DATE OF DISPOSAL: 20.08.2024
PER: SMT. SARITRI PATTANAIK, MEMBER (W)
The factual matrix of the case is that the complainant has filed this consumer complaint Under Section 12 of the Consumer
Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps) and for redressal of his grievance before this Commission.
2. The complainant is a cultivator by profession. The O.P.No.1 is a manufacture of Sonalica Tractor etc., O.P.No.2 is authorized dealer of O.P.No.1 and O.P.No.3 is the insurance Company where the complainant insured his tractor. The complainant purchased one Sonalica Tractor Model-DI-740-III bearing chesis No. LZESF607030S3, Engine No.3100EL163L601782F3 from O.P.No.1 through the authorized dealer O.P.No.2 on 06.03.2017 by paying Rs.6,00,000/- on finance. The complainant availed requisites finance from Mahindra & Mahindra Financial Services Ltd and paying regularly the installments for the same. After some days of purchase the said tractor while ploughing land with a Rotavator on it the rear cover and tube sensor of the said tractor was broken on 23.07.2017. The complainant observed there was a oil leakage from hydraulic rear cover and unable to plough the land. Hence on 24.07.2017 the complainant approached with complaint to O.P.No.2 bearing job card No. J/BRHM/1002114/07/2017/611 dated 24.07.2017.Though he approached to O.P.No.2 for a quick relief as the complainant was in need of said tractor for his cultivation purpose due to prevailing weather condition but O.P.No.2 did not give heed to complainant’s suffering. On the pretext of spare par not available O.P.No.2 kept the said vehicle in their work shop till 10.08.2017. The complainant became helpless because he was not able to use the tractor and his routine life was suffering and the O.P. refused to rectify/replace the damaged spare parts with new one though the tractor is within warranty period. After the said tractor was repaired on 10.08.2017 then also O.P.No.2 did not release the said tractor to the complainant and demanded money for the said spare parts used. Inspite of repeated requests by the complainant the O.Ps never replaced the damaged spare parts with new one for free within warranty period. Hence the complainant arranged Rs.17,336/- and paid to O.P.No.2 . On receipt of payment O.P.No.2 released the said tractor to the complainant on 10.08.2017. The complainant approached the O.P.No.2 for refund of the paid amount of Rs.17,336/- & issued legal notice dated 19.12.2017 to O.P.No.1 & 2. However the O.P.No.1 &2 sent a reply dated 29.12.2017 to the notice of the complainant with simple denial. The complainant approached the O.P.No.3 at their office to claim insurance amount for the said spare parts, however the O.P.No.3 denied giving any relief to the complainant. During the peak season the tractor was kept with O.P.No.2 for 18 days in the pretext of repair work for which the complainant made expenses of an amount of Rs.10,000/- per day by taking using another tractor on rent basis to plough his agricultural lands. Hence the complainant claims Rs.1,80,000/- towards monetary loss caused to him by O.Ps deficiency of service. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to refund Rs.17,336/-, monetary loss of Rs.1,80,000/-, compensation of Rs.50,000/- and litigation cost of Rs.5000/- in the best interest of justice.
3. The Commission admitted the case and issued notice to the Opposite Parties.
4. The O.P.No.1 filed written version through his advocate. It is started that the complainant is not a consumer of the O.P.No.1. The complainant purchased one tractor from the dealership M/s Sree Achyut Automobiles as per the information received from the said dealer. However being manufacturer, ITL has no concern with the finance of the tractor or any dealing in this regard with the financier. Tractors are manufactured by the ITL with latest techniques and quality control system of ISO 9001 & 14001. After proper testing and quality check the tractors are sent to the dealers for sale. The tractor in question was purchased by the complainant on 06.03.2017 after fully satisfying himself with the condition and working of the tractor. The tractor was brought at dealership for 1st free service on 25.03.2017 and had run 57 hours. No defect was found or pointed out by complainant and normal service was done. The tractor was again brought at dealership for 2nd free service on 08.06.2017 and the tractor had run 255 hours. No defect was found or pointed out by complainant and normal service was done. The complainant signed the job cards of the relevant date and took the tractor in fully satisfactory condition. It is totally incorrect that on 23.07.2017 rear cover and sensor broke down as alleged and there were leakages of oil as alleged while ploughing as alleged. In fact the tractor was brought at dealership on 24.07.2017 in damaged condition and it was observed that the same due to negligent use of tractor with rotavator. The complainant also admitted that the tractor was damaged due to his negligence and abnormal use he also asked for repair at discounted rate and made writing to that effect also. As per the warranty policy: Clause 4 D © what is not covered under warranty (exclusions). “Tractors, which have been subjected to misuse, negligence, alteration, accident, any abnormal use, or which have been used with parts not manufactured or supplied by ITL, if in the sole judgment of ITL, such use affects performance or reliability of tractors”. The warranty does not cover the damage due to accident abnormal use or negligence of the complainant. Since the tractor was to be repaired on payment basis and before repair estimate costs of repair was apprised to complainant by the dealer after that the tractor was repaired on 10.08.2017 when the payment was made. There is no manufacturing defect in the tractor. The O.P. No.1 has also mentioned catena of citations and prayed to dismiss the case.
5. The O.P.No.2 filed written version through his advocate. It is stated that the complaint is neither maintainable nor sustainable under the provision of the C.P.Act, 1986. The complainant received the tractor and trolley with his full satisfaction at the time of purchase. The complainant used the tractor for commercial purpose and due to mishandling of the tractor and due to his own fault arisen defects. The O.P.No.2 gave services wherever required as revealed from the job card. The tractor and trolley were duly insured with the O.P.No.3 and the complainant is at liberty to claim the same from insurance but not otherwise. The tractor is defective is not at all true and correct since the complainant took the tractor with his full satisfaction and the tractor in question was registered by the Registering Authority on going to the details therein. The complainant cannot reach on his conclusion/decision that the O.P.No.1 & 2 sold defect tractor and there was unfair trade practice. Since there is neither deficiencies of service nor unfair trade practice, the complainant is not entitled for any compensation or monetary loss and litigation expenses. The complainant was filed vexatious complaint and hence the complainant is liable to pay heavy cost under section 26 of the C.P. Act, 1986.
6. The O.P.No.3 filed written version through his advocate. It is stated that the averment made in the complaint are not all true and those that are not specifically admitted herein are denied to have been denied and the complainant is put to strict proof of the same. There is no cause of action for the complainant to initiate the proceeding against the O.P.No.3. The case is wrong joinder of O.P.No.3 and for that the complainant is not maintainable and same is to be dismissed. The cause of action against Insurance Company would arise when a claim is lodged after which either no decision is given or delayed decision is given or a claim is wholly or partially repudiated. When no such cause of action arose occurred as per the policy terms and condition, no claim is lodged, occasion would not arise for the O.P.No.3 to give a response/decision. In the present case no such intimation of loss lodged or no such claim was ever raised with the Insurance Company for which no occasion arose before it to render any service. Hence the complainants are not backed by any legitimate cause of action. For the purpose of the present litigation a cause of action was attempted to invent by filing the present complaint, which did not possess any merit. Such a vexatious creation of cause in bringing the present litigation be viewed with heavy hand and the complainant be asked to submit authentic evidence of lodging of intimation and lodging of claim before the Insurance Company. The O.P.No.3 insured the said vehicle against followings peril and as per policy wording section-1. The company will indemnify the insured against loss or damage to the vehicle insured hereunder and/or its accessories whilst thereon i) by fire explosion self-ignition or lightening, ii) by burglary housebreaking or theft, iii) by riot and strike, iv) by earthquake, fire and shock damages, v) by flood typhoon hurricane storm tempest inundation cyclone hailstorm frost, vi) by accidental external means vii) by malicious act, viii) by terrorist activity, ix) whilst in stransit by road rail inland waterway lift elevator or air x) by landslide rockslide.
The loss suffered by insured is not falls under any of the above category and fall under normal wear and tears and hence not covered by the Insurance Company.
Section 1 further mentioned that:
“The Company shall not be liable to make any payment in respect of (a) consequential loss, depreciation, wear and tear, mechanical or electrical breakdown, failures or breakages nor for damages caused by overloading or strain of the insured vehicle nor for loss of or damage to accessories by burglary, housebreaking or theft unless such insured vehicle is stolen at the same time (b) damages to tyres and tubes unless the vehicle insured is damaged at the same time in which case the liability of company shall be limited to 50% of the costs of the replacement (c) any accidental loss or damages suffered whilst the insured or any person driving with the knowledge and consents of the insured is under the influence of intoxicating liquor or drugs”.
In this context the claim is not maintainable against this O.P.No.3 as there is no claim against the O.P.No.3 and the claim for manufacture defect is not covered under the insurance policy and for that the present claim is not maintainable and the same is liable to be dismissed against the O.PNo.3. Hence the allegation of deficiency of service averred in the claim petition against the O.P.No.3 is not maintainable and the same is liable dismissed.
7. On the date of hearing the Commission heard from both the parties on the point of issues at length. The Commission perused the complaint, written version, evidence on affidavits, written arguments and documents available in the case records. The complainant in present case is consumer in view of the judgment Bunga Daniel Babu versus M/s Sri vasudeva Constructions and ors in Civil Appeal No. 944 of 2016. It is apparent from the evidences adduced by the parties, the complainant could able to prove that on the date of broken of parts of the tractor the warranty was in force and the O.P. No.2 violating the warranty conditions - Ext-C has charged repair cost Rs.17,336/- and replacement of spare parts. The O.P.No.2 failed to undertake fair trade practice while charging the repair and replacement cost in accordance to the warranty card. The O.P.No.2 should follow the terms and conditions of the warranty card Ext-C strictly. The complainant is failed to prove that the he has used rented tractor for 18 days @ Rs.10,000/- per day. Secondly the complainant did not file any claim and repudiation information against the insurance Company O.P.No.3. The complainant did not brought to the record about the tractor is having manufacturing defects on the date of damage. For each of the events, the complainant did not file any corroborative documents. Hence the O.P.No.2 is not responsible for any manufacturing defects.
In consideration of ratio decidendi in Polymat India Private Ltd and another versus National Insurance Co. ltd & ors reported in AIR 2005 S.C. 286- “The terms of the contract have to be constructed strictly without altering the nature of the contract as it may affect the interest of parties adversely”, and decisions of law as above the Commission allowed the complaint partly and on contest against the O.P.No. 1 & 2 and the case is dismissed against O.P.No.3. The O.P.No.1 & 2 who are jointly and severally liable to refund the amounting of Rs.17,336/- together with compensation and litigation costs of Rs.12,000/- to the complainant within 45 days from the date of receipt of this order, failing which all the dues shall carry 9% interest per annum till its actual date of realization from the date of filing of this case i.e. on 21.03.2018 and the complainant is at liberty to take appropriate steps in accordance to the Consumer Protection Act, 2019 for realization of all dues.
This case is disposed of accordingly.
The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.
A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 2019.
The file is to be consigned to the record room along with a copy of this Judgment.
I Agree
Pronounced on 20.08.2024.
