State Consumer Disputes Redressal Commission
John Deere India Private Limited vs Tirath Pal Singh on 11 February, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1657 of 2012.
Date of Institution: 19.12.2012.
Date of Decision: 11.02.2014.
1. John Deere India Private Limited, having its Registered Office, at
Tower 14, Magarpatta, Hadapsar, Pune-411 013: in complaint,
mentioned AT Gate No.251/1, Katke Vasti, Office Pune Nagar
Road, Wagholi, Pune, Maharashtra-412207, represented herein
through its Senior Manager, Legal and IP Department of the
Company.
2. Sahi Agro Service, Hazipur Road, Dasuya, Hoshiarpur, through
its Authorized Representative.
.....Appellants.
Versus
1. Tirath Pal Singh S/o Sh. Ajit Singh, aged about 28 years;
2. Surinder Kaur W/o Sh. Ajit Singh, aged about 61 years;
Both Rs/o Village Mahtabpur, Tehsil Mukerian, District
Hoshiarpur.
...Respondents.
First Appeal against the order dated
19.11.2012 passed by the District
Consumer Disputes Redressal Forum,
Hoshiarpur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
...................................
Present:- Sh. P.K. Kukreja, Advocate, counsel for the appellants.
Sh. Surinder Thakur, Advocate, counsel for the respondents.
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First Appeal No.1657 of 2012 2INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
John Deere India Private Limited and another, appellants/opposite parties (In short "the appellants") have filed this appeal against the order dated 19.11.2012 passed by the learned District Consumer Disputes Redressal Forum, Hoshiarpur (in short "the District Forum").
2. Facts in brief are that Sh. Tirath Pal Singh and another, respondents/complainants (hereinafter called as "the respondents") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellants, making the averments that they are owners of vehicle tractor bearing No.PB-054-E-2830 Make John Deere, Model 5060-E which was purchased on 21.06.2011 from appellant no.2, who is authorized dealer of appellant no.1. The said tractor started giving troubles immediately after the purchase and the periodical services were carried out through the authorized dealers of John Deere Tractor, but the tractor in question was not working to the satisfaction of the respondents. The said tractor was taken to appellant no.2 time and again and some parts were replaced and on 14.11.2011, engine oil and oil filter were changed and on 23.04.2012, fan assembly, sensor water temperature, air filters were changed. On 24.04.2012, the technician of Saini Agro Service, Hajipur, Dasuya went to the spot where the tractor was standing and the technician changed the filter, water temperature sensor and coolant water and while they were testing after changing the parts, the engine got blasted and all the electrical wiring burnt which shows that the tractor was having manufacturing defect regarding the temperature control and due to that, the engine blasted. The engine box was giving noise and after testing, it First Appeal No.1657 of 2012 3 never started. On 27.04.2012, sensor water temperature, fuel injection pump were changed, but still the tractor was not working. The said tractor was passed to work with the combine.
3. Due to non-functioning of the vehicle, the respondent lost business and suffered loss as there was no earning. The loss of Rs.4.00 lacs to Rs.5.00 lacs was suffered due to negligence of the appellants. A legal notice was served on 04.05.2012 and a number of requests were made to the appellants, to replace the said tractor, as it was within warranty period, but the appellants did not listen. The respondents suffered lot of mental tension and harassment and is entitled to compensation.
4. It was prayed that the appellants may be directed either to replace the tractor with a new one, or to refund the purchase money along with interest and to pay Rs.5.00 lacs as damages due to harassment and loss suffered and to pay costs of litigation.
5. In the written version filed on behalf of appellant no.1, preliminary objections were taken that the complaint is not maintainable and the respondents have not come to the Forum with clean hands and have suppressed the material facts. The tractor sold to the respondents is of highest quality and the respondents have taken the delivery of the tractor after 'Pre-delivery Inspection' and to their entire satisfaction and it fully complies with the warranties, assurances and specifications provided by the manufacturer regarding the quality and performance of the tractor. The tractors manufactured by the appellants are widely accepted and appreciated worldwide for their high standard and quality. There is no deficiency in service on the part of the appellant. The relationship between the appellant no.1 and appellant no.2 is on 'principal to principal basis' and appellant no.1 cannot be held liable for First Appeal No.1657 of 2012 4 the acts of omissions committed by appellant no.2. The prayer made by the respondents is beyond the warranty terms. The tractor is being utilized regularly by the respondents from the date of its purchase. The respondents are bound by the terms of the agreement. The respondents have failed to follow the guidelines given in the 'Operator's Service Book' as recommended for smooth and better performance of the tractor. The mandatory recommended services have to be carried out on regular intervals from the authorized service centers/workshop of the appellants. The averments in the complaint are false and vague and there is no manufacturing defect. In the absence of any expert report, no relief can be granted. The tractor purchased by the respondents is an assembly of thousands of engineering parts which are sourced from the third party supplier and the parts are manufactured by the 'Original Equipment Manufacturer'. The warranty is passed on to the customer by the company dealers and the appellants have no liability.
6. On merits, it was admitted that the appellant no.1 is the manufacturer of the tractors with the brand name of 'John Deere' and appellant no.2 is its authorized dealer. The tractor in question was purchased by the respondents for commercial purpose and they are not the consumers. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Appellant no.2 did not contest the complaint before the District Forum and was proceeded against exparte.
8. Contesting parties led evidence in support of their respective contentions by way of affidavits and documents. First Appeal No.1657 of 2012 5
9. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that from the photocopies of the counterfoils mark C-12 to Mark C-15, it is evident that the respondents have got the tractor in question serviced free of charge in so far as first 2 or 3 services are concerned. The copy of job card Mark C-3 proves that the routine repair was done by changing the engine oil and oil filter. From the copies of job cards Mark C-3, Mark C-4 and Mark C-6, it is clear that sensor water temperature (12V-24V) alongwith fan assembly and air filter were changed, besides changing the fuel injection pump, DB-4 injection pump. Repeated change of these parts itself indicates the problems faced by the tractor in question due to overheating of tractor. The temperature of the engine was not properly controlled and the respondents have to visit time and again. The respondents have also examined Sh. Darwara Singh, Proprietor of Darwar Diesel Workshop, who filed his affidavit Ex.C-17 and deposed that the engine of the tractor was totally ceased due to over-temperature of the engine. The District Forum observed that the manufacturing defect cannot be cured by only replacing the engine. Appellant no.2, who is dealer, failed to come forward to deny the allegations. The tractor in question is having manufacturer defect which cannot be removed even by the repairs of the engine, as has been told by the expert. The respondents have failed to prove the loss of crop. The complaint was partly accepted, with the direction to the appellants to replace the tractor of the respondents with a new one or refund its price alongwith interest @ 9% p.a. and to pay Rs.10,000/- as litigation expenses.
10. Aggrieved by the impugned order dated 19.11.2012, the appellants have come up in appeal.
First Appeal No.1657 of 2012 6
11. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the parties.
12. The appeal was filed on the grounds that the District Forum has failed to appreciate the pleadings. The respondents were regularly utilizing the tractor and parts of the tractor were replaced by appellant no.2 on 14.11.2011, 23.04.2012, 24.04.2012 and 27.04.2012. The respondents have not examined any expert and Sh. Darwara Singh, Diesel Mechanic is not the expert. The said mechanic is 8th class pass and was not sufficiently equipped with the tools, to carry out inspection of the engine of the tractor. The design of the tractor has been approved by ARAI, Pune and a mechanic cannot sit over the approved design of such a higher authority. The replacement of sensor on two occasions was not sufficient to indicate that the tractor was suffering from manufacturing defect. The District Forum has not taken notice of these facts. The job cards were not properly appreciated. The observations in the job cards do not prove any manufacturing defect. The findings regarding the manufacturing defect are based on conjectures and surmises. It was prayed that the appeal may be allowed and the impugned order may be set aside.
13. Learned counsel for the appellant contended that there were normal problems and within seven days, the tractor was brought on four days and the parts were changed. The evidence of Sh. Darwara Singh, Mechanic is not worth relying and he has carried out the inspection in the fields which shows that the tractor was working. The change of sensor does not show any manufacturing defect. As per job cards Mark C-3 and Mark C-4, engine oil, oil filter were changed and sensor water temperature was changed. As per Mark C-6, on First Appeal No.1657 of 2012 7 27.04.2012, the tractor had run 1420 hours and sensor water temperature, fuel injection pump and DB-4, injection pump were changed and the tractor was delivered to the entire satisfaction of the respondents. The expert examined is only a mechanic and he was 8th class pass. He was not equipped with the tools, to ascertain the manufacturing defect. It has been argued that as per the law laid down in case "Maruti Udyog Vs Susheel Kumar Gabgotra & Anr.", (2006) 4 Supreme Court Cases-644, only the defective parts can be replaced and not the vehicle itself. Sh. Darwara Singh is not the expert in view of the law laid down by the Hon'ble Supreme Court in case "Ramesh Chandra Agrawal Vs Regency Hospital Ltd. & Ors.", 2010 (1) RCR (Civil)-15.
14. On the other hand, the counsel for the respondents contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.
15. We have considered the respective version/submissions of the parties and have minutely scrutinized the entire record.
16. The respondents have placed on file the job card Mark C-3 dated 14.11.2011 and at that time, the tractor in question had run 320 hours and it was the third free service and in routine, the engine oil and oil filter were changed. Job card Mark C-4 is dated 23.04.2012 and at that time, the tractor in question had run 1400 hours and the service was done under warranty and fan assembly, sensor water temperature (12-V-24V), air filter were replaced. Job card Mark C-6 dated 27.04.2012 reveals that the tractor had run 1420 hours and the parts changed were sensor water temperature, fuel injection pump, DB-4 injection pump and the vehicle was serviced/repaired to the entire First Appeal No.1657 of 2012 8 satisfaction of the respondents and the tractor was still under warranty. Thereafter, there is copy of legal notice and the postal receipts and other documents have no bearing on the question of manufacturing defect. Ex.C-17 is the affidavit of Sh. Darwara Singh, Mechanic, who has deposed that he is Diesel Mechanic and he is specialist in Swaraj Tractors, John Deere, Ford, Escort, and Mahindra. He deposed that the engine of the tractor was totally ceased due to over-temperature of the engine. In cross-examination, he has deposed that the inspection was carried out in the presence of two attendants from appellant no.2. The evidence of this witness to prove the manufacturing defect in the tractor in question, cannot be considered in view of the law laid down by the Hon'ble Supreme Court in case Ramesh Chandra Agrawal Vs Regency Hospital Ltd. & Ors." (supra). However, he is an experienced mechanic and he was able to find out the reason for the ceasing of the engine and that was due to overheating. This fact of overheating is also proved from the job cards because the sensor water temperature has to be changed time and again and that indicates that there was manufacturing defect in the engine only. As per the law laid down by the Hon'ble Supreme Court in case Maruti Udyog Vs Susheel Kumar Gabgotra & Anr." (supra), only the defects parts can be replaced. In the present case, it was the engine which was totally defective and that was required to be replaced, but not the entire vehicle.
17. In view of above discussion, the appeal is partly accepted and the impugned order under appeal dated 19.11.2012 passed by the District Forum is modified and the appellants are directed to replace the engine of the tractor in question and to make it serviceable and fit to perform its function, within 30 days of receipt of copy of the order. The First Appeal No.1657 of 2012 9 order of the District Forum, to replace the director with a new one or refund its price along with interest is set aside. The remaining part of the order regarding the payment of Rs.10,000/- as litigation expenses is maintained. With this modification, the appeal stands disposed of.
18. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. Out of this amount, a sum of Rs.10,000/- be remitted by the registry to the respondents in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellants. The remaining entire amount with interest accrued thereon, if any, be remitted by the registry to appellant no.1 by way of a crossed cheque/demand draft after the expiry of 45 days.
19. The arguments in this appeal were heard on 29.01.2014 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Jasbir Singh Gill) Member February 11, 2014.
(Gurmeet S)