Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, for a direction to the Opposite parties to get back the tractor and trailer and to repay Rs.4,00,000/- and also compensation. 2. The facts of the complaint are as follows; The 1st Opposite party is the Proprietor of Angad Tractors. The 2nd Opposite party is the Authorised Dealer in Mandya District to 1st Opposite party; 3rd Opposite party is the Manufacturer of trailer, Opposite parties No.2 & 3 approached the complainant at his village and instigated the complainant to purchase the tractor and trailer on loan basis and they will arrange loan to the tractor and trailer through bank and so the complainant for better cultivation, decided to purchase the tractor and trailer. The 2nd Opposite party explained about the model, named and styled as Angad Tractors by showing the catalogue and assured that it gives better service. So the complainant purchased the tractor and trailer from 2nd Opposite party and it was got registered as KA-11-T/7655. The complainant used the said tractor for 3 months and he experienced that the said tractor is most unfit for cultivation or for the transportation. Further, more the said tractor and trailer is under repair for the period of 3 months and said vehicle was repaired for more than 15 to 20 times before the 3rd Opposite party who charged excess bill, though he is not expected to do so for the period of one year who assured free services. The trailer is also not fit to carry goods more than 2 tones. The 3rd Opposite party has collected excess amount beyond the bills. The acts of the Opposite parties caused the complainant depressed shock and made the complainant to commit to the tune of Rs.4,00,000/-. The said vehicle is parked infront of the house unused. Though the complainant approached the Opposite parties for replacement or to get back the vehicle by repaying the cost, Opposite parties least regarded the requests. Therefore, through the Engineer by name Sri.B.C.Chikkaswamy, the Surveyor/Loss Assessor got examined the vehicle and he issued the detailed report stating that the vehicle is unfit for agriculture or for transportation. Therefore, the legal notice dated 02.01.2008 was issued to the Opposite parties to get back the vehicle and to repay the amount, but Opposite parties replied evasively. Therefore, the present complaint is filed. 3. Notices were served on Opposite parties 1 & 2 and 1st Opposite party has filed written version. Later 2nd Opposite party has adopted the version of 1st Opposite party. 3rd Opposite party is given up by complainant. 4. 1st Opposite party has pleaded that the complaint is not maintainable as there is no deficiency in service. The 1st Opposite party never had direct contact with the complainant. The 1st Opposite party is not aware of the negotiation between complainant and 3rd Opposite party. The tractors supplied are satisfactorily in working capacity if used with proper implements specified in the manual and if operated strictly. The tractor Angad-240-D manufactured by 1st Opposite party was prototype and batch tested by Central Farm Machinery Tractor Testing Institute, a statutory institute under the Union Industry of Agriculture and found to be in compliance with relevant standards for tractor laid down by the Ministry of Agriculture. The complainant is making frivolous allegations as he has not at all mentioned any manufacturing defects with the tractor and also not explained any nature of dissatisfaction with the tractor. The alleged repairs mentioned by him are probably due to abuse by using any incompatible trailer and over loading. Denying other allegations, it is pleaded that the report of Sri.B.C.Chikkaswamy is not a report in the eye of law. It has been created and he is not a competent person to give the report regarding manufacturing defect and he is not a technical person. Therefore, the compliant is liable to be dismissed. 5. During trail, the Complainant and B.C.Chikkaswamy are examined and Ex.C.1 to C.7 are marked. On behalf of the 1st Opposite party, one witness is examined RW.1 and 2nd Opposite party is examined RW.2 and Ex.R.1 to R.9 are marked. 6. We have heard both sides. 7. Now the points that arise for our considerations are:- 1) Whether the tractor manufactured by 1st Opposite party and sold by 2nd Opposite party to the complainant is defective? 2) Whether the trailer sold by 2nd Opposite party is defective? 3) Whether the complainant is entitled to the relief sought for? 8. Our findings and reasons are as here under:- 9. POINT No.1:- The undisputed facts are that 1st Opposite party is the manufacturer of tractor Angad 240 D and 2nd Opposite party is the authorized dealer of the said tractors in Mandya District and the complainant has purchased the said tractor and a trailer from 2nd Opposite party, in view of the documents Ex.C.1, C.2 and C.3. The grievance of the complainant is that the said tractor is most unfit for cultivation or for transportation, the said tractor used for 3 months and was under continuous repairs and repaired for more than 15 to 20 times before the 3rd Opposite party and 3rd Opposite party charged excess amount, though is bound to provide free services. Though, he approached the Opposite parties to get back the vehicle and to repay the amount, since the vehicle is parked in front of his house unused, Opposite parties did not consider the request of the complainant, so he got tested the vehicle by engineer namely B.C.Chikkaswamy (CW.2) and CW.2 has given the report stating that the vehicle is unfit for agriculture or for transportation. 1st & 2nd Opposite parties have denied those allegations. So the burden is on the complainant to prove that the tractor is having defects and unfit for cultivation or for transportation. In the cross-examination, the complainant has deposed that one Munavar, driver used to drive the tractor for cultivation or transportation and in case of problem, he used to get services and utilize the services provided by the company. According to the evidence of the complainant, after using the tractor for 2 months they found the troubles in using the tractor and 15 to 20 times the vehicle was repaired, but the 3rd Opposite party did not give any documents for repairs. Though, the complainant has not given complaint in writing about the defects of the tractor to the company or the dealer, but he has stated that he has orally informed the dealer. According to the evidence of the complainant, mechanic of the company repaired the tractor at two times. The complainant also deposed the problem of tractor in detail in evidence. The complainant has relied upon the report of CW.2 Chikkaswamy. He is a Mechanical Engineer and he is a approved valuer/surveyor and loss assessor and his evidence disclosed that he has inspected the vehicle and issued the report Ex.C.5 dated 06.12.2007. Thereafter, the complainant got issued legal notice Ex.C.6. Inspite of it, the 1st Opposite party did not depute any company engineer to inspect the tractor to see whether the vehicle is in proper condition to use for agricultural purpose but simply kept quite. According to the report, at the time of inspection the tractor engine was near the showroom of the dealer and engine was dismantled and he observed and found the following; 1. Frequent failure of break system, even repaired by the dealer/repairer so many times. Suppose the break adjusted the wheel nuts gets loosen and getting heat in the wheel. 2. Oil leakage through packing at various couplings/fastenings this will create loss of compression in the engine as well as improper engage in hydraulic system. 3. While cultivating in the land, suppose the vehicle run continuously about more than an hour the clutch plate gets heat and worn out. Informed by the owner attended by the dealer and could not able to rectify the same. Further, it was altered and repaired locally now the clutch system performing satisfactorily. 4. The tyres are getting worn-out for lesser usage (the tyres replaced under warranty after remitting Rs.400/-) this problem might have improper suspension design. 5. Suppose the steering wheel could be turn more than 180 degree, without linkage of front wheels. This could lead the problem of driving the vehicle. 6. The fan belts are frequently failure; but the dealer could not able to solve the problem. 7. All fuel connections are leaking, due to improper mountings. Now all are fixing by copper wire/zinc wire. 8. The vehicle having more vibration while in operation/moving, due to which all the nut and bolts are getting loosen frequently and not fit for cultivation or carrying prescribed load. 9. All electrical switches burnt due to improper wiring. 10. The vehicle put for cultivating, by using cultivator the vehicle gets struck and the rear wheels gets rotating and no movement of the vehicle, this could lead the less fuel efficiency and worn out of tyres. 11. The hydraulic system provided in the vehicle is not capable to withstand/holding the cultivators at required depth and hence the cultivator get struck in the land. Therefore, movement of the vehicle gets stopped, only the wheels are rotate. This problem leads the worn out of tyres, failure of fan belts, clutch plates. 12. Some of the photographs taken by me enclosed herewith which will depict the present condition and nature of defects/damages/failure and etc. His opinion is that vehicle is unfit for agricultural usage and fail to carry the load in steep area as prescribed by the manufacturer and vehicle is having so many technical problems, which leads to frequent failure of spare parts namely, fan belts, clutch plates, break system, electrical system, worn out of tyres, hydraulic system. 10. The contention of the 1st Opposite party is that CW.2 Chikkaswamy is not a competent person to find out the manufacturing defects of the vehicle and this report cannot be accepted, on the ground that the tractor manufactured by 1st Opposite party is having certificate from Central Farm Machinery Training and Testing Institute as per Ex.R.2, R.3 and approved by the Ministry of Agricultural as per Ex.R.4. Even though, the certificates are produced, but they are common certificates, there is no certificate at the time of delivery of the tractor to the complainant that it is having compliance of all the tests and neither 1st Opposite party nor the dealer have issued any certificate. The complainant is a poor agriculturist who has no knowledge of any technicality of the tractor and purchased the tractor and trailer on the assurance given by the dealer. When the tractor was got repaired several times within 5 or 6 months of the purchase and found not fit for cultivation and when a illiterate agriculturist informed the same to the dealer, his duty was to inform the company about the complaint. We cannot expect the complainant who is illiterate to lodge a complaint in writing. Of course, the 2nd Opposite party dealer has provided free service as per Ex.R.7 & R9 on different dates, but it is the documents maintained by the 2nd Opposite party, the dealer. The complainant will not be aware of the writings made in the documents of the 2nd Opposite party. So, it shows that the complainant fed up with the tractor has left the tractor unused. 1st Opposite party manufacturer has not at all taken any care and action to test the vehicle and to provide usable tractor for the poor farmer. CW.2 Chikkaswamy is a Degree Holder of Mechanical Engineering and he has obtained license for surveyor/loss assessor and approved by valuer. It cannot be said that he is not a competent person to test the defects of the tractor. When the report of the Chikkaswamy and the complaints about the tractor was informed to the 1st Opposite party manufacturer, it ought to have deputed engineer of its company to check the tractor to see whether the complaints made by the complainant and the report of the mechanical engineer is false or not. Therefore, there is deficiency in service on the part of the 1st Opposite party. Even during the trail of this complaint, 1st Opposite party has not at all taken steps to get test the tractor by expert to prove that the tractor in question is fit for cultivation and it is not having any complaints and the alleged complaints are curable by proper repairs. Therefore, the complainant has proved the tractor manufactured by 1st Opposite party and supplied by 3rd Opposite party is defective nature and hence, we answer point no.1 in the affirmative. 11. POINT NO.2:- The complainant has pleaded that the trailer sold by 2nd Opposite party is also defective and is not fit for transportation, but there is no report of the mechanical engineer or other expert. CW.2 has not examined the trailer at all and even complainant has not at all deposed the complaints against the trailer and hence, there is no acceptable evidence to prove that trailer supplied by 3rd Opposite party is defective and not fit for use and therefore, we answer point no.2 in the negative. 12. The complainant has sought for refund of Rs.4,00,000/- by taking back the tractor and trailer pleading that in addition to the cost of the tractor and trailer has sustained loss. There are lot of complaints against the tractor Angad 240 D manufactured by 1st Opposite party and causing loss to the poor illiterate farmers and they are burdened with loan. The supply of defective tractor amounts to deficiency in service when 1st Opposite party has not at all issued any certificate at the time of delivery about the condition of the tractor and when it has not taken any steps to inspect the vehicle when the complaint was made through legal notice. In fact within 2 years of the warranty period and within 2 years from the date of purchase of the tractor, the complaint with regard to the tractor were brought to the notice of the 1st Opposite party, it he did not take any action. But in view of our finding on point nos.1 & 2 the complainant is entitled to only the refund of the value of the tractor against the 1st Opposite party, the manufacturer. As per Ex.C.2 invoice, the value of the tractor is Rs.1,55,600/-. The complainant has used the vehicle for 3 months therefore it is proper to direct the 1st Opposite party to get back the tractor and refund Rs.1,40,000/-. Though the complainant sought for refund of the amount with respect to the trailer and other agricultural implements supplied by 2nd Opposite party, but complainant has failed to prove the defectiveness of this vehicle and implements. 13. In the result, we proceed to pass the following order; ORDER The complaint is partly allowed directing the Opposite party No.1 to refund Rs.1,40,000/- to the complainant, taking back the tractor with cost of Rs.1,000/- within 6 weeks, failing which 1st Opposite party is liable to pay interest at the rate of 9% p.a. from the date of this complaint. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 12th day of September 2008). (PRESIDENT) (MEMBER)
