State Consumer Disputes Redressal Commission
Sanjay Rastogi vs M/S Arsh Enterprises & Another on 2 September, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 148 / 2012
Sh. Sanjay Rastogi
Partner Deepak Traders, Kotdwar
......Appellant/ Complainant
Versus
1. M/s Arsh Enterprises
43, Gandhi Road, Dehradun
2. Managing Director
M/s Piaggio Vehicles Pvt. Ltd.
102 B Phoenix Bund Garden Road, Pune
......Respondents/ Opposite Parties
Appellant in person
Mr. Ajay Gupta, Learned Counsel for the Respondents
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. C.C. Pant, Member
Mrs. Kusumlata Sharma, Member
Dated: 02/09/2013
ORDER
(Per: Justice B.C. Kandpal, President):
This appeal, filed under Section 15 of the Consumer Protection Act, 1986, is directed against the order dated 21.02.2012 passed by the District Forum, Dehradun in consumer complaint No. 216 of 2008, whereby the District Forum has dismissed the consumer complaint.
2. The facts of the case, in brief, are that the complainant had purchased a vehicle (three-wheeler) on 26.07.2006 from M/s Arsh Enterprises, Dehradun - opposite party No. 1, who was the authorised dealer of M/s Piaggio Vehicles Pvt. Ltd., Pune - opposite party No. 2, the manufacturer of the said vehicle named "APE CARGO D 810 Delivery Van, 1.3 Tonner". The complainant has alleged that since the very first day of its purchase, when he was taking the vehicle from Dehradun to 2 Kotdwar, it started giving problem. He also found that the vehicle was not fit for plying in hill roads, though the manufacturer, i.e. opposite party No. 2, had claimed in its brochure that the said vehicle was powered by its superior engine and it can effortlessly climb gradients and hill roads with higher operating loads even at low speed. The complainant has alleged that he could not use the vehicle for delivery of goods in hill regions of District Pauri Garhwal. Even in the plains, he could not use the vehicle sufficiently, because he had to take the vehicle most frequently to the service centre for repair. His woes got further aggravated as the service centre in Kotdwar was closed after few days of the vehicle's purchase and he had to bring the vehicle every time to Dehradun for service and repair. Though the opposite party No. 1 claims that its service engineers visited Kotdwar every month, but the complainant's version is that the service engineers of the opposite party No. 1 never visited Kotdwar regularly and due to non-availability of regular service, the vehicle remained idle for most of the time. According to the complainant, the vehicle ran only 7,000 kms from the date of its purchase till 26.11.2008. The vehicle carried one year's warranty or trouble free run of 36,000 kms, whichever was less. Thus, alleging manufacturing defect in the vehicle, unfair trade practice and deficiency in service by the opposite parties, the complainant filed a consumer complaint before the District Forum on 01.12.2008, seeking a relief of Rs. 3,51,419/- and compensation @ Rs. 200/- per day for harassment, inconvenience, frustration, mental agony etc. The District Forum, after an appreciation of the facts of the case, dismissed the consumer complaint vide its order dated 14.10.2009. The complainant challenged the said order by filing an appeal under Section 15 of the Consumer Protection Act, 1986 before this Commission on 12.11.2009, which was registered as First Appeal No. 208 of 2009. This Commission vide its order dated 12.08.2010 passed in First Appeal No. 208 of 2009, allowed complainant's appeal and set aside the order dated 14.10.2009 passed by the District Forum and remanded the case back to the District Forum with the directions that the consumer complaint be decided afresh 3 in accordance with law in the light of the observations made in the order. The complainant was also directed to take steps for expert report within a period of 10 days. In compliance of these directions, the District Forum decided the consumer complaint vide its order dated 29.03.2011 and dismissed the consumer complaint on the ground that the complainant failed to take steps within 10 days and could not produce expert report with regard to the vehicle in question. The complainant again challenged the order dated 29.03.2011 and filed an appeal before this Commission, which was registered as First Appeal No. 71 of 2011. This Commission vide its order dated 05.12.2011 passed in First Appeal No. 71 of 2011, allowed the appeal and set aside the order dated 29.03.2011 passed by the District Forum. The case was again remanded back to the District Forum with the directions that the case be decided afresh after an appreciation of the evidences filed by the parties as per provisions under Section 13(2) of the Consumer Protection Act, 1986. The District Forum, in compliance of these directions, decided the consumer complaint vide its order dated 21.02.2012, whereby the consumer complaint has been dismissed. Aggrieved by the said order, the complainant has filed this appeal.
3. In this appeal, the arguments were heard on 23.04.2013 from both the sides and this Commission had fixed the matter for delivery of the judgment on 10.05.2013. Meantime, a letter was received from the appellant through registered post on 08.05.2013, requesting therein that the respondents be directed to submit their written arguments. However, keeping in view the satisfaction of the appellant, we directed the respondents to submit the written arguments. The learned counsel for the respondents filed the written arguments on 17.06.2013. The appellant has also sent the supplementary arguments through registered post on 07.08.2013.
4. We have heard the appellant in person again and also went through the written arguments filed by the parties.
45. We went through the impugned order and found that while recording its findings, the District Forum has complied with the directions given by this Commission in its judgment and order dated 05.12.2011. The District Forum has discussed each and every aspect of the case in its order and, therefore, we cannot say that the impugned order suffers from any legal or factual infirmity. But the appellant, instead of pointing out as to which of the facts and evidences were not appraised by the District Forum in a just and proper manner, has made serious allegations against the District Forum. In Para No. 13 of the appeal memo, the appellant has stated that-
"13--- --- --- The Distt. Forum detailing the history of the case has given its analysis which is protrader and manufacturer as against on merits."
6. Since the case is being pleaded by the appellant himself, we are not taking cognizance of this comment in a legal way but we advise the appellant that verdict of a court should be honoured and any grievance against the order should be challenged before the higher Court in a legal manner and not by making such allegations against the Court. We once again went through the consumer complaint filed by him before the District Forum on 01.12.2008. The grievances, as narrated in the consumer complaint, include that the delivery of the vehicle was not made in time. When the delivery was made, the rainy season was at its peak. This allegation against the respondents is very vague, because the complainant has not stated as to what was the waiting period for the delivery of the vehicle and how much delay was made. Similarly, in respect of running the vehicle in hill roads, there is no specific allegation against the respondents. Most of the information is based on appellant's personal knowledge and on the basis of his personal knowledge, it appears that he had an apprehension whether the vehicle can be plied in hill roads and, therefore, he wanted to confirm from the authorities as to whether the vehicle in question can be plied in hill roads or not. The 5 Transport Commissioner's letter confirms that the said vehicle is fit for plying in the roads of Uttarakhand State. If the vehicle was stopped by the police from plying it in hill roads, then the appellant should have immediately written to police authorities in this regard as to why his vehicle was being stopped, while the manufacturer has certified it fit for plying in hill roads and the Transport Commissioner has also endorsed the same. The appellant could not produce any such letter in support of the allegations made by him. He was given sufficient time and the case was remanded back twice, so that he could be helped in procuring a technical report in respect of manufacturing defect in the vehicle. If the appellant could not find out an appropriate laboratory, he could have atleast submitted a report prepared by some technical person. It is the settled principle of law that onus to prove the allegation is on the complainant and not on the opposite party against whom the allegation has been made. Once the complainant adduces any evidence in support of his consumer complaint, the burden to disprove the allegation gets transferred to the opposite party. But in the instant case, the complainant-appellant has made no such effort to collect the evidences against the opposite parties- respondents and, instead, he has referred to the various letters written by him, which are addressed to the Chief Minister, Transport Commissioner, Regional Transport Office etc. and has also referred to his personal knowledge in respect of vehicle's incompatibility for hill roads. The allegation in respect of closure of the service centre in Kotdwar has nothing to do with deficiency in service. The appellant could not show any such assurance given by the respondents that the service centres will be available at every place. In the State of Uttarakhand, we have seen people bringing their vehicles from remote hill districts to Dehradun for service and repair. If the service centre has been closed in Kotdwar, then the nearest service centre will provide the service. So far as the allegation in respect of non-availability of parts and accessories of the vehicle is concerned, the appellant should have procured a letter from the authorised dealers of the vehicle that the said parts of the vehicle are now not 6 available. The respondents have also denied this allegation and have stated that the production of three-wheeler was stopped, but the vehicle was upgraded to a four-wheeler and all the parts of the vehicle are available. If some frequent problems surfaced up during plying the vehicle, then these may not be directly attributed to some manufacturing defect in the vehicle, unless and until it is supported by some technical report. The appellant should have collected the opinion of other owners of the same vehicle in respect of its performance. If he was the only owner of the said vehicle in Kotdwar, then he should have consulted the owners of the same vehicle in other districts. Merely on the basis of the allegations made against the respondents, letters sent to different authorities and personal knowledge of the appellant, it cannot be concluded that the respondents had sold a defective vehicle to the appellant and had adopted unfair trade practice by making tall claims with regard to performance of the vehicle in its brochure and had committed deficiency in service by not providing satisfactory and regular servicing / repairing facility to the appellant. Therefore, in our opinion, the complainant - appellant has failed to prove the allegations made against the opposite parties - respondents. The District Forum has discussed all the points of the case in detail and the order is well discussed and does not call for any interference. Therefore, this appeal has no force and is liable to be dis.
missed.
7. Accordingly, the appeal is dismissed. Impugned order dated 21.02.2012 passed by the District Forum in consumer complaint No. 216 of 2008 is confirmed. No order as to costs.
(MRS. KUSUMLATA SHARMA) (C.C. PANT) (JUSTICE B.C. KANDPAL)