Sri Subhra Sankar Bhatta, Judicial Member
The present appeal has been directed at the behest of the Appellant viz. Pintu Barua who was the Complainant before the Consumer Disputes Redressal Commission Unit—III (South), West Bengal (hereinafter referred to as “the District Commission” for short) challenging the impugned judgment and order dated 08.01.2018 passed by the District Consumer Disputes Redressal Commission Kolkata Unit—III (South) in connection with Consumer Complaint Case no. CC/374/2017 wherein and whereby Ld. District Commission was pleased to allow the complaint case in part and directed the OP to replace the battery of the bike of the Complainant within three months of this order.
The present Appellant as Complainant instituted the complaint case being CC no. 374 of 2017 before the District Commission under section 12 of the Consumer Protection Act, 1986 and prayed for certain relief/reliefs as described in the petition of complaint.
Case of the Complainant in brief is that he purchased a motor bike bearing Model No. GLAMOUR F1, manufactured by—Motocorp, Colour—Blue/Black, Variant—DSS, 2 Wheeler (Four strokes), Fuel—Petrol from High-tech Motors Show-room II, the authorised dealer of Hero Motorcorp Limited Company on 01.02.2017 at a sum of Rs. 78,789/- (Rupees seventy eight thousand seven hundred eighty nine only) which was paid in cash on the self-same date.
Further case of the Complainant, is that, on 01.02.2017 the aforesaid Motorbike was delivered to the Complainant and a receipt being no. 4307 towards the payment of Rs.78,789/- was given by the competent person of that showroom. It has been alleged that after a few days it was experienced by the Complainant that the said vehicle has developed troubled while riding and day by day it was hampering the smooth running of the vehicle in question on road. The Complainant made repeated complaint to the Opposite Party over telephone but the Opposite Party did not take any initiative to rectify the said faults. They did not also send their service engineer to rectify the faults of that newly purchased vehicle.
It has been also contended that on 09.02.2017 the Complainant himself went to the aforementioned showroom to show the problems developed in the vehicle in question in order to rectify the same by the experts. Accordingly, the experts inspected the vehicle and also temporarily rectified without changing any parts of the motorbike. Again after three days i.e. on 13.02.2017 the said problems developed while riding on the motorbike. The technician of the showroom advised the Complainant to go the service centre of Exide battery for checking up the battery having serial no. 7D3BN463308. The said battery was supplied along with the motor vehicle during purchase of the same. The said battery had a warranty of one year from the date of charging. The service engineer of Exide Industries Limited supplied the information to the Complainant about the condition of the battery dated 18.03.2017 as per claim request no. MO/EX/CAL/6112569. It was pointed out that the cause of defect on charging is-
i) Battery is out of warranty. Battery was manufactured in 7D3-April, 2013;
ii) Battery is out of warranty from the date of sale i.e. 01.02.2017.
iii) The vehicle has already covered the requisite mileage for which the battery 0000000121
iv)Battery type: ETZ—Scrap Battery, Battery Charge Code: NA—MAY—2013.
Complainant has alleged that he served a request letter dated 23.05.2017 on 25.05.2017 to the Manager, High Tech Motors, Showroom II at 267, Price Anawar Shaw Road Kolkata—700033 through speed post and a copy of the same was also forwarded to the Director, Hero Motorcorp Limited Community Centre Basantlok Basantvihar, New Delhi—110057 with the request to take necessary action so that new battery with warranty for running the vehicle in smooth condition can be supplied but the said Manager of Herotech Motors, Showroom—II did not pay any heed to it.
The complainant also sent a legal notice dated 04.06.2017 upon the Manager of Hightech Motors Showroom—II but the Opposite Party did not take the same seriously rather attended negligently. The cause of action for the consumer complaint arose on 01.02.2017 when the Motorbike was delivered to the Complainant and afterwards certain faults arose in the said vehicle. The further cause of action arose on 23.05.2017. It has been unequivocally contended that the Appellant is a consumer under the Act. On all such grounds the Complainant has prayed for passing necessary direction upon the Opposite Party as sought for in the prayer portion of the complaint petition.
Opposite Party, the Manager Hightech Motors, Authorised Dealer of Hero Motocorp Limited contested the complaint case by filing written version on 18.08.2017. The Opposite party denied each and every allegation as brought against them in the body of the petition of complaint. It has been clearly stated that there was no negligence or deficiency in service on the part of the Opposite Party towards the complainant. It has been also contended that the Opposite party is not the manufacturer of Motorbike in question and is merely a dealer. It has been also contended that there was no contractual liability between the Complainant and the Opposite Party. It has been further contended that the complaint case is bad for non-joinder of necessary party. Manufacturer of the Motorbike in question was not impleaded as a party to the complaint case.
Ld. District Commission after taking into account the pleadings of the respective parties as well as evidence both oral and documentary adduced from the end of the parties arrived at a definite conclusion and allowed the complaint case in part on contest. Ld. District Commission was further pleased to direct the OP to replace the battery of the motorbike of the Complainant within three months from the date of passing the order.
Being aggrieved by and dissatisfied with the above judgment and order of the Ld. District Commission the Complainant as Appellant has preferred the present appeal on different grounds as morefully canvassed in the memorandum of appeal. It has been specifically contended that the Opposite Party successfully misguided the Ld. District Commission by stating in the written version at page 3 para 5 that OP is a mere dealer and not the manufacturer; that the Ld. District Commission failed to appreciate the legal proposition that the manufacturer or the dealer is certainly liable for the defects arising out of an automobile; that the Respondent wilfully and intentionally committed the offence by selling a motor vehicle having a defective battery; that the Ld. District Commission failed to consider the constitutional obligation such as right to fair trial, equal protection of law, right against exploitation and to live with human dignity; that the Ld. District Commission misconstrued the facts and circumstances of the case and did not allow the prayer for compensation in favour of the Complainant. On all such grounds the Appellant/Complainant has prayed for allowing the present appeal after setting aside the impugned judgment and order.
It reveals from the case record that sole Respondent Manager, Hightech Motors entered appearance by filing vokalatnama on 4th July, 2018. Subsequently, Respondent did not turn up to contest the appeal. Consequently, the Appeal was heard ex parte in the absence of the Respondent.
Considered the submissions advanced by the Ld. Counsel for the Appellant.
Seen the BNA filed on behalf of the Appellant on 8th June, 2023.
Admittedly, the Appellant/Complainant purchased the motorbike in question on 01.02.2017 after making payment of Rs. 78,789/-. It is the case of the Appellant/Complainant that after few days of such purchase the Appellant/Complainant experienced trouble while riding on the said vehicle. It has been alleged that repeated complain were made to the Respondent/Opposite Party over telephone but the Respondent/OP did not make any effort to rectify the said faults. It has been also alleged that after a week i.e. on 09.02.2017 the Appellant/Complainant went to the showroom with the said problems for the purpose of rectification by the experts. It has been further alleged that after three days i.e. on 13.02.2017 the same problems occurred while riding on the motorbike. The Appellant/Complainant went to the showroom for thorough rectification thereof. It has been unequivocally contended in para 6 of the petition of complaint that the vehicle technician advised the Appellant/Complainant to go to the service centre of Exide battery for checking up the battery having serial no. 7D3BN463308 which was supplied along with the said motorbike. It has been clearly contended at Paragraph no. 7 of the petition of complaint that the service engineer of Exide Industries Limited had supplied the information to the Appellant/Complainant about the condition of the battery against claim request no. MO/EX/CAL/6112569. It has been pointed out in the said information of the service engineer that the cause of defect on charging is-
i) Battery is out of warranty. Battery was manufactured in 7D3-April, 2013;
ii) Battery is out of warranty from the date of sale i.e. 01.02.2017.
iii) The vehicle has already covered the requisite mileage for which the battery 0000000121.
iv)Battery type: ETZ—Scrap Battery, Battery Charge Code: NA—MAY—2013.
Thus, it can be safely concluded that warranty of battery is the sole manufacturing defects.
It is also the case of the Appellant/Complainant that he served request letter to the Manager Hightech Motors Showroom—II through speed post and a copy of the same was also forwarded to the Director, Hero Motocorp Limited Basantlop Basantvihar, New Delhi for taking necessary action by supplying new battery with warranty for running the vehicle smoothly but the Manager of the showroom did not pay any heed to it. The Appellant/Complainant also sent legal notice to the Manager Hightech Motors Showroom—II and the Director Hero Motocorp Limited, New Delhi through speed posts with the request to replace the old out dated batter fitted in the said motorbike of the Complainant but the Respondent/OP did not take the matter seriously. On this aspect the Respondent/OP categorically admitted in their written version that they are always ready and willing to replace the battery after supplying a new battery. It has been alleged by the Respondent/Opposite Party that the Appellant/Complainant mischievously and deliberately failed, refused and neglected to avail of the services of the Respondent/OP towards the replacement of battery.
There is no dispute that the defect was due to out dated battery fitted in the motorbike in question. Undoubtedly, Replacement of battery is the only remedy. Question of manufacturing defect in the motorbike in question does not arise at all. No such case is forthcoming from the end of the Appellant/Complainant. Respondent/OP unequivocally admitted that they are always ready and willing to replace the out dated battery with a new one at their cost. The record goes to indicate that the Appellant/Complainant requested the Respondent/OP to supply new battery after changing the old one from his motorbike. After considering the averments of the respective parties and having considered the evidence on record Ld. District Commission arrived at a definite conclusion and passed the reasoned order. Practically, we do not find any irregularity, impropriety or illegality in the judgment and order passed by the Ld. District Commission. In our considered view the impugned judgment and order do not require any interference of this Appellate authority.
Resultantly, the present appeal fails ex parte.
It is, therefore,
O R D E R E D
That the present appeal being first Appeal no. A/133/2018 be and the same is dismissed ex parte but considering the circumstances without any order as to costs.
The impugned judgment and order dated 08.01.2018 passed by the Ld. District Commission, Kolkata Unit—III (South) in connection with consumer complaint case no. CC/374/2017 are hereby affirmed.
Interim order, if any, be vacated forthwith.
Let a copy of this judgment be sent to the concerned District Commission for information and taking necessary action.
Let copy of judgment be handed over to the contesting parties free of costs.
Thus, the Appeal stands disposed of.
Note accordingly.
