Punjab

StateCommission

A/11/1830

M/s Goyal Auto Enterprises - Complainant(s)

Versus

Kanwar Pal Singh - Opp.Party(s)

Mohit Garg

18 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION, PUNJAB, SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

First Appeal No.1830 of 2011

 

                                                Date of Institution :  15.12.2011.

                             Date of Decision    : 18.02.2015.

 

1.       M/s Goyal Auto Enterprises, authorized dealer Bajaj Auto Limited         Patran Road, Dirba, District Sangrur through its Proprietor.

2.       Bajaj Auto Pvt. Limited through its M.D. Akrudi, Pune- 411035.

                                                     …..Appellants/opposite parties

Versus

 

Kanwar Pal Singh (minor) son of Harbans Singh through his father and natural Guardian Harbans Singh son of Joginder Singh resident of Village Sullar Gharat, Tehsil and District Sangrur.

                                                     ….Respondent/complainant

    

Appeal against order dated 20.10.2011 passed by the District Consumer Disputes Redressal Forum, Sangrur.

 

Quorum:-

 

     Shri J. S. Klar, Presiding Judicial Member.

             Shri Vinod Kumar Gupta, Member.   

Present:-

 

     For the appellants            :     Sh. Mohit Garg, Advocate

For the respondent          :     Sh. Harshit Jain, Advocate

   . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                 

                    The appellants (opposite party no.1 and 2 in the complaint) have directed this appeal against the respondent herein (complainant in the complaint) challenging order dated 20.10.2011 of District Consumer Disputes Redressal Forum Sangrur (in short, “the District Forum”), vide which, the complaint of the complainant/respondent was partly allowed directing the OPs to remove the defect in the motorcycle for making it road worthy through examination of expert and if independent expert is of the opinion, that there are inherent defects in the vehicle, the complainant will be entitled to refund of the price of the vehicle along with interest @9% pr annum from the date of its purchase. The instant appeal has been preferred against the same by the OPs.

2.           The complainant Kanwar Pal Singh minor through his next friend his father Harbans Singh has filed the complaint under Section 12 of Consumer Protection Act 1986 (in short "Act") against the OPs on the premise that he has purchased one Bajaj Discover 100CC Motorcycle having engine no. JBMBSJ71841 & Chasis no.MD2DSPAZZSWJ67393 on 22.03.2010 from OP No.1, vide invoice no.1035 against price of Rs.43,900/-. That it was registered in the name of complainant by District Transport Officer Sangrur, vide registration no.PB-13W-4003. That OP No.1 gave assurance to complainant that in case of any defect in the motorcycle within warranty period, it would be repaired or if need arose, the bike would be replaced and refund of price thereof would be given to the complainant. The complainant got free service through his father from OP No.1 from time to time, as per schedule given in owner's manual. The vehicle was giving trouble from the very beginning and used to create wobbling at the time of driving. This fact was brought to the notice of OP No.1 by the complainant and it was intimated that there was defect in the rim of motorcycle responsible for causing wobbling at the time of driving. The new rim was changed but the problem of wobbling still continued in it. It appeared that there was also defect in shockers and the motorcycle was thoroughly checked by trained mechanic of the company, but this fact was not recorded in the job-sheet. The complainant got second free service from OP No.1 within time frame. The complainant reported the same problem in the motorcycle to the mechanic of OPs No.1, it was recorded in the job-sheet also, but the problem of wobbling therein could not be rectified by the mechanic. The complainant further reported the defect in its speedometer as well as in oil meter to OP No.1, but they just left this matter by stating that it would be replaced with new one next time, when it became available. The complainant got third free service and again complained the same problem in the motorcycle, but to no effect. The motorcycle was purchased by the complainant within the warranty period. The complainant has, thus, prayed in the complaint that OPs be directed either to replace the motorcycle with new one or to refund the price of motorcycle of Rs.43,900/- along with interest @18% per annum from the date of its purchase besides compensation of Rs.30,000/- for mental harassment and Rs.7500/- as costs of litigation.
3.           Upon notice, OPs appeared and filed the written reply contesting the complaint of the complainant. It was averred by OPs that complaint is not maintainable. The fact of purchase of motorcycle on 23.03.2010 by complainant was admitted. The fact of giving warranty service of two years was also admitted, which was to expire on 22.03.2012. It was further averred in the written reply that vehicle of complainant was received for service by the OPs and the service was carried out to the full satisfaction of the complainant and complainant deliberately concealed this fact in the complaint. It was denied that there was any manufacturing defect in the vehicle. Had there been any manufacturing defect therein, it would not have run till then. The motorcycle is consisting of hundreds of complex mechanical engineering and electrical components to make it final. The defect in any one or two components does not make the entire vehicle defective. The performance of the vehicle depends on many external factors and the OPs do not have any control i.e. number of start and stops of the vehicle. The services are rendered as a gesture of goodwill for maintaining good customer relationship. The fact of issuance of warranty was not disputed by the OPs. It was also admitted that Harbans Singh father of the complainant visited the premises OP No.1 on 08.04.2010. At the time of first free service, which was provided to his full satisfaction and by that time, the motorcycle had run 839 kilometers as recorded in the job card. Motorcycle was brought for second service on 23.06.2010 and by that time, it had driven 4435 kilometer and service was carried out to the satisfaction of father of the complainant without any grievance. That on 08.10.2010 at the time of third service, the complainant complained about head noise and chain washing and wheel wobbling and same were removed to his satisfaction. OPs denied any manufacturing defect in the vehicle and prayed for dismissal of the complaint.
4.           The complainant tendered in evidence affidavit Ex.C-1 along with documents Ex.C-2 to C-12 and closed the evidence. As against it, the OPs tendered in evidence affidavits Ex. R-1 to R-6 along with documents Ex.R-7 to R-24 and closed the evidence. On conclusion of evidence and arguments, the District Forum, allowed the complaint of the complainant partly directing the OP to remove the defects in the vehicle of the complainant and to make it roadworthy, if necessary by reconditioning the vehicle in the presence of independent technical person mutually agreed upon by the parties. If the independent expert certified that the vehicle is free from any defect, then a certificate would be final and in case any defects are certified by the independent mechanic, the complainant would be entitled to refund of the price of the vehicle together interest @ 9% per annum. It also awarded costs of litigation of Rs.11,000/-. Dissatisfied with the order of District Forum dated 20.10.2011, the instant appeal has been preferred against the same by the OPs now appellants.
5.           We have heard the learned counsel for the parties and have also examined the record of the case. The order of the District Forum has been seriously assailed in this appeal by the appellants. We refer to evidence on the record to settle the controversy between the parties in this case. Ex. C-1 is the affidavit of the next friend of the complainant stating that the motorcycle gave the problem of wobbling, while driving the motorcycle. That rim was changed, but this problem did not stop even therewith. There was also defect in the speedometer and oil meter of the motorcycle, which were not removed. Ex.C-2 is the sale certificate of price of Rs.43,900/- of this motorcycle in the name of complainant, who is minor from OP No.1. Ex.C-3 is the warranty certificate, Ex.C-4 is the copy of insurance of this motorcycle, Ex.C-5 is the initial certificate of road worthiness of motorcycle issued by Goyal Auto Enterprises, Ex.C-6 is the registration certificate of the vehicle. The complainant placed on record the affidavit of Santokh Singh, the proprietor of Santokh Auto works to the effect that he examined the motorcycle and there was manufacturing defect in the hub and rim of the front wheel of the motorcycle. That he found a gap within the rim of the wheel and hub, due to which, it caused excessive wobbling and it has resulted into excessive damage of front tyre on one side. He stated the manufacturing defect in the vehicle. Strong reliance has been placed by the complainant on the statement of Santokh Singh, the alleged expert witness of the complainant. His affidavit is
   Ex.C-8 in this regard as well. Ex.C-9 to C-12 are the photographs of the motorcycle. The complainant relied upon above referred documents to prove the manufacturing defect in the vehicle, which is responsible for causing wobbling in it while driving.
6.           OPs tendered in evidence, the affidavit of Vijay Goyal authorized signatory of OPs to the effect that the vehicle was brought for service within warranty period. At the time of first service, there was no defect pointed out in it. That the motorcycle was driven to a large extent and then complainant pointed out at the time of third service of some problem is in the vehicle, which is repairable within the warranty period. He further stated that vehicle was driven upto 4435 kilometer by that point of time, when the service was done to the satisfaction of complainant without any grievance or complaint of the complainant. He further stated that defect of wobbling is repairable only and it could be due to defect in the tyre tube or non-alignment of rim due to rash and rough driving on roads of rough surfaces and it could be removed by replacing the above parts. Ex.C-2 is the affidavit of Sukhjinder Singh, Works Manager of Bajaj Auto Sangrur wherein he stated that he checked this motorcycle and found some wobbling problem in it. That Harbans Singh complained some defect in speedometer and oil meter in it. He further stated that the problem of wobbling in the motorcycle was due to some defect in wheel and tyre of it. There is no manufacturing defect in the motorcycle. Ex.R-3 is the affidavit of Amrik Singh, the alleged mechanic of OPs to this effect that the complaint regarding head noise, chain washing were removed in the motorcycle. That services were carried out on it. He further stated that there is no manufacturing defect in the motorcycle and problem of wobbling is repairable and could be removed as it is due to non-alignment of the rim, due to rash and rough driving on roads of rough surfaces. Ex.R-4  affidavit of Rajesh supervisor of OPs is also on the record to this effect that these defects could be removed by repair work. Ex.R-5 affidavit of Babla mechanic of OPs is on the record that defect of tyre wobbling is repairable and it could be removed. Affidavit of Darshan, the alleged mechanic of OPs Ex.R-6 is on the record to the effect that there is no manufacturing defect in the motorcycle or the defect is repairable with regard to wobbling. The reply filed by complainant is Ex.R-8 dated 25.04.2011 stating that OPs are not entitled to the repair of the motorcycle, if they wanted to inspect the motorcycle in question, then they can inspect it in the premises as per the directions of the Consumer Forum in the presence of the complainant and his counsel. Ex.R-9 is the interim order of the District Forum Sangrur. Ex.R-10 is the application of OPs for directing the complainant for getting the repair of the vehicle, as per the terms of warranty. Ex.R-12 to R-17 are the training certificates of Sukhjinder Singh, who tendered his affidavit. Ex.R-18 is first service job sheet recording no complaint in the motorcycle, Ex.R-19 to R21 are the job sheets. Ex.R-20 and R-21 recorded that customer is not ready for repair of the vehicle, as customer has not permitted to check the vehicle. Ex.R-22 and R-23 are the training certificates of Amrik Singh and Darshan mechanics of OPs. Ex.R-24 is the expert opinion submitted by above referred witness Sukhjinder Singh to the effect that there is only repairable defect in it.
7.           We have duly considered the submissions of counsel for the parties and also examined the above referred evidence on the record. We find that there is no report of any independent expert to this effect on the record that there is any manufacturing defect in motorcycle or the defect of wobbling and so on are only repairable defects, which could be set right by means of necessary repairs. Both the parties have asserted their own claims and examined their own witnesses in proof of their own version in this case. Considering the circumstances of the case and the submissions of counsel for complainant that the job sheets were not signed by the complainant, because he is not satisfied therewith and the circumstances of the case, the District Forum correctly gave direction for the appointment of an independent technical qualified expert with mutual consent of the parties, who would report this fact whether there is any manufacturing defect in the motorcycle or there was only a repairable defect in the vehicle. This point could be determined only after the appointment of independent technical qualified expert with mutual consent of parties or if they did not agree on this point, then they have to approach the District Forum Sangrur for the appointment of such expert. In case the independent technical expert reports that there is manufacturing defect in the vehicle, then complainant would be entitled to recover the price of the vehicle along with interest @9% per annum from the date of its purchase till its actual payment from the OPs and in case only repairable defect was pointed out in the vehicle by the independent expert, then the OPs would set the vehicle right and roadworthy to the satisfaction of the complainant by removing the defects therein. We find that the order of the District Forum is reasonable and sustainable in this appeal. We do not want to interfere with the order under appeal awarding Rs.11,000/- costs of litigation to the complainant.
8.           In view of our above discussions, we do not find any ground to interfere with the order of the District Forum, which is well reasoned order in this case and the same is hereby affirmed in this appeal. Finding no merit in the appeal and the same is dismissed.
9.           The appellant had deposited an amount of Rs.5500/- with this Commission at the time of filing this appeal. This amount with interest, which accrued thereupon, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days. Remaining amount as per order of District Forum shall be paid by the appellants/OPs to the complainant within 45 days of receipt of the copy of this order.
10.           Arguments in this appeal were heard on 13.02.2015 and the order was reserved. Now the order be communicated to the parties.     The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                              MEMBER

 

February 18 , 2015.                                                                                   

(MM)