Haryana

StateCommission

A/752/2016

MAHINDRA AND MAHINDRA LTD. - Complainant(s)

Versus

SUMIT KUMAR - Opp.Party(s)

SUBHASH CHAND

30 Nov 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :    752 of 2016

Date of Institution:    17.08.2016

Date of Decision :     30.11.2017

 

Mahindra & Mahindra Farm Division, Akruli Road, Kandivali (East) Mumbai-400101 through its Authorised Signatory.

 

                                      Appellant-Opposite Party No.2

Versus

 

1.      Sumit Kumar s/o Sh. Jai Karan, Resident of Village Kilohard, Tehsil and District Sonipat.

                                      Respondent-Complainant

2.      Vijay Agro Engineering Works, Gurudwara Road, Sonipat through its Manager/Proprietor.

3.      Magma Fincorp Limited Magma House 24 Park Street, Calcutta through its Managing Director.

4.      Magma HDI General Insurance Company Limited, Magma House 24 Park Street Calcutta through its Managing Director.

Respondent-Opposite Parties No.1, 3 and 4

 

 

CORAM:             Shri Balbir Singh, Judicial Member.

 

Argued by:          Shri Subhash Chand, Advocate for appellant.

                             Shri Vikas Lochab, Advocate for respondent No.1.

                             Shri Arvinder Arora, Advocate for respondent No.2.

                             None for respondent No.3.

                             Shri Pankaj Mehta, Advocate for respondent No.4.

 

                                                   O R D E R

 

        This appeal has been preferred against the order dated June 13^th, 2016 passed by District Consumer Disputes Redressal Forum, Sonipat (for short ‘the District Forum’).

2.                Sumit Kumar-complainant (respondent No.1 herein) filed complaint under Section 12 of the Consumer Protection Act, 1986 averring that he (complainant) purchased a tractor vehicle, Mahindra Arjun 605 DI, on November 04^th, 2014 from Vijay Agro Engineering Works, Gurudwara Road, Sonipat – Opposite Party No.1 (respondent No.2 herein), an authorised dealer of Mahindra & Mahindra Farm Division-Opposite Party No.2 (appellant) for a consideration of Rs.7,30,000/-. The tractor vehicle was purchased for earning his livelihood by using for agricultural purposes. An amount of Rs.2,30,000/- was pad in cash and the remaining sale price amount of Rs.5,03,728/- was financed by the opposite party No.3 – Magma Fincorp Limited. The loan amount was to be paid in six monthly installments of Rs.1,00,000/- each within a period of 48 months. First installment of the loan amount was paid by the complainant on May 18^th, 2015. At the time of purchase, the complainant was provided manufacturer warranty for a period of 12 months or 1000 operational hours of the tractor from the date of purchase.

3.                Due to manufacturing and other mechanical defects in the tractor vehicle, the complainant had to face un-necessary harassment and mental agony. After seven days from the date of purchase, the tractor vehicle was taken to the workshop of the opposite party No.1 on November 11^th, 2014 for routine first service. The defects in the working of the battery and lift were pointed out to the opposite party No.1. The defect in the lift was removed but the complainant was asked to continue using the tractor vehicle with defects in working of the battery. Again the complainant had to take the tractor vehicle to the workshop of the opposite party No.1 on December 23^rd, 2014 for second service. It was brought to the notice of the opposite party No.1 that the tractor vehicle was not taking required load and also pointed out other defects in the vehicle. The defects were not rectified and the complainant was given assurance that the defects would be removed at the time of next service. The tractor vehicle was again taken to the workshop of the opposite party No.1 on June 01^st, 2015. At that time, there was defect in the gear box of the tractor vehicle. After service also, the defects could not be removed. Although Self was repaired but still there was starting problem with the vehicle.

4.                The tractor vehicle was also taken to workshop of the opposite party No.1 on March 25^th, 2015. The lift was adjusted but the defect was not completely removed. Again the tractor vehicle was taken to the workshop of the opposite party No.1 on April 17^th, 2015 and on that date, driver seat was replaced as the same was defective. On May 21^st, 2015, the engine of the vehicle was found defective. All the four pistons of the engine as well as ring, sleeve and seals etc. were replaced. Despite replacing four pistons, ring, sleeve etc, still the tractor vehicle was causing problems. After 6-7 days the tractor vehicle was again taken to the workshop and on that day the piston of the tractor vehicle was found cracked. The opposite party No.1 despite protest from the complainant fitted the same cracked piston in the engine. As the tractor vehicle still was not taking load, the same was again brought to the workshop of the opposite party No.1 on July 27^th, 2015. The repair work was done again on July 29^th, 2015 but still there were problems in the working of the tractor vehicle.

5.                Considering request of the complainant, an engineer of the opposite party No.2 namely Shamsher Singh was called by the opposite party No.1, who again checked the tractor vehicle on May 21^st, 2015. The company engineer visited the fields of the complainant on August 17^th, 2015 for observing working of the tractor vehicle. The working of the tractor vehicle was video graphed by the complainant. The engineer of the company told that the tractor vehicle was taking extra diesel and was not taking load and was giving heat abnormally. The above mentioned problem arose during warranty period. The complainant is facing un-necessary hardships due to manufacturing defects in the tractor vehicle. The tractor vehicle was also got insured by the complainant with Magma HDI General Insurance Company Limited – Opposite Party No.4, initially for a period of one year. According to the complainant, it has become difficult for him to cultivate his agricultural land and he had to hire tractor vehicles for cultivation of his agricultural land and had to face un-necessary harassment and loss of money. The tractor vehicle was taken to the workshop of the opposite party No.1 for regular service. The service adviser of the opposite party No.1 did not utilize the coupons provided in the service book for free service. On August 01^st, 2015, the complainant also had to replace battery also. The opposite parties No.1 and 2 are liable to replace the tractor vehicle purchased by the complainant with a new one.

6.                By filing complaint before the District Forum, the complainant sought direction to the opposite parties to replace the defective tractor vehicle purchased by him with a new one as the tractor vehicle is having manufacturing defects; to pay an amount of Rs.1.00 lac to the complainant on account of un-necessary harassment and mental agony; to pay an amount of Rs.20,000/- on account of extra amount spent for cultivation and harvest; to pay an amount of Rs.50,000/- on account of loss of crop and an amount of Rs.11,000/- as litigation expenses.

7.                The Opposite Party No.1 has taken plea in its written version that the complaint is not maintainable in the present form and that the complainant has no locus standi to file the present complaint. It is admitted that the tractor vehicle mentioned in the complaint was purchased by the complainant from the answering opposite party No.1. It is pleaded that the warranty period of proprietary items like starter self, battery and alternator etc. is 12 months or 1000 working hours and regarding remaining parts of the vehicle, the warranty period was of two years. It is admitted that the tractor vehicle was brought to the workshop of the opposite party No.1 on 11.11.2014 and 23.12.2014 for first and second service and the service work was done to the satisfaction of the complainant. On those dates, no defect in the tractor vehicle was pointed out, as mentioned in the complaint. It is denied that the tractor vehicle was not taking required load. In fact, the tractor vehicle started giving trouble after the same was used by the complainant for commercial purposes for carrying sand and soil etc. The tractor vehicle was repaired and engine kit was changed on 01.06.2015. It is also admitted that on 17.04.2015 the driver seat was replaced. Third service was done on 25.03.2015 and engine repairing kit was changed on 21.05.2015. On 01.06.2015 Head Valve of the tractor was replaced and the air cleaning system was reset as per company’s norms. The Exide Battery of the vehicle was replaced with new battery. Fuel Injection Pump (Bosch make) was sent to its dealer ‘Dasmesh Diesel Service Private Limited, Delhi’. However, claim of the complainant was rejected mentioning that the problem arose due to diesel adulteration. It is denied that at the time of visit of the engineer of the opposite party No1, the tractor was taking extra diesel and was not taking load and was gaining abnormal heat.  Up to 29.07.2015, the tractor vehicle had been used for 996 hours. It is denied that the tractor vehicle is having any manufacturing defect. The defects as and when pointed out by the complainant, have been immediately removed by the answering opposite party No.1. The complainant is not entitled to receive any relief, as claimed in the complaint. The opposite party No.1 prayed that the complaint be dismissed.

8.                Opposite Party No.2 – Mahindra & Mahindra Farm Division, manufacturer of the tractor vehicle has taken plea in its written version that the complainant has no locus standi to file the present complaint and that the complaint is not maintainable in the present form. It is pleaded that no intimation regarding any defect in the tractor vehicle was given to the answering opposite party. The transaction in between the opposite party No.2 (manufacturer) and the dealer are on principal to principal basis. The opposite party No.1 is not an agent and does not have any fiducial relationship with the opposite party No.2. The opposite party No.2 has no locus standi or accountability in any manner regarding the claim of the complainant. The answering opposite party never entered into a transaction with the complainant and there is no privity of contract in between the complainant and the opposite party No.2/manufacturing Company. Moreover, the tractor vehicle was not plied by the complainant as per terms and conditions mentioned in the manual and also in contravention of the rules but still the repair work was done several times in the workshop as and when the complainant approached the opposite party No.1. The repair work was done to the satisfaction of the complainant. Moreover, the official engineer of the opposite party No.1 also observed in the service visit on 01.06.2015 that the complainant had fitted local extra filter. There was foreign material inside the cleaner which came in between valve and assay and got head valve damaged. After service, signatures of the complainant were obtained on the Job Card. It is prayed that the complaint filed by the complainant be dismissed.

9.                Opposite Party No.3 – Magma Fincorp Limited filed its separate written version and admitted regarding advancement of an amount of Rs.5,03,728/- as loan to the complainant after execution of an agreement for purchase of the tractor vehicle. The complainant was required to make payment of the installments of the loan amount in eight half yearly installments of Rs.1.00 lac each from 20.11.2014 up to 19.11.2018. The complainant continuously committed default in making payment of the loan amount and as on 04.01.2016, an amount of Rs.4,53,137/- was outstanding against the complainant.

10.              Magma HDI General Insurance Company Limited – Opposite Party No.4, in its separate written version admitted that the tractor vehicle was got insured with the opposite party No.1. It is pleaded that the Insurance Company is not liable to pay any amount to the complainant as it is a manufacturing defect in the vehicle. The risk of manufacturing defect in the vehicle is not covered under the insurance policy.

11.              Parties adduced evidence in support of their respective claims before the District Forum.

12.              After hearing arguments, vide impugned order dated June 13^th, 2016 the complaint filed by the complainant was allowed directing the opposite parties No.1 and 2 to replace the defective tractor vehicle of the complainant with a new one of the same model, same company and same capacity. The complainant was also directed to return the defective tractor vehicle to the opposite parties No.1 and 2 enabling them for making delivery of the new vehicle of the same model and capacity to the complainant.  Findings were also given that there was no deficiency in service on the part of the opposite parties No.3 and 4.

13.              Aggrieved with the impugned order dated June 13^th, 2016, passed by the learned District Forum, the opposite party No.2 Mahindra & Mahindra Farm Division, has filed the present appeal bearing No.752 of 2016 with a prayer to set aside the impugned order and to dismiss the complaint filed by the complainant.

14.              We have heard learned counsel for the parties and perused the case file.

15.              During the course of arguments, there was no controversy of any type that the complainant purchased a tractor vehicle Mahindra Arjun 605 DI, on November 04^th, 2014 from the opposite party No.1 - Vijay Agro Engineering Works, Gurudwara Road, Sonipat, an authorised dealer of Mahindra & Mahindra Farm Division-Opposite Party No.2 for a consideration of Rs.7,30,000/-. It is admitted fact that the above mentioned tractor vehicle was got insured by the complainant-registered owner with the opposite party No.4 – Magma HDI General Insurance Company Limited regarding the period from November 24^th, 2014 to November 23^rd, 2015 mentioning total Insured Declared Value as Rs.6,93,500/- (Annexure C-3). It is also admitted fact that out of the total sale price amount, an amount of Rs.2,30,000/- was paid by the complainant in cash and the remaining amount of Rs.5,03,728/- was financed by the opposite party No.3 – Magma Fincorp Limited. Much discussion is not needed regarding the pleas taken in its written version by the opposite party No.3 as the opposite party No.3 was impleaded as party to the proceedings of this complaint, merely because the purchase of the tractor vehicle was financed by the opposite party No.3. Much discussion in this order is not needed of the pleas taken by the opposite party No.4 – Insurance Company as well as documents placed on the file concerned with the insurance policy provided by the Insurance Company. During the course of arguments, there was no controversy of any type that risk of manufacturing defect was not covered under the insurance policy. Due to these reasons, no relief has been granted by the learned District Forum against the opposite parties No.3 and 4.

16.              During the course of arguments, there was also no controversy that after purchase of the tractor vehicle on November 04^th, 2014 the tractor vehicle was brought to the workshop of the opposite party No.1 for service on 11.11.2014, 23.12.2014, 25.3.2015, 17.04.2015, 21.05.2015, 01.06.2015 and 29.07.2015. As per version of the complainant he pointed out certain defects in the working of the tractor as and when the tractor vehicle was brought to the workshop of the opposite party No.1 for service and repair work. Just after seven days from the date of purchase, the complainant brought to the notice of the opposite party No.1 the defects in the battery and the lift system of the tractor vehicle. Defect in the lift was removed and the complainant was asked to use the defective battery for the time being. On December 23^rd, 2014 the complainant had brought to the notice of the opposite party No.1 that the tractor vehicle was not taking required load and that there were few other defects in the tractor vehicle. On March 25^th, 2015, necessity arose for readjustment of the lift again and on 17.04.2015 the driver seat of the tractor vehicle was replaced. On 21.05.2015 as per version of the complainant all four pistons of the engine and other accessories like ring, sleeve and seals etc. were replaced and after 6-7 days one of the pistons was found cracked. This fact is admitted by the opposite party No.1 also in its written version. On 01.06.2015 gear box was repaired.

17.              Facing all these problems, considering request of the complainant, Shamsher Singh, an engineer of the manufacturer-opposite party No.2 was called to check the vehicle while working in the field. Version of the complainant is that Shamsher Singh had told that the tractor vehicle was giving heat abnormally. Opposite parties denied that Shamsher Singh has given any such opinion. In order to prove the above mentioned repair works and replacement of certain parts of the vehicle, the complainant adduced in evidence Job Cards Annexure C-6, Annexure C-7, Annexure C-8 to C-14, Annexure C-16 and Annexure-17 as well as warranty claim form Annexure C-8 and C-18. The complainant has also adduced in evidence receipts Annexure C-20 and C-21 dated February 17^th, 2016 regarding the amount spent for repair of the vehicle.

18.              From the pleadings and evidence on the file as discussed above, it clearly appears that it became very difficult for the complainant to cultivate his agricultural land by use of the tractor vehicle purchased from the opposite party No.1. The complainant had to visit the workshop of the opposite party No.1 time and again with short intervals due to certain defects in the vehicle. During this short period all the four pistons of the engine as well as ring, sleeve and seals etc. were replaced. Time and again there was problem in the gear box as well as lift of the vehicle. The driver seat has also been got replaced. The engine repairing kits were also changed twice. Ultimately, the complainant had to request the opposite party No.1 to call the engineer of the manufacturer to examine the vehicle while working in the fields. From these circumstances, I feel there must be no hesitation in holding that the defects occurred in the tractor vehicle time and again with short intervals due to manufacturing defects. The complainant made all possible efforts so that the defects in the tractor vehicle may be removed and he may be able to use the tractor vehicle properly.  From the evidence available on the record it is evident that the complainant took the tractor vehicle to the workshop of the opposite parties No.1 and 2 repeatedly so many times but the defects could not be rectified.  From this evidence it clearly appears that there is manufacturing defect in the tractor vehicle. Support to this can be taken from the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case law Krishanpal Singh versus Tata Motors Limited and others, Revision Petition No.4575 of 2012, decided on May 07^th, 2014 wherein it was held that if the vehicle is repeatedly taken to service station for repairs, then manufacturing defect must be assumed. In such a situation onus of proof shifts upon the opposite parties. It was also held that whenever there is a complaint of manufacturing defect, it should be burdened duty of the opposite parties to appoint its own expert who is always available and to call an expert to prove that the vehicle does not suffer from any manufacturing defect. Cited case law fully supports the version of the complainant. Keeping in mind all these circumstances, it clearly appears to be a case of manufacturing defect in the tractor vehicle and the complainant is entitled for replacement of the tractor vehicle of the same brand, model and same Horsepower/capacity.

19.              It is admitted fact that the warranty period was provided on behalf of the manufacturer for a period of 12 months or 1000 working hours of the tractor regarding proprietary items like starter self, battery and alternator etc. and regarding remaining parts of the vehicle, the warranty period was of two years.  So, it is clear that all these problems occurred during warranty period.

20.              As a result, as per discussion above in detail, I find that the impugned order dated June 13^th, 2016 passed by the learned District Forum does not suffer from illegality and infirmity. Hence, the findings of the learned District Forum stand affirmed and the appeal stands dismissed.

21.              The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the complainant against proper receipt and identification in accordance with rules, after expiry of period of appeal/revision, if any.

 

Announced: 30.11.2017

(Balbir Singh) Judicial Member

CL