BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.13 of 2017.
Date of Instt.: 12.01.2017.
Date of Decision: 08.09.2017.
Prabhjeet Singh, aged about 30 years son of Bhagat Singh, resident of H.No.162, Block No.1, village Hijranwan Khurd, Tehsil and District Fatehabad.
..Complainant
Versus
1.Hero Motor Crop Limited, 34 Community Centre, Basant Lok, Vasant Vihar, New Dehli-110057.
2.M/s. Shree Balaja Automobiles, Near Mini Secretariat, Fatehabad, District Fatehabad.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh. P.K.Arora, Advocate for complainant.
Sh.M.K.Dharinia, Advocate for the respondents.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the averments that the complainant purchased a scooter/moped make Maestro EDGE bearing Registration No.HR22M-5628 from Op No.2 on 09.06.2016 for a price of Rs.51,600/- and the same was paid at the time of purchase of the vehicle. The OP No.2 assured that the vehicle is having a five years warranty and the company will be liable for any fault in the said vehicle accruing within the period of 5 years from the date of purchase. It is further averred by the complainant that he got the vehicle serviced from the service centre of OPs as per their guidelines. However after a few days from the 2nd service dated 26.08.2016 the said vehicle suddenly stopped while driving and did not start again. Therefore, the vehicle was carried to Op No.2 with the help of other vehicle. After checking OP No.2 informed that engine of the vehicle has seized and it will take few days for repair. The vehicle was handed over to the complainant after 23 days. However, after a few days the vehicle was again unable to start and was having problem with the engine. So the vehicle was again taken to OP No.2 and the problem was resolved. However, after a few days the auto-start of the vehicle stopped working. Thereafter on 15.10.2016 the vehicle was kept by OP No.2 for 3-4 days and delivered the same with assurance that all the problems have been rectified and further assured that in case new problem arises OP will replace the vehicle. Even thereafter also many problems accrued in the vehicle and the OP No.2 had to visit the house of complainant for rectification of same. Thereafter on 05.12.2016 the fourth service of the vehicle was done. However, after a few days starting kick and self of the vehicle stopped working. It is further submitted that the vehicle in question with manufacturing defect was sold to the complainant. Therefore the complainant has suffered huge financial loss, mental agony and physical harassment. Hence, this complaint.
2. Upon notice, both the OPs appeared through counsel and filed a joint written statement wherein various preliminary objections has been taken that the present complaint is false and frivolous; that the complainant has no cause of action to file the present complaint; that the complainant has no locus-stand to file the present complainant; that the complainant is estopped by his own act and conduct etc. On merits it is submitted in the written statement that the vehicle in question was purchased from OP No.2 on 9.06.2016 and the same was under warranty of the company for five years from the date of purchase. However, it is denied that the engine of the said vehicle was seized and the vehicle was having a manufacturing defect. It is further submitted that the complainant had approached OP no.2 for service of the vehicle and after service the vehicle was received O.K. by the complainant. Thereafter on 13.09.2016 the complaint regarding the starting of the vehicle was received and the same was rectified by the OP No.2. Thereafter the complainant visited OP No.2 on 14.11.2016 and 14.12.2016 regarding the complaint in the vehicle and the same was also removed. That on 15.10.2016 the complainant visited the OP No.2 for service of the vehicle and the vehicle was handed over to the complainant on the same day after doing the service. It is incorrect as alleged in the complaint that vehicle was handed over to the complainant after a gap of 3-4 days. It is further submitted that on 05.12.2016 the complainant visited OP No.2 for regular service and the same was done on the same date. It is finally prayed by the OPs that the present complaint is false and concocted and liable to be dismissed.
3. To prove the averments made in the complaint the complainant has tendered in evidence his affidavit as Annexure C1/A and documents as Annexure 1, Annexure 1/A. Annexure 1/B, Annexure 2, Annexure 3, Annexure 3/A, Annexure 3/B, Annexure 3/C, whereas the OPs have tendered in evidence affidavit of Girdhar Lal, Authorized Signatory of Hero Motors Corporation Ltd. and documents as Annexure RW1 and documents as Annexure R1 to R7.
4. We have examined the entire record placed on the case file and have also heard the learned counsel of the parties at length. In the present case the complainant inter-alia has sought relief for refund of the billing amount of Rs.51,600/- of the vehicle in question purchased by him on the ground that the vehicle has manufacturing defect. Therefore the prime question for decision before this Forum arises as to whether the vehicle in question has a manufacturing defect and the complainant is entitled for refund of purchase price of the same. It is pertinent to mention here that to establish the claim for the replacement of the vehicle or refund of the price of the vehicle the complainant was required to prove through cogent, convincing and adequate evidence supported by the opinion of an automobile engineer/expert/ mechanical engineer that the vehicle suffered from inherent manufacturing defects. In our opinion the report of the automobile engineer, in such case is essential so as to enable this Forum to come to the conclusion as to what were the defects persisting in the vehicle and whether those defects were actually inherent manufacturing defects or only minor defects, which were the result of normal wear and tear, improper maintenance of the vehicle or extensive use thereof.
In case titled as Jose Philip Mampillil Vs. premier Automobiles Ltd. & Anr. (cited as 2001(1) CPJ Page 9(SC) and Maruti Udhyog Ltd Vs. Susheel Kumar Gasajofra 2006(2) CPJ Page 3 (SC) the Hon’ble Apex Court laid down that the manufacturer could not be ordered to replace the car or refund its price merely because some defect, appear which could be rectified or defective parts could be replaced under warranty. Similar principal of law was laid down in Chandeshawar Kumar Vs. Tata Engineering Loco Motive Comp. Ltd. 2007(1) CPJ Page 2, M/s E.I.D. Parry (India) Ltd. Vs. Baby Bangamen Thushava 1(1992) CPJ 279 (N.C) a case decided by four member bench of National Consumer Disputes Redressal Commission, New Delhi and Sushila Automobiles Pvt. Ltd. Vs. Dr.Binrender Narayan Parsad 2010(111) 130 (NC).
In the present case, admittedly, no report of the automobile expert or mechanical engineer has been produced on record by the complainant to prove that the vehicle was found to be suffering from inherent manufacturing defects. No doubt the complainant took the vehicle in question as is evident from the record on the case file to the Service Centre of OP No.2 for a number of times for rectification of defects. The mere fact that the vehicle was taken to the Service Centre of Op No.2 a number of times for rectification of facts does not mean that it was suffering from manufacturing defect. Therefore, the vehicle can neither be ordered to be replaced nor the price thereof can be ordered to be refunded.
In Jose Philip Mampillli Vs. Premier Automobiles (supra) the Hon’ble Apex Court has held where the defects in various parts of the car are established, replacement of entire car of refund of price is not called for but direction can be given for rectification of the defects and replacements of defective parts. In view of the said judgment the OPs are directed to ensure that the vehicle in question is in a proper and working condition and shall provide a certificate to this effect to the complainant given by independent technical expert.
The next question that falls for consideration is as to whether the complainant is entitled to compensation for mental agony and physical harassment suffered at the hands of the OPs. A perusal of the record/job-sheets reveals that the complainant had taken the vehicle in question to the service centre of the Ops a number of times for rectification of the defects. On account of the fact that the complainant had to visit the service centre for repair of vehicle after purchase several times certainly it can be concluded that he has suffered mental agony and physical harassment. Therefore, the OPs are directed to pay a compensation of Rs.5,000/- for mental agony, physical harassment and litigation charges to the complainant jointly and severally within a period of one month. Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
Announced in open Forum.
Dated: 08.09.2017.
(Raghbir Singh)
President,
Distt.Consumer Disputes
Redressal Forum, Fatehabad
(Ranbir Singh Panghal) (Ansuya Bishnoi)
Member Member
