C.C.No.355 of 2006
BETWEEN:

Kotapati Atchaiah,

S/o. Kotaiah,

R/o. Grandhasiri Village,

Atchampet Mandal, Guntur District.



C/o. Kondaveeti Raju, Advocate,

Flat No.403, Rambha Apartment,

7/2, Chandramouli Nagar,

Guntur. … Complainant

AND

1. The Dealer,

Modern Agro Industries,

Tractors Division,

D.No.8-24-61, Mangalagiri Road,

Gaddipadu, Guntur – 522 001.

2. Mahindra & Mahindra Limited,

Rep. by its Authorized Person,

Mahindra Towers,

Worli Road No.13,

Worli, Mumbai – 400 018.

3. Mahindra Finance,

Rep. by its Manager,

2nd floor, Sadhana House,

570, P.B.Marg,

Worli, Mumbai – 400 018. … Opposite parties

This complaint coming up before us for final hearing on 25-01-10 in the presence of Sri K.Raju, Advocate for complainant and of Sri N.Jimbo, Advocate for OPs 1&2, Sri D.S.R.Krishna Murthy, Advocate for OP3, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following:

O R D E R

Per Sri T.ANJANYULU, PRESIDENT:

This complaint is filed under section 12 of Consumer Protection Act, 1986 seeking directions on the opposite parties to take back the tractor purchased by him and substitute the same with new one in good condition or to refund the value of same and also pay compensation of Rs.50,000/-.

The brief facts of the case are that

The complainant has requirement to purchase tractor for his agricultural purpose, as such he has approached the 1st opposite party. The 1st opposite party who is a dealer of tractor of Mahindra and Mahindra Limited carrying on business under the name and style Modern Agro Industries Tractors Division impressed upon the complainant to purchase a tractor manufactured by Mahindra and Mahindra Limited. Believing the words, the complainant purchased the tractor having chasis No.NCTW 1400, engine No.NCTW 1400, makers class-475-DI(S), Red colour by paying an advance of Rs.50,000/- vide receipt No.12 on 07-02-05. Subsequently he has paid sum of Rs.20,000/- vide receipt No.43 on 08-07-05 whereas the 3rd opposite party provided finance after six months of purchase of tractor. Thereafter, the complainant had paid installments regularly without default.

Three months after purchase, the complainant faced repairs to his tractor. Due to which his agricultural operations were disturbed and sustained heavy loss besides mental agony. There are so many problems in the engine of tractor. The 1st opposite party did not affect proper repairs. The complainant made requests several times to 1st opposite party to change entire engine of tractor or to change the tractor itself. The 1st opposite party did not respond for the same. The complainant also wrote letters to 2nd opposite party informing the problem faced by him in purchasing the tractor of their company. Service Engineers of tractor, who came from Bangalore on the intimation of complainant, also gave evasive replies in respect of trouble of tractor. They are not skilled engineers. The tractor is not useful to the complainant till this day. He is wasting money by spending on tractor and also agricultural operations. Thus he sustained heavy loss in his cultivation. The battery and radiator of tractor are also not functioning properly. Due to deficiency of service of opposite parties the complainant suffering mentally, physically and also financially.

At last the complainant got issued notice on 27-09-06 requesting the opposite parties to take back tractor and gave new tractor in good condition or to refund the value of same and also compensate the complainant towards mental agony caused to him. The opposite parties 1 and 2 received the same and gave reply on 03-10-06 with all false allegations. Hence, the complaint.

The 1st opposite party has filed its version denying all the allegations made in the complaint. It raises the question of jurisdiction of Forum within the meaning of Sec. 2(i)(d) of the Act.

However, submissions are that the complainant had purchased Mahindra Tractor 475D1 NST model from opposite parties. There are no repairs to his vehicle at any point of time and all service periods were completed and at present the guarantee period was also completed. At the request of complainant on 05-04-06 the opposite parties company mechanic got repaired the vehicle and handed over the same in good and running condition. After examining the same, the complainant had also put up his signature on a letter. In order to harass and gain new vehicle, the complainant got issued legal notice and filed this vexatious complaint. The complainant is guilty of suppresio vari and suggestion falsi.

It is submitted that the 3rd opposite party has provided finance facility to complainant for purchase of tractor. The complainant is irregular in paying monthly installments. The 3rd opposite party several times demanded him to discharge balance amount. But he has been postponing the same on one pretext or the other except empty promises. Finally the opposite parties got issued a letter dt.08-06-06 demanding the complainant to pay balance amount due to them. At last the complainant approached opposite parties and issued cheque bearing No.856409 dt.03-09-06 for Rs.55,000/- drawn on State Bank of India, Ponnekallu, Tadikonda Mandal, Guntur District towards part payment of debt to 3rd opposite party. But the same was returned with a memo dt.22-09-06. To avoid payments to opposite parties, the complainant tactfully filed the present complaint after exchange of notices. The complainant has to pay balance installments of Rs.35,066/- to 3rd opposite party with interest from 16-02-05. Therefore, it is prayed to dismiss the complaint against this opposite party with exemplary costs.

The 2nd opposite party has filed its version denying all the allegations made in the complaint. It is submitted that the 1st opposite party/dealer received total sum of Rs.70,000/- from complainant and presently the complainant has to pay Rs.46,166/- to 1st opposite party/dealer.

The engine noise problem arises at 791 (2/6/05) Hrs and the opposite parties repaired engine under warranty basis. So no heavy loss is caused to complainant. Thereafter he has raised the same complaint with the dealer at 1127 hrs (4/4/06). At that time, the service engineer went personally, visited the complainant and taken trail and effected minor adjustments in tractor. Then the complainant also gave satisfaction letter to dealer/1st opposite party stating that the tractor is in good condition. After two months, again the complainant called to toll free and gave complaint about engine and gear box. Since the complainant frequently complaining about engine and gear box, the dealer/1st opposite party informed the complainant to come to workshop for inspection. But the complainant has some financial issue with the dealer/1st opposite party and refused to come to workshop. Then this opposite party went to customer home personally and taken trail on the tractor. They noticed no such problem with the tractor. The complainant has wrong perception about tractor. They asked him to come to workshop to check major specifications. He has agreed to visit workshop but even after 4 months also he did not turn up for inspection. After sale of tractor, the customer has come to workshop only three times. Presently tractor is running without hour meter. Since the opposite parties are ready to give the services but the complainant is not coming to workshop. So the dealer/1st opposite party will not take back the tractor after 20 months from the date of delivery. Therefore, it is prayed to dismiss the complaint with exemplary costs.

The 3rd opposite party also filed its version denying general allegations made in the complaint. It claims that there is need or necessity to implead it as 3rd opposite party. It is an independent unit and there is no need to follow the advice of opposite parties 1 and 2 to finance the vehicle. There is no allegation leveled against this opposite party by the complainant. This opposite party gained lot of reputation in general public for its services for the last several years. This opposite party advanced loan amount to complainant on 30-07-05 on hypothecation of tractor which is repayable in half yearly installments. The complainant having taken loan amount repaid installments till date. The allegation that this opposite party advanced loan after six months is not correct. There are no latches or negligence or deficiency of service on the part of this opposite party either in advancing loan or in its service. Therefore, it is prayed to dismiss the complaint.

All the parties have filed their respective affidavits. The complainant got marked documents vide Ex.A1 to A15, whereas the opposite parties 1 and 2 have got marked the documents Ex.B1 to B30.

Now the points for determination are that

1. Whether the tractor purchased by complainant from opposite parties 1 and 2 has any manufacturing defects in it?
2. Whether the opposite parties 1 and 2 have committed deficiency of service?
3. Whether the complainant is entitled for the reliefs as sought for?
4. To what extent?

POINTS 1 & 2

It is an admitted fact that the complainant has purchased tractor from dealer/1st opposite party which is manufactured by 2nd opposite party i.e., Mahindra and Mahindra Limited on part of finance advanced by 3rd opposite party. It is his allegation that 3 months after purchase of tractor, he has found problem in the engine of tractor, due to which it has to be repaired and his agricultural work suffered. Inspite of making several requests on 1st opposite party it did not effect the repairs properly. It is also his allegation that he wrote several letters to 2nd opposite party about problems faced by him and at last service engineer came from Bangalore who is not skilled engineer. As such the tractor could not be repaired and kept in good condition. He spent lot of money both on tractor and as well as on agricultural operations. At last he got issued legal notice on 27-09-06 for change of tractor or refund of its value, who gave evasive reply through letter dt.03-10-06.

It is the contention of opposite parties that the vehicle has no manufacturing defect at all and there is no deficiency of service on their part. They have offered best of services to complainant as and when requested. They also sent service engineer from Bangalore to the house of complainant who found the engine and other parts of tractor were functioning properly. As per pre-delivery inspection report vide Ex.B21, the vehicle was delivered in fit and sound state after satisfaction of party. Accordingly, there is no specific averment that the vehicle sold by opposite parties was defective. As such there is no dispute regarding quality, quantity, weight and standard of goods sold. As per the statement made by complainant himself it is about repairs and troubles of vehicle which the opposite parties have properly responded and offered their services, as per four free labour services vide Ex.B1 to B4, job cards vide Ex.B6 and Exs.B25 to B30 and letter addressed by complainant himself on 08-07-05 vide Ex.B23 expressing his satisfaction about the same. The opposite parties also filed photographs of tractor to show the vehicle condition and its colour. Therefore, it is their contention that there is absolutely no manufacturing defect in the vehicle purchased by complainant.

In view of the above referred contentions, we got to resolve the issues under consideration. The documents filed by complainant (Xerox copies) vide Ex.A1 to A15 pertains to purchase of vehicle from 1st opposite party such as receipts, temporary certificate of registration, office copy of legal notice, reply notice and the terms printed in Telugu and the warranty, which are not in dispute. The date of purchase of vehicle and its delivery is 07/16-02-05. Four services were effected i.e., on 10-05-05, 06-08-05, 09-11-05 and on 08-02-06 at a regular interval of three months, which is evident from Ex.B1 to B4. While doing first service on 29-03-05 vide Ex.B25 job card a sum of Rs.2200/- charged and as seen from job card vide Ex.B26 engine oil was changed on 03-05-05 by charging Rs.2200/-. As per job card vide Ex.B27 abnormal noise was found coming from engine and engine oil is to be changed on 02-06-05 for which a sum of Rs.3000/- is estimated. The job card vide Ex.B29 dt.27-12-05 it is noted engine oil to be changed, self not working, gear oil to be changed, Hyd oil to be changed, electrical checkup. As per job card vide Ex.B30 no date is mentioned, it is found noise coming from gear box. As per job card vide Ex.B28 no date is mentioned, abnormal noise was found coming from engine for which crank shaft connecting brgs broken were repaired at the estimated cost of Rs.3000/-. They have charged complainant. A letter of satisfaction is obtained vide Ex.B23 from complainant on 08-07-05. Even after this letter of satisfaction there were troubles in the vehicle as seen from above referred job cards.

Though the complainant did not choose to send the vehicle to Government Authorized Center for test report to find out manufacturing defect if any, both the complainant and opposite parties have jointly filed a memo to send the vehicle to M/s.Venkata Sai Automobiles, Bypass Road, Autonagar, Guntur for testing purpose. Accordingly, it was ordered. A local mechanic had taken trial and inspected the tractor for mechanical problems in engine, gear box and other vital components of the tractor. His observations are:

1. Engine pulling power in OK
2. Transmission noise is normal (noticed transmission oil level less and needs replacement)
3. Hydraulics functioning OK. Observed leakages from Isolator value, VTU Housing packing & PTO seal.



From the material available on record including the test report of local senior mechanic what is observed is that there is no defect in the tractor purchased by complainant, it is often giving trouble due to noise in engine, gear box and other aspects for which the repairs are carried out from time to time. But it appears that they are not properly and promptly attended by workshop and service engineers of opposite parties 1 and 2. As alleged by 1st opposite party in his version, the complaint is not filed for fancy sake to evade payment to 3rd opposite party. The 1st opposite party put forth more emphasis on due installments by the complainant to 3rd opposite party in para 8 and 9 of his version, whereas the 3rd opposite party in its version did not claim so. May be the complainant is in debt to 1st opposite party and the same is not for consideration before this Forum. There appears truth in the allegations leveled by complainant about problems faced by him in respect of tractor purchased. Thus we are of the considered opinion that there is no inherent manufacturing defect in the tractor purchased by him but there is deficiency of service in effecting prompt and proper repairs to the said tractor when they complained. The points are for answered accordingly.

POINTS 3 & 4

In the light of the discussion made above and findings reached there on, the complainant is not entitled for substitution of tractor with a new one by returning the same to opposite parties. However, the complainant is entitled for getting the vehicle repaired effectively and keep the same in good condition so as to run his agricultural operations smoothly. The opposite parties 1 and 2 shall take up the repair work of engine, gear box and other vital components and keep the vehicle in fit and sound condition at free of cost. There cannot be any doubt that the complainant has suffered mental agony for such deficiency of service committed by opposite parties 1 and 2. Therefore, we are also of the view that he is entitled for compensation of Rs.3000/- and legal expenses of Rs.1000/-.

In the result, the complaint is allowed in part in terms as indicated below:

1. The opposite parties 1 and 2 are hereby directed to get the tractor of complainant repaired effectively and keep it in fit and sound condition by checking engine, gear box and other vital components of the same at free of cost.

2. Further they are directed to pay Rs.3000/- as compensation towards mental agony, pain and suffering and Rs.1000/- towards legal expenses to complainant.

3. The above works shall be carried out along with payment of compensation and legal expenses within a period of six weeks from the date of receipt of copy of the order. Otherwise, the amounts awarded shall carry interest @9% p.a., till the date of realization.