National Consumer Disputes Redressal
Mahindra & Mahindra Ltd.Tractor ... vs Nandlal & 3 Ors. on 11 March, 2019
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3327 OF 2013 (Against the Order dated 31/05/2013 in Appeal No. 26/2008 & 188/2008 of the State Commission Rajasthan) 1. MAHINDRA & MAHINDRA LTD.TRACTOR DIVISION. AKRITI ROAD, KANDAWALI A MUMBAI - 400101 MAHARASTRA ...........Petitioner(s) Versus 1. NANDLAL & 3 ORS. R/O BAREKHEDA NADI, KARAULI RAJASTHAN 2. SH.BRIJ MOHAN, R/O BARKHEDA NADI, KARAULI RAJASTHAN 3. AMIT ENTERPRISES NEAR BUS STAND, GANGAPUR CITY DISTRICT : SAWANI MADHOPUR RAJASTHAN 4. AMIT ENTERPRISES, OLD TRUCK UNION KARAULI RAJASTHAN ...........Respondent(s)
BEFORE: HON'BLE MR. PREM NARAIN,PRESIDING MEMBER
For the Petitioner : Mr. Sahil Bhalaik , Advocate For the Respondent : For the Respondent Nos.1 & 2: Mr. Nandlal, Respondent No.1,
in person
For the Respondent Nos.3 & 4: Ex-parte (vide order dated
03.05.2016)
Dated : 11 Mar 2019 ORDER
This revision petition has been filed by the petitioner Mahindra & Mahindra Ltd. against the order dated 31.05.2013 of the State Consumer Disputes Redressal Commission, Rajasthan, (in short 'the State Commission'), passed in Appeal Nos.26/2008 & 188/2008.
2. Brief facts of the case as stated in the order of the State Commission are that respondents Nos.1 and 2 /complainants purchased a Mahindra Tractor from the respondents No.3 and 4 manufactured by appellants on 28.08.1998 and same was registered with concerned authority vide registration No.RJ 34 R 224. The tractor was covered under the warranty for 24 months or 2000 hours which occurred earlier. Tractor was purchased with a loan from the bank. Tractor developed the defect during the warranty period and respondents parked the tractor with appellant on 16.06.2000 which has not been repaired till day by the appellants. Aggrieved, the respondents No.1 and 2/ complainants filed a consumer complaint before the Consumer Dispute Redressal Forum, Karauli, (in short 'the District Forum'). The District Forum allowed the complaint vide its order dated 11.10.2007 and directed the opposite parties to change the tractor of complainants with new tractor and pay Rs.25,000/- for the mental agony and interest @ 12% since 14.06.2000 on the price of tractor in the form of compensation.
3. Aggrieved with the order of the District Forum, the opposite party No.1/petitioner herein and the opposite party No.2/respondent No.3 herein preferred appeals being Appeal Nos.26/2008 & 188/2008 before the State Commission. The State Commission while dismissing both the appeals amended the order of the District Forum as follows:-
"It is therefore, the both appeals of appellants are dismissed and order of District Forum is amended and appellants are directed that:-
As defective tractor is in the possession of appellants and in such condition it is just to grant the relief to complainants that appellant Mahendra & Mahendra Company deliver to tractor of same make within 30 days from order to complainants and if tractor is not available then pay the price.
Appellant shall pay the remaining instalments of loan of tractor and interest on behalf of complainants to Bank of Baroda branch at Karauli.
Appellant shall pay Rs.25000/- (Rupees Twenty Five Thousands only) to complainants for the mental agony and Rs.50,000/- (Rupees Fifty Thousands only) for the unfair trade practice adapted by the appellants and impugned judgment is amended to this extent."
4. Against the order of the State Commission, the present revision petition has been filed by opposite party No.1/petitioner.
5. Heard the learned counsel for the petitioner as well as Mr. Nandlal in person for complainants/respondents No.1 & 2. None appeared for respondent Nos.3 & 4 and therefore, they were proceeded ex-parte vide order dated 03.05.2016 of this Commission. The learned counsel for the petitioner stated that the State Commission completely ignored the fact that the respondent No.1 had purchased the tractor on 20.08.1998 from the respondent No.3 dealer and the said tractor till 07.06.2000 had covered around 1800 hours of operation. Had there been any manufacturing defects, the tractor would not have covered more than 1800 hours of operation. The said fact proves that the tractor was in absolute roadworthy condition and that the jobs carried out on the tractor, were minor and running repairs, which were required to be carried out due to regular wear and tear of the said tractor.
6. Learned counsel for the petitioner stated that the District Forum as well as State Commission failed to take note of the fact that the expert opinion given by Nandlal, Khemraj, Jagdish, Laxman Singh Mistri & Suleiman Mistri is in clear contravention of the appropriate laboratory defined under Sec. 2(1) (a) of the Consumer Protection Act, 1986. It is submitted that Nandlal, Khemraj, Jagdish, Laxman Singh Mistri & Suleiman Mistri are neither an appropriate body under Section 13 (1) (c) of the Consumer Protection Act to give the expert report on alleged manufacturing defects of the tractor in question nor having any infrastructure to carry out such activities. The complainant/respondent No.1 was duty bound to submit the expert report from an "appropriate laboratory", in support of alleged manufacturing defects in the tractor.
7. Learned counsel submitted that the District Forum & the State Commission disregarded the fact that the petitioner has been prompt and swift to attend to the alleged grievances reported by the respondent No.1 & 2 under the warranty as and when reported. Further, as per the terms & conditions mentioned in the operator service book provided to the respondent No.1 & 2, the petitioner stipulated about obligation under the warranty would be limited to repair or replacement of such parts, which appeared to be defective to the manufacturer or the authorized dealers within warranty period. Further the petitioner would not be responsible for incurring of any costs on consumable items and normal maintenance services of the tractor. Therefore, the prayers as made by the respondent No.1 & 2 for replacement of the tractor was untenable and unsustainable. Learned counsel stated that in the case of Maruti udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. case (JT 2006 (4) SC 113), the Hon'ble Supreme Court held that, "the manufacturer cannot be ordered to replace the car or refund its price merely because some defect appears which can be rectified or defective part can be replaced under warranty." In view thereof, the order of replacement of a new tractor along with the compensation is contrary to law and is untenable.
8. Learned counsel further stated that the State Commission erred in dismissing the appeal of the petitioner and ought to have allowed the appeal with costs, since neither there was any manufacturing defect proved in the tractor in question by way of an expert report from a recognized laboratory nor the petitioner has committed any deficiency of service within the meaning of Consumer Protection Act, 1986.
9. In support of his contention, the learned counsel relied upon the judgment of this Commission in Dr. K. Kumar Advisor (engineering), Maruti Udyog Ltd Vs. Dr. A.S. Narayana Rao & Anr. [1 (2010) CPJ 19 (NC)], wherein this Commission has accepted the necessity of expert evidence to prove the submissions of manufacturing defects in the tractor. Learned counsel further relied on the decision of the Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. case (JT 2006 (4) SC 113), wherein the following has been held:-
"J & K Consumers Protection Act, 1988- car -defective - order of replacement of car challenged - as per warranty conditions there was admission to replace defective part and not the car- hence High Court was not justified in ordering replacement of car- appellant directed to replace defective part- respondent entitled to Rs.50,000 as cost - appeal allowed."
10. Learned counsel for the petitioner further stated that in fact no manufacturing defect has been mentioned either in the complaint or in the order of the District Forum or in the order of the State Commission. Even the affidavits filed by so called mechanics also do not mention any manufacturing defects. Thus, without identifying any manufacturing defect a decision has been taken by both the fora below that there was manufacturing defect in the vehicle.
11. It was further mentioned by the learned counsel for the petitioner that tractor was purchased on 20.08.1998 and the same was brought for repairs for the first time on 12.10.1999. On 16.01.2000 there was leakage in water body, which was rectified on the same day. The tractor has been standing with the workshop since 14.06.2000.
12. On the other hand on behalf of respondent Nos.1 & 2, the respondent No.1 Nandlal was present in person and argued that the tractor did not start and water came out from all three parts and the mechanics from the company workshop said that there was manufacturing defects in the tractor. Clearly, there was manufacturing defect in tractor and the same was accepted by the mechanics of the opposite parties and they have filed affidavits in support of their assertions that the tractor was having manufacturing defects. It is unimaginable that mechanics of opposite parties would accept and opine that there was manufacturing defect in the tractor unless they were 100% sure that there were manufacturing defects in the tractor. As they were reporting against the wishes of the opposite parties, which was giving them employment, thus no further proof is required for proving the manufacturing defect in the tractor.
13. I have given a thoughtful consideration to the arguments advanced by both the parties and have examined the material on record. The State Commission in its order has observed the following:
"The main argument of the appellant is that complainants have not proved by opinion of expert that the tractor has the manufacturing defect. We are not concurring the argument of appellants. The tractor of complainants are parked with appellants since year of 2000 till today and appellants are manufacturing company and dealer and they have filed an application before the Commission 20-01-2008 for the examination by experienced mechanic and Commission has passed the order on the application of appellant vide order dated 11-07-2011 that report of expert mechanic is necessary in the present case so that it could be ascertained which part of tractor is defective and that part could be changed or whole tractor shall be changed with new one. Appellants /respondents are directed to notice to complainants and get the checking of tractor in their presence and filed the report thereof.
Appellants have sought the time since 18-08-2011 to 20-09-2012 but not produced the report of any expert. Appellants have filed the report with those facts who have filed the affidavit in the support of complaint before Ld. Forum. Appellants who are manufacturing company and dealer, have the team of expert and they are competent to get examination at their own as what is the status of tractor but they have not produced any opinion in this regard nor made any attempt and not filed the expert report event order of commission. Complainants have clearly deposed in the affidavit that tractor of complainants has the manufacturing defect and they have parked with the respondent at the warrantee period. The complainants have filed the affidavit of Jagdish Prasad Mali who was sales mans with respondent and Khemraj Mechanic and both deposed that tractor has the manufacturing defect. Complainants have also filed the report Laxman Singh who is tractor mechanic and a experienced mechanic and he also said about manufacturing defect. Suleman Mechanic has also told the manufacturing defect in the tractor. Nanndlal, Khemraj, Jagdish & Laxman Singh and Suleman are working with tractor and all these person has shown the manufacturing defect in the tractor.
The appellants have not produced any evidence before the District Forum which rebut these evidences. The complainants have proved their case that tractor has the manufacturing defect. While the appellants albeit having the team of expert and even after the order of commission, could not examine the tractor in the presence of complainants. "
14. Moreover, the complainant, has mentioned the following in the complaint:-
"5. That tractors operated some months after purchase in the good condition but thereafter deficiency appears in the engine of tractor and deficiency in the engine appears on 12/10/99 and therefore, the complainants visited to respondent No.2 with tractor and he had corrected the tractor in his workshop and issued the bill of Rs.1457.98 and the complainants have said that the tractor is under the guarantee period and therefore they will not pay the bill maintenance and then respondent No.2 said that he will return the bill after the passing of bill from company and thereon the complainants have paid the bill of Rs.1457.98. The complainants return with tractor but tractor cannot properly operate even 4 days and therefore, complainants further made visit to respondent No.2 along with tractor. The respondent No.2 further change the part and issued the bill of Rs.98 and received the amount.
6. That the tractor could not operate properly even after second correction because the engine of tractor was defective. The complainants visited to respondent No.3 with tractor that he told that engine of tractor is defective and therefore he will change the engine of tractor and he said to operate tractor till it is possible but tractor does not operate as it was consuming the huge oil and therefore the complainants made 20 visit to respondent No.2 & 3 and they told that they have written to company and wait the reply. The engine is defective hence it will not be corrected and therefore engine was not corrected. Thus, the complainants made the rounds of respondents for many months but respondents have not corrected the tractor and they were making excuse.
7. That the complainants made further visit on 16-06-2000 with tractor to respondent No.3. The Jagdish Mali sales man and Khemraj Mistry met to the shop of respondent No.3. The complainants said for the correction of tractor then aforesaid both persons said the parked the tractor and we will change the engine and hence the complainants handed over the tractor to both persons and return to our residence. They have said to take the tractor after 4-5 days. The Khemraj mistry carried the tractor same day at Gangapur City at respondent No.2 but tractor did not return in 4-5 days then complainants visited the respondent No.3 at Gangapur city but respondent No.2 has not corrected the tractor nor changed its engine and even respondent No.2 did not return the tractor them."
15. First of all, from the above portion of the complaint, it seems that mechanics of the opposite parties/respondent No.3 & 4 have told the complainant that the engine of the tractor was defective and they accepted the tractor for changing the engine, however, the same was not changed. Thus, the assertion of the learned counsel for the petitioner is not correct that no defect was mentioned in the complaint.
16. So far as the requirement of the report of the expert is concerned, the order of the State Commission quoted above clearly states that the opportunity was granted to the petitioner for getting the tractor checked by an expert and to submit the report. However, the petitioner did not submit the report even after being given many opportunities for the same. Hence, the petitioner cannot say now that the requirement of the expert report is not met. Moreover, the fora below have accepted affidavits of mechanics of the opposite parties and have treated them as expert report. When the petitioner has not taken any interest in getting the tractor checked by an expert and to submit the report, the State Commission has in the alternative accepted reports given by the mechanics and I do not see any irregularity in this regard.
17. From the order of the State Commission, it is seen that on one hand the appeals filed by the opposite parties have been dismissed, but on the other hand, the order of the District Forum has been modified against the opposite parties. It is true that the appellate court has the powers of the trial court and the appellate court can modify the order of the trial court, but in my view, modification in the order of the District Forum was not required as no appeal was preferred by the complainant and he was satisfied with the order of the District Forum. Otherwise also, the purchase of tractor is a contract between purchaser/complainant and the opposite parties whereas the repayment of loan is governed by loan agreement. It means that purchaser is liable to repay the loan to the bank and therefore, the liability to repay the loan cannot be fastened on the opposite parties as in a complaint, deficiency in service against the opposite parties can only be examined in respect of the contract entered between the complainant and the opposite parties. In this view of the matter the order of the State Commission in respect of direction given to the opposite parties for payment of remaining instalments of the loan of tractor to the Bank of Baroda is not sustainable and is liable to be set aside.
18. As both the fora below have given concurrent finding, that the tractor had manufacturing defect and the same is also proved by the affidavits of the mechanics of the opposite parties, there seems to be no occasion to interfere in the concurrent finding given by the fora below. The scope under the revision petition is quite limited when there are concurrent finding of facts by the fora below as held by Hon'ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors. Vs. H&R Johnson (India) Ltd. and others, (2016) 8 Supreme Court Cases 286, wherein, the following has been held:-
"23. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons."
19. As the manufacturing defect in the tractor has been accepted by the fora below and the scope under the revision petition is quite limited and the facts cannot be reassessed by this Commission at the level of the revision petition and particularly in the light of the observations made by the State Commission with regard to the expert report, I do not find any error in the order of the State Commission except that the order relating to direction given to the opposite parties for payment of remaining instalments of loan of tractor to the Bank of Baroda along with interest payable by the complainant. Thus, the revision petition is partly accepted and the order of the State Commission dated 31.05.2013 is modified to the extent that the order in respect of direction regarding payment of remaining instalments of loan of tractor along with interest payable by the complainant to the Bank of Baroda is set aside and the remaining order of the State Commission is upheld. The petitioner is also directed to pay cost of litigation of Rs.10,000/- (rupees ten thousand only) to the respondents/ complainants for this revision petition.
...................... PREM NARAIN PRESIDING MEMBER