State Consumer Disputes Redressal Commission
M/S V.S.T. Tillers Tractors Ltd., vs Smt.Malati Anil Patil on 1 August, 2011
1 F.A.No. :1360/2006
Date of filing:24.07.2006
Date of order:01.08.2011
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
F.A. NO.:1360 OF 2006
IN COMPLAINT CASE NO. :100 OF 2006
DISTRICT FORUM : JALGAON.
1. M/s V.S.T. Tillers Tractors Ltd.,
P.O.Box No.4801, Whitefield Road,
Mahadevpura P.O.,
Banglore - 560048.
2. Maharashtra Agro Industrial Development
Corporation,
Plot No.48, Shahunagar,
Zilla Sahakar Building,
Jalgaon. ...APPELLANTS
(Org.Opponents )
VERSUS
Smt.Malati Anil Patil,
A/p Wadi-Shevale, Tq.Pachora,
Dist.Jalgaon. ...RESPONDENT
(Org.Complainant )
Coram : Mrs.Uma S.Bora, Hon`ble Presiding Member.
Shri.K.B.Gawali, Hon`ble Member.
Present : Adv.Shri.Yadav Patil for appellant, Adv.Shri.P.M.Kulkarni for respondent.
O R A L O R D E R Per Mrs.Uma S.Bora, Hon`ble Presiding Member.
1. M/s V.S.T.Tillers Tractors Ltd., Banglore and Maharashtra Agro Industrial Development Corporation, Jalgaon original opponents challenges in this appeal the judgment and order passed by Dist.Forum, Jalgaon in complaint case No.100/06.
2 F.A.No. :1360/20062. Respondent/Org.Complainant Malati Anil Patil is an agriculturists and resident of Wadi-Shewale, Dist.Jalgaon. She is possessing 30 to 40 acres of land. In the said land she is running business of nursery, tree forming and cashew processing centre. These businesses are carrying for earning livelihood. It is alleged that on 28.6.2005 she purchased power tiller of V.S.T. Shakti CT No.85/130 for Rs.1,08,040/-. Complainant paid amount of Rs.80,000/- vide cheque No.32740 and Rs.3039/- in cash. As she received subsidy from appellant No.2 delivery of said power tiller is taken on 11.6.2005. At the time of taking delivery starting stand, air cleaner assembly, tyre became defective. At the time of demonstration of tiller starting stand broken down due to which complainant suffered injury. Complainant many times informed appellant about said defect. There were complaints about starting stand, air cleaner, oil leakage and damaged tyre. Mechanic from the appellant company visited the complainant on 2.10.2005. They inspected the vehicle but did not repair the same. Thereafter complainant written several letters to the appellant to replace the power tiller. But said was not replaced. Appellant asked complainant to bring power tiller to Jalgaon which was not possible due to breakage of stand. Therefore complainant did not avail any services from the appellant. As the power tiller was purchased with the subsidy by appellant No.2 complainant approached to Block Development Officer, Panchayat Samiti, Pachora. BDO wrote letter to appellant No.2 on 22.9.2005 and recommended replacement of said power tiller. As the said power tiller was suffering from manufacturing defect from the date of purchase complainant suffered huge loss. Therefore complainant approached to Forum by demanding replacement of power tiller or else refund of price. Complainant also demanded Rs.18 lakhs as compensation.
3 F.A.No. :1360/20063. Present appellant appeared before the Forum and resisted the claim. It is submitted that the breakage of starting stand or oil leakage are not manufacturing defects. Whenever complaints were received from the complainant every time they were redressed by mechanic and officer of company. Complainant did not avail free services. Complaint is filed with ulterior motive to grab money.
4. Dist.Forum after hearing all the parties allowed the complaint and directed appellant to replace the said power tiller or to refund amount of Rs.43,039/-. Dist.Forum also directed appellant to pay Rs.75,000/- as compensation.
5. Dissatisfied with the said judgment and order original opponent came in appeal.
6. Notices of final hearing were issued to the appellants and respondent. Adv.Shri.Yadav Patil appeared for appellants, Adv.Shri.P.M.Kulkarnni appeared for respondent. We heard both the counsels. It is submitted by Adv.Patil that as per contention in the complaint, complainant is owner of 30 to 40 acre land she is running business of cashew processing centre, tree farming and nursery etc. Therefore power tiller is purchased by the complainant for commercial purpose. Hence complainant is not consumer. Adv.Shri.Patil stated that after purchase of power tiller by the complainant after six months new power tiller launched by the company. Therefore with a view to purchase said new power tiller complainant filed complaint. Complainant made prayer in the complaint about replacement of power tiller and not of repairing of said. It is further submitted by Adv.Patil that complainant claimed compensation of Rs.18 lakhs which itself shows that 4 F.A.No. :1360/2006 complainant is using power tiller for commercial purpose. Therefore complainant is not consumer.
7. It is submitted by Adv.Patil that opponent appeared before the Forum and denied the contention of complainant by filing affidavit of Vijaykumar Shaligram Patil, V.P.Mahindra, N.Sambandam but Dist.Forum ignored the said affidavit while adjudicating the complaint. It is further stated by Adv.Patil that written notes of argument with written statement also filed by the appellants. But Dist.Forum did not consider same as there is no whisper about the same in the judgment. Not a single ground taken in the written statement is appreciated by the Forum. Adv.Patil contended that no expert evidence about manufacturing defect alleged to be occurred in the power tiller was produced by the complainant before the Forum. Alleged letter of B.D.O. which was issued to appellant No.2 recommended the replacement of power tiller. In the said letter it is observed that as per information by complainant there are defect in the power tiller. B.D.O. himself did not inspect the vehicle. It is therefore contended by Adv.Patil that complainant tried to obtain said report by using their position. Adv.Patil stated that complainant did not avail free services which were offered by the complainant. This itself shows that complaint is filed with ulterior motive. It is mentioned by Adv.Patil that as per warranty complainant is entitled for repair only and not for replacement. Appellants wrote letter dated 30.11.2005, 5.10.2005, 11.10.2005 and 16.12.2005 but said letters were not replied by the complainant. Officers of appellants visited the complainant but complainant denied to inspection of the vehicle by the appellant. Complainant did not permit the mechanic of the appellants to check and repair the vehicle. Respondent produced one certificate during the pendancy of appeal issued by surveyor. Shri.Shekhar Malara who is professional engineer and insurance 5 F.A.No. :1360/2006 surveyor issued certificate stating that starting stand, chasis part, air cleaner assembly broken/damage of power tiller and needs to be replaced. It is also mentioned in the certificate that while on trial, noticed extensive overheating/detonation/vibrations and needs to be stopped intermittently for cooling purpose and hence needs to be replaced by new one(Having manufacturing defect in the engine). This certificate is dated 27th Sept.2005. Certificate by Medical Officer, Rural Hospital, Pachora about the injury suffered by complainant due to breakage of stand is also produced by the respondent during the pendancy of appeal. Both these documents which alleged to be issued in the year 2005 but they were produced in 2011. It is therefore contended by Adv.Patil that complainant did not came before Fora with clean hand. No evidence regarding manufacturing defect was produced before the Forum. This comes first time in appeal. Adv.Patil produced bills issued to respondent regarding purchase of spare parts in respect of disputed power tiller. Adv.Patil forcefully contended that complainant using power tiller till today. If power tiller had any manufacturing defect complainant would have definitely returned the same to the appellant. But instead of that complainant is using the said power tiller up to this time. Therefore complaint is to be dismissed. He relied on 'Laxmi Engineering Works-Vs- P.S.G.Industries' reported in 1995 AIR 1428 & 'Harsolla Motors -Vs- National Insurance Co.Ltd.' reported in I(2005) CPJ 27(NC).
8. Adv.Shri.P.M.Kulkarni appeared on behalf of respondent. He submitted that complainant purchased power tiller for operating agriculture operation. He is doing business of cashew processing centre, tree farming, and nursery for earning livelihood. By availing subsidy complainant decided to purchase power tiller. But from the date of purchase power tiller started giving trouble. Therefore complainant many times approached the appellant. But grievance of complainant 6 F.A.No. :1360/2006 never redressed. Mechanic from the appellant visited the complainant without giving intimation. But they could not repair power tiller properly. Report of expert clearly shows that power tiller is not working properly. It is further submitted by Adv.P.M.Kulkarni that as stand of power tiller was broken complainant could not brought it for the servicing at Jalgaon. Dist.Forum rightly considered all the facts while allowing the complaint. In support of his argument he relied on " Jose Philip Mampillil -Vs- M/s Premier Automobiles Ltd." reported in AIR 2004 Supreme Court 1529 & "Lucknow Development Authority -Vs- M.K.Gupta" reported in AIR 1994 Supreme Court 787.
9. We heard both the counsels at length and perused the record. In the complaint, complainant mentioned that she is possessing 30 to 40 acres of land. She is running business of cashew processing centre, tree forming, nursery etc. It is also alleged by complainant that as she owns huge land, she required VST tiller. In our view complainant purchased power tiller for the commercial purpose. When complainant using said things carrying activity in large for the purpose of earning profit, as per Section 2(1)(d) of Consumer Protection Act complainant is 'not consumer'. Even otherwise it has seen from one record that the mechanic and responsible officer from the appellant every time visited the complainant to redress all the grievances. But complainant tried to avoid said services. Free services were not availed by the complainant which shows intention of complainant. The grievance of complainant about breakage of starting stand, air cleaner of oil leakage and tyre which are repaired by the mechanic of appellant company. Accordingly, letters were issued by appellant to the complainant. In each letter, it is explained to the complainant that how problem of complainant is cured. The said letters were not replied by the complainant nor challenged by the complainant. No expert`s evidence regarding manufacturing defect 7 F.A.No. :1360/2006 in power tiller was produced by the complainant. B.D.O. recommended replacement of power tiller who is not expert in mechanical things.
10. Complainant purchased power tiller for Rs.80,000/- and he claimed compensation of Rs.18 lakhs which speak about attitude of complainant. It has come on record by affidavits of responsible officers of the appellant that grievances of complainant were responded every time. Complainant herself denied the repair by mechanic. Warranty given by appellant is for repairs of part and according to warranty repairs were carried out by the appellant. On perusal of order of Dist.Forum it found that Dist.Forum did not consider the issues or objection raised by the appellant. While directing appellant to pay price of power tiller Dist.Forum held price as Rs.43,039/- which is not correct. Dist.Forum relied on letter of B.D.O. which mentioned that as per observation of complainant defects are in the power tiller and therefore he recommended for replacement of power tiller. In our view the Dist.Forum committed error while perusing record and facts of the matter. Dist. Forum did not appreciate the affidavit and written statement filed by appellant. In the above mentioned circumstances we are of view that complainant is not consumer as he purchased power tiller for commercial purpose. Complainant is not entitled to replacement of the power tiller as there are no manufacturing defects. No expert evidence produced by complainant to show that power tiller is suffering from any manufacturing defects. We are therefore allowing appeal by dismissing the complaint. Hence we pass the following order.
O R D E R
1. Appeal is allowed.
2. The impugned judgment and order passed by the Forum is hereby quashed and set aside.
3. Complaint is dismissed.
8 F.A.No. :1360/20064. No order as to cost.
5. Copies of the order be sent to both the parties.
K.B.Gawali, Mrs.Uma S.Bora Member Presiding Member Mane