ORDER

(Per: Mr. D.K. Tyagi, Member):

            These two appeals filed under Section 15 of the Consumer Protection Act, 1986 arise out of the order dated 23.07.2013 passed by the District Forum, Nainital in consumer complaint No. 79 of 2012.  By the impugned order, the District Forum has allowed the consumer complaint against the opposite party No. 1- The Manager (Sh. D.S. Fartiyal) Bajrang Automobiles Pvt. Ltd., Rampur Road Site-IV, Haldwani, District Nainital, Uttarakhand on merit and against opposite party No. 2–The Managing Director, Hero Moto Corp Ltd., 34 Community Centre, Basant Lok-Basant Vihar, New Delhi-57 and directed the opposite parties, jointly or separately, to provide a new motorcycle Splendor in place of Splendor-Pro Engine No. HA-10 ELC9C 09490 Chassis No. MBLHA-10 AS 9 C-07404 or to pay Rs. 46,762/- to the complainant within a month from the date of this order.  The District Forum has also directed to pay Rs. 5,000/- to the complainant as litigation expenses.  It was also directed that in case of non-compliance of this order within a month, the opposite parties shall pay Rs. 46,762/-, jointly or separately, to the complainant alongwith interest @6% per annum from the date of filing the consumer complaint. Litigation expenses Rs. 5,000/- shall be paid in both conditions.  On the date of compliance of the order, the complainant shall handover all the documents of said motorcycle/letter of subrogation.  Since both the two appeals arise out of the same order passed by the District Forum, therefore, these appeal are being disposed of by this Common order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Gaurav Pandey purchased a motorcycle, Splendor-Pro Engine No. HA-10 ELC9C 09490 Chassis No. MBLHA-10 AS 9 C-07404, from the opposite party No. 1 on 30.03.2012 for a consideration of Rs. 46,762/- paid in cash to the opposite party No. 1 vide invoice No. 10477-02 SINV-0412-65 dated 06.04.2012.  The said vehicle is registered vide Registration No. UK04-M-2520.  That at the time of purchase, it was assured by the opposite party No. 1 that the said motorcycle is under warranty of three years from the date of purchase and any defect occurring within that period will be rectified promptly and free of cost.  Since the date of purchase, the said motorcycle is suffering from defect of engine and the same was brought to the opposite party for rectifying the defect on 10.04.2012, 23.04.2012, 11.05.2012 and again on 28.06.2012, but nothing fruitful was done by the opposite party No. 1 and the said motorcycle remain defective till date.  The matter was brought to the notice of opposite parties in writing vide registered letter dated 12.05.2012, it also evoked no response from the opposite parties.  The matter was also reported to the District Magistrate, Nainital on 23.06.2012, who had wrote to the opposite party No. 1 to rectify the defect, but it also evoked no response from the opposite party No. 1.  The complainant served a legal notice dated 04.07.2012 to the opposite parties through his counsel Sh. D.C. Mishra, Advocate, but all went in vain.  The motorcycle is used by the complainant for looking after his business in hilly area and due to non-plying of the same, he suffered a loss in terms of about Rs. 20,000/- and he also suffered mental agony for the same. The opposite parties committed gross negligence to sort out the grievances of the complainant and there is great deficiency in service on the part of the opposite parties, which caused the great loss and injury to the complainant, for which he is entitled to get compensation in this regard from the opposite parties. The cause of action arose on 30.03.2012, when the motorcycle was purchased and till date as the motorcycle remain defective despite service of legal notice dated 04.07.2012.  Therefore, the opposite parties be directed for the replacement of defective motorcycle with new one or award the cost of motorcycle, i.e. 46,762/- to the complainant and compensation of Rs. 10,000/- for the loss suffered in business due to non-plying of the motorcycle and award Rs. 25,000/- for mental injury and interest suffered due to defective motorcycle and also award Rs. 5,000/- as litigation expenses.  

3.       The opposite party No. 1 has filed written statement before the District Forum, Nainital and pleaded that the said motorcycle in question was not having warranty of 3 years, but it is having warranty of 2 years or 20,000 Kms., whichever is earlier.  The said motorcycle was in perfect running condition at that time.  The minor defect in the said motorcycle of the complainant was rectified free of cost up to the satisfaction of the complainant by the answering opposite party No. 1.  The answering opposite party No. 1 properly replied the notice of the complainant.  The complainant is not entitle for any relief as sought by him in his consumer complaint from the answering opposite party. In additional statements the opposite party No. 1 has pleaded that whenever the complainant reported any minor defect in his motorcycle in question, keeping in mind the interests of complainant, the same were rectified free of cost promptly by the answering opposite party No. 1 upon the complainant’s full satisfaction.  Lastly when the said motorcycle was brought by the complainant to the answering opposite party’s workshop for service and noise check in engine on 28.06.2012, service was done and noise defect was rectified free of cost by the answering opposite party No. 1 properly by good mechanically skilled mechanics of opposite party No. 1 and the complainant was intimated about the same and was asked to take his motorcycle and letter dated 03.07.2012 regarding the same was also sent to the complainant, but he did not come to take his said motorcycle.  The answering opposite party No. 1 has never done any deficiency in service.  The complainant’s intention is malafide and merely to harass the answering opposite party No. 1, has filed a false and frivolous complaint against the answering opposite party No. 1 merely in haste, which is premature and no cause of action arose as the complainant sent the notice to the answering opposite party No. 1 on 04.07.2012, in which 15 days’ time was given to the answering opposite party No. 1, but the complainant even without waiting for 15 days, instituted the consumer complaint before 15 days, i.e. 18.07.2015.  On this ground alone, the present complaint is worth enough to be dismissed with heavy costs at this instant stage. 

4.       The opposite party No. 2-The Managing Director, Hero Moto Corp Ltd. did not file any written statement before the District Forum, therefore, the case was proceeded ex-parte against the opposite party No. 2.

5.       The District Forum, on an appreciation of the material on record, has allowed the consumer complaint against the opposite party Nos. 1 & 2, on merit against the opposite party No. 1 as well as ex-parte against the opposite party No. 2 vide order dated 23.07.2013 in the above manner.  Aggrieved by the said order, the opposite party No. 1 has filed First Appeal No. 231 of 2013 and whereas the opposite party No. 2 has filed the First Appeal No. 235 of 2013, thereby assailing the propriety and the legality of the impugned order passed by the District Forum.  The opposite party No. 2 has filed the said appeal with a prayer that the ex-parte judgment dated 23.07.2013 passed against the opposite party No. 2 be set aside and the consumer complaint be dismissed or in the alternative an opportunity be given to the appellant-opposite party No. 2 to produce its defense alongwith evidence in appeal or the ex-parte judgment be set aside and the matter be remanded back to the District Forum for fresh adjudication by giving proper opportunity to the appellant to file its defense.

6.       We have heard learned counsel for the appellant-The Manager, Bajrang Automobiles Pvt. Ltd. in First Appeal No. 231 of 2013; appellant-Hero Moto Corp Pvt. Ltd. in First Appeal No. 235 of 2013 and also Sh. Gaurav Pandey, who is a respondent No. 1 in both the appeals.  We have also perused the record as well as case laws produced before this Commission.   

7.       There is no dispute that the complainant-respondent No. 1 Sh. Gaurav Pandey had purchased a motorcycle Splendor from the opposite party No. 1-appellant M/s Bajrang Automobiles Private Ltd. on 30.03.2012 for a sum of Rs. 46,762/-.  There is also no dispute that there was a warranty of 2 years or 20,000 Kms, which comes earlier as per the written statement filed by the opposite party No. 1-appellant.  From the perusal of the consumer complaint, it is evident that the complainant-respondent No. 1 has mentioned that there was a warranty of 3 years, but in the written statement the appellant-opposite party No. 1 has clearly stated that on purchase of the said motorcycle, warranty of 2 years or 20,000 Kms, which comes earlier was given.  There is no replication filed by the complainant-respondent No. 1 regarding the warranty on the said motorcycle.

8.       Learned counsel for the appellant-opposite party No. 1 has submitted before the Commission that the District Forum, Nainital has only relied on the contentions of the complainant and ignored the contents of the written statement filed by the appellant-opposite party No. 1 and evidence adduced by the appellant-opposite party No. 1 before the said Forum.  Learned counsel has also argued that the minor defects in the said motorcycle were always rectified free of cost up to the satisfaction of the complainant-respondent No. 1 by the expert and trained mechanics of the appellant’s workshop.   The complainant and a mechanic of appellant’s workshop went for a trial from Haldwani to Nainital covering a distance of about 40 Kms. and came back to Haldwani and the complainant-respondent No. 1 was satisfied with the same, but still he did not take the said motorcycle and went off saying that he will come to receive the said motorcycle after 2-3 days, but he never turned up.  The complainant-respondent No. 1 had never adduced any evidence of any automobile expert in support of the so called defects before the District Forum and the District Forum has ignored this fact though it was argued by the counsel for the appellant-opposite party No. 1.  Learned counsel has also argued that the District Forum has not considered the fact that after repairing the said minor defect, the said motorcycle was in a roadworthy driving condition and a letter was sent to respondent No. 1 by the appellant asking the respondent No. 1 to come and receive his said motorcycle, but the respondent No. 1 did not come to the appellant’s workshop to take his motorcycle.  There is no deficiency in service on the part of the appellant-opposite party No. 1, moreover the appellant has always kept in mind the interests of respondent No. 1.  The District Forum has only relied upon the submissions and evidence of the respondent No. 1 and conveniently ignored the same of the appellant.

9.       Learned counsel for the opposite party No. 2-appellant in First Appeal No. 235 of 2013 has submitted that when the motorcycle was under warranty, then the opposite parties were only under obligation to repair the same and not liable for replacement.  Learned counsel also argued that it was the duty of the complainant-respondent No. 1 to establish his case that the said motorcycle was suffering with any sort of manufacturing defect, which could not be removed in spite of best efforts made by Automobile Engineer and the District Forum cannot direct for replacement of the said motorcycle.  The onus to prove that there was any manufacturing defect was on respondent No. 1.  Learned counsel argued that only on the basis of repairing of vehicle on few occasions, it cannot be said that the vehicle was having manufacturing defects.  The compliance of Section 13(1)(c) of the Consumer Protection Act, 1986 has not made by the respondent No. 1 as well as the District Forum.  Everything possible was done to meet the complaints made by the complainant and for his satisfaction a test drive of more than 40 Kms. was taken by the mechanic of respondent No. 2-M/s Bajrang Automobiles Pvt. Ltd.  However, instead of taking delivery of the vehicle, the respondent No. 1 continued to insist on replacement of the vehicle, which was not contemplated under the warranty given by the manufacturing company when the vehicle was delivered to him.  No cogent evidence and material was led by the respondent No. 1 to substantiate his case and the dealer, i.e. respondent No. 2 has repaired the alleged motorcycle of the respondent No. 1 free of cost and the same was made defect free, but still the respondent No. 1 failed to take back the same.  Prior to filing the complaint, the said motorcycle was fully repaired by respondent No. 2 and in this regard a letter was also dispatched to him by respondent No. 2 for collecting his alleged motorcycle, however, the respondent No. 1 willfully restrained himself from doing the needful.  Learned counsel argued that no technical report/expert report in regard to any defect that can be termed as manufacturing defect was available on the case file. The complainant failed to show any iota of evidence in support of his alleged contention of mechanical defect.  Without going into the depth of this aspect that the said defect was repairable or un-repairable, the District Forum has passed the impugned order. The District Forum has erred in presuming that the notice of service was served upon the opposite party No. 2-appellant, even the notice sent by the complainant-respondent No. 1 was addressed to opposite party No. 1 and a copy of the same was sent to the appellant-opposite party No. 2 for information only.  The appellant first time came to know about the consumer complaint when the respondent No. 2-opposite party No. 1 informed the appellant about the impugned order and, therefore, the District Forum erred in allowing the consumer complaint of the complainant ex-parte without giving proper opportunity of hearing to the appellant-opposite party No. 2 to file its defense.

10.     From the perusal of the record of the District Forum, Nainital regarding the consumer complaint No. 79 of 2012, it is evident that the complainant has not filed any evidence regarding the warranty of the said motorcycle, which was purchased from the opposite party No. 1-M/s Bajrang Automobiles Pvt. Ltd.  Even then, according to the facts mentioned in the written statement, there was a warranty of 2 years or 20,000 Kms. which comes earlier.  The said motorcycle was purchased by the complainant on 30.03.2012 and he filed the consumer complaint before the District Forum on 18.07.2012, i.e. within a warranty period.

11.     Learned counsel for the appellant-M/s Bajrang Automobiles Pvt. Ltd. has referred a decision of Hon’ble National Consumer Disputes Redressal Commission in the case of Classic Automobiles vs. Lila Nand Mishra & Ors.; I (2010) CPJ 235 (NC).  In the said case, the Hon’ble National Commission has 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 the vehicle suffering from manufacturing defects. Manufacturing defects in vehicle not proved.  In the case of Ess Pee Automotives Ltd. Through its Director vs. SPN Singh & Ors.; 2015 (1) CPR 321 (NC), the Hon’ble National Commission has held that the dealer cannot be held liable for manufacturing defects in car. 

12.     In the case of Tata Engineering & Locomotive Co. Ltd. & Ors. vs. Bachchi Ram Dangwal & Anr.; II (2009) CPJ 90 (NC), the Hon’ble National Commission has held that the 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 Sukhvinder Singh vs. Classic Automobile & Anr.; I (2013) CPJ 47 (NC), the Hon’ble National Commission has 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. In the case of Tata Motors Ltd. vs. Deepak Goyal & Ors.; I (2015) CPJ 607 (NC), the Hon’ble National Commission has held that merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects.

13.     Learned counsel for the appellant-opposite party No. 2 has quoted some decisions in the its appeal No. 235 of 2013.  In the case of Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra & Anr.; II (2006) CPJ 3 (SC), the Hon’ble Supreme Court has held that when the vehicle was under warranty then the opposite parties/appellants were only under obligation to repair the same and not liable for replacement. In the case of Tata Motors Limited vs. Sunil Kumar; (2012) 2 CPR (NC) 379, the Hon’ble National Commission has held that the State Commission could have put subjected truck for inspection by a qualified mechanical engineer and could have directed petitioners to replace defective part by a new one, but could not have directed them to replace whole vehicle as such or refund price of vehicle. In the case of Royal Enfield Motor Ltd. vs. Kulwant Singh Chauhan, (2011) 4 CPR 208, the Hon’ble National Commission has held that it was duty of the complainant to establish his case that motorcycle was suffering with any sort of manufacturing defect, which could not be removed in spite of best efforts made by Automobile Engineer.  Direction issued by District Forum for replacement of motorcycle is wrong and not justified and liable to be set aside.  The Hon’ble National Commission in the case of Kumari Namrata Singh vs. Manager, Indus; (2012) 3 CPR (NC) 570, has held that only on the basis of repairing of vehicle on few occasions, it cannot be said that the vehicle was having manufacturing defects.  For proving fact of manufacturing defect expert opinion is necessary which is lacking in present case.  Likewise, in so many judgments the Hon’ble National Commission has expressed its view that the onus to prove any manufacturing defect was always on the complainant.

14.     Citations submitted by the appellants (Both in First Appeal No. 231 of 2013 and First Appeal No. 235 of 2013) are fully applicable in this case also.  The complainant-respondent No. 1 in both the appeals, neither submitted any cogent evidence or reliable expert evidence of any automobile engineer or expert to prove that there is a manufacturing defect in the said motorcycle nor he had prayed before the District Forum to obtain expert report from an automobile engineer by sending the said motorcycle in any lab for test with a view to find out whether such motorcycle was suffering from any defect alleged in the consumer complaint.

15.     From the perusal of the record of the job cards, it is evident that the appellant-opposite party No. 1 has given satisfactory services to the complainant-respondent No. 1.  The appellant-opposite party No. 1 sent a letter dated 03.07.2012 to the respondent No. 1 to take his motorcycle, which was given by the complainant for service in the workshop vide job card No. 1942/5085.  Even then the complainant did not came to collect his motorcycle and instead of taking the motorcycle from the appellant’s workshop, he filed a consumer complaint before the District Forum against the opposite parties on 18.07.2012, i.e. before the completion of the time of legal notice dated 04.07.2012.  The respondent No. 1 has neither mentioned any specific manufacturing defect in the engine or any other part of the motorcycle nor submitted any technical report before the District Forum and the District Forum has also did not care to ask the respondent No. 1 for technical report/expert report regarding any manufacturing defect in the motorcycle.  In compliance of Section 13(1)(c) of the Consumer Protection Act, 1986, the District Forum has neither ordered to present the motorcycle for technical/expert report nor ordered the complainant to file any technical/expert report regarding any manufacturing defect in the motorcycle.  

16.     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 both the appeals are fit to be allowed.

17.     For the reasons aforesaid, both the appeals are allowed. The impugned judgment and order dated 23.07.2013 passed by the District Forum, Nainital is set aside and the consumer complaint No. 79 of 2012 is dismissed.  No order as to costs.

18.     Let the copy of the order be kept on the record of First Appeal No. 235 of 2013.