KISHORE KUMAR DALMIYA vs BRIJENDRA TRADERS

ABOVE appeal and cross appeal have arisen from order dated 13.12.1995 passed by District Consumer Disputes Redressal Forum, Shahdol (hereinafter referred to as District Forum, Shahdol) in Complaint No. 14/95. Since the subject matter is one in both the appeals, they are being disposed of by a common order. Throughout the order, Shri Kishore Kumar Dalmiya shall be referred as complainant and Brijendra Traders as opposite party.

THE facts of the case in brief are that complainant purchased a tractor (Escort) 325 from opposite party on 16.6.1992. This tractor carried a warranty of 1 year or 1500 hrs. of running whichever is earlier. It was stipulated in warranty that during this period any defective part, if defect is admitted by authorised dealer, shall be replaced by authorised original part. THE complainant has alleged in his complaint before District Forum that oil was leaking from engine block and hence tractor was not working from 28.10.1992 to 30.7.1993. During this period complainant complained to opposite party several times in writing and orally but opposite party did not repair the defect and instead gave him verbal assurance of calling engineer from Escort Co. to repair it. Ultimately, the block was replaced by opposite party on 30.7.1993. Complainant further alleged that after 30.7.1993 the hydraulic power of the tractor developed defect which was still persisting at the time of complaint. Complainant prayed before District Forum to award him compensation of Rs. 94,000/- for the loss suffered by him because tractor remained idle from 20.8.1992 to 30.7.1993. He also prayed for compensation of Rs. 10,000/- for mental agony. In their reply filed in District Forum the opposite party denied allegations as false, fabricated and mischievous with a view to extort money from the opposite party. They pointed out following omissions and commissions on the part of complainant. (a) Complainant was told at the time of sale to avail of four free servicing as follows: Servicing No. Opposite party alleged that complainant brought the tractor for free servicing as follows: I servicing after 130 hrs. on 6.8.1992 II servicing after 399 hrs. on 7.11.1992 III servicing after 715 hrs. on 19.1.1993 IV servicing after 1045 hrs. on 12.4.1993 Opposite party therefore, averred that the complainant mishandled the tractor causing defects and thus violated the conditions of warranty. (b) They further averred that this servicing work was done on ''Job Card'' on which complainant''s signatures for satisfactory work are present. (c) In addition to four free servicing the complainant availed two more servicing free on 21.6.1993 and 26.6.1993 (hydraulic). (d) Complainant, for the first time, brought to the notice of opposite party on 20.7.1993 about leakage of oil from engine block. On inspection it was found to be minor leak. Even then, because of persistent request of complainant, block was replaced on 30.7.1993. On 30.7.1993 the tractor was run whole day and the complainant in his own handwriting gave satisfactory work note on 31.7.1993. Opposite party averred this was a favour done although the leak had been closed by M Seal on20.7.1993 only. (e) Opposite party affirmed that allegation of tractor lying idle between 20.8.1992 and 30.7.1993 is a blatant lie as well as proved by the fact that tractor had run 1045 hrs. till 12.4.1993 as will be clear from job card. (f) Opposite party averred that warranty period of 1500 hrs. had expired in June, 1993 only and hence they were under no obligation to replace anything free of cost. In fact a favour shown by them as good salesman was being misused with such false complaint. (g) On 10.8.1993 the complainant went to opposite party to change ''hydraulic pump distributor'' on payment. The part was changed but complainant has not made payment of Rs.3,084/- for this replaced part. In the end opposite party prayed for dismissal of this false complaint and payment of Rs. 10,000/- as damages. They also prayed that District Forum may consider asking the complainant to approach Civil Court.

The District Forum after hearing both parties held that complainant did suffer a loss because defect was not removed in time. However, District Forum did not believe the allegation of quantum of loss suffered and awarded Rs. 10,000/- for loss due to late removal of defect and Rs. 2,000/- for mental agony. District Forum also directed complainant to pay Rs. 1,000/- as costs to Escorts Co., respondent No. 2 in District Forum. Instant appeal and cross appeal have been filed against this order.

IN Appeal No. 35/96, appellant/ complainant (Kishore Kumar Dalmiya) has challenged the order of District Forum on the grounds that District Forum has not appreciated the reasons for his demand of compensation at the rate of Rs. 300/- per day amounting to Rs. 94,000/- and has erred in awarding only Rs. 10,000/- for the loss suffered which is meagre. He has also questioned the award of cost of Rs. 1,000/- to respondent No. 2. In Appeal No. 42/96 appellant/opposite party (Brijendra Traders) have been aggrieved by award of compensation of loss amounting to Rs. 10,000/- when according to them there was no deficiency in service or malpractice in trade. In fact they had accommodated the complainant beyond warranty period, when they were not obliged to do so. Appellant has pointed out that complainant has failed to prove that he wrote any letter to the appellant. Since no receipt is placed on record. Complainant failed to prove that there was manufacturing defect which would be clear from the findings of District Forum wherein they have absolved respondent No. 2, (Escort Company) of any liability and in fact had awarded costs of Rs. 1,000/- to them for being dragged in Court unnecessarily. Appellant also pointed out that defect of leak was brought to their notice on 20.7.1993 and was repaired on same day. Not only this the engine block was replaced on 30.7.1993 free of cost. Appellant was not obliged to do so because of expiry of warranty period. This good will gesture has been treated as admission of defect by District Forum which is a mistake on face of record.

WE have heard both the parties and have also carefully gone through the voluminous record produced by both parties including their affidavits. Our perusal of record reveals that complainant did not approach the District Forum with clean hands. During hearing we also tried to know how the complainant has filed hand written letters and how he managed to keep such copies. WE also could not see any receipt of such letters. WE are, therefore, not convinced about the genuineness of the letters alleged to have been sent by complainant to opposite party (Brijendra Traders). WE also feel that opposite party has been able to establish on the basis of Job Card that no defect was mentioned during servicing and also that tractor continued to run as shown by hour reading recorded in Job Card. According to Job Card the tractor had run for more than 1500 hrs. by end of June, 1993. How can the tractor show the reading of hours or running and yet remain idle. WE, therefore, hold that complainant''s complaint about tractor remaining idle between 20.8.1992 to 20.7.1993 is not established and cannot be believed. WE, therefore, do not agree with the District Forum that complainant suffered a loss because tractor remained idle and also that opposite party removed the defect after very long time. In these circumstances there can be no question of awarding compensation of Rs. 10,000/- to complainant for loss and Rs. 2,000/- for mental agony. Therefore, orders of District Forum regarding award of compensation of Rs. 12,000/ - is not sustainable and deserves to be set- aside. Whole case set up by complainant is based on false foundation and the complaint deserved to be rejected. In view of our findings as recorded in preceding paras the appeals are disposed of as follows : Appeal No. 35/96. In view of our findings the appeal is devoid of any merit and is dismissed. No order as to costs of this appeal. Appeal No. 42/96. In view of our findings the appeal succeeds and is allowed. Order dated 13.12.1995 so far as it relates to payment of compensation of Rs. 12.000/- by respondent No. 1 (appellant in this case) to complainant (respondent of this appeal) is hereby set-aside. Orders regarding payment of costs of Rs. 1,000/- by complainant/ respondent in this appeal to respondent No. 2 is affirmed. No orders as to costs of this appeal. This order be retained in Appeal No. 35/ 96 and a copy be placed in Appeal No. 42/96. Appeal disposed of.