State Consumer Disputes Redressal Commission
Ido Farm Equipments Ltd. vs Bahadur Singh And Others on 20 March, 2015
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.762 of 2013
Date of institution : 12.07.2013
Date of decision : 20.03.2015
Indo Farm Equipment Limited, a company registered under the
Companies Act, having its Registered Office at SCO 859, NAC, Mani
Majra, Chandigarh and works at Industrial Park, Phase-II, Baddi-
17305, District Solan (HP), through its Authorized Signatory
Gurminder Saini.
.......Appellant/Opposite Party No.1
Versus
1. Bahadur Singh S/o Maghar Singh, R/o Dhanaula, Tehsil and
District Barnala.
...Respondent/Complainant
2. M/s Khalsa Tractor House, G.T. Road, Jagraon, through its
Authorized Signatory, District Ludhiana.
3. Guru Nanak Tractors, Dhanaula Road, near Sale Tax Office,
Barnala, through its Authorized Signatory Tek Singh.
...Respondents/Opposite Parties Nos.2 & 3
First Appeal against the order dated
16.05.2013 of the District Consumer
Disputes Redressal Forum, Barnala.
Quorum:-
Hon'ble Mr. Justice Gurdev Singh, President
Mr. Baldev Singh Sekhon, Member
Present:-
For the appellant : Shri Vishal Gupta, Advocate For respondent No.1 : Shri Bahadur Singh, in person. For respondents Nos.2&3 : Ex parte.
First Appeal No.762 of 2013 2JUSTICE GURDEV SINGH, PRESIDENT :
The appellant/opposite party No.1 has preferred this appeal against the order dated 16.05.2013 passed by District Consumer Disputes Redressal Forum, Barnala (in short, "District Forum"), vide which the complaint filed by Bahadur Singh, respondent No.1/complainant, under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), was allowed and the opposite parties were jointly and severally directed:-
i) to refund the amount of Rs.5,05,000/- to the complainant, along with interest at the rate of 9% per annum from the date of filing of the complaint till the realization of that amount; and
ii) to pay consolidated amount of compensation to the tune of Rs.25,000/- to the complainant for dragging that innocent and illiterate person into unwanted litigation;
2. The complainant alleged, in his complaint, that he purchased one brand new tractor make Indo Farm 3050 DI, detailed in Para No.3 (a) of the complaint, from opposite party No.3 for a sum of Rs.5,05,000/-, in respect of which bill No.04 dated 10.06.2011 was issued by opposite party No.2, being the Authorized Signatory of opposite party No.1. However, in a fraudulent manner, the amount in the bill was mentioned as Rs.4,40,000/-. Being illiterate and rustic villager, he failed to take notice of that fact at the time the bill was issued. He paid Rs.3,30,000/- in cash and the remaining amount was adjusted towards the price of the old tractor make Swaraj-855; which was sold to opposite party No.3 under the bargain. There was First Appeal No.762 of 2013 3 manufacturing defect in the tractor; as a result of which, the tyres thereof were rubbing from the wrong side, there was problem in the lift which was not working properly and the diesel pump was creating trouble. Those defects were brought to the notice of opposite party No.3 and for repairs, the tractor remained parked in its premises for one week and thereafter, the same was handed over to him, with the assurance that the same would run smoothly. The problems remained unsolved and, as such, he again took the tractor to opposite party No.3 and brought those defects to its notice. He was told that in case Rs.1,10,000/- are paid in cash, then the tractor would be replaced with a new one, but he refused to get the same replaced with a new one. Opposite party No.1, who had issued Form No.22 at the time of the sale of the tractor, admitted vide letter dated 24.08.2011 that there were defects in the tractor and that fact was also admitted, vide certificate of even date. As per that certificate, the tractor was sent back after the repairs to opposite party No.3, but the condition remained the same. In fact, the tractor was not brand new and the opposite parties, in connivance with each other, sold the old tractor; by playing fraud upon him. He purchased the same for agriculture purposes, with the hope that there would be increase in his income, but his hopes stood shattered and he suffered huge financial loss. He sent legal notice to the opposite parties, through his counsel, on 22.09.2011. The same was acknowledged by opposite party No.3, who gave reply to the same; in which it admitted the factum of the sale of the tractor, but denied the defects therein. In the reply, it was wrongly mentioned that the tractor had been First Appeal No.762 of 2013 4 driven on iron girders and was not being used for agriculture purposes and that there is no provision to replace that tractor with a new one. The service book of the tractor was not intentionally given to him, with the mala fide intention. As a result of the above said acts, on the part of the opposite parties, he suffered financial loss, physical harassment, agony and mental tension. He prayed for the issuance of following directions to the opposite parties:-
i) to replace the tractor with a brand new or to refund Rs.5,05,000/-, along with interest;
ii) to pay Rs.1,00,000/-, on account of the mental tension, agony, physical harassment and financial loss suffered by him; and
iii) to pay Rs.15,000/-, as cost of the proceedings.
3. The complaint was contested by opposite parties Nos.1 & 3, by filing independent written replies before the District Forum. Opposite party No.2 did not appear before it in spite of its service and, as such, was proceeded against ex parte. Opposite party No.1, in its written reply, did not deny that the tractor, in question, was manufactured by it and was sold by the other opposite parties to the complainant and that the same was sent to it for repairs and was delivered back after effecting the repairs. While denying the other allegations made against it in the complaint, it pleaded that there was no manufacturing defect in the tractor. After effecting repairs, the same was given to Gurmeet Singh, son of the complainant, who after checking and testing the same, signed the Satisfaction Note. All the defects in the tractor were removed and no such defect First Appeal No.762 of 2013 5 persisted. There was no deficiency in service on its part. No complaint was ever made to it by the complainant at any point of time. He has no locus standi to file the complaint, as the tractor already stands repaired to his satisfaction. It was only due to the mishandling thereof that the problems, mentioned in the complaint, developed. It prayed for the dismissal of the complaint, under Section 26 of the Act; being frivolous and vexatious.
4. Opposite party No.3, in its written reply, admitted that the tractor was purchased from it by the complainant, vide bill No.04 dated 10.6.2011 and that the price thereof was Rs.5,05,000/-, whereas the sum of Rs.4,40,000/- was mentioned in the bill. While denying the other allegations made in the complaint, it pleaded that a brand new tractor was sold to the complainant and the sum of Rs.4,40,000/- was mentioned, after deducting the price of the old tractor, which was sold to it by the complainant. There was no manufacturing defect in the tractor. The same was examined by the mechanical experts of the company and the tyres thereof were examined by the experts of Birla Tyre Company and it was found by them that there was no technical or manufacturing defect in the machinery of the tractor or the tyres. It was found that the tractor was driven on iron girders in a pit in the field and due to that reason, the tyres of the tractor had been damaged after receiving the cuts. The notice sent by the complainant contained false and frivolous facts. The complaint has been filed on false and fictitious facts, by concealing the material facts from the District Forum. The tractor was sold by it only as an authorized dealer of the manufacturer and, First Appeal No.762 of 2013 6 as such, the complaint is not maintainable against it. The complainant has no locus standi to file the same and is estopped from filing the same by his act and conduct. A false and concocted story has been put forward by him, in order to grab the money from it. He does not fall under the definition of the "consumer", as contained in the Act. It prayed for the dismissal of the complaint, with Rs.20,000/- as special costs; having been filed to harass it.
5. Parties produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, allowed the complaint, vide aforesaid order.
6. We have heard the learned counsel for the appellant/ opposite party No.1, complainant in person and have carefully gone through the records of the case.
7. While challenging the findings recorded by the District Forum against the opposite parties, it was submitted by the learned counsel for opposite party No.1 that it was wrongly concluded by the District Forum that there was manufacturing defect in the tractor. Such a conclusion cannot be derived from the evidence produced by the complainant, who proved on record the affidavit of one Kulwant Singh, Tractor Repairer; who has not made such a deposition, from which it can be inferred that there was manufacturing defect in the tractor. The District Forum committed an illegality by recording a finding to that effect, only on the basis of that affidavit and by observing that the said mechanic was not subjected to cross- examination and no evidence was produced by the opposite parties First Appeal No.762 of 2013 7 to rebut that evidence. He further submitted that the District Forum failed to take into consideration the Satisfaction Note Ex.R-2, which was given by the son of the complainant himself, who was fully satisfied with the performance of the tractor after the same was repaired by opposite party No.1.That Satisfaction Note was recorded on 24.08.2011 and the present complaint was filed thereafter. That evidence totally excludes the possibility of any manufacturing defect in the tractor. In these circumstances, the findings recorded by the District Forum cannot be sustained and are liable to be set aside.
8. On the other hand, it was submitted by the complainant, in person, that under the guise of brand new tractor, second hand tractor was sold to him by the opposite parties, in connivance with each other, and the same was having a manufacturing defect, which could not be repaired by the opposite parties. In these circumstances, the order passed by the District Forum cannot be set aside.
9. It is very much clear from the prayer clause of the complaint that the complainant asked for the issuance of directions to the opposite parties to replace the tractor with a new one or to refund the amount of Rs.5,05,000/-, along with Rs.1,00,000/- as compensation. It was never his prayer that the alleged amount received by opposite party No.3, in excess, be refunded. Still the District Forum devoted main part of the order regarding the receipt of excess amount by opposite party No.1. The District Forum failed to properly consider the allegations made in the complaint. It is the case of the complainant himself that the tractor was purchased by First Appeal No.762 of 2013 8 him for Rs.5,05,000/-, out of which he paid Rs.3,30,000/- in cash and the remaining amount was adjusted towards the price of the old tractor sold by him to opposite party No.3. In these circumstances, that opposite party was justified in mentioning the balance amount in the bill. Moreover, it was never the dispute raised by the complainant in the complaint and his real dispute was regarding the manufacturing defect in the tractor. Without discussing any evidence as to whether it was a brand new tractor or old tractor, which was sold to the complainant, the District Forum, on account of the omission on the part of opposite party No.3 regarding the adjustment of the price of the old tractor in the bill, came to the conclusion that the complainant was probably sold an old and defective tractor and was charged for the new tractor. In fact, the reasoning recorded by the District Forum in support of those findings, is not, at all, sound and those findings in the absence of any evidence, direct or indirect, could not have been recorded.
10. In order to satisfy ourselves, as to whether the tractor so sold to the complainant was second hand, opposite party No.1 was directed to produce the record, as to when that tractor was manufactured? It placed on record the certificate dated 21.02.2015 and as per that certificate, this tractor was manufactured in the month of May, 2010. It also placed on record Invoice-cum-Despatch Note, vide which this tractor was sent through Surjit Singh and was delivered at Jagraon. As per bill Ex.C-1, the same was sold to the complainant on 10.06.2011. It is highly improbable that this tractor remained with the dealer for almost one year before the same was First Appeal No.762 of 2013 9 sold to the complainant. Form No.22, which was issued by opposite party No.1 in respect of this tractor, was proved on the record as Ex.C-3. That form is undated and no explanation has come from the side of opposite party No.1 as to how that form, which pertains to the certification from the manufacturer, has remained undated. This makes probable the stand taken by the complainant in his complaint that instead of a brand new tractor, second hand tractor was sold to him. Opposite party No.3 could have produced the record for proving that no transaction ever took place regarding this tractor after the same was received from opposite party No.1 in the month of May, 2010 till the same was sold to the complainant. For non-production of that evidence, an adverse inference is to be drawn against it.
11. About the manufacturing defect, as detailed in the complaint, the complainant proved on record his affidavit Ex.CW-1/A. He also proved on record the affidavit of Kulwant Singh, who is running Tractor Repair Workshop at Dhanaula, as Ex.CW-3/A. He deposed in his affidavit that the tractor was brought to his workshop by the complainant and there was manufacturing defect in the same, as it was rubbing the tyres from the wrong side; there was problem in the lift, which was not working properly and the same was causing problem in the smooth running of the engine of the tractor. The complainant proved on record his affidavit Ex.CW-4/A, in which he made his deposition that he had taken this very tractor to the mechanic at Dhanaula for repairs and spent Rs.8,915/- in respect of those repairs.
First Appeal No.762 of 2013 10
12. In view of the fact that opposite party No.1 received back this tractor for repairs, it does not lie in its mouth to say that the same was not having manufacturing defect. The complainant proved on record the certificate dated 24.08.2011 Ex.C-5, vide which it was certified by opposite party No.1 that this tractor, after repairs in the plant, was sent back to opposite party No.3 on 24.08.2011. A manufacturer would not have received back the tractor for repairs in plant, if there was no manufacturing defect in the same. Faced with that situation, one Satisfaction Note dated 24.08.2011 was proved as Ex.R-2. According to the opposite parties, the tractor was tested by Gurmeet Singh, son of the complainant, and he found that the same was performing well and he was fully satisfied with the performance thereof. For proving that Satisfaction Note, affidavit of Anil Jain, Company Secretary was proved on the record as Ex.R-1. Even if it is so, the son of the complainant had no authority from the side of the complainant to give such a satisfaction certificate, nor it is the case of opposite party No.1 that the tractor was sent to it by that son of the complainant.
13. It is a case where one illiterate and rustic consumer is fighting against the manufacturer, having all the facilities on its back and who is guilty of the issuance of undated certificate from the manufacturer, thereby concealing the date on which the same was manufactured and in order to enable the dealer to cover his misdeeds of selling a second hand tractor under the guise of a brand new tractor. As already said above, the certificate Ex.C-5 goes a long way to prove that there was manufacturing defect in the tractor. First Appeal No.762 of 2013 11
14. From our above discussion, we conclude that there is no merit in this appeal and the same is hereby dismissed.
15. The appellant had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It deposited another sum of Rs.2,85,450/- on 22.08.2013, in compliance of the order dated 08.08.2013. Both these sums, along with interest which has accrued thereon, if any, shall be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days of the sending of certified copy of the order to them.
16. The arguments in this case were heard on 17.03.2015 and the order was reserved. Now, the order be communicated to the parties.
17. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE GURDEV SINGH) PRESIDENT (BALDEV SINGH SEKHON) MEMBER March 20, 2015 (Gurmeet S)