ORDER

(Per: Mrs.  Veena Sharma, Member):

This is an appeal filed under Section 15 of the Consumer Protection Act, 1986 against the order dated 07.04.2010 passed by the District Forum, Haridwar in consumer complaint No. 185 of 2009.  By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties to pay Rs. 70,000/- to the complainant within one month from the date of the order.

2.       Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant-Sh. Kapil Sharma had purchased a motorcycle named Bajaj Pulsar-150 bearing registration number UK07-Y-5158 and having Engine No. DHG-BRK-57809 Chassis No. MD2-DHD-HZZRCK57714, from Espee Enterprises India, Jwalapur, Haridwar-opposite party No. 1- on 05.02.2009 for a sum of Rs. 60,182/- vide invoice No. 2638. The said motorcycle was manufactured by M/s Bajaj Auto Ltd., Akurdi, Pune–opposite party No. 2. The complainant has alleged that the said motorcycle was having some technical problems from the very beginning and he informed the opposite party No. 1 on 05.02.2009, i.e. day of purchasing, and also during the first free service about the defects and problems in the motorcycle, he had been facing.  That at the time of purchase, it was assured by the opposite party No. 1 that the said motorcycle is very good and if any defect or problem occurs, then it will be rectified promptly and free of cost. Since the date of purchase, the said motorcycle has been suffering from engine noise and the same was brought to the opposite party No. 1 for rectifying the defect on 20.02.2009, 27.03.2009, 29.05.2009, 07.07.2009 and again on 28.07.2009, but nothing fruitful was done by the opposite party     No. 1 and the said motorcycle remain defective till date. The motorcycle is used by the complainant for looking after his business and due to non-plying of the same, he suffered financial loss and also suffered mental agony for the same. The opposite parties committed gross negligence to sort out the grievances of the complainant and there is deficiency in service on the part of the opposite parties, which caused the great loss and injury to the complainant, for which he is entitled to get compensation in this regard from the opposite parties. On 30.07.2009, the complainant sent a legal notice to the opposite parties, but the same was not replied. This led the complainant to file a consumer complaint before the District Forum, Haridwar.  

3.       The opposite parties have filed objections/written statement before the District Forum, Haridwar and pleaded that the sale of motorcycle is admitted.  That the opposite party No. 1 is only an authorized dealer of the opposite party No. 2 and they provide the information to the customers which is also available in the owner’s manual. Instead of this, no extra information provided to the customers from their end. It is wrong to say that the complainant had purchased the said motorcycle after the assurance given by the opposite party No. 1 to the complainant.  The fact is that the complainant is an educated person and he had purchased the said motorcycle without any pressure and also after getting knowledge about the motorcycle.  It is wrong to say that the said motorcycle is suffering from any technical and manufacturing defect since its purchase.  On every service, the complainant had taken his motorcycle after full satisfaction.  It is wrong to say that the opposite party No. 1 had never rectified the defects of the bike and also harass the complainant without any reason.  That the complainant had concealed his own mistakes in the District Forum and he has not come with clean hands. It is wrong and denied that the opposite party No. 1 has committed any fraud towards the complainant. On 29.06.2009 the complainant came to opposite party No. 1’s workshop for servicing of his motorcycle at 05:48 p.m. with meter reading of 7433km.  Due to lack of time, the complainant was requested to come next day for service, but the complainant left his motorcycle in the workshop for servicing and thereafter he took his motorcycle on 01.07.2009 with full satisfaction. On 07.07.2009, the complainant again came alongwith his motorcycle with the reading of 7895km for service of the motorcycle.  On 28.07.2009 the complainant came for first paid service of his motorcycle with reading of 8992km.  The complainant requested to check i) neutral switch; ii) noise of engine; iii) to check petrol cap; iv) dust on head light.  When the opposite party No. 1 checked the engine noise before the complainant, it was found that due to low quality of fuel (fuel adulteration) the problem was occurred in the said motorcycle’s engine.  The complainant has signed the job card with full satisfaction and he went back without taking his motorcycle, as he assured that on tomorrow, i.e. 29.07.2009, he will take his motorcycle. The opposite party No. 1 had informed the complainant that if he will not take his motorcycle on the date of delivery, than Rs. 50/- per day will be charged as garage charges. When the complainant has not taken his motorcycle from the opposite party No. 1’s service center, then on the next day the opposite party No. 1 had contacted the complainant on his mobile and informed him to take the motorcycle from the service center, but the complainant did not come on the next day, i.e. 01.08.2009.  The opposite party No. 1 sent a registered letter to the complainant regarding the delivery of the motorcycle, but the complainant did not accept the letter.  Then the opposite party No. 1 sent a notice to the complainant through the advocate. On 17.08.2009, the opposite party No. 1 again sent a registered letter to the complainant regarding delivery of the motorcycle, but the complainant did not pay any attention on this.  On 20.08.2009, the complainant came in the workshop of opposite party No. 1 in the presence of service engineer of opposite party No. 2 and checked his motorcycle by test drive and told the opposite party No. 1 that he will come tomorrow to take his motorcycle, but he did not come to take his motorcycle, yet.  The consumer complaint filed by the complainant is baseless and based on frivolous grounds, therefore, the same is liable to be dismissed.

4.       The District Forum, on an appreciation of the material on record, allowed the consumer complaint vide its order dated 07.04.2010.  Aggrieved by the said order, the opposite parties have filed the present appeal.

5.       We have heard learned counsel for the appellant and have also perused the material placed on record.  None has appeared on behalf of the respondent Nos. 1 & 2.

6.       There is no dispute to the fact that the complainant-respondent No. 1      Sh. Kapil Sharma had purchased a motorcycle named Bajaj Pulsar from the opposite party No. 1-appellant on 05.02.2009 for a sum of Rs. 60,182/-.  The only dispute is whether the said motorcycle was suffering from any manufacturing defect or not?

7.       Learned counsel for the appellant has submitted before this Commission that the District Forum has only relied on the contentions of the complainant and ignored the contents of written statement filed by the opposite party No. 1-appellant and evidence adduced by the appellant before the District Forum.  Learned counsel has also argued that the minor defects in the said motorcycle were always rectified free of cost up to the satisfaction of the respondent No. 1 by the expert and trained mechanics of the appellant’s workshop. The complainant and a mechanic of the appellant’s workshop went for a trial (test drive).  The respondent No. 1 was satisfied with the same, as evident by the job card dated 29.06.2009 (paper No. 59). Again on 28.07.2009, the respondent No.1 brought his motorcycle to the appellant’s workshop, as there was a noise in the engine. After inspection of the motorcycle, it was found that the said noise was due to fuel adulteration. The respondent No. 1 has left his motorcycle in the appellant’s workshop and went off saying that he will come to receive the said motorcycle on the next day, but he never turned up.  Learned counsel for the appellant argued that the complainant had adduced the expert evidence without any affidavit of expert, which has no legality before this Commission.  He further argued that the District Forum has not considered the fact that after repairing the minor defect, the said motorcycle was in a roadworthy driving condition.  The appellant had sent many letters to the respondent No. 1 to come and receive his motorcycle, but the respondent No. 1 did not come to the appellant’s workshop to take his motorcycle. There is no deficiency in service on the part of the opposite party No. 1-appellant.  The District Forum has only relied upon the evidence of the respondent No. 1 and conveniently does not heard the appellant. The respondent No. 1 has failed to show any iota of evidence in support of his contention of mechanical defect.  Without going into the depth of this aspect that the said defect was repairable or unrepairable, the District Forum has passed the impugned order.

8.       From the perusal of the record of the District Forum, Haridwar regarding the consumer complaint No. 185 of 2009, it is evident that the respondent No. 1 has filed an expert evidence in the shape of bill form, but the same is not supported by any affidavit of expert, therefore, the same could not be read as an evidence.

9.       The respondent No. 1 has filed his own affidavit (paper No. 25) in evidence.

10.     On the contrary, the appellant has filed an affidavit of Sh. Udyan Kumar, Partner/Manager of Espee Enterprises India (paper No. 31) and other affidavit of Sh. Rajendra Singh, Manager, Espee Enterprises India (paper    No. 82) and also a letter dated 20.01.2010 of respondent No. 1, in which the respondent No. 1-Sh. Kapil Sharma had endorsed “Thanks.  I have received my motorcycle.” (paper No. 67). 

11.     In the case of Classic Automobiles vs. Lila Nand Mishra & Ors.; I (2010) CPJ 235 (NC)., the Hon’ble National Commission has held that the onus to prove manufacturing defect lies on complainant.  No expert evidence produced to prove manufacturing defect in vehicle. Alleged defects cannot be termed as manufacturing defect.  Vehicle repeatedly brought to service station for repairs, no ground to hold that the vehicle suffering from manufacturing defects. Manufacturing defects in vehicle not proved.

In the case of Tata Motors Ltd. vs. Deepak Goyal & Ors.; I (2015) CPJ 607 (NC), the Hon’ble National Commission has held that merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects.

12.       From the perusal of the record of the job cards, it is evident that the appellant-opposite party No. 1 has given satisfactory services to the respondent No. 1.  The appellant sent many letters to the respondent No. 1 to take his motorcycle, which was given by the respondent No. 1 for service in the appellant’s workshop.  Even then the respondent No. 1 did not came to collect his motorcycle from the appellant’s workshop and instead of taking his motorcycle from the appellant’s workshop, he filed a consumer complaint before the District Forum against the opposite parties on 18.08.2009.  Thus, the respondent No. 1 has neither mentioned any specific manufacturing defect in the engine or any other part of the motorcycle nor submitted any technical report before the District Forum and the District Forum has also did not care to ask the respondent No. 1 for technical/expert report regarding any manufacturing defect in the motorcycle. In compliance of Section 13(1)(c) of the Consumer Protection Act, 1986, the District Forum has neither ordered to present the motorcycle for technical/expert report nor ordered the complainant to file any technical/expert report regarding any manufacturing defect in the motorcycle. The District Forum has not considered the fact that the respondent No. 1-complainant has taken his motorcycle on 20.01.2010 with full satisfaction.

13.     Having considered the submissions raised by the learned counsel for the appellant, we find force in the same.  The District Forum has not properly considered the facts and circumstances of the case and has wrongly allowed the consumer complaint per impugned order, which cannot legally be sustained and is liable to be set aside and the consumer complaint is liable to be dismissed. 

14.     For the reasons aforesaid, the appeal is allowed. The impugned judgment and order dated 07.04.2010 passed by the District Forum, Haridwar is set aside and the consumer complaint No. 185 of 2009 is dismissed.  No order as to costs.