Punjab

Sangrur

CC/66/2015

Kulwant Singh - Complainant(s)

Versus

Shahi Motors - Opp.Party(s)

Shri Ajay Pal Singh

05 Feb 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                                       Complaint No. 66

Instituted on:   09.02.2015

                                                                        Decided on:     05.02.2016

 

1. Kulwant Singh 2. Balwant Singh sons of Hari Singh, residents of Village Sekha, Tehsil Payal, District Ludhiana.

                                                        …. Complainants.    

                                         Versus

 

1.     Shahi Motors (Authorized dealer) of New Holland Tractors, Nabha Road, Malerkotla, District Sangrur through its authorized signatory.

2.     New Holland Tractors, Head Office: Suite No.301, Copia Corporate, Suites, Jasola District Centre, New Delhi through its Managing Director.

             ….Opposite parties.

 

FOR THE COMPLAINANT:     Shri Ajay Pal Singh, Advocate                          

FOR OPP. PARTY NO.1   :       Shri Rohit Jain, Advocate.

FOR OPP. PARTY NO. 2   :      Shri Darshan Gupta, Advocate.

 

Quorum

             

                   Sukhpal Singh Gill, President

                   K.C.Sharma, Member

                   Sarita Garg, Member.

           

ORDER BY:     

 

K.C.Sharma, Member.

 

1.             Shri Kulwant Singh and Balwant Singh, complainants (referred to as complainant in short) have preferred the present complaint against the opposite parties (referred to as OPs in short) on the ground that the complainants purchased a tractor 3630 Turbo bearing chassis number 2239662, engine number 110056NX from OP number 1 on 6.9.2014 vide invoice number 30  for Rs.6,90,000/-, but the OP number 1 did not give any other equipment to the complainants. It is further averred that after purchasing the said tractor, it started giving problems of loading and gear.   It is further averred that in the month of October, 2014, the complainants visited OP number 1 with the said problems, though the OP number 1 kept the tractor, but no job order sheet was issued.  The same problems arose again, the complainant again approached the OP number 1 and requested to replace the tractor in question with a new one.  It is further averred that after having the assurance from the Ops, the complainants waited for 10/15 days and when no call whatsoever came from the Ops, then the complainants again visited the office of OP number 1 and inquired regarding their problems, then the OP number 1 again assured the complainants that they have already registered the complaint with the OP number 2 as no officials of OP number 2 yet visited the workshop, so nothing was done.   It is further averred that the complainants gave a look at the chamber of the tractor, from the bare looking it is very much clear that the engine of the tractor is not sealed one.  As such, the complainants got served a legal notice dated 12.1.2015 which was sent to the OPs on 16.1.2015 for the refund of the full amount of the tractor i.e. Rs.6,90,000/-, but all in vain.  Thus, alleging deficiency in service on the part of OPs, the complainants have prayed that the Ops be directed to refund the purchase price of the above defective tractor i.e. Rs.6,90,000/- along with interest @ 18% per annum from the date of purchase till realization and further claimed compensation and litigation expenses.

 

2.             In reply filed by OP number 1, preliminary objections are taken up on the grounds that the complainant has no locus standi to file the present complaint, that the present complaint is not maintainable, that the complainant has dragged the Ops in false litigation and that the complainant has not come to the Forum with clean hands and has not disclosed all the material facts.  On merits, it is denied that the complainant had purchased the tractor in question on 6.9.2014. It is stated further that the complainant purchased the above said tractor on 17.3.2014 and the tractor was delivered on the same day in the name of the complainants, who signed the delivery order.  It is stated that the bill was issued to the complainant on 6.9.2014, as the full payment was made on that date.  It is denied that the complainant ever brought the tractor in question to the OP number 1 in October, 2014. It is stated further that the complainant never brought the tractor in question for first and second service to OP number 1.   It is stated further that the complainant never visited the OP with the alleged problems, so the question of requesting for replacing the tractor with a new one does not arise at all.  The other allegations leveled in the complaint have been denied in toto.   

 

3.             In reply filed by OP number 2, preliminary objections are taken up on the grounds that there is no cause of action for filing the present complaint, that the present complaint is wholly misconceived, groundless and is based on a fabricated story, which is not sustainable in the eyes of law and is liable to be dismissed, that there is no privity of contract between the complainant and OP.  On merits, it is stated that the complainant had purchased the tractor from OP number 1 on 17.3.2014. It is further stated that the complainant had concocted a false story just to harass the Ops and to gain undue advantages from them.  As per the information received from OP number 1, the true facts are that the complainants had taken the delivery of the tractor on 17.3.2014 along with all equipments and service book let/ warranty booklet.  It is stated that there are no defects in the tractor purchased by the complainants and they had never informed about the alleged defects at any point of time prior to the legal notice dated 12.1.2015 to the Ops.   The complainant has violated the warranty conditions by not attending the mandatory service schedule.  However, as a matter of consumer care and concern, the Ops are ready to check the tractor and provide them service, if they brings their tractor for service at dealership. Any deficiency in service on the part of the Ops has been denied and has stated that the complainants have concocted a false story and just to harass the Ops have filed the present complaint. 

 

4.             The complainant has tendered documents Ex.C-1 to Ex.C-4 affidavits, Ex.C-5 copy of bill dated 6.9.2014, Ex.C-6 copy of legal notice dated 12.1.2015, Ex.C-7 and Ex.C-8 postal receipts and closed evidence. On the other hand, the learned counsel for OP number 1 has produced  Ex.OP1/1 copy of tractor delivery certificate, Ex.OP1/2 copy of warranty registration card, Ex.OP1/3 copy of bill dated 6.9.2014, Ex.OP1/4 to Ex.OP1/7 copies of cash book, Ex.OP1/8 copy of ledger, Ex.OP1/9 copy of reply to the notice and Ex.OP1/10 affidavit and closed evidence. The learned counsel for OP number 2 has produced Ex.OP2/1 copy of reply of notice dated 28.1.2015, Ex.OP2/2 copy of postal receipt, Ex.Op2/3 copy of authority letter, Ex.Op2/4 affidavit and closed evidence.

 

5.             We have very carefully perused the pleadings of the parties, evidence produced on the file and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

6.             After hearing the arguments of the learned counsel for the parties and on perusal of the documents placed on record, we find that the main point of controversy in the present complaint is with regard to the defective tractor supplied to the complainant by the OPs.  The complainant has alleged that there is manufacturing defect in the tractor and the OPs are arguing that there is no manufacturing defect in the tractor.  OP number 1 has denied the allegations of the complaint totally, whereas the OP number 2 has submitted in the reply that "the answering respondent came to know about the alleged problem through this notice only and had promptly visited the complainants, but they wanted replacement of the tractor by applying these false pressure tactics.  The complainant has violated warranty condition by not attending the mandatory service schedule. However, as a matter of consumer care and concern, the opposite parties are ready to check the tractor and provide them service, if they brings their tractor for service at dealership."

 

7.             Since the Ops wanted to check the tractor in question, so without relying upon the exparte report of the complainant alone, we thought it proper that an independent expert report be obtained, so as to fair opinion with regard to the manufacturing defect in the tractor. Vide order dated 2.9.2015, this Forum deputed independent technical expert after relying upon the judgment of the Hon'ble Supreme Court of India in C.N. Anantharam versus Flat India Limited and others etc. IV(2010) CPJ 56 (SC), wherein in the similar case, the Forum and State Commission directed respondents to replace the vehicle or refund amount and the National Commission reversed the findings of forums below and in the appeal before the Hon’ble Supreme Court, it was contended that the vehicle had been duly certified to be completely roadworthy and complaints of the complainant were duly attended apart from complaint relating to noise from engine and gear box, as there was no other major defect and the engine was duly replaced by new one.  It was held that the order of the National Commission is not reasonable and directions were issued to get the report from the independent technical expert. 

 

8.             But, on this OP number 1 moved an application with the Hon'ble State Consumer Commission, Chandigarh for transfer of the case instead of joining the inspection by the expert deputed by this Forum, but on 11.1.2016, the learned counsel for the parties submitted that the transfer application has been dismissed and then the expert report of Er. Bhupesh Bhardwaj was opened from the envelope and was placed on record.

 

9.             After going through the expert report of Er. Bhupesh Bhardwaj and the objections of the OPs, we find that the report of the expert is very exhaustive and elaborate in nature and has covered all the technical aspects. In the report, the expert has mentioned that "I found that some impressions on all nuts of chamber (paint was not intact on heads of nuts fitted on chamber), I also found abnormalities of adhesive filled at joint of gasket of housing. On the basis of this impressions carried out by me, it seems that somebody might have opened/try to open the chamber.  Few photographs of the vehicle were taken from different angles, and chamber nuts and main front  engine joint, in which we can see the heads of nuts.

>Low high gear was not working, engine starting problem, excess smoke release found from tractor, my report is based on my technical inspection held on dated 19.09.2015."  So, now, it has become clear that whatever the complainant had alleged has been corroborated by the expert in his report after inspecting the tractor in question on 19.9.2015 and the report consists of 23 pages along with all the relevant documents and photographs relating to the tractor in question and the same has been marked as Ex.X by the Forum.

 

10.           We have also gone through the order passed by the Hon'ble Punjab State Commission in First Appeal No.468 of 2015, decided on 22.12.2015 titled as  Tata Motors Ltd. versus Hari Singh, in which the Hon'ble State Commission has directed the OP company to replace the engine of the vehicle, with a new one, within one month of the receipt of the certified copy of the order and the bringing of that vehicle by the complainant to the service centre of opposite party number 2 and 3 and in case of their failure to replace the same, the complainant shall have right to get the engine replaced from some other authorized dealer and opposite parties numbers 1 to 3 shall be liable to pay the expenses to be incurred by the complainant in that regard.".  But, in the present case, since the allegation of the complainant is that the OPs have delivered the already used vehicle and the report of the independent expert deputed by this Forum has also corroborated the version of the complainant, reliance has been made on the order of the Hon'ble Punjab State Commission passed in First Appeal No.461 of 2015 decided on 20.11.2015 titled as Iqbaljit Singh Punia versus Nissan Motors India Pvt. Ltd., wherein the Hon'ble Commission has directed the OPs to "replace the car of the complainant with a new car of the same type within a period of 45 days from the date of receipt of copy of the order. In case the OPs failed to replace the old car of the complainant with a new one of good quality with extended warranty of two years, then complainant would be entitled to recover the amount of sale price of the car i.e. Rs.11,02,563/- along with interest @ 9% per annum from the date of purchase of the car till actual payment. The appellant is awarded compensation of Rs.40,000/- for mental harassment and Rs.20,000/- as costs of litigation in this appeal."  We feel that the above mentioned law is fully applicable in the present case.

 

11.           In view of our above discussion, we allow the complaint and direct the OPs to replace the tractor in question with a new one and the Ops shall also provide the extended warranty of the tractor.  The Ops are further directed to pay to the complainant an amount of Rs.20,000/- on account of compensation for mental tension, agony and harassment and Rs.10,000/- on account of litigation expenses. 

 

12.           This order of ours shall be complied with within a period of 30 days from the receipt of copy of the order.  A copy of this order be supplied to the parties free of charge. File be consigned to records in due course.      

Pronounced.                                     

 

                February 5, 2016.

     

                                                        (Sukhpal Singh Gill)

                                                              President

       

                                                           (K.C.Sharma)

                                                                Member

 

                                                           (Sarita Garg)

                                                                Member