SURENDER KUMAR vs EICHER GOODEARTH LTD.

THE applicant/complainant has made a complaint charging the respondents with adoption of and indulgence in unfair trade practices and stating therein that he purchased an Eicher Tractor, model ''Gold 352'', Double Cylinder from the United Tractors and Engineers (respondent No. 4) for Rs. 87,000/- and it was delivered to him on 7.4.1986. It has also been stated that the tractor, in question, was covered by warranty for a period of 365 days or 1000 working hours, whichever was earlier. THE grievance of the applicant/complainant as set out in the complaint petition is that the tractor, in question, was defective and even though it was repaired and serviced from time to time, the defects were never fully removed. It has been complained that it had the following defects : (a) THE cooling system is defective, does not work, could not be brought in order by the local dealer inspite of the repeated efforts. Consequently, the engine becomes heated just within half an hour of the start of work. (b) THE fuel pump suspends its work just after 15-20 minutes of the start of work. (c) THE hydraulic system and hyderaulic pump is totally out of order, could not be put in order, inspite of repeated efforts by the mechanics of the opposite party No. 4. (d) THE Hydraulic lock is out of order due to which it is not possible to use any agricultural equipment. (e) Profuse leakage from main seal, tening seal Hydraulic Shaft seal and Gear Box packings. Leakage could not be stopped by the mechanics of opposite party No. 4. (f) THE gears are very tight, jam occurs very often, change of gear is very troublesome which created the probabilities of accidents some times. (g) THE fuel tank leaking since the very beginning and the mechanics of O.P. No. 4 seriously tried to seal the leakage of fuel tank by using araldite but to no improvements. (h) Engine is not in a position to bear the load and it suspends its working on load and used to throw the mobil oil from the silencer. (i) THE steering of the tractor is very hard and tight and more occasionally it is stood jam and defective which also creates the probabilities of accident.

IT has been further stated by the applicant/complainant that on his complaint to the respondent No. 4, an engineer was deputed on 10.10.1996, and after inspection of the tractor, he recommended that some parts were required to be changed and even though some of the parts were changed by the respondent, the tractor did not function satisfactorily. The applicant/complainant has prayed that either he may be refunded the cost of the tractor along with damages or the tractor should be replaced. On the basis of the complaint petition, a Notice of Enquiry dated the 28th January, 1991 was issued to the respondents. The respondents in their replies has stated that the tractor, in question, was serviced time and again and six free services were provided and the sixth free service was attended to on 21.1.1987 by respondent No. 4 and by then the tractor had already run 745 hours and the history card clearly revealed that the tractor was used and was running till the time of the last service. It has also been stated that the defects which were brought to the notice of the respondent No. 4 were attended to properly to the satisfaction of the applicant/complainant and the applicant/complainant also issued satisfaction letter expressing his satisfaction with the repair and service done by the respondent No. 4. It has also been mentioned in the reply of respondent No. 4 that the applicant/complainant did not show interest in its upkeep and did not send it for seventh and eighth service inspite of reminders.

On completion of pleadings, the following issues were framed : (1) Whether the Notice of Enquiry is not maintainable for the reasons stated in the preliminary objections taken in the written reply ? (2) Whether the respondents or any of them have indulged in the unfair trade practice in terms of Section 36A(1)(i) of the MRTP Act, 1969 ? (3) If answer to issue No. 2 is in the affirmative, whether the said unfair trade practice is prejudicial to public interest, interest of the consumer or consumers generally ? (4) Relief.

A compensation application under Section 12-B of the Monopolies and Restrictive Trade Practices Act, 1969 (hereinafter referred to as the Act) was also filed by the applicant/complainant arising from the same cause of action and complaining therein about the same defects in the tractor, in question and claiming compensation aggregating to Rs. 75,71,626/-. As the subject matter of both the complaint petition and the compensation application are the same, these two cases are being taken up together for disposal by this single order. A notice in respect of the compensation application was issued to the respondent and on completion of pleadings, the following issues were framed : (1) Whet her the Notice of Enquiry is not maintainable for the reasons stated in the preliminary objections taken in the written reply ? (2) Whether the respondents or any of them have indulged in the unfair trade practice in terms of Section 36A(1)(i) of the MRTP Act, 1969 ? (3) If answer to issue No. 2 is in the affirmative, whether the said unfair trade practice is prejudicial to public interest, interest of the consumer or consumers generally ? (4) Relief.

On behalf of the applicant/complainant, Shri Surinder Kumar, appeared as a witness and was cross-examined by the Advocate representing the respondents while the respondents produced Shri Ashwani D. Jaikanth, Deputy Manager of the respondent No. 1, as a witness. Shri Surinder Deep Singh, also deposed as a witness on behalf of respondent No. 4. It may be mentioned here that during the pendency of these proceedings, the applicant/complainant Shri Lallu Mal expired and his four legal heirs were brought on record vide Commission''s order passed on 16.7.1996. Shri Surinder Kumar, who appeared as a witness, is his son.

WE have heard the learned Advocates for the applicant/complainant and as well as that of the respondents. Our attention has been drawn to the job cards indicating the defects in the tractor and the service provided by the respondent No. 4, United Traders and Engineers, who is the dealer of the respondent No. 1, Eicher Goodearth Ltd. The job cards are dated 12.4.1986, 1.5.1986, 29.5.1986, 21.9.1986, 24.10.1986 and 22.1.1987. In each of these job cards, the applicant/complainant (Shri Surinder Kumar, son of Shri Lallu Mal) has appended his signature indicating his satisfaction with the service provided by respondent No. 4. There is also a satisfaction letter dated 2.4.1987 signed by the same Shri Surinder Kumar wherein he has recorded that the job was done to his entire satisfaction. Our attention has also been drawn to the testimony of Shri Surinder Kumar, who appeared as a witness wherein in his cross-examination, he has stated that he can read and write English. It thus appears that although certain defects and problems cropped up in the tractor, in question, from time to time, it was sent to respondent No. 4 for carrying out repairs and replacement of defective spare parts, and the applicant/complainant, Shri Surinder Kumar was satisfied with the work done and the service provided by the respondent No. 4. In the job cards, there is a column which is to the effect that the delivery of the tractor, in question was taken by Shri Surinder Kumar after he was satisfied with the work done by the respondent No. 4. The defence of the respondents is that in the face of the satisfaction of Shri Surinder Kumar, indicated in the job cards, and more particularly the satisfaction letter of 2.4.1987, the contention of the applicant/complainant that his signatures were obtained on the job card without his knowledge is, therefore, without any basis and does not stand the test of scrutiny. It has also been pleaded on behalf of the respondents that the warranty of the tractor, in question, was for a period of one year and the tractor was delivered to him on 7.4.1986 and the last satisfaction letter is dated 2.4.1987 and, therefore, there is no case of unfair trade practices on the part of the respondents. Be that as it may, it is not disputed or denied that the tractor had various defects which are recorded in the job cards and some of the defects were of a recurring nature. While it is true that the tractor, in question, was attended to and serviced by respondent No. 4 during this period of one year, the fact remains that the tractor remained in the workshop for considerable time, especially when it was sent for the sixth service. While it appears from the evidence brought on record that the respondent fulfilled the stipulations contained in the warranty card, it can''t be gainsaid that a tractor which costs Rs. 87,000/- is supposed to last not just one year but several years and in fact, is supposed to provide trouble free service. It may also be mentioned here that it is not the grievance of the applicant/complainant that free services were not provided or the tractor in question, was not attended to properly by the respondent. His complaint is that the tractor had major defects due to which it had to be sent for repairs and even after repairs, it did not provide satisfactory service or function satisfactorily. It also appears that the satisfaction indicated by the applicant/complainant on the job cards was a mere formality as he had to append his signature on the dotted line under the printed words indicating his satisfaction otherwise, he would not have been given its delivery. The job cards which are part of evidence indicate that the so called satisfaction is printed thereon and the applicant/complainant had to sign on the dotted line in order to get delivery of the tractor. In that view of the matter, satisfaction shown on the job cards can''t be construed to mean that the tractor, in question, was completely free from defects or that the defects would not recur again or that the tractor was providing trouble free service.

THE applicant/complainant''s claim for compensation is based on his grievance that the tractor, in question, was defective and these defects could not have been rectified or removed while - on the other hand, it has been contended by the respondents that the tractor in question, till the date of sixth service, had been used for 754 hours and with proper upkeep and service and repairs would have continued to remain serviceable for more time. THE evidence brought on record goes to show that certain defects persisted and as a result, it was not serviceable and was lying as junk since then. In view of the above evidence, our finding on issue No. 1 is that a case of unfair trade practices by the respondents as complained by the applicant/complainant is established, and a cease and desist order is required to be passed against them, and they are also liable to pay compensation to the applicant/complainant.

AS however, during the pendency of these proceedings, the respondents showed their willingness to have an out of Court settlement with the applicant/complainant, as reflected in the order sheet of October 3, 2001, we asked the respondents whether the tractor in question could be made functional and serviceable now by replacing the defective spare parts and carrying out necessary repairs or in alternative to compensate the applicant/ complainant. Their reply which as confirmed by the applicant/complainant was that it was not feasible and possible to do so as the tractor was lying unused for such a long period and it could not be taken to the workshop of the respondent No. 4 for repairs and service. In the circumstances, we direct the respondents to compensate the applicant/complainant fairly and adequately. After all, the respondents are still manufacturing and marketing tractors and in the interest of their own image and reputation, they should keep their customers and consumers satisfied and happy. We are of the view that ends of justice would be met, if the respondents 1 to 3 replace the tractor, in question, by a new tractor. The applicant/ complainant would thus be suitably compensated and he could thus resume his activities as an agriculturist. While this order will dispose of the compensation application, we also direct the respondents to cease the aforesaid unfair trade practice forthwith and also furnish an undertaking that they will not indulge in or adopt same or similar unfair trade practices in future and also file and affidavit by way of compliance within six weeks. With these directions, both the enquiry U.T.P.E. 11/1991 and C.A. 287/1993 stand disposed of. There shall be no order as to costs. A copy of the order shall be placed on each of the two files Enquiry and C.A. disposed of.