in service on the part of the OP, allowed the complaint of the complainant as referred above.   

6.      Aggrieved against the order passed by the learned District Forum the appellant/OP has preferred the present appeal.

7.      We have heard the learned counsel for the respondent/ complainant  as no one appeared on behalf of the appellant and have carefully gone through the record of the case.

8.      It was mentioned in the grounds of appeal that the respondent/ complainant  had not approached the District Forum with clean hands and had concealed the material facts from the District Forum. At the time of purchase of tractor nothing  was  paid by the complainant to the OP. The complainant sold his tractor, Sonalika  whose valuei.e.  Rs.3,20,000/- was adjusted and the complainant was required to pay another sum of Rs.2,28,000/-. to the OP. The remaining amount was not paid by the respondent/complainant till date. He in order to avoid the payment of aforesaid sum of Rs. 2,80,000/- had filed the present complaint.. The tractor was inspected by the company and OP had already changed the gear box /garari of the tractor in question. After change of gear box gear box, there was no complaint regarding the and complainant  did not  come to the OP with any problem.  The complainant was still plying the tractor on the road.  The OP was a dealer of Eicher tractors and was not the owner of the company. Only company was liable to remove manufacturing defect.  The District Forum had not taken into consideration that there was no evidence to establish that there was manufacturing  defect in the tractor and the same required to be replaced. The complainant had only examined  Balraj Singh who is a Tractor Mechanic with ITI Degree.  However, Balraj Singh had not  been examined by the .It was prayed for the acceptance of the appeal and set aside the impugned order.

9.       The first plea of the OP was that the complainant sold his tractor, Sonalika  whose valuei.e.  Rs.3,20,000/- was adjusted and the complainant was required to pay another sum of Rs.2,28,000/-. to the OP. The remaining amount was not paid by the                                                      respondent/complainant till date. He in order to avoid the payment of aforesaid sum of Rs. 2,80,000/- had filed the present complaint. Whereas, the complainant had filed his detailed affidavit Ex.C-1 in which he deposed  that he purchased the Eicher Tractor Model 5660 from he OP for Rs.6,000,00/-. He sold his sonalika tractor Model 750 in exchange for the value of Rs. 3,20,000/- and paid Rs.2,80,000/- in cash to the OP . Complainant   proved on record Ex C7 bill of  Eicher Tractors which  was issued by the OP on 3.11.2011  under their signature . It reveals that after the payment of Rs 600,000  the complainant purchased Eicher Tractor Model 5560 Chassis No919015145422 Engine No 518826406251from the OP. There is no evidence on the record that 2,28,000 was still pending against the complainant. Therefore, the plea  of the OP regarding  remaining                        amount is after thought                                                                    .

10.    The second plea of the OP was that the tractor was inspected by the company and OP had changed the gearbox/ garari of the tractor in question. After change of gear box, there was no complainant regarding the  gear box and complainant  did not come to the OP with any problem. The OP failed to prove any evidence which shows that the tractor was inspected the company and gear box was changed by them whereas,   complainant   proved on record Job Card No. 7 dated 29.11.2011 as Ex.C8 and Job Card No. 17 dated 20.03.2012  as Ex C9. As per that Job Cards the OP charged Labour charges 2200+2720=4920 from the complainant but failed to remove the Defect in tractor. Complainant also filed the affidavit of Balraj Singh tractor mechanic as Ex.C-2, in the affidavit he deposed that he is tractor mechanic and have done his course from Government ITI Gurdaspur in the year 1992. He had also worked as tractor mechanic and combine mechanic at Mohali since 1995 to 2005 and well conversant with the machinery of tractors. On 24.07.2012 he checked the tractor, Eicher Modal 5660 in the presence of complainant and Jagdev Singh son of Gurcharan Singh Village Kattowal and found the defects in the tractor  as mentioned  in  his  report. He made his report on 24.04.2012  Ex.C-4 in which he was mentioned that ‘ Tractor gets double gear while running; it gets jerked at once, gears get stuck up, neither the tractor gets neutral nor the gears get changed.

1. PTO shaft does not work.
2. Clutch does not work properly.
3. Engine is defective, it leaves smoke, diesel is being feeded more than required and oil is leaking a lot’.

The complainant also filed the affidavit of Jagdev Singh as Ex C 3 in which he deposed that he is permanent resident of V. Kattowal and Agriculturist by profession. He knows the complainant personally. Complainant purchased the tractor Eicher Model 5660 from the OP which is defective and its gears suddenly jumped and intermingled with each other. Due to this complainant  is unable to ply  the tractor smoothly while ploughing fields and to carry on the sugarcane to the mills. Complainant hired his tractor for sowing and harvesting the wheat corps. He also mentioned in the affidavit he had received Rs.1 Lac for sowing the corps of the complainant.  Therefore, there is manufacturing defect in the tractor. While allowing the complaint the District Forum wrongly held that if the defect was not repairable then the OP was liable to replace the tractor with new one whereas, the OP was only dealer not manufacturer. Manufacturer Company was not party in the complaint. Therefore, the OP was only liable to remove the defect in the gear box.   The appeal of the Appellant / OP is partly allowed. The OP is directed to remove the defect in the gear box as per the satisfaction of the complainant. The order of the District Forum is modified to that extent and other part of the order is kept intact.

11.              The appellant/opposite party deposited a sum of Rs.5,000/- on 19.02.2013, at the time of filing of the appeal before this Commission This amount along with interest which has accrued  thereon, if any, shall be remitted by the registry  to  the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to the parties subject to stay if any by any higher Fora/Court.

12.              The arguments in this appeal were heard on 29.06.2015 and the order was reserve­d. Now, the order be communicated to the parties as per rules.

                                                         (GURCHARAN SINGH SARAN)

                                                             Presiding Judicial Member

                                                                           

 

                                                                    (VINOD KUMAR GUPTA)

                                                                                 Member                           

                 

                                                                (SURINDER PAL KAUR)

July     01, 2015                                                      Member

RK 2