BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD.
FA.No.1155/2010 against C C.No.87/2009
District Forum, Mahaboobnagar
Between
D.Krishna Reddy S/o.D.Linga Reddy
Aged 45 years, Occ:Agriculture,
R/o.Nagarkarnool Village and Mandal,
Mahaboobnagar District. ..Appellant/
Complainant
And
1. The Chairman, TAFE Tractor & FA
Equi pent Limited,
Post Box No.3302, Chennai-600011
2. The Vice Chairman, TAFE Tractor & FA
Equi pent Limited, Post No.3302,
Chennai-600 011.
3. The Area Manager, TAFE Limited,
Nacharam X roads, Hyderabad.
4. M/s.Shukur Automobiles, TAFE
TAFE, Opp: Telephone Exchange,
Main Road, Nagarkarnool. ..Respondents/
Opp.parties.
Counsel for the Appellant : Mr.P.Shashi Kiran
Counsel for the Respondents : M/s.M.Srinivasa Iyyengar-R1 to R3
R4
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,
AND
SMT.M.SHREESHA, HON’BLE MEMBER,
WEDNESDAY, THE NINTH DAY OF MAY,
TWO THOUSAND TWELVE
Oral Order (Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.87/2009 on the file of District Forum, Mahaboobnagar, the complainant preferred this appeal
The brief facts as set out in the complaint are that the complainant, an agriculturist and civil contractor, purchased a tractor vide invoice No.20003/2005 dated 15-9-2005 for a sum of Rs.5,03,850/- from opposite parties 3 and 4. The same was insured with National Insurance Company. After the tractor was put to use, the complainant found the following defects:
i) 28-9-2005 steering failed for two days
ii) Tractor was kept idle in workshop for 2 days on 30-9-2005 and 30-10-2005.
iii) Sump crack 30 LT oil leakage for 10 days from 25-10-2005.
iv) For new chamber fittings kept at workshop for 6 days from 06-12-2005.
v) New sump cracks within 3 days and it was kept for 5 days at workshop
vi) Sump cracks modified in 12 days, 40 Lts. Oil leakage work stopped for 12 days
vii) Dozer modified and fitting on 29-12-2005 and continued same
viii) De wall oil seal 4 times changed on 5-1-2006, 9-1-2006, 12-1-2006 and 2-1-2006.
ix) The steering problem and doze problem are still continued.
As per the joint inspection made by the company mechanic and the dealer’s mechanic, their joint inspection memo, dated 24-1-2006 showed many defects in the tractor in addition to the above problems and proposed for replacement of new parts and assured to replace the same with new parts. The complainant submitted that opposite party No.4 personally inspected the tractor and found incurable defects. The complainant submitted that the tractor was kept for so many days in the workshop and he incurred heavy loss as he could not use the tractor for months together for his personal work. Therefore, the complainant got issued a legal notice to the opposite parties on 13-2-2006 but the opposite parties did not respond and did not care to rectify the defects, which is clear deficiency in service. The complainant submitted that if it worked properly, he would have got Rs.20,000/- to Rs.25,000/- per month and earned more than Rs.20,00,000/-. Hence the complaint for a direction to the opposite parties to pay Rs.20,00,000/- together with interest at 18% p.a. from the date of complaint till the date of realization together with compensation of Rs.20,000/-.
Opposite party No.3 filed counter denying the averments made in the complaint. It submitted that as per the legal notice dated 13-2-2006 got issued by the complainant, he was using the said tractor for Government work on his civil work and the dozer is used only for commercial applications like land leveling and reclamation and that the said dozer attached to tractor is not manufactured by opposite parties but it was loosely purchased by the complainant and that the complainant is using the same for commercial purpose and therefore he is not a consumer within the meaning of Section 2(d) of Consumer Protection Act, 1986. Opposite party No.3 further submitted that in the absence of any averment in the complaint that the tractor has been purchased by the complainant for his livelihood, the complaint has to be dismissed as not maintainable. It further submitted that all the defects pointed out by the complainant in January, 2006 were rectified and the complainant never visited any of the authorized centres of opposite parties till 28-11-2008 and on 28-11-2008 when the tractor was brought by the complainant, the same was inspected by the service engineer and found to be working satisfactorily and no defect was noticed and the complainant was asked to take back the tractor but he refused to do so and instead threatened the opposite parties who in turn were constrained to lodge a police complaint on 18-12-2008. Opposite party No.3 further stated that as per the minutes dated 22-11-2008, there was no promise to replace the Tractor of the complainant with a new tractor and any promise made by opposite party No.4 is not binding on them and prayed for dismissal of the complaint.
Opposite parties 1 and 2 filed memo adopting the counter filed by opposite party No.3.
Opposite party No.4 filed counter stating that he was only a tractor mechanic and when the tractor gave trouble, it was brought to his workshop and he found the defects in the tractor mentioned by the complainant and that the company mechanic also came and found the same problems and suggested to replace some new parts in the tractor and that the tractor was in his workshop for several days without any use and opposite party No.3 did not take steps for replacement of new parts and defects. Opposite party no. 4 submitted that after several days, the complainant got issued legal notice to opposite party No.3 but they did not attend to any repairs and there is no hope of running the tractor without replacement of some of the parts. As suggested by company’s mechanic, the complainant himself replaced some parts and the complainant invested huge amount for repair of tractor and still the tractor is kept idle without any use and as such the complainant sustained heavy loss. Opposite party No.4 further submitted that it is essential to replace the old tractor with a new tractor.
Based on the evidence adduced i.e. Exs.A1 to A13 and B1 to B2 and the pleadings put forward, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred this appeal.
The facts not in dispute are that the complainant is an agriculturist and also civil contractor by profession and purchased the tractor on 15-9-2005 evidenced under Ex.A8 original invoice issued by opposite party no.4. It is the case of the complainant that the tractor started giving trouble within a few days of its purchase and as per the complaint, the following defects were found:
i) 28-9-2005 steering failed for two days
ii) Tractor was kept idle in workshop for 2 days on 30-9-2005 and 30-10-2005.
iii) Sump crack 30 LT oil leakage for 10 days from 25-10-2005.
iv) For new chamber fittings kept at workshop for 6 days from 06-12-2005.
v) New sump cracks within 3 days and it was kept for 5 days at workshop
vi) Sump cracks modified in 12 days, 40 Lts. Oil leakage work stopped for 12 days
vii) Dozer modified and fitting on 29-12-2005 and continued same
viii) De wall oil seal 4 times changed on 5-1-2006, 9-1-2006, 12-1-2006 and 2-1-2006.
ix) The steering problem and doze problem are still continued.
It is the case of the opposite parties 1 to 3 that the complainant has used the tractor for civil work purposes and he is therefore not a consumer. Opposite party No.4 in his counter stated that the complainant has purchased the tractor for his agricultural land and contract work and has admitted that the tractor was lying in his workshop for several days and opposite party No.3 did not take any measures for replacement of parts or rectification of defects. The complainant filed an affidavit stating that he was using the tractor only to eke out his livelihood and that it was a typographical error of not including the plea of self employment based on which the District Forum has dismissed the complaint. Moreover, the opposite parties also did not prove that the complainant is using the tractor for commercial purpose and therefore we are of the considered opinion that the complainant is using it for eking out his livelihood and he is a consumer falling within the meaning of Section 2(d) of the Consumer Protection Act, 1986.
The learned counsel for the complainant submitted that the opposite party no.4 rectified some of the defects but not to the satisfaction of the complainant as the defects recurred again. Ex.A2 dated 8-2-2006 is the letter issued by opposite party No.4 to opposite party No.3 listing out all the defects pointed out by the complainant. Exs.A3 to A5 are the letters issued by opposite party No.4 dated 16-1-2006, 23-1-2006 and 10-3-2006 to opposite party No.3 requesting for rectification of the defects. There was no response from opposite party No.3 with respect to rectification of defects and the complainant got issued a legal notice evidenced under Ex.A9 dated 13-2-2006 to opposite parties 3 and 4 mentioning the same defects. The complainant relies on Ex.A10 which is the copy of the minutes of the meeting dated 22-11-2008 in which it is stated as follows:
Following points were discussed in references to telecom with
Mr.Kalayaraman ZM Services
1. Customer has brought the Gajraj tractor to depot/Area office bearing serial No.289914 Engine Serial No.S433073873 Date of installation 5-9-2005.
2. Customer is facing lot of problems with the tractor
3. As decided customer will take the tractor to Shadnagar dealership.
4. Service engineer will inspect tractor on 24th Nov. 2008.
5. Customer will be coming back to area office on 28th Nov.08 for the further course of action.
6. On 21-1-2006 tractor was inspected by TAFE team at gudipalli site customer says that no action was taken after 24-1-2006.
7. TAFE will give the action plan on 28th Nov.08 on the MOM 24.1.06 certified.
It is evident from Ex.A10 that the complainant’s tractor was suffering from defects and even after three years i.e. from 2005 onwards these defects have not been rectified. The learned counsel for the respondent/opposite party contended that the tractor was delivered to the complainant in the year 2008 but there was no acknowledgement. Opposite party No.4, was the dealer, from whom the complainant purchased the tractor but he is no longer operating as a dealer as on today. The inspection report i.e. Ex.B1 is given by one A.John Brutto from customer support stating that the defects were rectified but this is not counter signed by the complainant that the defects were rectified satisfactorily.
We observe from the record that there are two joint inspection memos, Ex.A1 and A10 dated 24-1-2006 and 22-11-2008 respectively which evidence that the tractor was under constant repair for more than two years. Opposite party no.4 has admitted the same and there is no denial from the other opposite parties that opposite party No.4 is not their dealer. The learned counsel for the opposite parties contended that the tractor was returned in the year 2008 but to reiterate, there is no documentary evidence to establish the same. It is the case of the complainant that he had refused to take the tractor as the defects were not rectified and it is still lying with the opposite parties. Therefore, it is for the opposite parties to prove that the tractor was delivered to the complainant and therefore we conclude that the tractor is in the possession of the opposite parties and when the complainant had paid an amount of Rs.6,03,850/- for the tractor on 15-9-2005 as evidenced under Ex.A8 and has used it for a period of two years only and the tractor is still in the possession of the opposite parties, we are of the considered view that the complainant is entitled to an amount of 4,00,000/- to meet the ends of justice and opposite parties are directed to pay this amount to the complainant with interest at 9% p.a. from 22-11-2008, till the date of realisation and costs of Rs.5,000/-. The complainant’s plea of monetory loss because of the tractor lying with opposite party No.4, is not substantiated by any documentary evidence and since interest at 9% is already awarded by way of damages, we see no grounds to award further compensation.
In the result this appeal is allowed in part and the order of the District Forum is set aside and consequently the complaint is allowed in part directing the opposite parties to pay Rs.4,00,000 to the complainant with interest at 9% p.a. from 22-11-2008, till the date of realisation and costs of Rs.5,000/-. Time for compliance four weeks.
Sd/-PRESIDENT.
Sd/-MEMBER.
JM 09-5-2012
