State Consumer Disputes Redressal Commission
Bhoop Singh vs 1. Swami Auto Bikes Pvt. Ltd., on 7 November, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 483 of 2013 Date of Institution : 06/11/2013 Date of Decision ; 07/11/2013 Bhoop Singh son of Sh. Jagan Nath, resident of House No.612, New Indira Colony, Mani Majra, Chandigarh. Appellant/Complainant V e r s u s 1. Swami Auto Bikes Pvt. Ltd., Regd. Office Plot No.32, Industrial Area, Phase-1, Chandigarh. 2. Swami Auto Bikes Pvt. Ltd., Work Off Plot No.5, Industrial Area, Phase-1, Chandigarh. 3. Suzuki Motorcycle India Private Limited, Village Kherki Dhaula, Dadshahapur, NH-8 Link Road, Gurgaon (Haryana). ....Respondents/Opposite Parties Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MR. DEV RAJ, MEMBER.
Argued by: Sh. Ajay Singh Parmar, Advocate for the appellant.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 30.09.2013, rendered by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now appellant) and directed the Opposite Parties (now respondents), as under:-
In view of the above discussion, we are of the considered opinion that the present complaint deserves to succeed and the same is accordingly allowed. The opposite parties are directed as under :-
i) to replace the defective battery of the motorcycle in question with a new one to the satisfaction of the complainant.
ii) to pay a sum of Rs.7,000/- as compensation for mental agony and harassment caused to the complainant.
iii) to pay Rs.5,000/- as costs of litigation.
This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amount at Sr.No.(ii) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.
2. The facts, in brief, are that, on 16.02.2010, the complainant purchased a motorcycle (Suzuki ZEUS Drum XU) from Opposite Parties No.1 and 2, authorized dealer of Opposite Party No.3, for a sum of Rs.38,846/-. It was stated that the said motorcycle, was equipped with all the accessories, including Exide battery, having warranty of 2 years, from the date of sale or first 30,000 kms, whichever event occurred earlier. The complainant got done regular services of the motorcycle, from the authorized Service Centre of Opposite Party No.1. According to the complainant, since the date of purchase of the motorcycle, it was suffering from the problem of non-functioning of the battery. Therefore, the battery was once changed, on 17.09.2010, vide job card Annexure C-5. However, even the replaced battery did not work and the complainant again approached the Service Centre of the Opposite Parties, but to no avail. In the year 2011, the complainant also purchased a new battery, from the market, but the same also did not function properly. The complainant again approached the Opposite Parties, whereupon, complete inspection of the vehicle, in question, was got done at Select X Technical Services, Swastik Vihar, Mansa Devi Complex, Panchkula, on 24.04.2011, but no manufacturing defect was found therein. It was further stated that, left with no alternative, the complainant again purchased a new battery, from the market, on 10.04.2012. It was further stated that since the battery of the motorcycle, in question, was not functioning properly, it could be said that it (motorcycle) was suffering from inherent manufacturing defects. The complainant asked the Opposite Parties, to replace the motorcycle, with a new one, but they failed to do so. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to replace the defective motorcycle, with a new one; pay compensation, to the tune of Rs.30,000/-, for mental agony, physical harassment, deficiency, in rendering service, and adopting unfair trade practice; and cost of litigation, to the tune of Rs.15,000/-.
3. Opposite Parties No.1 and 2, in their joint written version, admitted the purchase of motorcycle, in question, by the complainant, from them. It was also admitted that the complainant was provided with the Warranty Registration Card and Battery Registration Card, in respect of the motorcycle, in question. It was stated that, as and when the complainant came for regular routine services of the said motorcycle, he did not make any complaint, with regard to any defect therein. It was further stated that, on 25.04.2011, for the first time, the complainant made a complaint, with regard to non-functioning of the battery of the said motorcycle, but upon checking, no problem was found therein. It was further stated that, thereafter, the motorcycle, was handed over to the satisfaction of the complainant. It was further stated that, for the satisfaction of the complainant, Opposite Parties No.1 and 2, assisted him, in getting the battery replaced, on 17.09.2010, from its (battery) manufacturer i.e. Exide Pvt. Ltd. It was denied that the complainant was referred to Select X Technical Services, Mansa Devi Complex, for inspection of the motorcycle, in question. It was also denied that the motorcycle, in question, suffered from any inherent manufacturing defects. It was further stated that neither there was any deficiency, in rendering service, on the part of Opposite Parties No.1 and 2, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
4. Opposite Party No.3, in its separate written version, took up the similar pleas, as were taken by Opposite Parties No.1 and 2, in their written version. It was stated that neither there was any deficiency, in rendering service, on the part of Opposite Party No.3, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The Parties led evidence, in support of their case.
6. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening para of the instant order.
7. Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant, for modification of the order impugned, as per the relief claimed by him, in the Consumer Complaint bearing No.353 of 2012.
8. We have heard the Counsel for the appellant, at the preliminary stage, and, have gone through the evidence, and record of the case, carefully.
9. The Counsel for the appellant/complainant, submitted that, right from the very beginning of purchase of the motorcycle, in question, from the Opposite Parties, the same was suffering from one or the other defects. He further submitted that the battery of the said motorcycle was not functioning properly. He further submitted that since the battery, after replacement thereof, was also not functioning properly, it was sufficient to prove that there were inherent manufacturing defects, in the motorcycle, in question. He further submitted that, in the reply, the version of the Opposite Parties, was to the effect that the motorcycle, in question, was self-start model, whereas, in the affidavit, submitted by the Opposite Parties, it was stated that it was a kick start model. He further submitted that, as such, a wrong affidavit was filed by the Opposite Parties. He further submitted that since the motorcycle, in question, was suffering from inherent manufacturing defects, the District Forum was required to direct the Opposite Parties, to replace the same, but it failed to do so. He further submitted that the order of the District Forum, thus, requires modification.
10. After giving our thoughtful consideration, to the contentions, advanced by the Counsel for the appellant, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, for the reasons, to be recorded hereinafter. First coming to the contention of the Counsel for the appellant/complainant, that the motorcycle, in question, was suffering from inherent manufacturing defects, it may be stated here, that no expert evidence was produced by the complainant, to prove this factum. In the absence of any expert evidence, having been produced by the complainant, by no stretch of imagination, the assertion made by him (complainant), in his complaint, in this regard, duly supported by his affidavit, could be said to be sufficient to prove that the said motorcycle was actually suffering from inherent manufacturing defects. The main grievance of the complainant was that the battery of the said motorcycle was not functioning properly, even after its replacement. The mere fact that the battery of the motorcycle, in question, was not working properly, did not mean that there were inherent manufacturing defects, in the same (motorcycle). The motorcycle, in question, was purchased on 16.02.2010, and the complainant used the same, upto 30.08.2011, i.e. upto 9th service, when it had already covered a distance of 9183 kilometers, as is evident, from the record. Had the motorcycle, been suffering from inherent manufacturing defects, it would not have been possible for the complainant, to use the same so extensively, as to cover 9183 kilometers upto 30.08.2011. All these factors clearly proved that the motorcycle, in question, was not suffering from any inherent manufacturing defect. Under these circumstances, the question of issuance of direction for replacement of the motorcycle, with a new one, by the District Forum, did not at all arise. The District Forum was right, in not giving such a direction.
11. The next question, that falls for consideration, is, as to whether, in such circumstances, the relief, with regard to the replacement of battery, could be given or not. In Jose Philip Mampilli Vs. Premier Automobiles Ltd., & another 2004 (1) CPC 438 (S.C.) and Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr. (JT 2006 (4) SC 113), the principle of law, laid down, was to the effect that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced, under warranty. Similar principle of law, was laid down in Chandeshwar Kumar Vs. Tata Engineering Loco Motive Co. Ltd. & Anr., I (2007) CPJ 2 (NC), M/s E.I.D. Parry (India Ltd.) Vs. Baby Benjamin Thushara, I (1992) CPJ 279 (NC), a case decided by a Four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd., Vs. Dr. Birendra Narain Prasad and Ors. III (2010) CPJ 130 (NC). Keeping in view, the principle of law, laid down, in the aforesaid cases, it is held that if the Consumer Fora, comes to the conclusion that the relief of replacement prayed for, could not be granted, as per the facts and circumstances of the case, and evidence produced, on record, then certainly the direction for repair of the motorcycle and replacement of defective parts, if any, could be given.
12. No doubt, right from the beginning, when the complainant purchased the motorcycle, in question, according to him, he found that the battery of the same, did not function properly. Annexures R-3 to R-10, are the job cards dated 11.03.2010, 19.05.2010, 02.7.2010, 01.09.2010, 12.01.2011, 25.04.2011, 29.06.2011 and 29.07.2011, respectively. In all these job cards, under the heading complaints/observations the words battery check are found mentioned. It may be stated here that every time, when the complainant took the motorcycle, to the workshop of the Opposite Parties, he made a complaint, with regard to defect, in the battery. Admittedly, the battery was changed on 17.09.2010, i.e. during the warranty period, without charging anything from the complainant. Even, from the job cards, referred to above, it is evident that after the replacement of battery, on 17.09.2010, again it was not functioning properly, and the motorcycle was taken to the workshop of the Opposite Parties, alteast four times, for replacement of the same (battery).
Under these circumstances, the District Forum was right, in holding that the battery even after replacement, was defective, as it was not functioning properly. The District Forum, was, thus, right in holding that the Opposite Parties were deficient, in that regard.
13. It may be stated here that the Opposite Parties, in their written version stated that the vehicle was a self-start model and needed to be started by using the kick, atleast once a day. It was further stated by the Opposite Parties that the complainant told them that he was not using the motorcycle regularly and even did not start it daily for sometime. It was further stated that if the vehicle is not used regularly and is kept parked for many days, at a stretch, without even being started daily, the battery gets lower in power. In such an eventuality, since the vehicle has a battery start option, the battery gets low, if started without kick. Similar plea was reflected in the affidavit submitted by Opposite Parties No.1 and 2. It, therefore, by no stretch of imagination, could be said that the affidavit filed by Opposite Parties No.1 and 2 was false.
14. No other point, was urged, by the Counsel for the appellant/complainant.
15. In view of the above discussion, it is held that the order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission.
16. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld.
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion Pronounced.
07/11/2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
(DEV RAJ) MEMBER Rg