SURENDRA AGRO CENTRE OF REWARI vs SHER SINGH

THE above titled First Appeal has been filed against the Order dated 29.6.1992 passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh while the Revision Petition has been filed against the Order dated 5th July, 1993 of the State Commission. The Appeal and the Revision Petition have been filed by the Opposite Party Nos. 1 and 2 in the complaint and both are being disposed of by this Order.

THE facts as gathered from the record are that the present Respondent Nos. 1 and 2 who are brothers had filed a complaint before the said State Commission alleging that they were illiterate village folk of village Lisana, Tehsil Rewari, Haryana. They were in need of a tractor for cultivating their land. They approached present Appellant No. 1-Surendra Agro Centre (Opposite Party No. 1 in the complaint) through its proprietor Appellant No. 2 - Surender Singh (who was Opposite Party No. 2 in the complaint). Opposite Party No. 3 in the complaint (now Respondent No. 3-M/s. V.S.T. Tillers Tractors Ltd. is the manufacturer of the tractor in question. Surender Singh is the Dealer in the tractors manufactured by Respondent No. 3, Surendra Singh met the Complainants in their village for the purchase -of the tractor in which he was dealing. The Complainants made it clear to him that they wanted a machine capable of being used effectively in all the agricultural operations in their fields. The Complainants then approached Shri Surender Singh at his shop and asked him to show the tractor but he evaded to show and asked them to secure a loan from the Bank (and also extended hopes for a subsidy of 30% on the purchase price) and send a draft to him and then the tractor would be shown and made available to them as at that time it was not in stock. Shri Surender Singh, however, extended categoric assurance that the said tractor was sound for use in all types of agricultural operations and was good in tilling for continuous long operations and was also economical because of its low fuel consumption. Believing these assurances of Surender Singh the Complainants" agreed to purchase the said tractor. Thereafter, the Complainants obtained loan from the Punjab National Bank at Rewari and Rs. 1,14,631 /- were paid to the Opposite Party Nos.1 & 2 vide Bank Draft dated 7th April, 1991. The Complainants further averred that they saw the tractor for the first time when Surender Singh sought to deliver the same to them. However, on seeing the very small size of the tractor the Complainants refused to take delivery as its unfitness for use in agricultural operations was somewhat patent. Thereupon, there were some exchange of hot words between the said parties but some other persons intervened and pacified them. Surender Singh extended promise to the Complainants that they should first use the tractor and if even after that they had any complaint then he will take it back. On this categoric assurance of Surender Singh, the Complainants brought the tractor to their village and on use they immediately found that it was of no use to them for the agricultural purposes. It is their case that, being illiterate persons, they were fully assured of the quality and standard of the tractor which was claimed by Opposite Party No.2 and they were induced to purchase the same only on those representations. When the Complainants approached the Opposite Party No. 2-Surender-Singh to take back the tractor and refund its price he refused to the same. Thereupon they parked the tractor in the premises of the Opposite Party Nos.1 and 2 and went away. It is then their case that the Opposite Parties had held out a false promise of payment of 30% subsidy on the purchase price as subsidy was not available nor given. Opposite Party Nos.1 and 2 had also secured a sum of Rs. 1291/- from the complainants for the insurance of the tractor and thereafter they had given them an Insurance Policy which was originally in the name of one Lekh Ram son of Nand Lal and in which the names of the two Complainants had been interpolated. Consequently, the Complainants had filed the complaint seeking relief of refund of the price paid with interest.

FIRST only Opposite Party Nos.1& 2 had been arrayed as Opposite Parties in the complaint but they evaded service. Thereupon, the Complainants took dusti notices and a report with regard to service was placed on the file of the State Commission. Meanwhile the Complainants made an application for imp leading the manufacturers i.e. M/s. V.S. Tillers Tractors Ltd. and the same was allowed while Opposite Party Nos. 1 and 2 were proceeded against ex-parter Counsel appearing for the manufacturer sought time for filing counter version. At that time appearance on behalf of the Opposite Parties Nos.1 and 2 was also put in and reply on their behalf was placed on the record. In their counter Opposite Party Nos.1 and 2 took some preliminary objections but those were not pressed before the State Commission. On merits they admitted the sale of the tractor to the Complainants but pleaded that they had given a true description of the tractor and other information, material thereto to the Complainants and explained to them. It was the case of the Opposite Party Nos.1 and 2 that the tractor supplied was in conformity with the quotations and information. The Complainants being illiterate persons, instead of judging the tractor in accordance with its performance preferred to judge it according to its smaller size. According to them the tractor could only be judged after its use for full one agricultural season while the Complainants used the tractor for only one day with a pre-conceived notion of rejecting the same.

IN support of the Complainants'' case a detailed affidavit of Complainant No. 1-Sher Singh was put in which fully supported the allegations in the complaint. This was corroborated by affidavit evidence of two other witnesses. Opportunity for the cross-examination of these witnesses was afforded to the Opposite Parties but the same was not availed. The Complainants closed their evidence on 14th May, 1992. Thereafter, repeated opportunities were given to Opposite Parties for putting in their evidence by way of rebuttal but those were not availed of and the State Commission consequently passed the following Order on 3rd June, 1992: "In this case as many as 3 opportunities on May 14, May 20 and May 27 were afforded to the Opposite Party to put their evidence byway of affidavits and to serve copies thereof on the learned Counsel on opposite. However, this has not been done and Mr. Rao Ranjit (Counsel for the Opposite Parties) states that the clients have not turned up and he has no further instructions in the matter. In this situation, we find no option but to close the evidence of the Qpposite Party."

The State Commission held that substantial part of the Complainants'' case was admitted by Opposite Parties Nos.1 and 2 as it is their case that the Complainants being illiterate they were explained and given a true description of the tractor which they were selling and other necessary information with regard thereto. On the basis of the Complainants'' evidence it was further held by the State Commission that they relied unreservedly on Opposite Party No.2-Surender Singh''s judgment and assurances and description of the tractor and that it would be patently fit for tough task of agricultural work in the District of Rewari. The State Commission further highlighted that the tractor was not even shown to the Complainants before the purchase on the ground that the same was not in stock and when the tractor was first shown to them they immediately reacted that the same was obviously unfit for the purpose for which full assurances have been given by Surender Singh. The State Commission discarded the assertion of Opposite Party Nos. 1& 2 that the fitness of the tractor could only be established if it is used for whole one agricultural season. According to the State Commission if the tractor had been used for one season, there was no possibility of Opposite Party Nos. 1 and 2 receiving back a used tractor and refunding the price therefor. According to the State Commission the Complainants were right in testing the same for a day or two and finding that i t was not in the least fit for the purpose for which it had been held out by Opposite Party Nos. 1 and 2 on whose skill and judgment they relied implicitly for the purchase thereof. After quoting the definition of'' defect'' as contained in Section 2(l)(f)of the Consumer Protection Act, the State Commission held that the Opposite Party Nos. 1 and 2 had wrongly held out a claim that the tractor supplied was wholly fit for the agricultural operations of the two Complainants while according to the categoric stand of the Complainants the same has not been even remotely fit for doing so. As there was no evidence in rebuttal the State Commission held that the goods i.e. tractor supplied by the Opposite Party Nos. 1 and 2 was defective. Considering the fact that the tractor had been re-delivered to the Opposite Party Nos. 1 and 2 and was in their possession the said Opposite Parties were liable to refund the price. Consequently the Opposite Party Nos. 1 and 2 were directed to refund to the Complainants the price of the tractor namely Rs. 1,14,631.30. The complaint against the Opposite Party No. 3 M/s. V.S. Tillers and Tractors Ltd. was dismissed as no relief was claimed against them nor it was alleged that any assurance or misrepresentation has been held by that party.

FEELING aggrieved against that Order Opposite Party Nos. 1 and 2 have filed the above First Appeal.

THE State Commission had given one month''s time to Opposite Party Nos. 1 and 2 to comply with that order. When that order was not complied with the Complainants filed an application under Section 27 of the Act for taking action against Opposite Party Nos. 1 and 2. The State Commission vide order dated 5th July, 1993 directed that Sher Singh be punished with imprisonment for three months and also a fine of Rs. 2,000/-. Against that Order Sher Singh has filed above Revision Petition. After hearing the parties we are of opinion that the First Appeal has no force. Opposite Party Nos. 1 and 2 had not led any evidence in rebuttal to the Complainants'' evidence about the assurances given by them about the fitness of the tractor for use in the agricultural operation on their land. The Complainants case is that they found the tractor unfit for those operations, they returned the tractor to the Dealer on the next day.

AS noticed earlier there was no rebuttal to the evidence led by the Complainants about the allegations made by Surendra Singh and therefore, in our opinion, the State Commission was right in believing the Complainants'' evidence about the representations which according to the Complainants were misrepresentation made by the Opposite Party Nos. 1 & 2 about the fitness of the tractor for the agricultural purposes for which the Complainants needed that tractor.

IN the appeal the main plea of the Appellants is that for lack of communication with the Counsel they could not avail of the opportunities given by the State Commission for leading the evidence in rebuttal to the Complainants evidence. For this default the Opposite Party Nos. 1 and 2 have to thank themselves. Even in this Appeal various affidavits of Surender Singh and Vijay Kumar have been filed but we find that there is discrepancy in those affidavits. Vijay alias Vijay Singh is brother of Surinder Singh Opposite Party No. 2. In the affidavit filed along with memorandum of appeal Vijay Kumar has averred that the tractor was got serviced from Surender Agro Centre� Opposite Party No. 1 after 50 hours of use when the first service was due. No job card has been produced about that service. Vijay Kumar has further stated that the tractor was used by the Complainants for l-Vi months or their agricultural land i.e. for 95 hours in all and thereafter the tractor was left at the Centre for rectification of a fault but the Complainants did not return to take it back. In the affidavit Vijay Kumar has also stated that he was a partner of M / s. Surender Agro Centre-Opposite Party No. 1 at the time of sale of the tractor and now is sole proprietor. Surinder Singh has filed his affidavit to the effect that he was sole proprietor of Surendra Agro Centre though his elder brother Vijay Kumar was looking after the said firm at that time. In April 1992 he joined Haryana Police and since then Vijay Kumar has become the proprietor of the said firm. Surender Singh has further alleged that the tractor was delivered to the Complainant on 9th May, 1991. In the month of July a complaint was received in respect of steering and the Opposite Parties procured the steering assy from the manufacturer and repaired the tractor. It is his further case that later on a complaint was received regarding the wheel rim plate and once again the tractor was repaired. It is to be noted that Vijay Kumar does not speak about the repairs to the said tractor.

SURINDER Singh-Opposite Party No. 2 in one of his applications dated 28th July, 1993 has stated that the Complainants were still plying the tractor and now they have left the tractor with one Jagan Mistry resident of old Truck Union, Circular Road, Rewari for its sale. As noticed above, according to Vijay Kumar''s allegation the Complainants after use of the tractor for 1-1/2 years had left the tractor in the premises of Surendra Agro Centre. We are of opinion that Surender Singh is not telling the truth even now. It would not be out of place to mention here that according to the above application dated 28th July, 1993 the chasis number of the Tractor sold to the complainants was DP 1891304492 while its Engine No. was ER.-360-1301684. The Appellants have filed one document which is at page 87of the paper book which shows that in response to the Surendra Agro Centre, M/s. VST Tillers Tractors Ltd., Bangalore has sent one front wheel rim. However, in ?that letter the Engine Nos. is given as 1689 and chasis No. 1492. It means that the said rims were not called for the tractor in question.

AFTER considering whole evidence we do not find any ground to accept the various applications filed by the Appellants to send back the case to the State Commission for affording an opportunity to the Opposite Party Nos. 1 and 2 to cross-examine the witnesses of the Complainants or to lead evidence in rebuttal. We have gone through the Orders of the State Commission and the records carefully. We hold that the present appeal is liable to be rejected and we order accordingly with costs which we fix at Rs. 1,000/-. Now we take the Revision Petition. Admittedly Surender Singh did not comply with the Order of the State Commission within the time allowed by it and therefore, the State Commission was forced to pass the order impugned in this Revision Petition imposing punishment of sentence and fine upon Surender Singh. However, Surender Singh has since complied with the Order. As noticed above he "has since joined Haryana Police, if he is sent to prison in compliance of the Order passed by the State Commission under Section 27 of the Consumer Protection Act he will lose his job. That will cause much hardship to him. Considering the fact that the Order of the State Commission has since been complied with we set aside the sentence of imprisonment awarded to Shri Surender Singh but enhance the fine imposed by the State Commission from Rs. 2,000/- to Rs. 3,000/-. With this modification the Revision Petition is dismissed.