DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.101/2019
Smt. Bindiya
W/o Sh. Iswar Singh
R/o H.No.- 11, Near CDR Chowk,
Main Road, Chhattarpur, Mehrauli,
New Delhi- 110030
….Complainant
Versus
M/s Dewan Auto
Office at: 630-631,
Chhattarpur Hills,
100 Foota Road,
New Delhi
….Opposite Party
Date of Institution : 12.04.2019
Date of Order : 01.09.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
President: Ms. Monika A Srivastava
1. The complainant has filed the present complaint seeking refund of their defective motorcycle along with interest, as also Rs.2,00,000/- along with interest @ 24% p.a. from the date of delivery of the defective motorcycle. Along with this, the complainant is also seeking a compensation of Rs.3,00,000/- for deficiency in service and for mental harassment and physical torture.
- The complainant purchased a motorcycle Pulsar 150cc, make Bajaj, with registration no DL3SDX2096 vide chassis no MD2A11CY9HRE20417, Engine Number DHYRHE04370, for a sum of Rs.85,000/- (Eighty Five Thousand) from the OP on 29.12.2017, the OP being Dewan Auto.
- The delivery of the vehicle was given to the complainant after receiving the entire amount. Soon after the purchase of the motorcycle, the complainant started feeling problems in the motorcycle as it would stop suddenly at the time of running on the road and did not start even after many efforts by the rider. It is stated by the complainant that it seemed that there was some technical or mechanical defect in the motorcycle and that it was handed over to the complainant by the OP without verifying the technical, mechanical qualification test of the motorcycle.
- The complainant states that this is in violation of the Consumer Protection Act by the OP against her. It is also stated that the complainant’s husband took the motorcycle for his day-to-day work and since the technical & mechanical defects kept occurring, he had to visit the workshop of the OP many times but only false and bogus assurances were given to her husband that the mechanical, technical defects of the motorcycle would be resolved soon.
- It is stated that the complainant’s husband faced a lot of difficulties due to the defective motorcycle and was left with no remedy but to meet the concerned in-charge of the showroom, and to make a complaint regarding the defect in the motorcycle. He requested him to provide a new motorcycle instead of the defective one but the OP failed to respond.
- It is the case of the complainant that her husband and the entire family faced a lot of difficulties on account of the defective motorcycle in their daily routine life. The complainant and her husband had to visit the OP many times the workshop but the concerned engineer or mechanic stated that the defect is a manufacturing one and cannot be rectified. It was stated that it is totally irreparable and that there is no permanent solution/remedy to rectify it.
- The complainant was shocked to hear the words of the OP that the motorcycle was defective and that it could not be repaired. After repeated visits to the office of the OP, one representative of the OP came to the house of the complainant and stated that the motorcycle was having manufacturing defect and asked them to handover the motorcycle as the engineers from Bajaj had been called to rectify the defect of the motorcycle.
- It is stated by the complainant that since then the motorcycle is lying in the possession of the OP and has not been rectified by the OP. After some time, the husband of the complainant received some telephonic calls and messages from the person of the OP to receive the defective motorcycle, which was lying in their workshop; however, when it was enquired whether it has been rectified, no satisfactory reply was received.
- Left with no remedy, the complainant sent a legal notice dated 18.01.2019 to the OP by way of speed post which was duly received in their office.
- The O.P. was proceeded ex parte vide order dated 06.08.2019. Thereafter, ex parte evidence was filed by the complainant as well as his written arguments and additional written submissions were also filed by him on the final date of hearing i.e. 11.07.2022.
- The complainant has placed on record, a tax invoice which substantiates motorcycle being purchased from Dewan Auto. by way of additional written submissions, one job card has also been placed on record. A photograph has also been placed on record which does not show anything relevant. An email has also been filed on record which is addressed by the complainant on 05.01.2019 to Bajaj Company but that also does not record the vehicle/motorcycle of the complainant being in the custody of the OP.
- No document has been filed on record which confirms the motorcycle of the complainant in the custody of the OP. It is also noted that there is no date provided by the complainant when the motorcycle is stated to have been handed over by the complainant to the representative of the OP to be taken to their workshop.
13. The Hon’ble Supreme Court in the matter of SGS India Limited vs Dolphin International AIR 2021 SC 4849 has held the following:
“The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the Respondent in the complaint. The Rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side”
14. It is therefore, upon the complainant to initially discharge its onus to prove that there was deficiency in service on the part of OP. This Commission has gone through the pleadings and documents filed by the complainant and comprehends that the complainant has not been able to discharge its onus. Therefore, complaint of the complainant fails as he has not been able to prove his case; same is dismissed without any order as to costs.
File be consigned to the record room after giving a copy of the order to the parties as per rules. Order be uploaded on the website.
