Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 123.
New complaint No.:218/2019
Instituted on : 17.02.2016.
Decided on : 19.08.2019.
Vats Vidya Mandir High school, Village Yaqubpur, Teh. & Distt. Jhajjar, through president Vats Vidya Mandir Education Society.
.......................Complainant.
Vs.
- Mohan Trucks(a Unit of Mohan Tractors Pvt. Ltd.) near Gandhra Mor, Delhi-Rohtak Road, Kharawar, Teh. Sampla, Distt. Rohtak.
- Ashok Leyland, Gandhra Mor, Delhi-Rohtak Road Sampla through its M.D./Incharge.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
SH. VED PAL, MEMBER.
DR. RENU CHAUDHARY, MEMBER
Present: Sh.O.P.Chugh, Advocate for complainant.
Sh. Mukesh Parmar, Advocate for opposite party No. 1.
Sh. Gulshan Chawla, Advocate for opposite party No. 2.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. The present case was decided on 02.05.2017 by this Forum whereby the opposite parties were proceeded against exparte. Opposite parties filed appeal against the said order, which was accepted by Hon’ble State Commission, Haryana, Panchkula and opposite parties were accorded opportunity to join the proceedings and to lead evidence etc. and to appear before the District Forum. Hence this complaint.
2. Brief facts of the case are that the complainant has purchased a bus bearing temporary No.HR99HS-7435 of Ashok Leyland from opposite party No.1 vide bill no.505 dated 22.07.2015. That soon after purchasing the bus, it was found that there was some manufacturing defect in the said bus. When the driver of the bus took the bus for passing, it was found that the bus was not taking mobile oil and on this, the complainant contacted with opposite party no.1 and on 04.09.2015, the driver of the complainant brought the bus to the service centre but in the job card, date was wrongly mentioned as 09.09.2015. On 15.09.2015, it was informed by the opposite party No.1 that the bus has been repaired and driver of the complainant brought the bus and the opposite party No.1 asked the driver to drive the bus for one or two days and two liters mobile oil was given to the driver and after filling the same, when the bus was plied, after 100 KM, mobile oil finished and opposite party no.1 was informed and mechanic came there with oil and brought the bus to agency on 16.09.2015 and it was told that the engine of the bus is damaged and new engine will be fixed. It was also assured that the new bus will be given to the complainant till the engine is replaced but till today, bus is lying with opposite party No.1 and the complainant has to hire another bus by paying Rs.2000/- per day. That there is manufacturing defect in the bus due to which complainant is suffering financial loss whereas huge amount has been spent for purchasing the same. That complainant requested the opposite party either to replace the bus or to refund price thereof but the opposite party has been avoiding the same on one pretext or the other. That the act of opposite parties is illegal and there is deficiency in service on the part of opposite parties. As such, it is prayed that opposite parties may kindly be directed either to replace the said bus with new or to refund the price thereof amounting to Rs.1340000/- alongwith interest @ 18% p.a. from the date of purchase till payment and also to pay Rs.200000/- on account of mental agony, harassment and litigation expenses to the complainant.
3. As per order dated 13.07.2018 of Hon’ble State Commission, Haryana, Panchkula, opposite parties appeared and filed their separate written reply. Opposite party No.1 in its reply has submitted that it is wrong to allege that soon after the purchase of the bus, it was found that there was some manufacturing defect in the said bus. It is wrong to allege that the bus was brought to the service centre on 04.09.2015. That the date mentioned in the job card is correct which has been prepared in the usual course of business and there was no occasion to have mention the wrong date. That it was made clear to the complainant by that time that the defect has occurred in the vehicle due to not following the guidelines and the instructions by the complainant/his driver regarding the use of the said vehicle. It is wrong to say that the complainant was ever told by the opposite party No.1 that the bus is having manufacturing defect. It is pointed out here that the fault was removed and the damaged part was replaced and the due intimation was given to the complainant telephonically as well as by sending the email to the complainant by the opposite party No.1 on 27.10.2015 and even thereafter the opposite party no.1 was repeatedly requesting the complainant to take back the vehicle which was lying parked with the opposite party No.1 in quite OK condition but the complainant was not coming forward to take back the said bus intentionally and deliberately. That opposite parties are entitled to get the parking charges from the complainant @ Rs.200/- per day from the date since when the vehicle is lying parked unnecessarily and the complainant has not come forward to take back the vehicle. That there is no manufacturing defect in the vehicle and there was no hardship and financial loss to the complainant and the normal wear and tears were to be borne by the complainant. It is prayed that complaint may kindly be dismissed with costs.
4. Opposite party no.2 in its reply has submitted that the present complaint is not maintainable before this Hon’ble Forum as Bus is commercial vehicle and dispute is of commercial nature and the same cannot be decided by this Hon’ble Forum. That the complainant himself in para no.4 of the complaint has admitted that the bus was purchased by him for commercial purpose. That the commercial activity is not covered under Consumer Protection Act 1986, so complainant has to approach to the appropriate Forum to redress his complaint. On merits, it is submitted that the complainant has not produced any independent expert opinion to support his claim on manufacturing defect. That the complainant had not taken due care of his vehicle as per warranty clause which the complainant had to take care of his vehicle. That the vehicle in question was brought first time on 09.09.2015 at the mileage of 4820 K.M. where engine oil was filled and vehicle was delivered in perfect running condition. After that second time, vehicle was brought on 01.10.2015 at the mileage of 4880K.M. accordingly minor service was done and oil etc. were replaced and vehicle was delivered in perfect running condition. After that first free service was carried on 20.10.2015 at the mileage of 4950KM. and vehicle was delivered in perfect running condition. That without any technical or mechanical defect whatsoever the complainant has failed to provide proof to show that the vehicle is suffering from manufacturing defect. As such it is prayed, that complaint may kindly be dismissed with costs.
5. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C14 and closed hid evidence on dated 09.02.2017 and on 13.05.2019 made a statement that evidence already filed in this case be also read now. On the other hand, ld. counsel for the opposite party No. 1 has tendered affidavit Ex.RW1/A, documents Ex.R1/1 and closed his evidence on dated 11.07.2019. Ld. counsel for the opposite party No. 2 has tendered affidavit Ex.RW2/A, documents Ex.RW2/1 to Ex.RW2/3 and has closed his evidence on dated 28.05.2019.
6. Ld. counsel for the opposite party No.1 has filed written arguments. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. Regarding the first contention of the opposite parties that the bus in question was used for commercial purpose, it is observed that the same was used for the purpose of pick-up and drop-off the school students and not for carrying passengers. As such, the same was used by the complainant for earning his livelihood. Hence it is not proved, that the same was for commercial purpose. The contention of the complainant is that the engine of the bus was defective from the very beginning and was consuming more oil and there was problem of white smoke also and this fact is also mentioned in the job sheet Ex.C3. Hence there was manufacturing defect in the vehicle in question. On the other hand, contention of the opposite party is that there is no manufacturing defect in the vehicle in question and there is no expert/mechanic report on file which can prove any manufacturing defect in the bus.
8. After going through the file and hearing the parties, it is observed that the onus to prove that there was no manufacturing defect in the bus, was on the opposite party. They should provide report of a technical person to prove that engine of the bus is in working condition. Moreover, if the bus was repaired against the job sheet dated 09.09.2015, then what was the outcome after repair. Regarding this fact also, no document has been placed on record by the respondent company. Meaning thereby, there is some hide and seek on the part of opposite parties. If the bus was in proper working condition, in that situation they should move an application before the Forum and a joint inspection can be done in the presence of expert/technician and a test drive should have been taken by the technician to prove this fact that there is no manufacturing defect in the vehicle in question. Perusal of document Ex.RW2/3 itself shows that piston, ring oil-piston, ring 2nd piston, ring top-piston, GSKT Assy-cyl head, washer-thrust, BRG-Conn, BRG-main LWR, BRG-main-UPR, block Assy-cylinder, Crank-shaft assy, turbo assy(W/G), element assy, element-oil filter, radiator fluid, STRG Gear oil(power), engine oil, seal-oil, valve i.e. 20 parts were replaced . As per this document, the parts were replaced on 01.10.2015 amounting to Rs.114923/- and the labour amount is Rs.2227/- regarding the visit No.2 and total amount spent on the repair is Rs.117150. Meaning thereby, the engine was very much defective on dated 01.10.2015 and bus was purchased on 22.07.2015 i.e. just after 2 months of its purchase. When the piston and rings were changed of a engine, meaning thereby there is a manufacturing defect in the engine. So the respondent has supplied a defective vehicle to the complainant which is itself proved from document Ex.RW2/3. One another plea has been taken by the opposite party no.2 that vehicle was not properly plied by the complainant. It has not been mentioned in this job sheet that the vehicle was not properly plied by the driver of the vehicle. It is also on record, that more than 4 years have been passed, but the vehicle could not be registered under the registration authority. Hence there is deficiency in service on the part of opposite parties and the opposite parties are jointly and severally liable to refund the price of vehicle in question, which as per bill/retail invoice Ex.C6 is Rs.1340000/-.
9. In view of the facts and circumstances of the case, complaint is allowed and we hereby direct the opposite parties to refund the price of bus in question i.e. Rs.1340000/-(Rupees thirteen lacs forty thousand only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 17.02.2016 till its realization and also pay a sum of Rs.2000/-(Rupees two thousand only) as compensation and Rs.3000/-(Rupees three thousand only) as litigation expenses to the complainant within one month from the date of decision. The vehicle in question is already in the possession of opposite parties.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
19.08.2019.
.....................................................
Nagender Singh Kadian, President
..........................................
Ved Pal Hooda, Member.
……………………………….
Renu Chaudhary, Member
