National Consumer Disputes Redressal
Manager, Premanchal Motors Pvt. Ltd. vs Ramdas on 16 March, 2009
REVISION PETITIONS NO
NATIONAL
CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
Revision
Petition No. 1018 of 2008
(From the order dated
01.12.2007 in Appeal No. 815 of 2005 of the Madhya Pradesh State Consumer
Disputes Redressal Commission, Bhopal)
Manager, Premanchal Motors
Pvt. Ltd.
Zone 2, Maharana Pratap
Nagar
Bhopal
Petitioner
versus
1. Ramdas s/o Shri
Khayaliram
2. Ramlal s/o Shri
Khayaliram
3. Rambharose s/o Shri
Khayaliram
4. Laxmibai d/o Shri
Khayaliram
5. Dularibai w/o Shri
Khayaliram
All residents of
Village Mahangaon Jadid
Tehsil Nasarullaganj,
District Sehore Madhya Pradesh
6.
Manager, Punjab Tractors Ltd.
Phase
IV, S.A.S. Nagar
Ropar,
District Ropar, Punjab
7.
Ramashankar s/o Rameshwar Patel
Proprietor,
Vijay Tractors
Bhopal
Road, Nasarullaganj
District
Sehore, Madhya Pradesh
Respondents
Revision
Petition No. 1105 of 2008
(From the order dated
01.12.2007 in Appeal No. 987of 2005 of the Madhya Pradesh State Consumer
Disputes Redressal Commission, Bhopal)
1. Ramdas s/o Shri
Khayaliram
2. Ramlal s/o Shri
Khayaliram
3. Rambharose s/o Shri
Khayaliram
4.
Laxmibai d/o Shri Khayaliram
5. Dularibai w/o
Shri Khayaliram
All residents of
Village Mahangaon Jadid
Tehsil
Nasarullaganj, District Sehore Madhya Pradesh
Petitioners
versus
1. M/s Punjab Tractors
Ltd.
Through The Manager
Phase
IV, S.A.S. Nagar
Ropar, District Ropar,
Punjab
2. M/s Premanchal Motors
Pvt. Ltd
Through: The Manager
M.P. Nagar
Bhopal
Ramashankar
s/o Rameshwar Patel
Proprietor,
Vijay Tractors
Bhopal
Road, Nasarullaganj
District
Sehore, Madhya Pradesh
Respondents
Revision
Petition No. 1147 of 2008
(From the order dated
01.12.2007 in Appeal No. 987of 2005 of the Madhya Pradesh State Consumer
Disputes Redressal Commission, Bhopal)
Punjab Tractors Ltd.
Phase
IV, S.A.S. Nagar
Ropar, District Ropar,
Punjab
Through Manager
Petitioner
versus
1. Ramdas s/o Shri
Khayaliram
2. Ramlal s/o Shri
Khayaliram
3. Rambharose s/o Shri
Khayaliram
4. Laxmibai d/o Shri
Khayaliram
5. Dularibai w/o Shri
Khayaliram
All residents of
Village Mahangaon Jadid
Tehsil Nasarullaganj,
District Sehore Madhya Pradesh
6.
Manager, Premanchal Motors Pvt Ltd., Zone 2, Maharana Pratap Nagar, Bhopal
Respondents
BEFORE:
HONBLE MR. JUSTICE R.
C. JAIN
PRESIDING MEMBER
HONBLE MR. ANUPAM
DASGUPTA
MEMBER
For the Petitioners
(Original Opposite Parties)
Mr. Atish Dipankar, Advocate
For the Petitioners
(Original Complainants) Mr.
Mohan Chouksey, Advocate
Dated the 16th
March 2009
ORDER
ANUPAM DASGUPTA These three revision petitions (RPs), filed by the original opposite party (OP) no. 2 (Premanchal Motors Private Ltd., Bhopal), the original complainants (Ramdas & others) and OP no. 1 (Punjab Tractors Ltd., Ropar) respectively, challenge the common order dated 1st December, 2007 of the Madhya Pradesh State Consumer Disputes Redressal Commission (in short, the State Commission), disposing of appeals no. 815, 986 and 987 of 2004 against the common order dated 23rd March, 2005 of the District Consumer Disputes Redressal Forum (in short, the District Forum), Sehore. By this order, the State Commission upheld the order of the District Forum which had directed the OPs no. 2 and 1 to pay compensation of Rs. 1.50 lakh and Rs. 25,000/- respectively as damages and both together Rs. 2,000/- as costs to the complainants, within one month of the date of the order, for deficiency in service in respect of repairs to a tractor manufactured by OP no. 1 and sold to the complainants by OP no. 2. In addition, the State Commission awarded a further compensation of Rs. 1.25 lakh to be paid by OP nos. 1 and 2, jointly and severally, to the complainants. The OPs were directed to make the payment within one month of the date of the State Commissions order, failing which they were also directed to pay interest @ 12 per cent per annum upto the date of payment.
2. The few undisputed facts are that the complainants - all farmers by profession (and all related to one Khayaliram - wife, three sons and one daughter) - jointly bought, for the sum of Rs. 2.18 lakh, a Swaraj tractor (manufactured by OP no.
1) from OP no. 2. To buy the tractor, the complainants took a loan from the local District Cooperative Bank, apparently under a State Government scheme.
The scheme (reportedly) entitled the complainants to a Government subsidy. The complainants took delivery of the tractor from the showroom of OP no. 2 on 24.05.1997.
3(i) This case has had a chequered history that warrants a somewhat detailed recapitulation of the sequence of events leading to these RPs.
(ii) In their complaint of 20.05.1998 to the District Forum, the complainants contented that right from the date of purchase they faced problems with this tractor (including, alleged excessive fuel consumption, leakage of oil / fuel, overheating of the engine, inability to take load, excessive emission of smoke, improper functioning of the hydraulics, i.e., on the whole, being incapable of use for agricultural purpose). On oral complaint to OP no. 2, the latter asked the complainants to contact its sub-dealer, viz., Vishal Tractors (original OP no. 3; impleaded as respondent no. 7 in RP no. 1018). OP no.3 allegedly advised that the problems would get resolved with time. The complainants alleged that thereafter they also showed the tractor several times to OP no.2 and complained about its continued malfunctioning but OP no.2 did nothing to repair the defects and merely repeated what OP no. 3 had stated, namely, the defects would get resolved with the use of the tractor over time. Claiming that the tractor was unfit for agricultural purpose, the complainants contended that it could also not be used to pull a trolley for transportation of heavy goods. They further alleged manufacturing (mechanical) defects in the tractor and held OP no. 1 responsible therefor. The complainants also alleged that when their several oral complaints to repair the defects were not heeded by OP no. 2, they even asked OP no. 2 to replace the tractor but again to no avail.
(iii) The complainants added that they finally took the tractor to OP no. 2 for repairs on 17.03.1998 and 19.03.1998 and paid for the repairs on these two dates but there was no improvement. They again took the tractor to OP no. 2 on 11.05.1998 but this time the OP no. 2 refused to repair the tractor.
(iv) Emphasising that they had taken a loan to buy the tractor and interest payments were mounting, the complainants claimed that they had been deprived of the additional income from agriculture they would have derived had the tractor functioned satisfactorily. They accordingly prayed for (i) replacement of the defective tractor with a new one, (ii) payment of damages of Rs. 50,000/- for loss of agricultural income caused by the defective tractor and (iii) award of costs of the proceedings.
(v) After OP no. 2 filed its written version denying the allegations in the complaint, the complainants filed, in February 1999, an application for amendments to the complaint, stating inter alia that the tractor did not have original parts/components to verify which it should be got tested at the Tractor Training Centre (TTC), Budhni. They also sought to amend the prayer and award of damages @ Rs. 500/- per day for loss of profit and reimbursement of the entire bank loan of Rs. 1 lakh as well as the (Government) subsidy 0f Rs. 1.25 lakh. The complainants made a second application for amendment on 22.11.2000, seeking to improve the allegations about leakage of oil and consumption of excess oil.
(vi) By its order of 20.02.2002, the District Forum allowed the complaint and directed OP no. 1 (Punjab Tractors Ltd.) to replace the tractor within 1 month, failing which to pay Rs.2, 16,810/- with interest @ 12% per annum from 24.05.1997 until the date of payment. The District Forum further directed OP no. 1 to pay Rs. 50,000/- as damages if it gave a new tractor to the complainants and, in addition, Rs. 1,000/- as costs. On the other hand, OP no. 2 (Premanchal Motors Pvt. Ltd.) was directed to pay Rs. 25,000/- as damages for mental agony on account of deficiency in service.
(vii) In appeal by all three parties against this order of the District Forum, the State Commission, by its order of 28.01.2004, set aside the Forums order. The State Commission clearly observed that the Forum had failed to get the tractor examined by some expert as required under the Consumer Protection Act, 1986 (hereafter, the Act) and passed the (final) order in question without deciding the application for such examination of the tractor though the case had been fixed for consideration of the said application. Accordingly, the State Commission remanded the complaint back to the District Forum for fresh adjudication, with specific direction to follow the procedure mandated by law.
(viii) In its order dated 23.03.2005, subsequent to the remand, the District Forum observed, . It is worthwhile mentioning that there was no allegation by the complainants that there was any manufacturing defect in the tractor; their only grievance has been that it has duplicate parts instead of Swaraj Companys parts - for this, they have requested an inquiry by the Government Tractor Training Centre, Budhni. However, the Government Tractor Training Centre expressed its inability to conduct any kind of inquiry sought by the complainant. In such a situation, the case had to be decided on the basis of the facts and evidence available on record in this case. It is also clear from this order of the District Forum that sometime during the second set of proceedings, it directed OP no. 2 to hand over the tractor to OP no. 1 for repairs. OP no. 2 did so and OP no. 1 then duly repaired the tractor. On 29.09.2004, the District Forum directed Ramdas one of the complainants - to take delivery of the tractor from OP no. 1 on 30.09.2004 and use it in their fields for two days under the supervision of a technical expert of OP no. 1. The Forum also directed that he should inform OP no. 1 if he found any defect, whereupon OP no. 1 would rectify the said defect and inform the Forum. On the next date, i.e., 20.10.2004, the complainants still alleged that there was breakage in the tractor and it was not taking any load. The Forum then directed the complainant to present the tractor before the Forum. However, the complainant did not present the tractor on the next date, i.e., 27.10.2004. Finally, on 03.11.2004, Ramdas and Ramlal - complainants - remained present and produced the tractor before the Forum, with the continuing complaint that the tractor was not taking any load. The District Forum went on to record in its order, again, In order to find out the actual position regarding the load, the Forum requested Shri Mahendra Paliwal who is himself a farmer, to present his report with regard to load after driving the tractor somewhere in the nearby fields. Shri Paliwal presented his report before the District Forum stating that he got into the tractor for carrying out the test but the complainant - Ramdas - got the tractor stopped after moving 50 steps ahead, due to which it could not be tested that the tractor could take any load or not. On the said date, seeing the behaviour of the complainant Ramdas - it can only be concluded that respondent no. 1, had fully repaired the tractor and that the statement of the complainant Ramdas - that it did not take any load is not true. In this manner it is seen that the respondent no. 1 has fully repaired the tractor considering that the tractor was in working condition and there does not appears to be any manufacturing defect in the tractor.
(ix) After further discussion, the District Forum finally passed the following orders:
Respondent no. 2 shall pay Rs.1,50,000/- (Rupees one lakh fifty thousand only) to the complainants as damages.
Respondent no.1 shall pay Rs.25,000/- (Rupees twenty five thousand only) to the complainants as damages.
Respondent nos. 1 and 2 shall pay Rs.2,000/- (Rupees two thousand only) to the complainants as cost of this suit.
(x) From the reasons detailed in its order, it seems that the District Forum held OP no.
2, - Premanchal Motors Pvt. Ltd. - entirely responsible for the tractor lying unused at the workshop/garage of OP no. 2, for six years (1998 2004) and, therefore, directed OP no. 2, to pay a compensation of Rs.1,50,000/- to the complainants on the ground that the complainants would have earned an extra income of at least Rs. 25,000/- per year during this period had they been able to use the tractor after due repairs by OP no. 2. Though the District Forum did not find any merit in support of the allegation of manufacturing defects in the tractor, it still directed OP no. 1 Punjab Tractors Ltd. - to pay Rs.25,000/- to the complainants as damages, because, OP no. 1, did not take any effective steps to remove the defects in the tractor until the Forum had directed it to do so in July 2004.
(xi) Once again, all the three parties went in appeal against the order of the District Forum to the State Commission, leading to the impugned order. The State Commission not only confirmed the above-mentioned order dated 23.03.2005 of the District Forum but also directed OP nos. 1 and 2 to pay additional compensation of Rs.1,25,000/- within one month. This amount appears to be equal to the amount of subsidy that the complainants alleged they were entitled to but unable to avail of because of their inability to pay the bank loan and that inability was because of their loss of additional income form the use of the tractor.
4. In their respective revision petitions before us, OP nos. 1 and 2 have challenged the very validity of the findings of the order of the State Commission while, still dissatisfied, the complainants have sought further enhancement of the compensation.
5. We have heard Mr. Mohan Chouksey, learned counsel for the original complainants and Mr. Atish Dipankar, learned counsel for OP no. 1 (Punjab Tractors Ltd.) Though the learned counsel for OP no. 2 (Premanchal Motors Pvt. Ltd.) was unable to remain present, Mr. Dipankar argued the latters case too. At the outset, Mr. Chouksey admitted that the complainants had had the tractor in their possession ever since OP no.1 repaired it in 2004, at the direction of the District Forum, and handed it over to the complainants.
6. The allegation of manufacturing defect is obviously out of the way, in view of the clear findings of the District Forum. In any case, the law is explicit on this issue. Clause (c) of sub-section (1) of section 13 of the Act reads:
13 (1) The District Forum shall, on admission of a complaint, if it relates to any goods,‑
(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report the findings thereon to the District Forum within a period of forty five days of receiving the reference or within such extended period as may be granted by the District Forum;
The State Commission had remanded the complaint back to the District Forum specifically on this score. Yet, the type of examination of the tractor necessary under the law to establish if it had any manufacturing defect was not carried out. As already noted, this was perhaps so because of the reasons that the District Forum mentioned in its order of 23.03.2005.
7. Therefore, the surviving allegation is that OP no. 2 did not repair the tractor in time and satisfactorily. This led to the complainants inability to use the tractor productively for a long period. As a result, they lost not only additional income from agricultural operations but were also unable to pay the due instalments of loan and interest. For the second reason, they became ineligible for the subsidy that they were entitled to from the Government.
8. The documented background of this allegation is not quite in favour of the complainants. The complainants have not produced even a single job card of the persistent defects for repairs to which they claim they repeatedly took the tractor to OP no. 2. They have also not produced any correspondence with OP no. 2 in support of their allegations. There is not even an allegation that they ever wrote to OP no. 2 about any defects in the tractor all allegations are of oral complaints. The case of OP no. 2, on the other hand, is that within the warranty period, the complainants brought the tractor to its garage/workshop on 3 occasions and each time OP no. 2 duly repaired the tractor in accordance with the terms of the warranty. If any defect recurred, it was because the complainants did not use the tractor properly. This defence of OP no. 2 is equally unsupported by any job card(s) or other form of record. Thus, these are rather bald, unsupported allegations and equally unsupported defence.
9. It is, however, a fact on record that the complainants filed a complaint with the District Forum within the warranty period, alleging as they did. Yet they took the tractor back to OP no. 2 in May 1998 (an admitted position of the complainants) and again in July 1998 (version of OP no. 2 but supported by other evidence, discussed by the District Forum). According to OP no. 2, it carried out the necessary repairs in July 1998, the cost of which came to Rs. 8,380/-. The complainants had to pay these charges to take delivery of the tractor as the warranty period had expired well before July 1998. The complainants stated that they would come back to OP no. 2 with the money for the payment, as they did not have sufficient funds on that day. However, they did not turn up at all. As a result, OP no. 2 wrote to the complainants to take the tractor back, adding that failure to do so would attract payment of additional garage charges. The tractor thereafter remained at the garage of OP no. 2, upto the end of September 2004. This is beyond doubt because it is on record that OP no. 2 filed a civil suit against the complainants in 2000, claiming recovery of the outstanding repairs and garage charges. It is also on record that the complainants took over the tractor in September/October 2004, after OP no. 1 had carried out repairs at the directions of the District Forum.
10. In our considered view, as an ordinary practice such abandonment of a new vehicle soon after its purchase or after repairs, at the premises of the manufacturer or the dealer concerned, is not prudent conduct on the part of a consumer, even if the consumer has justified grounds for serious dissatisfaction with the performance of the new vehicle or even after its repairs. In the best of circumstances, such abandonment is entirely to the disadvantage of the consumer for the vehicle can only deteriorate if left in the so-called care of an indifferent dealer who too may have his own reasons to feel aggrieved that his repairs bills and garage charges remain unpaid. This conduct is even more imprudent for a consumer who has purchased the vehicle in question after availing of a bank loan and is thus liable in any case to repay that loan. The conduct of the complainants in this case falls in this category. If they had reasons to feel unhappy with the condition of the tractor even after repeated repairs during the warranty period, they could file a consumer complaint, which they did in this case even before the warranty period was over. Therefore, they had no reason to go to the extent of abandoning the tractor altogether at the garage/workshop of the same dealer against which they had filed the complaint.
11. The complainants conduct during the remanded proceedings before the District Forum was also not bona fide. The District Forum observed that the complainants prevented a third party (one Mahendra Paliwal, a farmer who had been tasked by the District Forum to drive the repaired tractor to see if it was able to take the load) from carrying out even that simple, rough and ready test. Having alleged manufacturing defect in the tractor, it was clearly the intention of the complainants somehow to obtain a replacement. They were not interested in helping establish whether the tractor actually had any manufacturing defect, much less perhaps in cooperating to see if OP no. 1 had repaired the tractor satisfactorily at the instance of the District Forum in the course of the remanded proceedings. The latter conduct of theirs was also in consonance with their earlier abandonment of the tractor with OP no.2, particularly when they realised that they were liable to pay the repair charges beyond the warranty period. This is not the conduct of a set of persons genuinely interested in diligent use of a newly acquired tractor to improve their agricultural productivity, mindful of the fact that they had obtained a loan from a bank under a Government sponsored scheme which, given their socio-economic disadvantages, entitled them to a large subsidy to improve the financial viability of their asset against borrowing.
12. The District Forum gave a clear finding that OP no. 2 handed over the tractor to OP no.1 for repairs by the latter during the remanded proceedings and at that time, some parts of the tractor were missing. The fact that the Forum found it necessary to direct OP no. 1 to repair the tractor (and not OP no. 2) has to be held implicitly against OP no.2. Moreover, the missing parts suggested that OP no.2 did not keep the tractor in the condition it was in when the complainants left the tractor with it in 1998. As professional dealers, OP no. 2 was also expected to open job cards each time the complainants approached it complaints of malfunctioning of the tractor; in any case, it was for OP no. 2 to keep a complete record of the free servicing and repairs it did during the warranty period and make copies of these reports available to the complainants at the end of each visit to its garage. OP no. 2 failed to produce any such document before the District Forum during the remanded proceedings. These do amount to deficiencies in service on the part of OP no.2. However, the fact that the tractor could be repaired and brought back to serviceable condition even after six years of storage at the premises of OP no. 2 (and has been in use with the complainants since then, as admitted by the learned counsel, Mr. Chouksey) would be a mitigating factor in favour of OP no. 2.
13. In view of the foregoing discussion, we are constrained to hold that the complainants have much to blame themselves for. They set out with a case of manufacturing defect in the tractor, along with allegations of spurious parts/components and repeated instances of unsatisfactory performance. After filing a consumer complaint, they simply abandoned their new tractor for six long years at the premises of the same dealer against which they had filed the complaint, without bothering to pay the repair charges or to enquire if they could get the tractor released after a smaller payment. They did not co-operate with the District Forum in even establishing if OP no. 1 had repaired the vehicle satisfactorily. It is clear that the complainants were not seriously interested in operating the tractor even if they believed that their complaint would be allowed, they had no way of knowing that they would necessarily get a new tractor. All this was against the backdrop of their bank loan remaining unpaid and, according to them; the subsidy was also cancelled/withdrawn.
14. There is thus no ground for the State Commission to award compensation equal to the amount of subsidy that the complainants merely alleged they were entitled to. We are also unable to uphold the District Forums order granting compensation for loss of additional agricultural income practically on the say-so of the complainants. Thus, the compensation awarded against the dealer OP no. 2 also needs to be modulated.
15. In conclusion, we partly allow RP nos. 1018 and 1147 of OP no. 2 and OP no. 1 respectively and set aside the impugned order of the State Commission and with that, the order dated 25.03.2005 of the District Forum. Accordingly, we direct that for deficiency in service to the extent discussed above (paragraph 12), OP no. 2 (Premanchal Motors Pvt. Ltd.) shall pay a consolidated compensation of Rs. 25,000/- to the complainants as damages, within four weeks of the date of this order. However, we do not find OP no.1 (Punjab Tractors Ltd.) and OP no. 3 (Vijay Tractors) guilty of any deficiency in service. In view of these, we also dismiss RP no. 1105 filed by the complainants. There shall be no order as to costs.
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[R. C. JAIN, J] ...
[ANUPAM DASGUPTA]