| Final Order / Judgement | CONSUMER DISPUTES REDRESSAL COMMISSION – X GOVERNMENT OF N.C.T. OF DELHI Udyog Sadan, C – 22 & 23, Institutional Area (Behind Qutub Hotel) New Delhi – 110016 Case No.423/2012 DR. SALEEM SUALEH S/O SHRI SHAMIM AHMED R/O B-96, ABUL FAZAL ENCLAVE II NO. 8, JAMIA NAGAR, OKHLA, NEW DELHI-110025 ……..COMPLAINANT VS - M/S MAHINDRA TWO WHEELERS LTD.
SKYLARK BUILDING, IVTH FLOOR, NEHRU PLACE, NEW DELHI-110019 - M/S SIDDHANT MOTORS
RZ-3A, PUL PEHLADPUR, MEHRAULI BADARPUR ROAD, NEW DELHI-110044 ............RESPONDENTS DATE OF INSTITUTION-24/09/2012 DATE OF ORDER-02/03/2022. RASHMI BANSAL- MEMBER - Briefly stated facts of the case are, as per consumer complaint, that the complainant purchased a motorcycle Model Stallion from the opposite party No. 2, authorised dealer of OP1 (manufacturer of said vehicle), on 29.12.2010, for a consideration of Rs. 49,870/- vide invoice No. 116 dated 29.12.2010, registered vide Registration No DL-3S-BZ-2420, dated 11.01.2011.
- This is stated by complainant that at the time of purchase, it was assured by OP2 that the said motorcycle is under warranty for any defect and upon such assurance of warranty, the complainant has purchased the said vehicle. This is alleged that since the date of purchase, the said motorcycle was suffering from defects. It was neither smooth in running nor working properly and was having many manufacturing defects like improper and defective clutch and gear system, which were very tight. The vehicle was brought to OP2 for rectifying the defect on first service but defects were not cured. This is alleged further that after some time other defects started appearing, like, problem in the start of the said motorcycle and which gradually made it impossible to start motorcycle, though the motorcycle was regularly sent to OP2 for curing defect/ servicing at different times. The motorcycle was sent to OP2 for service on 12.02.2011for first service, in April 2011 for second service, then for third service and for 4th service in December 2011 and also intermittently. At the time of 4th service in December 2011, OP2 assured the complainant to replace the engine of the motorcycle, however, it is alleged that OP2 did not change the engine and same old engine was put in the motorcycle. When the motorcycle did not start at all despite the best efforts of the complainant, one mechanic was sent by OP2 who failed to start the said motorcycle and then took the motorcycle at the service station with the help of another motorcycle. This was also stated by the complainant that at one occasion the entire petrol of the motorcycle leaked out and it was found that the tank’s washer was leaking and the same was neither available in the market nor at the workshop of the OP2. Later, the leakage was stopped by the OP2 after using quick fix and since then it is continuing as such till the date of filing present complaint. This is also the allegation of the complainant that he has already made numerous complaints on customer care to OP1 but despite waiting for long no complaint number was given to him nor there was any redressal of the grievances of the complainant. That on 28.06.2012, the motorcycle did not start, the complainant made several calls to the OP2 but it was of no use. On 02.07.2012, OP2 assured complainant that the motorcycle will be taken by their agent in an hour, however, no one turned up and the motorcycle continued lying unused since then as it has not been started at all. Even the meter wiring shockers and other parts of the motorcycle were not functioning properly. The mileage of the motor cycle also did not meet as per the claim of the OP1 and it was much less than claimed.
Complainant stated that OP1 has even stopped manufacturing the said motorcycle and its part and accessories are not available in the market and it is impossible to maintain and repair the said motorcycle. This is further stated by the complainant that he is pained and shocked at such condition of newly branded motorcycle and the same has been troubling to complainant from the day one since its purchase as the motorcycle has been suffering from manufacturing defect. This is further stated by complainant that manufacturer has taken back many motorcycles from other customers and returned their cost but in case of complainant, OP1 is unnecessarily harassing and avoiding to take back the said defective vehicle and refusing to return the cost of the motorcycle. The complainant has stated that the said motorcycle was purchased by him for the purpose of dropping and fetching his children from school and for other personal purpose but due to non-working of the motorcycle properly, the complainant and his family is suffering great harassment, inconvenience, embarrassment and hardship. The complainant had to hire the auto / taxi for dropping / fetching his children from school and for his own personal use and has incurred heavy expenditure on the same.An allegation of causing grave threat and danger to the life of complainant was also made as because of faulty and defective engine etc the motor cycle has been broken down on the road at times while it was being plied.Complainant has alleged that he has not only suffered great harassment, pain, agony, mental and physical torture and had to face embarrassment and humiliation because of the said defective vehicle, sold and supplied by OPs, but also huge financial burden has accrued to complainant. A legal notice dated 24.07.2012, duly served upon both OPs by the complainant. Aggrieved by the act of OPs,the complainant praying for refund of the cost of the said motorcycle amounting to Rs. 49,870/- along with interest at the rate of 18% per annum from the date of its purchase till the date of payment, damages and compensation to the tune of 1 lakh as the said act and conduct of OP amounts to gross deficiency in service, unfair trade practice and causing harassment to complainant, cost of Rs.11,000/- along with payment of entire expenditure and losses as incurred by complainant for taking alternative conveyance. - The answering opposite party No. 1 replied to the legal notice of the complainant stating that the complainant is not entitled for any relief from OP1. In his written statement, OP1 denied any deficiency of service, mal-practice or unfair trade practice on its part by stating that vehicle did not suffer from any kind of manufacturing / inherent defect whatsoever. The vehicle was delivered to complainant after his being fully satisfied by test driving. There is no expert report or any other proof to show that the vehicle in question suffers from any kind of manufacturing / inherent defect. The defects arising out of and due to wear - tear and bad driving habit and those arising due to manufacturing defects are different. The manufacturing defects or inherent defects are those defects which cannot be repaired and which are present in the vehicle from the very first day of use. The problem reported in the instant case is not an inherent or manufacturing defect. The said motorcycle was in perfect running condition at that time. The complainant himself reported issues in motor cycle only on the first service on 12.02.2011, after one month of purchase and after using it for 709 km.
OP1 has further pleaded that whenever the complainant reported any defect in his motorcycle in question, keeping in mind the interests of complainant, the same were rectified promptly by OP2 to the complainant's full satisfaction. No defect has been found in the vehicle nor any problem has been pointed out by complainant when the vehicle was brought for the first service on 12.02.2011. The minor defects in the vehicle regarding gear shifting and clutch found to be hard, were rectified to the satisfaction of the complainant by OP2. Thereafter, the engine oil was changed and the vehicle was received by complainant to his complete satisfaction with the working of the vehicle. Thereafter, at each visit of the complainant, the defects were rectified, and complainant has received vehicle after his full satisfaction. Complainant did not mention any major defect in vehicle during any of his visits. Though OP1 has admitted the stoppage of the manufacturing of the vehicle in question, however, this has been stated that part and the accessories are still being manufactured by OP1 and are available in the market. OP1 denied the taking back any of the vehicles and retuning the cost of those vehicles due to manufacturing defects. - Further, OP1 contends that when the motorcycle was under warranty, then the opposite parties are only under obligation to repair the same and not liable for replacement. This is the stand of OP1 that it was the duty of the complainant to establish his case that the said motorcycle was suffering with any sort of manufacturing defect, which could not be removed in spite of best efforts made by Automobile Engineer. The onus to prove that there was any manufacturing defect, in the vehicle, is on complainant. OP1 argued that only on the basis of repairing of vehicle on few occasions, it cannot be said that the vehicle was having manufacturing defects. The answering OP1 has never done any act which would amount to being deficiency in service and therefore they are not liable to pay any damages / compensation. This is prayed by OP1 that complainant has not produced any supporting document to prove and justify that there is any manufacturing defects in the said vehicle, the complainant, therefore, is not entitled for any relief against OP1, on the contrary the complaint is liable to be dismissed with cost.
- The opposite party No. 2 chose not to appear despite service and also did not file any written statement before the District Commission, therefore, the case was proceeded ex-parte against OP2.
- In the rejoinder, the complainant has denied all the counter allegations of the OP1 in toto and the contentions made in complaint were reiterated.
- There is no dispute that the complainant had purchased a motorcycle Model stallion from the opposite party No. 2, authorised dealer of OP1 on 29.12.2010 for a consideration of Rs. 49,870/-. There is also no dispute that there was a warranty of on the said vehicle, though none of the party has mentioned the number of years of warranty in their pleadings nor any document has been filed by any of them.
- The documents filed by complainant in support of his claim are photocopies of delivery receipt dated 29.12.2010, RC in the name of the complainant, legal notice dated 24.07.2012, postal and courier receipts of service of legal notice and acknowledgement card.
- No cogent evidence and material was led by the complainant to substantiate his claim and to show that motor cycle suffers from inherent defect. There is no technical report/expert report in regard to any defect that can be termed as manufacturing / inherent defect available on the case file nor has the complainant ever filed any application praying / requesting for the appointment of any expert to find out whether such motorcycle was suffering from any defect alleged in the consumer complaint.
- Further, complainant failed to place on record any document or proof to show that the defects in the motor cycle were brought to the knowledge to the OP2 on the first service on 12 .02.2011 and the details of repairs carried by OP2. Complainant further failed to show the assurance given by OP2 for the replacement of the engine of the motorcycle, as mentioned by complainant in his complaint. Complainant has stated that OP2 has admitted that vehicle has suffered from some defects and they are trying to detect the same, but strangely did not place on record anything to show such admission on the part of OP2.
- The complainant failed to show any iota of evidence in support of his alleged contention of manufacturing / inherent. Without going into the depth of this aspect that defects in the vehicle were repairable or un-repairable, this cannot be said that motor cycle is having any inherent defect. The complainant even failed to produce warranty card/ job cards/ comments / complaints / first service report or any other service card report on record. In the absence of the proper evidence on record, it is wrong to presume that there is any inherent defect in the motor cycle.
- There could be a deficiency of service only if the complainant was able to prove that OP1 has failed in discharging its duties towards curing the defect in the said vehicle, or if the same would have been examined by an expert. The complainant has approached the Commission without any proof of deficiency, in the absence of which the OP1 cannot be held responsible for deficiency in service. The onus of proof of deficiency in service is upon complainant under the Consumer Protection Act, 1986. But the complainant has not produced the best evidence before the commission in support of his contention.
- If the complainant is able to discharge its initial burden of proof of deficiency, then, the burden would shift to the OP1. Complainant, having failed to prove that, the burden of proof would not shift on the OP1. The commission cannot draw adverse inference against OP1 under such facts and circumstances of the case. Moreover, it is hard to believe that the vehicle, which had run almost 709 kms by 12.02.2011, after one month of purchase, had any manufacturing defects. Had there been manufacturing defects then the vehicle would not have run that many kms. In the absence of any expert evidence or expert opinion we are unable to fathom that the vehicle had any manufacturing defect.
- Therefore, In the facts and circumstances of the case, the opposite party cannot be held responsible for deficiency in service and the present consumer complaint is not legally sustainable and liable to be dismissed. There is no order as to cost. The copy of the order be sent to parties, free of cost. The file to be consigned to record room.
(Dr. RAJENDER DHAR) (RASHMI BANSAL) (MONIKA A SRIVASTAVA) MEMBER MEMBER PRESIDENT | |
