Sanjay Kacholia And Others vs Bashir Mohammed & 3 Ors

V.K.JAIN, PRESIDING MEMBER

No one is present for the complainant/respondent no.1 Bashir Mohd. who was served with the notice of these Revision Petitions on 28.08.2018. Though an Advocate had appeared for him on 25.10.2018 and 19.12.2018, no vakalatnama in favour of the said Advocate was filed. I have therefore, heard the learned counsel for the petitioners and have considered the record.

The complainant namely Mr. Bashir Ahmad purchased a tractor from Mr. Sanjay Kacholia, petitioner in RP No.593/2018. The complainant paid Rs.58,000/- in cash, arranged loan of Rs.1,50,000/- from Kotak Mahindra Bank and sold his old tractor to Mr. Sanjay Kacholia, towards payment of the price of the tractor purchased by him. The said tractor had been manufactured by Escorts Limited. The tractor was delivered to the complainant at Nainwa in Rajasthan on 29.06.2011. On 16.07.2011, the complainant took the tractor to the workshop of the dealer Mr. Sanjay Kacholia and it was repaired/serviced vide job number 273. At that time, he had complained in respect of the lift and fuses of the tractor as also in respect of the noise emanating from its engine. The tractor was delivered to him after carrying out the repairs and was received by him after repair to his full satisfaction. He signed an endorsement to this effect on the Job Card. The tractor was again taken to the workshop on 12.10.2011 and at that time, the five defects were highlighted. The tractor was delivered back to him after carrying out repairs/service. The tractor was taken to the workshop again on 28.12.2011 and at that time also, four defects were pointed out. The tractor was repaired/serviced and delivery was given to the complainant. The complainant who is a farmer, had purchased the tractor through Sh. Babulal Nagar, petitioner in RP No.621 of 2018 who claims to be an employee of Mr. Sanjay Kacholia, petitioner in RP No.593 of 2018.

The complainant approached the concerned District Forum by way of a Consumer Complaint alleging inter-alia that an old tractor had been delivered to him and that there were several defects in the said tractor. The manufacturer, dealer Mr. Sanjay Kacholia as well as Sh. Babulal Nagar who claims to be an employee of Mr. Sanjay Kacholia were impleaded as the OPs in the complaint. One of the grievances of the complainant was that the documents except the service manual and warranty card had not been handed over to him by the dealer or by Sh. Babulal Nagar.

The complaint was resisted by the manufacturer, dealer and by Mr. Babulal Nagar. They denied having sold an old tractor to the complainant and also claimed that there was no manufacturing defect in the tractor. They also stated that whatever complaints in respect of the tractor were made, were duly addressed before delivering the tractor back to the complainant after carrying out the requisite repairs/service.

The District Forum, vide its order dated 14.10.2014, directed as under:

"Having allowed the present complaint of complainant, opposite parties are ordered that they fit new radiator, lift and gear in tractor sold to complainant within the period of one month. Opposite parties would also pay Rs.2,000/- to complainant in the head of mental pains and Rs.1000/- cost of complaint."

Being aggrieved from the order passed by the District Forum, the complainant approached the concerned State Commission by way of an appeal. Vide impugned order dated 30.10.2017, the State Commission allowed the appeal filed by him and directed refund of the amount of Rs.5,30,000/-, that amount being the price of the tractor, alongwith interest @ 9% per annum and the cost of litigation quantified at Rs.21,000/-. Being aggrieved from the order passed by the State Commission, the dealer Mr. Sanjay Kacholia is before this Commission by way of Revision Petition No.593 of 2018 whereas Mr. Babulal Nagar has assailed the order of the State Commission by filing Revision Petition No.621 of 2018.

The learned counsel appearing for the manufacturer Escorts Limited submits that a brand new tractor and not an old tractor was supplied by them to Mr. Sanjay Kacholia and delivery of the tractor was given to him at Bundi in Rajasthan on 18.06.2011. The same tractor having been delivered to the complainant on 29.06.2011, it would be difficult to say that an old tractor was delivered to him. The chassis number and the engine number of the tractor, as recorded on the invoice issued to the complainant on 20.07.2011, are confirmed by the manufacturer. It has also come in the order of the State Commission that the concerned Police Station had also enquired into the matter on receipt of a complaint from the complainant Bashir Mohd. and had found no substance in the allegations of old tractor having been delivered to him. Therefore, the State Commission in my opinion, was not justified in concluding that an old tractor had been delivered to the complainant.

As far as documents of the tractor are concerned, it is an admitted position that the invoice of the tractor was prepared on 20.07.2011, four days after the tractor was, for the first time taken to the workshop. Obviously, neither the invoice nor the insurance policy of the tractor could have been delivered to the complainant at the time the tractor was delivered on 29.06.2011. To this extent, the dealer Mr. Sanjay Kacholia was deficient in rendering services to the complainant since he was under an obligation to prepare and deliver the invoice at the time the tractor was delivered and also obtain an insurance cover in respect of the tractor before handing it over to the complainant.

The District Forum had directed the OPs in the Consumer Complaint to replace the radiator, lift and gear of the tractor within one month. The case of the dealer Mr. Sanjay Kacholia is that in compliance of the order passed by the District Forum, he had sent a letter to the complainant by Registered Post requiring him to bring the tractor of the workshop for replacement of the aforesaid parts but the complainant, instead of bringing the tractor to the workshop, chose to approach the concerned State Commission by way of an appeal. The dealer Mr. Sanjay Kacholia has no objection to the replacement of the radiator, lift and gear of the tractor, he having not challenged the order which was passed by the District Forum. His counsel submits that though he is no more the dealer of the Escorts Limited, he would ensure that the aforesaid parts are replaced by another dealer of Escorts Limited at the cost of Mr. Sanjay Kacholia. However, the dealer Mr. Sanjay Kacholia must necessarily pay compensation to the complainant for having not delivered the invoice to the complainant and also for not obtaining an insurance cover in respect of the tractor at the time of delivery was given on 29.06.2011. I find no justification for refund of the price of the tractor, when the complainant failed to prove that an old tractor was delivered to him. As per the warranty given to him, he was entitled only to the replacement of the defective parts, and no manufacturing defect in the tractor has been proved by producing expert evidence or otherwise.

As far as Mr. Babulal Nagar, the petitioner in RP No.7621 of 2018 is concerned, it is next submission of Mr. Sanjay Kacholia as well as of Mr. Babulal Nagar that he was an employee of not an agent of Mr. Sanjay Kacholia. Even if the tractor was sold to the complainant by him, he acted as an employee of Mr. Sanjay Kacholia and not in his individual capacity while selling the tractor to the complainant. Therefore, Mr. Babulal Nagar, in my opinion, cannot be held responsible for any defect in the tractor sold by Mr. Sanjay Kacholia to the complainant.

For the reasons stated hereinabove, the Revision Petitions are disposed of in terms of the following directions:

(i) The petitioner in RP No.593 of 2018 namely Mr. Sanjay Kacholia shall replace the radiator, lift and gear of the tractor at his own cost within one week of the complainant bringing the tractor to his office.

(ii) A fresh warranty in respect of the parts so replaced by Mr. Sanjay Kacholia will be given by the manufacturer Escorts Limited.

(iii) If it is found that the tractor has not been used for more than 500 hours, the manufacturer M/s Escorts Limited shall also give a fresh warranty in respect of the tractor for a period of twelve months or 500 hours from the date of replacement of the parts whichever be earlier. The said warranty however, will not be given if the tractor has been used for more than 500 hours.

(iv) Mr. Sanjay Kacholia shall pay a sum of Rs.50,000/- as compensation to the complainant within four weeks from today.

(v) Mr. Babulal Nagar, petitioner in RP No.621 of 2018, will not be liable to make any payment to the complainant and the complaint against him stands dismissed.