1STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI Appeal No.A/15/825 New Holland Fiat (India) Pvt.Ltd. 303, Central Plaza 166, C.S.T.Road Kalina, Mumbai 400 098 ..Appellant Versus 1.Shri.Hanuman Bhauso Chhatre R/o.Mankapur, Taluka Chikkodi District Belgaum, Karnataka State 2.M/s.Bharat Tractors & Motors Through its proprietor Mr.Sanjay Kondiba Chavan Near Shriram Hardware Pune-Bangalore Highway Service Road, Shiroli (P) Taluka Hatkanangale District Kolhapur .........Respondents Appeal No.A/15/826 M/s.Bharat Tractors & Motors Through its proprietor Mr.Sanjay Kondiba Chavan Near Shriram Hardware Pune-Bangalore Highway Service Road, Shiroli (P) Taluka Hatkanangale District Kolhapur ..Appellant Versus 1.Shri.Hanuman Bhauso Chhatre R/o.Mankapur, Taluka Chikkodi District Belgaum, Karnataka State
2. New Holland Fiat (India) Pvt.Ltd. Legal Department Plot no.3, Udyog Kendra Greater Noida 201 306 District Gautam Buddha Nagar U.P. .........Respondents 2BEFORE: Justice A.P.Bhangale, President Narendra Kawde, Member Per Honble Mr.Narendra Kawde, Member Both these appeals arise out of judgment and award passed in consumer complaint no.CC/13/347 between Hanuman Bhauso Chhatre v/s. M/s.Bharat Tractors & Motors and another decided by learned District Forum Kolhapur on 06/06/2015, directing both these appellants/original opponents to pay jointly and severally an amount of Rs.7,14,900/- as compensation to the complainant with interest @ 6% from the date of filing of the complaint together with amount of Rs.5000/- for mental agony and Rs.4000/- as costs of litigation. All these amounts were directed to be paid within 60 days form the date of receipt of copy of impugned order.
2. Both the appeals are clubbed together and heard simultaneously and are disposed of by this common order.
3. Facts as stated in brief are that the original complainant (respondent no.1 herein) purchased New Holland tractor 55 HP turbo for the cost of Rs.8,15,000/- on 21/10/2011. It is the case of the complainant that the said tractor developed technical defect and the average consumption of the fuel was very high. Though allegedly the tractor was changed and the new engine was delivered, it did not work as per expectations and it was idle for almost 445 days out of total 670 days. Even the alleged second tractor exchanged by the opponent also did not operate and, therefore, complainant incurred heavy losses. Additionally, complainant was saddled with payment of EMIs against the loan availed for the purpose of purchasing the tractor. All these technical defects cropped up during the warranty period and, therefore, repeatedly the tractor was sent for repairs to the original opponent no.1 i.e. dealer. Dealer also attended to the complaints periodically but not to the satisfaction of the complainant as it was expected that the tractor would be fuel efficient.
34. Complainant heavily relies on the expert opinion taken into account by the learned District Forum for deciding the consumer complaint. One Mr.Haribhau S. Salokhe running the garage for repairs of automobiles issued a certificate stating that the tractor does not get pick up and also does not bear the load. Mr.Salokhe has filed his affidavit supporting his opinion, who claims to be a tractor Mestry.
5. Heard Mr.S.S.Khot-Learned Advocate with authority letter for appellant in A/15/825 and on record for appellant in A/15/826 and Mr.P.B.Jadhav-Advocate for respondent no.1/original complainant in both the appeals and we have perused the record.
6. Learned advocate for the appellants Mr.Khot vehemently submitted that the certificate is issued by the tractor Mestry, who is not authorized to issue such certificate, as there is no Government approval and, moreover, said Mestry is not technically qualified to certify the alleged manufacturing defects in the tractor. Despite this fact, the Learned District Forum arrived at the conclusion based on the said certificate and passed the impugned award against dealer and manufacturer of the tractor as well.
7. Opponent no.1 has already filed affidavit to counter the claim of the said tractor Mestry about certification of the technical defect, which has not been considered by the Ld. District Forum. According to the learned advocate, several judgments and orders were cited in the Learned District Forum to strengthen the defence to establish that in absence of authentic reliable evidence in the form of technical opinion, no deficiency of service can be established.
8. Learned Advocate for appellants relies on the judgments of Honble National Commission in the matter of Narender v/s. International Tractor Ltd. and another reported in I(2004) CPJ 538 and in the matter of Swaraj Mazda Ltd. v/s. P.K.Chakkappore and another, reported in 2005 NCJ 496(NC). In both these cases it was 4held that in absence of expert technical opinion, manufacturing defects cannot be established and the onus to prove the case has to be discharged by the complainant initially. In the next matter Honble National Commission held that excessive oil consumption is not a manufacturing defect. On both these counts the complaint is not sustainable as submitted by learned advocate of appellant.
9. According to the original opponent no.1 i.e. dealer, engine was changed on complaint. However, it is pointedly brought to our notice that as per warranty certificate, the tractor sold to the complainant bears identical chassis number and engine number as mentioned in the written version of the opponent no.1 claiming change of tractor. Therefore, the submissions advanced in respect of change of tractor and chassis with engine number are not acceptable as we do not find changed number of chassis and engine as against the one mentioned in the warranty certificate. Ld. advocate for the complainant submitted that the tractor is lying idle for long time and the complainant is put to heavy losses, as he is unable to deploy it for agricultural operation. Though we are not entirely in agreement with the technical opinion brought on record of an individual Mestry, yet there is some iota of truth that the tractor right from the date of purchase onwards did not operate fully to the satisfaction of the complainant, which was required to be sent and stationed in the garage or workshop of original Opponent no.1. These facts bear a testimony that there must be some technical defect rendering the tractor ineffective for full operation. To the dismay of the complainant the tractor went out of order quite often.
10. It is well settled principle of the law that Consumer Fora are court of equities. Therefore, just and equitable consideration to decide the consumer disputes amicably is desirable. In view of this, direction to the manufacture i.e. appellant in Appeal no.A/15/825 i.e. original opponent no.2 in consumer complaint to 5repair the tractor and made it operational at their cost would suffice the ends of justice. We do not find role of Opponent no.1, who is a mere dealer to hold them liable for alleged manufacturing defect. Therefore, we are inclined to allow the appeal filed by dealer bearing no.A/15/826 and discharge them from the liability. Consequently, impugned order as against the dealer stands quashed and set aside. However in the facts and circumstances of the case, original Opponent no.2 i.e. manufacturer/appellant in appeal no.A/15/825 is directed to undertake necessary repairs and make the tractor roadworthy and operational at their costs within one month from the date of the order. Both the appeals stand disposed of accordingly. Pronounced on 21st December, 2016. [JUSTICE A.P.BHANGALE] PRESIDENT [NARENDRA KAWDE] MEMBER
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