State Consumer Disputes Redressal Commission
Espee Enterprises India vs Chatar Singh And Another on 29 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION UTTARAKHAND
DEHRADUN
FIRST APPEAL NO. 145 / 2010
Espee Enterprises India
Arya Nagar
Jwalapur, Haridwar
......Appellant / Opposite Party No. 1
Versus
1. Sh. Chatar Singh S/o Sh. Bharat Singh
R/o Village Dhaluwala Majbata
Post Office Bandarjood
Tehsil and District Haridwar
......Respondent No. 1 / Complainant
2. General Manager, Bajaj Auto Limited
Akurdi, Pune - 411 035
......Respondent No. 2 / Opposite Party No. 2
Sh. M.K. Kohli, Learned Counsel for the Appellant
Sh. T.P. Kohli, Learned Counsel for Respondent No. 1
Sh. M.K. Kohli, Learned Counsel for Respondent No. 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 29/12/2014
ORDER
(Per: Justice B.C. Kandpal, President):
This is an appeal under Section 15 of the Consumer Protection Act, 1986 against the order dated 07.05.2010 passed by the District Forum, Haridwar in consumer complaint No. 353 of 2008. By the order impugned, the District Forum has allowed the consumer complaint and directed the appellant and respondent No. 2 - opposite parties to give new motorcycle to the respondent No. 1 - complainant in place of the motorcycle in question or in failure thereof, to refund the cost of the motorcycle to the respondent No. 1 and also to pay sum 2 of Rs. 5,046/- towards damages, in all, to pay Rs. 50,000/- to the respondent No. 1 - complainant.
2. Briefly stated, the facts of the case as mentioned in the consumer complaint, are that complainant had purchased a Bajaj XCD 125 DTS-Si motorcycle from the appellant on 30.09.2007 for sum of Rs. 44,954/-. It was alleged that the rear tyre of the motorcycle was bubbling, for which he lodged the complaint with the appellant, but the said defect in the motorcycle was not removed by the appellant. The vehicle was taken to the service centre of the appellant, but the defect in the vehicle was not removed. It was also alleged that on account of bubbling of the tyre, the engine of the motorcycle got seized. It was further alleged that there is manufacturing defect in the vehicle. The complainant issued a legal notice to the appellant and thereafter filed a consumer complaint before the District Forum, Haridwar.
3. The appellant filed written statement before the District Forum and pleaded that no complaint was lodged with them during the warranty period of the vehicle; that the complainant had not got the vehicle serviced within the prescribed period in terms of the service manual; that no complaint with regard to bubbling of the rear tyre of the vehicle was lodged with them and that there is no deficiency in service on their part.
4. The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide impugned order dated 07.05.2010 in the above manner. Aggrieved by the said order, the appellant has filed the present appeal.
35. We have heard the learned counsel for the parties and have also perused the record.
6. It was argued by the learned counsel for the appellant that the first free service of the vehicle was due between 500-750 kms. or 30- 45 days of the purchase of the vehicle, whereas the same was got done by the complainant on 08.10.2007 after the vehicle had run 798 kms. and, as such, the said service became time barred. It was also argued that the second free service of the vehicle was got done by the complainant on 21.11.2007 and by which date, the vehicle had run 2400 kms. It was further argued that the complainant did not get the third and fourth free service of the vehicle done and hence the complainant did not adhere to the conditions of the service manual. It was also submitted that no complaint with regard to the bubbling of the rear tyre of the vehicle or the engine getting seized, was lodged by the complainant with the appellant and that when the vehicle was brought to the service centre of the appellant on 04.07.2008, no such complaint was lodged and by that date, the vehicle had run 13707 kms. and at that time, general work was carried out in the vehicle. It was submitted by the learned counsel for the appellant that the District Forum did not properly considered the above facts and erred in allowing the consumer complaint per impugned order, which is not legally sustainable and is liable to be set aside.
7. Per contra, learned counsel for respondent No. 1 - complainant argued in support of the impugned order and submitted that the District Forum has properly considered the facts and circumstances of the case and has rightly allowed the consumer complaint and the appeal being devoid of merit, is liable to be dismissed.
48. Having considered the respective submissions made by the learned counsel for the parties, we find force in the submissions raised by the learned counsel for the appellant. The reason being that the material available on record clearly shows that the complainant had not adhered to the terms and conditions of the service manual and did not bring the vehicle to the service centre of the appellant for the first free service within the stipulated period. The complainant has also not got the third and fourth free service of the vehicle done. The vehicle was purchased on 30.09.2007 and till 04.07.2008, it had run 13707 kms., as would be evident form the details of service of the motorcycle in question (Paper Nos. 34 to 35). The said details also show that on 04.07.2008, the vehicle was brought to the service centre of the appellant only for warranty repairs and at that time, starting check was made; braking of the vehicle was checked and general checking was made. No complaint with regard to the bubbling of the rear tyre of the vehicle or the engine getting seized was lodged by the complainant at that time. If the rear tyre of the vehicle was bubbling, the vehicle could not have run 13707 kms. by 04.07.2008, i.e., within a period of 10 months' from the date of its purchase.
9. The record further shows that the complainant has given an undertaking on 30.09.2007, i.e., at the time of purchase of the vehicle (Paper No. 47) that he will adhere to the terms and conditions of the warranty, which he failed to do. This apart, the job card dated 08.10.2007 (Paper Nos. 48 to 49) contains the endorsement of the complainant that he is fully satisfied with the work carried out in the vehicle. The gate pass dated 08.10.2007 (Paper No. 50) shows that the repairs were done to the entire satisfaction of the complainant and the said gate pass has voluntarily been signed by the complainant. The same is the position with the job card dated 21.11.2007 (Paper Nos. 51 to 52) and gate pass dated 21.11.2007 (Paper No. 53).
510. It is a settled law that the complainant has to prove the manufacturing defect in the vehicle by adducing expert evidence in this regard. There is nothing on record what to say of any expert evidence to show that there is any manufacturing defect in the vehicle or any defect which is not curable and has not been cured by the appellant.
11. The complainant has not produced any evidence such as the expert evidence to prove that there was any defect in the vehicle. Learned counsel for the appellant cited a decision of the Hon'ble National Commission given in the case of Classic Automobiles Vs. Lila Nand Mishra and another; I (2010) CPJ 235 (NC), wherein the Hon'ble National Commission has laid down the law that onus to prove manufacturing defect in the vehicle lies on the complainant and further that expert evidence need to be produced to prove manufacturing defect in the vehicle. In the reported case, it was held that the vehicle having been repeatedly brought to service station for repairs, is no ground to hold that the vehicle suffered from manufacturing defect. Learned counsel for the appellant also cited another decision of the Hon'ble National Commission rendered in the case of Sukhvinder Singh Vs. Classic Automobile and another; I (2013) CPJ 47 (NC). In the said case, it was held that the report of expert was essential or some other evidence showing manufacturing defect should have been adduced. It was held that the mere fact that the vehicle was taken to service station for one or two times, does not ipso facto prove manufacturing defect. Learned counsel for the appellant further cited one more decision of the Hon'ble National Commission in the case of Tata Engineering & Locomotive Co. Ltd. and others Vs. Bachchi Ram Dangwal and another; II (2009) CPJ 90 (NC). In the said case, no reliable expert evidence was 6 produced to prove that there is manufacturing defect in the vehicle. It was held that there is no manufacturing defect in the vehicle.
12. The District Forum has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order, which can not legally be sustained and is liable to be set aside. As such, the appeal is fit to be allowed.
13. For the reasons aforesaid, appeal is allowed. Order impugned dated 07.05.2010 passed by the District Forum is set aside and consumer complaint No. 353 of 2008 is dismissed. No order as to costs.
(SMT. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL) K