H.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
SHIMLA-9.

Appeal No. 19 of 2007

Decided on 20.3.2009.



1. Mahindra & Mahindra

Having its registered office,

Gateway building, Apollo Bunder,

Mumbai-400039.

Through its Power of Attorney

Sh. Rajiv Rellan, Area Manager,

Mahindra & Mahindra.



2. The Manager/Partner Shivalik Motors

Nangal Road, Una.

.....Appellants.

Versus



Jaswant Singh, S/o Sh. Hakam Singh,

R/o Village Nandgran, Tehsil Anand Pur Sahib,

Distict Ropar, Punjab.

….Respondent.

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Hon’ble Mr. Justice Arun Kumar Goel (Retd.), President.

Hon’ble Mrs. Saroj Sharma, Member.

Hon’ble Mr. Chander Shekher Sharma, Member.



Whether approved for reporting ?



For the Appellants. Mr. Karan Singh Kanwar, Advocate

For the Respondent. Mr. Parveen Chandel, Advocate, vice

counsel for the respondent.

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ORDER.



Justice Arun Kumar Goel (Retd.) President.



1 Respondent filed Consumer Complaint No. 130/2004 before District Forum, Una against the appellants. According to him, he purchased a tractor manufactured by appellant No.1 and sold by it through its dealer, appellant No.2. Sale of tractor by the appellants is not in dispute as such other everments made in the complaint are not being noted, these have been mentioned in detail in the impugned order.



2. Tractor was admittedly purchased by the respondent on 29.8.2003. Its bill is Annexure C-1, From No. 22 Annexure C-2 and Sale Certificate is Annexure C-3. It was not giving proper service, as such respondent took it to appellant No.2. According to the respondent either the engine of the tractor was old or it had some inherent manufacturing defect due to which it was not giving proper service.



3. When put to notice, appellants contested the complaint. According to them purchase of tractor and payment of Rs. 1 lacs was not in dispute. Besides this tractor having been brought to the workshop was admitted by them. Insurance was undertaken by the respondent himself and not by them. After the tractor had met with accident it was got repaired by him from appellant No.2. per both of the appellants.



4. Now the dispute starts. As according to the respondent, his signatures were obtained by appellant No.2 by holding that since the tractor in question is insured he will be indemnified by the insurer. Whereas according to the appellants the tractor was misused. Plea of the respondent that the engine being old or there being manufacturing defect in it was denied being incorrect by the appellants. In order to support his case, the learned counsel for the respondent placed reliance on the documents filed with the complaint, his client’s affidavit as well as on the affidavit of tractor mechanic and he urged that in the face of this evidence the impugned order deserves to be upheld.



5. On the other hand Sh. Kanwar, learned counsel for the appellants submitted that the District Forum below fell into error while passing the impugned order, as according to him there was no manufacturing defect or the fault in engine. Nor was it due to its being either old or due to any other deficiency on the part of his clients. Engine was new. Per him trouble in the engine started because of its being mis-used/mis-handled, and also the same having met with accident. While contesting these pleas Sh. Chandel, learned counsel for the respondent urged that in the face of the evidence on the record, impugned order suffers from no infirmity which may call for interference in this appeal.



6. After having considered respective submissions urged on behalf of the parties and taking note of the evidence, it is clear that there was some inherent fault in the engine of the tractor. In this behalf affidavit of Sh. Jasvinder Kumar, tractor mechanic who was working for the last 10-11 years in his capacity as such at Village Tahliwal is relevant. Per him when he examined the engine of the tractor be found it defective. He has given reasons for water coming to the chamber of the tractor. There being either that the rubber sleeve was in bad shape, or there was gap in between sleeve and the place when the rubber ring is fitted or due to the head gasket being not fitted properly or it might have been torn. This could be the cause of starting trouble in the tractor. Further according to this deponent he had seen the bills of appellant No.2 and was of the view that the engine of the tractor was opened earlier. When confronted with this situation, Sh. Kanwar, learned counsel for the appellants submitted that affidavit of Puran Chand Rana, partner of appellant No.2 is material in this behalf and controverts the mechanic’s affidavit. According to him repair of the tractor was carried out in the workshop and the bills in that behalf are Annexure R-1 & R-2. Against the amount of Rs. 19,036/-, sum of Rs. 10,000/- was paid by the respondent to him, thus leaving the balance of Rs. 9,036/- being still outstanding. He has only spoken of the tractor having been brought after the accident. Not a word has been said by him regarding the engine of the tractor being not defective or being not old. That being the position, his affidavit does not improve the case of the appellants at all.



7. Suffice is to say with reference to the affidavit filed on behalf of appellant No.2, that it speaks of tractor having been repaired due to some accident. What was the state of engine, the appellants should have controverted the evidence of tractor mechanic produced by the respondent. Puran Chand Rana of appellant has not said anything on the mechanical aspect of the engine as detailed in the affidavit of Jasvinder Kumar, mechanic. And it hardly needs to be mentioned here, that in case the appellants wanted or intended to challenge the correctness of the affidavit of Jasvinder Kumar, then nothing prevented them to have had recourse to Section 13 of the Consumer Protection Act, 1986 for his cross-examination. Record of the complaint file shows that no such attempt was made by them.



8. There is no other material on the file to sustain the plea of Sh. Kanwar, that the engine of the tractor was not defective. and we are of the confirmed view that this appeal is liable to be dismissed. Ordered accordingly.



9. No other point was urged.



10. In view of the aforesaid discussion, there is no merit in this appeal, the same is dismissed leaving the parties to bear their own costs.



11. All interim orders passed from time to time shall stand vacated forthwith.



12. Learned counsel for the parties have undertaken to collect the copy of this order free of cost from the Court Secretary as per Rules.



(Justice Arun Kumar Goel) Retd.

President



(Saroj Sharma)

Member



(Chander Shekhar Sharma)

Member