State Consumer Disputes Redressal Commission
Shri Idigar Gunddappa, Bidar, ... vs M/S. Sri Venkateshwara Engg. Works, ... on 3 October, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 362/2013 against CC 22/2012 on the file of the District Consumer Forum, Ranga Reddy Between : Shri Idigar Gunddappa S/o Shri Ramaiah aged about 54 years, Occupation : Agriculture R/o 29, Village Bawagi, Bidar Karnataka State .. Appellant/complainant And M/s. Sri Venkateshwara Engg. Works # E/6, Industrial Estate, Shiva Reddypet Vikarabad, R. R. District, A. P. Rep. by Shri Mahesh S S/o Unknown, Aged about 40 years . Respondent/opposite party Counsel for the Appellant : Mr. Rajiv Kumar Counsel for the Respondent : M/s. P. Sreeram Reddy Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Thursday, the Third Day of October Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1.This is an appeal preferred by the unsuccessful complainant as against the orders dated 28.02.2013 in CC 22/2012 on the file of the District Consumer Forum, Ranga Reddy. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2.The brief facts of the complaint are the opposite party agreed on 26.09.2011 to manufacture and supply a four wheel hydraulic trailer of dimensions 14X 7 X 2 without tyres for an amount of Rs.2,15,000/- to the complainant and his nephew for carrying sugarcane from his fields and paid the entire sale consideration. The complainant purchased four new MRF tyres, tubes and flaps of rating 900 X 16 from M/s. M.R. Pentaiah Agencies, Vikarabad, authorized dealers of MRF tyres for Rs.38,680/- and handed over them to the complainant for fitting on the new tractor trailer. At the time of delivery on 10.11.2011, he was accompanied by his nephew Mr. Anil Kumar and his friend and farmer Mr. M. Gopal, noticed manufacturing defect in the vehicle, i.e. the front two wheels were rigidly fixed and the vehicle could move only in a straight line and could not turn left or right and refused to take delivery of the vehicle. On the assurance given by the opposite party that it is extensively used in Maharashtra and elsewhere and that there will be no problem, else, he will refund the entire cost, hence reluctantly he took delivery of the same on 10.11.2011. On 11.11.2011 at about 8 AM, when the trailer was loaded with sugarcane roughly about 10,000 kgs and while it being pulled by a tractor for about 100 feet, to turn it to the right, toppled over and fell, completely damaging the rear left tyre due to the inherent manufacturing defect of the front two wheel being rigidly fixed and the same was informed to the opposite party on the spot and got it repaired at local repair shop and it was handed over to the manufacturer and as a consequence of the same the complainant sustained heavy loss. As there was no response from the opposite party, in spite of their demand for refund of the amount as promised, he got issued legal notice dt. 25.01.2012. Even then, the there was no response. The acts of the opposite party amounts to deficiency in service and hence the complaint to replace the trailer with a new one or refund Rs.2,53,680/- towards the entire cost of the trailer including tyres, Rs.10,000/- towards hardship, Rs.1000/- repair charges, Rs.2,500/- towards hiring of another tractor to straighten the toppled trailer and costs of Rs.2000/-.
3..OP filed counter opposing the claim of the complainant and denying the allegations made in the complaint and the brief facts of the counter are as under :
While admitting the purchase of the trailer by the complainant from them, the Op contending that after a thorough inspection of the trailer, the complainant took a trail run and after satisfying about its manufacture, quality and standards only, the complainant took delivery. It is not true to say that the complainant noticed manufacturing defect at the time of delivery of the trailer. The trailer was manufactured as per the RTA designs and other technical approvals. The trailer was capable of taking load of 10.5 tons only including the trailer weight of 2.5 tons and thus the net weight to be loaded is only 8 tons. The incident did not take place on 11.11.2011 but it was on 13.11.2011 when the tractor and the trailer were on hire to one Mr. Soor Reddy and it was loaded with more than 14 tons of sugarcane. The mishap had occurred due to irregular driving of the incompetent driver and overload of sugarcane. He came to know that the tractor was seized by the financiers and now the trailer is not in use and therefore the complainant requested the OP to sell the trailer and accordingly the complainant was in search of prospective purchasers and in the mean while OP received notice of the present complaint with all false and frivolous allegations. The trailer is of superior quality and there is no manufacturing defect and that there is no deficiency in service on the part of Op and thus prayed to dismiss the complaint.
4.Both sides filed evidence affidavit reiterating their respective pleadings and Ex. A-1 to A -13 were marked on behalf of the complainant and two third party affidavits were filed on behalf of the complainant. and Ex. B -1 to B 2 were marked for the OP.
5. Having heard both sides and considering the evidence on record, the District Forum dismissed the complaint holding that there is no deficiency in service on the party of the Opposite party and that the trailer was damaged on account of over load etc.
6. Feeling aggrieved with the said order the unsuccessful complainant filed this appeal on several grounds and mainly contended that the opposite parties completely the misled the complainant by stating that the trailer was of a new design and that the Op failed to mention and advice the complainant that all four wheels are rigidly fixed , so also its limitations and draw backs ands that there is manufacturing defect in the trailer and that verbally the opposite party promised the complainant that if there is any defect in the trailer the same will be taken back and the amount will be refunded but did not keep up the promise and that acts of OP amount to deficiency in service and thus prayed to allow the appeal and set aside the impugned order and consequently to allow the complaint as prayed for.
7. Heard the counsel for the complainant and written arguments were submitted on behalf of respondent/opposite party.
8. Now the point for consideration is whether the order of the District Forum is sustainable ?
9. There is no dispute that the complainant ordered a trailer of dimensions 14x 7 x 2 manufactured by the opposite party in the month of November, 2011 for his agricultural purposes for valuable consideration and that total consideration was paid and that the trailer was delivered to the complainant. The grievance of the complainant is that at the time of delivery of the trailer it was noticed that the four wheel hydraulic trailer had a major manufacturing defect According to the complainant the front two wheel were rigidly fixed and that on account of it the trailer could move only in a straight line and could not turn left or right and that showing the same the complainant refused to take delivery since Mr. Mahesh S. proprietor of the OP stated that four wheel hydraulic trailer of 14 x 7x 2 dimensions is of new design and it is extensively used in Maharashtra and elsewhere there will not be any problem in its operation and thus the complainant was compelled to take delivery of the trailer it is much more so when the Op assured to take delivery of the trailer and refund of amount in the event of any trouble. On none of the documents much less on ex. A3 tax invoice there is endorsement of the alleged defect. Had really there was such a defect certainly the complainant would not have accepted the trailer. Neither the complainant nor the persons who filed third party affidavits on behalf of the complainant are experts in the field to say that there was such a manufacturing defect in the trailer. It is settled law that manufacturing defect has to be established with clinching and dependable experts evidence . It appears that persons who filed third party affidavits were pressed into service to support the complainant as they are friend/relative of the complainant. Therefore, no credence needs to be given for the version of the complainant and the said two persons. Ex. A3 reveals that goods once sold will not be taken back and exchanged and it falsifies the contention of the complainant that Op assured to take back the vehicle and refund the amount. The contention of the OP is that trailer was manufactured according to the approval of RTA concerned and in support of its contention OP also filed Ex B1 approval. Had there was any manufacturing defect and the trailer is not useful to the complainant certainly the RTA would not have approved the said trailer. The Op further contended that since the trailer was over loaded and driven even in uneven roads the damage occurred but not on account of any manufacturing defect and in support of the said contention Ex B2 was marked on its behalf. As per RTA approval, the trailer was designed with gross weight of 10.5 tons including the trailer weight of 2.5 tons and thus the net weight permitted to load in the trailer was only 8 tons. But as seen from the contents of the complaint, 10 tons of sugar cane was loaded and thus without any hesitation it can be held that the trailer was over loaded. Ex B2 issued in favour of complainant discloses that in the trailer bearing No. KA 38 T 2327 on 12.11.2011 and 13.11.011 sugar cane of 12.395 and 14.543 was loaded and certainly the said load was not permissible and excess and therefore possibility of trailer meeting with an accident on account of such over lead that too in an uneven fields cannot be ruled out and as such there is acceptable force in the contention of the OP in the said context. The Opposite party contended that after accident the complainant brought the trailer to the OP and requested to repair the same promising him to pay the charges and that accordingly the repairs were attended to and the trailer was ready for use and that in the mean while the complainant came and requested to sell away the trailer to any interested party as his tractor was seized by the financier and he has no tractor now to run the trailer, but surprisingly received notice in the complaint. The allegation that tractor of the complainant was seized by the financier has not been refuted by the complainant and in such circumstances also the contention of the opposite party that the complainant requested the OP to sell the trailer to any interested party is believable as true. The complainant did not make out any case for the reliefs claimed by him and therefore this complaint stands dismissed for such reliefs. However, there is no dispute that the trailer is with the OP as it was given for repair. Hence, a direction need to be given to the opposite party to deliver the trailer in good working condition as designed earlier to the complainant without any charges within one month from the date of receipt of the order.
10. In the result, the appeal is disposed of modifying the order of the District Forum and the opposite party is directed to deliver the trailer in good working condition as designed earlier to the complainant without any charges within one month from the date of receipt of the order. There shall be no order as to costs.
MEMBER MEMBER DATED : 03.10.2013.