State Consumer Disputes Redressal Commission
M/S Vrindavan Autos vs Naresh Kumar Singla on 7 May, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1502 of 2011
Date of Institution: 12.10.2011.
Date of Decision: 07.05.2015.
1. M/s Vrindavan Autos, Near Shiv Vatika Colony, Sanghera
Road, Barnala through its partners (i) Surinder Kumar Mittal,
(ii) Atul Kumar Gupta, (iii) Sunil Kumar (Kuka) and (iv) Vinod
Kumar Singla.
2. LML Ltd. Registered Office C-10, Panki Industrial Estate,
Kanpur 209022 through its Managing Director.
.....Appellants/opposite parties
Versus
Naresh Kumar Singla, Advocate, son of Shri Hans Raj, Resident of
#B-XIII/1465, Shaheed Bhagat Singh Nagar, Barnala, District
Barnala.
....Respondent/complainant
First appeal against order dated
15.09.2011 passed by the District
Consumer Disputes Redressal
Forum, Barnala.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Shri H.S. Guram, Member.
Present:-
For the appellants : Sh. Deepak Aggarwal, Advocate For respondent : Sh. Gurpreet Singh, Advocate .............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellants of this appeal (the opposite parties in the complaint) have directed this appeal against the respondent of this First Appeal No.1502 of 2011 2 appeal (the complainant in the complaint), assailing order dated 15.09.2011 of District Consumer Disputes Redressal Forum Barnala (in short, "the District Forum"), accepting the complaint of the complainant and directing the OPs to refund the entire price of the scooter i.e.40,500/- alongwith Rs.2000/- as registration fee to the complainant and Rs.25,000/- as compensation for mental harassment. The instant appeal has been preferred against the same by the OPs, now appellants.
2. The complainant Naresh Kumar Singla has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short "Act") against the OPs on the averments that he purchased one new NV Spl powered by Xpress 5 two stroke scooter bearing engine no.E16833113524, Chasis no.MD711EABJB3584493 manufactured by OP no.2 for price of Rs.40,500/-. There was a warranty for a period of one year or a run of 10,000 KMs and warranty on the electronic parts was for a period of 5 years or a run of 50,000/- KMs of the scooter. Within 30 days period from the purchase of scooter on 12.04.2011, when it was driven upto 300 KMs only, the complainant got the first service effected thereon from OP no.1. OP no.1 assured the complainant that the manufacturing defect therein has been removed. Despite first service of the scooter by OP no.1, the scooter continued giving the same trouble, as before. After 2-3 days, the complainant approached OP no.1 First Appeal No.1502 of 2011 3 intimating him about the manufacturing defect. OP no.1 changed some part of the said scooter, assuring the complainant that scooter would give the trouble free service henceforward. The manufacturing defect in the scooter was not removed by OP no.1, vide service effected in it. OP no.1 refused to exchange the said scooter with a new one on the ground that it was having no manufacturing defect. OP no.1 took the said scooter from the house of the complainant on 13.05.2011 assuring that it would be delivered in three days after setting it right. OP no.1 failed to deliver the scooter or to remove the manufacturing defect in it. On 18.05.2011, the complainant visited OP no.1 and he found that his scooter was lying dismantled thereat. The complainant then took the photographs of the dismantled scooter on his mobile phone. It was ridden upto 662 KMs by then. The complainant has, thus, filed the complaint directing the OPs to pay the price of the scooter Rs.42,500/- inclusive Rs.2000/- on account of expenses incurred by the complainant, besides the amount of Rs.40,000/- as compensation for mental harassment and Rs.10,000/- as litigation expenses.
3. Upon notice, OPs appeared and filed written reply and contested the complaint of the complainant. It was averred in legal objections by the OPs that complainant has no cause of action or locus standi to file the complaint. The complainant is estopped by his own act and conduct from filing the complaint. The complaint is First Appeal No.1502 of 2011 4 alleged to be bad for mis-joinder and non-joinder of necessary parties. It was further averred that complainant has not impleaded correct partners/firms in this complaint. OP no.1 is the authorized dealer of sale, service and buyers of all range of LML two wheelers at Barnala. First service was carried out of the scooter to the entire satisfaction of the complainant on 12.04.2011 at 300 KMs run of scooter. On 19.05.2011, the engineer of the manufacturer company visited at Barnala and checked the scooter and found minor problem in the electrical wiring harness thereof. He replaced the electrical wiring harness in the presence of complainant and checked the scooter and found it to be in perfect condition. The complainant also found it in good condition to his satisfaction after replacement of electrical wiring harness thereof. No other manufacturing defect, as alleged by complainant was admitted by the OPs in the scooter. The OPs controverted the averments of the complainant with regard to his entitlement to any refund of the price of scooter and thus prayed for the dismissal of the complaint.
4. OP no.2 filed its separate written reply and contested the complaint of the complainant by raising legal objections that complainant has no cause of action and locus standi to file the complaint. The complainant is estopped by his own act and conduct from filing the complaint. On merits, OP no.2 pleaded that most of the averments needed no reply. It is further averred in the written First Appeal No.1502 of 2011 5 reply that Chander Mani, the service engineer of manufacturing company visited at Barnala and checked the scooter and found minor wire connection problem therein, which was loose and set it in order and thereafter the scooter was in good condition to the entire satisfaction of the complainant. OP no.2 denied any manufacturing defect in the scooter, manufactured by it. It controverted the other averments regarding his entitlement to any refund price of the scooter. It prayed for the dismissal of the complaint.
4. The complainant tendered in evidence Ex.C-1, the copy of registration certificate alongwith documents Ex.C-2 to Ex.C-9 and closed the evidence. As against it, OP no.1 tendered in evidence, the affidavit of S.K. Mittal Ex.RW-1, affidavit of Chander Mani Ex.RW-2 alongwith documents Ex.RW-3 to RW-5 and Ex.R-1 to Ex.R-9 and closed the evidence thereafter. On conclusion of evidence and arguments, the District Forum Barnala accepted the complaint of the complainant. Dissatisfied with the above order, OPs, now appellants have preferred this appeal against the same.
5. We have heard the learned counsel for the parties and have also examined the record of the case. Evidence is required to be examined by us on the record to determine the controversy in this case. Ex.C-1 is the copy of the registration certificate of the scooter in favour of the complainant. Ex.C-2 is the insurance cover note in the name of the complainant of the scooter. Ex.C-3 is copy of the First Appeal No.1502 of 2011 6 first free service record of the scooter. The service is recorded to be carried out on 12.04.2011 in it. Ex.C-4 to C-6, are photographs of dismantled scooter in question. As per the case on the record of the complainant to the effect that his scooter was lying dismantled and he took the photographs of his dismantled scooter. Ex.C-7 of is the document of the OP. Ex.C-8 is the affidavit of Naresh Kumar Singla complainant on the record in support of his pleas, as taken in the complaint. The complainant deposed on oath that he purchased the scooter for price. He further stated that there is manufacturing defect, which was brought to the notice of OP no.1 on a number of times. The minor repairs were done in the scooter by the OPs, but the defect therein was not removed. On 12.04.2011, the scooter plied 300 KMs only and the complainant got first free service of the scooter effected, as per record Ex.C-3. He further stated that there was manufacturing defect in the scooter and OPs declined to refund the price thereof to him. He further stated that on 18.05.2011, when complainant went at the shop of OP no.1, he found his scooter dismantled thereat and he took the photographs thereof and scooter was run 662 KMS by that time. OP no.2 being the manufacturer of scooter and OP no.1 being the authorized dealer has to refund the price of the scooter to the complainant. The complainant placed on record his amended affidavit Ex.C-9 as well. The counter affidavit of S.K. Mittal partner of M/s Varindaban Autos Ex.RW-1 is on the record to the effect that complainant purchased new NV Special First Appeal No.1502 of 2011 7 Scooter on 14.03.2011 from OP no.1 for a price of Rs.40,500/-. He stated in this affidavit that warranty was upto one year or for 10,000 KMs. He further stated that complainant has not complained of any problem in the scooter. He further stated that on 18.05.2011, the complainant reported there was some missing problem in the scooter. The service engineer Sh. Chander Mani was called, who examined the scooter and found some wiring connection problem in it and he set it right. Any manufacturing defect in the scooter was totally denied by the OPs. Ex.RW-2 is the affidavit of the Engineer Chander Mani on the record to the effect that he replaced the complete wiring harness of the scooter and set it right. He further stated that there was only some wiring connection problem in the scooter, which was set right. Any manufacturing defect was totally denied by the OPs in the scooter in question in this case.
6. From perusal of record and hearing the submissions of counsel for the parties, we find that it was for the complainant to prove that there was some manufacturing defect in the scooter. No expert witness has been examined by the complainant on the record to establish this fact. The counsel for the complainant relied upon law laid down in "Hind Motor (I) Ltd. & others vs. Lakhbir Singh & others" reported in 2014(1) CLT 340-341 by the National Commission. We have examined this authority and it has been observed in this authority that the required substantial repairs within First Appeal No.1502 of 2011 8 8 months costing Rs.2.25 lakh, which proved inherent defect in the vehicle. The said authority would not be applicable in this case in view of sworn testimony of service engineer of the OPs. Only wiring problem in the harness of the scooter being loose was found by the service engineer and he set it right. Even otherwise, the scooter was in warranty period issued by OP no.2. The Apex Court has held in "Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Anr." reported in 2006(II) CPJ, that in the matter of manufacturing defect in the vehicle, defect continued even on first service. Downing of engine necessary to trace problem. The Apex Court has held that obligation of respondents under warranty is only to repair or replace any part found to be defective. Necessary repairs and replacement of components carried out free of charges during warranty period. The Apex Court has held that High Court was not justified in directing replacement of entire vehicle. Replacement of defective part i.e. clutches assembly directed. On the basis of law laid down by the Apex Court in the above referred authority and in the absence of any expert bodies report on the side of the complainant that there was manufacturing defect in the scooter, we find that as per the ratio of law laid down by Apex Court in above referred authority, the scooter was under warranty, therefore, the OPs was under obligation only to repair or replace any part found to be defective in it. The National Commission has also held in "Suresh Chand Jain Vs. Service Engineer and Sales Supervisor, M.R.F. Ltd., and Anr." First Appeal No.1502 of 2011 9 reported in 2011(I) CPJ-63 (NC), that OP appointed technical service engineer. Cut in tyre can be due to negligent driving, but cannot be manufacturing defect. No expert evidence was led by the complainant to prove the manufacturing defect in the scooter. We further rely upon law laid down by the National Commission in "Maruti Udyog Ltd. Vs. Casino Dias & Anr." reported in 2009(IV) CPJ-144 (NC) to the effect that complainant abandoned vehicle although vehicle properly attended during warranty. The complainant adamant throughout with predetermined mind to get replacement of vehicle. Consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect. Order directing replacement of vehicle set aside. Petitioners directed to make the vehicle road worthy and free of defects. We also rely upon law laid down in "Seema Gandhi Vs. Maruti Suzuki India Ltd. & ors." reported in 2011(3) CPR-150-151 by the National Commission to the effect complainant chose not to examine any expert to prove manufacturing defect nor made any request to Consumer Forum for appointing technical expert in that behalf. Order of State Commission reducing compensation cannot be faulted with.
7. In view of our above said findings, we have come to this conclusion that the District Forum straightway ordered the refund of the price of the scooter to the complainant without any expert evidence on the record by the complainant proving manufacturing First Appeal No.1502 of 2011 10 defect in the scooter. Consequently, the order of the District Forum is modified in this appeal by directing that OPs to replace the defective parts of the scooter and thereby set the scooter road worthy to the entire satisfaction of the complainant, as per the warranty period. We maintain the order of the District Forum regarding the compensation of Rs.25,000/- for mental harassment in the appeal and also award the amount of Rs.4000/- as costs of litigation to the complainant.
8. In the light of our above discussion, the order of the District Forum dated 15.09.2011 is modified by directing the OPs to replace the defective parts in the scooter and set it road worthy to the entire satisfaction of the complainant. Whereas, we maintain the order of the District Forum on the point of quantum of compensation for mental harassment and we further award costs of litigation as referred to above.
9. The appellant had deposited the amount of Rs.25,000/- with this Commission at the time of filing the appeal. Out of above amount of Rs.25,000/- plus interest, which accrued thereupon, an amount of Rs.29,000/- (Rs.25,000/- compensation for mental harassment + Rs.4000/- costs of litigation), be remitted by the registry to the complainant, now respondent, by way of a crossed cheque/demand draft after the expiry of 45 days and remaining amount be remitted by the registry to the appellant no.1, by way of a crossed cheque/demand draft after the expiry of 45 days. First Appeal No.1502 of 2011 11
10. Arguments in this appeal were heard on 30.04.2015 and the order was reserved. Now the order be communicated to the parties.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (VINOD KUMAR GUPTA) MEMBER (H.S. GURAM) MEMBER May , 2015.
(MM)