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Yogesh Suresh Chaudhari v/s M/S. Auto Wheels, Kubota Tractor Sales Services & Spares, Maharashtra & Another

    Revision Petition No. 2687 of 2015

    Decided On, 29 July 2020

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE V.K. JAIN
    By, PRESIDING MEMBER

    For the Petitioner: Rana Sandeep Bussa, Advocate. For the Respondents: R1, S. Hari Haran, R2, Jaikriti S. Jadeja, Advocates.



Judgment Text


Oral:

The petitioners/complainants, who are farmers by profession purchased a tractor manufactured by respondent No.2 - Kubota Agricultural Machinery India Pvt. Ltd. from their dealer respondent No.1 M/s Auto Wheels on 21.7.2011 for a consideration of Rs.435100/- taking a loan of Rs.2,64,000/- to part finance the purchase. The tractor purchased by the complainants did not carry any warranty. The case of the complainants is that the tractor started giving trouble two weeks after its purchase and was taken for repairs 2-3 times. Some parts were also replaced despite the tractor not carrying any warranty but despite that, the tractor was not working properly and had manufacturing defects. The complainants, therefore, approached the concerned District Forum by way of a consumer complaint seeking refund of the price they paid for the tractor with compensation.

2. The complaint was resisted by the petitioners who admitted the sale made to the complainants but asserted that the small complaints pointed out by the complainants in the tractor were duly attended and some parts were also replaced in that process. They denied any manufacturing defect in the tractor.

3. The District Forum having allowed the consumer complaint, the respondents approached the concerned State Commission by way of an appeal. Vide impugned order dated 25.6.2015, the State Commission allowed the appeal and consequently dismissed the consumer complaint. Being aggrieved, the complainants are before this Commission.

4. It is an admitted positon that the tractor purchased by the complainants did not carry any warranty. It is also an admitted position that the complainants had made complaints with respect to the working of the tractor and the said complaints were also attended to. This is the case of the respondents also that some parts which needed replacement were replaced by them. Their submission is that once the parts had been replaced, there was no defect left in the tractor which was duly returned to the complainants after removing whatever minor defects were found in it.

5. The complainant has filed an affidavit of one tractor mechanic Mr. Shahidkhan Majidkhan Mansuri.The said affidavit to the extent it is relevant, reads as under:-

“I am staying at Shahada since last thirty years and working as Tractor Mechanic. My own New Janta Tractor Garage is on the aforesaid address. I have a vast experience in the repairing work of tractor. I have got detailed knowledge regarding technique of tractor as well as other technical aspects regarding the same. I repairs the tractors having makes of Swaraj, Sonalika, Mahindra, John Dear, Kubota, Mitsubishi etc. as I have knowledge regarding the same.

I was called by owner of the tractor at Mod Yogesh Suresh Choudhary for doing technical inspection and giving expert's report regarding his tractor of Kubota Make Model B-2420, Engine No BJ0685, Chassis No 36457 on 17th February 2012. As per his request I had been to Mod and did detailed inspection of the said tractor. I asked Yogesh Choudhari to start the tractor. Accordingly he started the tractor and kept it on for around one hour. At that time being expert in the field of tractor I found the following in the same:

1. Though the tractor was kept on for one hour, the engine did not get up that much heated. Normally it is expected that the temperature of the engine should be around 80 degree Celsius. In that case it is treated that the tractor is technically sound. But engine of this tractor was not able to achieve that much temperature.

2. If the engine is not getting properly heated, it requires more fuel/diesel than normally required. In this tractor same situation is prevailing and hence it need about double quantity of the fuel i.e. diesel.

3. In starting of the tractor also difficulties have been noticed. Once the key was made on it did not start; but started after trying twice or thrice.

4. Even after one hour of start of the tractor smoke was coming from the engine. From this it appears that there some fault in the engine.

5. As told by owner of the tractor right from the beginning there were problems in the said tractor. There were technical faults. Hence its repair was done at the concerned dealer. But after that also the problems such as tractor starting problem, non heating of engine were continued. After inspection these problems are appearing today also.

6. From the above reasons it can be certainly said that in the tractor there is manufacturing fault. The doubt raised by owner of the tractor that till this fault is prevailing in the tractor, it cannot work properly, appears to be quite correct.

7. If this tractor is used in as is condition besides more consumption of diesel it would not work efficiently. Hence it is my opinion that it would get breakdown frequently and Its repairs will have to be done for which more expenses are to be incurred.

From above aspects there is serious fault in the engine of the tractor which cannot be removed by merely normal repairing. This situation has arrived only due to manufacturing fault.”

6. The submission of the learned counsel for the respondents is that no reliance can be placed on the affidavit of this gentleman, he not being an automobile engineer. The submission is that it was necessary for the complainants to prove the alleged manufacturing defect by examining an automobile engineer and that having not been done, the alleged manufacturing defect, does not stand proved. Reliance is placed upon the decisions of this Commission in R.C. Grover Vs. Tata Motors Ltd. & Anr. - Revision Petition No. 3362 of 2010, decided on May 27, 2015 and Mahindra and Mahindra Ltd. Vs. Nandlal and Others - Revision Petition No. 3327 of 2013, decided on March 11, 2019.

7. I find myself unable to accept the contention advanced by the learned counsel for the respondents. In his affidavit Mr. Shahidkhan Majidkhan Mansuri has stated on oath that he had experience of 30 years as a tractor mechanic and had been repairing the tractors of several companies including the tractors manufactured by respondent No.2 Kubota Agricultural Machinery India Pvt. Ltd. No attempt was made by the respondents to impeach the testimony of Mr. Shahidkhan Majidkhan Mansuri by seeking his cross-examination. As a result, the deposition of Mr. Shahidkhan Majidkhan Mansuri remained practically unrebutted. Though a qualified engineer will certainly be an expert when a manufacturing defect is alleged in a vehicle or tractor, it is not as if no one other than a qualified automobile engineer can ever be termed as an expert. A person who does not hold a degree/ diploma in automobile engineering can also become an expert if he has been handling and repairing the vehicles/tractors for a long period. Mr. Shahidkhan Majidkhan Mansuri having experience of as many as 30 years in handling and repairing of tractors, can certainly qualify as an expert even if he does not hold degree/diploma in the automobile engineering.

8. What is more important in this regard is that being the manufacturer and dealer of the tractor, the respondents were in a position to examine an automobile engineer to prove that there was no manufacturing defect in the tractor sold to the complainants. Though the initial onus was upon the complainants to prove the alleged manufacturing defect in the tractor, the said onus was duly discharged by filing the affidavit of Mr. Shahidkhan Majidkhan Mansuri In view of his affidavit, it was for the respondents to examine an automobile engineer to demolish the opinion given by the said mechanic. Not only they failed to examine an expert to controvert his affidavit, they did not attempt even to impeach his testimony by asking for his cross-examination. Therefore, I see no reason to return the opinion given by Mr. Shahidkhan Majidkhan Mansuri.

9. The next question which arises for consideration is as to what will be the appropriate order to be passed in the facts and circumstances of this case. The tractor was purchased 09 years ago. T

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he tractor was in possession of the complainants. It is not possible to verify whether they have been using the tractor or not. One possibility is that they have not been able to use the tractor whereas the other possibility is that they have got the tractor repaired elsewhere and have been using. However, since the manufacturing defects in the tractor stand established from the opinion of Mr. Shahidkhan Majidkhan Mansuri, the complainants certainly are entitled to adequate compensation for the defects in the product purchased by them. 10. Considering all the facts and circumstances of the case, the respondents are directed to pay a lump sum amount of Rs.2 lakh as compensation to the complainants within three months from today, failing which the said amount shall carry simple interest @ 9% p.a. from the date of this order till the date of payment. The revision petition stand disposed of.
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