State Consumer Disputes Redressal Commission
Dinesh Dahiya vs Heromoto Corp. Ltd. & Anr on 3 July, 2023
FA NO.75/2021
DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution:22.12.2021
Date of hearing:02.05.2023
Date of Decision: 03.07.2023
FIRSTAPPEAL NO.75/2021
IN THE MATTER OF
DINESH DAHIYA
952, Village & Post Office
Bijwasan, New Delhi -110061
...Appellant
(Through: None)
VERSUS
1. HERO MOTOCORP LTD.
Grand Plaza, Plot No.2,
Nelson Mandela Road,
Vasant Kunj, Phase-II, New Delhi -110070.
2. K.S. AUTOMOBILE
Main Road, Bijwasan, Opp. Palam Apartment,
Village Bijwasan, new Delhi -110061.
...Respondents
(Through: Mr. R.K. Tripathi, Advocate.
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS PINKI, MEMBER (JUDICIAL)
MR. J.P. AGRAWAL, MEMBER
Present: None for the parties.
DISMISSED PAGE 1 OF 9
FA NO.75/2021
DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
PER: HON'BLE JUSTICE SANGITA DHINGRA
SEHGAL,PRESIDENT
JUDGMENT
1. The complainant who is also the Appellant in the present appeal purchased a motor Model No. 'i Smart' on 24.04.2015, for a total consideration of Rs.51,100/-. According to the complainant, inter- alia, since the very beginning the vehicle was giving mileage of 50- 60 kms per litre and as against the assurance/claim of 102.5 kms per litre given by the opposite parties, pick up was very law, etc. . Being aggrieved the complainant approached the concerned District Forum seeking the following reliefs:
(i) Direct the Respondent to replace the defective motorcycle free of cost, or in the alternative return the whole amount of motorcycle paid by the complainant at the time of purchasing the same;
(ii) Direct the Respondent to pay a sum of Rs.3,37,100 to the complainant as explained in para 36 of the complaint.
(iii) Direct the Respondent to the exact and true specification on website and print media;
(iv) Direct the Respondent to submit apology letter for making false and fake averment on website to the customers and withdraw all such published material.
2. The said complaint filed by the complainant under the Consumer Protection Act, 1986 was dismissed by the District Commission at DISMISSED PAGE 2 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
the admission stage, vide order dated 06.05.2021, whereby it held as under:
"The judgment of the Hon'ble National Commission makes it very clear that not giving promised mileage by the vehicle is not an unfair trade practice particular in view of the fact that the mileage has been exam9ined by a third party namely ARRI under test conditions under the provisions of the Central Motor Vehicles Rules. Hence, in view of the judgment of the Hon'ble National Commission we do not see any merit in this complaint. Hence, this complaint is dismissed at admission stage itself."
3. Aggrieved by the aforesaid order of the District Commission, the Appellant/Complainant has preferred the present appeal, inter-alia, contending that the District Commission failed to record a single ground that the complaint is frivolous or vexatious, failed to consider all the issues which have been raised in the complaint and has passed the order on the issue of mileage only, that there is manufacturing defect in the vehicle.
4. Respondent has filed reply to the appeal while denying the contents of the appeal has contended that an expert report is of extreme importance if manufacturing defect has to be proved and the onus to prove any manufacturing defect and to bring the expert report is on the complainant.
5. We have carefully perused the material on record. The main Controversy existing between the parties pertains to the manufacturing defect in the vehicle and the mileage of the vehicle.
6. There is no dispute that complainant purchased the vehicle from the OP No.2. According to the complainant, since beginning he DISMISSED PAGE 3 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
was complaining about low pick-up, trembling and vibration when driving on speed of more than 45 km/h, low mileage. However, perusal of the record shows that the complainant has filed no job card on record to show the alleged defects in the vehicle. The only job card filed by the Complainant is dated 18.10.2019, wherein payment for change of engine oil has been charged from the complainant. Though in relation to the said job-card, it is stated that executive of the OP stated that there is a manufacturing defect in the engine of the bike, however, no such observation is recorded in the said job card. On the contrary, it is a cash-memo, Further, the Complainant has stated that OP No.1 took a mileage test on 10.07.2015 wherein the mileage was recorded between 40 to 60 km/h, however, no evidence has been filed by the Complainant. The Respondent in reply to the appeal has submitted that from 24.04.2015 till 18.10.2019, the vehicle has run about 49,304 km.
7. As per provision of the Consumer Protection Act, it was necessary for the Complainant to produce expert evidence showing low average and manufacturing defects in the vehicle. However, perusal of record shows that there is no evidence on record to show either the manufacturing defect in the vehicle or the low average of the vehicle. As admittedly, neither any job-card nor any expert evidence/report has been filed by the Appellant to prove that the vehicle was having any manufacturing defect and/or there was low average of the vehicle.
8. In Ravneet Singh Bagga Versus- M/s. KLM Royal Dutch Airlines & Anr. reported in:(2000) 1 SCC 66, the Hon'ble Supreme Court has laid down as under:
DISMISSED PAGE 4 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
"The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service."
9. In view of the above-said law laid down by the Hon'ble Supreme Court the burden of proving the deficiency in service is upon the person who alleges it. In the instant case before us the complainant is alleging manufacturing defects and low average but the complainant has neither produced job-cards nor any expert evidence to prove it.
10. The Hon'ble NCDRC in the matter of Classic Automobiles vs. Lila Nand Mishra as reported in I [2010] CPJ 235 (NC) is pleased to hold as under:
"The onus to prove that there was manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent No. 1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided DISMISSED PAGE 5 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
under Section 13(1) (c) of the Consumer Protection Act, 1986 which provides as under:
"(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make and analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.
11. In Sukhvinder Singh v. Classic Automobile I(2013) CPJ 47 NC the Hon'ble National Commission had held that to prove manufacturing defect, report of expert is necessary. Burden of proof is on complainant. Similar view was taken by Union Territory Commission, Chandigarh in Kawaljit Singh vs. Broadway Auto Engg. III(2014) CPJ 212.
12. To sum up, we deem it appropriate to refer to "Santosh Devi Vs. Hyundai South Regional &Ors", reported as (2012) 3 CPJ 529 (NC), wherein, the Hon'ble National Commission while dealing with the similar matter, has held as under:
"The very fact that the said car within a span of three years 2 months run more than 60000 Kms. speaks that there is no inherent manufacturing defect with the said car and the problem with the said car is rather created by the complainant herself. When that is so, she is bound to pay the repair charges. If she abandoned the said car and failed to take the delivery of the same by paying repair charges, she has to thank herself. When complainant is at DISMISSED PAGE 6 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
fault, she cannot allege the deficiency in service against the Ops. Viewed from any angle, complaint appears to be devoid of merit."
13. Further, in "Ajita Chit Fund Pvt. Ltd. v. Teleco I (2007) CPJ 204 and Swaraj Mazade v. P.K. Chak Kapoor" reported as "II (2005) CPJ 72" wherein the Hon'ble National Commission has held as under:
"In the case in hand, the Complainant had not filed report or affidavit of any expert to say that there was any manufacturing defect.
Extensive use of car also destroyed the case of the complainant that car had any manufacturing defect"
14. Reliance is also placed on decision of National Commission in Hyundai Motor India Ltd. vs. Surbhi Gupta 2014 SCC Online NCDRC 487 wherein it was observed that it was not even possible for the truck to run 48,689 kms in over a period of more than three and a half years if there was any inherent manufacturing defect. This is not the case in hand.
15. Further, reliance is placed on the decision of National Commission in Rakesh Kumar vs. Shimla Automobiles Pvt. Ltd. 2014 SCC Online NCDRC 478, wherein it was observed as under:
"Having considered the matter in its entirety, we find no ground to take a view different from the view taken by the State Commission. There is no material before us from which we may conclude that the vehicle suffered from any particular manufacturing defect. Therefore, no ground for replacement of the vehicle or for refunding the price of the vehicle to the petitioner/complainant was made out. Had there been some DISMISSED PAGE 7 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
manufacturing defect in the vehicle it would not have run for as much as 85016 kilometers as on 17-12-2011. At a later date it was found that the vehicle had run 97,488 kilometers. The vehicle is still in possession of the complainant and must have been used further. In these circumstances, the finding of fact recorded by the State Commission cannot be said to be perverse so as to warrant interference by us in exercise of our revisional jurisdiction."
16. In view of the foregoing, the facts of the present case reflect that the vehicle in question had run about 49304 km during the period from 2015 to 2019. Had there been any manufacturing defect, the vehicle could not have run so much. Further, in the case in hand, the complainant had not filed report or affidavit of any expert to say that there was any manufacturing defect. The extensive use of the vehicle also destroy the case of the complainant that vehicle had any manufacturing defect.
17. Having regard to the discussion done and the legal position explained, we of the considered view that the complaint being devoid of merit was rightly dismissed by the District Commission. Accordingly, we dismiss the appeal being devoid of merit with no order as to costs.
18. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
19. A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
DISMISSED PAGE 8 OF 9 FA NO.75/2021 DINESH DAHIYA V. HERO MOTOCORP LTD. & ANR.
20. File be consigned to record room along with a copy of this Judgment. Record of the District Commission be returned forthwith.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) (J.P. AGRAWAL) MEMBER Pronounced On:03.07.2023 DISMISSED PAGE 9 OF 9