MANAGER, REGIONAL OFFICE, JOHN DEERE INDIA PRIVATE LIMITED vs LAXMI NARAYAN PATEL & ANR

The principal question which falls for consideration is ''if the manufacturing company cannot repair the tractor despite frantic efforts made by the purchaser as well as OP/manufacturing company, what is the remedy left for the purchaser of tractor?''

Shri Laxmi Narayan Patel, the complainant, purchased a tractor from the authorized dealer, M/s Chhattisgarh Tractors, who was arrayed as opposite party No. 2 in the original complaint. After sometime from the date of purchase, the tractor developed technical defect. The complainant approached opposite party No. 2. The opposite party No. 2 apprised him of the fact that new tractor would work properly after running for few days. However, the tractor became unfunctional after a lapse of 15 days i.e. 170 hours.

The complainant met Shri Pushpender Singh posted in the office of Regional Office, John Deere India Private Limited situated at Raipur, opposite party No. 1. Shri Pushpender Singh directed the authorized mechanic of company to examine and repair the same. The mechanic tried to repair the tractor but the needful could not be done. The complainant got it repaired time and again.

Ultimately, the complainant got the tractor examined and repaired from Shri Deepak Kumhare posted as Engineer in the office of opposite party No. 1. He repaired the tractor and assured the complainant that no technical fault will occur in the tractor. The tractor ran for 87 hours and again the faults cropped up. He again contacted Shri Deepak Kumhare and he asked the complainant to bring NRB bearing from Raipur. The complainant incurred the amount and brought the bearing and got it installed. However, after running for 50 hours, the tractor again became faulty. The complainant again made complaint to Shri Kumhare and asked him to get the parts of the tractor examined from the laboratory. Mr. Kumhare sent the parts to Raipur laboratory on 1.12.2010 but its report was withheld by the opposite parties. The tractor is lying unfunctional since then.

During the 17-18 months from the date of purchase of this tractor, it had run only 1190 hours. During the warranty period, the complainant had spent a sum of Rs.68,870/- for change of parts. The complainant contended that he had suffered the loss of about Rs.2,80,000/- in agricultural work. Due to fault in the tractor, the complainant had to take a loan of Rs.1,00,000/-. He has spent Rs.5,43,870/- towards repairs and other charges.

Legal notice was sent but it did not evoke any reply. Consequently, the complaint before the District Forum was filed with the prayer that a sum of Rs.5,43,870/- may be paid to him and the vehicle be replaced with new tractor or a sum of Rs.11,64,870/- including cost of the tractor with interest be paid to him.

Opposite party No. 1 averred that the complainant had purchased the tractor after inspection of the tractor and being satisfied. The complainant is entitled to get the relief only under the terms of warranty. The complainant did not get the benefit of free services on the prescribed dates. The complainant has failed to produce any expert report regarding the manufacturing defect. The tractor manufactured by the opposite party No. 1 is of international standards and is also used to be exported to other countries. Opposite party No. 2 has denied all these allegations. He denied that no complaint was made to him. He contended that the complainant never brought the tractor for servicing. The dealership of OP 2 stands terminated.

The District Forum came to the conclusion that the tractor was repaired five times during the running of 853 hours. The report from the laboratory was withheld. The complainant proved the affidavit of the mechanic, Shri Sait Kumar Chaudhary, who has stated about the manufacturing defect in the tractor. The District Forum directed the opposite party No. 1 to pay a sum of Rs.6,21,000/-, the value of the tractor. The opposite party No. 1 was also directed to pay a sum of Rs.68,870/-, the amount incurred for the repair of the vehicle, alongwith interest @9% per annum, Rs. 5,000/- towards mental harassment and Rs.2,000/- towards costs.

The State Commission came to the conclusion that the complainant had got repaired the tractor on 15 occasions. It dismissed the appeal with costs of Rs.1,000/-.

We have heard the learned counsel for the parties. Mr. Rajiv Mehra, learned Senior Advocate appearing alongwith Mr. Mohit Bakshi, learned counsel for the petitioner, vehemently argued that the order for replacement of the vehicle cannot be passed. He, however, contended that if the complainant is ready to settle the matter, they are ready to pay him the costs of the repairs i.e. in the sum of Rs.68,870/-, plus compensation for alleged harassment, total being amount of Rs.1,50,000/- as suggested by this Commission as well but learned counsel for the complainant/respondent did not agree. Therefore, the case was heard on merits.

Learned counsel for the petitioner/OP submits that the finding of the fora below that Shri Deepak Kumhare sent the various parts to the laboratory at Raipur for examination on 11.12.2010, does not stand proved. He has invited our attention towards the affidavit dated 17.4.2012 filed by Shri Sait Kumar Chaudhary. To our mind, the affidavit of Shri Sait Kumar Chaudhary is significant. Its few paras run as follows: "1. That I have received Tractor Repairing training from institute of John Dear Tractor Company situated at Pune and earlier I was working with Shri Krishna Motors Basna District Mahasumand (Chhattisgarh) being the authorized seller of John. Dear Tractor. Presently I am working as Mechanic privately.

In para 2, he submits that he repaired the tractor in question.

"3. That the aforesaid tractor during the running of about 853 hours has stopped running 5 times for repairing and its clutch plate boring, P.T.O. part etc., have been made to replace within 100 to 150 hours, whereas the aforesaid parts used to became faulty after running of 700 hours only.

That due to the aforesaid time and again fault I contacted Shri Deepak Kumhare, Engineer posted at the regional office of John Dear Tractor at Raipur, then he has directed me that now this time open the tractor and repair the same under my instructions.

That from the Regional Office Shri Deepak Kumhare and his associate Shri Mahender Farswani came, then I repaired the tractor under their instructions, however about 87 hours running, the tractor again got faulty and stand still.

That this time I again contacted Shri Kumhare, then he suggested to use the NRB Boring and grease and inspite of compliance of the same the tractor has again got faulty and stopped working

That as per the instructions of Shri Deepak Kumhare I sent the replaced clutch plate, boring finger P.T.O. Parts to the laboratory for examination on 11.12.2010. I am not aware about the result of the examination.

That inspite of sending of parts to the laboratory for examination, I have already repaired the tractor for about seven times on different dates, wherein all the expenditure incurred and the purchase value in case of replacement of parts, has been incurred by Shri Laxmi Narayan Patel.

Learned counsel for the petitioner/OP vehemently argued that the OP 2 did not specify as to which laboratory the parts were sent for examination. Again, he is not reliable witness. Learned counsel contended no reliance can be placed on this witness, who for reasons unknown has left the service of OP 1. He contended that even the verification is not correct.

Learned counsel for the petitioner/OP has invited our attention towards the various authorities. The first judgment is delivered by this Bench itself reported in Krishanpal Singh vs. Tata Motors Limited II (2014) CPJ 731 (NC). Para 25 and 26 of that judgment are relevant, which read as under: "25. This must be borne in mind that this is a peculiar case and where the complainant had to visit the service station, according to him, for 53 times and according to the opposite party, for 26 times. Normally, in such like situation, the onus of proof should be shifted to the side of the OP when the manufacturing defects are visible on its face and the OP has no explanation to make, the manufacturing defect, ''must be assumed''. Section 13(1)(c) is wee bit unfavourable to the consumers. The consumer is a poor fellow. He cannot be equated with OP 1. Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like, OPs, to appoint their own Experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect. The General Manager of Tata Motors should certify that the vehicle is road-worthy and it will not endanger the life of the complainant or his family members.

However, we are bound by the law laid down by the Hon''ble Apex Court in several authorities, cited by the Counsel for the petitioner/Tata Motors. The car can neither be replaced nor its amount can be refunded. Keeping in view these facts and circumstances, we hereby modify the order passed by the State Commission and hereby order that no refund be made as already ordered by the District Forum and the State Commission.........."

Learned counsel also placed reliance on Supreme Court authority reported in Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra and another (2006) 4 SCC 644. In this case, it has been held : "9. The Commission and the High Court have relied on the so-called admission of the appellant in para 3 of the objections filed before the Commission. In various documents, more particularly the letter dated 19-2-1997 written by respondent No. 1 to the appellant, it is clearly stated that the appellant had indicated that downing of the engine was necessary to trace the problem. There was no agreement to replace the engine system. Additionally, it is not disputed by learned counsel for the respondent 1 that when the appellant had asked the vehicle to be brought for the aforesaid purpose. Respondent 1 had not done so. To infer that there was any manufacturing defect in the said background is without any foundation."

Learned counsel for the petitioner has also cited another authority of this Commission reported in Classic Automobiles vs. Lila Nand Mishra and another 2009 2010 (1) CPJ (NC) 235.

Learned counsel for the OP has also filed the warranty card for the first time before this Commission. Its relevant para reads as under: "1. The company''s/Sellers liability will be limited to the repair or replacement of the parts, which are proven defective within the aforesaid warranty period in normal operation, proper use & service as per schedule, when owned by the original buyer only."

It also mentions about free service, which is reproduced as under:

FREE SERVICES

(Labour Free Service. The cost of consumables and wear and tear of parts to be borne by customer)

1 st Service Within 100 hours or 1 month from the date of Sale, whichever is earlier

2 nd Service Within 350 hours or 4 months from the date of Sale, whichever is earlier

3 rd Service Within 600 hours or 7 months from the date of Sale, whichever is earlier

4 th Service Within 850 hours or 10 months from the date of Sale, whichever is earlier

5 th Service Within 1100 hours or 13 months from the date of Sale, whichever is earlier

6 th Service Within 1350 hours or 16 months from the date of Sale, whichever is earlier

7 th Service Within 1600 hours or 19 months from the date of Sale, whichever is earlier

8 th Service Within 1850 hours or 22 months from the date of Sale, whichever is earlier

"

We find force in these arguments in a measure. The facts of this case are wee bit different. In this case, the affidavit of Shri Sait Kumar Chaudhary carries infinite value. There is no reason to discard the affidavit of Shri Sait Kumar Chaudhary. He is the main witness, who has been repairing the vehicle time and again. He is well aware of the know-how of the machinery in question. He has worked in John Deere India Private Limited. He appears to be a guileless witness, to find fault with his verification or his integrity carries exiguous value.

Secondly, non production of the affidavit of Shri Deepak Kumhare or his companion is fatal to this case. OP 1 could not muster the courage to file his affidavit on record. Let us turn to the complaint itself. The complaint was filed as back as on 8.6.2011. The story involving Shri Kumhare is of pristine origin. From the very start, the complainant has been asking them that Shri Kumhare sent the parts to the laboratory at Raipur for examination. Opposite party No. 1 denied the same but failed to file the affidavit either of Shri Kumhare or Mr. Pushpender Singh. The case cannot be ducked in the way, the opposite party No. 1 wants. Authentic evidence should have been produced. The employee, Shri Sait Kumar Chaudhary of opposite party No. 1 himself submits that parts were sent to the laboratory. The report of laboratory did not see the light of the day for the reasons best known to the OP 1. The production of report of laboratory would have gone a long way to elicit the clear picture about the tractor. Since the same has been withheld, therefore, it is safe to make adverse inference against the OP 1. The condition made in the warranty itself stands proved. Is it the international standard?.

In this case, it is not clear which of the parts are defective, otherwise the law laid down in Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra (2006) 4 SCC 644, would have applied. The OP has not come with clean hands. It has altogether denied the case of the complainant. To our mind, there are serious technical defects, which are beyond the question of being repaired. It appears that the OP has made frantic efforts to straighten up this problem in vain. They have also withheld the report of the laboratory. In Hindustan Motors Ltd. vs. N. Siva Kumar (2000) 10 SCC 654 , it was held that when it became impossible to comply with the National Commission''s order directing replacement of the Respondent''s defective vehicle, since the manufacturer had stopped manufacturing the said model, this Court directed that the money along with interest, compensation and costs were to be paid to the purchaser. In a recent authority reported in C. N. Anantharam vs. M/s Fiat India Ltd. & Ors., Special Leave Petition (C) Nos. 21178-21180 of 2009, in para 17, it has been held: "17. From the facts as disclosed, it appears that apart from the complaint relating to noise from the engine and the gear box, there was no other major defect which made the vehicle incapable of operation, particularly when the engine was replaced with a new one. However, in addition to the directions given by the National Commission, we direct that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the lifetime tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission."

Where the OPs could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to workshop, the consumer fora has no other option but to hold that deficiency in service stood proved. The complainant after being fed up with the defects, does not gain anything for filing a case before the consumer fora. The reasoning given by the fora below cannot be faulted. The fora below have nowhere missed the wood for the trees, we add our voice to theirs and dismiss the revision petition. However, it is made clear that the purchaser will return the tractor within 30 days from the date of receipt of a copy of this order.