State Consumer Disputes Redressal Commission
Sh. Virender Singh. vs M/S Harashana Enterprises. & Anr. on 6 October, 2017
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 327/2016
Date of Presentation: 03.10.2016
Order Reserved On : 21.06.2017
Date of Order : 06.10.2017
......
Virender Singh son of Shri Hari Singh resident of village Jugahan
Tehsil Sunder Nagar District Mandi H.P.
...... Appellant/Complainant
Versus
1. M/s. Harashana Enterprises Near Kisan Bhawan Ner
Chowk Tehsil Balh District Mandi H.P.
2. M/s. High Tech Agro Limited Across Both Canal Gaba
Chowk Street No.3 Jatal Road Panipat (Haryana).
......Respondent s/opposite parties
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Meena Verma Member
Whether approved for reporting?1 Yes.
For Appellant : None.
For Respondents : Ms. Leena Guleria vice Mr. G.R.
Palsra Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 26.08.2016 passed by Learned District Forum in consumer 1 Whether reporters of the local papers may be allowed to see the order? Yes. Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) complaint No.08/2015 title Virender Singh Versus M/s. Harashana Enterprises & Anr.
Brief facts of Case:
2. Virender Singh complainant filed complaint under section 12 of Consumer Protection Act 1986 pleaded therein that complainant is a farmer and he purchased Siraz Power Tiller on 02.11.2013 and paid the entire consideration amount to the tune of Rs.133000/- to opposite party No.1 against bill dated 02.11.2013. It is pleaded that from the very beginning Power Tiller started giving starting problem and various complaints were filed before opposite party No.1. It is further pleaded that representative of opposite party No.1 attended the complaints 3/4 times and problems were rectified temporarily. It is further pleaded that representative of opposite party No.1 repaired Power Tiller for more than twelve times w.e.f. May 2014 to October 2014 but even then problem was not rectified. It is pleaded that complainant could not perform agricultural operations and complainant was forced to hire another tractor for agricultural operations and complainant paid an amount to the tune of Rs.12000/-
for three crops for hiring the Power Tiller. It is pleaded that Power Tiller was suffering from manufacturing defect. It is further pleaded that no warranty card was issued by opposite parties at the time of purchase of Power Tiller. It is further pleaded that opposite party committed deficiency in service. 2
Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) Complainant sought relief for refund of Rs.133000/- i.e. cost of Power Tiller alongwith interest @ 9% per annum. In addition complainant also sought relief of Rs.12000/- for hiring another tractor and in addition complainant also sought relief of Rs.2.00 lac as compensation.
3. Per contra version filed on behalf of opposite parties pleaded therein that complaint is not maintainable and complainant is estopped by his own act and conduct to file the present complaint. It is pleaded that opposite party did not commit any deficiency in service and did not involve in unfair trade practice. It is further pleaded that all the complaints were attended by the opposite party seriously and problem occurred in the Power Tiller due to mishandling of Power Tiller. It is pleaded that complainant did not maintain the machinery properly. It is denied that Power Tiller was suffering from manufacturing defect. It is pleaded that compensation to the tune of Rs.20000/- be awarded to each of opposite parties. Prayer for dismissal of complaint sought.
4. Learned District Forum dismissed the complaint. Feeling aggrieved against order passed by Learned District Forum complainant filed present appeal before State Commission.
5. None appeared on behalf of appellant at the time of final arguments. State Commission decided to dispose of appeal on merits. We have heard learned advocate appearing 3 Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) on behalf of respondents and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that deponent is farmer and had purchased a Siraz Power Tiller on dated 02.11.2013 in consideration amount of Rs.133000/-. There is further recital in affidavit that from the very beginning Power Tiller started giving problem and various complaints were filed before opposite party. There is recital in affidavit that complaints were attended 3/4 times by opposite party No.1 and problem was temporarily rectified. There is further recital in affidavit that again Power Tiller started giving various problems and again repairs work was performed by opposite party twelve times from May 2014 to October 2014 but fault was not rectified.
There is further recital in affidavit that deponent has to engage some other Power Tiller for agricultural operations and had paid Rs.12000/-. There is recital in affidavit that Power Tiller was suffering from manufacturing defect. 4
Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016)
8. Complainant also filed affidavit of Shri Bhim Singh Automobile Engineer. There is recital in affidavit that deponent joined the HRTC as Service Manager and retired as General Manager in the year 2010. There is recital in affidavit that deponent has got experience of more than forty years of inspecting, repairing and managing diesel engines & vehicles. There is further recital in affidavit that deponent inspected Siraz Power Tiller on the request of complainant and issued mechanical report annexure-CA.
9. Opposite party filed affidavit of Shri Sudhir Kumar in evidence. There is recital in affidavit that various complaints were filed by complainant and all complaints were attended seriously. There is further recital in affidavit that there was no deficiency in service on part of opposite parties. There is further recital in affidavit that problem occurred in the Power Tiller due to mishandling. There is further recital in affidavit that on 10.01.2014 complaint was filed and opposite party No.1 visited the spot and it was found that complainant had placed water in engine and fuel pump was jammed and was giving problem. There is further recital in affidavit that it was also found that due to loosening of nut- bolts the rotary stud and rotary housing had broken. There is recital in affidavit that it was also observed that clutch had caught rust and because of rust the clutch was jammed. 5
Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) There is further recital in affidavit that problem occurred in the Power Tiller due to mishandling of Power Tiller.
10. Plea of appellant in the ground of appeal that expert namely Shri B.S. Dogra General Manager retired from HRTC Shimla has submitted mechanical inspection report wherein it was mentioned in positive manner that Power Tiller was defective with regard to gear, brake, clutch, accelerator system and was not put to use for agricultural activities and on this ground appeal be allowed is decided accordingly. We have carefully perused the mechanical inspection report annexure-CA filed by Shri B.S. Dogra General Manager retired HRTC Shimla which is quoted in toto :-
Power tiller Greaves Model 1510 Sr. No.A3E Q733032, HP9 B.S. 5514 RPM 3000 inspected by me and as per my technical opinion and 40 years experience in auto sector it is found that this tiller is defective in regard to its gear, brake, clutch and accelerator system and such cannot be put to use for ploughing and other related agricultural activities.
11. We are of the opinion that mechanical inspection report submitted by Shri B.S. Dogra General Manager is trustworthy reliable and inspires confidence of State Commission. There is no reason to disbelieve mechanical inspection report submitted by Shri B.S. Dogra annexure-CA placed on record. There is no evidence on record in order to prove that Shri B.S. Dogra has hostile animus against 6 Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) opposite parties at any point of time. Shri B.S. Dogra has submitted report after personal inspection of the Power Tiller.
12. Plea of appellant in grounds of appeal that opposite parties be directed to refund the amount of Rs.133000/- i.e. cost of Power Tiller alongwith interest @ 9% per annum is decided accordingly. It is well settled law that entire amount is refundable to complainant when guarantee card is issued. There is no evidence on record in order to prove that guarantee card was issued by the opposite parties to complainant. Complainant also did not place on record any guarantee card. In the absence of any guarantee it is not expedient in the ends of justice to order opposite parties to refund the entire amount of Rs.133000/- to complainant.
13. Submission of appellant in memorandum of grounds of appeal that opposite parties be directed to pay Rs.12000/- to the complainant for hiring another tractor is decided accordingly. It is proved on record by way affidavit filed by complainant that complainant hired another tractor and paid Rs.12000/-. State Commission is of the opinion that complainant is legally entitled for a sum of Rs.12000/- from the opposite party for hiring another tractor.
14. Plea of appellant that appellant be paid compensation to the tune of Rs.2.00 lac is decided accordingly. It is proved on record that complainant could not use Power Tiller for agricultural purpose and it is also 7 Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) proved on record that complainant could not ply Power Tiller purchased from opposite party for agricultural activities and it is also proved on record that twelve complaints were filed by the complainant before opposite parties within one year of purchase. It is proved on record that complainant had sustained mental agony and harassment. We are of the opinion that complainant is legally entitled to compensation to the tune of Rs.12000/- for mental agony and harassment.
15. Submission of learned Advocate appearing on behalf of opposite parties that Power Tiller was repaired twelve times after complaint and on this ground appeal filed by appellant be dismissed is decided accordingly. It is proved on record that Power Tiller was sold by opposite party to complainant on dated 02.11.2013 and consideration amount of Rs.133000/- was paid by complainant to opposite parties. It is also proved on record that defect occurred in the Power Tiller within one year. Opposite party did not file any mechanical inspection report. Mechanical inspection report filed by Shri B.S. Dogra remained unrebutted on record. Affidavit filed by Shri Sudhir Kumar is not sufficient to rebut the affidavit filed by complainant and Shri B.S. Dogra Mechanical expert because there is no recital in the affidavit filed by Sudhir Kumar that Sudhir Kumar has personally inspected the vehicle. Sudhir Kumar has filed the affidavit on the basis of derived knowledge. It is well settled law that new 8 Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) vehicle should be in perfection stage. Vehicle was brought to workshop repeatedly for repairs twelve times immediately after purchase. See 2017(3) CPR 747 NC title Force Motors Ltd. Versus Shaikh Nayum Shaikh Mohiddin & Ors. In view of above stated facts point No.1 is decided accordingly. Point No.2: Final Order
16. In view of findings upon point No.1 above appeal is partly allowed. It is ordered that opposite parties will pay an amount of Rs.12000/-(Twelve thousand) to the complainant alongwith interest @ 9% per annum from date of institution of complaint till realization for hiring another Power Tiller jointly and severally. In addition it is ordered that opposite party will pay Rs.12000/-(Twelve thousand) for mental agony and harassment to complainant jointly and severally. It is further ordered that defect in the Power Tiller will be removed by opposite parties within one month after the receipt of copy of order. Other reliefs sought by complainant are declined. Order of learned District Forum is modified to this extent only. Retail invoice bill annexure-C1 and mechanical inspection report annexure-CA filed by Shri B.S. Dogra expert will form part and parcel of order. Parties are left to bear their own litigation costs before State Commission. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. 9
Virender Singh Versus M/s. Harashana Enterprises & Anr.
(F.A. No.327/2016) Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Meena Verma Member 06.10.2017.
KD* 10