Sri A.K.Patra,President

 ORDER

1.   This Complaint is filed by the complainant named above inter alia alleging manufacture defect there with the machine/harvester purchased from the Op 2   being manufactured by OP 1 and further alleged deficiency in service & unfair trade practice on the part of the Ops for non providing of after sale services.
2. The complainant seeks for an order directing the OPs to refund the cost of the machine i.e Rs.20,50,000/-  along with interest @18% interest from 20.04.2022 i.e the date when the complainant’s harvester stop functioning, till the final realization of the said amount and, further to  direct the Op 1 to pay a sum of  Rs.2,00, 000/-  as  compensation towards mental agony caused due to non respond of his grievance & towards loss of  his livelihood and, further prayed to pass an order directing the OP 2 to pay a sum of Rs.1,00,000/- compensation towards mental agony suffered due to deficiency in rendering service to the complainant and to award Rs.30,000/- towards litigation cost and further pray for all other reliefs as the Hon’ble Commission may deem fit & proper in the interest of justice, equity and good consciences.
3.   The brief facts as emerged from the complaint petition and documents filed herewith giving rise to the present complainant are that, on dt. 4.6.2021 the complainant, to earn his livelihood, has purchased one Zoomlion Combine Harvester(FH88HP) from the OP 2 paying the cost price of  Rs.20,50,000/-.The OP2 is  the  authorized  dealer of OP 1. The subject machine is manufactured by OP 1 .It was used only during seasonal period. On 28.12.2021 the complainant did his first servicing of  the subject harvesters with the OP 2.At that  time the harvester had run up to 305 hours only and thereafter periodical use of 380 hours on dt. 20.4.2022 the harvester stop functioning all of a sudden for which it was taken to the service centre of OP 2 where the technician of OP 2 found that, there are some serious manufacturing defect in small belt pulley, second horizontal auger, break, drive sprocket, gear pump, left side tension wheel damage and hydraulic damage. Finding such manufacturing defect the complainant asked the OP 2 to replace the harvester upon which the OP 2 expressed his inability to make any replacement & further expressed his inability to repair the harvester saying that, no spare parts is available with him. Matter of which was lodged before the OP 1 through its helpline number asking replacement of the defective harvester with new one but no avail. The representative of OP 1 advised the complainant to take help from the local dealer/OP2. When the OP 1 paid no heeds to redress the grievance of the complainant and the OP 2 dealer did not provide any service saying non availability of spare parts of the subject machine with him and that, the OP 2 has already closed the service centre by shutting down the   show Complainant became hopeless and took shelter of this Commission with this complaint.
4. To substantiate his claim the complainant has relied and filed  the self attested true copy of the following documents:-

1. Tax Invoice No.GECO/21-22/030 dt.4.6.2021 for an amount of Rs.20,50,000/- issued by the Ganpati Engineering Co. Bhawanipatna.
2. 2^nd Periodical Maintenance details dt.28.12.2021
3. Job Card issued by the OP 2 dt.21.4.20222
4. The averment of the complaint petition is supported by an affidavit of the complainant

5. On being notice, the O.P No.1 appeared through their authorized representative Sri. Deepak S Gosavi and filed written version denying manufactured defects of the subject Harvester Machine .It is further contents that, the OP1, for the first time, came to know the grievance of the complainant only on received of the notice along with the complaint petition of this case. It is stated that, the OP1 has not directly dealt with the complainant regarding transaction of the subject Harvester Machine and related issues, since the authorized dealer/OP2 has been properly appointed for dealing, selling and after sale services of the Harvester Machine sold to the complainant. If the machine could have Properly used as per user manual & instructions of operation, there would not be any problems / damage of parts of the subject machine .The complaint of the customer regarding not functioning of the Harvester has to be scrutinized properly by the dealer/Op2 so also it is the duty of the dealer to replace the defective/damaged part during warranty period and to provide after sale service regularly to the satisfaction of the customers. However , when OP1 along with Authorised Delear /OP2 has inquired the matter and noticed that, the complainant has failed to follow the prescribed rules  regulations  the manual book and run the machine without following the manual book and without replacing the parts within the prescribed time limit and that ,it is only due to negligence on the part of the complainant ,the vehicle suffered trouble and that, there is no delay or deficient service on the part of the manufacture and/or Dealer in any way . It is further submitted that, at the time of purchase of the subject Harvester, it was properly explained to every customers that, the spare parts of the Harvester are required to be imported from China and hence, there might be delay in receiving the consignment of the goods at the factory premises, or with the Dealer (Show Room) for any unavoidable reason. In the period from November 2021, there is a slowdown in China manufacturing unit due to spread of CIVID third wave and, due to such situation; the consignment of most of the orders placed by this OP1 from China has been stuck. Still, the OP1 is continuously making efforts through the dealers’ net-work to provide un-interrupted services to all their customers. This complaint is preferred only due to miscommunication /gap in communication between the complainants and there is nothing deficient service or unfair trade practice on the part of the Ops as such this complaint need to be dismissed with cost.
6. The Op 2 appeared through their learned counsel Sri. Rabindra Kumar Naik and filed his written version admitting the facts that, he is the dealer of subject Harvester Machine sold  to the complainant and, further admitted the facts that, there were serious manufacturing defects in the complainant’s Harvester as pointed out in his pleading but the OP2 is neither a manufacturer of the subject Harvester nor  have  any right to replace it .And regarding the spare parts of the subject Harvester ,the OP2 submits that, it is an obvious thing that all the spare parts of a harvester cannot be made available with every dealer at every point of time .Further the OP2 suggested the complainant to wait for some time as he would ask the company to send spare parts and engineer to inspect the root cause of the defects, But the complainant was very impatient. It is further submitted that, due to shortage of spare parts, complainant become impatience and, due to none cooperation from the OP1, this OP2 could not reach to a solution and, for this, the OP2 cannot be held liable and that, the OP2 is no more a dealer and has shut down the show room & service station and hence, he cannot be held answerable. Moreover, on the date of filling of this complaint, the OP2 had no dealership of the OP1 and, for allegation of manufacturing defects in the subject harvester machine , the OP2, who is a mere dealer of OP1, cannot held liable.
7. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before this Commission are that :-Whether the subject Harvester Machine being manufactured by the OP 1 is sold by the Op 2 to the complainant suffered any manufactured defects? Whether the Ops are deficient service & indulged in unfair trade practice causing injuries to the complainant? Whether this complainant is maintainable?  And, whether the complainant is entitled for the relief(s) as claimed?
8. The complainant as well as the Ops has led their evidence on affidavit as prescribed under C.P.Act averment of which are corroborating with their respective pleadings are taken in consideration.
9. Heard. Perused the material on record. We have our thoughtful consideration to the submission of rival parties.
10. It is not disputed that, the Op 2(two) is the authorized dealer of Op 1(one) .It is also not disputed that, on dt. 4.6.2021 the complainant has purchased one Zoomlion Combine Harvester(FH88HP) worth of Rs.20,50,000/- from the OP 2 being manufactured by the Op1.
11. The op 2 has admitted the facts that, there were serious manufacturing defects in the complainant’s Harvester as pointed out by the complainant in his pleading but the OP2 has no right to replace it. It is further admitted by the Op2 that, all the spare parts of a harvester cannot be made available with him. The Op 2 also admitted that, due to shortage of spare parts, complainant become impatience and, further admitted that, he is no more a dealer and that, he has shut down the show room & service center which clearly proved that, the Op2 expressed his inability to replaced it with new one or repaired it to make it running.
12. Nothing placed on record to hold that, on receiving of the grievance of the complainant, the ops has ever deputed any expert / engineer to inspect the root cause of the defects or have ever taken any steps to repaired the subject Harvester rather, the Op2 has admitted the facts that, he has closed the service center & shut down the show room of subject Harvester Machine.
13. Here in this case, it is proved on admission that, the Op 2 has sold a defective harvester /product being manufactured by Op 1 which got damaged just after using of 380 hours. It is also proved that, the Op2 being the authorized dealer & service center has failed to provide after sale services .So also proved on admission that, the Op2 has shut down the show room & service station for which the subject Harvester could not be repaired .Accordingly this Commission safely hold deficient services & unfair trade practice there on the part of the Op 2 certainly caused loss of earning & mental agony to the complainant cannot be denied.
14. It is not disputed that, the Op 2 has sold the product of OP 1 to the complainant as such, it is the bounden duty of the OPs jointly to provide after sale service & to rectify the defects and/or to replace the defective product with new one free from defects without charging any extra price but it is proved on admission that, the Ops failed to remove the defects of the subject machine & also failed to replace the same with new one free from defects.
15. The Op 1 has submitted that, when OP1 along with Authorised Delear /OP2 has inquired the matter and noticed that, the complainant has failed to follow the prescribed rules  regulations  the manual book and run the machine without following the manual book and without replacing the parts within the prescribed time limit and that ,it is only due to negligence on the part of the complainant ,the vehicle suffered trouble and that, there is no delay or deficient service on the part of the manufacture and/or Dealer in any way but no such inquiry report is placed on record for perusal . The Ops failed to prove any negligence /mishandling of the subject machine while it was using.  Rather, the Op 2 has admitted the facts that, there were serious manufacturing defects in the complainant’s Harvester clearly proved the inherent manufacturing defect of the goods/machine  and, it is further proved  on admission that ,  the Ops have failed to rectify the defects debarred  the complainant  for further use of the goods/Harvester to earn his lively hood .The   Op2 has left the  dealership of the OP1 so also he has  shut down the show room & service station without redressing the grievance of the complainant squarely proved deficient service & unfair trade practice on the part of Ops .
16. It is seen that, when the request for replacement of the defective Harvester with new one is denied by the Ops so also spare part of the subject machine is not made available for repairing of the subject goods and the Op 2 failed to provide after sale service to the Complainant squarely  proved deficient service & unfair trade practice on the part of Ops, and finding no other option, the complainant has approached this Commission for redressal of his grievance as such we are of the opinion that, there is sufficient cause to present this complaint within the jurisdiction of this Commission where the complainant is residing and this complaint is well maintainable under C.P.Act 2019 . 
17. It is not disputed that, the complainant has purchased the subject product/Harvester from the OP2  paying the cost  price of Rs 20,50,000/-  for his personal use & to earn his livelihood keeping faith upon the local dealer/Op2. The wish of use of the subject Harvester Machine is defeated as it suffered manufactured defects & got damage just after use of 380 hours only and could not get it repaired for further used. The complainant got frustrated cannot be denied.  The  Op2 is no more a dealer and has shut down the show room & service center as such there is no chance of replacement of subject  defective Harvester with a new one of defect free without charging extra price so also there is no chance of availability of spare part of subject Harvester to get it repaired  which certainly caused financial loss & mental agony to the complainant cannot be denied as such we are of the opinion that,  the complainant is entitle  to be compensated by the OPs and the Ops are jointly liable to  return back the sale price of the said  Harvester Machine with interest @12% P.A  subject to deducting depreciation cost  @ 25 % of cost price to the complainant within a stipulated time period .  Further the complainant is entitled for award of litigation cost of not less than Rs 10,000/-& compensation of minimum Rs. 2,00,000/-towards mental agony which  may heal the injuries to some extent ,though it cannot be assessed  in terms of  money .
18. Based on above discussion this complaint is allowed in part on contest against the Ops with the following directions;-.

                                                                                           ORDER

  The Opposite Party No.2(two)  is here by directed to  return the cost price of subject Harvester Machine i.e. Rs. 20,50,000/- with interest @12% P.A from the date of filling of this complainant till its actual payment subject to deducting depreciation cost  @ 25 % to the complainant.

Further the Op1(one) & Op 2(two)  are directed to pay  monetary  compensation of minimum Rs.1,00,000/-(one lakh) each  towards mental agony suffered  and, to pay Rs10,000/- each towards cost of this litigation to the complainant.

The O.P No.2 is at liberty to recover the cost of the subject Harvester /machine, payable to the complainant, from the O.P. No.1 at his own cost and repossess the subject Harvest Machine from the complainant after compliance of this order.

It is further directed to comply the aforesaid order within four weeks from the date of receipt of a copy of this order falling which the Ops will be jointly liable to pay additional Rs.500/-(five hundred ) each per day as delayed compensation to the complainant till compliance of this order.

              Dictated and corrected by me.

                      Sd/-

                President

                                  I   agree.

                                                                 Sd/-

                                                                 Member   

 Pronounced, in the open Commission today on this 17^th  October  2024 under the seal and signature of this Commission.

The pending application if any is also stands disposed off accordingly. Judgment could not be pronounced on time in want of quorum. 

The judgment/order be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet  to treat the same as copy of the order received from this Commission . Ordered accordingly.