State Consumer Disputes Redressal Commission
Bosch Limited vs Dhaliwal Motors & Others on 12 March, 2015
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 832 of 2013
Date of institution: 2.8.2013
Date of Decision:12.3.2015
Bosch Limited, PB No. 3000, Hosur Road, Adugodi, Bangalore-560030,
through its authorized representative / Managing Director.
.....Appellant/Op No. 3
Versus
1. Dhaliwal Motors, Near Stadium, Thikriwaal Road, Barnala through its
authorized representative / Proprietor Manpreet Singh son of
Sudagar Singh, resident of Near Stadium, Thikriwaal Road, Barnala,
District Barnala.
...Respondent No.1/Complainant
2. Barnala Diesels, Dhanaula Road, Barnala through its Authorized
Representative / Managing Director.
3. Preetam Singh, Partner / Managing Director, Barnala Diesels
Dhanaula Road, Barnala.
.....Respondents No. 2 & 3/Op Nos. 1 & 2
First Appeal against the order dated 4.6.2013
passed by the District Consumer Disputes
Redressal Forum, Barnala.
Quorum:-
Shri Gurcharan Singh Saran, Presiding Judicial Member
Shri Jasbir Singh Gill, Member
Present:-
For the appellant : Sh. A.K. Bishnoi, Advocate
For respondent No. 1 : Sh. Gourav Sharma, Advocate
For respondent No. 2 : Ex.-parte.
2
FIRST APPEAL NO. 832 OF 2013
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/OP No. 3(hereinafter referred as "OP No. 3") has filed the present appeal against the order dated 4.6.2013 passed by the District Consumer Disputes Redressal Forum, Barnala (hereinafter referred as "the District Forum") in consumer complaint No.72 dated 7.3.2013 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as 'the complainant') was allowed with a direction to the Op to jointly and severally to refund a sum of Rs. 65,000/-, which the Ops received on the purchase of one Tyre Inflator machine bearing No. F002DG0A00 of Rs. 65,000/- vide bill No. 8966 dated 6.11.2012 alongwith interest @ 9% per annum from the date of receiving the amount till realization and also pay Rs. 5,000/- as compensation.
2. The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short 'the Act') against the opposite parties by alleging that Manpreet Singh, Diploma Holder in Electrical Engineering to earn his livelihood started a small time car wash station under the name and style of Dhaliwal Motors and Manpreet Singh is its Proprietor. Whereas complainant in order to start some ancillary services approached the OP for the purchase of smoke meter and on 8.10.2012 he purchased it bearing No. F002H32130 to check the pollution levels for diesel vehicles for a sum of Rs. 1,69,600/- vide bill No. 8894 dated 8.10.2012. On the same day he purchased one Exhaust Gas Analyser Sr. No. 3 FIRST APPEAL NO. 832 OF 2013 F002H32129 for a sum of Rs. 2,53,079/- vide bill No. 8895 dated 8.10.2012. He also purchased one Tyre Inflator machine No. F002DG0A00 for Rs. 65,000/- vide bill No. 8966 dated 6.11.2012 from Op No. 1 and these machines were installed in his Service Station. After 10-15 days of the purchase, one Executive of OP No. 1, namely, Vikas Tatreja came and gave the display of the machines. At that time, the Tyre Inflator was not working. The complainant asked to check its correctness and adjust accordingly. Executive had noted the defect "display not showing proper readings, nozzle needs to be replaced, display PCB also needs to be replaced". This problem was brought to the notice of the Op time and again but they did not rectify. Hence, the complaint with a direction that the Ops be directed to pay the cost of the machine alongwith compensation and litigation expenses.
3. Notice of the complaint was issued to the Ops. The Ops did not appeared and vide order dated 11.4.2013, they were proceeded ex-parte.
4. The complainant led his ex-parte evidence.
5. Apart from the affidavit of the complainant, he tendered his affidavit Ex. CW-1/A, bills Exs. C-1 & 2, certificate Ex. C-3, bill Ex. C-4, statement of A/c Ex. C-5, service report Ex. C-6.
6. After going through the allegations as alleged in the complaint, evidence and documents on the record, the complaint was allowed as referred above.
7. In the appeal, it has been contended that as per the version given by respondent No. 1/complainant, the Tyre Inflator 4 FIRST APPEAL NO. 832 OF 2013 machine had developed a snack within a period of 10-15 days and that the appellant had failed to rectify the defect. Except the Tyre Inflator, other machines were properly working and the defects were noted in the job card and the complainant was offered to change the defective parts, however, he was adamant for the refund of the cost of machine. In case there was some defect in any part and that it was not a manufacturing defect then refund of the entire payment to the complainant was not permissible under the law, therefore, the order so passed by the learned District Forum requires to be re-called.
8. Although the evidence led by the complainant before the District Forum was unrebutted as the OPs/appellant did not appear before the learned District Forum. Although the Ops may be ex-parte but it does not absolve the complainant onus to prove this case by leading sufficient evidence against the OP before the District Forum. The warranty conditions of the machine were not placed on the record. It is only one job card in which the observations have been made by the Executive of the Company:-
"display not showing proper readings, nozzle needs to be replaced, display PCB also need to be replaced"
9. In case any part is not properly working then according to the normal procedure, then those parts are to be replaced and not the entire machine. To support this contention, we have relied upon judgment of the Hon'ble Supreme Court I (2006) CPJ 3 (SC "Maruti Udyog Limited Vs. Susheel Kumar Gabgotra & others" and judgment of the Hon'ble National Commission reported as I (2009) CPJ 270 (NC) "Maruti Udyog Limited Vs. Atul Bharadwaj & others" wherein it 5 FIRST APPEAL NO. 832 OF 2013 was clearly held that the terms of warranty constitutes an agreement between the parties and are binding upon the parties and no provision for replacement of the vehicle or refund of the price. In view of the warranty terms, the owner of the vehicle is only entitled for free replacement of defective parts, if any.
10. However, the learned District Forum was not justified for the refund of the cost of the machine in favour of the complainant without appreciating the evidence on the record that there was a manufacturing defect in the machine. Therefore, the order so passed by the learned District Forum requires to be modified. The counsel for respondent No. 1 Mr. Gaurav Sharma, Advocate was unable to rebut the arguments so addressed by the counsel for the appellant.
11. In view of the above circumstances, the appeal filed by the appellant is accepted and the order so passed by the learned District Forum is modified with a direction to the Ops to replace the parts i.e. display PCB and the nozzle within a period of 30 days from the date of receipt of the order passed by this Commission. The warranty against these parts will commence from the date of replacement and will continue as if for the original machine. Other part of the order with regard to the compensation will remain the same.
12. The appellant had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. Out of this amount of Rs. 25,000/-, Rs. 5000/- with interest accrued thereon, if any, be remitted by the registry to respondent No.1 and remaining to 6 FIRST APPEAL NO. 832 OF 2013 the appellant by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.
13. The arguments in this appeal were heard on 2.3.2015 and the order was reserved. Now the order be communicated to the parties as per rules.
14. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
(Gurcharan Singh Saran)
Presiding Judicial Member
March 12, 2015. (Jasbir Singh Gill)
as Member