Punjab

Ludhiana

CC/20/75

Ritesh Kumar - Complainant(s)

Versus

Honda Motor Cycle & Scooter India Pvt.ltd. - Opp.Party(s)

Munish Mittal Adv.

11 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:75 dated 24.02.2020.                                                 Date of decision: 11.04.2023.

Ritesh Kumar S/o. Sh. Bhola Ram, r/o. Plot No.58, New Shakti Vihar, Pehalwan Dera, Haibowal Kalan, Ludhiana.                                                                                                                                           ..…Complainant

                                                Versus

1. Honda Motor Cycle & Scooter India Pvt. Ltd., Commercial Complex-II, Sector 49-50, Gold Course, Extension Road, Gurgaon (Haryana)-122018 through its General Manager.
2. M/s. Sarvpriya Honda, Sandhu Tower, Ferozepur Road, Ludhiana-141001 through its Owner/Manager/Authorized Signatory.

…..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh. Munish Mittal, Advocate.

For OPs                         :         Sh. Govind Puri, Advocate.

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant visited opposite party No.2 with intention to buy Activa Scooter 100 CC under exchange of his old Activa Scooter which was in the name of his wife Smt. Punita Singla. The showroom representative of opposite party with ill intentions convinced the complainant that Activa Scooter 125 CC is much better from scooter of 100 CC upon which the complainant purchased Activa Scooter 125 CC. Opposite party No.2 assessed value of old acitva as Rs.13,000/- and took another amount of Rs.7,000/- in cash. The total value of Activa scooter 125 CC was Rs.82,500/- including registration charges, high security number plate charges, DTO fee and full Insurance for five years. Opposite party No.2 arranged loan of Rs.64,500/- including fee of Rs.2000/- as file charges for the complainant  which was directly disbursed to opposite party No.2. The complainant stated that opposite party No.2 gave delivery of the showroom demo piece Activa Scooter 125 CC to him to which he refused to accept the same but opposite party No.2 cleverly tried to induce the complainant to take the said piece by stating that there is nothing wrong in it. Even the complainant was not ready to take the same but opposite party No.2 stated that now all the documentations including loan formalities have been completed and the complainant has left no remedy except to accept the delivery of said piece. The complainant further stated that he accept the delivery with heavy heart but the very first day, the said active scooter gave trouble as there was some irritating noise from the front side and also from the back side. Its engine was also giving some unfriendly noise. The complainant immediately reported the matter to opposite party No.2 but he did nothing and simply told that it is only a psychiatric problem of the complainant. The complainant during the first and second service of the active also reported the same complaint but opposite party No.2 did not bother for the same and ultimately the self of said active failed to respond and even the kick was also locked. The complainant told the said problem to opposite party but it did not care. However, on repeated complaints, the mechanic of opposite party No.1 visited the premises of complainant who tried to get it in working condition but failed to do so. Ultimately the toe van of opposite party No.2 took the activa with it and still it is with opposite party No.2. The complainant further stated that there was manufacturing defect in the active. Despite that opposite party No.2 sold the said active to the complainant that it was a defective piece and the said model was out of order at the time it was sold to him. Even when he took statement of loan account he was shocked and surprise to see that the loan amount sanctioned and disbursed to opposite party was Rs.68,051/-, thus opposite party No.2 has taken much amount from the actual amount stated to the complainant. The complainant also served a legal notice upon the opposite parties through counsel. Opposite party No.2 issued letter dated 10.01.2020 by stating that there was minor defect which was now removed but the said presumption of the opposite party was wrong and reply was also given by the complainant through his counsel. The complainant was compelled to buy new two wheeler model Jupiter by way of finance and is under obligation to repay two loans. Rather he was having no need of another vehicle. In the end, the complainant has made a prayer to replace the defective activa scooter with new one and to pay Rs.1,00,000/- as compensation besides Rs.11,000/- as litigation expenses.

2.                Upon notice, the opposite part No.1 appeared and filed written statement by taking preliminary objections that the complainant has concealed the true and correct facts and has not come with clean hands; lack of jurisdiction of this Commission; the complaint is a gross abuse of process of law. Opposite party No.1 alleged that the scooter is in perfect running condition and there is no such defect as alleged by the complainant. The complainant lodged complaint with opposite party No.2 on 17.12.2019 that his scooter is not getting start and accordingly opposite party No.2 sent a service pickup van at the house of the complainant to pickup the scooter for repairs. The job sheet dated 17.12.2019 was issued. Opposite party No.2 at its workshop duly checked the scooter of the complainant and found that carburetor has been chocked due to which it was not getting started. The carburetor was duly cleaned and the other minor problems of ‘molding side stand loose and noise’ were also rectified. As the scooter was covered under warranty, the repair/rectification was done free of cost. Opposite party No.2 called upon the complainant to take back his scooter as the same has been duly rectified but instead of taking the delivery of his scooter, the complainant served a legal notice dated 21.12.2019 on false allegations to which opposite party replied vide letter dated 10.01.2020 requesting the complainant to take back his duly rectified scooter but he did not bother to check his scooter and take delivery. Opposite party No.2 also wrote letters dated 22.01.2020 and 20.02.2020 calling upon the complainant to take delivery of his scooter but he did not take the delivery of the scooter and now trying to take benefit of his own wrong and filed the present complaint by concealing true facts. Opposite party No.2 further stated that their obligation under the warranty is to set right the scooter by repairing or replacing the defective parts. In the present case the scooter in question has been mishandled by the complainant leading to the chocking of carburetor due to which scooter was not starting. The performance of the scooter depends upon the driving habits of the driver and the condition of the road or terrain on which the scooter is being driven. No such assurance to replace the scooter was given by them under the terms of warranty and the complainant cannot claim more than he has agreed. As and when complainant brought his scooter for free service, the same was duly attended and the opposite parties are still ready to render further service with regard to the scooter in question as per warranty terms and conditions. Opposite party No.1 further alleged that the complainant has not sought permission of this Commission under Section 11(2) (b) of the Consumer Protection Act, 1986.

                   On merits, opposite party No.1 reiterated the crux of averments made in the preliminary objections. Opposite party No.1 submitted that the complainant failed to mention what was the mileage reading on the speedometer of the scooter delivered to him, had it been an alleged demo piece then mileage reading would not be at the initial stage and it would have been showing several hundred or thousand kilometers.  Opposite party No.1 stated that on 17.12.2019, the complainant lodged complaint with opposite party No.2 regarding not starting of scooter, it sent its mobile service van to the house of complainant to check and rectify the problem. Visiting mechanic found that scooter needs to be taken to the workshop for proper and effective repair and accordingly the service van took the scooter to workshop of opposite party No.2 and duly rectified the scooter of all the reported problems. On 19.12.2019, the scooter was duly repaired and was made ready for delivery. Opposite party No.2 called the complainant several times to take delivery of his scooter but  he did not take back his scooter from opposite party No.2. Complainant can take back his scooter from opposite party as the same is lying with it in perfect running condition. Opposite party No.1 further stated that on 17.12.2019, the meter reading of the scooter was 5840 KMs and if there was any manufacturing defect in the scooter, the scooter would not have covered such distance. Moreover, the complainant has not filed any technical report of an expert to support his averments. Opposite party No.2 has denied that there is any deficiency in service and has also prayed for dismissal of the complaint.

3.                Opposite party No.2 filed a separate written statement by taking preliminary objections that the complainant has concealed the true and correct facts and has not come with clean hands; on the ground of lack of jurisdiction of this Commission; the complaint is gross abuse of process of law. Opposite party No.1 alleged that the scooter is in perfect running condition and there is no such defect as alleged by the complainant. The complainant lodged complaint with opposite party No.2 on 17.12.2019 that his scooter is not getting start and accordingly, opposite party No.2 sent a service pickup van at the house of the complainant to pickup the scooter for repair. The job sheet dated 17.12.2019 was issued. Opposite party No.2 at its workshop duly checked the scooter of the complainant and found that carburetor has been chocked due to which it was not getting start. The carburetor was duly cleaned and the other minor problems of ‘molding side stand loose and noise’ were also rectified. As the scooter was covered under warranty, the repair/rectification was done free of cost. Opposite party No.2 called upon the complainant to take back his scooter as the same has been duly rectified but instead of taking the delivery of his scooter, the complainant served a legal notice dated 21.12.2019 on false allegations to which opposite party replied vide letter dated 10.01.2020 requesting the complainant to take back his duly rectified scooter but he did not bother to check his scooter and take delivery. Opposite party No.2 also wrote letters dated 22.01.2020 and 20.02.2020 calling upon the complainant to take delivery of his scooter but he did not take the delivery of the scooter and now trying to take benefit of his own wrong and filed the present complaint by concealing true facts. Opposite party No.2 further stated that their obligation under the warranty is to set right the scooter by repairing or replacing the defective parts. In the present case the scooter in question has been mishandled by the complainant leading to the carburetor getting chocked due to which scooter was not starting. No such assurance to replace the scooter was given by them under the terms of warranty and the complainant cannot claim more than he has agreed. As and when complainant brought his scooter for free service, the same was duly attended to and the opposite parties are still ready to render further service with regard to the scooter in question as per warranty terms and conditions. Opposite party No.1 further alleged that the complainant has not sought permission of this Commission under Section 11(2) (b) of the Consumer Protection Act, 1986. Opposite party No.2 alleged that the complainant has not set out any legitimate ground entitling him for replacement of scooter with damages and litigation cost. The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central approved laboratories. In the absence of the same, the claim cannot be allowed.

                   On merits, opposite party No.2 reiterated the crux of averments made in the preliminary objections. Opposite party No.2 submitted that the complainant failed to mention what was the mileage reading on the speedometer of the scooter delivered to him, had it been an alleged demo piece then mileage reading would not be at the initial stage and it would have been showing several hundred or few thousand kilometers. No such problem was ever reported by the complainant on the first, second or third day or any subsequent day of purchase. Opposite party No.2 stated that on 17.12.2019, the complainant lodged complaint with opposite party No.2 regarding not starting of scooter, it deputed its mobile service van to the house of complainant to check and rectify the problem. Visiting mechanic found that scooter needs to be taken to the workshop for proper and effective repair and accordingly the service van took the scooter to workshop of opposite party No.2 and duly rectified the scooter of all the reported problems. On 19.12.2019, the scooter was duly repaired and ready for delivery. Opposite party No.2 called the complainant several times to take delivery of his scooter but he did not take back his scooter from opposite party No.2. Complainant can take back his scooter from opposite party as the same is lying with it in perfect running condition. Opposite party No.2 further stated that on 17.12.2019, the meter reading of the scooter was 5840 and if there was any manufacturing defect in the scooter, the scooter would not have covered such distance. Moreover, the complainant has not filed any technical report of an expert to support his averments. Opposite party No.2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which she reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of his Aadhar card, Ex. C2 is the copy of tax invoice dated 24.05.2019, Ex. C3 is the copy of registration certificate No.PB10-HC-0566, Ex. C4 is the copy of gate pass, Ex. C5 is the copy of email dated 06.07.2019, Ex. C6 is the legal notice dated 21.12.2019, Ex. C7 and Ex. C8 are the copies of postal receipts, Ex. C9 is the copy of letter dated 10.01.2020, Ex. C10 is the copy of reply to letter dated 10.01.2020 by the complainant, Ex. C11 and Ex. C12 are the copies of postal receipts, Ex. C13 is the copy of statement of account of loan account, Ex. C14 is the copy of tax invoice dated 11.01.2020, Ex. C15 is the copy of provisional registration certificate, Ex. C16 is the copy of statement of account, Ex. C17 is the copy of loan schedule details, Ex. C18 is the copy of advertisement of Honda and closed the evidence.

5.                On the other hand, counsel for the opposite parties tendered affidavit Ex. RA of Sh. Divesh Goyal, Director of Sarvpriya Auto Private Limited, Ferozepur Road, Ludhiana as well as affidavit Ex. RB of Sh. Jitender Bhatla, Dept. Head-Legal and Sect. Honda Motorcycle and Scooter India Private Limited, Gurugram along with documents Ex. R1 is the copy of job card dated 17.12.2019, Ex. R2 is the copy of letter dated 10.01.2020, Ex. R3 is the postal receipt, Ex. R4 is the copy of letter dated 22.01.2020, Ex. R5 is the postal receipt, Ex. R6 is the copy of letter dated 20.02.2020, Ex. R7 is the postal receipt, Ex. R8 is the copy of job card dated 09.08.2019 and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavit and documents produced on record by both the parties.   

7.                Undisputably, the complainant purchased an Activa scooter 125 CC in exchange of his old scooter of 100 CC vide invoice 24.05.2019 Ex. C2. It was registered having registration No.PB10-HC-0566 vide registration certificate Ex. C3. On 09.08.2019, the scooter was serviced by opposite party No.2 vide job card Ex. R8 and by that time, the distance covered by the vehicle was depicted to be 2143 KMs. In the third week of December 2019, the complainant experienced irritating noise being emitted from the engine and lodged a complaint on 17.12.2019 in this regard. The vehicle was checked by opposite party No.2 and found that carburetor of the scooter was chocked which was giving starting trouble. The carburetor was cleaned and the other minor problems were attended too. The job card is Ex. R1 which also reflects the distance covered by the vehicle to be 5840 KMs till 17.12.2019.  The complainant was also called to take back his scooter but instead of taking the repaired scooter back, the complainant sent a legal notice dated 21.12.2019 Ex. C6 stating some manufacturing defect in the scooter and sought replacement. The opposite parties tried to contact the complainant telephonically and also sent letters dated 10.01.2020 Ex. C9=Ex. R2, dated 22.01.2020 Ex. R4 and dated 20.02.2020 Ex. R6 asking him to collect his scooter. It was specifically mentioned in these letters that the vehicle is roadworthy and is in perfect running condition and the checking, repairs have been done free of costs and no bill has been raised. Thereafter, instead of collecting the scooter, the complainant filed the present complaint on 24.02.2020 on the basis of same set of allegations. The aforesaid sequel of events clearly depicts that the scooter was purchased on 24.05.2019 and within six months, it covered a distance of nearly 5900 Kms and the complainant made best use of the vehicle. As and when the complainant brought the vehicle to the workshop of opposite party No.2, it was promptly repaired and that too free of costs and no bill was raised. As such, there is no deficiency in service on the part of the opposite parties. It is quite amazing  that the complainant is not picking up his scooter lying in the premises of opposite party No.2 despite issuance of letters and reminders and no plausible explanation has been offered by the complainant during the course of proceedings of the complaint in this regard.  Moreover, the complainant has failed to discharge the initial onus of deficiency in service on the part of the opposite party. In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  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 the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming 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 wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In view of the law laid down in the above cited law and as per facts and circumstances of the case, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence.

9.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President

 

Announced in Open Commission.

Dated:11.04.2023.

Gobind Ram.

Ritesh Kumar Vs Honda Motorcycle                             CC/20/75

Present:       Sh. Munish Mittal, Advocate for complainant.

                   Sh. Govind Puri, Advocate for OPs.

        

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President

 

Announced in Open Commission.

Dated:11.04.2023.

Gobind Ram.