State Consumer Disputes Redressal Commission
Espee Enterprises India vs Mohd. Tahir Hasan And Another on 18 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 119 / 2013
Espee Enterprises India
Arya Nagar
Jwalapur, Haridwar
......Appellant / Opposite Party No. 1
Versus
1. Mohd. Tahir Hasan S/o Sh. Mahmood Hasan
R/o Village Alipur, P.O. Bahadarabad
District Haridwar
......Respondent No. 1 / Complainant
2. Bajaj Auto Limited
Akurdi, Pune - 411 035
......Respondent No. 2 / Opposite Party No. 2
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. Nazim Ali, Learned Counsel for Respondent No. 1
None for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 18/12/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 02.04.2013 passed by the District Forum, Haridwar in consumer complaint No. 138 of 2012. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant to give new vehicle to the respondent No. 1 in place of the vehicle in question or in failure thereof, to refund the cost of the vehicle amounting to Rs. 63,368/- to the respondent No. 1 and also to pay Rs. 5,000/- towards damages.2
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that the complainant had purchased one Pulsar 150-DTS-I (UG-4.5) from the appellant on 25.10.2010 for sum of Rs. 63,368/-. The said vehicle carried warranty of two years. It was alleged that soon after the purchase of the vehicle, noise started coming from the engine of the vehicle and the meter of the vehicle was also not functioning properly. It was also alleged that the vehicle used to stop after a run of 10 kms. The complainant lodged the complaint with the appellant and took the vehicle to the service centre of the appellant, but the defects in the vehicle were not removed by the appellant. It was also alleged that there is manufacturing defect in the vehicle. The complainant sent a legal notice dated 05.12.2011 to the appellant and respondent No. 2 and thereafter alleging deficiency in service on the part of the appellant and respondent No. 2, filed a consumer complaint before the District Forum, Haridwar.
3. The appellant and respondent No. 2 filed written statement before the District Forum and pleaded that the vehicle carried warranty for a period of two years or 30,000 kms., whichever occurs earlier from the date of sale; that the complainant did not bring the vehicle to the service centre of the appellant on 05.06.2011; that on 22.03.2012, the vehicle was brought to the service centre of the appellant and all the defects pointed out in the vehicle were duly removed to the satisfaction of the complainant; that when the vehicle was brought for the first free service on 20.12.2010, it had run 800 kms. and at that time, no complaint was lodged by the complainant regarding noise from the engine of the vehicle and the meter not functioning properly; that on 22.03.2012, when the vehicle was brought to the service centre of the appellant, no complaint was lodged by the complainant; that thereafter the vehicle was not brought to the service centre of the appellant; that there is no manufacturing 3 defect in the vehicle and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 02.04.2013 in the above manner. Aggrieved by the said order, the appellant has filed the present appeal.
5. None appeared on behalf of respondent No. 2. We have heard the learned counsel for the appellant and respondent No. 1 - complainant and have also perused the record.
6. The complainant has alleged that soon after the purchase of the vehicle, noise started coming from the engine of the vehicle and the meter was not functioning properly and the vehicle also used to stop after a run of 10 kms. and despite the complaint being lodged with the appellant, the defects in the vehicle were not properly removed, which goes to show that there is manufacturing defect in the vehicle.
7. Learned counsel for the appellant stated that there is no manufacturing defect in the vehicle and whatever defects were pointed out by the complainant, the same were duly removed by the appellant to the entire satisfaction of the complainant and the complainant was fully satisfied with the work carried out in the vehicle and the District Forum has wrongly held that there is defect in the vehicle and wrongly directed the appellant to give a new vehicle to the complainant or in lieu thereof, to refund the cost of the vehicle to the complainant.
8. The vehicle was purchased by the complainant on 25.10.2010. The vehicle was brought to the service centre of the appellant for the 4 first free service on 20.12.2010 and the job card (Paper Nos. 37 to 38) shows that no complaint was lodged by the complainant regarding noise in the engine of the vehicle and the meter not functioning properly. The job card further shows that the complainant had taken the delivery of the vehicle after being fully satisfied with the work carried out in the vehicle and he has voluntarily signed the said endorsement made in the job card. The job card dated 20.12.2010 (Paper No. 39) also shows that the complainant was fully satisfied with the repairs done in the vehicle and the complainant has voluntarily signed the endorsement that the repairs were done according to his requirements and advice and to his full satisfaction. The papers on record show that thereafter the subject vehicle was taken to the service centre of the appellant on 22.03.2012 after a period of about 15 months', as is pleaded in the written statement and during the said period of 15 months', the vehicle was never taken to the service centre of the appellant for repairs or otherwise.
9. On 22.03.2012, when the vehicle was taken to the service centre of the appellant for fourth free service, no complaint regarding noise in the engine of the vehicle or the vehicle getting stopped was lodged. At that time, the vehicle had run 10,009 kms. At that time also, general repair work in the vehicle like oil change, oiling, battery charging etc. was carried out and no major defect in the vehicle was pointed out by the complainant. After the said service, the complainant had taken the delivery of the vehicle after being satisfied with the work carried out in the vehicle, as would be evident from the job card dated 22.03.2012 (Paper Nos. 40 to 41) and the endorsement made in the gate pass dated 22.03.2012 (Paper No. 42) further shows that the repairs in the vehicle were done to the entire satisfaction of the complainant.
510. It is a settled law that the complainant has to prove the manufacturing defect in the vehicle by adducing expert evidence in this regard. There is nothing on record what to say of any expert evidence to show that there is any manufacturing defect in the vehicle or any defect which is not curable and has not been cured by the appellant even after repairs in the vehicle. As is stated above, both the times when the vehicle was taken to the service centre of the appellant for first free service and fourth free service, no complaint regarding noise from the engine of the vehicle and meter not functioning properly and the vehicle getting stopped was lodged.
11. The complainant has not produced any evidence such as the expert evidence to prove that there was any defect in the vehicle. Learned counsel for the appellant cited a decision of the Hon'ble National Commission given in the case of Classic Automobiles Vs. Lila Nand Mishra and another; I (2010) CPJ 235 (NC), wherein the Hon'ble National Commission has laid down the law that onus to prove manufacturing defect in the vehicle lies on the complainant and further that expert evidence need to be produced to prove manufacturing defect in the vehicle. In the reported case, it was held that the vehicle having been repeatedly brought to service station for repairs, is no ground to hold that the vehicle suffered from manufacturing defect. Learned counsel for the appellant also cited another decision of the Hon'ble National Commission rendered in the case of Sukhvinder Singh Vs. Classic Automobile and another; I (2013) CPJ 47 (NC). In the said case, it was held that the report of expert was essential or some other evidence showing manufacturing defect should have been adduced. It was held that the mere fact that the vehicle was taken to service station for one or two times, does not ipso facto prove manufacturing defect. Learned counsel for the appellant further cited one more decision of the Hon'ble National 6 Commission in the case of Tata Engineering & Locomotive Co. Ltd. and others Vs. Bachchi Ram Dangwal and another; II (2009) CPJ 90 (NC). In the said case, no reliable expert evidence was produced to prove that there is manufacturing defect in the vehicle. It was held that there is no manufacturing defect in the vehicle.
12. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. As such, the appeal is fit to be allowed.
13. For the reasons aforesaid, appeal is allowed. Order impugned dated 02.04.2013 passed by the District Forum is set aside and consumer complaint No. 138 of 2012 is dismissed. No order as to costs.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K