(Delivered on 20/07/2017)
PER SHRI B.A. SHAIKH, HON’BLE PRESIDING MEMBER.
1. This appeal is filed by the original opposite party (for short O.P.) feeling aggrieved by the order dated 20/11/2013, passed by the District Consumer Forum, Akola in consumer complaint No. 66/2013, by which the said complaint has been dismissed as filed by the respondent No.1 herein.
2. The case of the original complainant /respondent No. 1 herein as set out in the consumer complaint in brief is as under.
The original complainant/respondent No. 1 herein purchased electric motor bike vehicle from the original O.P. No. 2/respondent No. 2 herein –dealer as manufactured by the original O.P. No. 1/appellant herein, for consideration of Rs. 32,100/- on 22/02/2012. There was manufacturing defect in the said vehicle which was found since taking of its possession and therefore it was taken for repairing to the service centre of original O.P. No. 2/respondent No. 2 herein on 09/05/2012. The complaint was made that the battery of the vehicle was not getting charged, the rear wheel of the vehicle is jammed and vehicle is getting hot & it is not running in the speed. The original O.P No. 2/respondent No. 2 herein though assured to remove those defects within 2 to 3 days it did not remove the same and said that its dealership & service centre has been transferred to other company called as Shree Automobile. Therefore, the original complainant /respondent No. 1 herein made complaints on mobile phone bearing Nos. 09227865231, 09225511448, & 09225106604 to the original O.P.1/ appellant herein. The original O.P. No 1/appellant herein also assured that it would replace that vehicle by new vehicle. However, it was not replaced. Therefore, the original complainant /respondent No. 1 herein served legal notice through his advocate on 03/12/2012 by Registered Post A.D. to the original O.P. No 1/appellant herein and original O.P. No. 2/ respondent No. 2 herein but they did not give reply of that notice to the original complainant /respondent No. 1 herein. Therefore, the original complainant /respondent No. 1 herein filed consumer complaint before the District Consumer Forum, Akola alleging that there is manufacturing defect in the vehicle and requesting that the directions be given to the original O.P. No. 1/ appellant herein and original O.P. No. 2/respondent No. 2 herein either to replace that vehicle by new vehicle or to refund him the price of Rs. 32,100/- with interest and also to pay him compensation of Rs. 20,000/- for mental harassment.
3. The original O.P. No. 1/appellant herein appeared before the District Forum and filed reply and thereby resisted the said complaint. It admitted that the vehicle manufactured by it was purchased by the original complainant /respondent No. 1 herein from its dealer i.e. original O.P. No. 1/respondent No. 2 for consideration of Rs. 32,100/-. However, it submitted that the original complainant /respondent No. 1 herein drove that vehicle in poor manner and he did not get checked that vehicle as specified in the vehicle manual and he had brought that vehicle for servicing only on 09/05/2012. But at that time no defect was found in that vehicle. It was also found that the complaint about low charging of battery was because of improper electric fitting. The original complainant /respondent No. 1 had brought the vehicle twice within ten months for checking and he did not take its proper care. The original O.P. No. 1/ appellant herein submitted that the allegations made in the complaint are false and therefore prayed that complaint may be dismissed.
4. The original O.P.No. 2/respondent No. 2 herein did not appear before the District Forum though served with notice. Therefore, the District Forum vide order dated 12/07/2010 proceeded exparte against the original O.P. No. 2/respondent No. 2 herein.
5. The District Forum after hearing both the parties and considering evidence brought on record, accepted the aforesaid defence of the original complainant /respondent No 1 herein and partly allowed the complaint and directed the original O.P. No. 1/appelalnt herein and original O.P. No. 2/respondent No. 2 herein to replace jointly and severally the vehicle by new vehicle of the same model or alternatively to refund its price of Rs. 32,100/- with interest at the rate of 10% p.a. from 22/02/2012 to the original complainant/respondent No. 1 herein and also to pay him compensation of Rs. 5000/- for physical and mental harassment and economic loss and also to pay him litigation cost of Rs. 1500/-. The District Forum also directed that said order be complied with within 45 days of the receipt of copy of the said order and in case of default the said amount will carry interest at the rate of 12% p.a.
6. As observed above, this appeal is filed by the original O.P. No. 1/ manufacturer. The learned advocates of both the parties filed their respective written notes of argument. They did not appear for making oral submission. Therefore, we have considered their respective written notes of argument and material placed before us by the appellant in this appeal.
7. The learned advocate of the appellant in his written notes of argument filed in appeal submitted in brief is as under.
i. The alleged defects in the vehicle were not brought to the notice of the appellant as the same were only due to negligence and wrong use of vehicle on the part of the respondent No. 1/original complainant.
ii. The respondent No. 1 herein /original complainant did not file any counter reply to the objection filed by the appellant/ original O.P. No. 1 in its reply and affidavit filed by it and this fact was not considered by the District Forum.
iii. The District Forum did not properly consider the material brought on record and the order passed is erroneous and contrary to law.
iv. There was no manufacturing defect in the vehicle and the same was also not proved and therefore, the direction for replacement of the vehicle or refund of its entire price with interest cannot be given.
v. The complaint was about defect in the battery, which was occurred only due to extra charging and not due to manufacturing defect and this fact was also not considered by the District Forum. Thus impugned order is bad in law and deserves to be set aside.
8. The advocate of the original complainant /respondent No. 1 herein on the other hand in his written notes of argument supported the impugned order and submitted that the appeal may be dismissed.
9. The advocate of the original O.P. No. 2/respondent No. 2 herein in his written notes of argument submitted in brief that the electric motor bike was purchased by the original complainant / respondent No. 1 herein from it on 22/02/2012 for Rs. 32,100/- and it was brought to it for servicing on 09/05/2012 and problems in the vehicle were sorted out. It further submitted that thereafter its dealership was given up and therefore appellant appointed Shree Automobile as its dealer for electric motor bike and also authorised Shree Automobile as service centre. Hence, it forwarded electric motor bike of customer to Shree Automobile and therefore it is not liable to pay any compensation to the original complainant/respondent No. 1 herein.
10. It is seen that the appellant / original O.P. No. 1 has not filed in this appeal all the documents which were filed by the original complainant /respondent No. 1 herein before the District Forum, Akola. However, it is seen from the case of the original complainant /respondent No. 1 herein that he had purchased the electric motor bike as manufactured by the appellant /original O.P. No. 1, on 22/02/2012 for a consideration of Rs. 32,100/- and that as he faced various problems in running of that vehicle , he made complaints to original O.P.No. 2/respondent No 2 herein which was authorised service centre of the O.P. No. 1/ appellant herein. It is alleged by the original complainant /respondent No. 1 herein that on 09/05/2012 he had taken that vehicle to the original O.P. No. 2/ respondent No. 2 herein as the said vehicle was not getting charged, its rear wheel was jammed and it was getting hot very soon and it was not running in speed but the original O.P.No. 2/respondent No. 2 herein did not remove those defects and directed him to new authorised service centre namely Shree Automobile.
11. The appellant as well as respondent No. 2 herein did not file before the District Forum job card dated 09/05/2012 to show that the vehicle was duly repaired by removing all the defects on 09/05/2012. On the contrary the O.P. No. 2/respondent No. 2 did not appear before the District Forum despite service of notice. Therefore, there is no reason to disbelieve the aforesaid case of the original complainant /respondent No. 1 herein about the major defects in the vehicle which can be occurred due to manufacturing defect only in it & which were not removed by the appellant & respondent No. 2 herein.
12. It is pertinent to note that though the original complainant /respondent No.1 has given three phone numbers in his consumer complaint by which he made complaints to the original O.P. No 1/appellant herein about the aforesaid defects in the vehicle , but the appellant in its reply filed before the District Forum did not deny that no such complaints were made on those phone numbers to it by the complainant /respondent No. 1 herein.
13. The case of the appellant that due to wrong handling of the vehicle by the original complainant /respondent No. 1 herein the defects in the vehicle occurred is not supported with any document. The vehicle manual was not produced before the District Forum by the original O.P. No. 1/appellant herein to show that the original complainant /respondent No. 1 herein did not follow the instructions given in that vehicle manual which caused problems in the vehicle. Thus we find that defects namely low charging of battery and others defects in the vehicle specified in the complaint cannot be attributed to any negligence on the part of the original complainant /respondent No. 1 herein.
14. In our view, in the absence of any evidence of original O.P. No. 2 /respondent No. 2 herein before the District Forum about removing of the said defects by the original O.P No. 2/respondent No. 2, we find that the District Forum has rightly believed the case of the original complainant/ respondent No. 1 herein which was duly supported the documents filed on record as referred in the impugned order.
15. It is also pertinent to note that the original complainant /respondent No. 1 herein had duly served notice dated 03/12/2012 to the original O.P. No. 1/appellant herein and original O.P.No. 2/respondent No. 2 herein prior to filing of the consumer complaint but the same was also not replied by them, raising their aforesaid defence at an earliest opportunity.
16. Thus, we find that the submission made in the written notes of argument as above by the learned advocate of the appellant is devoid of merit. We also hold that the District Forum has properly considered the material placed on record and reached to correct conclusion about manufacturing defect in the vehicle.
17. In our view when the vehicle is having manufacturing defect and it cannot be used by the original complainant /respondent No. 1 herein due to said manufacturing defect, the District Forum has rightly directed the original O.P. No. 1/ appellant herein and original O.P. No. 2/respondent No. 2 herein either to replace that vehicle by new vehicle of the same model or to refund its price with interest and compensation specified in operative part of the impugned order. Thus there is no merit in this appeal and it deserves to be dismissed.
ORDER
i. The appeal is dismissed.
ii. No order as to cost in appeal.
iii. Copy of order be furnished to both the parties, free of cost.
