ISWAR CHANDRA PATEL vs Orissa Agro Industries Corporation Ltd.

DEFECT in goods and deficiency in service is grievance of complainant.

COMPLAINANT is a farmer in Kuchinda, a tribal area in district of Sambalpur. On basis of leaflets advertising that Universal Power Tiller manufactured by O.P. No. 2, complainant intended to possess a Tiller with accessories. In another leaflet comparative study of such a power tiller with Bullock Pair and Tractor was given to make it attractive. Opposite party No. 1 is the distributor of such power tiller in Orissa. In the said leaflet it was declared to be a true friend of the farmer being low priced having high performance economically low fuel consumption tested by Government of India at their central firm Machinery Training and Testing Institute. Many other attractions were indicated. It was declared that loan is available from all banks on this tiller. COMPLAINANT desirous of possessing such a letter mechanised framing, approached opposite party No. 1, for supply of a machine. Branch Manager of Opposite Party No. 1 recommended name of complainant to opposite party No. 3, the bank for loan. COMPLAINANT mortgaged his immoveable property with opposite party No. 3 and obtained the power tiller. While using the same, he found unsatisfactory performance of the engine. He wrote a letter on 19.3.1990 to opposite party No. 1 to send a mechanic. Such mechanic deputed gave a bill of Rs. 1,250/- towards replacement of parts. COMPLAINANT paid Rs. 750/- towards repair changes. It had again mechanical defects. COMPLAINANT lodged a complaint with opposite party No. 3. Being satisfied, opposite party No. 3 addressed a letter to O.P. No. 1 on 13.7.1990. COMPLAINANT also approached opposite party No. 1 several times. When the same was not of any effect, complainant had to mend the engine at a cost of Rs. 1,100/-. Few days after engine got burst. COMPLAINANT lodged a complaint with Regional Manager of O.P. No. 1 to repair and replace the engine. Regional Manager wrote a letter to OP. No. 2 on 4.8.1990 and intimated complainant to meet O.P. No. 2 with the defective engine to be repaired at his cost. COMPLAINANT went to O .P. No. 2 at Raipur (Madhya Pradesh) with the engine. It was opened and found to be defective repair of which would cost of Rs. 7,000/- to Rs. 7,500/-. It was found that main cause of bursting was defective parts and defective repair locally. COMPLAINANT could not pay the charges and returned with the engine. COMPLAINANT has stated that he has suffered on account of negligence of opposite parties. Besides, opposite party No. 1 has charged Rs. 6,000/- extra than the price indicated by O..P. No. 2. When complainant issued notice to O..P. No. 1, its General Manager addressed a letter to its Regional Manager at Sambalpur on 4.9.1990 to replace the engine immediately. But the engine was not replaced.'' Accordingly, this complaint was filed on 15.3.1991. Case of opposite party No. 1 is that complainant being interested to have Universal Tiller, came up with a loan application with certificate from Junior Agricultural Officer to opposite party No. 1 who forwarded the same to O.P. No. 3 for sanction of loan. Complainant received power tiller after he was satisfied that it was in good, condition. Trial run was given on 6.10.1989. On 19 or 20.2.1990 complainant gave his satisfaction report to opposite party No. 3 bank on receipt of which it released payment to O.P. No. 1. Complainant used the tiller till 19.3.1990 when he requested the O.P. No. 1 for looking to the trouble in the Tiller. Mechanical supervisor of O.P. No. 1 was directed to attend to the repair and he attended on 22.3.1990 without any bill being given or payment received. Complainant had given his satisfaction report and did not make any grievances for charges for parts, thereafter. On basis of complaint on 4.8.1990 a letter was sent by Regional Manager to O.P. No. 2. On 10.8.1990 opposite party No. 2 intimated complainant about the defects. Defects, as found indicated that complainant is guilty of getting the engine repaired by local mechanic who has no experience or training in the matter of repairing engines. Complainant also acted negligently in the matter of repairing of the engine by using local made parts. It is submitted that in case engine showed any defects due to the defective parts used in it by complainant and due to mishandling of the engine by inexperienced mechanic, opposite party Nos. 1 and 2 would not be liable and they cannot be saddled with any responsibility. It is also asserted that opposite party No. 1 not being manufacturer of the tiller machine cannot be held to be liable for any defect found in the engine itself. It has rendered effective services to the complainant and when complainant came forward with complaint, he was attended with all promptitude.

Opposite party No. 2 in its statement asserted that engine of Universal Power tiller is manufactured by M/s. Greaves Cottons and Company Ltd. Aurangabad a world renowned company. Other parts of the tiller are manufactured by opposite party No. 2. Opposite Party No. 2 supplied machines through O.P. No. 1 which is a Govt. undertaking which is meant to supply and service machineries and also to impart training to farmers regarding use of machines. Till receipt of letter dated 4.8.1990 from opposite party No. 1, there was no knowledge of opposite party No. 2 about the defects of the engine of the tiller. When complainant brought the engine to opposite party No. 2 to Raipur, the machine was opened in his presence and five defects were found. Cast of repair was estimated between Rs. 7,000/- to 7,500/-. Defect was found to be on account of the engine being opened by local mechanic and use of defective local parts. A letter was given to complainant indicating the facts with copy to opposite party No. 1. Defective engine was taken back by complainant. It is asserted that engine got burst on account of use of local in genuine parts and repair by local mechanics. Therefore, complainant is precluded from raising any dispute.

OPPOSITE party No. 3. has not appeared and has not stated its case. From the facts asserted it is clear that engine of the power tiller was found to be defective from at least 19.3.1990. Howfar, opposite parties are responsible for the defect is to be examined. Nature of suffering of complainant is also to be found to determine the relief that can be given to complainant.

ALLEGATION of complainant is broadly (i) charging of excess price by opposite party No. 1; (ii) supply of defective engine; and (iii) failure to attend when complained. In case the findings would be in favour of complainant, opposite party No. 1 would be responsible for all the three whereas opposite party No. 2 would be responsible for supply of defective engine. Technical objections have been raised by opposite party No. 1 that there is no relationship of seller and buyer with complainant and complainant has approached the District Forum. Opposite party No. 2 stated that it has reliably learnt that a suit has been filed by complainant. Opposite party No. 1 is a Company. It has claimed that in carrying on the state activity it supplied power tiller to complainant for a price. Power tiller is goods as defined under the act. Complaint having paid price for the same, is consumer in respect of the goods. Opposite party No, 1 is distributor of the goods manufactured by opposite party No. 2, Thus, opposite party No. 1 not only carries on business of supply of goods for consideration but also carries on the state activity for development of farmers. Price of the goods as fixed by the manufacturer as on 1.11.1989 is indicated in Annexure-8. Price charged by opposite party No. 1 is indicated in the bill dated 2.3.1989 (Annexure-3). Although complainant has alleged in paragraph 12 of the complaint that Rs. 6,000/- has been charged in excess by opposite party No. 1, there is no explanation for the same in reply statement. The prices indicated by O.P. No. 2 are ex-works, Raipur (M.P.). It is indicated that packing, forwarding freight and insurance etc. will be charged extra. Thus, these charges being before sale are included in sale price and opposite party No. 1 is entitled to add it to the price. Being a registered dealer under the Orissa Sales Tax Act as indicated in the bill, tax the reunder can be collected by it from the purchaser as provided in that Act. There is no scope for charging as T.O.T. payable under the Orissa Additional Sales Tax Act since his amount is not authorised under the Act to be collected and is paid by a dealer after title passes to purchaser. Amount of Rs, 724.72 p. collected from complainant is not authorised under law and is to be refunded by O.P. No. 1 to complainant.

OPPOSITE party No. 1 has stated that on receipt of complaint on 19.3.1990, it deputed the mechanical supervisor to mend the defects. This is not claimed by O.P. No. 1 to be gratuitous. Since it claimed that there was no bill or payment for the same, this service is to be rendered by O.P. No. 1 for which hire charges are in built in the profit on account of sale of the tiller. On receipt of complaints assistance is to be rendered. This complaint may be in writing as in letter dated 19.3.1990 or oral as in case of letter dated 4.8.1990 from Regional Manager to opposite party No. 2. Grievance of complainant that approaches times without number to opposite party No. 1 finds support from letter of opposite party No. 3 to opposite party No. 1 on 13.7,1990. This letter reads as follows:- "We forward herewith the photostat copies of the letters received from Shri Sashi Bhshan Mishra and Shri Iswar Chandra Patel, which are self-explicit. 2. In this connection, we advise that frequently we are resolving verbal/written complaints from our beneficiaries financed for power tillers, pump sets etc. by as and supplied by Orissa Agro Industries, Kuchinda Branch. Your Branch office here is not only taking long time for supplying the assets but also providing incomplete and defective acts of machineries leading to dis-satisfaction of the borrowers and embarrassment to us. The concerned borrowers have also many times complained to your Branch Manager here and the Regional Manager at Sambalpur without any satisfactory response from them. 3. Needless to say, dependence of the borrowers on power tillers and pump sets obviously keep them away from their traditional method of cultivation and when the machineries are found to be defective without the facilities of after sale service by your man they fell victim to multiple financial loss caused due to interest burden of the bank and loss of crops. 4. In the above circumstances, we request you to kindly look into the matter and take adequate remedial measures to safeguard the interest of the agriculturists in this tribal rural area. 5. We are also enclosing copies of this letter to Collector and P.O.D.R.D.A., Sambalpur for their information".

Thus, we are satisfied that opposite party No. 1 did not render proper service and thus, there was deficiency in service. On account of the same, complainant claims to have got the engine repaired by paying repairing charges of Rs. 1,100/- However, no voucher or receipt is produced to that effect. Fact however, remains that there was such repair since O.P. No. 2 found such repair and O.P. No. 1 does not dispute the same. Complainant is entitled to the charges. In absence of any material, we assess it at Rs. 1,000/-.

COMPLAINANT is blamed for the bursting of engine, as he got the same repaired privately. One should not forget the realities of life COMPLAINANT with high hopes purchased the tiller for developed forming after mortgaging his property. He is to use it maximum to clear the loan and the interest. When the tiller remains idle and his approaches to OP. No. 1 did not yield any result, there was no option left to him. Opposite party realised the difficulties and has categorically stated about the difficulties faced by borrowers of Kuchinda Zone. We are inclined to conclude that on account of deficiency in service all the trouble were faced by complainant. Bursting of the engine on account of use of local made parts by local mechanics was directly connected with deficiency in service of opposite party No. 1. Letter dated 4.9.1990 of head office of O.P. No. 1 to its Regional Manager at Sambalpur is a direction to supply the engine immediately if the same was repaired and to settle the matter quickly. This indicates that repair of the bursted engine was to be free of charges by O.P. No. 1. There was no justification for Regional Manager to write to O.P. No. 2 that the repair is to be made at the cost of the beneficiary. Even if, the same would be correct, the bursting of the engine being the direct result of deficiency in service of O.P. No. 1, it is to bear the expenses for repair of the engine and get it fitted to the tiller. In case, the engine does not work properly it has to replace a new engine at its own cost. Opposite party No. 1 has to bear the to and fro expenses of complainant to Raipur with engine, and for his stay there. In absence of details, we assess it at Rs. 500/-. In case opposite party No. 1 would have informed complainant how to deal when the tiller goes out of order and there would have been a breach in the instructions, we might have considered differently. Opposite party No. 1 has not made out such a case. If that would have been a fact, Regional Manager on receipt of letter dated 4.9.1990 would have intimated the head office how complainant is squarely responsible. No such reply is brought to out notice. We would have considered liability of O.P. No. 2 if O.P. No. 1 would have furnished statement of Mechanical Supervisor that he repaired a manufacturing defect. No such report is brought to out notice. Rather opposite party No.1 without any enquiry has accepted the cause of bursting to be on account of local repair and use of local parts. Thus, it has protected O.P. No. 2. Accordingly, O.P. No. 1 would be liable for the entire transaction.

There is no proof of mental agony or physical pain as claimed by complainant. It is however, clear that complainant has to pay interest oh the bank loan. Since complainant could not profitably use of power tiller to pay back the loan with interest, we direct that opposite party No. 1 shall pay the entire interest to the bank from 4.8.1990 till the engine is repaired or replaced and fitted to the power tiller.

DETAILS of Civil Suit and complaint before District Forum have not been supplied. Accordingly, from the materials available we cannot come to a conclusion that either civil suit or a complaint before District Forum has been filed. If such a Civil Suit would have been filed or a complaint before the District Forum would have been filed before the filing of this complaint, we would not have entertained this complaint. However, there is no material to refuse to entertain the complaint. In view of our aforesaid discussion, we direct that opposite party No. 1 shall (i) refund the T.O.T. charged (ii) since complainant has used the power tiller for about six months and only defect is with the engine, opposite party No. 1 shall repair or replace the engine within three months of the receipt of this order after getting back the defective engine from complainant. In case opposite party does not replace the engine within three months, complainant can purchase a new engine after depositing the defective engine with Branch Manager of Opposite Party No. 1. Price paid by complainant for the engine, fitting charges and other ancillary charges shall be paid by opposite party No. 1 to complainant on receipt of a bill to that effect, (iii) Opposite Party No. 1 shall be liable to pay the interest payable by the complainant between 4.8.1990 and the date of actual replacement of engine or payment of bill as the case may be. (iv) Opposite party No. 1 shall pay Rs. 1,500/- (one thousand towards repair charges spent by complainant and Rs. 500/- (five hundred) for expenses on account of journey to Raipur).

COMPLAINT is allowed with the direction as given in paragraphs above. No costs. COMPLAINT allowed.