Sri A.K.Patra,President

 ORDER

1.   This Complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of the Ops for not providing of after sale services.
2. The complainant seeks for an order directing the OP 1  to refund the sale price of  Rs.20,50,000/-of the product along with interest @18% p.a from 21.03.2022(the date when the complainant’s harvester stopped functioning) till the final realization of said amount and, to pay compensation of Rs.2,00,000/-towards financial loss & mental agony  suffered due  to deficient service & unfair trade practice and, directing the OP2 to pay a sum of Rs.1,00,000/- 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 & good consciences.
3.   The brief facts as emerged from the complaint petition and documents filed herewith giving rise to present this complainant are that, on dt. 14/10/2022, the complainant has purchased one Zoomlion Combine Harvester (FH88HP) from the OP 2 paying the cost price of  Rs.20,50,000/-vide Invoice/ Bill No. GECO/21-22/101 dt.14/10/2021 for his personal use & to earn his livelihood. OP2 is the authorized dealer of OP 1. The subject machine is manufactured by OP1. The complainant did first service of the subject Harvester with OP2 on dt. 14.12.2021 .At that time subject Harvester had run up to 307 hour. There after it was periodically   used  up to  370 hours but unfortunately, on dt. 21.03.2021  subject harvester stop functioning for which it was taken to the service center of the OP2 on 23.03.2022.It is further submitted that, the engine of the subject harvester used to get seized every time when it was used to escalate. During inspection of the subject harvester/ vehicle at the service center of the OP2, the technician of OP2 found that, there are some serious manufacturing defects such as, two numbers of Bridge stone rubber drawler damaged, two numbers of tension damaged ,sprocket(driver damaged, Four numbers of thrust wheel  damaged, Finding such manufacturing defects, when the complainant asked the OP 2 to replace the subject harvester ,the OP2 expressed his inability to do so as he has no authority to make any replacement so also, the Op 2(two) expressed his inability to repair the harvester as no spare parts of the subject harvester is available with him and advised to lodged complainant before the OP1.Accordingly.the   complainant made a complainant to the Op 1 in the toll free help line  but  could not get positive result .Rather, the representative of the OP1 asked the complainant to take shelter of the OP2/the authorized dialer but the OP2 pay no heeds  .The Op2 has already closed his showroom & not functioning the service center. As the the Ops failed to provide after sale service for which the Harvester remain unused during warranty period caused financial loss & mental agony to the complainant. Hence, 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/21-22/101  dt.14/10/2021 for an amount of Rs.20,50,000/- issued by the OP2/Ganpati Engineering Co. Bhawanipatna towards  purchase of subject Harvester .
2. Copy 2^nd periodical maintenance details dt.14.12.2022.
3. Job card issued by OP2 dt.23.03.2022. 

5. On being notice, the O.P No.1(one)  appeared through their authorized representative Sri. Deepak S Gosavi and filed their written version denying manufactured defects of the subject Harvester Machine .It is further submitted  that, the OP1, for the first time, came to know the grievance of the complainant only on receiving  of the notice with the complaint petition of this case. 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 Authorized Dealer /OP2 has inquired the matter and noticed that, the complainant has failed to follow the prescribed rules regulations given in the manual book. The complainant has 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 . The complainant has already used the harvester for 370 hours which could not be possible if there were any manufacturing defects. It is further submits that such a long hour of use of harvesting i.e equivalent to harvesting of more than 350 acres of land with a short span of time so also the complainant has admitted the facts that he has purchased the harvester on 14.10.2021 and got its first servicing on dt. 14/12/2021 when the harvester was already run 307 hours within 59 days clearly proved that, complainant has used the harvester for commercial purpose and suppressed this facts stating falsehood that, it is purchased for his personal use to earn his livelihood . 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 2022, there is a slowdown in China manufacturing unit due to spread of COVID 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 of between the complainants & Ops and that, 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 their written version admitting the facts that, OP 2 is the authorized dealer of Op1 and that, OP2 has sold the subject Harvester to the complainant . It is further stated that, although it is a facts that,  there were serious manufacturing defects with the subject harvester sold to the complainant as pleaded but the op2 is neither the manufacturer nor have any right to replace the subject harvester . And regarding the spare parts, the OP 2 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.  The  OP2 suggests the complainant to wait for some time as he would asked the company to send spare part and engineer to inspect the root cause of the defects there with the subject harvester but the complainant became very impatient. It is further submitted that, the grievance of the complainant has already communicated to the OP1 but no response is received. The OP2 has admitted the facts that, he has shut down the showroom and service station of the OP1 and he cannot be held answerable for any defects arose with the subject harvester. Moreover ,as on date of filling of this complaint ,the OP2 had no dealership of the OP1 and that, for alleged manufacturing defects with the subject harvester the op2, who is no more a dealer of the OP 1 Cannot be held liable as such this complainant is not maintainable for mis-jointer of party.
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:- (i) Whether the complainant is the consumer of the Ops? (ii) Whether there is any manufacture defects with the purchased goods/Harvester? (iii)Whether the Ops are deficient service & indulged in unfair trade practice causing injuries to the complainant? (iv) Whether there is any cause of action arose to present this complaint and, (v) whether this complaint is maintainable under C.P.Act 2019 before this Commission and, (vi).  Whether the complainant is entitled for the relief(s) as claimed?
8. The complainant as well as the Op No 1(one) & 2(two)  led their evidence on affidavit as prescribed under C.P.Act 2019,  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. Here in this case, 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. 14/10/2021  the complainant purchased one Zoomlion Combine Harvester(FH88HP) worth of Rs.20,50,000/- from the OP 2/ Ganpati Engineering Co. Bhawanipatna vide Tax Invoice No.GECO/21-22/101 dt.14/10/21and not disputed that, Op 1 is the manufacturer of subject Harvester. As such, this Commission may safely conclude that, the complainant is the consumer of the Ops. Issue No.I answered positively.
11. The Op2 has admitted the facts that, there were serious manufacturing defects in the complainant’s Harvester as pointed out by the complainant in his pleading and further submits that, the OP2 has no right to replace it. On the other hand, the complainant has admitted the facts that, he did first service of the subject Harvester with OP2 on dt. 14.12.2021 and, at that time subject Harvester had run up to 307 hour. The complainant has admitted the facts that, he has already used the harvester for 370 hours but unfortunately, on dt. 21.03.2022  subject harvester stops functioning for which it was taken to the service center of the OP2 for repairing  does not suggest any manufacturing defects as pleaded .No authenticate opinion of any export is placed on record to prove manufacture defects there with the  subject harvester. As such this Commission is unable to hold any manufacture defects there with the subject harvester as alleged. Issue No. II answered accordingly.
12. The Op 1 has submitted that, when OP1 along with Authorized Dealer /OP2 has inquired the matter and noticed that, the complainant has failed to follow the prescribed rules  & regulations  of the manual book and run the machine 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. We found no such inquiry report placed on record for our perusal. The Ops failed to prove any negligence /mishandling of the subject machine while it was used.
13. It is not disputed that, the Op 2/seller  has sold the product of OP 1 to the complainant as such, we are of the opinion that, it is the bounden duty of the OP 2(two) to provide after sale service & to rectify the defects and/or to replace the defective product/spare parts  with new one free from defects without charging any extra price if the product is not repairable in any manner but it is proved on admission that, the Ops failed to remove the defects of the subject machine. Nothing placed on record to hold that; subject harvester got repaired as on date. Complainant has purchased the subject 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 and the complainant is in no way concerned with the Op1 (one)
14. The Op2 has admitted the facts 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 of OP1 which clearly proved that, the Op2 expressed his inability to replaced the subject defective harvester sold to the complainant with new one or repaired it to make it functioning. The Op 2 has stated that, the grievance received from the complainant has already communicated to the OP1 but no response is received. Nothing placed on record to hold that, the grievance of the complainant  has sent to the Op1 .So also nothing material placed on record to hold that, the  op2 has ever deputed any expert / engineer to inspect the subject harvester & to find the root cause of the defects or have ever taken any steps to repair the subject Harvester clearly proved the negligence & deficient services there on the part of the Op2(two).  
15. Here in this case, it is proved on admission that, the Op 2 has sold the subject harvester /product being manufactured by Op 1 which got damaged within short span of warranty period. It is also proved on admission that, the Op2 though the seller & the authorized dealer & service center of OP1 has failed to provide after sale services to the purchaser/complainant. So also proved on admission that, the   Op2 is no more the dealer of the OP1 and has shut down the show room & service center of OP1 without redressing the grievance of the complainant squarely attribute deficient service & unfair trade practice on the part of Op2(two)  . The Op2 has shut down the show room & service station for which the subject Harvester could not be repaired is proved. The op2 has failed to proved that, the grievance of the complainant has ever communicated to the OP1 which is not yet responded. The Op2 has failed to rectify the defects arose with the subject harvester after sell certainly debarred the complainant for further use of the goods/Harvester to earn his lively hood .Accordingly this Commission may safely holds deficient services & unfair trade practice there on the part of the Op2 which certainly caused loss of earning & mental agony to the complainant cannot be denied. Issue No. III & IV answered positively.
16. .  It is seen that, the request for replacement of the damaged spare part with new one is denied by the Op2 so also spare part of the subject machine is not made available for repairing of the subject goods. We are of the opinion that, every consumer/purchaser of machine/Harvester has right to get after sale service and every seller/op2  is duty bound to provide after sale service to their customer but here in this case, the Op 2 failed to provide after sale service to the Complainant squarely proved deficient service & unfair trade practice on the part of Op2. 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.  Issue No. IV & V answered positively.
17. The wish of use of the subject Harvester Machine is defeated as it got damage during warranty period and not yet gets repaired for further used. The very purpose of purchasing of the subject harvester got frustrated cannot be denied.  So also,  complainant suffered  financial loss & mental agony cannot be denied as such we are of the opinion that, the  complainant is entitle  to be compensated by the OP 2(two)  and the Op 2 is  solely liable to  return back the sale price of the said  Harvester Machine to the complainant within a stipulated time period subject to   deducting depreciation cost  @ 25 % of cost price .  Further the complainant is entitled for litigation cost & further entitle for an award of compensation towards mental agony which may heal the injuries of the complainant to some extent. However, the claim of the complainant is at higher side. Hence, complaint is allowed in part. Issue No. VI answered accordingly in favor of the complainant. Hence it is ordered.

ORDER

Based on above discussion this complaint is allowed in part   against the Op 2(two) and dismissed against the OP1(one) on contest with the following directions;-.

1. The Opposite Party No.2(two)  is here by directed to refund  the cost price of subject Harvester Machine i.e. Rs. 20,50,000/- by deducting depreciation cost  @ 25 % to the complainant.
2. Further the Op2 is directed to pay monetary compensation of minimum Rs.1,00,000/-(one lakh) towards mental agony suffered  and, to pay Rs.25,000/- towards cost of this litigation to the complainant.
3. The O.P No.2 is at liberty to repossess the subject Harvester Machine from the complainant after compliance of this order.
4. 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 Op 2(two)  will liable to pay additional Rs.500/-(five hundred ) per day as additional 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 21^st   November 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.