YAMUNA SYNDICATE LIMITED vs SWARN KAUR

THE present revision petition has been filed by the Yamuna Syndicate Ltd. (original opposite party) against the order of the State Commission dated 11.2.2003 in Appeal No. 156/2003 whereby the , order of the District Forum in Complaint No. 131 of 2002 was confirmed. Brief facts of the case are: The revision petitioner, the Yamuna Syndicate Ltd. is the successful opposite party in the complaint filed by the respondent/ complainant, Smt. Swarn Kaur and respondent No. 2, Bank of Patiala, Ropar. Smt. Kaur purchased a tractor from the petitioner after taking loan/sale of old tractor totalling Rs. 3,25,625. Instead of supplying anew tractor, it is alleged

IN the complaint that the revision petitioner supplied old one without providing requisite documents. Her allegation is that the revision petitioner sold the tractor in question through its branch at Morinda to the complainant vide invoice dated31.10.2001 which is a used second hand tractor instead of a new one. It is further alleged that according to the District Forum''s visual inspection of the tractor in question, it is seen that indicators on the front and also indicators with back lights of the tractor had holes by the side of corners of the four indicators and beneath the mudguards'' apparently plugged at some stage later on. District Forum agreed with this argument of the complainant and held that the tractor in question was an old one and that it is an unfair trade practice to sell an old tractor as new one under Section 2(l)(R)(l)(iii) of the Consumer Protection Act. As for non-delivery of documents, it is held that there is deficiency in service on the part of O.P. No. 1. District Forum has come to the conclusion that it is an old tractor after checking the stock register of O.P. No. 1. O.P. No. 1 had sold FT-45 DB tractor bearing tractor serial No. NX-234781 chassis No. BSN 284781, Engine No. NXC288692 to the complainant. It took note (erroneously as we show later) of the fact that the stock register of Morinda Branch showed nil stock on 15.1.2001,16.1.2001, 25.1.2001 and 29.1.2001 (Exhibit RX 2). This tractor in question was sold by Morinda Branch to the complainant vide invoice dated 31.10.2001. Based on the "Nil" stock entry, District Forum came to the conclusion that tractor in question is an old tractor must have been sold earlier to somebody else and it has been re-sold subsequently to the complainant showing it to him as a brand new one. Further the complainant''s allegation is that the required papers were not supplied which would have been given in the normal course in her name from the office of DTO concerned, which also shows as it was an old tractor. District Forum agreed with the above contentions of the complaint and passed the following order: "(i) to replace the tractor in question with brand new one along with fresh warranty as well as requisite documents to enable the complainant to get the same registered in her name from the office of DTO concerned; OR in the alternative to make refund of sale consideration amounting to Rs. 3,25,650 providing at the same time that out of above referred amount of Rs. 3,25,650. O.P. 1 would make payment towards outstanding loan amount relating to the finance of the tractor in question at the instance of the complainant to O.P. 2 while the balance would be paid to the complainant subject to the return of the tractor sold; (ii) to pay Rs. 50,000 to the complainant as compensation. Compliance within 30 days from the date of receipt of certified copy of the judgment failing which the amount of sale consideration amounting to Rs. 3,25,650 as well as the amount of compensation awarded i.e., Rs. 50,000 would carry interest @ 18% p.a. till realization."

REVISION petitioner''s appeal in the State Commission was dismissed and the order of the District Forum is confirmed.

WE perused the record and the orders passed by the Fora below. Revision petitioner was in person and his learned Counsel Mr. S.K. Sharma argued on the following grounds: (i) The complainant in his complaint never pointed out any discrepancy in the stock records of the petitioner. This argument of discrepancy in the stock register, interpreting the tractor sale transaction, has been done solely by the District Forum without any evidence. (ii) As per the deficiency in service regarding not giving requisite documents is also denied by the revision petitioner stating that all the documents were given to the Bank as it is the Bank who has actually paid the amount towards the sale as per the sale invoice dated 31.10.2001 which shows that revision petitioner had sold the tractor to Smt. Kaur but the tractor was I hypothecated to State Bank of India. The relevant sale invoice contains signatures of the driver, store-keeper, tractor salesman, customer and the Manager of the revision petitioner. These details further match the branch transfer advice of the revision petitioner, Yamuna Syndicate Ltd., Branch Office at Ropar, Transfer Advice No. 0001901 dated 11.6.2001 where this has been transferred to Morinda Branch which also shows the chassis number tractor serial number and engine number which match'' the sales invoice. (iii) As for the defects pointed out by the complainant regarding the holes in the mudguards of the tractor, revision petitioner submits that the tractor was purchased after having visual inspection and satisfaction by the customer. It remained with the complainant for about 14 months before being subjected to visual inspection by the learned District Forum. The complainant never reported any complaint to the revision petitioner or the manufacturer during the 14 months. The complainant used the tractor fully under warranty period and has not brought any other evidence to show that the tractor was defective. The said tractor was not-subjected to an expert inspection by its manufacturer or any other expert. Mere visual inspection by the District Forum cannot be taken as expert evidence from the technical point of view. (iv) The disputed tractor was first of all received at Khanna Branch on 3.1.2001 from the manufacturer i.e., Escorts Ltd., then was transferred to Morinda on 4.1.2001 who transferred it to Ropar on 16.1.2001, and finally received back in Morinda Branch from Ropar Branch on 11.6.2001. The revision petitioner has four outlets for sale of tractors at Punjab. It transfers tractors amongst the branches in the circumstances which are not to be considered as sale. The stock register of Morinda Branch dated 29.1.2001 showing stock nil cannot be picked up without considering the entries dated 16.1.2001 as this entry shows that the disputed tractor was transferred to some other branch vide dispatch advice No. 76. Hence the stock is shown as nil on 21.1.2001 in Morinda Branch. The husband of the complainant had specifically gone to Morinda Branch leaving behind Ropar Branch and selected the disputed tractor for purchase and sell. Although the stock position on 29.1.2001 was nil in Morinda Branch subsequently the Morinda Branch of the revision petitioner received many tractors by transfers from other branches including the disputed tractor. (v) Revision petitioner argued that the disputed tractor was financed by the Bank. The Bank had duly verified the bill issued by the revision petitioner after carrying out physical verification of the financed tractor to ensure that the loan has been properly utilized and hence the argument that the necessary documents were not given is not correct.

We agree with the above arguments put forward by the revision petitioner. The record of the revision petitioner clearly shows that a new tractor with Chassis No. BSN 284781, Engine No. NXC 288692 was purchased by M/ s. Yamuna Syndicate Ltd. from M/s. Escorts Ltd. and this tractor was sold by the Morinda Branch to Smt. Swarn Kaur and was delivered to her husband Shri Karnail Singh on 13th August, 2001. The copy of the tractor delivery certificate is on record. The receipt for the same by Shri Karnail Singh, the complainant''s husband is also recorded. The only doubt which was created in our mind is because of the invoice which was dated 31.10.2001. The question as to why the invoice has been made two and a half months after the receipt of the tractor has been answered by the revision petitioner saying that the financiers M/s. State Bank of Patiala released payment by way of Bank Draft No. 277736 on that date le. 31.10.2001. It is explained by the revision petitioner that it is a normal practice for a Bank to give a loan for purchasing tractors much later as the documentation for the same always gets delayed to release the payment. The copy of the invoice at page No. 30 of the petition itself showing the signature of Shri Karnail Singh as a token of receipt is enough evidence to believe that the transaction took place and it is within the knowledge of the complainant. It is stated that the Bank Draft was issued by State Bank of Patiala on 31.10.2001, as borne out from certificate dated 16.10.2002 issued by State Bank of Patiala.

THE argument of the complainant which has been accepted by the lower Fora regarding non-supply of requisite documents and the defects as alleged by the complainant is incorrect. No evidence of a technical expert was led to prove that the tractor is old and whether the said tractor is defective. Considering the tractor has been used for 14 months without any complaint whatsoever clearly establishes that complainant has no problem in the working of the tractor during the warranty period.

WE find the District Forum came to the wrong conclusion that the tractor was old solely by relying on a stock register and by not considering the entire evidence placed on record by the revision petitioner. The State Commission further upheld the order of the District Forum without considering the entire evidence which was placed before it. It is also apparent that although the revision petitioner has produced documentary evidence it was ignored and a mere complaint is considered as authentic evidence by the District Forum which is upheld by State Commission. We accept the clear evidence as shown by the revision petitioner regarding authenticity of the tractor being new. We hold that there is no deficiency of service by the revision petitioner. In view of the above discussion, the orders of the State Commission and District Forum are set aside, revision petition is allowed. No order as to costs.