BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
F.A.No.648 OF 2010 AGAINST C.C.NO.100 OF 2009 DISTRICT FORUM ADILABAD
Between:
Adarsha Automobiles rep. by its Manager
Mr.M.Venkata Swamy S/o Mr.Adellu,
aged about 44 yrs, Occ: Manager,
R/o Mahindra and Mahindra Tractor Show
room, Opp: Tirumala Petrol Pump
N.H.No.7 Dasnapur, Adilabad
Appellant/opposite party no.1
A N D
1. Mr.Yousuf Shaik S/o Mr.Shaik Khaja
aged about 45 yrs, Occ: Business/Agrl.
R/o H.No.6-15, Gudhihathnoor
Dist.Adilabad
Respondent/complainant
2. Mahindra and Mahindra Ltd.,
rep. by its Manager (Sales)
Farm Equipment Sector, Akurli Road
Kandivali (East) Mumbai
Respondent/opposite party no.2
Counsel for the Appellants Sri M.Aravindu
Counsel for the Respondent Sri V.Gourisankara Rao(R1)
Sri Devashish Dass (R2)
F.A.No.688 OF 2010 AGAINST C.C.NO.100 OF 2009
Between:
Mahindra and Mahindra Ltd.,
rep. by its Manager (Sales)
Farm Equipment Sector, Akurli Road
Kandivali (East) Mumbai
Appellant/opposite party no.2
A N D
1. Mr.Yousuf Shaik S/o Mr.Shaik Khaja
aged about 45 yrs, Occ: Business/Agrl.
R/o H.No.6-15, Gudhihathnoor
Dist.Adilabad
Respondent/complainant
2. Adarsha Automobiles rep. by its Manager
Mr.M.Venkata Swamy S/o Mr.Adellu,
aged about 44 yrs, Occ: Manager,
R/o Mahindra and Mahindra Tractor Show
room, Opp: Tirumala Petrol Pump
N.H.No.7 Dasnapur, Adilabad
Respondent/opposite party no.1
Counsel for the Appellants Sri Devashish Dass
Counsel for the Respondent Sri V.Gourisankara Rao(R1)
Sri M.Aravindu (R2)
QUORUM: SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
AND
SRI THOTA ASHOK KUMAR, HON’BLE MEMBER
FRIDAY THE TWENTY SEVENTH DAY OF APRIL
TWO THOUSAND TWELVE
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. Both appeals are directed against the same order passed by the District Forum whereby the appellants who are the dealer and manufacturer of the Tractor bearing registration number APO1V 6463 and directed to replace the tractor with a new tractor.
2. The respondent purchased tractor from the opposite party no.1 and manufactured by the opposite party no.2 on 4.10.2007 on financial assistance from Sri Rama Transport Finance Co.Ltd
3. The respondent contends that within two months of its purchase, the tractor’s crank case was broken and the first opposite party attended to the repairs. Within two months therefrom, the vehicle’ s engine was seized and the first opposite party replaced head gasket, pistol rings and repaired Rotary Pump for three times and it could not be totally repaired. The mechanic of the first opposite party informed the complainant that the vehicle suffered manufacturing defect and it could nto be rectified. The complainant incurred an amount of `1500/- per day due to frequent repairs and the tractor’s visit to the workshop of the first opposite party and after getting issued notice through his advocate claiming for replacement of the tractor, he filed the complaint seeking for the same relief.
4. The opposite parties no.1 and 2 resisted the claim on the premise that the complainant used the vehicle against the terms of the warranty voucher. The crank shaft of the tractor was replaced and not the crank case. Each and every time the tractor was taken for repair, it was delivered to the complainant in condition to his satisfaction. The overheat problem is due to use of defective water and non-use of coolant as prescribed by the manufacturer. For the last time ,the tractor was brought to the complainant with complaint of overheat problem which was duly rectified on the same day and the complainant ws informed of the same. The complainant was informed about the tractor through letter sent by ordinary post on 16.06.2009 and later through registered post on 18.07.2009. After receiving the letter dated 18.07.2009, the complainant got issued notice for which the opposite parties gave reply.
5. The complainant has filed his affidavit and the documents, ExA1 to A7. On behalf of the opposite party No.2, Vinod Menon, Deputy General Manager has filed his affidavit and the documents, ExB1 to B17.
6. The District Forum has allowed the complaint on the premise that overheat of the vehicle’s engine might be due to manufacturing defect.
7. The opposite parties have filed the appeal contending that the vehicle did not suffer any manufacturing defect and they attended to the repairs promptly as also that the complainant has not followed the terms of the warranty voucher for smooth running of the vehicle.
8. The point for consideration is whether the appellant association is entitled to replacement of the vehicle?
9. The sale of the vehicle by the first opposite party and it being manufactured by the second opposite party are not disputed. The complainant contends that the vehicle suffered manufacturing defect whereas the opposite parties submit that there was no manufacturing defect in the vehicle.
10. It is not denied that the warranty does not cover normal wear and tear or inherent deterioration arising from usage or damage due to negligent or improper operation or storage and normal maintenance services like oil and fluid change, wheel balancing etc. There is no denying of the fact that within two months of its purchase the vehicle’s crank shaft was replaced. And thereafter, the vehicle’ s engine was seized and the first opposite party replaced head gasket, pistol rings and repaired Rotary Pump for three times. The only complaint the complainant has with the vehicle is the overheat of the engine. The opposite parties contend that the problem is not a manufacturing defect and it occurred due to improper maintenance of the vehicle on the part of the complainant . The complainant except stating that the mechanic of the first opposite party informed him that the vehicle suffered from manufacturing defect, he has not adduced evidence in support of his plea.
11. The Hon’ble Supreme Court in Maruthi Udyog Ltd., Vs. Susheel Kumar Gab Gotra reported in AIR 2006 SC 1586 opined that in case where it was found that a particular part was defective what all the complainant would be entitled to is replacement of defective part. On that score he cannot seek replacement of a new car.
12. The District Forum observed that the experience of the complainant in handling the tractor would negative the improper use of the vehicle. It held that
8. Admittedly the complainant is having another tractor and he is a man with sufficient long experience in maintaining tractors. To that extent his bonafides cannot be doubted. As seen from job card Ex.B1 to B12 they are all different dates from2 007 to 2009. These exhibits clearly shows that inspite of repeated repairs the tractor is giving trouble frequently. So its is implied that tractor is beyond repair and complainant is put to continuous problems.
9. The Ld Advocate for the Opp.Parties that the experience and irregularly pouring water and coolant in the radiator is in a way responsible for over heat in the engine is not acceptable and we hold that the manufacturing defect appears to be main reason for over heat of the engine and much inconvenience was caused to the complainant. Accordingly we hold that complainant proved that the tractor in question is defective in its functioning and refusal of Opp.Parties to replace it with new tractor amounts to deficiency of service. The Opp.Parties no.1 and 2 jointly and severally reliefs prayed for. The tractor in question is already with Opp.Parties.
13. The opposite parties had not substantiated their plea that the engine parts of the vehicle were damaged due to use of adulterated fuel and they cannot satisfy themselves with replacement of the troubleshooting parts of the vehicle. They have the obligation to see that the vehicle does not pose such problem after such parts were replaced with new parts. The problem in regard to the overheat of the engine of the vehicle has to be rectified by the opposite parties . The opposite parties have committed deficiency in service in not properly attending to the repairs required by the vehicle.
14. In the circumstances mentioned above, we are inclined to conclude that the opposite parties are liable to pay an amount of `15,000/- towards compensation on account of the mental tension suffered and inconvenience caused to the appellant owing to the negligence exhibited by the first opposite party in attending to the repairs of the vehicle and not taking care in getting the affected parts of the vehicle tested as to know the exact cause of the trouble the vehicle posed .
15. In the result, the appeal are allowed. The order of the District Forum is modified. The opposite parties are directed to pay an amount of `15, 000/- to the complainant together with the costs of `3,000/-. If the amount is not paid within four weeks from the date of the order, it shall carry interest @9%p.a. from the date of filing of the complaint. Time for compliance four weeks.
MEMBER
MEMBER
Dt.27.04.2012
KMK*
