Per Hon’ble DR. S.K. Kakade, Presiding Member. 

 1)    This appeal is filed by Mr.Ankush Kalhane residence of Walgaon District Amravati, against the order passed by the District Consumer Commission Amravati in Consumer Complaint No.CC/71/2012, order dated 02/04/2013 in which the appellant is the original complainant. The complaint was dismissed against the O.Ps. Sai Auto Agencies Amravati, Tractors and Farm Equipments Ltd. Chennai, and TATA AIG General Insurance Co.Ltd. Aggrieved by the dismissal of the complaint the original complainant approached this Commission in this appeal.

2)      Brief facts of this appeal are as follows.

          The appellant is farmer by profession, he purchased tractor from the original O.P.No.1 on 06/11/2011, his tractor was TAFE -9000 which had three years of guarantee, registered with Amravati R.T.O. with number MH/27/L-6112. The said tractor was insured by the O.P.No.3. The original complainant obtained loan of Rs.4,00000/- from Kotak Mahindra Bank out of the total price of the tractor Rs.6,00,000/-. The complainant was paying EMI monthly  On 14/03/2012 the tractor was stopped working suddenly and  when the complainant approached to O.P.No.1 for repairing the tractor the O.P.No.1  and told that there is manufacturing defect and so the engine needs to be changed completely. Further the O.P.No.1 did not change the engine inspite repeatedly  visiting to O.P.No.1. Since the tractor completely stopped working the complainant suffered loss and so could not repay the EMI on schedule. Since there was loss of Rs.11000/- per day as the tractor was not available for use, the complainant filed the consumer complaint and prayed for replacing the tractor and or else granting the price of tractor alongwith compensation of Rs.12,60,000/- alongwith 18% p.a. interest rate.

3)     The O.Ps. defended the complaint by filing written statement and affidavit. It was contended by the learned advocate for O.P.No.1 before the District Consumer Commission that within the six months period after the purchase of the tractor the tractor was in continuously use for 969 hours which has crossed limit of 1500 hours per year and so this is against the terms and conditions of warranty. The O.P.No.1 refused to replace the engine as well as the present tractor. Since the tractor was repaired from time to time and the complainant each time signed on the document stating the he is satisfied, there is no deficiency in service by O.P.No.1. The O.P.No.3 in his written statement mentioned that the tractor was used for commercial purpose as it was being used for renting out to other farmers and hence the original complainant is not a consumer. After going through the record and hearing the arguments by both the sides learned District Consumer Commission dismissed this complaint.

4)        Advocate for respondent No.3 who is the Insurance Company submitted that there was no prayer as well as pleadings and there were no allegation against the insurance company, insurance company is not liable for any relief. Further according to the insurance policy manufacturing defect is not covered and hence the learned advocate prayed for exonerating the respondent No.3.

5)      We heard learned advocates of both sides during final hearing of this appeal. According to the learned advocate for the appellant the appellant/original complainant is consumer since the tractor was being used for himself as well as other farmers on rent. The appellant was doing so for earning his livelihood, so since the appellant is agriculturist using the tractor for agriculture purpose to earn livelihood  as per the definition of consumer, the appellant is consumer. Further the learned advocate for the appellant submitted that this tractor had problem at least three times. As multiple problems occurred within short span of six months, there appears to be a manufacturing defect and hence the appellant tried to get the tractor repaired as well as sought complete replacement of the same. Learned advocate further contended that the dispute is the consumer dispute. Further in the prayer sought permission to file civil suit. The appellant prayed for setting aside the impugned order by District Consumer Commission and also direct the O.P.s to replace the tractor and pay damages of Rs.11,000/- per day with interest @ of 18% p.a. from 2012 till its realisation.

6)       While opposing the submission of advocate for appellant, the learned advocate for respondent Nos.1 and 2 stated that the use of tractor for commercial purpose as it was generating revenue of Rs.11,000/- per day. The tractor was being over used which can be seen from 969 hours used in six months crossed the permissible limit of use. According to learned advocate for the respondent Nos.1 and 2 the order passed by the learned District Consumer Commission is just legal and proper. In support of their contentions the learned advocate for complainant referred the ruling of Hon’ble National Consumer Disputes Redressal Commission  in 2015 (5) lLL (MR) General, Revision petition No.2309/2008 decided on 30/01/2015, Tata Motors Ltd……V/s…..Deepak Goyal and others.. According to learned advocate for appellant in the similar circumstance in this ruling, Tata Motors Ltd……V/s…..Deepak Goyal and others (cited supra), the complainant had to take the vehicle to workshop for more than 20 times in a span of two years which itself proves that there were manufacturing defect which could not be detected by the workshop inspite of multiple visits to workshop. Learned advocate for the respondent referred the ruling of Hon’ble National Consumer Disputes Redressal Commission, 2018 MCJ 362 (NC), Sanjai Ghodawat….V/s….R.R.B.Energy limited and other related complaints. According to this ruling it was held that goods purchased for commercial purpose then complainant cannot be considered consumer during warranty period and so the complaint is not maintainable. We have gone through the record after hearing the arguments advanced by learned advocate of both the sides.

7)      In the original complaint filed by the complainant the complainant has categorically stated that the tractor was being used for agricultural purpose and was also being rented out to other farmers to earn the livelihood. It is observed that the learned District Consumer Commission has not noted this pleading. In view of this pleading the we are of the opinion that the appellant/original complainant is a consumer as per the definition of U/s 2(1)(d) of the Consumer Protection Act 1986 and hence this dispute falls in the category of Consumer dispute. Further it was noted that the tractor was in warranty period and the said tractor was insured by taking the policy from respondent No.3.

8)        The learned advocate for appellant placed his objection to the Commissioner’s report (page No.20) , the report that was given by technician at Shambala Motors and Tractor, Kapsi, Bhanda Road, Nagpur who was working as a technician with the other company. The observations made by the Commissioner who was appointed on the application filed by the complainant before the District Consumer Commission opined that there was trouble in starting this tractor and regular servicing might improve the performance of the tractor. This inspection report by the Commissioner was objected by the complainant on the grounds that actually the Commission did not inspect the tractor in presence of the complainant and hence the original complainant rejected this report. Perused the affidavits filed by (reference page No.209 and 210) the technicians working with other tractor repairing centres by Sunil Bhaoraji Shende of Wakoda Khurd, Taluka Tiwsa, Dist.Amravati who after inspect and trial of the tractor defined that this tractor could not work and filed this affidavit was dated 21/03/2013. Another affidavit on page 212 by Shir Omprakas Ghatare,  who also was experienced to work as mechanic and he received a training from TIFE Mesi Ferguson tractor. According to this affidavit the said tractor could not work in the farm since there is no power being the generator in the tractor, this tractor only can work on road and not in the farm. Both the affidavit proper mentioned that the engine of the tractor need to be opened and inspected.

9)      In our view, the tractor was taken to the workshop for multiple times, inspite of the possible repairs the said tractor again could not be used during farming operations. The affidavits giving by mechanics who inspected the tractor that the said tractor could not be used in the farming operations supports the contentions of the appellant. The O.P.Nos.1 and 2 did not provide the service to the original complainant to completely solve the problem in that tractor rather though the tractor was within the guarantee period and also insured by the insurance company. The engine of the tractor was not replaced by the O.P.No.1. We think that it is deficiency in service and the original complainant has proved that there was deficiency in service. In view of this discussion this Bench think it proper to set aside the order passed by the learned District Consumer Commission and passed the appropriate order giving the relief to the appellant. The Commission passes the following order.

                                                //ORDER//          

i.        The appeal is partly allowed with quantified to Rs.25,000/- to be paid by the respondent Nos.1 and 2 to the appellant.

ii.       The order passed by the learned District Consumer Commission Amravati is set aside.

iii.      The respondent No.1 and 2 are directed to repair the tractor by replacing the engine.

iv.      If the replacement of engine is not possible then replacing the said tractor by brand new tractor OR at the option of appellant the respondent Nos.1 and 2 are directed to refund the price of tractor i.e. Rs.6,00,000/-, with interest at the rate of 6% p.a. from the date of filing of complaint till realization.

v.       The respondent Nos.1 and 2 are hereby directed to pay Rs.1,00,000/- as compensation towards mental agony and harassment caused to the appellant.

vii)    The remaining order is to be complied within period of two months from the date of order, failing which the amount will carry interest @ 9% p.a. from the date of this order till its realisation.

vi.      Copy of order be furnished to both the parties free of cost.