Karnataka

Kolar

CC/71/2018

Mr.Ramakrishnappa - Complainant(s)

Versus

The Manager,International Tractors Ltd - Opp.Party(s)

16 May 2019

ORDER

Date of Filing: 23.08.2018

Date of Order: 16.05.2019

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 16^TH DAY OF MAY 2019

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., PRESIDENT

SMT. A.C. LALITHA, BAL, LLB.,  ……  LADY MEMBER

 

CONSUMER COMPLAINT NO. 71 OF 2018

Mr. Ramakrishnappa,

S/o. Munishamappa,

Aged About 61 Years,

R/at: Hanumanayakanahalli Village,

Kasaba Hobli, Malur Taluk,

Kolar District.

Rep. by Narendra Kumar.R,

(Its Power of attorney Holder.                                   ….  COMPLAINANT.

(Rep. by Sri. M.Munegowda, Advocate)

 

- V/s –

1) The Manager,

International Tractors Ltd.,

Head Office & Plant

Village Chack Gukran Post,

Piplan Wala Hoshirpur,

Jalandhar Road,

Punjab-146022.

(Rep. by Sri. Fayaz Ahamed, Advocate)

 

2) H. Narayanaswamy,

The Managing Director,

Adithya Tractors, Authorized Dealers,

For Sales & Spares & Service,

Near Reliance Petrol Pump,

Bye Pass Road Kolar

Kolar-563 101.

(Exparte)                                                                      …. OPPOSITE PARTIES.

ORDER

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The power of attorney holder of the complainant has filed this complaint against the opposite parties and prays to direct the OPs jointly and severally to provide a new tractor to the complainant or to pay compensation of Rs.18,00,000/-towards harassment, mental agony, loss of agriculture crop and for hiring the tractor for tilting the land to raise the crop and for other agriculture purpose and Rs.25,000/- towards costs and litigation expenses of Rs.1,00,000/- and such other relief as the Forum deems fit in the ends of justice.

02.   The brief facts of the complainant case is that, OP No.1 is the Manager and Manufacturer of SONALIKA international Tractors having its head office in Jalandar, Punjab, OP No.2 is the authorized dealer and seller of the above company tractors at Kolar District and also the Authorized Service center for the tractors manufactured by OP No.1. 

02(a).       The complainant purchased the said “Sonilaka International Tractor” from OP No.2 on exchange basis.  The complainant owned a tractor which was in good condition and upon the instigation of the sales representative of the OP No.2 the complainant was forced to exchange the old vehicle and agreed to buy the brand new vehicle from OP No.2 on 23.02.2017 vide delivery challan 081 dated: 07.02.2017.  The said old vehicle was exchanged and brand new vehicle and was delivered on 23.03.2017.  OP No.2 arranged for financial assistance with one financier Mr. Ravi Kumar who is the proprietor of Shree Equipment Finance Limited.  The OP No.2 handed-over the vehicle and informed to bring the vehicle for 1^st service after utilization of the brand new vehicle for 100 hours.  The complainant utilized the said vehicle for ploughing the land and it was noticed that, the Hydraulic of the vehicle while ploughing the land was not having enough power to plough the land as assured by OP No.2.  The said tractor was not up to the mark of the complainant and the farmer’s utilities.  The same was brought to the notice of OP No.2 within a span of 1^st service.  The complainant brought the vehicle for service center of OP No.2 for 1^st service within 100 hours, but the trouble raised in the vehicle was only within 70 hours.  On 22.03.2017 he brought the vehicle to OP No.2 for service and a job card was prepared with the hydraulic complaint.  The complainant has paid Rs.2,688/- for incidental charges levied by the OP No.2 and OP No.2 has handed-over the vehicle to the complainant. 

02(b).       Again the same problem was found in the vehicle while ploughing the land and same was brought to the notice of OP No.2 and OP No.2 sent some engineers to the spot to inspect the vehicle.  The service engineers have inspected the vehicle and made some minor repairs on 18.07.2017 and raised invoice for Rs.2,913/- and they informed the complainant that, the vehicle is in condition and it can be utilized for ploughing the land.  The complainant started utilizing the vehicle, but to the surprise the vehicle again started giving trouble and the same was informed to OP No.2 and OP No.2 informed that, to bring the vehicle at their service center at Kolar and the said vehicle was brought to Kolar service center of OP No.2 on 15.08.2017 after expiry of 05 months.  The job card show some spare parts were replaced in the said vehicle.  The complainant took the vehicle for his utilization and again the same problem arised in the said vehicle.  The complainant got frustrated about the vehicle for giving trouble with the same problem and was forced to drop the vehicle at the office of the OP No.2 and instructed them to get the vehicle done repair or else to hand over the old vehicle which was utilized by the complainant.  When the complainant left the vehicle with the OP No.2 for service the complainant stopped paying EMIs to the financier and caused mental torture from financer.  The said vehicle was laying with OP No.2, but OP No.2 did not get the vehicle repaired or handed-over the vehicle to the complainant.  The complainant was forced to hire a tractor for rent basis for ploughing the land for rising crops and spent huge amount and caused mental trauma and it amounts to deficiency in service and unfair trade practice.  The OPs could not rectify the defects found in the tractor and they failed to find out the exact defect in the tractor even after giving several complaints and reminders to the OPs and the OPs cheated the complainant by misusing his innocence.  The complainant has sent legal notice to the OPs on 22.09.2017 calling up them to provide a new tractor.  The OP No.2 has replied the notice.  The complainant is deaf and dumb as such he is represented by power of attorney holder and prays to allow the complaint in the ends of justice.

02(c).       The complainant has submitted following 22 documents:-

1. Annexure-A delivery challan number 081, dt: 07.02.2017
2. Annexure-B Cash receipt bearing No:095
3. Annexure-C Job card dated: 22.03.2017
4. Annexure-D Invoice for Rs.2,913/- on 18.07.2017
5. Annexure-E Job card dated: 15.08.2017
6. Annexure-F Copy of the notice issued by the financier
7. Annexure-G Copy of legal notice dt: 22.09.2017
8. Annexure-H Copy of postal acknowledgment & postal receipt
9. Annexure-J Copy of the reply notice
10. Annexure-K power of attorney
11. Job Card dated: 18.07.2017
12. Annexure-L dated: 09.08.2017
13. Annexure-M dated: 16.10.2017
14. Annexure-N dated: 11.11.2017
15. Annexure-O dated: 11.12.2017
16. Annexure-P dated: 09.02.2018
17. Annexure-Q dated: 09.05.2018
18. Annexure-R dated: 07.06.2018
19. Annexure-S dated: 11.07.2018
20. Annexure-T dated: 08.08.2018
21. Annexure-U dated: 08.09.2018
22. Annexure-V dated: 08.10.2018

03.   OP No.1 appeared through his counsel and OP No.2 placed exparte. 

04.   OP No.1 filed version and contended that, he being the manufacturer never deals with customer directly and there is no privity of contract in between the complainant and the said OP.  The OP No.2 is not an agent of OP No.1.  The complainant has not come to the forum with clean hand and he has suppressed the correct and material facts to get wrongful gain.  The tractor in question was purchased for commercial purpose and this Forum has no territorial jurisdiction to try the present complaint.  And so also the complaint is bad for non-joinder of necessary parties and there is no cause of action to file the present complaint against OP No.1.  The financier is necessary party to the present proceedings.  The OP No.1 has specifically contended that, the exchange of old tractor to a new tractor is dealing in between the complainant and OP No.2 and OP No.1 being manufacturer has no concern with the same.  The exchange scheme is given by the dealer to the customer at his own terms and conditions.  As per the information received from OP No.2, the tractor in question was sold to the complainant and denied the rest of the averments made at Para-5 of the complaint and so also totally denied para-6 with respect to working condition of the said tractor.  The complainant at para-5 of the complaint has admitted that, the tractor was delivered in good condition.  This OP No.1 has also denied para-7 about the defect in the hydraulic of the tractor and as per the information received from OP No.2, the tractor in question was brought for 1^st service on 23.03.2017, and at that time the tractor had run 72 hours.  The said hydraulic problem as reported was only due to negligent in using the tractor.  This OP No.1 has also denied Para-8 to 13 and 15 to 22 and submitted that, the 1^st service was due at 50 hours or after one month which is earlier.  As per clause D(c) of the terms and conditions of the warranty period, the tractor which have been subject to misuse, negligence, alteration, accident, any abnormal use or which have been used with parts not manufactured by the ITL, if in the sole judgment of ITL, such affects performance and reliability of tractors” are not covered under the warranty.  The hydraulic problem is caused was only due to negligent use of tractor which were duly attended and all his concerns were duly resolved.  It reveals that, there is no fault in the hydraulic and the customer was educated how to use the hydraulic.  The 2^nd and 3^rd free service of the tractor was done at the door step of complainant on 19.07.2017.  The tractor had run 261 hours and no problem was reported or found in the tractor and there is no defect in the tractor as the tractor has run for 261 hours.  On 15.08.2017 the complainant has given undertaking that, there is no problem in the tractor.  The complainant to avoid the liability of loan installment has intentionally parked the tractor at the premises of OP No.2 and has not taken the delivery of tractor even after various reminders by the dealer and it is the duty of the complainant to take delivery of the tractor after service.  The act of complainant was malafide and prays to direct the complainant to take delivery of the tractor from the jurisdiction of the dealer.  There is no deficiency of service and unfair trade practice or fault by the OP No.1 and also denied that, the complainant has suffered financial loss or mental agony as alleged and so also denied that, the OP has failed to rectify the defects of the tractor or defective tractor was sold to the complainant.  The notice was duly replied stating all the correct facts and there is no deficiency of service on the part of OP No.1 and the complainant is not entitled for any relief as prayed and prays to dismiss the complaint with exemplary costs.

04(a).       The OP No.1 has submitted following 08 documents:-

1. PDI certificate
2. Pre-delivery inspection (PDI) report
3. Tractor delivery report
4. Delivery challan
5. Installation certificate
6. Job card in No.3
7. Grahaka Santhrupthi pattra
8. Reply notice

05.   On 29.11.2018 the power of attorney holder of the complainant has filed affidavit evidence by way of examination-in-chief.  On 05.02.2019 One Sri. Jayaram @ Jayaramappa working as Mechanic at Maruthi Badevane, Malur Town, has filed affidavit evidence to support the case of the complainant.  On 03.01.2019 one Sri. Rajnish Kumar Sandal, and authorized person to OP No.1 has filed his affidavit evidence on behalf of OP No.1. 

06.   On 25.03.2019 counsel appearing for complainant has submitted written arguments.  On 27.03.2019 counsel for complainant has submitted a Memo with letter dated: 27.12.2017 written by Adithya Tractors.  On 01.04.2019 counsel for complainant has submitted Memo with two photographs pertaining to the tractor. 

07.   On 01.04.2019 counsel for OP No.1 has submitted written arguments with 07 citations as follows:-

(i) R.P. Ns.3845, 3846 of 2006 by Hon’ble National Commission, New Delhi.

(ii) R.P. No.4588 of 2008 by Hon’ble Hon’ble National Commission, New Delhi.

(iii) R.P. No.3171 of 2005 by Hon’ble National Commission, New Delhi.

(iv) R.P. Nos.274 & 375 of 2005 by Hon’ble National Commission, New Delhi.

(v) First Appeal Nos.1304 & 1662 of 2005, by Hon’ble Haryana State Commission, Panchkula.

(vi) First Appeal of Hon’ble National Commission, New Delhi between Jet Airways (I) Ltd v/s Ethelwad O. Mendes

(vii) R.P. No.3171 of 2005 by Hon’ble National Commission, New Delhi.

08.   Heard arguments on behalf of both complainant and OP No.1.

09.   Now the points that do arise for our consideration are that:-

(1) Whether the complainant has made out deficiency of service on the part of OPs?

 

(2) Whether the complainant is entitled for the reliefs as prayed in the complaint?

 

(3) What order?

 

10.   Our findings on the above stated points are:-

POINT (1) & (2):-      In the Negative

       

POINT (3):-      As per the final order

for the following:-

REASONS

11.   POINTS (1) & (2):-

These points are taken up together for discussion to avoid repetition of facts and reasonings.  We have perused the complaint, version, affidavit evidence and documents produced by both complainant and OP No.1.  The complainant has filed this complaint to direct the OPs jointly and severally to provide a new tractor to the complainant or to pay compensation of Rs.18,00,000/-towards harassment, mental agony, loss of agriculture crop and for hiring the tractor for tilting the land to raise the crop and for other agriculture purpose and Rs.25,000/- towards costs and litigation expenses of Rs.1,00,000/- and such other relief as the Forum deems fit.

12.   The complainant has purchased the Sonalika International Tractor from OP No.2 on exchange basis of his old tractor and to that effect he has produced delivery challan and cash receipt dated: 07.02.2017 as per Annexure-A & B respectively.  The said vehicle was financed with Srei Equipment Finance Limited.  The OP No.2 without telling any information nor educating the complainant about the terms and conditions of the finance and about the vehicle handed-over the vehicle and informed to bring the vehicle for 1^st service after utilization of 100 hours.  But to support the said fact the complainant has not produced any documents.  To support the case of the complainant he has produced documents as per Annexure-A to K as per the list dated: 23.08.2018.  Power of attorney as per Memo dated: 16.02.2019 and list of documents dated: 06.12.2018 as per Annexure-L to V.  The complainant has narrated about the hydraulic problem in the alleged vehicle and the said vehicle is not having enough power to plough the land and not up to the mark and there is a manufacturing defect in the said vehicle.  The said hydraulic problem was brought to the notice of OP No.2 within a span of 1^st service i.e., 100 hours and the problems was arose within 70 hours.  On 22.03.2017 the complainant left the vehicle with OP No.2 for service as per Annexure-C. 

13.   On perusal of Annexure-C Job-card, the complainant complaining about the hydraulic problem, Draft lever not operating from starting, not going depth with implement in field, the Foreman observation is that, we open the sensor tube assy observed RE tighten and replace gasket, then to satisfy the customer again open rear cover assy, check for any failure adjustments, nothing faults found, trail taken, educate the customer for implement total height, mast HEIG and it also reveals about Hydraulic repair.  Again the said problem arise and complainant contacted OP No.2 and OP No.2 sent some engineers to the spot to inspect the vehicle and service engineers inspected the vehicle and made some minor repairs as per Annexure-D and informed the complainant that, the vehicle is in condition and can be utilized for ploughing.  Again same problem arise while ploughing and complainant informed the same to OP No.2 and OP No.2 informed the complainant to get the vehicle to the service center at Kolar and the vehicle was brought to Kolar on 15.08.2017 as per Annexure-E.  On perusal of Annexure-E Job-card, it reveals that, the tractor in on 09.08.2017 and work started on 15.08.2017 and job-card is dated: 10.08.2017 and tractor out on 15.08.2017 with defect of Hydraulic problem/defect of Hyd. Lift dropping, Action Taken: Replaced to new link draft and tension spring.  On perusal of the above said job-cards the OP No.2 did his work whenever the tractor was left for service.

14.   OP No.1 has specifically taken up the contention in his reply to the notice given by the complainant and so also in the version and in the evidence that, as per the information received from Op No.2 the tractor in question was brought for 1^st service on 23.03.2017, the tractor had run 72 hours and the hydraulic problem was due to negligent use of the tractor and the same was duly solved and the complainant was educated how to use the said system.  The first service was due at 50 hours or after 01 month whichever is earlier and the warranty is given as per the terms and conditions as per Clause-D(c) “the tractors, which have been subject to misuse, negligence, alteration, accident, any abnormal use and which have been used with parts not manufactured by the ITL, if in the sole judgment of ITL, such affects performance and reliability of tractors” are not covered under warranty.  And further as per the information received from OP No.2, 3^rd service of the tractor was done at the door step of the complainant on 19.07.2017 the tractor had run 261 hours and no problem was reported in the tractor and if any problem found in the tractor the same could not have been run 261 hours and there is no defect in the tractor.  The complainant gave undertaking dated: 15.08.2017, that there is no problem in the said tractor and OP No.2 has also produced the said letter given by the owner of the alleged vehicle dated: 15.08.2017 wherein the customer has clearly stated that, the engineers of OP No.2 have inspected the vehicle at the land of the complainant and all the defects were cleared and there is no any defect in the said alleged tractor and the service rendered by the OP No.2 service engineers is also satisfactory.  On perusal of these facts it clearly reveals that, there is no manufacturing defect in the alleged vehicle and there is no deficiency of service on the part of the OPs.

15.   In support of the complainant case he has examined the mechanic and he has filed the affidavit evidence, but to support his evidence has not produced any document to show that, he is an expertized mechanic and he is also not stated about his qualification in doing the said work and not produced expert document to support his evidence.  Hence the said evidence of the mechanic Mr. Jayaramappa is not helpful for the complainant to show any manufacturing defect in the alleged vehicle and any amount of evidence given by the said mechanic is not acceptable and it goes in vain and the complainant has not proved manufacturing defect as alleged by him. 

16.   Further it is relevant to state here that, the complainant has left the vehicle with the OP No.2, in that regard OP No.1 has contended that, the complainant with ulterior motive and to avoid liability of loan installment has intentionally parked the tractor at the premises of OP No.2 and had not taken delivery of the tractor even after various reminders sent by the dealer.  To support the said fact the OP No.1 has produced document dated: 27.12.2017 addressed to the complainant to take back the vehicle from OP No.2 show-room failing which the complainant is liable to pay demurrage charges.  On perusal of the said fact it clearly goes to show that, the complainant has abandoned the vehicle and is due to negligent and disadvantage of the complainant and the said vehicle would be deteriorated.

17.   Further there is no cause of action arise with respect to deficiency of service on the part of the OPs.  The cause of action arose only when the complainant took delivery of the vehicle to know about any defect.  But the complainant has filed this Consumer Complaint on 27.08.2018 and as on that date there is no any cause of action arise as the complainant has left the said vehicle with the OP No.2 since from 27.12.2017 and no cause of action arise for deficiency of service.  The cause of action means, action for which OP is answerable.  The cause of action must discloses the deficiency in service i.e., right to sue and the right of immediate occasion for the action.  But here in this case, right to sue of the immediate occasion for cause of action arises only on taking delivery of the vehicle.  Hence here in this case on hand the complainant has not taken delivery of the alleged vehicle as on the date of filing of the Consumer Complaint and filed the complaint with ulterior motive hence the complainant is not entitled for any relief.  The complaint filed by the complainant is pre-mature and is not maintainable.  Hence under these circumstances as discussed above we answer Point Nos.1 & 2 are in the Negative

 

18.   POINT (3):-

In view of our findings on Point Nos.1 & 2 and the discussion made thereon, we proceed to pass the following:-

 

 

 

ORDER

01.   The complaint filed by the complainant is hereby dismissed.  No order as to costs.

02.   Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 16^th DAY OF MAY 2019)

 

 

 

   LADY MEMBER                            PRESIDENT