State Consumer Disputes Redressal Commission
Gagan Motors vs Sukhwant Kaur & Anr. on 2 March, 2016
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.626 of 2013
Date of Institution: 04.06.2013.
Date of Decision : 02.03.2016.
Gagan Motor, S.C.F. No.8, Model Town, Phase-I, Bathinda 151 001,
through its Partner/Proprietor Mrs. Surjeet Kaur.
.....Appellant/opposite party no.1
Versus
1. Sukhwant Kaur W/o Gurjinder Singh R/o H.No.623, New Kamla
Nehru Colony, Bathinda.
.....Respondent no.1/complainant
2. Hero Exports, Hero Nagar, G.T. Road Ludhiana 141 003, through
its Managing Director/General Manager.
.....Respondent no.2/opposite party no.2
First appeal against order dated
13.03.2013 passed by the District
Consumer Disputes Redressal
Forum, Bathinda.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri H.S. Guram, Member.
Present:-
For the appellant : None For respondent no.1 : Sh. Rana Inderjyot Singh, Advocate For respondent no.2 : Ex-parte ................................................... J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
Aggrieved by impugned order dated 13.03.2013 of the District Consumer Disputes Redressal Forum, Bathinda (in short the "District Forum"), the appellant (opposite party no.1 in the complaint) has directed this appeal against respondent no.1 of this appeal (the complainant in the complaint) and respondent no.2 herein (opposite party no.2 in the complaint), vide which, the complaint of the complainant was accepted by directing the OPs to pay Rs.2000/- to complainant as compensation and cost.First Appeal No.626 of 2013 2
2. The complainant has filed the complaint under Section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that he purchased new Electric Bike Hero Optima on 24.07.2008 from OP no.1, being authorized dealer of OP no.2, the manufacturer of the said bike. The vehicle was operated by battery without any fuel for a time span of six hours continuously or upto 70 kilometers. The complainant got his vehicle regularly checked up and services have been performed by OP no.1. There was some defect in the battery of it and it got damaged within 4-6 months. New battery was replaced lastly on 08.09.2011 by OP no.1, vide bill no.E25, dated 08.09.2011 amounting to Rs.9000/- and OP no.1 gave assurance that it would work at least three years, but the battery of the scooter became out of order. The mechanic of OP no.1 conveyed that charger of the scooter has been damaged and the same was replaced with new one by charging Rs.1282/-. The scooter again became defective within 15 days and battery became damaged within 15 days due to some manufacturing defect. The complainant served registered notice on 16.07.2012, but to no effect. The complainant has, thus, filed the complaint claiming the refund the amount of Rs.26,000/- price of scooter alongwith interest @18% per annum, besides costs of litigation Rs.11,000/- and Rs.25,000/- as damages.
3. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant. It was averred in legal objection that complaint is not maintainable and is without any First Appeal No.626 of 2013 3 cause of action. The complainant has no locus stanid to file the present complainant. The complaint is alleged to be bad for non- joinder of necessary parties, as Distributors of the battery namely Balaji Battery House Near Minakshi Petrol Pump near Bus stand G.T. Road, Bathinda and Manufacturer of battery set M/s HBL Power System Limited have not been impleaded as parties in this case. On merits, this fact was admitted that complainant purchased electric bike and the warranty card was issued to complainant for the instruments of the bike. The bike was electric, operated through battery, which could run upto 70 kilometers. OP no.1 further alleged that battery set of HBL Company was sold to complainant, but OP no.1 did not give any assurance, as pleaded in the complaint. OP no.1 informed the complainant that there was defect in the charger, but the complainant did not agree nor accept, hence the battery was damaged again. The battery and charger were sold separately and replaced as spare parts, which carry no warrantee of vehicle and no replacement thereof. OP no.1 controverted the other averments of the complainant for his entitlement to any compensation and, thus, prayed for the dismissal of the complaint.
4. OP no.2 filed separate written reply by raising preliminary objections that complaint has been filed by complainant just to extract compensation from OP no.2, as there was no deficiency on its part. It was averred on merits that complainant purchased above said bike from OP no.1, being authorized dealer of OP no.2. The bike was delivered to complainant in proper working condition First Appeal No.626 of 2013 4 without any defect therein. The warranty period was of 360 days from the date of purchase of bike on all parts, except fragile items like plastic parts/rubber parts/bulbs/reflectors and fasteners and the battery, for which the warranty period was of 180 days only. The vehicle has not been used as per operating instructions mentioned in the owner's manual. It was further averred that complainant appeared to be negligent in operating the vehicle. OP no.2 prayed for the dismissal of the complaint.
5. The complainant tendered in evidence affidavits and documents Ex.C-1 to Ex.C-15 and closed the evidence. As against it, OP no.2 tendered in evidence affidavits Ex.R-1 and Ex.R-2 and closed the evidence. On conclusion of evidence and arguments, the District Forum Bathinda accepted the compliant of the complainant. Dissatisfied with the order of District Forum, OP no.1, now appellant has preferred this appeal against the same.
6. We have heard the learned counsel for respondent no.1, as none appeared for appellant and have also examined the record of the case. Affidavit of complainant is Ex.C-1 on the record. Ex.C-2 is the copy of bill dated 08.09.2011 for purchase of the battery set. There is remarks recorded on it that replaced with new set on 23.09.2011, vide no.5616023980/1/2/3/4 F.O.C. basis under warranty. Ex.C-3 is the copy of bill no.429 dated 23.09.2011 for the amount of Rs.1282/- for charger. Ex.C-4 is the copy of registered notice from complainant to OP for repairing the battery. Ex.C-6 is the supplementary affidavit of complainant in support of her averments. First Appeal No.626 of 2013 5 Ex.C-7 is the news paper clipping. Ex.C-8 to C-11 are the photographs. Ex.C-13 is the registered cover and Ex.C-14 and C-15 are the postal receipts thereof. To counter this evidence, OP no.1 relied upon affidavit of Saurabh, authorized representative of OP no.2. Ex.R-2 is the affidavit of Surjit Kaur proprietor of Gagan Motors Bathinda. OPs denied any manufacturing defect in the vehicle, as pleaded by the complainant in this case.
7. From evaluation of above referred evidence on the record, we find that vide bill, battery of vehicle in question was replaced free of costs, but complainant paid Rs.1282/- for the charger. The submission of appellant is that complainant could claim the amount from distributor and manufacturer of the battery and charger in this case. OP no.1 sold the vehicle as authorized dealer of OP no.2. Reference was made to Ex.C-3 by counsel for the appellant. The complainant relied upon photographs Ex.C-8 to C-11 regarding junking the vehicle in front of his house. The complainant pleaded manufacturing defect, but no expert report has been proved on the record to substantiate it. The District Forum recorded the finding that any manufacturing defect in the vehicle is not established on the record. The District Forum found deficiency in service in not repairing the vehicle in question to the satisfaction of the complainant. OP no.1 is authorized dealer as well as repairer/service centre of OP no.2. It was imperative on their part to set the vehicle in satisfactory condition, when complainant brought it with the above complaint with OP. The District Forum rightly found OPs deficient in First Appeal No.626 of 2013 6 service on the ground that they have not repaired the bike in question of the complainant to his entire satisfaction. OPs have not removed the defect pointed by he complainant in the battery and rather received the amount of Rs.12,82/- from him, whereas it was required to be replaced free of costs. We do not find any ground to interfere with the order of the District Forum and we find no ground to disturb the order of the District Froum under challenge in this appeal.
8. As a result of our above discussion, we find no merit in the appeal and the same is hereby dismissed.
9. The appellants had deposited the amount of Rs.1000/- with this Commission at the time of filing the appeal. This amount with interest, which accrued thereupon, if any, be remitted by the registry to the respondent no.1/complainant by way of a crossed cheque/demand draft after the expiry of 45 days.
10. Arguments in this appeal were heard on 29.02.2016 and the order was reserved. Now the order be communicated to the parties. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (H.S.GURAM) MEMBER March 02, 2016.
(MM)