State Consumer Disputes Redressal Commission
Sandeep Sharma vs Aryan Motors Pvt. Ltd. on 23 November, 2021
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, CHANDIGARH.
First Appeal No.626 of 2019
Date of institution : 24.09.2019
Reserved on : 15.11.2021
Date of decision : 23.11.2021
Sandeep Sharma, son of Sh. Ashok Sharma, resident of H.No.A-584,
Ranjit Avenue, Amritsar. (M) 9463965239.
....Appellant/Complainant
Versus
1. Aryan Motors Pvt. Ltd., I-B, Court Road, Near IOC Petrol Pump,
Amritsar, through its Proprietor/Partner/Director/Authorised
Signatory/Person Over All Incharge.
2. Honda Motorcycle & Scooter India Pvt. Ltd., Zonal Office,
Mohali, Plot No.C 124, Eltop Area, Industrial Area, Phase 8,
Mohali, through its Proprietor/Partner/Director/Authorised
Signatory/Person Over All Incharge.
.....Respondents/Opposite Parties
First Appeal against the order dated
07.08.2019 passed by the District Consumer
Disputes Redressal Forum (now
'Commission'), Amritsar.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Mrs. Urvashi Agnihotri, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No Argued by:-
For the appellant : None
For the respondents : Sh. Munish Goel, Advocate for
Sh. K.P. Singh, Advocate
.................................................................................. JUSTICE DAYA CHAUDHARY, PRESIDENT Appellant/complainant Sandeep Sharma has approached this Commission by way of filing the present appeal under Section 15 First Appeal No.626 of 2019 2 of Consumer Protection Act, 1986 (in short 'The Act') to challenge the impugned order dated 07.08.2019 passed by the District Consumer Disputes Redressal Forum, Amritsar (herein after called as the "District Commission"), whereby his complaint had been dismissed.
2. The appellant/complainant filed a complaint under Sections 11 and 12 of the Act before the District Commission stating that he purchased one Honda Dream Yuga Bike bearing registration No.PB- 02/DD-2842 for an amount of Rs.31,733/- on 31.03.2017 from opposite party No.1 i.e. Aryan Motors Pvt. Ltd., Court Road, Near IOC Petrol Pump, Amrits and opposite party No.2 was the manufacturer i.e. Honda Motorcycle & Scooter India Pvt. Ltd., Zonal Office, Mohali. Some defects were noticed in the motorcycle i.e. low break, low pick up, clutch plates and motorcycle was not working properly. It was also mentioned that engine was raising some noise. Due to certain defects, the motorcycle was not working in good condition. A complaint was made to opposite party No.1, but there was no response. Thereafter, one more problem of switching off while driving the motorcycle was noticed. Various types of noises were also started to come due to which it was not possible to drive the said motorcycle in proper and effective manner. The said defects were brought to the notice of opposite party No.1 and an assurance was given to get it rectified, but still nothing was done. Thereafter, he served a legal notice, which was sent through registered post, but nothing was done. A prayer was made in the complaint either to replace the motorcycle or to refund the amount of Rs.31,733/- alongwith interest @12% per annum and also to pay compensation for mental harassment and litigation expenses. First Appeal No.626 of 2019 3
3. After considering the submissions raised by both the parties and their evidence, the said complaint was dismissed by the District Commission, vide order dated 07.08.2019, which is subject matter of challenge in the present appeal.
4. The version of the appellant is that from the very beginning the motorcycle was not in proper working condition because of low break, low pick up and defect in the clutch plates. There was problem of missing of the motorcycle as a lot of noise was coming. The motorcycle was not in good condition as on 19.06.2017 at only 612 kilometers and on 24.12.2017, the clutch plates were got damaged and which were replaced by OP No.1 twice. The appellant/complainant was asked to skip second free service, which was due on 31.07.2017 as the clutch plates were changed on 19.06.2017. An assurance was given to the complainant for proper working of the motorcycle, but still motorcycle was having the same defects which could not be rectified inspite of lapse of long sufficient time. The appellant/complainant suffered a loss not only financially but also caused mental harassment and he had to approach the District Commission due to which the litigation expenses had to be incurred. At the end, the appellant/complainant submitted that he is entitled not only for refund of the amount, which has been spent by him alongwith interest, but also for compensation as well as litigation expenses. He further pleaded that all these things have not been taken into consideration by the District Commission and without considering the submissions/arguments, the complaint was dismissed. First Appeal No.626 of 2019 4
5. Learned counsel for the respondents/opposite parties has opposed the pleadings of the appellant. He further submits that the order passed by the District Commission is well speaking as all the arguments raised by the appellant/complainant have been taken into consideration and detailed findings have been recorded. Learned counsel further submits that the complainant for the first time came to OP No.1 on 29.04.2017 and no defects, as alleged, were found. The complainant even did not come for second service, which was due on 31.07.2017. For the third time, the vehicle was brought to OP No.1 for 3rd service on 11.12.2017, whereas the same was due on 30.11.2017, and fender was changed as it was broken due to some collision and no defects were brought to the notice of OP No.1 on that day. Learned counsel also submits that vehicle was brought on 19.06.2017 and clutch plates were changed, which was a general repair, but no defect was lodged on that day. Learned counsel further submits that small wears and tears were not covered in the warranty and no expert evidence was produced by the complainant. As per mandate of Section 13(1)(c) of the Act as the onus was on him to prove the manufacturing defect, but nothing was brought to the notice of OP No.1. By summing up his arguments, learned counsel for the respondents/opposite parties submits that the appellant/complainant could not prove his case in absence of expert evidence to prove manufacturing defect. By considering all these facts, the complaint was rightly dismissed by the District Commission.
6. Heard arguments of learned counsel for the respondents/OPs. We have also perused the impugned order as well First Appeal No.626 of 2019 5 as other documents available on the file including written arguments of the parties. The facts relating to purchase of motorcycle against an amount of Rs.31,733/- with warranty period are not disputed. It is also an admitted fact that there were certain defects in the new motorcycle which was brought to the notice of OP No.1. The various defects including low break, low pickup and defective clutch plates due to which motorcycle was not working properly. It was also mentioned in the complaint that engine was giving various types of noise. It has also not disputed that OP No.1 made efforts to remove the defects, but there was no positive results as one more problem of missing of the vehicle was added due to which the motorcycle was not in condition to drive. On perusal of job cards, Ex.OP-1/3 to Ex.OP-1/5, it is apparent that the problems of low break, low pickup, low average and problem relating to clutch plates were brought to the notice of OP No.1. It has also not disputed that an assurance was given to get it rectified, but still motorcycle did not come in a condition so that it could be driven smoothly. Meaning thereby, the defects were not removed yet. It appears that it was a case of manufacturing defect, as from the very beginning the defects were noticed while driving the same, which were brought to the notice of OP No.1 from time to time, but OP No.1 failed to remove those defects and even after repairing and changing the clutch plates as well.
7. On perusal of written statement filed on behalf of OP No.1 before the District Commission, it is apparent that the motorcycle was brought by the complainant to OP No.1 on 19.06.2017 at 612 kilometers and clutch plates were changed. Again in the month of First Appeal No.626 of 2019 6 December, 2017, the clutch plates were also changed by OP No.1. However, it is stated to be general repair and wears & tears, which were not covered under warranty. The changes of clutch plates were stated to be due to negligence of the complainant but there are no remarks on the job cards that the defects were occurred due to negligence of the complainant. Simply by saying that no charges were charged from the complainant is not a ground to say that everything was good with the motorcycle and clutch plates. The submissions/stand taken up by the opposite parties that it was a case of wear and tear and changing of clutch plates have stated to be general repair by stating that no labour charges were charged for changing the clutch plates are not convincing and acceptable. Not to charge any amount of labour work while changing the clutch plates does not mean that there was no defect in the said motorcycle. The clutch plates have been changed on two occasions which is sufficient example to show that it was a case of 'deficiency in service' as it can safely be said to be a case of 'manufacturing defect'. Supplying of defective motorcycle to the complainant is a case of 'deficiency in service' and 'unfair trade practice'. Inspite of repeated repairs and after changing the clutch plates, the said defects persisted time and again. This action on the part of the respondents/opposite parties comes in the definition of 'deficiency in service' and 'unfair trade practice'.
8. Accordingly, we are of the considered view that the District Commission has not taken into consideration all the aspects and without recording any specific finding and that too without dealing with the allegations, the complaint has been dismissed, whereas all these First Appeal No.626 of 2019 7 issues should have been discussed at length after proper appreciation of evidence while dismissing the complaint of the appellant/complainant.
9. Keeping in view the facts that the motorcycle had the defects from the very beginning, which could not be removed for using the same on the road. Meaning thereby the motorcycle has not been used properly in a long sufficient time. All these defects were noticed during the period of warranty and free services, but still motorcycle could not be made for using on the road. Accordingly, by considering the facts and circumstances as explained above, the appeal is allowed and the impugned order dated 07.08.2019 passed by the District Commission is set aside with the following directions to the respondents/OPs:
(i) to replace the Honda Dream Yuga Bike of the same model and make and to pay compensation of Rs.20,000/-;
or
(ii) to refund the amount of Rs.31,733/- with interest @ 9% per annum from the date of filing the complaint till realization; and
(iii) to pay litigation expenses to the tune of Rs.15,000/-. The compliance of the order be made within a period of six weeks from the date of receipt of certified copy of the order.
10. The appeal could not be decided within the stipulated First Appeal No.626 of 2019 8 period due to heavy pendency of Court cases and non-sitting of this Commission due to pandemic of Covid-19.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (URVASHI AGNIHOTRI) November 23, 2021. MEMBER MM