State Consumer Disputes Redressal Commission
M/S Lml Limited & Anr. vs Ram Gopal Sharma on 15 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 64 / 2014
1. M/s LML Limited
C-10, Panki Industrial Estate, Kanpur
2. M/s Kartik Automobiles
Ved Sadan, Kankhal Road
Arya Nagar, Jwalapur, Haridwar
......Appellants / Opposite Parties
Versus
Sh. Ram Gopal Sharma S/o Late Sh. Rameshwar Prasad
R/o House No. 2, Gali No. 3, Rajlok Vihar
Near Geet Govind Banquet Hall
Jwalapur, Tehsil & District Haridwar
......Respondent / Complainant
Mr. S.K. Gupta, Learned Counsel for the Appellants
Mr. Gopal Narson, Learned Counsel for the Respondent
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 15/12/2014
ORDER
(Per: Mr. D.K. Tyagi, Member):
This appeal is directed against the order dated 06.03.2014 passed by the District Forum, Haridwar in consumer complaint No. 35 of 2014, whereby the District Forum has allowed the consumer complaint against the opposite party No. 2 and directed the opposite party No. 2, if the complainant returns the old scooter to the opposite party No. 1 within 15 days from the date of order, then the opposite party No. 2 shall supply a new scooter to the complainant in replacement of the old scooter and also pay Rs. 1,556/- stated to be charged extra and also pay Rs. 7,316/- as compensation and if the opposite party No. 2 is not in a position to replace 2 the scooter, then the opposite party No. 2 shall pay Rs. 65,000/- to the complainant after taking back the said scooter.
2. The facts of the case, in brief, are that the complainant-Sh. Ram Gopal Sharma purchased a LML scooter from the opposite party No. 1, authorized dealer and service center of the opposite party No. 2, for a sum of Rs. 56,128/- inclusive VAT on 02.09.2011 bearing Registration No. UK08 V 4947. The said scooter was having warranty for a maximum period of three years or a run of 30,000 Kms. The warranty on electronic parts is for a period of 5 years or a run of 50,000 Kms. whichever is earlier from the date of purchase, against defects in material or workmanship. According to the complainant, the said scooter became defective after 6 months of use from the date of purchase and there was difficulty to start. The opposite party No. 1 set it right and charged Rs. 412/- for the same vide bill No. 397 dated 12.03.2012. The complainant further alleged that after five months the clutch of the scooter became loose, stand-pad and the battery also became defective. When the complainant complained in this regard to the opposite party No. 1, the Engineer of the opposite party No. 1 replaced the battery alongwith brake and set the stand right, and charged Rs. 379/- for oil, etc. vide bill No. 716 dated 06.07.2012, despite the warranty. On 03.10.2012, the said scooter again became defective and the opposite party No. 1 changed the spark plug of the said scooter alongwith oil and also recharged the battery. The scooter was under warranty, despite this he charged Rs. 765/- vide bill No. 918 dated 03.10.2012. Aggrieved by this, the complainant asked the opposite party No. 1 for replacement of the scooter with a new one, but the opposite party No. 1 refused to replace the same, thereafter, the complainant sent a legal notice to the opposite party No. 1 on 02.01.2014, but the opposite party Nos. 1 & 2 did not reply till 20.01.2014. Alleging deficiency in service on the part of the opposite parties, the complainant filed the consumer complaint before the District Forum.
33. The opposite party No. 1 has not filed written statement despite service, hence, the District Forum proceeded the case exparte against the opposite party No. 1 vide order dated 03.03.2014. The opposite party No. 2 has filed the reply/written statement on behalf of the opposite party Nos. 1 & 2 before the District Forum, Haridwar and pleaded that the sale of scooter is admitted. It is stated that the warranty was subject to the terms and conditions of the warranty policy as contained in the "Owner's Manual". It is wrong to state that the said scooter became defective after 6 months of purchase and has developed starting problem requiring number of kicks. It is also wrong that the opposite party No. 1 charged Rs. 412/- for repairing vide bill No. 397 dated 12.03.2012. The complainant had availed third free service on 12.03.2012. There was no defect of any kind in the scooter and no problem was pointed out or recorded by the complainant on the job card. The scooter had come for normal prescribed service and as per maintenance schedule requirements, which is also specified in the "Owner's manual", only engine oil, oil filter was changed and special type of additive was added and the cost of these materials amounting to Rs. 407/-. These are consumable items and are not provided free under the warranty. On 16.07.2012, the complainant had taken the scooter at service center of the opposite party No. 1 for fifth service and as per prescribed maintenance schedule, got the engine oil and oil filter changed which cost Rs. 282/- only. The clutch wire having become loose due to specific style of driving by the complainant, was adjusted, stand- pad, a rubber item, was replaced at a normal cost of Rs. 30/-. The battery belt has also become loose and required replacement and the same was carried out. Since none of the items are covered under warranty and there being no defect in the functioning of the scooter clearly reveal ulterior motive of the complainant requiring the complainant. The averments that the said scooter became defective again after a few days of use are wrong and denied. It is denied that the scooter became defective for usage between 06.07.2012 to 03.10.2012 when the complainant visited the workshop of opposite party No. 1 for availing sixth paid service in 4 accordance with the prescribed maintenance schedule. The allegation of the complainant that the opposite party No. 1 charged him Rs. 765/- for replacing spark plug, engine oil and for charging battery etc. while the scooter was under warranty is not correct. It is stated that on 03.10.2012, the complainant brought the scooter at the workshop of the opposite party No. 1 for having sixth paid service in accordance with the maintenance schedule and at the time of giving the scooter for service, he got noted a few points like indicators not working, self and starting problem which are normal maintenance requirements at this stage of the running of the scooter, having been used for about 11 months. The technical personnel of opposite party No. 1 carried out requisite servicing, change of engine oil, oil filter and recharge of battery and charged the minimum normal charges for all these items and since these are part of the maintenance requirements of the scooter, the complainant is wrong in alleging that the charges were recovered against the terms of the warranty policy. It was not a case of replacement of any defective part whatsoever. The allegation of the complainant that the scooter again became defective after running for 5-6 months, are wrong and incorrect and denied. The allegation that the complainant visited the showroom of opposite party No. 1 and complaint regarding the scooter getting defective every 5-6 months and the opposite party No. 1 charging him for repairing the same despite the scooter being under warranty, are wrong and incorrect and are denied. It is stated that after the sixth paid service on 03.10.2012, the complainant got the seventh paid service carried out at the workshop of opposite party No. 1 on 11.03.2013, i.e., after 5 months of the previous service and this is clearly much beyond the specified period as per the maintenance schedule. At the time of service, no complaint of any kind was reported and the service was rendered to the satisfaction of the complainant. The complainant again visited the workshop of opposite party No. 1 on 16.10.2013, i.e., about 7 months after the previous service and having driven the scooter for about 13600 Kms. At that time, the complainant reported two problems, i.e. back light and shocker noise. The technical personnel of opposite party 5 corrected back light by replacing the defective parts free of charge under warranty and set right the shocker. The requisite servicing on charge basis was also carried out and the complainant received back the scooter to his satisfaction without any objection. The complainant has not approached the Forum with clean hands and suppressed and concealed true facts from the Forum. The allegation of the complainant that he had been charged despite the scooter being under warranty are wrong and denied. The allegation that he has been sold an old scooter as a new one having manufacturing defect, is totally false, baseless, absurd and incorrect. There is neither any defect in the scooter, nor the same was old. It was a brand new scooter when sold to the complainant and did not have any manufacturing defect whatsoever. There is no question of complainant facing any physical difficulty in getting the periodical service carried out which is part of the maintenance schedule of the scooter. It is submitted that after getting the last service carried out on 16.10.2013 when he has already driven the scooter for about 13600 Kms. during which period except for the normal periodic servicing and oil and filter change, no requirement of replacement of any part had occurred, the present complaint filed on 20.01.2014 is nothing but abuse of process of law. When there is no defect in the scooter, there is no question of the opposite parties replacing the scooter or refunding the price. The demand of the complainant for a new scooter or refund of price is malafide and untenable and cannot be accepted. It is wrong and denied that the scooter had any defect when last brought to the workshop of opposite party No. 1. It is also wrong that the opposite party No. 1 has stated that they will not repair the scooter in case of any defect. It is wrong and denied that the opposite party No. 1 has committed any fraud towards the complainant. The allegation that the complainant had sent the notice dated 02.01.2014, but the opposite parties have not replied to the same is wrong and denied. It is stated that the opposite party No. 2 has replied to the notice vide their letter dated 27.01.2014. It is wrong and denied that the scooter became defective again and again. There is no manufacturing defect in the 6 scooter. The periodic servicing and adjustments to the clutch wire etc. necessitated by usage by the complainant, do not amount to manufacturing defect as alleged by the complainant. The scooter is in perfect working order having already been driven for about 2 years and four months. It is wrong and denied that the opposite party No. 1 had committed any unfair trade practice in any respect. The scooter sold to the complainant was in perfect working order and had continue to be so when last brought at the workshop of opposite party No. 1 on 16.10.2013. The complainant is not entitled to any relief.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide its order dated 06.03.2014. Aggrieved by the said order, the opposite parties have filed the present appeal.
5. We have heard learned counsel for the appellants-opposite parties and respondent-complainant and have also perused the material placed on record.
6. It appears from the impugned judgment and order that before the District Forum the consumer complaint proceeded exparte against the opposite party No. 1-M/s Kartik Automobiles, Haridwar, but the opposite party No. 2, i.e., M/s LML Ltd., Kanpur has filed written statement on behalf of both the opposite parties and contest the case.
7. There is no dispute that the respondent-complainant Sh. Ram Gopal Sharma had purchased the LML scooter from the opposite party No. 1-M/s Kartik Automobiles, Haridwar, an authorized dealer and service center of the opposite party No. 2-M/s LML Ltd., Kanpur, for a sum of Rs. 56,128/- on 02.09.2011 bearing registration No. UK08-V-4947. There is also no dispute that the said scooter was having warranty for a maximum period of three years or a run of 30,000 Kms. The warranty on electronic parts is for a period of 5 years or a run of 50,000 Kms. whichever is earlier from the 7 date of purchase, against defects in material or workmanship. There is also no dispute that the complainant-respondent availed all the free services as well as the paid services from the opposite party No. 1.
8. Learned counsel for the respondent has submitted that the appellants have supplied an old scooter in place of new one as the colour of the same became fade after few months and there was a manufacturing defect in the scooter. Learned counsel for the appellants has submitted that the respondent has wrongly alleged that after six months of use of scooter it became defective. Learned counsel submitted that when the complainant complained, the engineer of appellant No. 2 replaced the battery and the brake and set right the stand but charged him Rs. 379/- for oil etc. The District Forum admitted the complaint on 23.01.2014 and next date for appearance of the opposite parties-appellants was fixed on 28.02.2014. On 28.02.2014 the representative of the appellants appeared before the District Forum alongwith the counsel and sought time. Learned District Forum imposed a costs of Rs. 5,000/- and granted time till 03.03.2014 for filing the reply. On 03.03.2014, the appellant No. 1-opposite party No. 2 filed its detailed written statement contesting the contents of complaint para-wise. In the said reply, it has been specifically stated that after purchase on 02.09.2011, the scooter had come at the service station of the appellant No. 2 for periodic servicing and minor maintenance needs arising out of running of the scooter during the intervening period from 02.09.2011 to 16.10.2013 on the dates mentioned by the respondent in his consumer complaint, i.e., on 12.03.2012, 16.07.2012, 03.10.2012 and 16.10.2013. Learned counsel also submitted that alongwith the reply, the appellants has also filed a copy of the warranty policy governing the terms and conditions of the repair and replacement of parts, if any, found defective during the period of warranty. Learned District Forum, on 03.03.2014, had adjourned the matter to 05.03.2014 for the rejoinder and evidence of the complainant. On 05.03.2014, the learned counsel for the appellants was present before the District Forum. The respondent filed his evidence and though the 8 learned counsel for the appellants was present, however, he was not provided copy of the evidence of the complainant and the case was adjourned to 07.03.2014. However, on 07.03.2014 when the counsel for the appellants appeared in the District Forum, it was revealed that the case has been taken up on 06.03.2014 and the case has been already decided on 06.03.2014 itself. The order dated 06.03.2014 passed by the Learned District Forum is totally perverse, contrary to the facts and law and not in consonance with the specific provisions of law. The District Forum has not provided the opportunity for filing the evidence and contesting the case on merits by not allowing sufficient time to the appellants to file their evidence and properly arguing the matter. Learned counsel has argued that the District Forum has not abided by the mandate of Section 13 of the Consumer Protection Act, 1986 which required the District Forum to send the goods in question for technical evaluation/test in as much as there was no independent report or material in respect of the performance of the scooter. Learned District Forum failed to take into account the fact that the respondent-complainant has not pointed out a single inherent manufacturing defect in the scooter and also failed to appreciate that the complainant had not filed any independent test report from any technical expert in support of his contentions. The District Forum ought to have asked the complainant to place on record, report of some independent technical expert and the absence of the same has vitiated the impugned order. The money received from the complainant-respondent at the time of services was towards cost of mobil oil and oil filter and some additive, which was added to the petrol. The complainant-respondent had paid all these amounts without any protest and has signed the job-cards in satisfaction of the service carried out. The District Forum also erred in not appreciating the invoice/case memo dated 03.10.2012 clearly reveals that there was a problem of self-starting and the self-starter, which was changed by the appellant No. 2 free of cost. All these do not disclose any kind of defect in the working of the scooter and, therefore, the conclusion of the Learned District Forum is totally erroneous and perverse. There was 9 neither any specific allegation in relation to functioning of any part of the scooter nor any problem was discovered during the service and the scooter had functioned well throughout without ever stopping anywhere. Learned counsel also submitted that unlike a Fridge or a T.V. which remain stationary at place and run on electricity, a two-wheeler 4 Stroke scooter is driven by an individual having varied degree of skill and expertise and further, the scooter has to be driven on roads which may be paved or rough. It is uncertain how many people sit on it and in what manner they drive it. In the absence of any manufacturing defect the main manufacturer cannot be called upon by the Consumer Court replace the vehicle already sold in perfect condition at the time of sale and the periodical servicing requirements do not constitute any kind of defect and cannot be the basis for ordering replacement of the scooter or payment of its price or any other charges. Learned District Forum has failed to appreciate that the complainant has been using the scooter continuously from 02.09.2011 till 28.02.2014, i.e. in a period of two years and six months and has already availed benefit of its use as well as depreciation and not a single specific manufacturing defect as a whole or in any specific part of the scooter has either been alleged in the consumer complaint or proved on the basis of the affidavit filed by the complainant or discovered by the District Forum through any technical expert opinion.
9. The learned counsel for the appellants referred the following decisions of the National Commission in support of his contention:-
a) Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr.; II (2009) CPJ 90 (NC)
b) Classic Automobiles vs. Lila Nand Mishra & Anr.; I (2010) CPJ 235 (NC)
c) Sukhvinder Singh vs. Classic Automobile & Anr.; I (2013) CPJ 47 (NC).
10. We have gone through all the above cited judgments. In the case of Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram 10 Dangwal & Anr., the National Commission has held that deficiency in warranty period services alleged in that case, if no reliable expert evidence produced in support of manufacturing, order allowing complaint set aside. Conduct of opposite parties not consumer-friendly. In the case of Classic Automobiles vs. Lila Nand Mishra & Anr., it was held that the onus to prove manufacturing defect lies on complainant. No expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect. Vehicle repeatedly brought to service station for repairs, no ground to hold that vehicle suffering from manufacturing defects. Manufacturing defects in vehicle not proved. Order of lower Fora set aside. In the case of Sukhvinder Singh vs. Classic Automobile & Anr., it was held that the service history only reveals that there was overheating once. No evidence that vehicle became defective again. Report of expert was essential or some other evidence showing manufacturing defect should have been adduced. Mere fact that vehicle was taken to service station for one or two times does not ipso facto prove manufacturing defect.
11. From the perusal of the record and the job cards for free and paid services, it is evident that the appellant No. 2-opposite party No. 1 has given satisfactory service throughout and charged nominal amount against change of engine oil and oil filter etc. The appellant No. 2 also gave service to the complainant-respondent regarding charging of battery, spark plug, stand pad and also corrected the starting problem. The respondent has neither mentioned any manufacturing defect in the engine or other important part of scooter, nor submitted any technical expert report before the District Forum. The District Forum also did not care to ask the respondent for technical expert report regarding any manufacturing defect in the scooter. Section 13 (1)(c) of the Consumer Protection Act, 1986 provides that "the District Forum shall, on admission of a complaint, if it relates to any goods, where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, 11 the District Forum shall obtain a sample of the goods from the complainant and refer the sample so sealed to the appropriate laboratory to make an analysis or test with a view to finding out whether such goods suffer from any defect alleged in the complaint". Learned District Forum has neither order to present the scooter for technical expert report nor order the complainant or the opposite parties to file technical expert report regarding any manufacturing defect in the scooter before the District Forum.
12. Having considered the submissions raised by the learned counsel for the parties, we find force in the submissions raised by the learned counsel for the appellants. The District Forum has not properly considered the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. As such the appeal is fit to be allowed.
13. For the reasons aforesaid, the appeal is allowed. The impugned judgment and order dated 06.03.2014 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 35 of 2014 is dismissed. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL)