STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA
Date of Institution: 08.12.2017
Date of final hearing: 25.07.2023
Date of pronouncement: 08.09.2023
First Appeal No.1499 of 2017
IN THE MATTER OF:-
Sukhdev Singh S/o Sh. Gahna Singh, R/o H.No. 124, Village and Post Office: Sangoha, Block-2, Tehsil & District Karnal (Haryana).
....Appellant
Versus
- M/s AVI Motors, G.T. Road, Nilokheri (Karnal), (Mahindra Tractors Authorized Dealer, Sh. Mukhtyar Singh)
- Mahindra Tractors, Mahindra & Mahindra Ltd. Farm Division, Registered Office: Gateway Building, Apollo Bunder; Mumbai-400001. …..Respondents
CORAM: Naresh Katyal, Judicial Member
Argued by:- Sh. Gaurav Gaur, counsel for the appellant.
Sh. Sandeep Singh, counsel for respondent No.1.
Ms. Sapna Khurana, proxy counsel for Sh. Vaibhav Jain, counsel for respondent No. 2.
ORDER
NARESH KATYAL, JUDICIAL MEMBER:
Delay of 12 days in filing of this appeal stands condoned for the reasons stated in application seeking condonation of this delay.
2. Challenge in this appeal No.1499 of 2017 has been invited by unsuccessful complainant-Sukhdev Singh, to legality of order dated 23.10.2017 passed by District Consumer Disputes Redressal Forum-Karnal (In short “District Consumer Commission”) in complaint case No.265 of 2014, vide which his complaint has been dismissed.
3. Complainant has alleged that: he purchased ‘Mahindra Tractor 555 DT Arjun’ from OP No.1 for Rs.5,75,000/-, vide bill No.358 dated 28.09.2013 with warranty of two years, or for 2000 hours of its running from date of purchase. Its registration No. is HR-05AJ/6746. It was financed from M/s TATA Capital Financing Services Ltd.-Karnal. At the time of purchase, as per terms and conditions of company; necessary accessories with tractor costing Rs.6,500/- were not given to him by OP No.1. As per plea, from beginning of purchase; engine of tractor was not working properly; giving strange and dangerous voice/noise. “Self Start System” of tractor is out of order and main pipe is having leakage. “Back Gear” as well as Breaks, are not working properly. He made complaints to OPs in writing and on phone No.9980802351 of M/s Shiva Mahindra and customer care of company/OP No.2, but no action has been taken. OPs kept service booklet with them on date of sale of tractor. It has practice to obtain advance signatures of customer on Job Card, even before attending to tractor. On 10.10.2013, dealer told that there was ‘major manufacturing defect in engine’ and same cannot be removed at their workshop. On 19.12.2013, he went again to dealer/OP No. 1 and asked about replacement/repairs of engine. Dealer told that company was not replying about replacement of engine. Then, he requested OP No.1 to replace main leakage pipe and set right the Self Start System and Breaks, & Back Gear. OP No.1 did not pay any heed to his request and postponed the matter, on one pretext or other. On 13.05.2014, written report was made to Manager, Mahindra and Mahindra Tractor-Karnal against OP No.1. On asking of Manager of OP No.2, he again contacted OP No.1 for repair/replacement of defective parts of tractor, but he again put off the complainant, to wait for response from company at Mumbai. In these pleas, by alleging deficiency in service on the part of opposite parties, complaint has been filed.
4. Upon notice, OPs raised contest. In defence taken by OP No. 1 in preliminary objections; it is pleaded that complaint is bad for want of requirement as provided u/s 13(1) (c) of the C.P. Act; complainant is not consumer and has concealed true and material facts. Complainant has no mechanical report in support of his case. On merits, it has been asserted that there was no defect in tractor at the time of its delivery. If any defect has occurred, after delivery, same is result of wrong handling of tractor by complainant. Inter alia on above pleas; dismissal of complaint has been prayed.
5. In separate defence of OP No. 2, it is pleaded that transactions between OP No. 2 and OP No. 1 are on ‘principal to principal basis’. OP No. 2 never had any transaction with complainant and there is no privity of contract between complainant and manufacturing company. In preliminary objections; it is pleaded that complaint is not maintainable. No negligence or deficiency in service has been attributed to OP No. 2. No intimation regarding alleged defects in tractor was given to OP No. 2. However, report was made in May-2014 and thereafter tractor was inspected and no defects were found as alleged by complainant. Tractor of complainant was serviced on 19.05.2014 and Hydraulic Pressure Pipe, Manifold, Coupler R & R were changed and on 20.06.2014 switch and filter were changed as per complaint of complainant and job cards are duly signed by complainant of his own, being satisfied with work of OPs. No right of complainant has been prejudiced by OP No. 2. As such, it is not bound to pay any compensation to complainant. It is pleaded that complainant has no locus-standi and cause of action. No complaint was reported by complainant for not providing accessories. It is admitted that tractor is financed by M/s Tata Capital Financial Services Ltd.-Karnal. It is denied that engine of tractor was not working properly or that ‘self start system of tractor’ was out of order and that back gear and breaks of tractor and fore wheel and rear wheel tyres of tractor were fastly going to scrub due to its poor qualities. It is pleaded that problem in hydraulic pressure pipe was noted and addressed under warranty. Other allegations made in complaint have been denied and prayer for dismissal of complaint has been made.
6. Parties to this lis led evidence, oral as well as documentary.
7. On analyzing the same; learned District Consumer Commission-Karnal vide order dated 23.10.2017 has dismissed the complaint thereby giving rise to filing of this appeal by complainant.
8. Learned counsel for parties have been heard at length. With their able assistance; record too has been perused.
9. On behalf of complainant/appellant, it is contended that impugned order dated 23.10.2017 is erroneous on all fronts. Legal and factual aspects have not been analyzed in proper perspective. There is “manufacturing defect” in tractor. It was noticed immediately on its purchase and OPs have been duly appraised with nature of manufacturing defects. Having not replaced the engine, self-start system, back gear and breaks, main leakage pipe of tractor; OPs have caused deficiency in their service, towards complainant.
10. Per contra, learned counsel appearing for OPs/respondents in one voice have urged that complaints noticed in the vehicle (tractor in question) were duly addressed and attended upon on 19.05.2014 & 20.06.2014, to the satisfaction of complainant. Consequently, question of alleged deficiency of service does not arises, particularly when vehicle (tractor) is still in possession of complainant and nearly ten (10) years are soon going to pass, since its purchase. It is also urged that there is no mechanical expert report appended along with complaint to substantiate the allegations.
11. This Commission has subjectively and critically analyzed the rival submissions. Complainant had purchased the vehicle make ‘Mahindra Tractor 555 DT Arjun’ from OP No.1 for Rs.5,75,000/- on 28.09.2013 and it carries registration No.: HR-05AJ-6746. The integral part of allegations of complainant is that: from its very beginning (i.e. from date of its purchase); its engine was causing problem, not working properly; giving strange and dangerous voice/noise. Its self-start system was out of order; main pipe was having leakage, Back gear as well as gears are not working properly; fore wheel and rear tyres of vehicle are fastly (rapidly) going to scrub due to its poor quality. Complaint has been filed on 18.09.2014 i.e. nearly one year after purchase of vehicle (tractor in question).
12. Burden of proof, to prove positive facts regarding alleged defects in tractor, as pleaded, lay upon complainant alone, and legally, this burden will never shift. In order to discharge said burden; complainant himself has appeared in witness box, and tendered duly sworn affidavit dated 29.09.2015-Ex.C1. He has also placed extensive reliance of affidavit of one Sukhdev Singh S/o Mahinder Singh, who as per phraseology of his duly sworn affidavit-Ex.C-2 had checked Mahindra tractor vehicle in question, on asking of complainant, on 29.09.2014 by driving it for 5 km. As per recital of his affidavit (Ex.C-2); tractor was having galore of problems. Its engine was giving horrible noise and smoke was emitting out. Vehicle was pressing while plying and it suddenly used to stop and giving jerk. Engine was not proper because tractor had manufacturing defects. He also deposed that Ram Kumar S/o Chander Bhan-Mechanic was also with him while checking. Ram Kumar S/o Chander Bhan has also furnished his duly sworn affidavit-Ex.C3, by toeing the entire line of deposition of Sukhdev Singh S/o Mahinder Singh.
13. In considered opinion of this Commission; evidence led by complainant, as discussed above, will not suffice his cause, even remotely. Reason is obvious. No opinion or expert evidence in the shape of testimony of any Automobile/Mechanical Engineer, supporting with documents has been produced by complainant in order to prove that machine of tractor supplied to him suffered from inherent manufacturing defects. Opinion of expert body in such like cases would be an essential. It has to be borne in mind that manufacturing defect is much more than ordinary defect which can be cured by replacing the defective part. Manufacturing defect cannot be presumed on mere whimsical pleas, on conjectures and surmises.
14. When present case is considered in this back drop, it is held that complainant has miserably failed to satisfactorily prove his case that tractor was suffering from inherent manufacturing defect. Testimonies of two mechanics namely: Sukhdev Singh and Ram Kumar through their duly sworn affidavits-Ex.C-2 & Ex.C-3 respectively, cannot attire any character, of being the version of a qualified Automobile/Mechanical Engineer. Palpably, this is created evidence only to enable the complainant to sub-serve his cause. In the light of above discussion, it becomes clear and hence held that there was no manufacturing defect in the tractor in question.
15. Respondent No. 2-Manufacturer in its specific stand has pleaded in its written version that tractor in question was serviced on 19.05.2014 and Hydraulic Pressure Pipe, Manifold, Coupler R & R were changed. On 20.06.2014, Switch and Filter were changed. Sh. Nikhil Tyagi-Customer Care Manager of OP No. 2 stationed at Karnal has tendered his duly sworn affidavit-Ex.R2/A in support of above defence. The implication which flows out from this quality plea has far reaching ramifications. Ex.R3 to Ex.R8 are the documents so tendered in evidence, in support of above quality oral evidence. There are absolutely no grounds to discard above evidence. Instead, evidence of this type would go in long way to establish that defects noticed in vehicle were duly taken care of by OP No. 2, twice on 19.05.2014 & 20.06.2014. The defective parts were replaced and that too, to the satisfaction of complainant. The evidence brought on record by OPs has formed a formidable and acceptable base to non-suit the complainant. There could be no deficiency in service of OPs in wake of above facts/clinching evidence.
16. Here it would be apt to take note of the plea taken by complainant in his complaint which reads “It has been the practice to obtain advance signatures of customer on Job Card, even before attending to tractor”. This plea is bereft of credence. Firstly, it is not supported by any evidence as to who had obtained complainant’s signature in advance on job card, before attending on vehicle. Secondly, once the grievance of complainant had been redressed on 19.05.2014 & 20.06.2014 and there is oral as well as documentary evidence available on record, then this type of plea would lose its significance, particularly when, there is no evidence led by complainant to rebut the oral as well documentary evidence led by OP No.2. Undisputedly, vehicle (tractor in question) is still in possession of complainant. It with types of manufacturing defects, as pleaded in complaint, cannot possibly run/ply on road for nearly ten years. Apparently, complainant is vainly trying to make his fortune. Complainant has relied upon judgment of Hon’ble Apex Court in case titled as “Ford India Pvt. Ltd. versus M/s Medical Elaborate Concept Pvt. Ltd. and others” 2023 Live Law (SC) 515. Reliance placed by learned counsel on cited judgment is unfounded and wholly misconceived. The cited judgment is not applicable to the facts and evidence of present case. Hence, it will not stimulate any majestic cause of complainant.
17. For the reasons recorded above, this Commission does not find any manifest error, legal or factual, in the final conclusion drawn by learned District Consumer Commission. Impugned Order dated 23.10.2017 is the outcome of meticulous appreciation of facts and evidence by District Consumer Commission-Karnal. Complainant has rightly been non-suited. His complaint has been rightly dismissed. Impugned order dated 23.10.2017 is affirmed and maintained. Present appeal, being devoid of merits, is hereby dismissed.
18. Application(s) pending, if any stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the Commission for the perusal of the parties.
20. File be consigned to record room.
Date of pronouncement: 08th September, 2023
Naresh Katyal Judicial Member
Addl. Bench-II
