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 OPs to provide new CRAWLER of the subject harvester machine and to pay compensation of Rs.1,00,000/-towards financial loss & mental agony  suffered due  to deficient service & unfair trade practice of the Ops and, to award Rs.50,000/- 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 complainant are that, on dt. 16/10/2022, the complainant, to earn his livelihood & to use on his agriculture filed , has purchased one Zoomlion Combine Harvester(FH88HP) from the OP 2 paying the cost price of  Rs.21,50,000/-vide Invoice/ Bill No. GECO/2022-23/0027 DT.16/10/222. The OP2 is the authorized dealer of OP 1 (Zoomilan India Pvt. Ltd.) The subject harvester machine is manufactured by OP 1 .Unfortunately, on dt. 25/05/2023 subject harvester stop functioning due to the damage of rubber CRAWLER for which it was taken to the service centre of OP 2 where upon the OP2 informed the matter to the manufacture/OP1 and asked to replaced the damaged CRAWLER with a new one as it was damaged within the period of warranty but not responded. Subsequently on dt.21/06/2023 another CRAWLER also got damaged  for which harvester remain  unused, matter of which is reported to the Ops but not yet responded .The Ops failed to provide after sale service 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/22-23/0027 dt.16/10/22 for an amount of Rs.21,50,000/- issued by the OP2/Ganpati Engineering Co. Bhawanipatna towards  purchase of subject Harvester .
2. Copy of e-mail detail dt. 27/05/2023,01/06/2023,24/06/2023 communicated to the OP1
3. Copy of Adhar Card of the Complainant .
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 their 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 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 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/harvester  suffered trouble and that, there is no delay or deficient service on the part of the manufacture/op1 and/or Dealer/op2 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 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  between the complainants & Ops and that, there is nothing deficient service or unfair trade practice on the part of the Ops and, with this submission the Op1 urged to  dismissed this complaint with cost.
6. The Op 2 appeared through their authorized representative namely Shri Rajesh Kumar Purohit and further engaged their counsel Sri. Sri. Rabindra Kumar Naik but failed to filed their written version. Allegations made against the Op2 remains unchallenged. 
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 complainant is the consumer of the Ops? Whether the Ops are deficient service & indulged in unfair trade practice causing injuries to the complainant?.  Whether this complaint is maintainable under C.P.Act 2019? And, whether the complainant is entitled for the relief(s) as claimed?
8. The complainant as well as the Op No 1(one) led their evidence on affidavit as prescribed under C.P.Act averment of which are corroborating with their respective pleadings are taken in consideration. No evidence on affidavit as prescribed under C.P.Act is filed by the OP 2(two). However, the Op 2 has participated in the hearing of this case.
9. Heard. Perused the material on record. We have our thoughtful consideration to the submission of rival parties.
10. During hearing of this case the OP 1(one) has paid Rs 3,10,000/- as compensation to the complainant which is received by him with his full satisfaction but wants to continue this complainant against the Op1(one) alleging deficient services & unfair trade practice not providing after sale services and further prayed  for an order directing the OP1 to return back the cost of the subject harvester with interest.
11. The opposite party No 2 has neither    disputed nor produces any evidence contrary to the averment of the complainant which in terms is a clear admission of facts of the complaint and the same need not proved. Law is well settled that  every allegation of facts in the complaint if not denied specifically or by necessary implication , or stated to be admitted in the pleading of the O.P shall be taken to be admitted accept as against a person disability
12. 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. 16/10/2022  the complainant has purchased one Zoomlion Combine Harvester(FH88HP)  worth  Rs.21,50,000/- from the OP 2/ Ganpati Engineering Co. Bhawanipatna vide Tax Invoice No.GECO/22-23/0027 dt.16/10/22 and that, subject harvester is  manufactured by the Op1(one).
13. During hearing of this case the op 2 has admitted the facts that, there were serious manufacturing defects in the complainant’s Harvester but the OP2 has no right to replace it. The  Op2 further submitted 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.
14. 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 upon which the complainant prayed  for an order directing the OP1 to return back the cost of the subject harvester with interest as there is no chance of repairing of the subject harvester .
15. 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.
16. 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  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, during hearing of this case, 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 .
17. 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 within warranty period. 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 & it shall not be used further .Nothing placed on record to hold that the Op1 has made available of any other service center to get the harvester repaired. Accordingly, this Commission is of the opinion that there are deficient services & unfair trade practice on the part of the Op 2 certainly caused financial loss & mental agony to the complainant need to be adequately compensated.
18. It is seen that, when the request for replacement of the damaged spare part 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 . 
19. It is not disputed that, the complainant has purchased the subject product/Harvester from the OP2  paying the cost  price of Rs 21,50,000/-  for his personal use keeping faith upon the local dealer/Op2. The wish of use of the subject Harvester Machine is defeated as the vital part of it got damage during warranty period and could not get it repaired for further used .The very purpose of purchasing of the harvester 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  pay  back the sale price of the said  Harvester Machine by  subject to deduction of  depreciation cost  @ 25 % of the sale price within a stipulated time period .  Further the complainant is entitled for award of litigation cost & compensation towards mental agony .
20. 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 sale price of subject Harvester Machine i.e. Rs. 21,50,000/- to the complainant by deducting depreciation cost  @ 25 %of said sale price . Further the Op 2(two) is directed to pay monetary compensation of minimum Rs.1,00,000/-(one lakh) towards mental agony suffered  and, to pay Rs25,000/- towards cost of this litigation to the complainant.

The O.P No.2 is at liberty to recover the sale price of the subject Harvester /machine, (if paid to the complainant), from the O.P. No.1 (one) at his own cost and Op1 may repossess the subject Harvester 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 OpNo 2 will be liable to pay additional Rs.500/-(five hundred ) 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 13^th   November 2024 under the seal and signature of this Commission.

The pending application if any is also stands disposed off accordingly.

Order 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.