Ms. Nipur Chandna, Member

1. In brief facts of the present case are that the complainant purchased a motor cycle model CB Twister (CBF110MC), type 2ID, colour PNS Black, Frame no. ME4JC476GC7048785, engine no. JC47E2155234, Registration number DL 8S BB 2160 from OP1 who is authorized dealer of Honda Motorcycle and Scooter India Pvt. Ltd. billing of the said bike was also made from OP1.

2. It is stated that complainant was enticed and impressed upon with various assurances of providing services including EXTENDED WARRANTY on an extra payment. It is further stated that the complainant on purchase of above vehicle paid an amount to the OP1 INR. 57679/-  (Fifty Seven Thousand Six Hundred Seventy Nine) made vide No PP1891 (2012-13) dated 28 july, 2012 as consideration. It is further stated that the complainant also paid, extra amount for extended warranty alongwith payment for Road Tax, INR. Three Thousand One Hundred Thirty One and Paisa Zero only 3131/- vide receipt no.44951 dated 03.08.2012. It is stated that the OP1 is authorized dealer of OP2 and OP3 is authorized workshop/service station of OP1 hence OP2 and 3 are fully responsible for the acts done by the OP1 for and on their behalf. It is further stated that due to the regular troubles in the performance of bike, complainant detected various problems. Complainant took his bike to authorized workshop for its service and informed all troubles to OP3.

3. It is stated that just after 2^nd service bike started creating problem and it was creating regular disturbance regarding start up and bike handle locking with other defects. Accordingly, complainant visited the OP3 as and when required as per guidelines and during the service process all cost were paid by complainant  on 05.08.2012 vide invoice no.12IW06918 for Rs.198.00 for service, on 25.11.2012 vide invoice no.12IW13829 for Rs.215.00 for service, on 10.02.2013 vide invoice no.12IW18044 for Rs.215.00 for service, on 12.04.2013 vide invoice no.13IW00638 for Rs.4226.00 for parts changed and on 20.04.2013 vide invoice no.13IW01055 for Rs.4768.00 for claim processed. It is further stated that after abovesaid repair work dated 10.2.2013, said vehicle worked properly for a very short span of time and it again started creating some problem as earlier.
4. It is stated that after 3^rd service vehicle repeated earlier errors time to time. Complainant found himself in a helpless situation and contacted officials of OP3 requesting them to remove errors and faults. But OP3 not hear and entertain the problem of the complainant and only due to his repeated requests to deal fairly,  officials started behaving rudely and in insulting way and challenged him to do whatever he can. It is further stated that as a result of the deficiency in service rendered by OP3 one accident took place because of same errors and faults, resulting in severe injuries as the bike locked automatically while riding on main high road.

5. It is stated that again on 12.04.2013 vehicle was dropped at workshop of OP-3. It was given back to complainant but as problem remains same vehicle was again dropped at OP3. Complainant also made a written representation to the OP2 and 3 disclosing the entire facts via email sent from email id th  to 20^th  April 2013.

6. It is stated that despite spending huge amount INR. Fifty Seven Thousand Six Hundred Seventy on purchase of the above mentioned  vehicle from OP1 complainant is not able to enjoy the same without any fault on his part. It is further stated that the aforesaid OP no.1, 2 and 3 are liable to either to replace the vehicle with new one /remove the said defects of the vehicle /refund the cost of said vehicle to my client. It is further stated that OPs failed to render quality service as assured at the time of selling the vehicle and could not remove the defects, hence, OPs are liable to pay compensation for the damages suffered by complainant and also for the mental and physical agony suffered by him, hence, this complaint.

7. OP2 served with notice but failed  to appear, therefore, proceeded ex parte vide order dated 11.11.2014.

8. OP1 and 3 jointly filed detailed WS. It is stated that the complainant purchased motorcycle bearing registration no. DL8SBB2160 from the answering OP-1 which was manufactured by OP2. It is further stated that the purchase of the motorcycle, the complainant visited the workshop of the answering OP for regular service and never reported any specific problem in the bike. It is stated that the complainant never complained about the problem of the handle lock at any point of time. It is further stated that the complainant visited the workshop for the first time on 05.08.2012 for 1^st free service, then visited on 26.08.2012, 25.11.2012, 10.02.2013, for free services and thereafter visited on 11.04.2013 for normal service. Thereafter, the complainant visited on 15.04.2013 for accidental repair and the accidental claim was processed with the insurance company. At all the visits of the complainant the motorcycle of the complainant was serviced to the satisfaction and the complainant never raised any issue regarding the handle lock.

9. It is stated that even after the filing of the present complaint the complainant is visiting the workshop of the answering OP for getting his motorcycle regular service. The complainant visited the workshop on 11.07.213, 07.10.2013 and 24.10.2013 for regular maintenance of the motorcycle. The motorcycle of the complainant does not bear any manufacturing defect. The accident of the motorcycle was caused due to the negligence of the complainant. The complainant has intentionally concealed the police report of the accident and has also concealed the details and other documents such claim form submitted to the insurance company for getting the claim processed.

10. It is stated that the complainant has not approached this Hon’ble Court with clean hands and has suppressed the material facts from this Hon’ble court. The complainant is having malafide intentions to extract the money from the OPs by misusing the provisions of the Consumer Protection Act. Hence, the complaint is liable to be dismissed in limine.
11. Complainant filed rejoinder and denied all the allegations made in the WS and reiterated contents of the complaint.

12. Complainant filed evidence by way of his affidavit and reiterated contents of the complaint. Complainant relied on copy of payment receipt Ex.CW1/1, copy of another payment receipt Ex.CW1/2, copy of receipts paid during service process Ex.CW1/3 to CW1/7, copy of email sent to OP2 and 3 Ex.CW1/8, copy of written complaint via email Ex.CW1/9, copy of complaint Ex.CW1/10 and copy of legal notice Ex.CW1/11.

13. OP filed evidence by way of affidavit of Sh. Harpreet Singh Asst Manager and reiterated contents of WS. OP relied on copy of service history of motorcycle Ex.RW1/1.

14. Written arguments filed by complainant and OP-1 & OP-3. OP-2 remained ex parte.

15. We have  heard complainant in person and Sh. D.K Sinha counsel for OP-1 & OP-3 and perused the record.

16. The complainant alleged that the OPs fraudulently sold defective vehicle as such accident took place because of the fault/defect in vehicle, resulting in severe injuries as the bike locked automatically while riding on main high road.The complainant alleged manufacturing defect in the sold vehicle. Let us peruse the law in this regard. It is well settled that the onus to prove the manufacturing defect raised upon complainant. It is held in SGS India Ltd. Vs Dolphin International Ltd. in Civil appeal No. 5759 of 2009 decided on 06.10.2021 (Supreme Court) in which it is held as under:

The onus of proof of deficiency in service  is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a judgment of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines, this court held that the burden of proving the deficiency in service is upon the person who alleged it.

“6. The deficiency in service cannot be alleged without attributing fault, imperfection, short coming or inadequacy in the quality nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any willful fault, imperfection, shortcoming or inadequacy in the service of the respondent. ……”

17. The OP-1 & 3 have placed on record job sheets. For the first time on 05.08.2012 for 1^st free service, then visited on 26.08.2012, 25.11.2012, 10.02.2013, for free services and thereafter visited on 11.04.2013 for normal service. Thereafter, the complainant visited on 15.04.2013 for accidental repair and the accidental claim was processed with the insurance company. At all the visits of the complainant the motorcycle of the complainant was serviced to the satisfaction and the complainant never raised any issue regarding the handle lock dated 10.11.2012 which is first free service. According to which OP changed engine oil and performed the regular service of the vehicle in question up to the satisfaction of the complainant. As per the job sheet dated 15.04.2013 complainant visited OP-3 for rectifying the accidental damages occurred in the vehicle due to accident and the same were carried by OP. The complainant has failed to place on record any documentary evidence which shows that the accident occurred due to handle lock and the vehicle is suffering from manufacturing defect. The vehicle history and job cards filed by OPs also establish that whenever the vehicle was  sent to the workshop satisfactory work has been done.

18. The dispute raised by complainant with respect to the manufacturing defect of defective vehicle sold by OP requires analysis on the basis of documents filed on record. Let us peruse the law laid down in the case of “ Classic automobiles Vs. Lila Nand Mishra” as reported in I [2010] CPJ 235 (NC) wherein, the Hon’ble National Commission while dealing with the similar case has hold as under:

“ The onus to prove that there existed a manufacturing defect was on complainant/respondent No.1. We agree with the contentions raised by the learned counsel for the petitioner that complainant/respondent nO.1 failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant failed to produce expert evidence as provided under Section 13 (1) (c) of the Consumer protection Act, 1986.”

19. Further, under catena of Judgements name “EID Parry Vs. Baby Benjamin-I (1992) CPJ 279, Tata Motors Vs. Sunil Bhasin –III (2008) CPJ 111, Chandreshwar Vs. Telco-I (2007) CPJ 2, Diamond Cement Vs. Rai Prexin India Pvt. Ltd. I (2003) CPJ I and Lovely Vs. Harmesh Lal-I (2007) CPJ 312.” On similar issues, the Hon’ble National Commission has held that expert opinion is a condition precedent for establishing manufacturing defect.

20. In the present case the main grievance alleged by the complainant is that accident took place because of the fault/defect in vehicle, resulting in severe injuries as the bike locked automatically while riding on main high road. There is no documents filed on record or expert report filed on record to establish the cause of accident is the manufacturing defect in the lock of the vehicle in question.

21. The complainant has alleged in his complaint that he had paid extra money  for extended warranty against the vehicle in question, hence, the OP has arbitrarily charged the repairing expenses, hence, the same be refunded to him along with interest besides other reliefs. The complainant has failed to place on record any documents pertaining to the extended warranty in respect to the vehicle in question, hence, we are of the considered view that the OP-3 was justified in charging the repairing expenses from complainant.

22. On the basis of above observation and discussion complainant failed  to establish manufacturing defect in the vehicle bearing Registration No. DL 8S BB 2160 and deficiency of service  on the part of OPs. Hence, present complaint is dismissed. No order as to cost. File be consigned  to record room.
23. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  26.03.2024.

    SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER