State Consumer Disputes Redressal Commission
Ritesh Kumar vs Honda Motor Cycle & Scooter India Pvt. ... on 16 October, 2024
STATE CONSUMER DISPUTES REDRESSAL COMMISSION
PUNJAB, DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.304 of 2023
Date of Institution : 09.05.2023
Reserved on : 27.09.2024
Date of Decision : 16.10.2024
Ritesh Kumar S/o Sh. Bhola Ram, R/o Plot No.58, New Shakti Vihar,
Pehalwan Dera, Haibowal Kalan, District Ludhiana.
........Appellant/Complainant
Versus
1. Honda Motor Cycle & Scooter India Private Limited,
Commercial Complex-II, Sector 49-50, Gold Course, Extension
Road, Gurgaon (Haryana)-122018, through its General
Manager.
2. M/s Sarvpriya Honda, Sandhu Tower, Ferozepur Road,
Ludhiana-141001, through its Owner/Manager/Authorized
Signatory.
.....Respondents/Opposite Parties
Appeal under Section 41 of the Consumer
Protection Act, 2019 to challenge the
order dated 11.04.2023 passed by the
District Consumer Disputes Redressal
Commission, Ludhiana in C.C. No.75 of
2020.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Present:-
For the Appellant : Sh. Atul Goyal, Advocate 2 First Appeal No.304 of 2023 For the Respondents : Sh. Abhishek Sharma, Advocate
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 JUSTICE DAYA CHAUDHARY, PRESIDENT:-
The Appellant/Complainant Ritesh Kumar, being aggrieved by the order dated 11.04.2023 passed by the District Consumer Disputes Redressal Commission, Ludhiana in C.C. No.75 of 2020, has filed the present Appeal under Section 41 of the Consumer Protection Act, 2019, (in short the 'Act') for setting aside the impugned order whereby Complaint filed by him was dismissed.
2. Briefly, the facts of the case of the Complainant as made out in the Complaint filed before the District Commission are that the Complainant had visited the OP No.2 and on persistence of representative of OP No.2, he purchased 125 CC Activa Scooter instead of 100 CC in the name of his wife. The old Activa of the Complainant was taken by OP No.2 in exchange @ Rs.13,000/- and the Complainant had paid Rs.7000/- in cash. The price of 125 CC Activa Scooter was Rs.82,500/- including the registration charges, high security number plate charges, DTO fee and full insurance for five years. OP No.2 got arranged the loan amount of Rs.64,500/- (including fee of Rs.2000/-) for the Complainant, which was directly disbursed to OP No.2 for delivery of showroom demo piece of Activa Scooter 125 CC to the Complainant whereas the Complainant was 3 First Appeal No.304 of 2023 not ready to take the delivery of demo piece but the Complainant had no option except to accept the same. It was further averred in the Complaint that from the very first day, said Activa had started giving trouble of irritating noise from the front side, back side as well as from engine. The Complainant lodged the complaint with OP No.2 on a number of occasions and also at the time of first and second service, but OP No.2 did not bother for the same. Further, the self of said Activa had failed to respond and kick was also locked. The Mechanic of OP No.2 came to the House of the Complainant and told for repair but no effect thereof. Ultimately, OP No.2 had taken Activa through toeing van and the Activa remained with OP No.2. The Complainant had served a legal notice upon OP which was replied by OP No.2 vide letter dated 10.01.2020 by mentioning that there was minor defect and the same had been removed. The Complainant had alleged 'deficiency in service' on the part of OP No.2 as a defective piece had been sold to him. The Complaint was filed with the following prayer:-
"OPs be directed to replace the defective activa scooter with new one and to pay Rs.1,00,000/- as compensation besides Rs.11,000/- as litigation expenses."
3. Upon issuing notice, OPs had appeared through Counsel and filed their separate written versions.
4. OP No.1 filed written reply by raising certain preliminary objections that the Complainant had concealed the true and correct facts and had not approach with clean hands; the District 4 First Appeal No.304 of 2023 Commission had no jurisdiction to try the Complaint. The Complaint was a gross abuse of process of law. It was also submitted in written reply that the scooter was in perfect running condition and there was no defect as alleged by the Complainant. On 17.12.2019, the Complainant lodged the Complaint with OP No.2 that his scooter was not starting and accordingly OP No.2 had sent a service pickup van at the house of the Complainant to pick up the scooter for repairs. The job sheet dated 17.12.2019 was issued. OP No.2 at its workshop had also checked the scooter and found that carburetor was chocked. It was cleaned and some other minor problems of 'moulding side stand loose and noise' were also rectified. The repair/rectification was done free of cost as the scooter was under the warranty period, but the Complainant did not turn up to take back his scooter despite call made by OP No.2. The Complainant had served a legal notice dated 21.12.2019 with false allegations to which OP had replied vide letter dated 10.01.2020 requesting the Complainant to take back his rectified scooter but he did not bother to check his scooter and to take the delivery. Letters dated 22.01.2020 and 20.02.2020 were also written by OP No.2 to the Complainant to take back his scooter but he did not take the delivery of the scooter and by taking benefit of his own wrong he filed the Complaint by concealing certain material facts. No such assurance was given by OP No.1 to replace the scooter. As and when Complainant had brought his scooter for free service, it was done by attending. The OPs were also ready to provide further service to the scooter in question as per warranty 5 First Appeal No.304 of 2023 terms and conditions. No expert report was produced on record by the Complainant. On merits also OP No.1 had reiterated the same version as averred above. OP No.1 had denied that there was any deficiency in service and had prayed for dismissal of the complaint.
5. OP No.2 had filed separate written statement and had also raised similar objection as raised by OP No.1 in his written reply. The scooter in question was mishandled by the Complainant leading to the carburetor getting chocked due to which the scooter was not started. No such assurance to replace the scooter was ever given by OP No.2 as it was under the warranty period and the Complainant could not claim more than what he had agreed. The Complainant had neither alleged any manufacturing defect or inferior quality of the specific part of the product nor brought on record any documentary evidence i.e. authenticated report of expert by qualified person of central approved laboratories. In the absence of the same, the claim was not allowed. Denying the other averments of the Complaint, it was prayed for dismissal of Complaint.
6. By considering the averments made in the Complaint and reply thereof and also on hearing the oral arguments raised from both the parties, the Complaint filed by the Complainant was dismissed vide order dated 11.04.2023. The relevant part of the order dated 11.04.2023 as mentioned in para No.9 is reproduced as under:-
"9. As a result of above discussion, the Complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the 6 First Appeal No.304 of 2023 parties free of costs as pr rules. File be indexed and consigned to record room."
7. Being aggrieved by the order dated 11.04.2023 passed by the District Commission, the Appellant/Complainant has filed the Appeal before this Commission by raising a number of grounds.
8. Mr. Atul Goyal Advocate, learned Counsel for the Appellant has vehemently submitted that the District Commission had not taken into consideration the Email dated 06.07.2019 (Ex.C-5) sent by the Appellant/Complainant to OPs complaining about the problems faced by him in the said Activa. The Email has been placed on the record as Annexure A-3 which shows that the Complainant was aggrieved from the very beginning. The District Commission had also ignored the public notice dated 02.08.2019 (Ex.C-18) issued by OP No.1 to the public at large, whereby the OP No.1 had recalled some of its models manufactured during the period w.e.f. 04.02.2019 to 03.07.2019 for replacement of certain parts. The Model of Activa of the Complainant was of the said period as is clear from R.C. (Ex.C-3) but the District Commission had not taken into consideration this material fact while deciding the Complaint. The District Commission has also ignored the job card (Ex.R-1) wherein the Complainant had mentioned all the problems faced by him. Learned Counsel has also submitted that the District Commission had ignored the material fact that the said Activa was in such a condition, that OP No.2 had to towed it to service centre. This fact proves that there was some serious and manufacturing defect. OP No.1 had also admitted in reply 7 First Appeal No.304 of 2023 that by visiting the Mechanic could not rectify the defect/problem at home of the Complainant and the same had to be taken to workshop for proper repair. Learned Counsel has further submitted that the District Commission had failed to consider that OP No.2 had taken 25 days for repair of the Activa and informed the Complainant for the first time vide letter dated 10.01.2020 to take back the vehicle and he replied the same vide reply dated 17.01.2020. Learned Counsel has further submitted that Complainant was constrained to buy a new scooter manufactured by the TVS Company vide invoice dated 11.01.2020 (Ex.C-14). At the end, learned Counsel has submitted that the District Commission had ignored the said factors while deciding the case. Learned Counsel for the Appellant has also relied upon the judgment of this Commission titled as "Sandeep Sharma Vs. Aryan Motors Private Limited & others" F.A. No.626 of 2019, decided on 23.11.2021 in support of arguments.
9. Mr. Abhishek Sharma Advocate, learned Counsel for the Respondents/OPs has submitted that the District Commission has rightly appreciated the facts and evidence and had dismissed the Complaint of the Complainant on the ground that the Complainant had failed to prove the 'deficiency in service' on the part of the OP by leading any cogent and convincing evidence. No expert was examined by the Complainant to prove any defect in the said Activa. Learned Counsel for the Respondents has also relied upon judgments i.e. "Tata Motors Limited Vs. Chetan Gill" (NCDRC) 1995(1)CompL.J.219, (2) "SGS India Limited Vs. Dolphin 8 First Appeal No.304 of 2023 International Limited" Civil Appeal No.5759 of 2009, decided on 06.10.2021, (3) "Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & another", (4) "Indigo Airlines Vs. Kalpana Rani Debbarna & others, (LL 2021 SC 544) and (5) "Tata Engineering and Locomotive Co. Limited Vs. M. Moosa (New Delhi) in support of his arguments.
10. We have heard the learned Counsel for the parties and have also gone through the relevant record of the case as well as documents/evidence available on the record.
11. Admittedly, the Complainant had purchased the Activa Scooter in exchange of his old scooter of 100 CC against invoice 24.05.2019. It was also registered. Said scooter had run by covering 2143 kilometer. The complainant found that there was some noise in the engine and thereafter the Complaint was lodged. It is also not in dispute that the vehicle was checked by OP No.2 and found that the Carborator was chocked which was giving starting problem and it was cleaned and some other minor problems were also attended. Ex.R-1 shows that the scooter had run 5840 kilometer upto 17.12.2019. As per the version of respondents/OPs the said scooter was not picked up by him inspite of repair.
12. The grievance of the Complainant is that there was manufacturing defect in the said scooter as there were frequent problems which were not rectified by the OPs and it was a case of harassment at the hand of the OPs and the Complainant had sought 9 First Appeal No.304 of 2023 replacement of the scooter. Admittedly, the scooter was purchased on 24.05.2019 and within a period of 6 months, it had covered a distance of approximately 5900 kilometers. Meaning thereby the vehicle was used/run for a longer period. The scooter of the Complainant was repaired that too without any amount. Meaning thereby whatever the problem was raised and pointed out was removed.
Now the question for consideration by us is as to (i) whether the said scooter was having any manufacturing defect or not or (ii) whether it was required to be replaced when certain minor problems had arisen.
We have perused the record of the case carefully. The Complainant had not brought on record anything to suggest that there was any manufacturing defect in the scooter. Meaning thereby the Complainant had failed to prove the allegations of manufacturing defect in the scooter. Simply on the basis of averments made in the Complaint and the arguments, it cannot be said to be a case of manufacturing defect. The onus was on the Complainant himself to prove that it was a case of manufacturing defect. The District Commission has also relied upon the judgment of the Hon'ble Supreme Court of case "SGS India Limited Vs. Dolphin International Limited" Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) wherein it has been held that the onus to prove deficiency in service is on the part of Complainant under the 10 First Appeal No.304 of 2023 Consumer Protection Act and it is the Complainant who had approached the Commission without having any proof of 'deficiency in service'. The OPs cannot be held liable for deficiency in service. In said judgment, the Hon'ble Supreme Court had relied upon another judgment of case titles "Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines & another" wherein it has been held that the burden of proving any 'deficiency in service' is always upon the person who alleges so. The ratio of aforesaid judgments are applicable in the present. In the case in hand, the Complainant has alleged manufacturing defect in the scooter. Meaning thereby the burden to prove the manufacturing defect is always on the person who alleges so but nothing has been brought on record by way of any expert opinion or any other evidence to prove that it was a case of manufacturing defect.
We find no force in this argument raised by learned Counsel for the Appellant/Complainant that there was manufacturing defect in the scooter and as such the Appellant/Complainant is not entitled for replacement of scooter. Moreover, there is no force in the arguments that scooter of the Complainant falls in the defective lot manufactured between 04.02.2019 to 03.07.2019, as Complainant had failed to prove any manufacturing defect in the said scooter.
13. As per the versions of the OPs, on 17.12.2019, the said scooter was not getting start and OP No.2 had sent mechanic to the house of the Complainant and the OP No.2 had sent service pickup 11 First Appeal No.304 of 2023 van at the house of the Complainant to pickup the scooter for repair. From perusal of versions of the OPs, it is apparent that OPs had picked up the scooter from the house of the Complainant for its repair. The Respondents/OPs have not denied the version of the Appellant/Complainant that OP No.2 had taken 25 days for repair of the said scooter. As per the version of the Respondents/OPs, the repair was minor but they had failed to explain as to why they had taken 25 days in repair. As per the versions of the Appellant/Complainant, he had purchased the new scooter of TVS Company on 11.01.2020, as is clear from Ex.C-14. Meaning thereby, the scooter was still in the workshop of the OPs. In case, the Complainant had not taken the delivery of the scooter, the OPs could have dropped the scooter at the house of the Complainant. No such efforts were made by the Respodents/OPs. Now more than four years have elapsed and the said scooter is still at workshop of OPs. In view of facts and circumstances of the case, the OPs are liable to deliver the scooter after its repair free of cost at the house of the Complainant. The Complainant had remained deprived off using his scooter for a longer period and as such the Complainant is held entitled for compensation as well as litigation expenses.
14. In view of above discussion and reasons, we partly allow the Appeal of the Appellant and the order passed by the District Commission is set aside by issuing directions to the Respondents/OPs to deliver the scooter at the house of the Complainant after making it in roadworthy condition free of cost. 12 First Appeal No.304 of 2023 In view of facts and circumstances of the case, we direct the Respondents/OPs to pay composite amount of compensation of Rs.10,000/- for causing mental harassment as well as litigation expenses. The Respondents/OPs are directed to comply with the directions within a period of 45 days from the date of receipt of copy of the order, failing which, the OPs shall be liable to pay composite amount of compensation to the tune of Rs.50,000/-
15. Since the main case is decided, the pending applications, if any, are also disposed of.
16. The Appeal could not be decided within the stipulated period due to heavy pendency of Court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER October 16, 2024 (MM)