Andhra Pradesh

East Godwari-II at Rajahmundry

CC/39/2013

Vadlamuri Suryanarayana - Complainant(s)

Versus

Sri Venkateswara Agro Agencies - Opp.Party(s)

A.Venkateswara Rao

04 May 2016

ORDER

                                                                                    Date of filing:   30.11.2013

                                                                                                Date of Order: 04.05.2016

 

BEFORE THE DISTRICT CONSUMER FORUM-II, EAST GODAVARI

DISTRICT AT RAJAHMUNDRY

 

                       PRESENT:   Smt H.V. Ramana, B.Com., L.L.M.,   PRESIDENT(FAC)

                      Sri A. Madhusudana Rao, M.Com., B.L., MEMBER          

    

                      Wednesday, the 4^th day of May, 2016

 

 

C.C.No.39 /2013

Between:-

 

Vadlamuri Suryanarayana, S/o. late V. Sarabhayya,

Aged 60 years, D.No.59-7-12, P&T Colony, Rajahmundry.                                   …  Complainant

 

                                                And

 

1)  Sri Venkateswara Agro Agencies, (Dealer: Tafe & Massey

      Ferguson/Harvesters, Parts and Implements), D.No.4-40/2,

      Plot No.500 & 503, NH 5 Road, Lalacheruvu,

      Rajahmundry – 533 106, E.G. Dt.                       

 

2)  Tractors and Farm Equipment Limited, Represented by its

      Managing Director, Administration Office: 35, Nungambakkam

      High Road, Chennai – 600034, Tamilnadu State.

 

3)  Sundaram Finance Limited, Represented by its Branch Manager,

      Tilak Road, Rajahmundry.                                                                                   …  Opposite parties

 

 

            This case coming on 19.04.2016 for final hearing before this Forum in the presence of Sri Appana Venkateswara Rao, Advocate for the complainant and Sri P.V.S.K. Sobhanadri Sastry, Advocate for the 1^st opposite party and Sri P.V. Ramachandra Rao, Advocate for the 2^nd opposite party and Sri P.L.N. Prasad, Advocate for the 3^rd opposite party, and having stood over till this date for consideration, this Forum has pronounced the following:  

 

O R D E R

[Per Sri A. Madhusudana Rao, Member] 

This is a complaint filed by the complainant U/Sec.12 of Consumer Protection Act 1986 to direct the opposite parties 1 and 2 jointly and severally to refund the Cruzer price of Rs.17,32,500/- with interest from the date of complaint i.e. 29.11.2013 till payment; to pay Rs.1,00,000/- towards damages for mental agony and pay Rs.50,000/- towards legal expenses and fees of this complaint.

2.         The case of the complainant is as follows:-  It is submitted that the complainant purchased one Cruzer (paddy harvester) from the 1^st opposite party for Rs.17,32,500/- on 9.1.2012. The 2^nd opposite party is the manufacturer and the 3^rd opposite party is the financier. The complainant purchased the same for his livelihood. Within a short span of time, the machine went on manufacturing defects. On complaint, the technicians of the 1^st opposite party attending the repairs, but their efforts found futile and there is inherent manufacturing defects and the model itself is failed. Thereby, the complainant demanded refund of the amount with interest. As the complainant could not pay the installments, the 3^rd opposite party taken possession of the Cruzer on 14.6.2013 and it is now in their custody. The complainant got issued registered notices on 9.11.2013, but the opposite parties did not choose to give reply. The 3^rd opposite party is added as a proforma party. Hence, the complaint.

3.         The 1^st opposite party filed its written version and denied all the allegations made by the complainant and the complaint is not maintainable either under law or on facts of the case.  This opposite party submits that admittedly the complainant purchased the equipment on 9.1.2012 and utilized the same and has been utilizing the said equipment even now and the complainant earned high charges by hiring the equipment to ryots and in the process over utilized and mis-utilized the same and now the complainant filed the present complaint by making all false averments and thereby suppressed the truth. This opposite party submits that the complainant purchased the equipment after availing the loan from the 3^rd opposite party and when the complainant willfully failed to repay the loan and then the 3^rd opposite party seized the equipment. This opposite party submits that the complainant purchased the machine only after he made full pledged enquiry and that he was given literature and booklet and warranty card etc. along with invoice and the complainant acknowledged the same on the check list during the delivery of the equipment on 9.1.2012 and the complainant also signed on doorstep installation report dt.9.1.2012 and therefore, the complainant cannot aver that he was not issued warranty card etc. and he was also given battery warranty card and the complainant also signed on doorstep installation report under which the complainant was explained and demonstrated and operation of the equipment etc. This opposite party submits that if really, there are manufacturing defects in the equipment nothing prevented the complainant from making complaint within a period of warranty, i.e. either within six months from the date of purchase or within 850 hours of usage whichever is earlier and the complainant cannot maintain a complaint beyond period of warranty and after over and defective utilization of the equipment. This opposite party submits that the complainant brought the machine for overhauling on 28.1.2012, 11.2.2012, 3.5.2012 and 4.7.2012, the complainant himself signed on the job card and on 3.5.2012, the employee of the complainant signed on the job card. The complainant after over and misutilization of the equipment and after one year 10 months got issued a false notice on 9.11.2013 as the said notice was not served on this opposite party and therefore, the 1^st opposite party could not give any reply to that frivolous notice. Hence, there is no deficiency of service on the part of the 1^st opposite party and the complaint is liable to be dismissed with costs.

4.         The 2^nd opposite party filed its written version and denied all the allegations made by the complainant. It is submitted that the 2^nd opposite party’s R&D facilities are centres of excellence, renowned for their innovative design and engineering expertise, and have been recognized by the Department of Scientific & Industrial Research, Ministry of Science and Technology, Government of India. Extensive research and testing ensures that the 2^nd opposite party’s products and aggregates meet its exacting performance standards.  The subject harvester was purchased on 9.1.2012. Firstly, the complainant has failed to disclose the terms and conditions of the warranty applicable to the harvester sold to him. The warranty for the subject harvester had expired long before the filing of the complaint as the warranty clause of the harvester’s operating manual stipulates that “the period of warranty will be of six calendar months or 1000 hours (whichever is earlier) from the date when harvester was delivered new to the retail purchaser. It is submitted that the harvester in this case had crossed 6 months before clocking 1000 hours and therefore, the warranty of the harvester expired as early as June 2012 whereas the complaint appears to have been belatedly filed before this Hon’ble Forum between November – December, 2013. The harvester was first brought for service/repairs on 28.1.2012 with a single complaint being “main elevator noise” as recorded in the job card. This complaint was duly addressed as the necessary parts were replaced on warranty basis immediately and the harvester was delivered to the complainant who expressed that he was satisfied with the quality of the service. The complainant then approached the service station for the harvesters’ scheduled first service on 11.2.2012 after completing 170 hours where the aforementioned complaint of elevator noise was not raised by the complainant.  Thereafter, the complainant brought the harvester for checking up of the gear and radiator functioning on 3.5.2012 by when the harvester had completed 627 hours of operation. The gear functioning was corrected by adjusting the clutch linkages which is a part of normal maintenance. As far as the radiator operation is concerned, the complainant was advised to follow the standard operating procedure in the harvester’s manual. Thereafter, the complainant did not raise any complaints or grievances. He brought the harvester to the service station next on 19.11.2012 when the harvester had completed 869 hours. As per the opposite party’s records, the clutch plate was changed. In any harvester machine, the average clutch life is 750 hrs to 1000 hrs. The changing of the clutch plate is a routine servicing of the harvester. Apart from the above 4 service visits, the complainant has never approached the 2^nd opposite party’s authorized service agents on any other occasion until 15.7.2013 when the complainant brought the harvester for a routine health check up. As the warranty for the vehicle had expired in June, 2012, the complainant was advised to have certain parts and minor repairs carried out, but the complainant never came back for those advised replacements. The operating manual of the vehicle also reflects that the complainant is required to follow certain operating procedures carefully to ensure the life and performance of the harvester. This opposite party submits that the instant complaint has been filed only with the intention to overcome the complainant’s liability to repay the loan allegedly extended to him by the 3^rd opposite party. The complainant’s false allegations as regards the quality of the harvester have been raised only to suppress his improper use of the harvester and the aforementioned loan default. The complainant  has also stated that the harvester has been re-possessed by the 3^rd opposite party for default in paying the loan. The 2^nd opposite party is also given to understand that the complainant has taken the harvester to unauthorized dealers for service/repairs in which even the 2^nd opposite party cannot be held liable for any problems in the harvester.  There is no defect or deficiency in the quality of the harvester sold to the complainant or in the services provided to the complainant. The notice dt.9.11.2013 was duly replied to by the 2^nd opposite party. Hence, there is no deficiency of service on the part of the 2^nd opposite party and the complaint is liable to be dismissed with exemplary costs.

5.         The 3^rd opposite party filed its written version and denied the complaint is not maintainable against this opposite party and no relief claimed against this opposite party. This opposite party submits that the vehicle Cruzer is purchased by the complainant contacting loan from the 3^rd opposite party who financed around and about Rs.10,00,000/- for the said Cruzer. The complainant could not pay the loan amount as per the schedule payments to the 3^rd opposite party and thereby the 3^rd opposite party has taken possession of the said Cruzer on 14.6.2013 and it is now in its custody and thereby demanding the repayment of the loan amount. But, the complainant failed to repay the same and filed the complaint with untenable allegations. Hence, the 3^rd opposite party prays the Hon’ble Forum to dismiss the complaint with costs.

 

6.         The proof affidavit filed on behalf of the complainant and Exs.A1 to A6 have been marked for the complainant. The proof affidavit filed on behalf of the 1^st opposite party and Exs.B1 to B12 have been marked for the 1^st opposite party. The proof affidavit filed on behalf of the 3^rd opposite party and Ex.B13 is marked for the 3^rd opposite party.

7.         Heard both sides.

8.         Points raised for consideration are:

 

1. Whether there is any deficiency in service on the part of the opposite parties?

            2. Whether the complainant is entitled for the reliefs asked for?

            3. To what relief?

 

9.  POINT Nos.1 & 2:  On perusal of the record, it is observed that the complainant purchased Cruzer 7504 DLX vide Engine No.S44008003 with Chassis No.SCH-CZR-K11-0066633363 from the 1^st opposite party dealer at Rajahmundry on 9.1.2012 for Rs.17,32,500/- including VAT @ 5% amounting to Rs.82,500/- by obtaining finance from the 3^rd opposite party vide Ex.A1 invoice.  The 2^nd opposite party herein is the manufacturer of the above said Cruzer.  The said Cruzer was registered with the Transport Department vide AP05 CB 2394 dt.20.01.2012 vide Ex.A2 and the registration certificate contained that the vehicle had hire purchase agreement with Sundaram Finance Limited, Vijayawada. The complainant alleged that the above said Cruzer had inherent manufacturing defects and so, the said Cruzer remained without work most of the time and so, the complainant could not repay the installment amount of finance to the 3^rd opposite party, which financed Rs.10,00,000/- at the time of purchase of the Cruzer. On that, the complainant got issued legal notice dt.9.11.2013 vide Ex.A3 to all the opposite parties herein and the 2^nd & 3^rd opposite parties received the same vide Ex.A4 acknowledgements and the notice of the        1^st opposite party returned unserved vide Ex.A5.  Ex.A6 is the survey feedback report dt.3.7.2013 of Tractors and Farm Equipment Limited, Chennai.

             We further observed that the complainant for the first time approached the                 1^st opposite party on 28.1.2012 after the machine ran for 50 hours with a complaint of noise in the main elevator and the same was replaced as per Ex.B1 job card. The complainant further approached on 11.2.2012 after completion of 170 hours running of the machine for the first service during the warranty as per Ex.B2 job card. The complainant approached the 1^st opposite party on 3.5.2012 after completion of 627 hours with complaint of repair in gears and radiator leakage and the same were rectified by the 1^st opposite party as per Ex.B3 job card. It is observed that the complainant approached again on 4.7.2012 after completion of 850 hours of running the machine for 4^th oil servicing and the same was done vide Ex.B4 job card. Ex.B5 is the battery warranty card issued by the Amco Batteries with Ex.B6 manufacturer and OEM warranty, in which it was clearly mentioned that TAFE/dealer are not responsible for any accrued loss on account of delayed decisions or repairs, which was signed by the one V. Nageswara Rao on 9.1.2012, who also signed most of the job cards filed by the complainant. Ex.B7 is the check list issued by the 1^st opposite party during the time of delivery of combine harvester (cruzer) and Ex.B8 is the door step installation report issued by the 1^st opposite party sales manager dt.9.1.2012 with HMR of 45 hours and signed by one V. Nageswara Rao. Ex.B9 is the free service voucher after 100 hours of running, Ex.B10 is the free service voucher after completion of 350 hours, Ex.B11 is the free service voucher after completion of 600 hours, which was done by the 1^st opposite party on 3.5.2012 and Ex.B12 is the free service voucher after completion of 850 hours or 10 months from the date of installation whichever is earlier and the free service was done on 4.7.2012 by the               1^st opposite party.

            We further observed that the 1^st opposite party dealer contended that the complainant allegations are false and already earned lot of money by giving the machine on hire to the ryots during the harvesting season and the complainant cannot allege manufacturing defects etc. and if there is any manufacturing defects in the equipment nothing prevented the complainant from making complaint within the warranty period i.e. either within 6 months from the date of purchase or within 850 hours of usage whichever is earlier. The 1^st opposite party further submitted that the complainant did not whisper anything at the time of overhauling the cruzer after the usage of 100 hours, 350 hours, 600 hours and 850 hours. The 1^st opposite party further submitted that the machine was overhauled on 28.1.2012, 11.2.2012, 3.5.2012 and 4.7.2012 which reflected in the job cards signed by the complainant and his employee on 3.5.2012.  The 1^st opposite party further submitted that the complainant got issued legal notice dt.9.11.2013 after completion of 1 year 10 months of purchase of cruzer and non issuance of reply could not lead the complainant to an advantageous situation automatically.

Whereas the 2^nd opposite party contended that they were major manufacturer of tractors and farm equipment since 1960 with a market share of 25% by selling 150000 tractors annually and their company was certified ISO 9001 and also ISO 14001 by the Government of India besides several awards for excellence. The 2^nd opposite party contended that the complainant failed to disclose the terms and conditions of the warranty applicable to the harvester and as per the operating manual the period of warranty will be of 6 calendar months or 1000 working hours (whichever is earlier from the date of delivery) and the warranty of the present harvester in dispute was expired in June, 2012 itself. The 2^nd opposite party further contended that apart from the four free services, the complainant never approached the authorized service agents of the 2^nd opposite party on any other occasion except on 15.7.2013 for a routine check up and advised certain parts to be replaced with minor repairs carried out, but the complainant never came back for the advised replacements.    

The 3^rd opposite party Sundaram Finance Limited contended that the complainant purchased the Cruzer by contacting loan of Rs.10,00,000/- from this opposite party. Further, the said vehicle was taken into possession of this 3^rd opposite party on 14.6.2013 as the complainant failed to pay the amount due to the 3^rd opposite party despite several requests and the complainant did not avail the opportunity in making payment of outstanding amount. The 3^rd opposite party further submitted that the outstanding amount against the complainant is Rs.15,83,127/- including charges, interest etc. and so, the vehicle was sold on 21.8.2015 for an amount of Rs.2,63,000/- and the complainant account shows an amount of Rs.13,20,127/- after appropriation of the sale proceeds. The sale of vehicle in dispute was informed to the complainant on 1.9.2015 as per Ex.B13.   

After appraisal of the above said facts and the documentary evidence, we observed that the complaint was filed in this Forum on 30.11.2013 after issuance of legal notice dt.9.11.2013 to all the opposite parties by the complainant. The 1^st and 2^nd opposite parties contended that the complainant alleged the manufacturing defects only after 1 year               10 months of usage of the Cruzer, that too after expiry of warranty period given by the manufacturer i.e. 6 months from the date of purchase/delivery on 9.1.2012 or 1000 hours of running the machine. We observed that as per the job cards produced by the 1^st opposite party dealer signed by the complainant, the 1^st opposite party service technicians rectified the defects alleged by the complainant during the warranty period. Further, the defects alleged by the complainant in the said harvester are nothing but wear and tear and in the course of regular maintenance in view of the heavy usage of the Cruzer (harvester) during the harvesting period.  As per the Ex.A6 dt.3.7.2013 is the feedback given by the complainant, in which the complainant suggested that the field test should be conducted before delivery of the vehicle to the dealers and stated OK about the 1^st opposite party response and promptness. Further, the complainant stated quality of machine is OK.  It is further observed that during the pendency of this complaint, the complainant filed four Interim applications vide IA 26/2014 to refer the Cruzer in dispute to Central Farm Machinery Training and Testing Institute, Budni (M.P.), IA 27/2014 filed by the complainant to direct the opposite parties 1 & 2 to file certain documents along with Budni Report initially issued by the Central Farm Machinery Training and Testing Institute, Budni (M.P.) and IA 28/2014 to restrain the 3^rd opposite party Sundaram Finance Limited from alienating or otherwise deal with the Cruzer in dispute.  All the said IAs were dismissed by this Forum and allowed to the extent of production of initial Budni report vide IA 27/2014.  On that, the complainant approached the appellate authority allowed only IA 27/2014 in R.P.No.58/2014 and dismissed R.P.No.59/2014 against IA 26/2014 and R.P. No.60/2014 against IA 28/2014. 

We further observed that the complainant approached with IA 28/2014 against the 3^rd opposite party finance company after publication sale by the 3^rd opposite party with regard to the Cruzer in dispute on 14.3.2014 in Eenadu newspaper by giving notice dt.20.3.2014 only. As per the contention of the 3^rd opposite party finance company, they took the possession of the vehicle into their custody demanding the repayment of quarterly financed installment amount from the complainant.  It is further observed that the complainant issued Ex.A3 legal notice dt.9.11.2013 only after seizure of the Cruzer by the 3^rd opposite party finance company alleging manufacturing defects in the Cruzer after usage of the said vehicle for about 1 year 10 months. If the 1^st and 2^nd opposite parties delivered the Cruzer with manufacturing defects, the complainant should have approach during the warranty period or after expiry of warranty period, but not after nearly one and half years after usage of the said Cruzer. The 3^rd opposite party finance company sold the Cruzer in dispute on 21.8.2015 for Rs.2,63,000/- and intimated to the complainant the same through letter dt.1.9.2015 and stated that still an amount of Rs.13,20,127/- is due from the complainant towards the hypothecation agreement dt.6.1.2012. So, it is clearly established that the complainant failed to pay the finance amount of Rs.10,00,000/- obtained from the 3^rd opposite party at the time of purchase of the said Cruzer in dispute and the amount increased to Rs.15,83,127/- including interest and other charges  and after seizure of the said vehicle by the 3^rd opposite party for non-payment of financed dues only approached this Forum suppressing the true facts and alleging deficiency in service on the part of the opposite parties 1 and 2 without any reliable documentary evidence like test report by any third party mechanical/automobile engineer that the 1^st and 2^nd opposite parties delivered the Cruzer with manufacturing defects. So, the complainant miserably failed to prove his case as this Forum cannot fasten any liability against the opposite parties 1 and 2 or even against the opposite party No.3 after appraisal of the facts and the evidence relied upon by the complainant.

The complainant relied on the following judgments:

(i) 2006 (I) CPJ N.C. page 54, (ii) 2006 (II) CPJ N.C. Page 64, (iii) 2006 (I) CPJ N.C. Page 4; (iv) 2006 (4) CPJ N.C. Page 100, (v) 2013 (4) C.P.R. N.C. Page 114 and (vi) 2013 (4) C.P.R. N.C. Page 145.  However, the above said decisions are not applicable to the present complaint as the facts and circumstances of the above cases are different from the present one.            

            With the discussion held supra and under the facts and circumstances of the case, we are in the considered opinion that the complaint is liable to be dismissed as the complainant failed to prove his case beyond any reasonable doubt.

 

10.   POINT No.3:  In the result, the complaint is dismissed and each party shall bear their respective costs.

Typed to dictation, corrected and pronounced by us in open Forum, on this the  4^th day of May, 2016.

    

                  Sd/-                                                                                                Sd/-

              MEMBER                                                                              PRESIDENT(FAC)

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED

 

FOR COMPLAINANT: None.                                         FOR OPPOSITE PARTIES: None.

 

DOCUMENTS MARKED

 

FOR COMPLAINANT:

 

 

 

Ex.A1      Invoice No.7 dated 9.1.2012 for the CRUZER bearing description as 7504 DLX

     with Engine No.S 440 08003 of Rs.17,32,500/- with Chassis No.SCH-CZR-K11-

     0066 633363 (copy).             

Ex.A2      Certificate of registration bearing No.AP05CB 2394 (-do-).

Ex.A3      Legal notice dt.9.11.2013 with postal receipts.

Ex.A4      Served Ack. due from the 2^nd and 3^rd opposite parties.

Ex.A5      Returned cover from the 1^st opposite party.

Ex.A6      Feed back dt.3.7.2013 issued by Engineers of the opposite parties 1 and 2. (this

                document is received by allowing I.A.No.25/2014 on 14.5.2014).

 

FOR 1^st OPPOSITE PARTY:-  

 

Ex.B1     Job card dt.28.1.2012 signed by the complainant.

Ex.B2      Job card dt.11.2.2012 signed by the complainant.

Ex.B3      Job card dt.3.5.2013 signed by employee of complainant.

Ex.B4     Job card dt.4.7.2014 signed by the complainant.

Ex.B5      Battery warranty card dt.9.1.2012 (Dealer copy).

Ex.B6      Warranty card dt.9.1.2012 of equipment (Dealer copy).

Ex.B7      Check list during the delivery of equipment.

Ex.B8      Doorstep installation report dt.9.1.2012.

Ex.B9      Service coupon for 100 hours signed by the complainant (copy).

Ex.B10    Service coupon for 350 hours signed by the complainant (copy).

Ex.B11    Service coupon for 600 hours signed by the complainant (copy).

Ex.B12    Service coupon for 850 hours signed by the complainant (copy).

 

FOR 2^nd OPPOSITE PARTY:-    - Nil -

 

FOR 3^rd OPPOSITE PARTY:-  

 

Ex.B13    Copy of Registered letter dated 1.9.2015 issued by OP No.3 to the complainant.     

                     Sd/-                                                                                             Sd/-

              MEMBER                                                                              PRESIDENT(FAC)