DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C.No.154 of 11.6.2007<br /> Decided on : 16.8.2007 <br /> <br /> Yogesh Chawla S/o Sh. Ramesh Kumar Chawla, R/o H. No. 6241, Heera Chowk, Sirki Bazar, Bathinda.<br /> .... Complainant <br /> Versus<br /> 1. Malwa Sales Corporation, Harbans Nagar, Near ITI Chowk, Bibiwala Road, Bathinda through its Proprietor/Partner.<br /> 2. Standard World, Standard Combines Pvt. Ltd., Standard Chowk, Handyaya Chowk, Barnala, District Barnala through its Managing Director.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Ashok Gupta, Advocate<br /> For the opposite parties : Sh. S.P.S Khokhar, counsel for opposite party No.1.<br /> Sh. Jasbir Singh, counsel for opposite party No. 2<br /> <br /> O R D E R.<br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant had purchased one Standard 'E' Bike/Battery Operated Scooter, make Standard manufactured by opposite party No.2 having battery No. 07C000261, Motor No. BFSWX-48G07010058, Frame No. 07010153, Colour Silver from opposite party No.1 vide Retail Invoice dated 15.3.2007 for a sum of Rs. 26,500/-. Rs.15,000/- were paid to opposite party No. 1 on the same day against receipt. Remaining amount was to be paid in instalments for which opposite party No.1 got blank cheques from him. He had paid Rs. 1,500/- and Rs. 1,300/- on 16.4.2007 and 22.5.2007 vide receipts No. 7 and 19 respectively. He has shown readiness and willingness to pay the remaining amount. When this Moped/Two Wheeler Scooter was purchased, he was induced by opposite party No.2 that it is of best quality and that there would be no complaint in its functioning. He was further assured that in case any type of problem is experienced, the same would be removed immediately. In case, the defect is not curable and it is a manufacturing defect, vehicle would be replaced with a new one. Guarantee of one year was assured. To his dismay, vehicle started giving problem in its working immediately after the day of purchase. Opposite party No. 2 was approached. Complaint was lodged regarding improper functioning of the vehicle. After checking, defect was found in one of the four batteries which was replaced. After the replacement of the battery, there was no improvement in the functioning of the vehicle. It used to go out of order time and again. Opposite party No.2 was again contacted. After checking, he was told that there was some defect in the motor. It was replaced. Number of the changed motor was not recorded in the bill on the pretext that he should test the vehicle and thereafter, number of the motor would be added. Replaced motor did not work properly. It was again replaced with motor No. 48G07010011. Still vehicle continued giving troubles. It is lying useless as it cannot be plied due to the manufacturing defect in it. Opposite parties were requested to provide him with a new vehicle, but opposite parties continued putting off the matter on one pretext or the other. He alleges that he has undergone huge financial loss due to the fact that defective vehicle has been provided. He has undergone mental tension, agony, botheration and harassment. In these circumstances, complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred seeking direction from this Forum to the opposite parties to replace the defective vehicle with a new one with immediate effect; pay Rs. 50,000/- as compensation on account of financial loss, mental tension, agony, botheration and harassment and Rs. 5,500/- as costs of the complaint.<br /> 2. Opposite party No.1 filed reply taking legal objections that complaint is not maintainable in the present form; complainant has got no locus-standi and cause of action to file it; complainant is not consumer; he has not come with clean hands; he is estopped from filing the complaint by his act and conduct; there is no manufacturing defect in the vehicle and as such, complainant is not entitled to its replacement; complicated questions of law and facts are involved which require voluminous evidence to decide the controversy and as such, complaint can only be decided by the civil court; complaint is false and frivolous and complainant did not follow the instructions as per service book/manual provided to him. It admits that vehicle manufactured by opposite party No.2 was sold by it to the complainant. A sum of Rs. 15,000/- was paid at the time of purchase. Remaining amount of Rs. 11,500/- was allowed to be paid in instalments. Five instalments were to be of Rs. 2,000/- each payable on 15.4.2007, 15.5.2007, 15.6.2007, 15.7.2007 & 15.8.2007. Amount of Rs. 1,500/- was payable on 15.9.2007. Rs. 1,500/- and Rs. 1,300/- were deposited on 16.4.2007 and 22.5.2007 respectively. It denies that blank cheques were received from the complainant. He was asked to produce Service Book which was not produced. It denies that guarantee of one year was given on the Scooter. Rather, warranty for six months was given. As and when complainant visited it with any problem, the same was removed to his entire satisfaction. Motor was changed and vehicle was handed over to the complainant. Similarly, battery was changed to his satisfaction. No specific manufacturing defect was pointed out. Vehicle was in working condition after removing defect/problem. Even after filing the complaint, complainant had visited it on 23.6.2007 and defect was removed to his entire satisfaction. Remaining averments in the complaint stand denied.<br /> 3. Opposite party No.2 filed reply of the complaint taking legal objections that complainant has got no locus-standi and cause of action to file the complaint as there is no manufacturing defect in the Scooter; complaint is not maintainable as there is no deficiency in service on its part. Whenever, complainant approached opposite party No.1, services were provided to his entire satisfaction. If he is undergoing problems, those are self created due to the failure in following the guidelines as per Owner's Manual. There is no complaint of any type about the manufacturing of the vehicle. Owner's Manual gives complete information about upkeep and proper maintenance for getting the better output. It admits the replacement of the battery. It is added by it that complete information regarding the battery charging has been given at page No.13 of the Owner's Manual and at page No. 12 regarding riding of 'E' Standard Bike. If any difficulty/problem is experienced by the complainant, the same can be rectified by opposite party No.1. No complaint about any problem was made to it by the complainant. It denies deficiency in service on its part and the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Yogesh Chawla complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.2), photocopy of Retail Invoice dated 15.3.2007 (Ex.C.3), photocopies of payment receipts (Ex.C.4 to Ex.C.6), photocopy of certificate regarding exemption from registration (Ex.C.7), pamphlets (Ex.C.8 & Ex.C.9), copy of Owners Manual of Standard 'E' Bike (Ex.C.10). <br /> 5. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.11) of S/Sh. Har Sewak Singh, Partner of opposite party No.1 & Rajesh Kumar, Manager, Legal of opposite party No.2 respectively; photocopies of Pamphlets (Ex.R.2 & Ex.R.3), photocopy of Warranty Claim Form (Ex.R.4), photocopy of Field Service Report (Ex.R.5), photocopies of Warranty Claim Forms (Ex.R.6 & Ex.R.7), photocopy of Job Card (Ex.R.8), photocopy of legal notice dated 2.8.2007 (Ex.R.9), photocopy of postal receipt (Ex.R.10) and photocopy of extract of the minutes of the meeting of the Board of Directors held on 28.4.2006 (Ex.R.12).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered written arguments submitted by opposite party No.1.<br /> 7. Some facts do not remain in dispute. They are that complainant had purchased Standard Battery Operated Scooter from opposite party No.1 for a consideration of Rs. 26,500/- on 15.3.2007 vide Retail Invoice, copy of which is Ex.C.3. A sum of Rs. 15,000/- was paid to opposite party No.1 out of this amount on that day. Receipt, copy of which is Ex.C.4, was issued. Balance amount was to be paid in instalments. Rs. 1,500/- and Rs. 1,300/- were paid by the complainant to opposite party No. 1 on 16.4.2007 and 22.5.2007 as is evident from the copies of the receipts Ex.C.5 and Ex.C.6 respectively. Vehicle was brought to opposite party No.1. Motor was changed. Thereafter, Battery was changed. Remaining amount of Rs. 3,200/- has been paid today by the complainant to Sh. Har Sewak Singh, Partner of opposite party No. 1 before this Forum. Sh. Har Sewak Singh has made statement to the effect that opposite party No.1 is a partnership concern and he is one of its partners. Opposite party No.1 is not in possession of seven cheques nor has it got encashed any cheque out of them. With the payment of Rs. 3,200/- entire sale consideration of the Moped in question stands paid.<br /> 8. Arguments pressed into service by the learned counsel for the complainant are that there are manufacturing defects in the vehicle. Time and again Scooter was taken to opposite party No.1 during the warranty period as is evident from Ex.R.4 to Ex.R.8 dated 9.4.2007, 16.4.2007, 29.5.2007, 23.6.2007 and 14.7.2007 respectively. Vehicle is still with opposite party No.1. Opposite party No.1 admits the defects in its own way. Opposite parties being dealer and manufacturer respectively were bound to rectify the defects. Scooter has not been given after removing defects by opposite party No.1. He also drew our attention to the affidavits of the complainant which are Ex. C.1 and Ex.C.2.<br /> 9. Learned counsel for the opposite parties argued that as and when vehicle was brought to opposite party No.1, defects were removed to his satisfaction. Complainant has failed to prove manufacturing defect in the vehicle. For the last time, Scooter was brought by the complainant to opposite party no.1 on 14.7.2007. On that day, tyre and tube which had bursted due to the negligence of the complainant, were not available with opposite party No.1 and complainant was asked to visit the showroom on 17.7.2007, but he did not turn up to receive Moped/Scooter. Notice dated 2.8.2007, copy of which is Ex.R.9, was sent to him. Despite this, he did not come to receive the vehicle. Learned counsel for opposite party No.2 argued that complainant did not comply with the guidelines/instructions given in the Owner's Manual for proper maintenance, improving the Battery life and proper functioning of the 'E' Bike. <br /> 10. We have considered rival arguments. Manufacturing defect is a defect which creeps in the vehicle during its manufacturing. Complainant has not pleaded and proved particular manufacturing defect in the vehicle in question. No expert has been examined by him to substantiate his allegation of manufacturing defect in it. His bald affidavits Ex.C.1 and Ex.C.2 are not enough to prove his version on this aspect of the matter. Moreover, they stand amply rebutted with the affidavits Ex.R.1 and Ex.R.11. Accordingly, conclusion is that the alleged manufacturing defect in the vehicle is not proved. <br /> 11. Complainant alleges that guarantee of one year was given on the Moped/Scooter. His this plea is not supported from any document. He himself has proved copy of the Owner's Manual (Ex.C.10). A perusal of this document reveals that Standard 'E' Bike manufactured by opposite party No. 2 is warranted for a period of 180 days. In other words, company has given this limited warranty for a period of six months to make good any part or parts. Complainant seeks replacement of the vehicle in question with a new one. When he has failed to establish manufacturing defect and warranty conditions clearly refer to the replacement of the defective part or parts and not the vehicle itself, its replacement is not justified. In this view of the matter, we get support from the observations of their Lordships of the Hon'ble Supreme Court in the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another-2006(2)CLT-150.<br /> 12. Another question for determination is as to whether there is any deficiency in service on the part of the opposite parties which are dealer and manufacturer of the vehicle respectively. Vehicle was purchased by the complainant on 15.3.2007 as is evident from his affidavits. Documents Ex.R.4 to Ex.R.8 show that various defects had crept in it. Complainant had to take it to opposite party No.1 for their removal on 9.4.2007, 16.4.2007, 29.5.2007, 23.6.2007 and 14.7.2007. Admittedly, vehicle is still within the period of limited warranty. This complaint was filed by the complainant on 11.6.2007. Even thereafter, complainant had to take the vehicle to opposite party No.1 on 23.6.2007 and 14.7.2007 due to the defects in it. Opposite party No.1 has proved copy of the notice dated 2.8.2007 Ex.R.9. There is nothing on record that complainant gave reply of it. Since, matter was pending before this Forum, complainant might not have deemed it fit to give reply of the notice. Opposite parties were bound to remove the defects in the vehicle within the warranty period and to make it functional. Moped/Scooter has not been given to the complainant after making it functional. It was giving problems time and again. It is the duty of the opposite parties to rectify the permissible defects in a proper way so that it may run smoothly and complainant may avail its services without any inconvenience. Mere fact that opposite party No.1 provided services to the complainant regarding the vehicle, is itself no ground to hold that there is no deficiency in service on the part of the opposite parties, particularly when the Scooter is still defective and is lying with opposite party No.1 and has not been delivered to the complainant after making it functional. Hence, there is deficiency in service on the part of the opposite parties.<br /> 13. Now question arises as to which relief should be accorded to the complainant. Opposite party No. 1 issued Job Card on 14.7.2007. It demonstrates that complainant is to make payment of Rs. 650/- for tyre and tube etc. Complainant could not show us that the items for which payment of Rs. 650/- has been demanded, are warranted. In these circumstances, direction deserves to be given to opposite parties No. 1 & 2 to deliver the Moped/Scooter in question to the complainant against payment of Rs. 650/- after making it functional so that it may give proper service. Complainant is craving for compensation of Rs. 50,000/- for mental tension, agony, botheration, harassment and loss. New Moped/Scooter was purchased by the complainant on 15.3.2007. Thereafter, within a short span, he has to take it to opposite party No.1 on account various defects in it. He could not avail proper service of the new vehicle. All this, must have caused him inconvenience, harassment, mental agony, tension and botheration for which he deserves some compensation which we assess as Rs. 1,000/- in view of the authority J.Radhakrishnan Vs. A Basheera & Another-2001(2)CLT-225(M.P.) wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 14. No other point was urged before us at the time of arguments.<br /> 15. Totality of the facts, circumstances and evidence discussed above, leads us to the conclusion that complaint should be accepted against both the opposite parties. Accordingly, it is accepted against them with costs of Rs. 1,000/-. Opposite parties are directed to do as under :-<br /> ( i ) Handover the Standard Battery Operated Scooter/Standard 'E' Bike of the complainant after making it operative and functional properly against payment of Rs.650/- within seven days from the date of receipt of copy of this order.<br /> ( ii ) Pay Rs. 1,000/- to the complainant as compensation under Section 14(1)(d) of the Act.<br /> ( iii ) Compliance regarding payment of compensation and costs be made within 30 days from the date of receipt of copy of this order, failing which amount of compensation would carry interest @ 9% P.A till payment. <br /> 16. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 16.8.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member <br /> <br /> <br /> (Dr. Phulinder Preet)<br /> Member <br /> <br /> 'bsg'<br /> <br /> <br /> <br /> <br />