Haryana

Kurukshetra

198/2017

Kuldeep Kaur - Complainant(s)

Versus

Zimidara Tractor - Opp.Party(s)

Raghuvinder Singh

21 Aug 2019

ORDER

 

BEFORE THE  DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

 

Complaint No. 198 of 2017.

Date of instt. 20.09.2017.

                                                                        Date of Decision: 21.08.2019.

 

Kuldeep Kaur wife of Shri Satvinder Singh, r/o House No.190, Thol Road, village Mandheri, District Kurukshetra

 

                                                                ……….Complainant.      

                        Versus

 

1. M/s Zimidara Tractors, New Grain Market Road, Shahabad (M), Tehsil Shahabad, District Kurukshetra through its proprietor.
2. M/s International Tractor Ltd. Hoshiarpur, District Hoshiarpur (Punjab) through its Managing Director/Manager.  

 

    ..………Opposite parties.

 

       Complaint under section 12 of Consumer Protection Act.            

 

Before       Smt. Neelam Kashyap, President.    

                Ms. Neelam, Member. 

                Sh. Sunil Mohan Trikha, Member                                          

Present:     Sh. Radhuvinder, Advocate for complainant.  

 Sh. Gurdev Singh Chatha, Advocate for opposite party no.1.

 Sh. S.S.Saini, Advocate for Opposite party no.2.

 

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Kuldeep kaur against M/s Zimidara Tractors and another, the opposite parties.

2.             It is stated in the complaint that complainant purchased a new Sonalika Tractor Model D1-750 III DCOIB (PS) bearing Chassis No.GZZDT 63955853, Engine No.4100EL73D634373 F16 bearing registration No.HR-78B-9381 from Op No.1 vide Bill No.89 amounting to Rs.6,00,000/- on 4.5.2017 and the OP No.2 is the manufacturer of the said tractor. It is further stated that the vehicle is being used by him for domestic use and under proper care and caution. After few days of purchase of the tractor, the rear tyres were damaged and the alternator was not working with the Battery, which appeared to be manufacturing defect. It is further alleged that he approached OP No.1 from whom the Tractor in question was purchased and told about the damage of rear tyres and the problem in the alternator and they told that they will discuss the matter with the manufacturer of the tractor i.e Op No.2.  It is further alleged that after waiting for sufficient time, the complainant again visited Op No.1, but they prolonged the matter on one pretext or the other. Thereafter, complainant made complaint to Op No.2 through Email. He has not inspected/checked the tyre properly nor checked the alternator, which was also defective. It is further submitted that complainant has approached to the ops many times but to no avail. That the ops are harassing the complainant intentionally and thus there is deficiency in service on the part of ops towards the complainant. Hence, this complaint.

3.             On notice, opposite parties No.1 and 2 appeared. Op no.1 filed reply and denied all the contents of the complainant. Op No.2 filed reply and certain preliminary objections regarding maintainability, no cause of action, complaint is bad for mis joinder of parties as dispute, if any is between the complainant and op no.2 and answering op has no concern with it and that no cause of action has been arisen in favour of complainant within the territorial jurisdiction of this Forum. On merits, the contents of the complaint were reiterated and denied all the averments. Prayer for dismissal of the complaint was made.

5.             The learned counsel for complainant has tendered affidavit Ex.CW1/A and documents Ex. C-1 to Ex. C-2 and closed his evidence. Learned counsel for Ops has tendered affidavit Ex.RW1/A, Ex.RW2/A and documents Ex.R-1 to R-7 and closed their evidence.

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

8.             The counsel for the complainant contended that the complainant had purchased Sonalika Tractor on 04.05.2017 amounting to Rs.6,00,000/- the bill of this Tractor is Ex.C-1. The counsel of the complainant again contended that after few days of purchase a tyre of the Tractor were damaged and the alternator was not working with the Battery, which appeared to be manufacturing defects. The complainant approached the Ops but Ops refuse to solve the problem of the complainant and replace the damage tyre and defective alternator. He has also relied upon judgment reported as Sales Manager, Bandewar Tractors, M.I.D.C. Area, Osmanabad, Dist. Osmanabad Vs. Baburao Shahurao Kharate, R/o Bhogaji, Tq. Kalamb, Dist.  Osmanabad decided on 29.11.2013 (Maharashtra State Consumer Dispute Redressal Commission, Mumbai, Circuit Bench at Aurangabad).

9.                The counsel of the Op No.1 argued that he is only dealer of the Sonalika agency he is not liable for the damaged tyre and defective alternator.

10.            The counsel for the Op No.2 argued that this Forum has not jurisdiction to try this suit/complaint and it is admitted fact that complainant had purchased Sonalika Tractor from Op No.1 but denied other allegations. The counsel for the complainant argued that after receiving the complaint the Company has appointed one person as surveyor. The report of that surveyor is Ex.R-4 and photographs of tyre are Ex.R-5 to Ex.R-7. Report of surveyor is Ex.R-4 in which surveyor have given reason for defective tyre as under:-

“As explained by our Service Engineer during the joint inspection, this tyre seems to have failed not due to any manufacturing defect of the tyre. QA detailed inspection report of our Service Engineer is attached for your perusal. Tread chipping due to bad terrain or due to high speed operation on hard surface leading to excessive tearing force at the tread area”.

11.            The counsel of the OP No.2 again argued that the OP No.2 is not responsible for manufacturer defect of Tractor if any. If there is any defect in tyres the tyre Company is responsible for that which is mentioned in Ex.R-2. There is no manufacturer defect in the alternator also. Ld. Counsel for the Op No.2 placed reliance upon the case law cited in (National Consumer Disputes Redressal Commission, New Delhi) titled as Suresh Chand jain Vs. Service Engineer and Sales Supervisor, M.R.F.Ltd. & Another, decided on 16^th December, 2010.

 

12.            It is clear on perusal of file that the complainant had purchased the said vehicle on 04.05.2017 and report of defective tyre is on 12.07.2017 which shows that the tyre of aforesaid vehicle is defective from the very beginning. We relying upon the citation Sales Manager, Bandewar Tractors, M.I.D.C. Area, Osmanabad, Dist. Osmanabad Vs. Baburao Shahurao Kharate, R/o Bhogaji, Tq. Kalamb, Dist.  Osmanabad (Supra) has held as under:-

          “That on 30.07.2007 when the tractor was carrying sand, the big tyre of the head of the tractor was punctured. That, while repairing the said tyre it was found that there were patches from the inner side. Complainant therefore realized that it was defective and bogus tyre. He immediately informed the said fact to the opponent who is authorized representative to inspect the said tyre. Accordingly, the representative of the opponent inspected the tyre and also taken photographs of the same. It was contended that opponent had assured him to replace the said tyre by new one. However, on 09.08.2007 opponent informed him that since there was no manufacturing defect it cannot be replaced, which was shocking to him. Complainant contended that he could not use the said tractor for 35 days. Finally he had to purchase the new tyre on his own which cost him Rs.14,000/- and he had to sustain loss of income of Rs.20,000/-. That the entire family’s livelihood depended on the income from the said tractor. Complainant therefore issued legal notice dated 14.12.2007 to the opponent demanding compensation towards loss of his income and also cost of the tyre. However, although notice was received the opponent had neglected the same and therefore the complainant filed present complaint before the District Consumer Forum seeking direction to the opponent to pay to the complainant a compensation of Rs.20,000/- towards loss of his income, Rs.14,000/- towards cost of the tyre, Rs. 5,000/- towards mental torture and Rs.2,000/- as cost of the complaint”. 

          District Consumer Forum after going through the papers and hearing the parties partly allowed the complaint. It is held by District Consumer Forum that although the tractor was new, the tyre of the said tractor had found patches and hence the same was defective. Therefore complainant had to spend Rs.14,000/- for purchase of new tyre within a period of six months. District Consumer Forum relying on ratio given in the judgment and order passed by National Commission in R.P.586/2008 in case of “M/s Shukla Automobiles Vs. Sudhi Sambhaji Maske & Other” concluded that even if the tyre company was not made party to the dispute, it is the opponent who is responsible to compensate the loss of complainant. Accordingly District Consumer Forum after considering the use of said tyre for six months was allowed depreciated cost of 20% @ the cost of the new tyre i.e 20% Rs.14,000/- and accordingly awarded the net amount of compensation of Rs.11,200/-.

        Ops have filed appeal against the order of the District Forum the State Commission dismissed appeal relying upon the National Commission case.

        “Revision Petition No.586/08 by the Hon’ble National Commission which is relied on by the District Consumer Forum, it is the opponent from whom the tractor is purchased by the complainant is responsible and liable for any defects in the said tractor during the warranty period.” This case law is fully applicable in this case. Ops had supplied Sonalika Tractor with defective tyres and defective alternator clearly amounts to deficiency in service and unfair trade practice on the part of OP No.2. The case law submitted by Ops is correct but not applicable in this case, because every case is different.

13.         In view of the above, we allow the present complaint against Op No.2 and direct the opposite party No.2 to replace the tyres and replace the alternator of tractor within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual. We further direct the OP No.2 to pay a sum of Rs.10,000/- as compensation for harassment and litigation expenses to the complainant. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.  

Announced in open Forum:

Dt.:21.08.2019.                                                   (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),           (Neelam)       

Member                             Member.