Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite parties for replacement of the tractor and trailer or refund Rs.3,77,600/- with interest and also for refund of excess amount collected by the 2nd Opposite party with compensation. 2. The facts of the complaint are as follows; The complainant is an agriculturist, 1st Opposite is the manufacturer of Angad D-240 tractor and 2nd Opposite party is the authorized dealer of the tractors of 1st Opposite party. At the instigation of 2nd Opposite party to purchase the tractor and trailer on loan basis to be arranged by him, the complainant purchased the tractor and trailer from 2nd Opposite party and they were delivered on 15.09.2006 and registered as KA-11/T-7821 and 7822. Though the invoice issued by 2nd Opposite party is for Rs.3,54,000/-, the 2nd Opposite party has received the D.D. from the State Bank of Mysore, ADB Branch, Mandya for Rs.3,77,600/-. After taking the delivery of the tractor and trailer, the complainant found the defects no.1 to 10 mentioned in the complaint and so he contacted the 2nd Opposite party during the month of October 2006 on many occasions regarding the above defects and working conditions of the above tractor and trailer and 2nd Opposite party was promising the complainant to get an alternative remedy i.e., to replace the tractor and trailer or refund the amount, but the Opposite party failed to carry out the repair work and has not replaced the tractor and trailer. The tractor was not used even for two weeks from the date of purchase and is parked near his house. 2nd Opposite party has obtained signatures on the blank papers from the complainant with pretext to send it to the manufacturer for refund of the amount. Further 2nd Opposite party has taken excess price of Rs.75,000/- than the price quoted by the 1st Opposite party and as such 2nd Opposite party has committed unfair trade practice. Therefore, the complainant is entitled for the refund of excess amount from 2nd Opposite party. The legal notice sent by the complainant was issued received by the 2nd Opposite party and 1st Opposite party has not claimed. The Opposite parties have not replaced the tractor and trailer or refund the amount, therefore the present complaint is filed. 3. 1st & 2nd Opposite parties were served notices and they have filed written version. 4. 1st Opposite party, admitting that the complainant is the owner of the tractor and trailer and 1st Opposite party is the manufacturer and 2nd Opposite party is a dealer of 1st Opposite party, denied the allegations of instigation to purchase. There is no direct contact between the 1st Opposite party and complainant. The allegation regarding the defects in the tractor is false. The complainant never contacted 1st Opposite party about over charging or non-delivery of tractor service book or instruction manual. Angad 240-D proto type, and random production samples have been tested at Central Farm Machinery Tractor testing institute, Budhni and found to be inconformity with the quality and performance standards promulgated by Bureau of Indian Standard Institute and minimum performance standards prescribed by Union Ministry of Agriculture. The alleged repairs and maintenance problem might have been caused by abuse of vehicle contravening the specific instructions provided in the manual. The problem alleged are not manufacturing defects and 1st Opposite party is not responsible for any trouble with respect of trailer and it is false that the complainant approached the Opposite parties to get back the vehicle. Therefore, the complaint is liable to be dismissed with cost. 5. The 2nd Opposite party has admitted that the complainant has purchased the tractor and trailer and registered and he is the authorized dealer of 1st Opposite party tractor. He has denied the instigation to purchase the tractor on loan basis. It is admitted that the complainant purchased the tractor and trailer from the 2nd Opposite party and delivered on 15.09.2006 for a sum of Rs.3,54,000/- and the said amount has been paid to 2nd Opposite party from State Bank of Mysore, on behalf of the complainant and 2nd Opposite party has issued cash receipt dated 15.09.2006. The 2nd Opposite party handed over the service book and catalogue to the complainant. The allegations of defects in the tractor and trailer immediately after purchase are all false and they are all imaginary. If there are manufacturing defects, the manufacturer is only liable to pay compensation. It is denied that the complainant approached the 2nd Opposite party on many occasions and 2nd Opposite party was promising to get alternative remedy for replacement nor refund the amount. The complainant used the vehicle about 1 ½ year without any complaint regarding service, materials, standard of capacity has not lodged any written or oral complaint. The other allegations are denied that has committed unfair trade practice and the complainant is entitled for refund of the excess billed amount. The complainant agreed for the change of price from time to time by the company and the same is mentioned in the quotation issued on 15.07.2006 that the vehicle was delivered on 15.09.2006. Hence, the cost of the vehicle is enhanced. The complaint is filed to make unlawful gain with false allegations. Therefore, the complaint is liable to be dismissed. 6. During trail, the complaint is examined as CW.1 and got marked Ex.C.1 to C.8, Commissioner i.e. Senior Grade Lecturer Department of Automobile Engineering, PES College of Engineering, Mandya was appointed to inspect the tractor in question and has submitted the report. On behalf of the 1st & 2nd Opposite parties RW.1 & 2 are examined and Ex.R.1 to R.15 are marked. 7. We have heard both sides. 8. Now the points that arise for our considerations are:- 1) Whether the Complainant proves that the tractor manufactured by 1st Opposite party and sold by 2nd Opposite party is defective? 2) Whether the complainant proves that trailer supplied by 2nd Opposite party is defective nature? 3) Whether the complainant proves that 2nd Opposite party has collected excess amount higher than the company rate? 4) Whether the 1st & 2nd Opposite parties have committed deficiency in service? 5) To what relief the complainant is entitled? 9. Our findings and reasons are as here under:- 10. POINT No.1:- The undisputed facts are that the complainant is an agriculturist, 1st Opposite party is the manufacturer of Angad 240-D tractor and 2nd Opposite party is the dealer of the said tractor and he is also manufacturer and dealer of the trailer. Further, it is an admitted fact that the 2nd Opposite party has sold the tractor and trailer as per the invoice Ex.C.3, delivery note Ex.C.2 and 2nd Opposite party has received the D.D. for Rs.3,77,600/- from the State Bank of Mysore on behalf of the complainant as per Ex.C.1 cash receipt, Ex.C.4 is the registration certificate of the tractor. 11. The grievance of the complainant is that the tractor and trailer sold by the 2nd Opposite party are having the defects which were noticed after taking delivery of the said tractor and the list of defects are mentioned in the complaint and they are as fallows; 1. The tractor cannot be moved in the land even with one tone capacity as there is no grip. 2. The break conditions is not correct though it is repaired many time. 3. The tractor cannot carry 3 tons load as mentioned in the invoice. 4. The tractor while moving with loan, suddenly the engine portions lifts upwards and the trailer turtle. 5. While tilling the land, the engine heated and went off and it took several hours to restart, it cannot till even three inches in the land. 6. The electrical instrument of the vehicle are not working properly, cannot starts even if the vehicle is idle for one day. 7. The gear, clutch and stearing are not working properly. 8. While unloading if the lift of the trailer is operated, the engine of the vehicle also lifted upwards. 9. The spare parts of the tractor and trailer are not available at Mandya District. 10. The parts used in the vehicle are inferior quality and as such they are cutting off often and often. So, according to the complainant, the tractor and trailer are having manufacturing defects. According to the complainant, he contacted 2nd Opposite party during October 2006 on many occasions regarding the above defects and working conditions of the said tractor and trailer for which 2nd Opposite party was promising to get replacement of the vehicles or refund of the amount and Opposite party failed to carry out the repair work or replace the vehicle. According to the complainant, the tractor was not used even for two weeks from the date of purchase and the vehicle is of inferior quality. 1st and 2nd Opposite parties have denied the same. According to the 1st Opposite party, the alleged defects are not manufacturing defects, but the repairs and maintenance problem might have been caused by abuse of vehicle or use of the vehicle contrary to instructions provided in the manual. According to the 1st Opposite party, the tractor has been certified by the Bureau of Indian Standard Institute and approved by Union Ministry of Agriculture. The 1st Opposite party has produced the certificates Ex.R.1, R.3, R.4 and Ex.R.5 the warranty conditions. 12. According to the 2nd Opposite party, the complainant availed free services and there was no written or oral complaint of defects and he has produced copy of the free service coupons Ex.R.4 to R.9 stating that the originals were sent to the company. He has also produced the job cards Ex.R.11 to R.14 stating that services was provided free. In the evidence, the complainant has admitted that they used the vehicle for 3 months with the help of the driver and he left the vehicle, tractor for repairs and 2nd Opposite party carried out the repairs, but collected Rs.1,500/- and no receipt was issued. The complainant has deposed that only once the tractor was provided a free service when suggestion was put that 4 times free services were provided. The complainant has admitted that one Channappa was the driver of the tractor. We find the signature of the Channappa in Ex.R.6 free service coupon dated 15.11.2006 and Ex.R.9 free service coupon dated 02.07.2007 and in Ex.R.7 & 8 dated 01.04.2007 and 21.01.2007 free service coupons, the complainant has put signature. We cannot be accept that the 2nd Opposite party has obtained signature to empty coupons. Even to the job cards Ex.R.11, 12, 13 and R.14, the driver Channappa has put signature and these job cards are corresponding to the free service coupons Ex.R.6 to R.9 and 2nd Opposite party has provided free service and attended the inspection of the vehicle when complaint was made. In the job cards there is no replacement of any parts. If actually there was any such defect in the parts of the vehicle, the 2nd Opposite party should have noticed the same at the time of free service and replaced the defective parts. The complainant did not got tested the vehicle from anybody before filing the complaint. Even he has not lodged the complaint to 2nd Opposite party or 1st Opposite party in writing about the serious problems and defects of the tractor except the legal notice dated 21.03.2008 as per Ex.C.5 issued only after 1 ½ year from the date of delivery. As per Ex.R.5 the warranty. The warranty is for only 12 months or thousands working hours as per meter reading whichever is earlier against the manufacturer or workmanship defects from the date of delivery. So within 12 months, the complainant has not at all brought to the notice of the 1st Opposite party company or at least 2nd Opposite party the dealer in writing about the defects in spite of free service provided. About the use of the vehicle, the evidence of the complainant is also contradictory, because according to the complaint, immediately after delivery of the tractor and trailer, the complainant noticed the defects, but in the evidence he deposed that the tractor was used for 3 months and then it was left for repairs due to problems. Further, the commissioner was appointed to inspect the tractor and he has submitted the report. The trailer was not brought to the inspection. The owner has failed to start the engine and the mechanic was not brought in spite of instructions to start the engine; the vehicle was not started because it requires minor problems by the mechanic to start the engine and therefore, the commissioner was not able to comment on the tractor. The complainant did not adduce any acceptable evidence about the manufacturing defects of the tractor. Therefore, the complainant has failed to prove that the tractor manufactured by 1st Opposite party and sold by 2nd Opposite party suffers from manufacturing defects. Therefore, we answer point No.1 in the negative. 13. POINT NO.2:- The complainant has also pleaded that the trailer manufactured and sold by 2nd Opposite party is also defective. But in the complaint what are the problems of the trailer are not mentioned, but only problems of the tractor are mentioned. Even the trailer was not produced before the commissioner to inspect. Even the complainant has not deposed the problems of the trailer. Therefore, the complainant has failed to prove that the trailer sold by 2nd Opposite party is also defective nature. Therefore, we answer point no.2 in the negative. 14. POINT NO.3:- The another grievance of the complaint is that the complainant has collected excess amount of Rs.75,000/- for the tractor than the price quoted by the company. According to the complainant, the 2nd Opposite party has issued invoice dated 15.07.2006 for Rs.3,54,000/- as per Ex.C.3 for arranging bank loan, but the 2nd Opposite party has collected D.D. for Rs.3,77,600/- from the State Bank of Mysore on behalf of the complainant and issued the cash receipt Ex.C.1. Therefore, the 2nd Opposite party has committed unfair trade practice. But, the contention of the 2nd Opposite party is though the invoice as per Ex.C.3 was issued, but the prices are subject to change and as the company changed the rate another invoice was issued and he has collected the D.D. from the bank as per the invoice Ex.R.1 which is for Rs.3,77,600/-. Now, if we peruse Ex.R.1 though it contains the signature of the complainant, according to the complainant, the 2nd Opposite party has obtained his signature to so many papers. The complainant is an illiterate and innocent agriculturist. Naturally to get the loan for purchase of the tractor and trailer on loan basis at the instigation of the 2nd Opposite party, he has put signature to forms as directed by the 2nd Opposite party. In Ex.C.3 there are 7 items, but in Ex.R.1 there are 8 items. Further, if the amount mentioned in Ex.R.1 is totaled, the total amount mentioned is not tallying with the actual calculation. In Ex.C.3, the quotation issued to the complainant, the cost of the tractor is mentioned as Rs.1,65,000/-, but in Ex.R.1 it is mentioned as Rs.1,69,000/-, but 1st Opposite party has produced the price list prevailing on the date of sale of tractor to the complainant and it is marked as Ex.C.8 and the price of the tractor is mentioned Rs.1,49,000/-. But, 2nd Opposite party gone to the extent of creating a document of rate list said to be issued by the company. Though the covering letter is the same, but the price list is contrary one to another. Therefore, Ex.R.1 cannot be believed at all and it is a created quotation and there is no evidence that copy of the Ex.R.1 was provided to the complainant and the complainant has produced only quotation marked as Ex.C.3 which contains 7 items, but Ex.R.1 contains 8 items. The cost of the tractor received by 2nd Opposite party is Rs.1,69,000/-, but the company rate is Rs.1,49,000/- and therefore he has collected excess amount of Rs.20,000/-. Further, he has collected Rs.27,000/- in Ex.R.1 for item No.5 (disk 2 bundle) which does not find a place in Ex.C.3. 2nd Opposite party has not produced the delivery note for having delivered the said item. Therefore, the records clearly established that the 2nd Opposite party has collected excess amount of Rs.47,000/- without the knowledge of the complainant and has committed unfair trade practice and therefore is liable to refund of Rs.47,000/- with interest from the date of D.D. dated 15.09.2006. 15. POINT NO.4:- The complainant has alleged that 1st & 2nd Opposite parties have committed deficiency in service by supplying defective vehicles and also 2nd Opposite party has collected excess amount by unfair trade practice, but in view of our finding on point nos. 1 & 2, the complainant has failed to prove that the 1st & 2nd Opposite parties have committed deficiency in service by supplying defective tractor and trailer, but it is established that the 2nd Opposite party has committed unfair trade practice and deficiency in service by collecting the excess amount of Rs.47,000/- from the complainant contrary to the price fixed by the company (1st Opposite party) and non-supply of one item. 16. Therefore, in view of our findings on points no.1 to 4 we proceed to pass the following order; ORDER The complaint is partly allowed directing the 2nd Opposite party to refund Rs.47,000/- with interest at 12% p.a. from 15.09.2006 till payment with cost of Rs.1,000/-. The complaint against 1st Opposite party is dismissed. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 22nd day of September 2008). (PRESIDENT) (MEMBER) (MEMBER)
