DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FARIDKOT.
Complaint No. : 101
Date of Institution : 01.08.2014
Date of Decision : 05.02.2015
Narinder Singh S/o Bant Singh R/o Village Lambwali, Tehsil Jaitu, Distt. Faridkot.
...Complainant Versus
Supreme Tractor Corporation, Mai Godri Shaib, Kotkapura Road, Faridkot through its Proprietor.
Auto Diesel Service (MICO), Opposite Pukhraj Cinema, Goniana Road, Bathinda Phone No.0164-2251658.
Public Diesel Pump Service Workshop (MICO), Chowk Makhu Gate, Ferozepur Phone No.01632-220162.
Mahindra and Mahindra, Phase IV, Industrial Area, SAS Nagar (Mohali).
...Opposite Parties (OP)
Complaint under Section 12 of the
Consumer Protection Act, 1986.
Quorum: Sh. A.K. Mehta, President
Smt. Parampal Kaur, Member
Sh. Purshotam Singla, Member
Present: Sh. Ashu Mittal, Advocate, Ld. Counsel for complainant.
Sh. V.P.S.Brar, Advocate, for OP-1
Sh. G.S.Aulakh, Advocate for OP-2
Sh. Deepak Maggo, Advocate for OP-3
Sh. J.S.Jatana, Advocate, for OP-4.
JUDGMENT
(A.K. Mehta, President)
Narinder Singh Complainant has come to this Forum with complaint U/s 12 of the Consumer Protection Act,1986 (hereinafter to be called as CP Act) against Swaraj Tractor Corporation, Faridkot through its Prop. etc. OPs (OP) for selling defective tractor make Swaraj, Chasis no.WRCA61918966138 to the complainant and for a direction to the OPs to replace the defective tractor with new one or to refund Rs.6,15,000/- along with interest and to pay compensation of Rs.2,00,000/- for harassment and mental agony and financial loss besides litigation expenses.
The case of the complainant is that he is agriculturist and approached OP-1 to purchase tractor and OP-1 assured the complainant that he should purchase Swaraj Tractor as the same is of superior quality and on the assurance of the OP-1, complainant purchased Swaraj Tractor vide bill no. 2150 dated 23.01.2013 for Rs.6,15,000/- from OP-1 who is authorized dealer of OP-4 manufacturer; that tractor had warranty for 2 years against any material and manufacturing defect in the tractor; that from the very beginning, tractor was giving trouble and just after few days of purchase, some problem occurred in said tractor and tractor started emitting excess smoke and complainant also found that the diesel pump was mixing diesel in engine oil and complainant went to OP-1 and after inspection, OP-1 told the complainant to leave the tractor in the agency for 2 days and after some repair, OP-1 returned the tractor after removal of defect; that after few days some problem occurred and complainant again went to OP-1 and again after some repair of diesel pump, the tractor was returned and this continued for about 6 months and at last when defect in the diesel pump could not be removed, OP-1 asked the complainant to take the diesel pump at Service station of OP-2 at Bathinda and thereupon complainant took diesel pump to OP-2 and OP-2 inspected the diesel pump and asked the complainant to come after 4 days and after 4 days, OP-2 assured the complainant that the defect in the diesel pump has been removed and there would be no problem but again after 25 days, the same problem occurred and complainant again went to OP-1 and at that time, OP-1 asked the complainant to visit the service station of OP-3 at Ferozepur and accordingly complainant went to OP-3 at Ferozepur who inspected the diesel pump and asked the complainant to come after 5 days and when after 5 days, complainant went to OP-3, complainant was assured that the defect in the diesel pump has been removed but after few days, a new problem occurred as clutch plates of tractor started giving problem and OP-1 replaced some parts of the tractor and defect was removed but again problem of diesel pump started and OP-1 opened the diesel pump and sent the same to OP-2 and after about week, the diesel pump was returned back and OP assured the complainant that there would be no problem; that the tractor remained OK for some days but thereafter lift of the tractor stopped working and complainant went to OP-1 and OP-1 asked the complainant to leave the tractor for about 10 days, and when complainant visited OP-1 after 10 days OP-1 assured the complainant that the defect has been removed but in first week of July 2014, problem of diesel pump and lift again started and complainant went to OP-2 and OP-2 kept the tractor for about 15 days and during this time, diesel pump was opened by OP-2 and rings were changed but defect was not removed; that many complaints were made by the complainant to the OPs but fault can not be removed as there is manufacturing defect in the tractor; that complainant used to get service of the tractor from OP-1 every time; that complainant also got checked the tractor from some private mechanic who told that there is defect in diesel pump and lift and same can not be removed as there is manufacturing defect in the diesel pump and due to this defect, the engine has broken down and due to this reason, defect in lift and other parts of the tractor occurred and replacement of tractor is only solution; that complainant purchased a tractor driven combine for Rs.7,10,000/- for his living and complainant also hired 2 employees for plying the tractor driven combine and complainant had to pay Rs.70,000/- to both the employees without taking any service due to non working of tractor as said tractor driven combine could not be plied due to defect in tractor and complainant had to suffer financial loss; that the tractor was purchased on 23.01.2013 and the same was within guarantee period when the defect occurred; that due to defect in tractor, complainant and his family members had to face harassment, inconvenience and mental agony and as such complainant is entitled to compensation of Rs.2,00,000/- as there is deficiency in service on the part of OPs for selling defective tractor and not replacing the same within warranty period. Hence complaint was filed.
2. After formal admission of the complaint, notice was issued to the OPs and OP-1 appeared through counsel and filed written statement contesting the complaint on the preliminary objections that complaint is not maintainable in the present form as complainant have concealed material facts and filed the same on the basis of made up story; that the complaint has been filed only to harass answering OP with ulterior motive;that complainant have modified the exhaust silencer and adopter of the tractor in question with the company fitted silencer and adopter and as such he is not entitled to any compensation and complaint is liable to be dismissed. On merits, it was admitted that complainant purchased the tractor in question from OP-1 and warranty for the same was 2 years but not against any material; that all the terms and conditions of warranty are given in the warranty card and complainant is bound by the same as complainant signed the warranty card. It was denied if tractor was giving trouble from the very beginning, rather complainant purchased the tractor on 23.01.2013 and approached OP-1 first time on 13.04.2013 and asked for service parts i.e. engine oil and air cleaner filter, diesel filter, oil filter and himself conducted the service of tractor at his home though complainant was requested to get the service done at the service center of OP-1; that even at that time, the tractor had worked for more than 88 hours though as per company warranty, the first service was required to be done at 60 hours; that on 13.08.2013, complainant approached answering OPs and at that time, the tractor had worked for 355 hours and at that time, complainant complained regarding emitting excess smoke and problem in fuel pump; that on the same day, service was conducted and fuel pump was sent to MICO authorized Auto Diesel Station at Bathinda and on the same day, fuel pump was received and fitted in the tractor; that answering OPs also asked the complainant that he had modified the exhaust silencer and adopter of the tractor and due to this reason, tractor was giving excess smoke; that thereafter on 09.12.2013, complainant again came to OP-1 and at that time, the tractor in question had worked more than 646 hours; that as per company schedule 3rd service was required to be done on 560 hours whereas tractor had worked for 646 hours; that complainant again filed a complaint and OP-1 sent the fuel pump at Ferozepur at MICO authorized Public Diesel Service and on the same day, pump was returned and tractor was given to the complainant and again complainant was advised to change the modified parts i.e. silencer and adopter with the company fitted silence and adopter but complainant refused to change the same; that at the time of 3rd service, oil seal of clutch shaft was leak and the same was changed on 09.12.2013 and problem in the lift was also reported by the complainant at the time of 3rd service on 09.12.2013 and the said problem was also removed by replacing the relief valve of the said tractor;that complainant did not get the service of the tractor conducted in time due to which reason, these problems occurred and parts were changed free of costs during warranty period. It was asserted that the mechanic who gave report is not a qualified person nor he is fuel pump expert and as such can not give his opinion nor the same is liable to be believed because he is simply tractor mechanic and not tractor expert; that complainant is owner of 7 acres of land and on average work of tractor for 7 killa is 200 hours per year but tractor in question worked for 1000/- hours and approximately 800 hours had worked on combine and combine harvester harvests about 3 acre on average per hour and the rent of harvester is Rs. 900/- per acre and as such combine had harvested 2400 acres of crop in 800 hours and complainant have earned Rs.21,60,000/- from the combine; that company gives warranty of tractor but same is terminated due to improper maintenance and unauthorized modification of parts of tractor. All other allegations mentioned in the complaint were also denied with a prayer to dismiss the complaint with cost.
3. OP-2 also appeared through counsel and filed reply contesting the complaint on the preliminary objections that answering OP is authorized service center of MICO/BOSCH company at Bathinda and there was no deficiency in service on the part of the answering OP because fuel pump was brought to the answering OP and the same was thoroughly checked and it was found that one of the element had leaked and the same was replaced as per terms of warranty and the said pump was repaired on the same day and thereafter no intimation was given to the answering OP regarding defect in the said pump; that complainant have concealed material facts and concocted a false story to file the complaint under Consumer Protection Act; that the fuel pump was manufactured in November 2012 and its warranty had expired in April 2014 and complainant is not entitled to claim any warranty in July 2014 as alleged by the complainant. On merits most of the allegations of the complaint were denied for want of knowledge and complaint was contested on the same lines as were taken in the preliminary objections and it was asserted that there is no parking provision in the answering OP service center and as such vehicle is never held at the service center nor complainant brought the tractor and have filed a false complaint. It was asserted that answering OP checked the fuel pump on 13.08.2013 and did not find any manufacturing defect as alleged by complainant and one element had leaked which was replaced. All other allegations mentioned in the complaint were also denied with a prayer to dismiss the complaint with cost.
4. OP-3 also appeared through counsel and filed reply contesting the complaint on the preliminary objections that the complaint is not maintainable in the present form and complainant has not come to the Forum with clean hand and have suppressed material facts. On merits, it was asserted that complainant visited the service station of OP-3 and employees of OP-3 inspected the diesel pump of the tractor and repaired the same. All other allegations mentioned in the complaint were denied for want of knowledge and being false and incorrect and prayer was made for dismissal of the complaint with cost.
5. OP-4 also appeared through counsel and filed reply contesting the complaint on the preliminary objections that complaint is false, frivolous, vexatious in nature and complainant have filed the complaint only to wriggle out of his financial liabilities and no cause of action has been disclosed against OP-4 and complaint is liable to be dismissed as present litigation is a speculative litigation; that tractor in question was manufactured by answering OP and it was delivered only after completing the process of pre-delivery inspection to the sanctification of the customer and same process was done in the instant case; that complainant has filed the complaint with ulterior motive to inure the reputation of answering OP and to extort money without proving manufacturing defect and as such complaint is liable to be dismissed with special cost; that complainant have filed this complaint to take undue advantage of his own wrongs and has not come to the court with clean hands; that the liability of answering OP is strictly in accordance with the terms of warranty and as per terms of warranty complainant is wrongly demanding replacement of tractor in question along with compensation. On merits, it was admitted that complainant purchased the tractor in question from OP-1 and the same was having warranty, for 2 years but not against any material. It was denied if tractor was giving trouble from the beginning of its purchase as complainant purchased the tractor on 23.01.2013 and approached OP-1 on 13.04.2013 and even at that time, demanded certain service parts for himself conducting the service of tractor at his home despite request of answering OP for service of the tractor at service center and till then, no complaint was received from the complainant, though the tractor had already worked for more than 88 hours whereas first service was required to be done at 60 hours and thereafter on 13.08.2013, complainant approached the answering OP and at that time, the tractor had worked for 355 hours and complaint was made regarding emitting excess smoke and problem in fuel pump; that service was conducted at that time and fuel pump was sent to MICO authorized Auto Diesel Service Center at Bathinda and on the same day, fuel pump was received and fitted in the tractor and was handed over to the complainant, though it was told to the complainant that he had modified the exhaust silencer and adopter of the tractor due to which reason, tractor was emitting excess smoke; that thereafter complainant contacted OP-1 on 09.12.2013 and at that time, tractor had worked for more than 646 hours though 3rd service was required to be done after completion of 560 hours; that complainant again reported about fuel pump which was immediately sent to MICO authorized public diesel service center and was returned on the same day and tractor was given to the complainant and complainant was again asked to change the modified parts like exhaust silencer and adopter but complainant refused to change the same that at the time of 3rd service, oil seal of clutch shaft was also found leaked and the same was changed on 09.12.2013 and problem was removed by replacing the relief valve of the tractor; that the report given by alleged mechanic can not be believed as he is not qualified person nor a tractor expert but only a tractor mechanic. All other allegations mentioned in the complaint were also denied with prayer to dismiss the complaint with special cost.
6. Parties were given proper opportunities to lead evidence and Ld. Counsel for the complainant tendered copy of bill dated 23.01.2013 Ex C-1, Ex C-2 is copy of challan, Copy of bill dated 03.04.2013 Ex C-3, copy of report Ex C-4, photograph Ex C-5, affidavit of Ram Singh Ex C-6, Ex C-7 report of Ram Singh Mechanic, affidavit of Narinder Singh Ex C-8, and thereafter closed evidence on behalf of the complainant. In rebuttal, OP-1 proved his affidavit as Ex OP-1/1, Ex OP-1/2 is original photograph, Copy of installation certificate dated 21.01.2013 EX OP-1/3, Copy of warranty policy Ex OP-1/4, copies of service Coupon Ex OP-1/5 to Ex OP-1/8, copy of job card dated 13.04.2013 Ex OP-1/9, copy of job card dated 13/08/2013 Ex OP-1/10, Copy of job card dated 09.12.2013 Ex OP-1/11, Copy of job card dated 12.05.2014 Ex OP-1/12, Copy of job card dated 22.05.2014 Ex OP-1/13, affidavit of Gurmukh Singh as Ex OP-1/14 with documents Ex OP-1/15 to Ex OP-1/19 and closed his evidence, OP-2 has tendered affidavit of Ex OP-2/1, Ex OP-2/2 and Ex OP-2/3 are copies of Job Cards dated 13.08.2013, copy of bill Ex OP-2/4 and closed his evidence. Ld. Counsel for OP-3 tendered affidavit of Naresh Kumar Prop. Of OP-3 as Ex OP-3/1 and closed his evidence. Ld. Counsel for OP-4 tendered into evidence affidavit Ex OP-4/1 and Ex OP-4/2 is copy of warranty claim form having claim no.755 dated 08.06.2013, Copy of warranty Claim form no.907 dated 09.12.2013 Ex OP-4/3, claim no.1037 dated 22.05.2014 Ex OP-4/4, claim no.1074 Ex OP-4/5, affidavit of Vinod Kumar S/o Ram Nath, Asstt. Engineer Customer Care is OP-4/6 and closed his evidence.
7. We have heard the Ld. Counsel for the parties and have gone through the file.
8. Ld. Counsel for the complainant contended that complainant purchased the tractor in question vide bill dated 23.01.2013 Ex C-1 and was delivered to the complainant vide delivery challan Ex C-2 and there was warranty of 2 years on the tractor. He contended that defect occurred in the tractor on 21.05.2013 and job card have been proved on the file by OPs which shows that tractor in question was giving trouble repeatedly and was being taken to OPs for repair. He contended that complainant also examined Ram Singh who proved his affidavit Ex C-6 and proved his report Ex C-7/C-4 which shows that there is a manufacturing defect in the tractor which are not repairable and as such complaint is required to be allowed and complainant is entitled for replacement of tractor with new one or for refund of Rs.6,15,000/- with interest as price of the tractor and he is entitled to compensation and litigation expenses mentioned in the complaint. He also supported his arguments with case titled General Motors India Pvt. Ltd Vs Mitali Aggarwal and Others 2014 (4) Consumer Law Today, 15.
9. Ld. Counsel for the OP-1 contended that complainant approached the OP-1 first time on 13.04.2013 and not from the beginning of purchase of tractor as alleged in the complaint. He contended that even at that time, complainant asked only for service parts and did not get the service of the tractor at the Service Station of OP, rather did the service himself at his home. He also contended that the complainant was not getting the service of the tractor in time as the first service is required after completion of 60 hours whereas complainant contacted the OP-1 first time after the tractor had worked for 88 hours and got the service done privately. He also contended that complainant had also modified the silencer and adapter of the tractor and have replaced these parts with parts not manufactured by the company and complainant was advised to change these parts with parts manufactured by the company but complainant refused and due to these modification,the tractor was giving trouble of emitting excess smoke. He further contended that no reliance can be placed on the report of tractor mechanic Ram Singh Ex C-7 as he is merely a tractor mechanic and not a tractor expert nor he is a qualified engineer. He further contended that specific date of trouble in the tractor is also not given in the complaint nor any specific defect has been pointed out by the tractor mechanic in his report Ex C-7 nor any specific complaint was made to the manufacturer of tractor i.e. OP-4 whereas OPs have produced evidence which shows that tractor does not have any manufacturing defect and the defect occurred due to modification of silencer and adapter of the tractor and due to handling of the tractor by private mechanic and due to late service of tractor. He further contended that there is no deficiency in service on the part of the OPs as the complainant was attended immediately whenever he brought the tractor to the OPs for the service or repair and the same was repaired immediately and even efforts were made to get the fuel and diesel pump repaired from Bathinda as well as from Ferozepur. He further contended that even the complaint shows that whenever complainant brought the tractor to the OPs for repair, it was repaired immediately and was handed over to the complainant in OK condition and as such complainant have failed to prove any defect in the tractor in question or any deficiency in service nor could prove that the tractor in question had any manufacturing defect and as such complaint is liable to be dismissed.
10. Ld. Counsel for OP-2 & OP-3 contended that complainant could not point out any deficiency in service on the part of OP-2 & OP-3 because OP-2 & 3 repaired the part of the tractor on the same day when the same was brought to OP-2 and 3 nor complainant have specifically alleged any deficiency in service on the part of OP-2 & OP-3.
11. Ld. Counsel for the OP-4 also argued the case on the same lines as argued by OP-1 and contended that complainant have failed to prove any manufacturing defect in the tractor in question and the defect pointed out by the complainant is due to modification of tractor parts and due to late service of tractor and that too by private mechanic. He also contended that report of tractor mechanic Ram Singh carries no value in the eyes of law as he is not a qualified engineer nor he is a tractor expert nor has pointed out any specific defect in the tractor to justify its replacement, rather the defects pointed out by the complainant are normal wear and tear of the tractor. He further contended that complaint is also not maintainable in the consumer Forum as complainant is not a consumer because complainant is using the tractor for commercial purpose and for unauthorized use as the tractor in question was manufactured only for agricultural purpose but complainant is using the tractor in question for plying combine harvester which is a heavy machine and due to this reason, tractor was over working and as such there is no deficiency in service on the part of the Ops and complaint is liable to be dismissed.
12. After going through the record of the case and evidence led by the parties on the file and after going through the documents placed on the file, this Forum does not find force in the contention of the Ld. Counsel for the complainant. Complainant have alleged in the complaint that immediately after the purchase of the tractor in question, it developed defect but no document has been produced on the file by the complainant to show that immediately after purchase, the tractor developed default/defect, rather on the contrary, the OPs asserted that the complainant purchased the tractor in question in January 2013 and brought the tractor first time on 13.04.2013 for simple demanding service parts for conducting service privately at his home and even for that purpose, OP-1 handed over the service parts like Engine oil and air cleaner filter, diesel filter, Oil filter etc. OPs have also proved job card Ex OP-1/9 and this job card is silent is complainant told about any defect/default in the tractor even on 13.04.2013 when complainant went to OP for the first time after purchase of tractor and job card only shows that articles for service of the tractor was demanded by the complainant. OPs have further proved Job card Ex OP-1/10 which is dated 13.08.2013 and it shows that the tractor was brought to the service station for service and only with complaint that pump is mixing diesel, Job Card Ex OP-1/10 further shows that the tractor had worked for 355 hours. It is the assertion of the OPs that the complainant was plying the tractor for commercial purpose i.e. for plying combine harvester on rent and this fact is also admitted by the complainant himself in para no.10 of the complaint wherein the complainant alleged that he purchased a combine for Rs.7,10,000/- for his living and have hired 2 employees for plying tractor driven combine and had to pay Rs.70,000/- to both the employees. It shows that complainant was using the tractor in question for commercial purpose and not for only agricultural purpose in fields. Naturally tractor must be doing over work as simply using the tractor for agriculture purpose is different than for plying combine which is a heavy machine. Otherwise tractor in question is not specifically meant for plying combine harvester and if such a tractor is used for combine harvester, it would over work and is likely to effect its proper working. Moreover, the tractor had worked for 88 hours in April 2013 and for 355 hours on 13.08.2013 and for 646 hours on 09.12.2013 and for 950 hours on 12.05.2014 and it clearly shows that the tractor was not having any manufacturing defect in it as the defect pointed out by the complainant was normal wear and tear of the tractor. Moreover, in job card Ex OP-1/10, OP-1/11 and Ex OP-1/13 shows that tractor had modification of silencer and adopter and due to this reason, tractor was emitting smoke and mixing oil in diesel and complainant was repeatedly advised to change the modified silencer and adopter with the company fitted silencer and adopter but complainant refused to accept the advise as is mentioned on job card Ex OP-1/11. Otherwise also, complainant have not produced any evidence on the file to show that the tractor in question have any manufacturing defect. The report Ex C-4/C-7 proved by complainant is not sufficient at all to establish that tractor in question have any manufacturing defect because it is simply mentioned in the report that tractor is emitting smoke and is also giving blow and its pick up is not proper and it is further mentioned in the report that these defects are due to manufacturing defect in the tractor but the specific manufacturing defect or its reasons has not been mentioned in the report nor it has been explained as to how these fault amounts to manufacturing defect. The defect occurred in the tractor in question are normal defects which are mainly result of wear and tear of the tractor with the passage of time. Otherwise also, witness Ram Singh who gave report Ex C-4/C-7 is not a mechanical engineer nor is a expert in tractor and is simply a tractor mechanic who can not explain or report about the manufacturing defect in the tractor. Otherwise the record shows that there is no deficiency in service on the part of the OPs as whenever complainant brought the tractor for repair, it was attended immediately and complaint also shows that the defect was rectified and tractor was delivered to the complainant. Moreover OP-1 dealer even sent the diesel pump firstly to Bathinda and then to Ferozpur service Station for the proper repair of the diesel pump of the tractor. The facts of the case law titled General Motors India Pvt. Ltd Vs Mitali Aggarwal and Others 2014 (4) Consumer Law Today, 15 and others referred by Ld. Counsel for the complainant is quite distinguishable from the facts of the case in hand as in the referred case, the vehicle was car make Opel Astra Club Car which was being used for private purpose whereas the vehicle involved in the complaint is a tractor which was being used for commercial purpose for plying combine harvestor, though tractor was never purchased by the complainant for plying combine harvester.
13. In the light of above discussion, the complainant failed to prove his case on the file and to prove that the tractor have any manufacturing defect or the OPs were deficient in service. Therefore,complaint being merits less is dismissed. However in the peculiar circumstances of the case, parties are left to bear their own costs. Copies of the order be sent to the parties free of costs. File be consigned to the record room.
Announced in open Forum:
Dated: 05.02.2015
Member Member President
(Purshotam Singla) (Parampal Kaur) (A.K.Mehta)
