TRACTORS AND FARM EQUIPMENT LTD vs UTTAM PANDURANG BHOSALE

-THIS Revision Petition has been filed by Tractors and Farm Equipment Limited against order dated 1st March, 2006 passed in Appeal No. 21 of 2005 by the State Consumer Disputes Redressal Commission, Maharashtra, (hereinafter referred to as State Commission ).

THE State Commission by the aforesaid order dismissed the appeal filed before it by the petitioner herein against the order dated 24th November, 2004 in complaint No. 54 of 1999 passed by the District Consumer Disputes Redressal Forum, Sholapur (hereinafter referred to as the District Forum) by which complaint of Uttam Pandurang Bhosale, the respondent in this petition, was allowed and the petitioner was ordered to replace the defective tractor; pay a compensation of Rs. 50,000, and in addition Rs. 5,000 as costs. Briefly stated, facts of the case are that respondent/complainant purchased a tractor Model 1245 D1, manufactured by the petitioner on 5. 2. 1998 from its authorised dealer. Within a period of less than 40 days of its purchase, the tractor started giving trouble and it had to be taken 21 times to the dealer''s workshop where it remained with them for 46 days on different occasions. All this was during the period of warranty. Inspection of the tractor by their own engineer had no improvement. Alleging manufacturing defect, the respondent filed the complaint before the District Forum. After hearing the parties and perusal of the evidence adduced before it, the District Forum, obtained as expert opinion and finally held it to be a case of deficiency in service and passed the order stated above which has been subsequently upheld by the State Commission in Appeal.

Ms. Poonam N. Karwa, Counsel for the petitioner assails the orders passed by the Consumer Fora below, mainly on three grounds. Her first and main contention is that the District Forum has committed serious illegality in appointing a Commissioner after the complainant had already submitted his written arguments and the matter had been heard and only orders were to be pronounced. Appointment of the Commissioner when the affidavit of Sh. B. K. Dukare of Shri Sai Tractor detailing the defects in the tractor was already before the District Forum and that too behind the back of the petitioner was not called for.

THE illegality has been further compounded as the Commissioner proceeded ex parte and his report has been made the sole basis of its order by the District Forum. Request of the petitioner to set aside the ex parte order too was arbitrarily rejected, the Counsel contends. The Counsel has further submitted that the Commissioner appointed, was only a Diploma holder and was not qualified to be so appointed.

IN her sound ground, the learned Counsel has taken the plea that the State Commission never considered the important fact that the complainant, after the filing of the complaint before the District Forum got the tractor repaired by different mechanics. In support of her contention, she has drawn our attention to Exhibits 22 and 23 which are affidavits filed by the complainant stating that he had spent a sum of Rs. 8,822 for replacement of defective Grown Pineal. The Counsel contends that the petitioner is not liable for any damage done by a third party which amounted to a breach of conditions of warranty. The third count on which the orders have been challenged relate to the usage of tractor by the complainant. According to the learned Counsel for the petitioner, the complainant has used the tractor extensively running almost 8 to 9 hours per day and the machine has been very roughly run and handled for commercial purpose which would also be the reason behind the machine developing the defects which the Consumer Fora below have failed to consider. In arriving at the conclusions that the tractor has run 8 to 9 hours per day, the petitioner has assumed that after its purchase in February, 1988, the tractor would not have been in use during May, June and July being rainy season and, therefore, could have been used only for 6 months when he filed the complaint in November. Out of the six months, the tractor remained in the workshop for 1 months. According to the Counsel, the tractor, was therefore, effectively used only for 4 months and clocked 1203 hours of running and therefore, on an average it was run for 8 to 9 hours per day. This according to the learned Counsel, was also the reason why the tractor developed mechanical defect. Concluding her argument, the Counsel has alleged that the complainant is a habitual litigant and could be seen around the Court complex almost around year and his version should not be believed in the normal course.

THE respondent-complainant who has appeared in person, on the other hand has submitted that he is a retired soldier from the army and is presently solely dependent on farming his land. In addition to having a regular driving licence for motor vehicles including tractor, he contends that he has adequate knowledge and experience of driving, repair and maintenance of vehicle by virtue of his training in the Army School of Electrical and Mechanical Engineers. He, therefore, strongly refutes that there has been any rough handling or usage of the tractor. Referring to the other contentions of the learned Counsel for the petitioner, he submits that, repeated visits to the dealer and the observation of their own area manager and admission of their dealer should have persuaded the petitioner to replace the tractor if they were really interested to provide proper service to a customer. On the contrary, he has been driven to unnecessary harassment and made to suffer loss both on account of his attempts to get the tractor repaired as also on account of not being able to use the tractor to improve agricultural productivity.

WE have heard both the parties and perused the records carefully. Objection of the petitioner to the appointment of a Commission to get an expert opinion even after the parties had been heard, in our opinion is not sustainable. In disputes of this nature, an expert opinion in fact is desirable. The contention that the Commissioner appointed was not qualified as he was only a diploma holder again cannot be upheld. The State Commission has discussed this point in its order with which, we agree. The report of the Commissioner is in detail. Petitioner admits having received notice from the Commissioner on 24. 5. 2004 yet it did not attend the Commission.

On the question of repair undertaken by the complainant after the filing of the complaint on his own expense, we are unable to appreciate how this goes to prove anything against the complainant? With all his efforts to get the tractor repaired from the authorised dealer failed, what would a farmer can do? He has to somehow get his machine repaired. The very fact that within 40 days of its purchase, the tractor developed defects and had to be taken 21 times to the dealer''s workshop and the dealer detained it for 46 days on various spells is enough to hold that the tractor had some serious primary defects. Hence, this plea is rejected outright.

ON the point of extensive use of tractor, again we cannot accept the learned Counsel''s contention that eight to nine hours of use per day would develop un-repairable defect in a tractor. Secondly, the calculation is misplaced. When it is alleged that the tractor was used for commercial purposes as well, the petitioner cannot take the months of May, June and July being rainy season for the complainant to have kept the tractor idle. Even a farmer is entitled to use his tractor to earn an extra income including in rainy season to repay the loan. If the entire period from date of purchase in February, 1998 until October 1998 is taken into account, it would come to 4 to 4 hours of running per day even after excluding the period the tractor remained in the workshop. If the tractor cannot run for this brief period of 4 to 5 hours a day, even when it is absolutely new, then there must be something inherent defect or wrong which is the case here. On a careful perusal of the records, we find that opposite party No. 4, Prestige Tractors, who is the dealer of the petitioner''s in his reply before the District Forum available at Page 14 of Vol. I of the paper book has clearly stated that the application of the complainant is true and supported his claim for replacement of the tractor. His testimony has to be given full weightage, as he had sold the tractor as petitioner''s dealer and it was he who had been reportedly approached whenever the tractor gave trouble.

CONTENTION of the Counsel that the complainant is a habitual litigant has no bearing on the facts of the case and has to be rejected as a desperate attempt by the petitioner to somehow discredit the complainant. Thus, in view of the discussion above, the Revision Petition fails on all counts and is dismissed. We order accordingly and direct the petitioner to replace the tractor No. MH13-A-9775 with a new tractor, and, as ordered by the District Forum petitioner along with opposite party Nos. 2 and 3 to pay Rs. 50,000 as compensation and further a sum of Rs. 5,000 as cost within a period of six weeks from the date of receipt of a copy of this order, failing which, District Forum will initiate proceedings under Section 27 of the Consumer Protection Act, 1986 to have the orders implemented as the farmer has been made to suffer on account of indifferent attitude of the petitioner. Revision Petition dismissed.