RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 07 OF 2001
(Against the judgment/order dated 27-11-2000 in Complaint Case
No.04/1998 of the District Consumer Commission-I, Lucknow)
Raghubeer Singh
S/o Sri Uttam Singh Soni
R/o 50/6 Malviya Nagar, Aishbagh
Lucknow
... Appellant
Vs.
- General Manager
Bajaj Auto Limited
Aakurdi, Pune.
- Manager
M/s Goldrush Sales and Service Pvt. Ltd.
19, Ashok Marg, Lucknow
...Respondents
BEFORE:
HON'BLE MR. RAJENDRA SINGH, PRESIDING MEMBER
HON’BLE MR. SUSHIL KUMAR, MEMBER
For the Appellant : Sri Satyendra Singh, Advocate.
For the Respondent No.01 : Sri Badrool Hasan, Advocate.
Dated : 25-08-2021
JUDGMENT
MR. REJENDRA SINGH, PRESIDING MEMBER
This appeal has been preferred under section 15 of the Consumer Protection Act, 1986 against the judgement and order dated 27.11.2000 passed by the Learned District Consumer Forum-I, Lucknow in complaint case no 04 /1998, Raghubir Singh Soni V/s General Manager, Bajaj Auto Limited and another.
The main grounds of appeal are that, that the findings of Learned District Forum are grossly erroneous, illegal, perverse and against the fact, law and record. The Learned District Forum has overlooked well settled principles of law and statutory provisions of the Consumer Protection Act. There is no justification behind misappraisal of the evidence on record by the Learned District Forum who gave erroneous and perverse finding on hypothetical conjectures and surmises having no support or corroboration
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from the evidence on record.
The appellant purchased one Bajaj K B Raider 125 (KB 125) under “freedom from maintenance scheme” on 5 March 1987, a product of opposite party number 1 under one year warranty. The aforesaid motorcycle was defective and appellant made complaint to the opposite party no 2 that the aforesaid vehicle having too much noise in engine and also made request to change the vehicle on the very first day but the opposite party assured that this is a new vehicle and after first service all defects will be removed. The appellant availed all free services in time from the authorised workshop of the opposite party no 1 that is Commercial Motors, Lucknow but the manufacturing defect of the engine noise of the aforesaid vehicle could not be removed and other complaints had also arisen like piston knocking, housing sound, shockers sound et cetera. Due to manufacturing defect the appellant sent a legal notice to the opposite parties on 28 October 1997 through his counsel to change the aforesaid vehicle or refund the sale amount of the vehicle within 30 days from the receipt of the notice.
In reply of the notice dated 28 October 1997, the opposite party no 2 has carried away the said motorcycle on 5 November 1997 through his mechanic Mohd Hakim from the house of the appellant and the opposite party no 2 also gave a receiving of the aforesaid vehicle and verbally assured that he will exchange the vehicle or return the sale amount along with bank rate interest. The opposite party no 2 neither exchanged the vehicle nor compensated the aforesaid manner then the appellant again sent a notice through his counsel on 12 December 1997 to the opposite party no 2 failing which the appellant filed a complaint before the District Consumer Redressl Forum Lucknow. The learned District Forum had not gotten any expert opinion from the independent licensed surveyor and accepted the false undated report of the Territory Manager O P Singh of the opposite party no 2 . Due to manufacturing defect engine of the aforesaid vehicle, the opposite party no. 1 stopped the production of the said vehicle. The aforesaid vehicle is still in the custody of the opposite party no 2 since 5 November 1997. The order of the Learned District Forum is based on the
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only ground that the appellant had not availed four free services from the opposite party no. 2 which is wrong and bad in the eyes of law. The appellant has availed all the four free services in time from the authorised workshop.
It is most respectfully prayed that this Hon’ble State Commission may kindly be pleased to set aside the judgement and order dated 27.11.2000 passed by the District Consumer Forum and allow the appeal.
We have heard the learned counsel for the appellant Mr Satyendra Singh and learned counsel for the respondent no 1 Mr Badrul Hasan. None appeared for respondent number 2. We have perused the impugned judgement, pleadings and documents on record.
It has been argued from the respondent that the appellant has extensively used the motorcycle for more than nine months before filing of complaint. This motorcycle has travelled about 4223 kilometers as is clear from the job work order dated 6 November 1997. The appellant/complainant has said that just after purchase of the motorcycle, he found that the noise of the engine was not sound. He on the very next day of purchase prayed to change this motorcycle but the opposite party did not pay any attention and said that it would be alright after the first service. After some time many defects have also arisen such as piston knocking, electric supply to the headlights, sound of the shockers, kick et cetera et cetera. All the free services of the vehicle have been done. As per complainant’s version the engine oil of the vehicle has been changed after 20 – 25 days and the bottom of the headlight got fused within 5 to 7 days. The speed meter became defective and on two occasions the kick of the motorcycle loosened and fell down. On 29 October 1997 the rear tyre of the vehicle burst and he suffered a lot.
There is no evidence on record which can show that there is manufacturing defect in the vehicle. The vehicle has run about 4000 km at the time of fourth service. There is no expert opinion on the record to show that there is manufacturing defect in the vehicle. The learned Forum, in his judgement has said that the four free services was obtained by the complainant from third party and not from opposite party no. 2. There is no
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affidavit of the third party on record to show any manufacturing defect. The learned District Forum after discussing various aspects dismissed the complaint.
In the case of Mohd Hasan Khalid Haider Vs General Motors India Private Limited & Ors, Revision Petition Number 525/2018, judgement dated 8 June 2018, the Hon’ble National Commission taking reference of its own earlier judgement passed in Tata Motors vs Rajesh Tyagi judgement dated 03.12.2013 (revision petition number 1030/2008) has said that some defects occured in the vehicle after some time of taking its delivery and the complainant came to know that there is water logging in the floor area and front seat which cannot be removed by the opposite party but in the case of Mohd Hasan Khalid Haider the problem in the vehicle developed after 9 to 10 months of taking its delivery and the vehicle has already run 2500 km and if it would have been manufacturing defect the vehicle could not run so much kilometres. The defect has already been repaired so the Hon’ble National Commission did not consider it as manufacturing defect.
In the case of Baljit Kaur Vs Divine Motors & Anr, [III(2017) CPJ 599 (NC)] the Hon’ble National Consumer Commission has said that if any manufacturing defect is alleged then the onus to prove it is on the complainant. In this case complainant had submitted the affidavits of seven or eight persons in his favour, it was held that the affidavits could not take place of the expert opinion.
In the case of Suresh Chand Jain Vs Service Engineer and Sales Supervisor, MRF Limited & others [I(2011) CPJ 63, (NC) the Hon’ble National Consumer Commission has said that where it is alleged that there is manufacturing defect of tyres, the burden to prove it is on complainant and he cannot prove it. He could not tender any expert evidence hence he failed to prove that there was any manufacturing defect in the tyres.
The Hon’ble National Consumer Commission in Hyundai motors India Ltd Vs Surabhi Gupta, revision petition number 2854/2014, judgement dated 14.08.2014 , had said that he is convinced with the argument of Hyundai motors India Ltd that if there would have been any manufacturing defect in the vehicle, it would have not run 48,689 km in
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three and half years. If there would have been any serious defect in the vehicle, it was not possible for the owner to run the vehicle for about 48,000 kilometers. The senior officers of the company performed a test drive of the vehicle and wherever defect has been found, it has been repaired or replaced the said part. The Hon’ble National Commission has said that even after this the statement of the complainant cannot be accepted that even after it there is defect in the vehicle.
So in the present case the vehicle has run more than 4000 km; there is no expert opinion and the complainant himself availed the service not from the opposite party no 2 but from third party. There is no expert report of any motor expert person. In view of the discussions and in the light of various judgements we are of the opinion that this appeal has no force and is liable to be dismissed.
ORDER
The appeal is dismissed.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission today itself.
( RAJENDRA SINGH ) ( SUSHIL KUMAR )
PRESIDING MEMBER MEMBER
Judgment dated/typed/signed and pronounced in the open court today by us.
( RAJENDRA SINGH ) ( SUSHIL KUMAR )
PRESIDING MEMBER MEMBER
