Vinayak Ransingh And Ors. vs Kamlakar Krishna Holkar And Ors.

COMPLAINANT - -Kamlakar Krishna Holkar filed Consumer Complaint No. 298 of 2007 before District Consumer Complaint Redressal Forum, Ahmednagar (for short, ''District Forum'') stating that he purchased a tractor from Om Tractors - -Dealer (Opposite Party No. 2). For purchase of this tractor, he availed loan of Rs. 6,80,000/ -. The said tractor was manufactured by New Holland Tractors (India) Pvt. Ltd. - -Manufacturer (Opposite Party No. 1). After purchase, the said tractor ran smoothly only for 15 to 20 days. Thereafter, defects like non - working of engine, gas kit, breaking of level mining rod, Hydrolic strips, defects in wiring and fuse box etc. were noted. Complainant brought his tractor to the manufacturer. Every time repairs were carried out. Thus, complainant could not carry out his agricultural operation. It is further stated, that mechanic of manufacturer visited for repairs of the tractor but showed his inability to repair the same, as it was beyond repairs. Thereafter, complainant issued legal notice dated 30.4.2007. Again on 07.06.2007, round table of trolley was broken but the same was not repaired. Thus, complainant has prayed for replacement of the tractor or in the alternative, sum of Rs. 4,88,500/ - being the cost of tractor be refunded to him. In addition, he has sought compensation of Rs. 7,200/ - and sum of Rs. 1.5 lakhs for financial losses and also sought compensation of Rs. 500/ - per day for 10 months as well as Rs. 15,000/ - towards mental stress.

MANUFACTURER in its written statement has stated, that whenever defects were informed by the complainant, same were repaired within warranty period. It is also stated that on 12.07.2005, their engineer inspected the tractor, who did not find any manufacturing defects but some minor defects were found. Thus, there is no deficiency in service on its part. On the other hand, dealer in its written statement has stated, that the tractor has run 340 hours, therefore it cannot be said that tractor was not working smoothly. Whenever tractor was brought for servicing, necessary repairs were carried out. Thus, there is no deficiency in service on its part.

DISTRICT Forum vide order dated 05.02.2008, partly allowed the complaint and directed the manufacturer as well as dealer to repair the tractor free of cost and make it road worthy. In the alternative, it ordered that if the tractor could not be repaired, then both of them shall replace it with same model and same horse power or else refund sum of Rs. 4,13,000/ - with interest @ 10% from 01.07.2007. In addition, Rs. 15,000/ - for mental stress and Rs. 15,000/ - as cost was also awarded.

THE dealer did not challenge the above order dated 5.2.208 of the District Forum. Whereas, manufacturer preferred (First Appeal No. 243 of 2008) before Maharashtra State Consumer Disputes Redressal Commission, Mumbai, (for short, ''State Commission''). The State Commission dismissed the appeal vide its impugned order dated 17.01.2012 and also directed the manufacturer to pay Rs. 10,000/ - for mental agony and Rs. 5,000/ - as cost in the appeal.

DURING pendency of Appeal No. 243 of 2008, the complainant filed (Execution Petition No. 93 of 2008) for execution of order dated 5.2.2008 of the District Forum.

THE execution petition was contested by the manufacturer as well as the dealer. District Forum vide order dated 29.09.2008 passed in the execution proceedings, directed the manufacturer and dealer to comply with Clause '' E '' and '' F '' of order dated 5.2.2008, passed in the original complaint.

THE dealer challenged order dated 29.09.2008 of the District Forum by preferring (First Appeal No. 506 of 2001) before the State Commission. Since, there was delay of 1084 days in filing of this appeal, the State Commission vide impugned order dated 13.10.2011, dismissed the application for condonation of delay. Consequently, it dismissed dealer''s appeal.

NOW dealer has challenged order dated 13.10.2011 of the State Commission, by filing (Revision Petition No. 630 of 2012) before this Commission. On the other hand, manufacturer has preferred (Revision Petition No. 1475 of 2012) against impugned order dated 17.01.2012, of the State Commission.

INITIALLY , complainant had put in appearance through an Advocate. Later on, that Advocate absented. Hence, complainant was proceeded ex parte before this Commission.

I have heard learned counsel for the parties and gone through the record. It is submitted by learned counsel for manufacturer, that manufacturer through its dealer immediately vide letter dated 17.03.2008, requested the complainant to bring the tractor for necessary repairs. But complainant did not pay any heed to the said request. Thereafter, letters dated 20.4.2009, 12.05.2009, 5.6.2009, 15.6.2009 and 6.7.2009 were also written. In such circumstances, when manufacturer was ready to rectify the defects, the order of refund of price of tractor by the State Commission is unjustified.

ON the other hand, learned counsel for dealer has contended that delay occurred was not intentional and was purely due to wrong legal advise. The dealer since beginning has been ready and willing to comply with order of the District Forum.

DISTRICT Forum while allowing the consumer complaint in its order dated 5.2.2008 held; "18. Even if there is no warranty card in the available documents, as accepted by both the parties, this period being for two years, which is still in progress, which is evident. In this period, the complainants for which the complainant as given or for the faults which have been brought to the notice of opponent No. 2, according to the statement given by the opponent No. 2, repairs have been done from time to time, servicing have been carried out, some parts of the tractor were replaced etc. Even when these statements have been given, the job card for these have not been submitted to this forum. Therefore, this court has doubt regarding the inspection of the tractor, repairs, replacement of faulty parts etc. works as mentioned by the opponent No. 2. Apart from this it is the duty of the opponent No. 2 to submit the job card to the Court as legal duty. That also has not been done. As initially the servicing book and job card are not available and as the opponent has not proved so, as there seems reality in the complaint of the complainant and as per his request, the Court forum to ascertain the defects in the tractor, the officers of the Dy. Regional Transport Office at post Shreerampur, has been Commissioned to inspect the tractor and submit their report to this court forum. Only on that it can be proved that there are faults and drawbacks in the tractor to the opponent. Even if so, the complainant as demanded to replace the tractor or refund the amount and the amount spent on punctures, trolley and plough to be replaced and due to fault in the tractor the loss incurred amounting to Rs. one and a half lakh, all these demands are not as acceptable to the court, only the order regarding the repairs to the tractor or replacement of the defective parts is being issued, for which it is the opinion of the court forum that there was deficiency partly on the part of the opponent in the service given to the complainant.

Nevertheless, not only this when the report of the Commission appointed by this court forum is observed it is indisputably proved that in the said tractor engine compression, hydraulic belts, liner -piston, level mining rod, fuse box, oil level, battery terminal, oil level etc. are defective which have been rectified by the opponent from time to time, even then the defects were not completely removed as evident from the report. Therefore, the opponent has deficiently rendered the services to the complainant and has not done enough to rectify the defects as is seen. Therefore, as it has not been proved that there are defects in the production, the services given by the opponent are "partly deficient" as opined by the court forum. Also since the beginning this type of deficient service might have been given, this point is strengthened by the report of the Commission. Apart from this the tractor as has been produced by the opponent No. 1 and since some defects are noticed by the Commission in its report for which replacement and repairs responsibility is on the opponent No. 2, it is once again clear that the opponent No. 1 and 2 have not fully given the services to the complainant and there was ''part deficiency'' in it."

Whereas, the State Commission while dismissing (First Appeal No. 243 of 2008), in its impugned order dated 17.1.2012, observed; "10. We heard all the counsels and perused the record. It is an admitted fact that complainant purchased the tractor with the help of financial assistance of the bank. For the said purchase he had hypothecated land of himself and his mother. It is an admitted fact that immediately after the purchase, tractor started giving trouble, therefore tractor was brought to the opponent No. 2 many times. It is also admitted fact that many time repairs were carried out by respondent No. 2. It is also admitted fact that engineer from appellant company visited the complainant for inspection of tractor this means admittedly there were many defects in the tractor. It is the contention of the respondent No. 2 that they were willing to obey the order of Dist. Forum. This itself is admission about the manufacturing defects occurred in the tractor. The opponent No. 2 tried to delay the repairs, Opponent No. 2 filed an application for transposing him as appellant at the stage of final hearing. In our view they tried to delay the hearing. It is an admitted fact that tractor was purchased in the year 2006 and now in the year 2011 appellant are offering repairs of the tractor this itself is causing mental harassment of respondent No. 1. If appellant have bonafide intention they might have repaired the tractor immediately after the order of Dist. Forum but till today they tried to prolong the matter on one or other ground. In our view Dist. Forum after considering aforesaid fact and evidence rightly directed appellant to refund the price of the tractor. Hence we do not want to interfere the order of Dist. Forum."

FURTHER , District Forum while allowing execution petition of the complainant in its order dated 29.9.2008, held; "That after minutely perusing the order passed by this Forum in the Original Complaint it is evident that, the Respondent Nos. 1 and 2 were personally and jointly directed to comply with the Clause " B" of the order within 30 days and the same was necessary. And if not complied with then the same period it was necessary for them to comply with the Clause "C" of the Order and if not complied then it was necessary for then to comply with the Clause "D" of the order. But, the Respondents have not complied any of the clause of the order within 30 days. After perusing the Clause "E" of the order it is for the Respondents on non -compliance as per Clause "B", "C" and "D" of the order then they are personally and jointly liable to pay the complainant Rs. 4,13,000/ - (Rs. Four Lacs Thirteen Thousand only) within 2 months from the date of the order and shall pay interest @ 10% per annum from 01.07.2007. But, the Respondents have not even complied with the Clause "E" of the order. After considering all this aspects this Forum is of the opinion that, the Respondents have not complied with any part of the order passed in the Original Complaint. Therefore, their submissions cannot be accepted. Hence this Forum pass the following order: -

1] The Respondents to comply with the Clause "E" & "F" of the order passed in original Complaint. And if not complied then,

2] The complainant can take action against the Respondents as per Section 27 of the Consumer Protection Act."

THE State Commission while dismissing (Appeal No. 506 of 2011) filed by dealer against order dated 29.09.2008 of District Forum passed in Execution Petition, in the impugned order dated 13.10.2011, observed; "2. Appeal filed with delay condonation application. Delay caused is shown as 1084 days. Adv. Shri. A.S. More appeared for appellant. It is submitted by Adv. More that judgment and order in complaint dated 5.2.2008 challenged by New Holland Tractor India Pvt. Ltd. by appeal No. 243/08 before this Commission. During pendency of said appeal original complainant filed execution petition before consumer forum against present appellant. Dist. Forum allowed said execution petition filed by complainant. Meanwhile appellant asked complainant to bring tractor for repairs. But tractor cannot be repaired. Against the order passed in execution present appellant filed revision petition before the Commission. The revision petition is dismissed as not maintainable. Thereafter present appeal is filed. Therefore delay has been caused.

In our view Dist. Forum in the execution directed appellant to repair the tractor. But appellant did not take steps to repair the same within stipulated period. Therefore Dist. Forum passed the order against present appellant in execution. Against that order revision was filed though it was final order. Therefore Commission dismissed the revision as not maintainable. Thereafter appeal was filed. Appellant was not diligent in following the procedure. Therefore we are of view that right accrued by one party should not be taken away by negligence of another party. Hence,

ORDER

a. Application for condonation of delay is

Consequently, appeal stand dismissed.

No order as to cost.

Copies of the judgment be issued to both the parties."

It is not in dispute, that dealer did not challenge order dated 5.2.2008 of the District Forum passed in the consumer complaint. Thus, that order of District Forum has become final, qua the dealer.

AS far as complainant''s case against manufacturer is concerned, manufacturer in its written statement has admitted that he has sent his engineer to inspect the tractor. Their engineer after inspecting the tractor, has stated that there was no manufacturing defect but some minor defects were there. However, manufacturer has not elaborated as to what were those minor defects.

EVEN otherwise, manufacturer has not placed on record any job card with regard to repairs done by it. It is well settled, that persons can tell lie but not the documents. Thus, by not placing documentary evidence on record, adverse inference has to be drawn against the manufacturer. Further, as per order of the District Forum passed in the original complaint, Deputy Regional Transport Officer was appointed as a Commission to inspect the Tractor. Accordingly, he gave his report. The District Forum while considering the report of the Commissioner held; "In the said tractor engine compression, hydraulic belts, liner -piston, level mining rod, fuse box, oil level, battery terminal, oil level etc. are defective which have been rectified by the opponent from time to time. Even then the defects were not completely removed as evident from the report. Therefore, the opponent has deficiently rendered the services to the complainant and has not done enough to rectify the defects as is seen."

THERE is no rebuttal to the above report of the Commissioner from the side of the manufacturer as well as its dealer. Therefore, it stand clearly established from the record that there is deficiency in service on the part of manufacturer as well as its dealer.

IN this regard, I am supported by a decision of this Commission, S.A.S. Motors Ltd. v. H.S. Balakrishna, : I (2015) CPJ 500 NC. It is well settled that under Section 21(b) of the Consumer Protection Act, 1986 (for short, ''Act''), scope of revisional jurisdiction is very limited. This Commission can interfere with the order of the State Commission only where such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

THE Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd. : 2011(3) Scale 654 has observed; "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora."

FROM the examination above it is clear that findings of fact reached by Fora below are based on correct appreciation of the evidence on record. The impugned order does not suffer from any illegality, material irregularity or jurisdiction error which could justify our intervention in exercise of powers under Section 21(b) of the Act. Consequently, both revision petitions stand dismissed for want of merit.

NO order as to cost.