NATABAR PRADHAN vs REGIONAL MANAGER, ORISSA AGRO INDUSTRIES

DEFECT in goods and deficiency in service are grievance, of the complainant in respect of his HMT 3511 tractor purchased on 8.12.1989.

MANUFACTURER opposite party No. 4 had undertaken as per the warranty conditions found in operator''s manual of the HMT tractor as well as HMT service policy that there will be after-sales service to all the purchasers through dealers for which terms and conditions are reflected in the warranty policy. Every purchaser gets free of cost after-sales service of the tractor of HMT 3511 made which deals with periodic maintenance and the details of maintenance of the tractor by the purchaser during warranty period through authorised dealers. In the aforesaid back-ground, the dealer Orissa Agro Industries Corporation of which opposite party No. 1 is the Regional Manager of Berhampur and opposite party No. 2 its Chairman, gave free services to the complainant on 7.1.1990, 7.3.1990 and 7.6.1990. Before the fourth and final free service the tractor gave operational trouble on 15.8.1990. On information being sent to the office of opposite party No. 1, a machanic was deputed who checked and repaired the tractor. While it was operating the same defect was noticed being sound from the rear left wheel bearing. On 18.9.1990 mechanic checked and repaired the vehicle. Prior to it, on 18.8.1990 the final servicing was made. After the repair, the tractor was operated for 20 hours on 2 days. However, on 22nd August, 1990 at about 7 p.m. the tractor became immobile while returning back from the field giving sound from the rear wheel. When information was sent the very day a mechanic was deputed on 7.9.1990 after collecting the necessary spare part and repaired the vehicle. The third major filure was reported on 13.11.19V0 which was repaired during the night on 13th November to b e completed by 7.30 a.m. of 14th November, 1990. However, complainant not being satisfied with the repair undertaken left the tractor at the office of the dealer at Berhampur On 6.12.1990 through his driver. When it was sought to be inspected, the driver said that the same should be opened only in presence of the owner which was given in writing by the driver. Thereafter, the dealer sent messengers to the complainant to turn but the complainant did not come. Therefore, on 17.12.1990 and 21.12.1990 complainant was requested to visit the office for inspection. Complainant agreed to come on 22.12.1990 and on his reporting he was requested to explain the problems with some other details. Complainant could not reply stating that the repairs were carried in presence of his son and he can reply after consulting with his son. The Assistant Manager of the Corporation went to his residence and obtained a letter in reply which was not satisfactory since all the points were not replied. When complainant was asked on 24.12.1990 about his final desire, he replied on 16.1.1991 that he required major check up and change in rear wheel and self-starter and checking the mud from entering into the bearing while working in muddy field. Thereafter complainant was advised on 19.1.1991 to take delivery of the tractor as no defect was found in both the rear wheels and the self-starter which was checked on 22.12.1990. Thereafter complainant addressed a letter to the manufacturer at Chandigarh on basis of which the. dealer was advised to contact the complainant. On 8.2.1991 complainant was called to the workshop of the dealer to sort out his grievances. The tractor was thoroughly inspected by the staff of the dealer in presence of complainant''s son, lubrication oil in both the portals (rear wheels) was drained out and measured. The same was almost half litre on each side, and that too in extremely dirty condition whereas it should have been one and a half litre in each side as per standard norms. Being of the opinion that it was never replaced earlier, the fact was informed to the. complainant on 11.2.1991. On receiving letter from complainant on 25.2.1991, reply was sent on 6.3.1991. Although number of requests were, made by the dealer to take, back the tractor, complainant was unwilling to take it back

From the aforesaid narration of facts as reveal from the complaint and replies with the documents supplied, it is to be examined Whether there is defect in goods and deficiency in service.

MAIN defect in the tractor as pointed out is that mud goes into the bearing while puddling of the tractor in mud which complainant insisted to be removed with check-ups by testing it by way of operation in muddy field. It is claimed by opposite parties that the defect was on account of the portal oil not being changed as per the instructions. When there were free servicing it was the duty of the dealer to check up all aspects of the tractor during each servicing. It is not claimed that the portal oil was not checked. It may be true that in the operation manual the dealer was advised to change the portal oil after every operation. It is to be remembered that the manual is in English and the dealer does not know English. It is a common knowledge that in Orissa most of the agriculturists do not know English. In such circumstances, it was known to the dealer and its officers that an agriculturist who has invested huge amount for mechanised agriculture is to be assisted by rendering all advises and assistance. When the tractor was given for free service, it was duty of the dealer to check the quality of portal oil and advise him or his agent by checking it from him whether portal oil was changed. If the quantity of portal oil is found not to be adequate the same could have been brought to the required standard. From the quantity found by dealer, it can safely be said that the dealer was not perfect in rendering the service. When it is not claimed by the dealer that it had advised to change the portal oil or the portal oil which was found to be defective or less in quantity, and yet the complainant did not change, there is no deficiency in service in this regard. Where however there was no such advise at the time of service, this deficiency in service had led to the first defect which was repaired by change of oil seal. At that time also the standard of the portal oil could have been checked. It is not asserted by the dealer that the same was changed. If at all, non-replacement of portal oil led to the defect in the vehicle, it was on account of the dealer. We are of the view that the dealer is deficient in rendering the service.

IT is not pleasure for the owner of a tractor to leave it in the workshop of the dealer before completion of one year of his purchase when he has invested huge amount for the same, part of which was borrowed from the Bank on payment of interest. Though tall claim is made by the manufacture that it had changed many parts of the tractor free of cost whose price would be about Rs. 5,000/- although the same was not required as per term of the warranty, we are satisfied that the manufacture also avoided to render assistance to the complainant for proper functioning of the tractor. Claim of the complainant was very simple the tractor should be checked and operated in muddy field to find out whether mud is entering into the bearing. There is no reason why this simple request of the complainant was not complied with either by the dealer or by the manufacturer. It is a common experience that persons without knowing proper operation of machines purchase the same and never try to gain experience how to maintain it believing that having paid a huge amount the manufacturers and the sellers would always oblige them. This appears to be die attitude of the complainant. From the aforesaid analysis, we find that both parties are partially responsible for the ultimate result. In such circumstances, we are inclined to direct opposite party Nos. 1 to 4 to make an overhauling and check up of the tractor, remove die defects, test the same by operating it in muddy field and on being satisfied that mud is not entering into the bearing, hand over the same to the complainant. 50 per cent of the cost of spare parts and accessories requires for this overhauling, check up and test would be borne by the complainant and balance 50 per cent will be borne by the opposite parties jointly and severally. When the overhauling and check up of the tractor is done and test is undertaken, complainant shall be called upon to take delivery of the tractor which would be tested in his presence. This direction is to be complied with within three months from the date of receipt of this order. Complainant is not entitled to other compensation as claimed.

IN the result, complaint is allowed to the extent indicated above with the aforesaid direction. Complaint allowed.