DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No.275 of 18.7.2016

                                      Decided on:                               8.11.2019

Lal Khan aged about 42 years son of Mashahur Mohammad, resident of village Dhingi, Tehsil Nabha, District Patiala.

                                                                   …………...Complainant

                                      Versus

1.       Swaraj Tractors Head Office Swaraj Division Mahindra & Mahindra Ltd., Phase IV, Industrial Area, SAS Nagar (Mohali),Punjab-160055, through its Managing Director.

2.       Krishna Tractor (Authorized Dealers: Swaraj Tractors H.O.Opposite Grid,Cantt. Road, Nabha-147201 District Patiala through its owner.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa,   President

                                      Smt. Inderjeet Kaur,      Member

                                      Sh.B.S.Dhaliwal,           Member    

ARGUED BY

                                      Sh.Santosh Kumar, Advocate,

                                      counsel for complainant.

                                      Sh.Manpreet Singh, Advocate, counsel for OP No.1.

                                      Sh.Harvinder Shukla,Advocate, counsel for OP No.2.

 ORDER

                                     M.P.SINGH PAHWA,PRESIDENT

1. This is the complaint filed by Lal Khan (hereinafter referred to as the complainant) against Swaraj Tractors and another (hereinafter referred to as the OPs).
2. Briefly, the case of the complainant is that he had purchased Swaraj 855 tractor from OP No.2 on 14.1.2015. At the time of purchase, as per exchange scheme of the OP, the complainant exchanged his old tractor. An amount of Rs.3,11,000/- was deducted from the total amount. He had paid Rs.3,00,000/- to the OP in total, which was financed by L&T Finance Limited, Nabha.
3.  It is alleged that at that time OP assured that there is a timing meter on the tractor. The tractor was guaranteed upto 2000 hours. If any defect occurred during 2000 hours, the OPs are responsible for the same. Tractor was registered on 9.3.2015 vide RC No.PB-11-BR-3486.
4. As per service schedule of the tractor first free service was to be done on 50 hours and second on 300 hours. At that time the complainant complained fault in engine as the engine was consuming oil regularly. It was told by the OPs that the fault has been removed and no problem will occur in future. Thereafter 3^rd service was got done on 550 hours. All the three services are free. 4^th  5^th and 6^th services are paid services which were to be done on 800,1050 and 1300 hours respectively. Complainant got done all the three services from OP No.2. He also got done 4^th paid service from OP No.2.At that time the complainant complained that the tractor is consuming engine oil regularly. OP assured that it has repaired the fault. In future complainant will not face this problem. Again when the tractor had run 500/550 hours the complainant again made complaint about that fault. The OP again checked the tractor. It was told that in future complainant will not face this problem. Now the tractor has run 1050 hours. Again the said fault occurred . Engine oil is consumed regularly. Engine of the tractor has totally damaged. OP is making lame excuses not to cure the fault but blaming the complainant that he did not handle the tractor properly.
5. It is reiterated that at the time of purchase, OP assured that the tractor has guaranteed upto 2000 hours. Hence the OP is liable to replace the tractor with new one due to manufacturing defect. The complainant visited OP No.2 to get the service conducted and removal of manufacturing defect. The OP called their service engineer. He checked the vehicle and told that the engine has completely damaged. This fault cannot be removed because it is manufacturing defect. The complainant requested OP to replace the tractor as per policy or guarantee given by the OP at the time of purchase of the tractor but the OP put off the matter on one pretext or the other.
6. It is further alleged that the OPs have delayed the matter instead of having knowledge since beginning that the complainant is unable to ply the tractor and to earn livelihood. Now the tractor is lying with the complainant unfunctional. It is not in pliable condition .Complainant has suffered loss of two harvesting seasons to the tune of Rs.4,00,000/- and is suffering from pecuniary loss as he is paying half yearly installment of Rs.57,950/- to the finance company.
7. The complainant has also got served legal notice dated 30.5.2016 upon the OPs through counsel  to replace the tractor with new one or to refund the cost of the tractor to the tune of Rs.6,50,000/- and also to pay Rs.4,00,000/-  on account of loss of harvesting season suffered by the complainant. Complainant has also claimed Rs.one lac as compensation on account of mental agony, harassment , humiliation but OPs sent vague reply in which they admitted the fault but are making lame excuses, the liability being shifted upon the complainant.
8. On this background of the facts, the complainant has alleged unfair trade practice and deficiency in service on the part of the OPs. Hence this complaint.
9. Upon notice OPs appeared through their respective counsels and contested the complaint by filing written replies.
10. In reply, the OP1 raised preliminary objections that the complaint is false, frivolous, vexatious and vague in nature .The complainant has filed this complaint only to wriggle out from his financial liability. He does not disclose any cause of action against OP No.1.The complainant has not annexed report of any independent expert as defined under Section 2(1)(a) of the Consumer Protection Act or any other Act to substantiate the alleged defect. That the tractors manufactured by OP No.1 are delivered only after completing the process of pre- delivery inspection to the entire satisfaction of the customer and it has been done in the instant case also. The complainant has filed this complaint with ulterior motive to injure the reputation of OP No.1 and to extort money without establishing any manufacturing defect. The complainant has not approached this Forum with clean hands. The responsibility of the OP lies strictly in accordance with the terms of warranty extended by them. It cannot be held liable for claims falling outside the scope of the warranty.

To support this contention the OP has also quoted some case laws, the reference of which is not considered to be necessary for the sake of brevity.

11. On merits, it is denied that the OP ever assured the complainant that if any defect occurred during 2000 hours OP is liable for the same. The liability of the OP is strictly in accordance with the terms of warranty extended by them. It is denied that the complainant got the services done in time.
12. It is further mentioned that the complainant got the first service on 56 hours instead of 50 hours. Second service after gap of 659 hours instead of 300 hours and thereafter got service of tractor at 1034 hours.During these services of the tractor, the complainant never informed any complaint in the tractor as alleged in this para.
13. It is admitted that the OP deputed its representative to check the tractor after receipt of legal notice dated 30.5.2016.Service engineer thoroughly checked the tractor but no defect was found in the tractor as stated in the legal notice. After controverting all the other averments, the OP No.1 prayed for dismissal of the complaint.
14. OP No.2 in its reply also raised preliminary objections that the complaint is not maintainable; the complainant is not consumer as per Consumer Protection Act and no cause of action accrued to the complainant to file complaint.
15. On merits, it is admitted that the complainant purchased the tractor on 14.1.2015.The receipt of the payments as detailed by the complainant is not disputed. It is also admitted that the tractor was guaranteed upto 2000 hours. The service schedule as mentioned by the complainant is also not disputed but it is further submitted that the complainant has not got the service done in time. First service was gone done after 56 hours instead of 50 hours. Second service was got done  after 659 hours instead of 300 hours and 3^rd and 4^th services were got done by the complainant from outside i.e. from unauthorized mechanics who may have used defective engine oil which caused loss to the engine of the tractor. Hence the complainant is at fault as he has not got the service done as per the instructions of the OP. Thereafter the service was got done by the complainant on 1034 hours .At that time the complainant did not make any complaint .Thereafter the complainant did not come to the OP for service as per instructions of the company.
16. It is further revealed that during service of the tractor from the OP complainant never made any complaint regarding consumption of the engine oil. Rather he concealed of getting service done from outside.
17. It is reiterated that the complainant did not follow the instructions. As such he is responsible for any defect occurred in the tractor. All other averments of the complainant are denied. In the end OP no.2 also prayed for dismissal of the complaint.
18. In support of  complaint, the complainant tendered into evidence his affidavit, Ex.CA, affidavit of Nazar Khan,Ex.CB, copy of challan/invoice, Ex.C1,copy of photographs of meter,Ex.C2, copy of registration, Ex.C3, copy of service slips,Exs.C4,C5, copy of account statement, Ex.C6, copy of legal notice, Ex.C7, postal receipts Exs.C8,C9, copy of reply to legal notice,Ex.C10.
19. The OP No.1 tendered into evidence affidavit of Amit Kumar Raghav, Ex.OPB,  affidavit of Bhupinder Kaushal, Ex.OPC alongwith documents, copy of warranty policy, Ex.OP1, copy of tractor history card, Ex.OP2,Ex.OP3, copy of job card dated 31.3.2015,Ex.OP4, copy of bill detail,Ex.OP5, copy of job card, Ex.OP6, copy of bill detail,Ex.OP7, job card,Ex.OP8, bill detail,Ex.OP9.
20. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
21. The ld. counsel for the complainant has submitted that it is admitted that the complainant has purchased the tractor in question from OP No.2. The payment detail is also admitted by OP No.2. It is also admitted by OP No.2 that there was warranty upto 2000 hours. The complainant has pleaded that the tractor was consuming excess engine oil. Complainant has also placed on record his affidavit and affidavit of one Nazar Khan. The OP has merely pleaded  that the complainant got services from unauthorized service centres i.e. services from other service centre but the warranty will not become void only for this reason particularly when the defect which was from the very beginning. Complainant in legal notice also agitated this matter time and again. Therefore, the deficiency in service on the part of the OPs stands fully proved.
22. On the other hand, the ld. counsel for the OPs has submitted that the complainant has to prove his case by affirmative evidence. The complainant has alleged that he got the service effected as per schedule but he has produced only service slip,Ex.C4 which was at 659 hours on 18.11.2015 and the other service slip is dated 4.5.2016 which was at 1034 hours. There is nothing to show that the complainant ever raised any complaint regarding excess consumption of engine oil. The complainant has also not produced on record any expert evidence to prove manufacturing defect. Manufacturing defect is not held proved only on the basis of mere allegations. OPs have also placed on record job card,Ex.OP4 dated 1.3.2015 which was after 56 hours. There is no complaint of any defect. OP has also placed on record next job card dated 18.11.2015 which was at 659 hours. There is no complaint of any defect. The next job card is dated 4.5.2016 which is after 1034 hours and more than one year after purchase of the tractor. There is no complaint of any sort.
23. Of course, the complainant has pleaded that he also got all the services but complainant has not produced any record to prove any other service schedule. Therefore, the conclusion is that the complainant has failed to prove any manufacturing defect. The OP is not at fault.Complaint is abuse of the process of law. It is liable to be dismissed.
24. We have given careful consideration to the rival submissions.
25. Admittedly the complainant purchased the tractor in question from OP No.2 on 14.1.2015 and OP provided the warranty upto 2000 hours. The warranty is always as per terms and conditions mentioned in the warranty card. The complainant has alleged that there was complaint of excess consumption of engine oil. It is well settled that the complainant has to prove his case by affirmative evidence.
26. Now it has to be seen whether from the evidence produced by the complainant, his case is proved or not.
27. The complainant has tendered into evidence his affidavit and affidavit of one Nazar Khan. In these affidavits they have reiterated the averments as mentioned in the complaint.
28. Complainant has also placed on record as many as 10 documents. Ex.C1 is the invoice which will only prove the purchase of the tractor. Ex.C2 is the photograph of the meter and other parts of the tractor. Ex.C3 is certificate of registration. These documents are not going to prove any defect.
29. Exs.C4 and C5 are the services dated 18.11.2015 and 4.5.2016. Ex.C4 was after running of tractor of 65 hours and Ex.C5 is for service after running of tractor for 1034 hours. These receipts only prove payment of charges of Rs.3870/- and Rs.2890 respectively. They are not going to prove the main averment of the complainant.
30.  Ex.C6 is account statement which will only prove that the complainant availed loan. Ex.C7 is the legal notice. Exs.C8 and C9 are postal receipts and C10 is reply to the legal notice. These documents are also not going to establish any manufacturing defect.
31. Complainant has not produced any complaint made regarding working of the tractor. Complainant has not produced any expert to prove manufacturing defect. OP has placed on record job cards Exs.OP4 dated 31.3.2015, job card Ex.OP6 dated 18.11.2015,  Job card Ex.OP8 dated 4.5.2016 . Job cards Exs.OP4 and OP6 are signed by the complainant and job card, Ex.OP8 signed by his representative. In these job cards also, there is no complaint regarding excess consumption of engine oil.
32. Therefore, the conclusion is that the complainant has failed to prove any manufacturing defect in the tractor. As such no deficiency in service or unfair trade practice can be attributed on the part of the OPs. The complaint is without merit and stands dismissed.
33. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:8.11.2019       

 B.S.Dhaliwal                         Inderjeet Kaur              M. P. Singh Pahwa

       Member                                 Member                                      President