State Consumer Disputes Redressal Commission
Shahi Motors vs Kulwant Singh on 20 March, 2017
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.209 of 2016
Date of Institution: 09.03.2016
Order reserved on:16.03.2017
Date of Decision : 20.03.2017
Shahi Motors (Authorized Dealer) of New Holland Tractors, Nabha
Road, Malerkotla, District Sangrur, through its Autorized Signatory
Suresh Kumar.
.....Appellant/opposite party no.1
Versus
1. Kulwant Singh son of Hari Singh,
2. Balwant Singh son of Hari Singh,
Both residents of Village Sekha, Tehsil Payal, District Sangrur.
.....Respondent nos.1&2/complainants
3. New Holland Tractors, Head Office, Suite No.301, Copia
Corporate, Suites, Jasola, District Centre, New Delhi through
its Managing Director.
.....Respondent no.3/opposite party no.2
First appeal against order dated
05.02.2016 passed by the District
Consumer Disputes Redressal
Forum, Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Harkeerat Singh, Advocate For respondent nos.1&2: Sh. K.S. Cheema, Advocate For respondent no.3 : Sh. R.K. Bansal, Advocate .................................................
AND 2) First Appeal No.221 of 2016 Date of Institution: 15.03.2016 Order reserved on:16.03.2017 Date of Decision : 20.03.2017 First Appeal No.209 of 2016 2 New Holland Fiat (India) Pvt. Ltd, Head Office, Suite No.301, Copia Corporate, Suites, Jasola District Centre, New Delhi through its authorised signatory Shri Maninder Singh Sohal.
.....Appellant/opposite party no.2 Versus
1. Kulwant Singh son of Hari Singh,
2. Balwant Singh son of Hari Singh, both residents of Village Sekha, Tehsil Payal, District Ludhiana.
.....Respondent nos.1&2/complainants
3. Shahi Motors (Authorized Dealer) of New Holland Tractors, Nabha Road, Malerkotla, District Sangrur, through its Autorized Signatory Suresh Kumar .....Respondent no.3/opposite party no.1 First appeal against order dated 05.02.2016 passed by the District Consumer Disputes Redressal Forum, Sangrur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. R.K. Bansal, Advocate For respondent nos.1&2: Sh. K.S. Cheema, Advocate For respondent no.3 : Sh. Harkeerat Singh, Advocate .................................................
J.S KLAR, PRESIDING JUDICIAL MEMBER :-
By this common order, we intend to dispose of the above referred two first appeals, as they have arisen out of the same order dated 05.02.2016 of the District Consumer Disputes Redressal Forum, Sangrur (in short the 'District Forum), as such, they can be disposed of together. The order shall be pronounced by me in main first appeal no.209 of 2016 titled as "Shahi Motorss Vs. Kulwant First Appeal No.209 of 2016 3 Singh & others", which has been filed by opposite party no.1 against above order. The appellant of this appeal is OP No.1 and respondent nos.1 & 2 of this appeal are complainants and respondent no.3 of this appeal is opposite party no.2 before the District Forum in the original complaint and they be referred as such hereinafter for the sake of convenience.
2. First appeal no.221 of 2016 has been filed by opposite party no.2 now appellant against order dated 05.02.2016 of the District Forum. The appellant of this appeal is OP no.2, respondent nos.1 & 2 of this appeal are complainants and respondent no.3 of this appeal is OP no.1 in the complaint before the District Forum and they be referred as such hereinafter for the sake of convenience.
3. The complainants instituted complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the factual matrix that they purchased a tractor 3630 Turbo, bearing chassis no.2239662, engine no.110056NX, from OP no.1 on 06.09.2014, vide invoice no.30 for Rs.6,90,000/-. OP no.1 did not give any further equipment and accessories to the complainant alongwith the said tractor at the time its purchase. The tractor in question purchased by the complainants started giving problems of loading and gear problem. They visited the office of OP no.1 with the said problems in the tractor in October 2014. The employees of OP no.1 asked them to leave the tractor in the workshop for examination of the problems and to take the same back in the evening. A slip was given to this effect by the workshop personnel to complainants. The First Appeal No.209 of 2016 4 complainants received the tractor on the assurance of OP that it has become defect free. The tractor again started giving the same problems repeatedly necessitating the visit of complainants to the workshop of OP no.1 for the same snag, which continued in the tractor since the date of its purchase. OP no.1 again assured them to check the vehicle and to make it trouble free. The personnel of OP no.1 informed them that the tractor was still continuing giving the same problems and was not repairable. OP no.1 further apprised the complainant to register the complaint with the manufacturer of tractor OP no.2 and then to intimate the office of OP no.1 about it. When complainants visited the workshop of OP no.1, it was assured that the officials of OP no.1 would visit the workshop to set the tractor trouble free. The workers of OP no.1 disclosed the complainants that tractor sold by OP no.1 to them was not having sealed engine and they were shocked to hear about it. The tractor sold to them by OP no.1 was repainted one. The complainants approached OP no.1 to replace the tractor, being within warranty period on account of manufacturing defects in it. OP no.1 told them that tractor was new one and the rectification thereof was beyond its control and hence they have to register the complaint with OP no.2, the manufacturer of the tractor in question. After waiting for 10-15 days, they again visited the office of OP no.1, enquiring about the rectification of the problems of the tractor, thereupon OP no.1 again assured them regarding registering the complaint with OP no.2 and no official of OP no.2 visited the workshop of OP no.1 as yet and nothing was First Appeal No.209 of 2016 5 done in that regard. OP no.1 delivered the defective tractor under the garb of new tractor to the complainants. It is liability of OP no.2 to replace the tractor, which was having manufacturing defects. The said tractor was not having the sealed engine and from bare look, it was evident that the engine of the tractor was not a sealed one. The complainants filed the complaint directing OPs to refund the price of the tractor i.e. Rs.6,90,000/- alongwith interest @18% per annum from the date of purchase till realization; further to pay Rs.1 lakh as compensation for mental harassment; and to pay Rs.11,000/- as litigation expenses.
4. Upon notice, OP no.1 appeared and filed written reply by raising preliminary objections that the complainant has no locus standi to file the complaint; the complaint is alleged to be not maintainable; the complaint is alleged to be false meriting dismissal with special costs of Rs.10,000/-; the complainants have not submitted all the documents with the complaint. On merits, this fact was not disputed that OP no.1 being authorized dealer of OP no.2 sold the tractor in question to complainant. OP no.1 averred that tractor was sold to complainants on 17.03.2014 by delivering it on that date and OP no.1 issued tractor delivery certificate on 17.03.2014 in the name of Gurmeet Singh son of Kulwant Singh and Kulwant Singh and Gurmeet Singh both signed the same. As part payment of the said tractor was due against them, no bill was issued and bill was issued to the complainants on 06.09.2014, when balance amount was paid by them, vide invoice no.30 dated First Appeal No.209 of 2016 6 06.09.2014 for Rs.6,90,000/-. All the equipments were also supplied with the tractor to the complainants. This fact was denied by OP no.1 that complainants brought the said tractor for service to the workshop of OP no.1 in October, 2014. The complainants never brought the tractor in the workshop of OP no.1 after date of its delivery i.e. 17.03.2014. They had not brought the tractor even for its first and second service in the workshop of OP no.1, as required by service manual, which was handed over to them. Any assurance by workshop staff of OP no.1 in that regard was vehemently denied. Legal notice dated 12.01.2015 sent by the complainant to it was based on distorted facts. OP no.1 controverted the averments of the complainants with regard to any manufacturing defect in the tractor. OP no.1 prayed for dismissal of the complaint.
5. OP no.2 being manufacturer of the tractor in question filed its separate written reply by raising preliminary objections that no cause of action accrued to complainants to file the complaint. Any manufacturing defect was vehemently denied by OP no.2. It was further pleaded that there is no privity of contract between the complainants and OP no.2. On merits, this fact was admitted that complainants purchased one tractor from OP no.1 on 17.03.2014. All the equipments inclusive service booklet were supplied to them and they signed the delivery challan on 17.03.2014 after receiving the tractor. On receipt of entire consideration amount of the tractor on 06.09.2014, the bill was issued by OP no.1 to them. The complainants were provided warranty booklet and told about the First Appeal No.209 of 2016 7 service schedule at the time of delivery of the tractor on 17.03.2014. They were also explained for regular service and necessary check up of tractor for proper smooth functioning of it. On 06.09.2014, the bill was issued by OP no.1 to them. The complainants never adhered to the schedule and never cared to bring their tractor for mandatory service. The complainant never informed OP no.2 about any alleged defects in the tractor, other than the legal notice dated 12.01.2015. Manufacturing defect in the tractor was vehemently denied by OP no.2. It controverted the other averments of the complainants with regard to any other infirmity in the tractor purchased by them. OP no.2 prayed for dismissal of the complaint.
6. The complainant tendered in evidence affidavits and documents Ex.C-1 to C-8 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit and documents Ex.OP-1/1 to Ex.OP-1/10 and closed the evidence. OP no.2 tendered in evidence affidavit and documents Ex.OP-2/1 to Ex.OP-2/4 and closed the evidence. On conclusion of evidence and arguments, the District Forum allowed the complaint of the complainant by directing OPs to replace the tractor in question with a new one and further to provide the extended warranty of the tractor; further to pay Rs.20,000/- as compensation for mental harassment and Rs.10,000/- as litigation expenses. Aggrieved by above order, the OPs have preferred above referred two separate first appeals against the same.
7. We have heard the learned counsel for the parties at considerable length and have also examined the record of the case. First Appeal No.209 of 2016 8 This fact is not disputed in this case that OP no.1 is the authorized dealer and OP no.2 is the manufacturer of the tractor, which was purchased by the complainants for consideration. The version of the complainants is that tractor has been giving loading and gear problem since the beginning of its purchase. On the other hand, the submission of counsel for the appellant before us is that the tractor was actually purchased by the complainants on 17.03.2014. The counsel for OPs relied upon delivery certificate Ex.OP-1/A dated 17.03.2014. Undoubtedly, it is signed by Gurmeet Singh complainant in Punjabi script. There is valid explanation tendered by counsel for the complainant during the arguments, that the OPs got the blank proformas signed from the customers and as a matter of exploitation, they converted them later on to any date, as per their choice. The forceful submission of counsel for the appellant before us is that the cash book entries have been prepared by the OPs in their cash book and they showed the balance amount from the complainants towards the tractor. The submission of counsel for the complainants before us is that this is the document of the OPs and it not authenticated by any chartered accountant and as such no reliance should be placed upon it. The submission of the appellants is that they delivered the tractor on 17.03.2014 and since the part payment was due from complainant to OPs, hence they issued the bill on 06.09.2014. We are no impressed with this submission of counsel for the OPs now appellants of above referred appeals on this point. No businessman would deliver a valuable piece of vehicle unless and until he has First Appeal No.209 of 2016 9 received the entire price thereof. We do not find any force in the submission of the appellant to this effect that tractor was actually delivered on 17.03.2014 and bill therefor was issued on 06.09.2014. Ex.OP-1/3 is the retail invoice dated 06.09.2014 for the total price of Rs.6,90,000/- of above said tractor. Ex.OP-1/4 to Ex.OP-1/7 are the copies of cash book of OPs for the period 05.04.2014, 19-5.2014, 28.06.2014 and 06.09.2014. Ex.OP-1/8 is the ledger account for the period 01.04.2014 to 31.03.2015. These documents were with OPs in its custody and they could have been converted as per their choice. Generally, the delivery is made on the date of issuance of the invoice of vehicle by the dealer. We repel this argument of counsel for the appellants on this point.
8. Now, we are concerned with this fact as to whether any manufacturing defect in the tractor has been proved in this case by the complainants or not. Undoubtedly, the onus is on the complainant to prove the manufacturing defect in the vehicle. We are primarily to look into this point as to whether the complainants have been able to discharge the onus of this issue, laid upon them or not. Out attention has been drawn to affidavit of complainant Kulwant Singh Ex.C-1 on the record. This witness categorically deposed on oath that the tractor since after its purchase, started giving problems of loading and gear problem. He further stated that he took it with OPs in October, 2014, but they remained unable to set it free of above defects. He further deposed that complainants came to know that the engine of the tractor was not sealed one and body of the First Appeal No.209 of 2016 10 tractor was repainted one. He further stated that the officials of OP no.1 told them that repair and rectification of tractor was beyond control. Ex.C-2 is the affidavit of Billu Singh, Mechanic, who has deposed that he has been carrying on this job/profession of repair of tractors for the last more than 25 years at Maloud. He further stated that the tractor in question purchased by the complainants was brought to him in the presence of Dharamjit Singh and Harminder Singh, who already known to him, which was a new tractor. When he checked the tractor, the engine of it was already unsealed and there were problems of starting and gear box in it. He stated that there was manufacturing defect in it. The complainants also tendered in evidence affidavit of Harminder Singh of Village Sekha. He deposed that there was problem of gear box in the tractor and there was also starting problem in the said tractor. In his presence, the tractor was taken to OP no.1 by the complainants for rectification of above problems. OP no.1 did something and assured that it was made defect free. It was brought back by the complainants in the village. It continued in the same condition giving the same problems. Affidavit of Dharamjit Singh is Ex.C-4 on the record to substantiate the averments of complainants regarding manufacturing defect in the tractor. This witness further deposed that it was informed by the mechanic that the engine of the tractor was unsealed and there was manufacturing defect in it. The complainants sent legal notice dated 12.01.2015 in this regard to OPs, which is supported by the postal receipts Ex.C-7 and C-8 on the record.
First Appeal No.209 of 2016 11
9. In rebuttal of this evidence, OPs relied upon tractor delivery certificate dated 17.03.2014 Ex.OP-1/1. Warranty registration card Ex.OP-1/2 recording the date of delivery as 17.03.2014 prepared by OP no.1 Ex.OP-1/3 is retail invoice dated 06.09.2014. Affidavit of Suresh Kumar partner of OP no.1 is Ex.OP- 1/10 on the record. He denied any manufacturing defect in the tractor. He deposed that tractor was never brought to the above workshop of OP no.1 for first and second service. Any manufacturing defect in it was totally denied by this witness. Reply to legal notice sent by OP no.2 dated 28.01.2015 is Ex.OP-2/1 on the record. Ex.OP-2/3 is the authority letter. Ex.OP-2/4 is the affidavit of Maninder Singh Manager of OP no.2. This witness stated that there was no manufacturing defect in the tractor. The complainants violated the warranty condition by not attending the mandatory service schedule. The OPs are ready to check the tractor and provide them service, if complainants bring their tractor for service at dealership. This is the only evidence brought on the record.
10. The counsel for the appellants contended that no record with regard to manufacturing defect of the vehicle has been produced on the record by the complainants. Reference was made to law laid down in "M.N. Project Pvt. Limited Vs. Ashok Leyland Ltd. & others" 2009(3)CLT-137, a judgment of the National Commission in this case. Reference was also made to law laid down in case titled as "Mahindra & Mahindra Limited Vs. B.G. Thakurdesai & another" II(1993) CPJ-225(NC) to the effect that First Appeal No.209 of 2016 12 once defect has been removed, the consumer is not entitled to replacement of the vehicle. Reference was also made to law laid down in case "Swaraj Mazda Limited Vs. P.K. Chakkappore & another" II(2005)CPJ-72(NC) of the National Commission that Excessive oil consumption is not manufacturing defect. Problem with chassis admitted for which replacement offered by OP, which was declined by the complainant. Manufacturing defect not proved. We have examined the cited authorities, cited by appellant before us. Each of the authority has arisen out of its own peculiar facts and we have to examine whether they applied to the fact situation of the case in hand. The complainants have led evidence that there were gear box problem and starting problem in the tractor in question. The engine of the tractor was not sealed one and the body parts of the tractor were repainted one. These pleadings and evidence in support thereof appeared on record, as adduced by the complainants. OPs also led counter evidence denying these averments. We find that vide order dated 02.09.2015, the District Forum appointed Sh. Bhupesh Bhardwaj, Investigator, surveyor and loss assessor as local commissioner to examine the tractor to report about the condition of the tractor, in the presence of counsel for the parties. The report of Er. Bhupesh Bhardwaj is on the record. Since, he was appointed by the District Forum, his report is an integral part of the record. The OPs have not put in appearance before him and complainants produced the tractor before him, as directed by the District Forum. He gave his report as under:
First Appeal No.209 of 2016 13
"I found some impression on all nuts of chamber, (paint was not intact on heads of nuts fitted on chamber), I also found abnormalities or adhesive filled at joint of gasket of housing.
On the basis of this impressions carried out by me, it seems that somebody might have opened/try to open the chamber.
Few photographs of the vehicle were taken from different angles, and chamber nuts and main front engine joint, in which we can see the heads of nuts. >Low high gear was not working. Engine starting problem, excess smoke release found from tractor. My report is based on my technical inspection held on dated 19.09.2015.
After complete BE, I cleared written papers of motor, Engg, Misc. from Insurance Institute of India and got the Surveyor & Loss Assessor license from IRDA, and I am at the panel of all four Govt, Insurance companies to investigate and assess the loss.
The report is issued without prejudice."
By virtue of above report, this witness has proved that he found some impression on all nuts of chamber, (paint was not intact on heads of nuts fitted on chamber). He also found abnormalities or adhesive filled at joint of gasket of housing. On the basis of above impressions gathered by him from inspection of tractor, he recorded that somebody might have opened/try to open the chamber. Few photographs of the vehicle were taken by him from different angles, and also of chamber nuts and main front engine joint. He further First Appeal No.209 of 2016 14 found in his report, low high gear was not working. He also found engine starting problem, excess smoke release problem. His report has been based on technical inspection held on dated 19.09.2015, as per order of the District Forum. He has corroborated the version of the complainants that engine of the tractor was unsealed and the parts of it were repainted one indicating that the tractor was badly tempered with and then sold to complainants. There was no question of non-sealing of engine and repaint of the parts of the tractor, if it was a new one. The greater significance is attached to the report of this expert witness on the record, which is duly supported by the relevant documents and photographs on the record. Undoubtedly, OPs filed objection to his report, but the District Forum never accepted the objection. The OPs never opted for the cross- examination of this witness, appointed by the District Forum in this regard. Why OPs have not opted to cross-examine the witness is unexplained fact on their part. We, thus, return this finding that engine of the tractor was not sealed one and the body parts of the tractor in question were repainted and it gave the problems of gear box and starting problem at the very beginning. It is not explained by the OPs how the engine of the tractor was not sealed one, when the tractor was newly purchased by the complainants. This is a case of unfair trade practice on the part of OPs. Consequently, the District Forum rightly ordered the OPs to replace the tractor with a new tractor of the same model with extended warranty of tractor. We further clarify that in case OPs are not able to give the tractor of the First Appeal No.209 of 2016 15 same model with the extended warranty to complainants, then in that eventuality, the OPs shall refund the price of the tractor of Rs.6,90,000/- with interest @9% per annum from the date of receipt of the sale price till actual payment to the complainants. The order of District Forum regarding compensation on other heads is not disturbed in this appeal.
11. As a result of our above discussion, we find no merit in above referred two first appeal no.209 of 2016 and first appeal no.221 of 2016 and the same are hereby dismissed by affirming the order of the District Forum.
12. In First Appeal No.209 of 2016, the appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal. This amount alongwith interest, which accrued thereon, be remitted by the registry to respondent no.1 & 2 of this appeal being complainants in equal shares to the extent of their entitlement to compensation as per order of District Forum, by way of crossed cheque/demand draft after 45 days.
13. In First Appeal No.221 of 2016, the appellant had deposited an amount of Rs.25,000/- in this Commission at the time of filing the appeal and further deposited the amount of Rs.6,50,000/- in compliance with order of this Commission. These amounts alongwith interest accrued thereon, if any, be remitted by the registry to the District Forum below with the direction to remit these amounts to complainants in case the OPs failed to replace the tractor in question with new one of the same model with extended warranty to First Appeal No.209 of 2016 16 the complainants. In case, the OPs replaced the new tractor of the same model to the complainants with extended warranty, then the amounts shall be remitted to that OP, which deposited it. The District Forum is directed to perform this duty punctiously in compliance of this order.
14. Arguments in above referred appeals were heard on 16.03.2017 and the orders were reserved. Certified copies of the orders be communicated to the parties as per rules.
15. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER March 20, 2017 (MM)