Jagdamba Tractors vs LAV KUSH KUMAR

PETITIONER /opposite party has filed the present revision petition under Section 21 of the Consumer Protection Act, 1986 (for short as ''Act'') against order dated 21.10.2005 passed by State Consumer Disputes Redressal Commission, Bihar, Patna (for short as, ''State Commission'') vide which (First Appeal No. 542 of 2004) of the petitioner''s appeal was dismissed and order of District Forum was sustained. Brief facts are that Respondent/Complainant had filed a consumer complaint under Section 12 of the Act against the petitioner on the allegations that he had purchased a tractor from the petitioner after arranging loan from a private financer. Since the next day of the purchase of the tractor, the Hydrolic of tractor stopped working. In spite of complaint made by the respondent, the same was not replaced. This caused pecuniary loss and mental harassment to the respondent and his agriculture work also suffered. The cost of Hydrolic was Rs. 70,000. Respondent has prayed for Rs. 70,000 being cost of the Hydrolic and Rs. 25,000 as damages.

PETITIONER in its written statement has admitted that the tractor in question was purchased by the respondent from it. However, no complaint, either oral or in writing, was made by the respondent with regard to the defects or non -performance of the tractor. After getting notice from the District Forum, petitioner took immediate steps and called the engineer concerned from Patna and got the tractor examined, particularly the hydrolic part, which was found to be in order. Hence, there is no deficiency on its part. District Consumer Disputes Redressal Forum, Nawada, Bihar (for short, ''District Forum'') vide its order dated 20.7.2004 allowed the complaint and directed the petitioner to replace the tractor within one month from the date of the order and also to pay compensation of Rs. 2,000.

AGGRIEVED by the order of District Forum, petitioner filed appeal before the State Commission, which dismissed the same vide the impugned order.

HENCE , the present revision. We have heard the learned Counsel for the parties and gone through the record.

IT has been contended by learned Counsel for the petitioner that respondent did not make any complaint with regard to any defects, either to the petitioner or to the manufacturer. Moreover, there was no defect in the tractor as examined by the Engineer of the petitioner. Therefore, respondent has no case at all.

ON the other hand, it has been contended by learned Amicus Curiae for the respondent that both the Fora below have given finding of facts, that there was manufacturing defect in the tractor since, the hydrolic system has failed from the second day of its purchase. Hence, there is no illegality or infirmity in the impugned order. It is an admitted fact that respondent had purchased the tractor in question from the petitioner. Further, as per respondent''s case, the hydrolic system was not functioning from the second day of its purchase. Petitioner in its written statement has admitted that tractor was examined by its engineer and particularly, the hydrolic part was found in order.

IN case, the tractor was examined by the engineer called by the petitioner then petitioner ought to have placed on record the report of the engineer. There is nothing on record to show that any such report was filed before the Fora below, so as to show that the hydrolic system of the tractor was not defective. Thus, the petitioner has withheld the best evidence by not providing the report of the engineer who had examined the tractor.

HOWEVER , it would be pertinent to point out that respondent in its complaint has prayed for Rs. 70,000 only towards the cost of hydrolic and Rs. 25,000 as damages. We fail to understand as to how the Fora below, overlooked this basic fact and directed for replacement of the tractor when admittedly no prayer to this effect was made by the respondent at all. Moreover, during the course of arguments it has been admitted by learned Amicus Curiae that the tractor in question is still lying with the respondent.

UNDER these circumstances, we partly allow the present revision and modify the orders of Fora below. Instead of replacement of the tractor, we direct the petitioner to pay a total sum of Rs. 95,000 (Rupees ninety five thousand only) as claimed by the respondent. In addition, we award a sum of Rs. 20,000 (Rupees twenty thousand only) as cost of the litigation to the respondent. Petitioner is directed to pay the aforesaid amount by way of demand draft in the name of respondent, within four weeks, failing which petitioner shall be liable to pay interest @ 9% p.a., till realization. List for compliance on 26.9.2014.