State Consumer Disputes Redressal Commission
M/S Sagar Motors Pvt.Ltd., vs Sri Bhaskar Chandra Jethy, on 26 June, 2020
STATECONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK
C.D. APPEAL NO. 677 OF 2003
(From an order dated 26.2.2003 passed by the District Forum,
Cuttack in C.D.Case No. 196 of 2001)
M/s Sagar Motors Pvt.Ltd.,
Represented through its Managing
Director, Mandupatna, Cuttack - 10
... Appellant
Vrs.
1. Sri Bhaskar Chandra Jethy,
At/Po - Baranga, Ps - Niali,
Dist - Cuttack
2. Manager, Cuttack Diesels
Authorised Dealers of MICO,
OMP Chhak, Cuttack
... Respondents
3. Managing Director,
Tractors and Farms Equipment Ltd.,
Post Box No. 3302, Chennai - 600034
4. Secretary,
Kapasi Service Co-operative Society,
At/Po - Kapasi, Via - Niali, Dist - Cuttack
... Proforma Respondents
____________
For the appellant : M/s P.R.Barik& Associates
For respondent No.1 : M/s R.R.Jethi & Associates
_____________
2
P R E S E N T:
THE HON'BLE DR. JUSTICE D.P.CHOUDHURY,PRESIDENT
AND
DR. S.MOHANTY,MEMBER
DATED THE 26th JUNE, 2020
ORDER
DR. D.P. CHOUDHURY,J., PRESIDENT This appeal is directed u/s 15 of the Consumer Protection Act, 1986 (hereinafter called the "Act") against the order dated 26.2.2003 passed by the learned District Forum, Cuttack in C.D. Case No. 196 of 2001 wherein the District Forum has directed the appellant and respondent No.3 to replace a new fuel injection pump in place of old one in the tractor of the complainant and to pay Rs.1859.10 towards repairing charge within two months from the date of communication of the order.
2. Appellant was OP No.2 whereas respondent No.1 was the complainant and respondent No. 2 was OP No. 3 before the learned District Forum. Hereinafter the parties to this appeal 3 shall be referred to with reference to their respective status before the District Forum.
FACTS
3. Learned counsel for the appellant submitted that he is the dealer of the Tractor duly purchased by the complainant from him. The complainant alleged before the learned District Forum that during warranty period the fuel injunction pump fitted with the tractor went out of order and the same has been repaired time and again by OP No.3. Complainant has also alleged that on 8.8.2001 when he went to OP No.3 for repair, the latter advised for replacement of the said defective fuel injunction pump as time and again same would give problem to operate the tractor. Then complainant filed the complaint before the learned District Forum.
4. It is submitted by the learned counsel for the appellant that the learned District Forum without understanding the written version of the appellant passed illegal and unfair order 4 directing OPs 1 and 2 to replace a new fuel injunction pump in place of old one and pay a sum of Rs.1,859/- which was spent by the complainant for repairing of the said fuel injunction pump.
5. It is submitted by the learned counsel for the appellant that the OP No.3 is actually the manufacturer of said fuel injunction pump but the learned District Forum without appreciating the fact and law exempted OP No.3 from his liability and thrust liabilities upon OPs 1 and 2 who are whole seller and dealer respectively to replace the said part of the tractor.According to him, the warranty issued by OP No.2 to the complainant does not cover this part of tractor as OP No.2 is authorised dealer of such part of Tractor.So the learned District Forum has committed material illegality by fixing up the responsibility on the appellant and OP No.1 and exonerated OP No.3 for any liability. So the learned counsel for the appellant submitted to set aside the order of the learned District Forum 5 and allow the appeal.
5. Although summoned returned back after service but respondent No. 1 & 2 did not appear. Since it is a matter of 2003, we are inclined to go through the materials and disposed of the case on merit.
6. Considered the submission of learned counsel for the appellant, perused the complaint, written version and the documents filed by the parties.
DISCUSSIONS
7. It is admitted fact that complainant has purchased the tractor on payment of consideration from the appellant. It is not in dispute that the appellant is the authorised dealer under OP No.1. It is also an admitted fact that OP No.4 has given finance to the complainant to purchase the tractor.The complainant has relied upon warranty given by OP No.1, cash memo issued by the Cuttack Diesel OP No.3 towards repairing of the fuel injunction pump, warranty issued by OP No.2 besides other 6 documents. The copy of the warranty as admitted by both the parties reveal in following manner:-
"xxx xxx xxx As for such parts as tyres, batteries, electrical equipment and fuel injection pump not manufactured by the company but supplied by other parties, this warranty shall not apply but buyers of the Tractor shall be entitled to, so far as permissible by law, as such rights as the company may have against such parties under their warranties in respect of such parts."(underlined by us)
8. The aforesaid document clearly shows that the warranty issued by the appellant to the complainant does not cover said fuel injunction pump in question as same has not been manufactured by OP No.1 and same has been manufactured by other parties. It is admitted by both the parties that warranty would continue for one year. It is found from cash memo dated 30.3.2001 that such pump is repaired by OP No.3 and OP No.3 has received Rs.1385.60 from complainant for repair. Another cash memo issued by OP No.3 shows that complainant has paid Rs.473.50 for repairing such pump set. Admittedly, such fuel 7 injunction pump was repaired by OP No.3 of course on payment of cost within warranty period. The letter of the appellant/OP No.1 shows that he and his manufacturer are not responsible because as warranty does not cover this part and OP No.3 is real dealer of such part and he is to actually remove the defect or replace the part. Written version filed by OPs 1 and 2 also speaks so. OP No.3 neither appeared nor filed written version.
9. In such circumstances, when warranty produced by the complainant does not cover the terms and conditions of for such part sold by OP Nos. 1 and 2 to the complainant, the learned District Forum committed illegality by exempting OP No.3 from any liability. On the other hand, the finding of the learned District Forum is as follows:-
" xxx xxx xxx From the materials on record it is proved that complainant had purchased a tractor manufactured by OP No.1 from OP No.2 on payment of consideration. It is also admitted that fuel injunction pump was found to be defective and it could not be rectified in spite of repeated 8 repairing of the same. OP 1 & 2 being the manufacturer and dealer are responsible and they also liable for replacement of the fuel injunction pump as the same was found to be defective during the period of warranty. When the complainant had not purchased the tractor from OP 3 the question of replacement of fuel injunction pump by OP 3 does not arise. Similarly, when OP 3 repaired the fuel injunction pump during the warranty period though OPs 1 & 2 are required to do the same, OP 3 is entitled to take repairing charge and such repair charge is to be reimbursed from OP 1 & 2 as they are the manufacturer and the dealer."
10. The aforesaid finding of the learned District Forum is liable to be set aside because it has not at all taken into consideration the purpose of warranty to give free service during warranty period and exemption of such part of tractor from the liability of OP No.1 & 2.
11. Be that as it may, OP No.3 during warranty period and being also dealer of such part demanded Rs.1,385/- which is unjust and illegal. Thus, we are of the view that finding of the learned District Forum is incorrect and illegal and same requires our intervention.
9CONCLUSION
12. In the complaint the complainant did not ask for relief against OP No.3 and only asked for relief against OP Nos. 1 and
2. So OP No.3 also did neither file written version nor contested the case. In such circumstances, it is not proper excepting his presence in this Commission. But OP No.3 could have responded call of this Commission but did not do so. Complainant has also not filed any cross appeal.
13. In view of aforesaid discussion, we are of the opinion that order of the learned District Forum directing OPs 1 and 2 to replace the new fuel injunction pump is liable to be set aside and we do so. Further when OP No.3 has accepted the money for repairing of the tractor of the complainant, it is not understood how OPs 1 and 2 would pay back such charges to the complainant. On the whole, we are satisfied that the complaint against OPs 1 and 2 should be dismissed and finding of learned District Forum are wholly illegal and liable to be set 10 aside.
14. In the result, the impugned order is set aside and appeal allowed. No cost.
Supply free copy of this order to the respective parties. DFR be sent back forthwith.
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(Dr.D.P.Choudhury,J President I agree.
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(Dr.S.Mohanty) Member Cuttack Dated 26th June,2020