State Consumer Disputes Redressal Commission
M/S. Auto Wheels, Nandubar vs Yogesh Suresh Chaudhari on 25 June, 2015
1 F.A.No. :21/2013
Date of filing:29.11.2013
Date of order:25.06.2015
MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO.: 21 OF 2013
IN COMPLAINT CASE NO. : 53 OF 2011
DISTRICT FORUM : NANDURBAR.
1. M/s Auto Wheels,
Kubota Tractors Sales Service & Spares,
Basant Nagar, Opposite Hotel
Nandanvan, Dondaicha Road,
Shahada, Tq.Shahada,
Dist.Nandurbar.
2. Kubota Agricultural Machinery India Pvt.Ltd.,
Regus Level 2, Altus, Olympia Tech,
No.1, SIDCO Industrial Estate,
Guindy, Chennai 600 032 TN. ...APPELLANTS
VERSUS
1. Yogesh Suresh Chaudhari,
2. Suresh Govind Chaudhary,
Nos.1 & 2 both R/o Mod,
Tq.Taloda, Dist.Nandurbar. ...RESPONDENTS
Coram : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.M.D.Narwadkar for appellants, Adv.Shri.S.U.Choudhary for respondents.
O R A L JUDGMENT ( Delivered on 25th June 2015 ) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Challenge in this appeal is the judgment and order dated 19.10.2012 passed by District Consumer Forum Nandurbar allowing 2 F.A.No. :21/2013 complainant's claim in C.C.No.53/2011 directing appellants/org.opponents to jointly and severally replace new tractor and further to pay compensation Rs.5000/- towards mental agony and Rs.2000/- more towards cost of the proceedings.
(For the sake of brevity appellants are hereinafter referred as opponents and respondents as the complainants)
2. Brief facts giving rise to this appeal are that:-
Opponent No.2 Kubota Agricultural Machinery India Pvt.Ltd. is a manufacturing company of Kubota tractors and opponent No.1 M/s Auto Wheels is the dealer of opponent No.2. On 21.7.2011 complainants purchased Kubota tractor bearing engine No.BJ0685 and chasis No.36457 from opponent No.1 for a consideration of Rs.4,35,100/- availing loan of Rs.2,64,600/- from State Bank of India, branch Taloda. On the same day complainant received the delivery of tractor. But opponent though had given assurance to get tractor registered with R.T.O. failed to do so. Further according to complainants within two weeks from the date of purchasing the tractor problems with tractor started as it was not working properly. Therefore complainants made complaint with the opponent No.1 and on receiving complaint, opponent No.1 sent his mechanic who tried to start tractor but it was not started though the said mechanic made efforts to start the tractor but tractor was not started. Some parts of the tractor were also replaced by opponent No.1 but it was not working continuously. According to complainants due to manufacturing defect tractor could not be repaired. Therefore complainants issued notice and informed opponent No.1 to take back the tractor and claimed refund of amount with interest. But opponent No.1 did not give any response to their notice. Therefore alleging deficiency in service on the part of appellant No.1, complainant 3 F.A.No. :21/2013 filed consumer complaint against both the opponents as opponent No.2 is also necessary party and claimed the refund of amount of Rs.4,35,100/- with interest and compensation Rs.20,000/- towards the bank interest and also compensation Rs.25,000/- towards mental agony and Rs.2000/- towards cost of the proceedings.
3. Opponent No.1 by its written version resisted the complaint contending inter alia that due to improper operating the tractor without following instructions which were given at the time of demonstration while delivery of tractor, tractor was not functioning properly. It has denied that due to manufacturing defect the tractor was not working properly. It is submitted that on receiving complaint from complainants a mechanic was sent and tractor was brought to the workshop and after inspection of the tractor it was repaired. But complainants have falsely alleged that due to manufacturing defect tractor is not working. It has also denied that the requisite documents pertained to the registration of the tractor by insurance policy is not supplied to the complainants. It is submitted that despite request to complainants they failed to supply requisite documents for registration of the tractor. It has denied all other adverse averments made by complainants and submitted to dismiss the complaint.
4. Opponent No.2 by its separate written version also resisted the complaint. It has also specifically denied that there is manufacturing defect in the tractor. It is submitted that it is a reputed company and company as well as its dealer have not committed any deficiency in service as alleged by the complainants. On the contrary though no warranty was given, its dealer opponent No.1 rendered services by repairing the tractor free of charge etc. It has denied all other adverse averments made by complainants and submitted to dismiss the complaint.
4 F.A.No. :21/20135. On hearing both side and considering evidence on record Dist.Consumer Forum held that opponents committed deficiency in service by selling tractor having manufacturing defect to the complainants and therefore they are liable to replace the tractor etc. In keeping with this finding Dist.Consumer Forum allowed the complaint as noted above.
6. Feeling aggrieved by that judgment and order, opponents came to this Commission in appeal.
7. We heard Shri.Narwadkar proxy advocate appearing for opponents and perused the written notes of argument submitted by counsel for both side. However, we have had no opportunity to hear counsel for complainants as they remained absent at the time of final hearing. We also perused the copy of impugned judgment and order, copies of complaint and written version and other documents.
8. Almost all the facts except the allegations of complainants that tractor is having manufacturing defect and therefore it was not working properly are not disputed. Therefore the crux in this matter is as to whether tractor in question is having manufacturing defect or not?
9. Mr.Narwadkar proxy advocate appearing for the opponents submitted that except the bare words of complainants that there is manufacturing defect in the tractor, there is no evidence to substantiate it. According to him in order to prove the manufacturing defect it was obligatory on the part of complainants to adduce any expert evidence. But no such evidence is brought on record. It is further submitted that due to improper handling the tractor, it was not working properly. When the opponent No.1 received the complaint from complainants it rendered 5 F.A.No. :21/2013 service through its mechanic. Not only this but mechanic repaired the tractor by visiting site of the complainant. Some parts of the tractor were also replaced free of charge. But complainants falsely alleged that opponent No.1 committed deficiency in service.
10. On perusal of copy of complaint we find much force in the submission of learned counsel for the appellant, because complainants themselves have mentioned in their complaint that on receiving their complaint mechanic was sent by opponent No.1 and said mechanic tried to repair the tractor. Not only this but some of the parts of the tractor were also replaced which falsify the averment of the complainants that opponent No.1 committed deficiency in service. However, in the written notes of arguments submitted by learned counsel for the complainants it is averred that mechanic which was sent by opponent No.1 tried to repair the tractor but he could not remove the defects etc. Therefore tractor was not working etc. But no expert evidence is produced by the complainants on record to show that due to manufacturing defect the tractor was not working despite repairs.
11. However, on perusal of copy of impugned judgment and order it reflects that complainants have produced affidavit of tractor mechanic Shri.Shahid Khan Masjid Khan Mansuri. But the affidavit of said mechanic cannot be accepted as expert evidence. Further though opponents have specifically averred in their written version that due to improper handling the tractor, it was not functioning properly, complainants have not produced any evidence to show that tractor was being handled by experienced person holding valid and effective driving license. Therefore in the absence of such evidence we have no hesitation to accept the submission of opponents that due to improper handling tractor was not working properly and therefore there were frequent complaints etc. But it appears from the copy of impugned judgment and 6 F.A.No. :21/2013 order, District Consumer Forum without considering all these facts jumped to the wrong conclusion that since tractor was not functioning properly within short span after purchasing it, it is due to manufacturing defect etc and therefore opponent No.1 committed deficiency in service selling defective tractor to the complainants.
12. Further though opponent No.2 is a manufacturing company the complainants have not specifically made any allegations against opponent No.2 about deficiency in service or unfair trade practice on its part. However, in para 5 of their complaint it is specifically averred that opponent No.2 is made party as their claim should not fail for non- joinder of the necessary party. But the District Consumer Forum giving goby to these pleading of complainants wrongly held that both opponents have committed deficiency in service. Such finding is being erroneous, cannot be sustained.
13. For the foregoing reasons appellants succeed and appeal deserves to be allowed. Hence the following order.
O R D E R
1. Appeal is allowed and impugned judgment and order is set aside.
2. Consumer complaint No.53/2011 stands dismissed.
3. No order as to cost.
4. Copies of the order be sent to both the parties.
Sd/- Sd/- Uma S.Bora S.M.Shembole, Member Presiding Judicial Member Mane