The Consumer Case in nutshell is that the petitioner Amin Hossain a man of village Sesai of District Uttar Dinajpur purchased a Combined Harvester with Straw Baler Vide Model No. KSA8504X4 at a consideration price of Rupees 24,95,000/- from the authorized dealer Motar Hossain of Uttar Dinajpur and the said Harvester cum Straw Baler was manufactured by MD. K. S Group of Co. located at Punjab. The said machine was financed by United Bank of India, Itahar Branch from where the Complainant obtained the loan for purchasing such Combined Harvester cum Straw Baler machine on 23.04.2018. On 25.04.2018 he tried to use the said machine for cutting paddy in the Maddy fields but found it was unable to work in the Maddy field though it was assured by the company and the dealer that it was fit for harvesting paddy in the Maddy field. So, he raised complaint before the dealer O.P No. 2 for taking necessary steps as the purchased machine was not working properly for the purpose for which he has purchased the said machine by taking loan by paying EMI to the Bank on 13.05.2018. The dealer O.P No. 2 took an expert to test the said machine and found that it was not properly working according to company guidelines and it was not fit for harvesting paddy in the Maddy field. So, the dealer executed an agreement with the Complainant to exchange the said Combined Harvester with straw Baler by replacing another Straw and Harvesting cum Baler by supplying KSA Tach in place of KSA 8504X4 and in lieu of such exchange the Complainant was agreed to pay Rs. 2 Lakh and to handover the said KSA 8504X4 model. Subsequently, no such exchange took place and the Complainant requested the dealer and the manufacturer for replacement of the machine or to return back the consideration money of the vehicle and machine but it was not entertained on the part of the dealer and manufacturer and for that reason he has claimed compensation for getting returned back the consideration price of Rs. 24,95,000/- including the interest and compensation Rs. 6 Lakh and other reliefs for which he registered the Consumer Complaint against the manufacturer dealer and United Bank of India. The O.P No. 2 did not file any W.V though he has contested the case by filing W.N.A The Bank did not contest the case by filing any W.V. The manufacturer O.P No. 1 by filing W.V stated and contended that there was no undertaking on the part of the manufacturer in this case or not it was stipulated in the manual of the machine that the said machine would be availed to cut paddy in the Maddy field and O.P No. 1 never assured any dealer or purchaser that such machine would be availed to cut paddy in the Maddy field. The further case of the O.P is that the O.P No. 1 was neither approached by O.P. No. 2 the dealer or the Complainant about having any manufacturing defect in the said machine and by keeping the O.P No. 1 in dark, the O.P No. 2 sent the expert on 13.05.2018 and the agreement between the O.P No. 2 and Complainant was a private agreement and O.P No. 1 has had no role of active play in such agreement never sent any expert as the O.P No. 1 or the complainant never informed about any defect of the machine. So, the O.P No. 1 by filing W.V prayed for dismissal of the Consumer Complaint in this case. The Complainant has examined and he was cross-examined by O.P Nos. 1 & 2 by furnishing the questionnaires and reply. The O.P No. 1 has examined himself through its authorized representative Mr. Subindar Singh of Punjab. The Complainant furnishes the questionnaires towards the evidence of O.P No. 1 and O.P No. 1 has replied the said questionnaires. The Complainant has conducted the hearing through Ld. Advocate appointed by him the O.P No. 1 and O.P No. 2 have contested the case separately by appointing legal counsels and all of them have furnished the Written Notes of Argument.
On the basis of pleadings of both sides following issues are framed:
- Is the Consumer Complaint maintainable under the C.P Act,1986?
- Is the Complainant a bonafide Consumer?
- Has the Complainant any Cause of Action?
- Is the Complainant entitled to relief as prayed for?
Decision with reasons
(Point Nos. 1 & 2)
All these issues are taken up for consideration jointly for the sake of convenience and brevity. Fact remains that the Complainant A. Hossain has purchased the KSA8504X4 Combined Harvester with Straw Baler from O.P No, 2, authorized dealer of the said machine by paying the full consideration price after obtaining loan from the Bank. And he got delivery and the possession of the said machine in due course and thereafter it is alleged that the machine was not working properly as it was unable to cut paddy in the Maddy field. Though, it was assured at the time of purchasing about the availability to such machine to cut paddy in the Maddy fields. certainly, the Complainant is a Consumer as he has purchased the said machine by paying consideration price. Secondly, no proper service was rendered to him while he was unable to use the said machine for the purpose for which he has purchased the same by taking loan. He approached the dealer as well as manufacturer either to refund the said machine or to exchange the same by replacing the old one which was turned down on the part of dealer and manufacturer. So, in apparent the Complainant has right cause of action to register the Consumer Complaint. So, all of these three points are hereby answered in favour of the Complainant.
(Point No. 4)
Admitted position is that the complainant has paid said full consideration price by the Complainant for which he was handed over the said Combined Harvester with Straw Baler manufactured by MDKS Group and Co. and it was sold out to the Complainant by its authorized dealer KG Enterprise, the Proprietor Motahar Hossain. The agreement dated 13.05.2018 speaks that while the Complainant was facing trouble after purchase of the said machine and while it was detected that the machine was unable to cut paddy in the Maddy field. He approached the dealer and the manufacturer through the dealer for proper testing of the machine by an expert. Accordingly, the dealer made arrangement for testing of the machine by an expert and after obtaining expert’s opinion the dealer Motahar Hossain was agreed to replace the said machine by handover one KSA Tach on withdrawing the KSA 8504X4 model machine and pay Rs. 2 Lakh to the dealer to obtain the KSA Tack machine from the dealer. During the course of hearing of the case Ld. Advocate of Opposite Party No. 1 mentions that O.P No. 1 is a company which holds a great reputation in the field of manufacturer and selling of farming machineries and this company is manufacturer and exporter of a kind of agricultural equipment and specialized in Combined and Harvester with Straw Reaper and there was no specification undertaking in the manual of the machine from the part of the O.P with the said machine was availed to cut Paddy in the Maddy field and O.P No. 1 never assured by the company that the machine would be availed to cut Paddy in the Maddy field. It has further submitted that there is no whispering on the part of either Complainant or O.P No. 2 that is dealer that the O.P No. 1 was intimated from the end of them that the O.P No. 1 was aware about the problems which was facing by the Complainant. No manufacturing defect was pointed out to the O.P No. 1. So, the company has nothing to do in this regard. It is further argued that the agreement dated 13.05.2018 between dealer and the purchaser was completely private document without following the companies guidelines and the said agreement was executed by O.P No. 2 in his personal capacity and not on behalf of O.P No. 1 and it was beyond knowledge of the O.P No. 1 that O.P No. 2 has executed the agreement in favour of the Complainant. After, going through all the documents it has become crystal clear that O.P No. 1 the manufacturer of the said KPS model Combined Harvester and Straw Baler that the Company was informed about any defect which was facing by the Complainant. It is also not established that the alleged expert was sent from the end of O.P No. 1. Rather, the agreement between O.P No. 1 and Complainant was completely held beyond the knowledge of O.P No. 1. Ld. Advocate of O.P No. 2 mentions that O.P No. 2 was only dealer of the said machine. The O.P No. 2 was not the service center under O.P No. 1 and O.P No. 2 was not liable for any manufacturing defect of the product manufactured by O.P No. 1 and there was no unfair trade practice or deficiency of service on the part of the O.P No. 2. The Ld. Advocate of the O.P No. 2 further submits that while the Complainant reported him that he was unable to cut paddy in the Maddy field through the said machine he had contacted over telephone with O.P No. 1 and at the request of O.P No. 2 the O.P No. 1 had sent an expert to the house of the Complainant where the expert was manhandled and confined by the Complainant and his man and in order to rescue as dealer of the said company he rushed to the spot and rescue the expert and at that time he was forced to execute the agreement dated 13.05.2018 Vide Annexure-D. Ld. Advocate of the Complainant submits that in this case the worst sufferer is the Complainant who being a farmer has intended to Harvest paddy in the field he purchased the said machine by paying hefty amount Rs. 24,95,000/- by securing and obtaining loan from United Bank of India but ultimately, he could not utilize the said machine for the purpose for which he purchased the same. So, reasonable compensation should be awarded in favour of the Complainant. After, hearing the valuable argument canvassed before us we find that the agreement dated 13.05.2018 was held between the O.P No. 2 and the Complainant where it was stipulated that the dealer would withdraw the said machine KSA 8504X4 model and in its place the dealer would handover the KSA Tack vehicle and would recive Rs. 2 Lakh from the Complainant. The Complainant in his pleadings clearly mentioned that he was agreed to pay Rs. 2 Lakh in order to get a new machine KSA Tack model and he was agreed to return back the machine KSA 8504X4 model.
Curiously enough while the Complainant sent the legal notice through the Ld. Advocate, it was not mentioned about the existence of said agreement. Secondly, the Complainant have the liability to handover the said KSA 8504X4 model and to pay Rs. 2 Lakh to the dealer in order to get a new machine KSA Tack model. But there was no whisper in the pleadings of the Complainant that he ever approached the dealer O.P No. 2 to pay him Rs. 2 Lakh and to handover the KSA 8504X4 model to the dealer O.P No. 2. So, the Complainant has its own negligence on his part. He, did not discharge his obligations in the agreement executed. The agreement was held on 13.05.2018 but after his failure in discharging the obligations he registered the Consumer Complaint. It is very well-known principle of law that to claim in equitable right the person who seeks equity must come with clean hands. If, the Complainant had any attempt to handover the said KSA 8504X4 model to the dealer and to pay Rs. 2 Lakh then the picture would be otherwise. Now four years has already elapsed. The said KSA 8504X4 machine is still under the custody and certainly after four years the value of the vehicle has already decreased due to depreciation for wear and tear. Now, the valuation of the vehicle price of the said machine certainly comes down to get extent. And as the Complainant did not fulfil his obligation the Commission cannot cast any duty upon the dealer or manufacturer to pay the compensation. On the other hand, the Complainant is a farmer who has purchased the said machine for the purpose of smooth cutting of paddy by using the said machine and in West Bengal most of the agricultural lands are Maddy and the manufacturer and dealer should have the duty to understand whether such machine handed over to the Complainant was availed or was fit to fulfil the purpose of the Complainant for which he has purchased the same. The manufacturer and the Complainant also cannot evade from liability. So, in order to, protect the interest and the negligence in proportionate manner should be taken into consideration before passing any effectual order in the instant Consumer Complaint and for that reason it would be better to make a valuation of the said KSA 8504x4 model in the present context and to fix a price of the said machine in the present position and after ascertaining the valuation the Complainant should be given an opportunity to handover the KSA8504x4 model to the dealer O.P No. 2 and in lieu of that the O.P No. 2 will handover him exact price of the said machine in the present context after, obtaining a valuation report from a valuer who would examine the machine and ascertain the exact value in the present context of the market and assess the said value in price and such price settled by the valuer to be handover to the Complainant. Such valuer will be appointed by the dealer O.P. No. 2 and such valuer must be an IRDA license holder and such valuer to be appointed by the dealer O.P No. 2 in consultance and taking into confidence the opinion of Complainant and thereafter the settled price valued by the valuer to be handed over to the Complainant after getting returned back of the said KSA8504X4 model from the Complainant. Thus, the Consumer Complaint is hereby disposed of by passing the following order.
Hence, it’s ordered
That the instant Consumer Complaint is allowed on contest against O.P Nos. 1&2 and Ex-parte against O.P No. 3. The O.P No. 2 is asked to have ascertained the present market value and the price of the said KSA8504X4 model by appointing a valuer having IRDA license holder in consultation with the Complainant and obtaining consent of the Complainant for appointment such valuer and after ascertaining valuation of the said machine in money to be fixed by the valuer the same amount be handed over to the Complainant after getting return the said KSA8504X4 model from the possession of the Complainant. The bill of the valuer to be paid by O.P No. 2 dealer. And this entire process to be completed within three months from this day. And if, the O.P No. 2 fails to comply the order of this Commission, the Complainant may approach the Commission for execution of the order in the context of law.
Let a copy of this order be supplied to the parties free of cost.
