RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 2444 of 2014

1- M/s Bajaj Auto Limited, Akurdi, Pune-411053

2- M/s Suman Auto, UPSEDC Industrial Area,

    Side-4, Greater Noida, District, Gautam Budh Nagar.

                                                                         …. .Appellants.

Versus

Laxman Kumar s/o Sri Maharchand, R/o H.N.25,

Village, Baghpur, Greater Noida, District,

Gautam Budh Nagar.                                         ...Respondent.

Present:-

1- Hon’ble Sri Vijai Varma, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Sri Badrul Hasan, counsel for the appellants.

None for the respondent.

Date 11.9.2018

JUDGMENT

(Delivered by Sri Vijai Varma,  Member)

This appeal has been filed against the judgment and order dated 22.9.2014, passed by the District Forum, Gautam Budh Nagar in complaint case no.391 of 2011.

The facts leading to this appeal, in short, are that the respondent/complainant had purchased a Bajaj Discover Motorcycle No.UP 16 AC 7291 from the appellant/OP no.2 which was manufactured by the appellant/OP no.1 for a sum of Rs.49,070.00 on 2.2.2011. After few days of its purchase, the motorcycle started giving problems of missing and emanating a lot of smoke and leaking of oil with the smoke whereupon the complainant informed the OPs and while doing the service, the complainant was assured that the vehicle is a new one and after running for some time, the problems will be resolved but the vehicle kept giving

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problems and could not be properly repaired despite false assurance by the OPs that the vehicle will be alright. The complainant was given a phone number of an engineer to contact for his problems and when the complainant contacted that engineer then his motorcycle was taken away by him for servicing and the complainant was returned the motorcycle after service with the assurance that the problems have been resolved but no problem was resolved and the engine was giving problems such as starting problem of heating, noise from the engine and leaking of oil with smoke. As the problems of the vehicle were not resolved then the complainant filed a complaint case before the Forum below wherein the OPs filed their WS mentioning therein that the motorcycle was not having any defect. In fact, the complainant has been using the motorcycle for a year and the motorcycle would not have run a long distance had it been a defective one. Besides, whenever the vehicle was brought to them for service then it was satisfactorily repaired and returned to the complainant. Besides, the parts and engine etc. could be replaced, therefore, demand of the complainant was not acceptable. Besides, the complainant has not filed any expert report. As the complainant has filed a false complaint therefore, it is liable to be dismissed. The ld. Forum below, thereafter, passed the impugned order on 22.9.2014 as under:-

"उपरोक्‍त कथन, तथ्‍यों तथा साक्ष्‍य को ध्‍यान में रखते हुए, वादी का यह वाद, विपक्षीगण के खिलाफ-आंशिक रूप से मंजूर किया जाता है। वादी अपनी उपरोक्‍त पुरानी मोटरसाईकिल, विपक्षी सं0-2 के पास, एक महीने के अन्‍दर, जमा करायेगा। उसके अगले एक महीने के अन्‍दर, विपक्षी सं0-2 उसके बदले में उसी मॉडल की नई मोटरसाईकिल वादी को देगा। यदि विपक्षी सं0-2 ऐसा नहीं करता है, तो विपक्षी सं0-2 उपरोक्‍त मोटरसाईकिल की कुल कीमत 49,070/- (उन्‍चास हजार सत्‍तर) रूपये मय 10 प्रतिशत वार्षिक ब्‍याज, यह वाद दायर करने की

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तारीख से लेकर, वसूली होने तक, वादी को अदा करेगे। विपक्षीगण की कार्य प्रणाली से वादी को जो मानसिक पीड़ा हुई है, उसका हर्जाना हम 10,000.00 रूपये (दस हजार रूपये) तय करते है, तथा मुकदमें का खर्चा, हम रकम मुवलिंग 5,000.00 (पॉच हजार रूपये) तय करते है। पक्षकार उपरोक्‍त सारी कार्यवाही इस आदेश की कापी मिलने के 30 दिन के अन्‍दर शुरू करें। इस आदेश की कापी, पक्षकारों को नियमानुसार उपलब्‍ध करायी जाये। फाईल रिर्काड रूम में भेजी जाये।"

Feeling aggrieved with the impugned order that the appellants have filed this appeal mainly on the grounds that the complainant has not been able to prove is case with cogent evidence with regard to the defects in the engine.  The complainant was told to get proper fuel filled up from the petrol pump. Besides, the vehicle had run for about 10852 Kms. which shows that it was in a good condition. Besides, the manufacturing defects could not be proved but the ld. Forum has passed the impugned order which is liable to be set aside and the appeal allowed.

Heard counsel for the appellants and perused the entire records. None appeared for the respondent.

In this case, it is not disputed that the complainant had purchased a Bajaj Motorcycle from the appellant/OP no.2 which was manufactured by the appellant/OP no.1. The disputed point according to the respondent/complainant is that the vehicle became defective within the period of warranty and despite the OPs repairing it the defects could not be removed. Hence, there was deficiency in service on the part of the appellants/OPs in selling the defective motorcycle.

So, it is to be seen as to whether the appellants have sold out the defective motorcycle to the complainant of not. If so, its effect.

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It is the case of the respondent/complainant that the motorcycle was defective one as after a few day of its purchase, it started giving problems such as smoke and oil emanating from it and problems of starting, missing and jerks in the vehicle and the problems could not be removed despite the OPs assuring him that after repairs they would be resolved. On the contrary, it is argued by the ld. Counsel for the appellants that the vehicle was not having any defects and whatever defects were brought to the notice of the appellants they were immediately removed. It is pertinent to notice that the complainant has asserted that the smoke was emanating from the engine and the OPs in their appeal have mentioned that the complainant was advised to purchase fuel from some good petrol pump. This shows that there was the problem of smoke emanating out of the vehicle. Besides, according to the appellant, if the vehicle is not driven properly then it impacts the performance of the vehicle and sometimes spoil the components which require replacement in normal wear and tear. So this point also shows that there were problems in the vehicle as contended by the complainant but according to the complainant these problems were because of the complainant not driving the vehicle in proper manner but the appellants have not been able to prove this point that the respondent was not able to drive the vehicle properly. It is also important to note that the appellants/OPs in their WS have contended that the defects of the problems as shown by the complainant were removed on the basis of job-cards but the appellants/OPs have not been able to provide the job-cards to substantiate their claims. So, an important evidence which was with the

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appellants/OPs with regard to the defects of the vehicle were not produced by them and this fact goes against them. The ld. Counsel for the appellants has argued that no expert opinion has been filed in the instant case to prove the manufacturing defect but as discussed above, it was clear from the evidence as well as from the contentions of the OPs themselves where they have given reasons for the defects arising in the vehicle that there were defects in the motorcycle. The ld. Counsel for the appellants/OPs has cited the case of II(2008) CPJ 111 (NC), Tata Eng. & Locomotive Co. Ltd. & Anr. Vs. Sunil Bhasin & Anr., wherein it has been held that the alleged defects could have been proved by the expert opinion but we find that the facts of that case law is entirely different as in that case, the manufacturer  was not given an opportunity to plead his case whereas in the instant case the manufacturer was given due opportunity to plead his case and the manufacturer has in fact also filed the reply. In the instant case, the complainant has been able to prove that the vehicle was having defects and the OPs have not been able to rebut the contentions of the complainant by their evidence as they failed miserably in not being able to provide the job-cards which could have shown the defects and whether they were properly repaired or not. The ld. Forum, therefore, has rightly concluded about the deficiency in service and unfair trade practice on the part of the OPs and passed the impugned order in this regard but there was no occasion for ordering replacement of the vehicle as only the engine of the vehicle should have been got replaced by the appellant and not the entire vehicle as it was mainly the engine which was having

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many defects. Besides, the compensation awarded appears to be on a higher side which under the circumstances, we consider to be Rs.3,000.00 as appropriate. Therefore, to that extent the impugned order is liable to be amended and the appeal partly allowed.    

ORDER

The appeal is partly allowed. The judgment and order dated 22.9.2014 is amended to the extent that in place of the entire vehicle, only the engine shall be changed and in case they are not able to do so then they will be liable to pay Rs.25,000.00. The compensation of Rs.10,000.00 is reduced to Rs.3,000.00 only.   The rest of the order shall remain as it is.

Certified copy of the judgment be provided to the parties in accordance with rules.

         (Vijai Varma)                          (Govardhan Yadav)

    Presiding Member                                 Member

Jafri PA-II

Court No.3