Mahindra and Mahindra Ltd vs Kamal Singh

THIS is an appeal under Section 5 of the Consumer Protection Act, 1986, directed against the order dated 14. 6. 2006 passed by the District Consumer Disputes Redressal Forum, Durg (hereinafter referred to as ''district Forum'' for short) in Complaint Case No. 95/2003 whereby the complaint was allowed.

THERE is no dispute regarding the fact that the complainant had purchased a tractor manufactured by the O. P. No. 1 from its dealer O. P. No. 3 and after purchase of tractor, the same was repeatedly taken for repairs to the O. P. No. 3. Complainant''s grievance as narrated in the complaint are that he purchased the tractor manufactured by the O. P. No. 1 from its dealer O. P. No. 3 on 16. 7. 2001 but service book, guarantee card relating to the tractor were handed over to him on 25. 3. 2003 i. e. , nearly after 2 years. It was alleged in the complaint that the dealer had charged excess price, there were manufacturing defects in the tractor, it has problems relating to hydraulic, higher consumption of the diesel, breaking of toppling during ploughing of field, noise from the engine, starting problem and so on as detailed in the complaint. The complainant repeatedly approached the O. P. No. 3 for rectification of defects but the defects could not be fully rectified. Hence, it was alleged in the complaint that the O. Ps. were guilty of unfair trade practice as they had sold him a tractor that had manufacturing defects that could not be rectified and the said tractor was not replaced despite legal notice. The complainant has suffered huge loss in agriculture as he could not properly use the tractor. Hence, prayed for replacement of tractor together with damages as detailed in the complaint.

The O. P. Nos. 1 and 2 raised many preliminary objections in the written version such as the complainant not being a consumer, complaint being barred by limitation, complainant having no cause of action against the O. P. Nos. 1 and 2, the District Forum does not have jurisdiction and so on. Besides the preliminary objections, it was averred in the written version that the problems/defects in tractor had arisen due to the lack of following instructions regarding use and maintenance of the tractor and also the fact that the tractor was not driven by a trained driver. For all the defects, the complainant only was responsible. The tractor had no manufacturing defects. On various dates, as detailed in the written version, the complainant had brought his tractor with some complaint or the other and the defects that were complained of were properly rectified to the satisfaction of the complainant. There was no deficiency in service or unfair trade practice on part of the answering O. Ps.

THE O. P. No. 3 had in his written version alleged that the complainant failed to follow instructions while using the tractor. The tractor was sold after proper checking and testing by trained and competent engineers and was found to be as per standard. There was no manufacturing defect in the tractor. The problems experienced by the complainant in the tractor during warranty period were duly rectified to his satisfaction. The problems had arisen due to lack of proper care and up keep by the complainant. The allegation of deficiency in service has also been denied. The District Forum was not impressed by the version of the O. Ps. , hence allowed the complaint. Aggrieved, the O. P. Nos. 1 and 2 have preferred this appeal.

LEARNED Counsel for appellants assailed the impugned order and submitted that the District Forum has failed to appreciate the material on record and the issues involved. He reiterated the stand taken by the O. P. Nos. 1 and 2 before the District Forum and submitted that though the tractor has been repaired, as has also been mentioned in the report of Mr. H. S. Singh, but the complainant has failed to take delivery of the same. The District Forum failed to appreciate this fact and vide impugned order directed refund of price which is not proper in view of the fact that whatever defects had arisen were due to lack of proper care by the complainant and the said defects have also been fully rectified. Learned Counsel for the appellants submitted that the appellants are prepared to give delivery of the repaired tractor as and when directed. The complainant has failed to prove any manufacturing defect in the tractor hence, refund of price with interest has been wrongly directed. He prayed that the appeal be allowed and impugned order be quashed. Learned Counsel for the respondent No. 1 submitted that the order passed by the District Forum is just and proper in the circumstances and the same deserves to be affirmed. None appeared for the respondent No. 2. The O. P. Nos. 1 and 2/present appellants have admitted in various sub-paras of para 5 of their written version that the tractor was brought to the O. Ps. for rectification of various defects on dates as detailed in the written version and the said defects were duly rectified. Job cards dated 19. 7. 2001, 14. 11. 2001, 20. 1. 2002, 14. 2. 2002, 13. 3. 2002, 26. 3. 2002 and 9. 10. 2003 have been placed on record and the same go to show that from time-to-time the tractor in question suffered from defects as detailed in the complaint. The tractor was also examined by Mr. H. S. Singh, B. E. (Mech.) who had given a detailed report based on his own inspection ad supported by the job card. He has expressed the opinion that the tractor was defective from the very beginning. It further appears from the said report that the engine had seized due to fact that the defects were not properly rectified when the tractor was brought for repairs, 13 days prior to seizing of the engine. The report is a detailed one mentioning the causes and defects of the problems. It is further mentioned in the report that the tractor has been repaired but besides the replacement of crank shaft, the engine head and valves also ought to have been replaced but the dealer has not done so. Hence, there is possibility that the engine may develop defects in near future also. Besides the aforesaid reports, the expert Mr. H. S. Singh has also given answer to the questionnaire given by the O. Ps. containing 20 questions and the expert has given detailed answers to the said questions. Learned District Forum has discussed the aforesaid report and the answer to the questionnaire and on the basis of the same came to the conclusion that the tractor had manufacturing defects. On perusal of record including the Report of Mr. H. S. Singh, we find nothing to conclude otherwise. Hence the finding in the regard is affirmed.

SO far as the submission of the learned Counsel for appellants that the appellants have repaired the tractor, as was noticed by the expert also, on whose report the Forum had otherwise relied, and they are prepared to handover the tractor as and when directed, is concerned it is noticed that the expert has also expressed his opinion that besides the replacement of crank shaft the engine head and valves also ought to have been replaced but the dealer has not done so. Hence, there is possibility that the engine may develop defects in near future also. In view of the aforesaid observation, it does not appear to be just and proper to direct the complainant/respondent No. 1 to take delivery of the aforesaid tractor.

IN view of the above discussion, we are of the opinion that the order of the District Forum is a speaking order based on sound reasoning, hence no interference in the same is called for. This appeal is dismissed and the impugned order is affirmed. Appeal dismissed.