State Consumer Disputes Redressal Commission
Same Deutz-Fahr India Pvt. Ltd. vs Shri Dnyaneshwar Bhagawan Mutkule & ... on 15 November, 2010
CONSUMER DISPUTES REDRESSAL COMMISSION CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASTHRA STATE, MUMBAI Date of filing : 31/10/2005 FIRST APPEAL NOS. 2252 TO 2255 OF 2005 Date of order : 15/11/2010 IN CONSUMER COMPLAINT NOS.843, 844, 845/2003 & 38/2004 DISTRICT CONSUMER FORUM : SOLAPUR Same Deutz-Fahr India Pvt. Ltd. (formerly Same Greaves Tractors Pvt. Ltd.) Regd. Office at Plot No.72 Sipcot Industrial Complex, Ranipet-632403, Tamilnadu. Appellant (affected party) V/s. 1. Shri Dnyaneshwar Bhagawan Mutkule 2. Shri Sambhaji Bhagwan Mutkule Both r/o. padasali Tal. Madha, Dist. Solapur. (A-2252/2005) 1. Shri Bapu Shripati More R/o. Bhavi, Tal. Madha, Dist. Solapur. (A-2253/2005) 1. Shri Hanmantu Ramchandra Kale R/o. Bembale, Tal. Madha, Dist. Solapur. (A-2254/2005) 1. Shri Dattu Krishna Kadam R/o. Wadshinge, Tal. Madha, (A-2255/2005) Dist. Solapur. Respondents/org. complainants 3. Shri Sanjay (Mama) Shinde Prop. Dhanashree Tractors, Tal. Madha, Dist. Solapur. Respondent/org. O.P.No.3 Quorum: Mr.S.R.Khanzode, Honble Presiding Judicial Member
Mr.Dhanraj Khamatkar, Honble Member Present : Mr.Sandeep Jalan, Advocate for the appellant.
Mr.Kalashetty, Advocate @ Mr.Subodh Gokhale, Advocate for respondents/org. complainants..
-: ORAL ORDER :-
Per Mr.S.R.Khanzode, Honble Presiding Judicial Member These four appeals since arose from identical facts and involved common question of law are disposed of by this common order. The title makes clear the appeal numbers and original consumer complaint numbers and the parties therein.
These appeals are filed by one Same Deutz-Fahr India Pvt. Ltd., presumably affected party by the impugned order. It is not a party in either of the consumer complaints and no directions in the impugned order is directly given against it.
The complainants in complaint No.843/2003, namely, Shri Dnyaneshwar B. Matkule and Shri Sambhaji B. Mutkule; complainant in complaint No.844/2003, namely, Shri Bapu Shripati More; complainant in complaint No.845/2003, namely, Shri Hanmantu R. Kale; and complainant in complaint No.38/2004, namely, Dattu Krishna Kadam are purchasers of tractors, Same Greaves 503 Tractor manufactured by M/s.Greaves Ltd. to which permission for registration (of the tractor) was given by the Transport Commissioner of Maharashtra State, Mumbai as per its circular No.MVR/0798/CR-923/D-II(4)/ON-16110 dated 23/09/1998 (Annexure-J page-152 of the appeal compilation). According to the complainants in their respective complaints, tractor is manufactured by M/s.Same Greaves Tractor Pvt. Ltd.(O.P.No.1) and Regional Sales Office of the same was at Pune, namely, Divisional Sales Manager, Greaves Ltd., Tractor Operations i.e. O.P.No.2 from the respective consumer complaints. Org. O.P.No.3/Mr.Sanjay (Mama) Shinde, a proprietor of Dhanshree Tractors which is an Agency through which those tractors were purchased by the respective complainants in between the period July 2000 to February 2001 as per respective dates mentioned in their respective consumer complaints. It is the grievance of the complainants that these tractors were suffered from manufacturing defects, could not be repaired for want of availability of spare parts and requisite technical support and they were not useful for transport of sugarcane and allied purposes though they were taken under the Scheme of Government for self-employment and as such each one of the complainants suffered losses. It is not disputed that each one of them had received free servicing during the warrantee period from the dealer/O.P.No.3/DhanshreeTractors.
The consumer complaints were filed to claim compensation for loss of business during which the tractor remains un-operational during free service period and also claimed compensation towards loss of business from the date the tractors became non-functional till the consumer complaints are filed and also for the expenses incurred on the salary of drivers, diesel and maintenance @ `100/- per hour; as more particularly, mentioned in the tabular form in the impugned order. Suffice it to say that in the consumer complaint No.843/2003 total compensation was claimed at `9,60,000/-, in the consumer complaint No.844/2003 total compensation was claimed at `10,92,000/-, in the consumer complaint No.845/2003 total compensation was claimed at `10,90,500/- and in the consumer complaint No.38/2004 total compensation was claimed at `13,97,100/-.
It may be mentioned here that the consumer complaints are not filed against the manufacturing company, namely, Same Greaves Tractor Pvt. Ltd., but it is filed against the Execute Director of said company(O.P.No.1) and also against the Divisional Sales Manager, Greaves Ltd., Tractors Operations (O.P.No.2) and the dealer Mr.Sanjay Shinde (O.P.No.3).
The dealer/O.P.No.3/Mr.Sanjay Shinde put his appearance and tried to shift blame on the manufacturing company for not supplying spare parts and for want of which, according to him, he could not give desired service to the purchasers of those tractors. It may be mentioned here at this stage itself that in paragraph 31 of the impugned order, it is only mentioned that the dealer alleged bad administration on the part of manufacturer of the tractors and that said manufacturer failed to supply spare parts and it contributed to the tractors became un-operational, resulting into loss to the purchasers of those tractors. It appears that such statement of O.P.No.3/dealer on its face value only was considered by the Forum below. Except the mention of such case of O.P.No.3-dealer, there is no finding as to the deficiency in service or otherwise in respect of O.P.No.3/Mr.Sanjay Shinde of Dhanshree Tractors/dealer and the impugned order does not pass any direction against the said dealer vis--vis by omission, exonerated him from the liability.
O.P.Nos.1&2 filed their written version (Annexure-C of the appeal compilation page-107) and categorically denied their liability and further denied that the tractors had any manufacturing defects and spare parts were not available as alleged. It is also specifically pointed out by them that Same Greaves Tractors Pvt. Ltd. i.e. company was not in existence since from the year 2001 i.e. since from the time prior to filing of the consumer complaint and the consumer complaint, as filed, was itself not tenable. It is also alleged that since 2001, new company-Same Deutz-Fahr India Pvt. Ltd. came into existence. It is also brought to the notice by these O.Ps. that each of the tractor purchasers availed six free servicing and all these consumer complaints are filed after their respective warrantee period was over. They claimed no deficiency in service on their part. They also denied any unfair trade practice followed by them while selling the tractors.
Complainants in their rejoinder acknowledged the change and took cognizance of the claim of the O.P.Nos.1&2 that Same Greaves Tractor Pvt. Ltd. is no more in existence from the year 2001 and that the new company came into existence, namely, Same Deutz-Fahr India Pvt. Ltd. i.e. the appellant. They also claimed as under :-
d) Without having had to make Same Deutz-Fahr India (P) Ltd., party to the present dispute, this entity must be made responsible for the outcome of this complaint. And this Company cannot be made party to the Complaint directly, on the grounds that, it was not in existence at the time when Complainant purchased the Tractors. However, the Opponents themselves have accepted the fact that Conversion of Company has been effected in the year 2001.
Thus, they, in their own wisdom, preferred not to make the Same Deutz-Fahr India Pvt. Ltd.-the appellants, as party to the proceeding.
O.P.Nos.1&2 also brought it to the notice, as contended in their sir-rejoinder (Annexure-E) and alleged that the consumer complaints are barred by limitation and further, their relationship between the manufacturer of the tractor and the dealer is on the principal to principal basis and the liability of the dealer cannot be fastened on the manufacturer by any stretch of imagination.
Forum below upholding the contention of the complainants directed O.P.Nos.1&2 as described i.e. Executive Director, Same Greaves Pvt. Ltd. and Divisional Sales Manager, Greaves Ltd. Tractors Operations, Pune to pay compensation which was quantified towards price of the tractor along with the interest and are further directed to pay compensation of `3 Lakhs to the complainant in each complaint and cost of `1,000/-. Feeling aggrieved thereby, these appeals are preferred by the appellant, presumably, as affected party.
We heard Mr.Sandeep Jalan, Advocate for the appellant and Mr.Kalashetty, Advocate @ Mr.Subodh Gokhale, Advocate for respondents/org. complainants.
Same Greaves Tractors Pvt. Ltd. is a separate legal entity which manufactures tractors and, admittedly, stopped its operation since 2001 and the said Company is no more in existence. The separate legal entity, namely, appellants as described Same Deutz-Fahr India Pvt. Ltd. came into existence thereafter. Same Greaves Tractors Ltd. and the appellants, supra, are distinct and separate entities and, as such, are distinct persons from each other within meaning of Section 2(1)(m) of Consumer Protection Act, 1986 (hereinafter referred to as the Act for brevity). Both of them are not party in the original consumer complaints. If any manufacturing defect is alleged in the tractor or if it is alleged that as a manufacturer of the tractor, this company failed to ensure supply of necessary spare parts for repairs and as such there is deficiency in service on the part of manufacturer of the tractor, then both ought to have been made party to the consumer complaints and in absence thereof, no award or order could be passed against them. O.P.No.1 as described, is an Executive Director of Same Greaves Tractors Pvt. Ltd. Since the company was closed in the year 2001 i.e. prior to filing of the consumer complaint, it was not the entity in existence when the consumer complaints were filed. Further, Executive Director of particular Organisation is a separate legal entity and jural status than the Organisation itself and, certainly, said Executive Director in his personal capacity is neither a manufacturer of the tractor nor he could be termed as a service provider in terms to supply of spare parts by the manufacturing company. Therefore, no consumer complaint (without including the Company), as such, would lie against him. Same is the case in respect of Divisional Sales Manager of Greaves Ltd. which is again as per description in the title itself, is a separate and distinct legal entity than the Greaves Ltd. Therefore, to hold them responsible for the alleged deficiency in service or for alleged unfair trade practice and direct them to pay compensation in the consumer complaints is, per se, without jurisdiction and Forum below erred in that respect.
We have carefully gone through the reasons given by the Forum below. The appreciation of evidence on record is rather perverse. Forum below, particularly, ignored the affidavit of well qualified technical person Mr.Santosh Shankar Sawant. Complainants relied upon the affidavit of Mr.Chandrakant Ambadas Jadhav, who is a mere Tractor Mechanic who failed to disclose his qualification and knowledge in the field. Further, tractor appears to have been duly certified before it was allowed to be sold and registered in the State of Maharashtra by the Deputy Transport Commissioner, supra; and by Central Farm Machinery, Budni, M.P. If the complainants alleged that certificate issued by this authority is false and fabricated, it is for them to establish so. But, referring to the circular of State of Maharashtra, it appears that since the Transport Commissioner was satisfied about those certificates, it issued a circular allowing registration of these tractors. Complainants failed to establish contrary to it. Forum below blissfully ignored all these materials on record.
Admittedly, each one of the complainants had availed service of free servicing as much as six in numbers and also allowed to pass the respective warrantee period based upon total operational hours. If there was any manufacturing defect as alleged, then the tractors would not have run even for this period of warrantee. It is for the complainants to establish their grievances, namely, there is manufacturing defect in the tractors and as such allowing to sell those tractors is unfair trade practice and the other grievance referring to deficiency in service for not supplying the spare parts to repair those tractors when required. Complainants in all the consumer complaints miserably failed to establish the same.
Further more, loss of business which the complainants calculated on the basis that they could not use the tractors for transporting sugarcane and for allied purposes i.e. for using the tractor for transportation purpose and loss of business accordingly. Referring to the circular dated 23/09/1998 of Deputy Transport Commissioner, Maharashtra State, Mumbai, supra, it could be seen that the registration of these tractors was under non-transport category and not for any transport. Therefore, any compensation claimed on account of loss of business cannot be allowed. Furthermore, compensation is claimed by each one of the consumers/complainants for loss occurred due to expenditure on driver employed on those tractors. Thus, the tractors were not run by the complainants in each consumer complaints, on their own. The circumstances disclosed that these tractors were purchased under the self-employment scheme for transportation of sugarcane i.e. for commercial purposes and in absence of any pleadings covering the circumstances (of exception) relating to Section 2(1)(d)(ii) of the Act, each complainant will not fall within the definition of consumer under the Act and as such also these disputes cannot be termed as consumer disputes. The impugned order is also vitiated on this count.
The Consumer Fora wrongly presumed the cause of action as continuous one and thus, arrived at wrong conclusion on the point of limitation. Cause of action arose soon after purchase of the respective tractors as far as manufacturing defects are concerned. No dates of specific event as well as whether the tractors could not be repaired for want of spare parts are mentioned.
For the reasons stated above, we find that the impugned order which is common order in all the consumer complaints cannot be supported with and holding accordingly, we pass the following order :-
-: ORDER :-
1. Appeal Nos.2252 to 2255/2005 are allowed. The impugned order dated 12/09/2005 is set aside and in the result, the consumer complaint Nos. 843/2003, 844/2003, 845/2003 & 38/2004 stand dismissed.
2. In the given circumstances, both the parties to bear their own costs.
3. Copies of the order be furnished to the parties.
(Dhanraj Khamatkar) (S.R. Khanzode) Member Presiding Judicial Member dd.