Shri Debasish Bandyopadhyay,  Hon’ble President.

Brief fact of this case:-  This case has been filed U/s. 12 of the Consumer Protection Act, 1986 by the complainant stating that the complainant met with the opposite party no. 1 and wanted to purchase a Hero H.F. Duluxe Cast motor cycle/ byke from the shop of the opposite party no. 1 and it was settled that the complainant would pay a sum of Rs. 40,000/- and balance amount would be paid by equal installment and the opposite party no. 1 would arrange for financer and then agreed with the proposal the complainant advanced a sum of Rs. 40,000/- in cash and also handed over six nos signed cheque drawn from SBI. On 20.3.2017 the opposite party no. 1 supplied one blank blue colour Hero H.F. Duluxe Cast motor byke being its chasis no. MBLHA 11 A.T. G-9 L07416, engine no. HA11EJG9L14948 key no. 1937, excide battery no. M7K6N7995587J65 and also issued road challan in favour of the complainant and on returning home the complainant observed that the engine of the byke over heated and engine oil ooze through opening of byke and then the complainant informed the matter to the opposite party no. 1 and asked him to change the bike immediately and also on next day he went to the shop of opposite party no. 1. Then the opposite party no. 1 advised him to use the byke and if any problem continued then he would replace it and on that date the employee of the opposite party no. 1 issued a kancha receipt. Though the complainant returned his purchased bike to the opposite party no. 1 yet he did nothing. On the other hand, opposite party no. 1 informed the complainant that he would repair the defect by his own employee and requested the complainant to take the said bike after repairing. On 3.4.2017 the complainant filed an application for handing over new bike immediately but ignoring the objection the employee of opposite party no. 1 opened the engine of the said bike but he was unable to repair the defect and for this he informed that he would send the bike to the main dealer, opposite party no. 2.

            On 10.4.2017 the opposite party no. 2 sent a letter to the complainant informing the complainant that his defect of bike has been solved and requested him to contact with the opposite party no. 1 and opposite party no. 2 has closed the complain matter of the complainant and being dissatisfied on 18.4.2017 the complainant sent a notice to the opposite party no. 1 as opposite party nos. 1 and 2 declined to replace the existing defective bike by a new one. On 26.4.2017 opposite party no. 2 sent a letter to complainant for returning back the disputed bike as he completed all problems of that bike. On 2.5.2017 the opposite party no. 2 again sent a notice to the complainant requested the complainant to tack back the said bike within 3.5.2017 to 9.5.2017 positively from the workshop of opposite party no. 2 and in default they demanded Rs. 100 per night as parking charge.

Complainant filed the complaint petition praying direction upon the opposite party nos. 1 and 2 to replace the bike Hero H.F. Duluxe Cast by new one of same model and pay a sum of Rs. 40,000/- with 13% interest from 20.3.2017 to till realization and to pay a sum of Rs. 1,50,000/- for mental agony and harassment and to pay s sum of Rs. 10,000/- for litigation cost and to give any other relief/ reliefs as deem fit and proper.

Defense Case:-  The opposite party Nos. 1 and 2 contested the case by filing written version denying inter-alia all the material allegation as leveled against them and states that the complainant purchased the said bike-in-question after registering his name as the owner of that bike in the office of the regional transport authority like others and in case of any trouble and/ or manufacturing defect, if find out in any new vehicle, from the end of the manufacturer, sold through dealer and/ or sub-dealer, manufacturer company provide servicing and/ or repairing of the vehicle within its warranty period. In this regard, the opposite parties duly repaired and made servicing of the said bike properly (changing and/ or replacing spare parts if require) free of cost after having complaint from the complainant/ purchaser/ registered owner of the bike. But the complainant intentionally and deliberately refused to accept the same, as because, he intended to get another new bike from the opposite parties instead of his new bike which he purchased after making registration, ignoring the registration of the said bike, already registered in his name to the competent registering authority, or disobeying the Motor Vehicles Act and Rules and to get compensation amount by his cleverity and dishonesty. So, the complainant has no right to file this case and his instant petition must be dismissed with exemplary cost.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Dewanganj, Goghat, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 20 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of Section 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable relating to the facts highlighted in this case and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   Now the question is whether this case is maintainable according to the provisions of the law of contract, law of guarantee and law of warranty or not? In this regard it is important to note that the market is flooded with millions of products of same nature, type, size and quality, which make it hard to pick one product over the other. As a buyer, one person can specify the product of his own choice by setting standard for manufacturing entities. In this regard, it is very vital to know about the definition of guarantee. The guarantee is defined as promise for the after sales performance of the product or service. It expresses that the manufacturer has given promise regarding the content, quality or performance of the product and in case the obligation is not fulfilled then manufacturer will replace or repair the product or the money paid as consideration will be refunded. Under Indian Contract Act, in the contact of guarantee there are three parties namely, surety, principal debtor, creditor where manufacturer acts as a surety, if the performance of the product is below average. On this background the definition of warranty is very important. Warrantee is define as an assurance given by the manufacturer or seller to the buyer that this specified facts about the product are true. It is a collateral condition to the main objective of the contract. It specifies that the particular product is upto this standard in respect of its quality, fitness and performance. It applies to tangible objects like machines, electronic equipments etc.

On close compare of the definition of guarantee and warranty the following differences are appearing;-

        On parallel comparison of the above noted legal provisions with the case of the complainant it appears that the instant case of the complainant is not coming under the purview of law of guarantee but it falls under the definition of warranty and so the complainant cannot confuse himself with the term of guarantee and warranty. As the complainant’s case is falling under the definition of warranty, the complainant has only received written assurance from the manufacturer or seller that the facts specified in the product (blank blue colour Hero H.F. Dulux Cast motor byke being its chasis no. MBLHA 11 A.T. G-9 L07416, engine no. HA11EJG9L14948 key no. 1937, excide battery no. M7K6N7995587J65) is true and genuine and the complainant is only entitled to get the chance of repairing/ repairing parts of the said product and the cost is to be borne by the buyer that is complainant has to pay for the warranty. Thus, the complainant’s averments in the petition of complaint is not wholly true and reliable.

Moreover, in order to prove the fact that the product (blank blue colour Hero H.F. Dulux Cast motor byke being its chasis no. MBLHA 11 A.T. G-9 L07416, engine no. HA11EJG9L14948 key no. 1937, excide battery no. M7K6N7995587J65) was containing manufacturing defect, there was urgent necessity for the complainant for expert examination of the said product but in this instant case the complainant has not prayed such relief. So, the question of replacing the product on the ground of manufacturing the defect cannot be allowed as the fact of manufacturing defect in the said product (blank blue colour Hero H.F. Dulux Cast motor byke being its chasis no. MBLHA 11 A.T. G-9 L07416, engine no. HA11EJG9L14948 key no. 1937, excide battery no. M7K6N7995587J65) has not been proved by the complainant by way of giving expert evidence. In this regard, it is also important to note that the complainant has informed the local service center for repairing the problem developed in the said blank blue colour Hero H.F. Dulux Cast motor byke being its chasis no. MBLHA 11 A.T. G-9 L07416, engine no. HA11EJG9L14948 key no. 1937, excide battery no. M7K6N7995587J65 and local service center has also repaired the same against payment of charges. In respect of payment of payment of charges the complainant has raised objection. But facts remain that as per rule of warranty the buyer must has to pay the cost and so this objection of the complainant cannot be accepted.

A cumulative consideration of the above noted discussion goes to show that the complainant has miserably failed to prove that this case is maintainable in the eye of law and complainant has also afield to establish that he is entitled to get relief in this case and that there was deficiency of service on the part of the opposite parties.  In view of this position, this District Commission has no other way but to decide all the above noted five points of consideration against the complainant.          

In the result it is accordingly

ordered

that the complaint case being no. 142 of 2017 be and the same is dismissed on contest.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.