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Judgment
THIS revision petition is against the order dated 13.07.2011 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata (in short, ''the State Commission'') in First Appeal no. 248 of 2010. By this order, the State Commission dismissed the appeal filed by the petitioner and affirmed the order dated 15.01.2010 of the District Consumer Disputes Redressal Forum. Berhampur, Murshidabad (in short, ''the District Forum'') in complaint case no. 126 of 2001. By the aforesaid order, the District Forum had partly allowed the complaint and directed the petitioner (opposite party no. 1 - OP 1 before the District Forum) to replace the tractor purchased by the complainant from it within two months and also pay him Rs.50,000/- as compensation on account of harassment.
RESPONDENT 1 in this petition was the complainant before the District Forum. It is an admitted position that he purchased an HMT tractor from the petitioner (opposite party - OP 1, local authorised dealer of HMT tractor) on 06.04.1999 with the help of a loan of Rs.2.63 lakh advanced by the Murshidabad Cooperative Agricultural and Rural Development Bank Ltd., Islampur. According to the complainant, the tractor had many defects right from the beginning, which he brought to the notice of OP 1. OP 1 attempted to get the tractor repaired but to no avail. Thereafter, the complainant wrote to the Deputy General Manager of HMT on 30.04.2000 and on 26.06.2000 allegedly 8 parts of the tractor was replaced while the tractor was in the garage of OP 1. On 04.08.2000 another mechanic examined the tractor and reported that there were inherent defects in it. On 24.12.2000 the tractor was examined by another tractor servicing centre, which too advised replacement of as many as 20 parts. Thus alleging manufacturing defect in the tractor and deficiency in service on the part of OP 1, the complainant claimed its replacement and compensation of Rs.2 lakh on account of loss of income, etc.
THE petitioner filed its written version denying all material allegations. It is contended that the tractor was delivered to the complainant in a fit condition on 06.04.1999. The complainant availed of the first free service on 05.05.1999, second free service on 12.06.1999 and the third free service on 11.08.1999 in accordance with the conditions of the warranty. During this period, the complainant pointed out some minor problems, which were attended to. He did not report any major defect during this entire period. Therefore, the subsequent allegation of inherent defects in the tractor was completely baseless. OP 1 also averred that the complainant had engaged an unskilled person to drive the tractor and he did not even possess a valid driving licence. Further, the complainant had the tractor repaired by some unauthorised mechanic at wayside workshop, which was in violation of the warranty conditions.
HOWEVER, on consideration of the pleadings, in particular, the written version of the OPs 2 and 3 who were the local representatives of the Murshidabad Cooperative Agricultural and Rural Development Bank Ltd. and the fact that OP 1 did not appear for arguments, the District Forum concluded that on the basis of evidence on record, from the side of the complainant as well as the corroboration of OPs 2 and 3 the case of the complainant could not be ignored. Accordingly, it went on to pass the order summarised in paragraph 1 above.
IN appeal before the State Commission, the latter brushed aside the legal objections as well as the rulings cited on behalf of appellant (OP 1) and held that there was overwhelming evidence to hold that "the OP 1 being the dealer of the said tractor who sold the same to the complainant had remained a silent spectator for all those periods without rendering any service whatsoever to the complainant in spite of repeated demands. It is a blatant case of deficiency in service by the OP no. 1 to the complainant as a dealer." On this basis, the State Commission dismissed the appeal of OP 1, which has led to OP 1 filing this revision petition.
WE have heard Mr. Prabir Basu, Mr. Sanjay Kumar Ghosh and Mr. Barun Prasad, learned counsel for the petitioners and respondent 1 in person. We have also considered the written replies sent by respondents 2 and 3 (OP 2 and 3 in the complaint before the District Forum). During the hearing, the learned counsel for the petitioner was permitted to file photocopies/typed copies of the various documents, which were produced before the District Forum but, according to him, not duly considered. In particular, the three job cards relating to the free servicing as well as the job cards for the repair done beyond the warranty period (24.06.2000 and 13.07.2000) and copies of correspondence addressed by the complainant to the manufacturer (HMT Ltd.) were filed.
THESE documents would show that free servicing was carried out satisfactorily and the complainant signed notes to that effect in his own hand. However, subsequently, he wrote a letter dated 31.05.2000 to the HMT''s Head Office alleging that the petitioner/OP 1 did not attend to his frequent complaints of defects in the tractor and forged his signature in the service coupons. HMT directed its Area Office in Calcutta to check the tractor and sort out the problem. The Calcutta Area Office of HMT then wrote a letter dated 15.06.2000 to the complainant informing him that their Senior Mechanic would remain present on 23.06.2000 at Berhampur to check his tractor. Thereafter, the Associate Manager of HMT at Calcutta wrote a letter dated 23.06.2000 to the Chairman, Murshidabad Cooperative Agricultural and Rural Development Bank Ltd. It is useful to reproduce the said letter: "23.06.2000 To The Chairman Murshidabad Cooperative Agricultural and Rural Dev. Bank Ltd. Berhampore, Murshidabad Dear Sir, Subject: Customer complaint. With reference to above we would like to inform you that we have discussed with Mr. Hazar ul Islam today and know about tractor problem. As per customer complaint, following problem in his tractor are: 1. Brake Jamming 2. Abnormal sound from Engine 3. Abnormal sound from Gear Box 4. Front wheel rim crack 5. R.H side strut alignment is not OK We have checked and found the following problems: 1. R.H Side rear wheel brake jamming, brake settle was not OK, one roller ball is missing from brake pressure plate. 2. Engine Tappet clearance was not OK 3. 3rd speed gear teeth were found broken 4. Front wheel rim crack near locking nut side 5. R.H side strut adjustment was jammed due to improper oiling. Brake and gearbox were repaired by wayside mechanics (out-side from our authorised dealer''s workshop). We are going to repair all problem for the sake of good-will of product although it is out of warranty case as per our company''s warranty terms and conditions policy. In view of period and maintenance procedure, we will hand over the tractor after repairing. This is for your kind information and necessary action at your end. Thanking you and assuring you of our best services at all times. Yours faithfully, [S. K. Sinha] Associate Manager (S)" 7. After these repairs were carried out, the Associate Manager wrote another letter dated 26.06.2000 to the Chairman of the aforesaid Bank. The letter reads as under: "With reference to above we would like to inform you that we have repaired the tractor of Md. Hazar ul Islam on 24.06.2000. At present tractor is running in good condition. We have replaced following parts free of cost: 1. Front wheel rim - one number 2. Front wheel RHS king pin bush and bearing - one set 3. Hour metre wire and elbow - one set 4. Fuel tank drain-cock - one number 5. 3rd speed gear - one number 6. 2-3rd speed sliding gear - one number 7. Rear wheel L. H and R H sides brake discplate - one set 8. L.H and R.H Brake lining - one set. We are waiting for Md. Haza rul Islam from yesterday for delivery of tractor, but till today at 03.00 p m he has not come physically for receiving the tractor through he had promised to come on 23 and 24.06.2000 respectively at the time of repair when he was present here (workshop). Hence, you are requested to please send your official to receive the tractor in OK Condition. Thanking you and assuring you of our best and prompt services at all time."
IT is also borne out by records that by his handwritten note dated 14.07.2000, the complainant acknowledged that the tractor had been fully repaired, free of cost and that he had taken its delivery on that date in good condition. However, on 09.04.2001 the complainant filed his complaint before the District Forum alleging inherent defects in the tractor on account of certain acts of petitioner/OP 1 and cited the so-called evidence/version of one Md. Hafijur Rahman, a private mechanic and that of Sarkar Tractor Servicing Centre that there were inherent defects in the tractor which had not been repaired and seeking reliefs already summarised above.
IT is also interesting to notice the reply to the revision petition now filed on behalf of the two representatives of the Murshidabad Cooperative Agricultural and Rural Development Bank Ltd., Islampur. The relevant paragraphs are reproduced below: "xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx that revision petitioner has tried their best for repairing of the vehicle and at the time of delivery of the vehicle the same was defect free and received by the respondent no. 1/complainant with his satisfaction but subsequently the tractor again became defective. The manufacturer, i.e., HMT also interfered in the matter and tried their best for repairing, they replaced few spare parts of the tractor free of cost xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx it is true that the respondent no.1/complainant had repaired the tractor outside unauthorised roadside garage without any intimation to the bank. The revision petitioner after knowing such facts wrote one letter dated 23.03.2000 to the bank whereby they have intimated that the complainant violated the warranty terms and condition and therefore the same became inoperative as per HMT Ltd., rules and regulations. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx that subsequently the manufacturer wrote one letter dated 23.06.2000 and intimated that they repaired the tractor by replacing few spare parts for the sake of good will of product although it was out of warranty case as per our company''s warranty terms and conditions policy xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx that thereafter by one letter dated 26.06.2000 the manufacturer HMT Ltd. intimated the Bank that they have repaired the tractor on 24.06.2000 and the tractor is running in good condition. The manufacturer also intimated that they were waited for the complainant/respondent no 1 for delivery of the tractor but he did not turn up for receiving the tractor though assured therefore, the manufacturer requested the bank for sending any official for receiving the repaired tractor from their custody. Ultimately, the complainant/respondent no. 1 took delivery of the vehicle after executing his satisfaction remark from the HMT Ltd."
[Emphasis supplied]
(i) The foregoing analysis of the documentary evidence brought on record before the District Forum and the contents of the rePly of resPondents 2 and 3 to the revision Petition quoted above clearly show that the comPlaint was ab initio baseless. Contrary to what has been observed by the State Commission, the evidence shows that the Petitioner, as the local authorised dealer of HMT tractors, Provided all necessary services to the comPlainant as and when he brought the Problems to the Petitioner''s notice. In fact, even the manufacturer HMT went out of its way to comPletely rePair the tractor free of cost though the rePairs had been necessitated by the comPlainant''s own mishandling of the tractor and then getting the tractor rePaired by unauthorised mechanic in violation of the terms and conditions of the warranty. The comPlainant carefully avoided imPleading the manufacturer though he alleged manufacturing ("inherent") defects in the tractor. Strangely, the District Forum failed in its statutory duty under section 13(1)(c) of the Consumer Protection Act, 1986 (hereafter, ''the Act'') to either get the tractor ProPerly insPected by an indePendent exPert mechanic or require the Presence of and evidence by the mechanic of the manufacturer who had admittedly attended to the defects in the tractor in June 2000 whereuPon the comPlainant had taken delivery of the tractor with a written note of satisfaction. (ii) If the findings of the District Forum reflected lack of aPPreciation of the evidence brought on record by the Parties and non-adoPtion of the statutory Procedure laid down in the Act, the State Commission went some stePs ahead. It not only ignored the evidence but also refused to consider the APex Court rulings cited on behalf of the aPPellant (Petitioner/OP 1) to the effect that even if it was found that there were manufacturing defects in the tractor, the dealer could not be held liable therefor, unless it was established that the relationshiP between the manufacturer and the dealer under the relevant agreement was that of ''PrinciPal to PrinciPal''. It is indeed saddening that the State Commission handled the aPPeal in the manner it actually did. (iii) Finally, any symPathy one could have felt for the comPlainant that he had been saddled with a large loan for the Purchase of a tractor that he could not make full use of vanishes into thin air when we take note of the rePly of resPondents 2 and 3 that the Bank has since received the full amount of the loan and interest thereon under the Central Government''s agricultural debt waiver scheme. The comPlainant is thus comPletely free of liability on that account.
IN view of these considerations, we have no hesitation in allowing the revision petition, setting aside the orders of the State Commission and the District Forum and dismissing the complaint. While ordering accordingly, we also direct the complainant/respondent 1 to pay cost of Rs.5,000/- to the petitioner within four weeks from the date of this order for filing a frivolous and baseless complaint. This payment shall be made within four weeks from the date of this order, failing which it will be open to the petitioner to seek execution of this direction under section 25/27 of the Act.