JUSTICE V.K.JAIN (ORAL)

                    The complainant purchased a tractor trolley manufactured by M/s Indo-Farm Tractors & Motors Ltd.  petitioner in RP No. 4662/2013 from its dealer M/s Sanwaliya Tractor Sales & Service, petitioner in RP No. 776 of 2014,  taking a loan of Rs.4 lakhs from Bank of Baroda. The complainant was issued two bills one of Rs 4,15,000/- for the tractor and the other of Rs. 50,000/- for it trolley. The case of the complainant is that the trolley was never delivered to him and the tractor had several manufacturing defects/mechanical defects. The tractor was left with the dealer M/s Sanwaliya Tractor Sales & Service.  According to the complainant the tractor was left on 13.032007. The complainant thereafter approached the concerned District Forum by way of a consumer complaint filed in the year 2007 though the actual date of the institution of the complaint is not available with the Ld. counsel for the parties.

2.      The complaint was resisted by the petitioners M/s Indo-Farm Tractors & Motors Ltd. And M/s Sanwaliya Tractor Sales & Service. They denied the alleged manufacturing defects in the tractor and alleged that a sum of Rs. 95,000/- was paid by the complainant to the dealer which included Rs 80,000/- deposited by the dealer M/s Sanwaliya Tractor Sales & Service as margin money on behalf of the complainant with Bank of Baroda.

3.      The District Forum having dismissed the consumer complaint the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 24.09.2013 the State Commission directed as under:-

“In the foregoing circumstances, the Appeal of the Appellant-Complainant is allowed and the Impugned Order dated 12.8.2008 passed by the District Consumer Disputes Redressal Forum, Chittorgarh is set aside and Respondent nos.l to 3 are directed to -

[1]. Pay a sum of Rs.4,75,000/- (Rupees four lakhs seventy five thousand only) to the Complainant towards cost of the tractor and trolley along with interest thereon at the rate of 6% per annum from the date of filing of the Complaint i.e. 16.9.2008 upto the date of actual payment;

[2]. Pay to the complainant a sum of Rs.15,000/- (Rupees fifteen thousand only) and Rs. 10,000/- (Rupees ten thousand only) respectively as compensation for mental, physical agonies suffered by the complainant and the cost of the Complaint;

[3]. Respondent nos.l to 3 are given 30 days time to comply with this order.”

4.      Being aggrieved from the order passed by the State Commission the manufacturer is before this Commission by way of RP No. 4662 of 2013, whereas the dealer is before this Commission by way of RP No. 776 of 2014.

5.      The primary question involved in these petitions is as to whether the tractor suffered from any manufacturing or other defects or not. The case of the complainant is that the clutch plate and gearbox of the tractor were defective and it was consuming excessive oil. Overheating of the tractor was also alleged by the complainant. No expert was examined by the complainant to prove that the tractor suffered from any manufacturing or other defects. The petitioners herein also did not examine any expert despite the fact that they were in a position to easily produce an expert, they being the manufacturer and dealer of the tractor.  However, the fact remains that initial onus was upon the complainant to prove that the tractor suffered from some manufacturing or other defect.

6.      It transpired during the course of hearing that the tractor was received by the husband of the complainant vide his letter dated 01.09.2008 in good condition. Writing in his own hand was given by Shri Prahalad Rai, husband of the complainant, to the dealer on 01.09.2008 acknowledging the receipt of the tractor in good condition.

7.      It would be difficult for me to accept that there was absolutely no defects in the tractor. Had there been no defect in the tractor there would be no logical reason for the complainant to leave the tractor at the place of the dealer and rush to a consumer forum with a complaint. The very fact that the tractor was received by the complainant and in good condition on 01.09.2008 is indicative that there were some defects in the tractor which had been removed before it was handed over to the husband of the complainant on 01.09.2008, though in the absence of expert evidence it cannot be verified what actually those defects were. It cannot be known whether the said defects were inherent manufacturing defects or only some parts of the tractor were defective. Since the tractor has already been received by the complainant but she has been deprived of the use of the tractor for about one and half years the dealer of the tractor M/s Sanwaliya Tractor Sales & Service should pay a sum of Rs 1,00,000/- as compensation to the complainant.

8.      Though it is also claimed by the complainant that the trolley was not supplied to her along with the tractor this part of her case cannot be accepted since admittedly no writing was given to her by the dealer M/s Sanwaliya Tractor Sales & Service promising to deliver trolley at a later date. This is complaint’s own case that she had paid for the tractor as well as for the trolley and two separate invoices what issued to her one for the tractor and the other for the trolley. Had the trolley not been delivered to her the least the complainant would have done was to obtain a letter from the dealer promising to deliver the trolley at a later date. Therefore,  it is difficult to me to accept the trolley was not delivered to the complainant along with the tractor.

9.      There is an issue with respect to the source of the payment of
Rs. 80,000/- which had been deposited as margin money with Bank of Baroda. The case of the complainant is that the said amount was paid by her whereas the case of the dealer M/s Sanwaliya Tractor Sales & Service is that the said amount was paid by them and the complainant was to return that amount to them. Admittedly, no payment by way of a cheque was made by M/s Sanwaliya Tractor Sales & Service either to the complainant or to the Bank. If M/s Sanwaliya Tractor Sales & Service was to pay the margin money on behalf of the complainant it would have made that payment by way of a cheque or draft, either to the complainant or to Bank of Baroda and not in cash. In any case, even if the dealer M/s Sanwaliya Tractor Sales & Service wanted to pay in cash it would certainly have taken a receipt from the complainant  acknowledging that the margin money was being deposited by the dealer M/s Sanwaliya Tractor Sales & Service on her behalf and she would repay that amount at a later date. The dealer M/s Sanwaliya Tractor Sales & Service has placed emphasis upon a writing purporting to be executed by the son of the complaint and on 15.07.2006 wherein he purportedly promised to pay Rs. 95,000/- comprising Rs 80,000/- towards margin and Rs 15,000/- towards the cost of the tiller to the said dealer. The complainant has denied the aforesaid writing and an FIR was also lodged in this regard. No handwriting expert was examined by M/s Sanwaliya Tractor Sales & Service to prove the alleged signatures of the son of the complainant on this document. Since the document was sought to be relied upon the dealer M/s Sanwaliya Tractor Sales & Service, it was for them to examine a handwriting expert to prove that it was actually signed by the son of the complainant. That having not been done it is difficult to accept that the above-referred letter was written and signed by the son of the complainant.

10.    For the reasons stated hereinabove, the impugned orders are modified by directing only the dealer M/s Sanwaliya Tractor Sales & Service to pay a sum of Rs 1 lakh as compensation to the complainant. The said payment shall be made within 3 months from today failing which it shall carry interest at the rate of 9% p.a. from the date of the order. The complaint against the manufacturer is dismissed. Both the revision petitions stands disposed of.