Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for direction to the Opposite parties to get back the tractor and trailer and repay the amount of Rs.4,00,000/- with compensation of Rs.50,000/- alleging deficiency in service. 2. The facts of the complaint are follows; The complainant is an agriculturist, 1st Opposite party is the proprietor of Angad Tractors. 2nd Opposite party is the authorized dealer to the said S.A.S. Motors. 3rd Opposite party is the manufacturer of trailer. At the instance of 2nd & 3rd Opposite parties and promise of quality and deficiency of service the complainant purchased tractor and trailer from 2nd & 3rd Opposite parties on loan basis for agriculture purpose and for better cultivation of his own land. The said tractor was registered as KA-11/T-7039. The complainant used the said tractor for 3 months and he experienced that the said tractor is most unfit for the cultivation or for the transportation and further, the tractor and trailer are under continuous repairs more than 15 to 20 times. The said vehicle was repaired within 3 months in 2nd Opposite party showroom and for the said repairs 2nd Opposite party charged excess bill, though the 1st Opposite party is not expected to charge for the period of one year. The trailer manufactured by 3rd Opposite party is not fit to carry goods. Further, the 3rd Opposite party has not at all given several spare parts which are mentioned in the bill collecting the entire amount. Due to the purchase of unwanted vehicle, at the instance of 2nd & 3rd Opposite parties, the complainant is shocked and depressed and the Opposite parties made the complainant to commit to the tune of Rs.3,00,000/-. The said vehicle is parked in front of his house without used. Later, the complainant approached the Opposite parties on several times to do the needful for the replacement or to get back the vehicle, but they least regarded to the request of the complainant. With no alternative, the complainant got examined the vehicle through B.S.Chikkaswamy Engineer, Surveyor and Loss Assessor and has given report that the vehicle is unfit for agriculture or for transportation. On that basis, the complainant got issued legal notice dated 02.01.2008 to the 2nd & 3rd Opposite parties to get back the vehicle and to repay the amount. But Opposite parties have given evasive reply and therefore, the present complaint is filed. 3. The notices were served on 1st & 2nd Opposite parties and the notice was not served on 3rd Opposite party for default of the complainant to furnish the correct address and therefore complaint was dismissed for default against 3rd Opposite party. 4. The 1st Opposite party has filed version admitting that the 1st Opposite party is the Proprietor of Angad Tractor and 2nd Opposite party was a dealer of 1st Opposite party. It denied that within 3 months after use of the tractor, the complainant experienced that the vehicle was unfit for cultivation or transportation and it was under continuous repair and repaired more than 15 to 20 times within 3 months. It is pleaded that Angad 240-D proto type and random production samples have been extensively tested at Central Farm Machinery Tractor Testing Institute and have been found to be inconformity with the relevant quality and performance standards promulgated by Bureau of Indian Standard and minimum performance standards promulgated by Union Ministry of Agriculture. The alleged repairs and maintenance problem might have been caused by abuse of vehicle or use of it in a manner that contravened the specific instructions provided in the manual and due to lack of knowledge about the operating the tractor. The problems alleged are not manufacturing defect. So for as charges for repair of the vehicle, 1st Opposite party cannot be held liable and the same was not brought to the notice of 1st Opposite party. The 1st Opposite party is not responsible in respect of trailer as it has not supplied. It is also denied that the complainant was put to burden of Rs.3,00,000/- and the complainant approached the Opposite parties to get back the vehicle and thereafter he got examined the vehicle by B.C.Chikkaswamy, Surveyor. The said report given by B.C.Chikkaswamy is behind the back of 1st Opposite party and is not an authorized person to inspect the vehicle and the report given by him cannot be relied upon as he is not competent. Therefore, the complainant is liable to be dismissed with cost. 5. The 2nd Opposite party has filed version denying all the allegations made in the complaint, but he pleaded that he has extended good service to the complainant and all free services obtained by the complainant are being attended by 2nd Opposite party and the false complaint is filed in order to make wrongful gain if possible and sought for dismissal of the complaint. 6. During trail, the Complainant and one witness Sri.B.C.Chikkaswamy, the Surveyor / Loss Assessor are examined and Ex.C.1 to C.5 are marked. On behalf of the 1st Opposite party one H.N.Sathish is examined as RW.1 and 2nd Opposite party is examined as RW.2 and Ex.R.1 to R.17 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 having manufacturing defects? 2) Whether the 1st & 2nd Opposite parties have committed deficiency in service? 3) Whether the complainant is entitled to the relief sought for against 1st & 2nd Opposite parties? 4) What order? 9. Our findings and reasons are as here under:- 10. POINTS No.1 to 3:- The undisputed facts borne out from the materials on record, though the 2nd Opposite party has denied all the allegations made in the complaint, but strangely pleaded that he provided free services to the tractor purchased by the complainant and 1st Opposite party is the manufacturer and 2nd Opposite party is the dealer of the Angad Tractor at Mandya. The evidence of the complainant has to be accepted that at the instance of 2nd & 3rd Opposite parties and assurance given by them, the complainant has purchased the tractor and trailer on loan basis. 11. The grievance of the complainant is that within 3 months of use of the tractor, the complainant experienced that the tractor is unfit for cultivation or transportation and the tractor and trailer were under continuous repairs for more than 15 to 20 times with 2nd Opposite party who collected excess bill, though he is not expected to charge for the repairs for a period of 1 year (warranty period) as free services and further since the 2nd Opposite party did not come forward to take back the vehicle or replacement, the complainant got examined the vehicle by Sri.B.C.Chikkaswamy, Surveyor and loss assessor and on inspection issued detail report stating that the vehicle is unfit for agriculture or transportation and then he got issued a legal notices. As stated above, 2nd Opposite party denying all the allegations made in the complaint even with regard to the purchase of the tractor has pleaded that he provided free services during warranty period. According to the 1st Opposite party, the report of B.C.Chikkaswamy cannot be accepted as he is not competent and authorized by any department and the tractor Angad 240-D is a standard one approved by Union Ministry of Agriculture and tested at Central Farm Machinery Tractor Testing Institute and the alleged repairs and maintenance problem might have been due to improper use of the tractor and the alleged problems are not manufacturing defects. 12. To prove that the tractor is unfit for cultivation or transportation apart from the complainant evidence, Complainant has examined CW.2 B.C.Chikkaswamy who is approved Surveyor and loss assessor and he has furnished the report to complainant as per Ex.C.3 dated 12.11.2007. According to his opinion that the vehicle is unfit for agricultural usage and is having so many technical problems, which leads frequent failure of the spare parts in the vehicle namely, fan belts, clutch plates, break system, electrical system, hydraulic system and etc., even the photos of the tractor are produced along with report. 13. The question is whether the report and evidence of CW.2 can be accepted, because 1st Opposite party has produced Ex.R.1 the confidential testing of Angad 240-D tractor by Central Farm Machinery Training and Testing Institute with brief technical specification of the model and Ex.R.4 approval by the Ministry of Agriculture Government of India with emission certificate. According to the 2nd Opposite party, he has provided free services and has produced coupons Ex.R.10 to 12 and 13 and also the job cards Ex.R.14 to R.17 which contain the LTM of the complainant and also signature of the son of the complainant. The contention that these documents are created cannot be accepted, because in Ex.R.14 dated 29.01.2007 hydraulic inner lifting arm was replaced with new fitting and on 20.02.2007 new break drum was fitted and there are other entries in the job cards about the testing and checking and there is no replacement of other parts. The complainant has admitted the above replacements. Even though, the vehicle is registered on 12.04.2006 as per Ex.C.3 the report of the surveyor, but the vehicle was delivered on 24.02.2006 itself, as per Ex.R.13 and first 3 services were done on 24.02.2006, 23.03.2006 and 22.07.2006 and in fact as per Ex.R.13 on 26.01.2007 the hydraulic inner lifting arm cut was reported and new hydraulic inner lifting arm was fitted on 01.02.2007. Except these two other services are checking of the other items i.e. clutch gear box, oil, oil engine and break adjusting, break drum facing and break liner alter. According to the complainant, in spite of the repairs the tractor was unfit for cultivation and transportation. Admittedly, the complainant has not reported the further problems to 2nd Opposite party the dealer or the company 1st Opposite party. The evidence of CW.1 Sri.B.C.Chikkaswamy, the Surveyor and loss assessor and approved valuer as per Ex.C.5 is only a surveyor and loss assessor under the insurance and the certificate does not provide any certificate to check the engine materials and motor. Though he is a Mechanical Engineer as per his report Ex.C.3 and though he has mentioned so many problems of the vehicle and checking, but his oral evidence clearly established that the problems of the tractor and his finding is only on basis of the of the say of the complainant and not by his personal test, because in the cross-examination he has admitted that he did not get the assistance of the mechanic and he did not open the parts. According to him, he could not drive the tractor at the time of test and on the basis of the say of the owner of the vehicle he has mentioned his opinion in the report. According to him, when he started, the vehicle did not move and at the time he examined and found the problems and further he deposed that on the basis of say of owner of the tractor that when the tractor was started using cultivator, the cultivator struck, he has mentioned the same in the report. So, he did not test using the cultivator, he did not use any mechanical tools or instruments at the time of examining the tractor. So merely because, the vehicle did not move when the tractor engine was started, by seeing out side only without opening the parts, whether this witness is able to identify the problems, is a big question. The complainant did not sought for testing of the tractor by Automobile Engineer at PES College of Engineering, Mandya suggested by the Forum and he was satisfied with the evidence of the CW.2 Sri.B.C.Chikkaswamy, Mechanical Engineer. 14. It is pertinent to note that the complainant has not mentioned the cost of the tractor in the complaint, but he pleaded that he was burdened with the loan of Rs.3,00,000/- by purchasing unwanted vehicle. It includes the cost of the tractor, cost of the trailer and equipments. According to the complainant, 3rd Opposite party against whom the complaint was dismissed for default has supplied the trailer and equipments, but the bill is not produced to show the cost of tractor and trailer and agricultural equipments, but he sought for relief to pay Rs.4,00,000/- taking back the tractor and trailer with compensation of Rs.50,000/-. Therefore, the complainant has not come to the Forum with clean hands and has failed to prove that the tractor in question as manufacturing defects. According to the 1st Opposite party, the problems alleged due to lack of knowledge about operating the tractor. Naturally if un-experienced persons run the vehicle not in accordance with the guidelines provided in the manual, the problem would arise. There is no evidence that problems mentioned in the job cards are continuing and could not be repaired and therefore, the complainant has failed to prove the defects of the vehicle and the 1st & 2nd Opposite parties have committed deficiency in service. Even though, the complainant has pleaded and deposed that 2nd Opposite party though not entitled to charge for the repairs during warranty period of one year has collected extra amount to the tune of Rs.10,000/-, but the complainant has not produced any receipts. Mere oral evidence of the complainant without documents cannot be accepted. In fact according to the 2nd Opposite party hydraulic inner lifting arm was replaced and even new break drum was replaced free of cost and they are mentioned in Ex.R.14 & 16 to which the complainant and the son have put signature. Therefore, the complainant has failed to prove the deficiency in service by 1st & 2nd Opposite parties. Therefore, we answer point no.1 to 3 in the negative. 15. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, there is no order as to cost. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 5th day of August 2008). (PRESIDENT) (MEMBER) (MEMBER)
