Haryana

Ambala

CC/75/2020

Rani Devi - Complainant(s)

Versus

M/s Goyal Automobiles - Opp.Party(s)

Gaurav Rajpoot

03 Feb 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	75 of 2020
Date of Institution	:	09.03.2020
Date of decision	:	03.02.2023

Rani Devi aged about 45 years wife of Shri Ranbir Singh Resident of House no. 332, Durga Nagar, Near Satsang Bhawan, Ambala City, Haryana (India): Mobile no.9991412773.

          ……. Complainant

Versus

1. M/s Goyal Automobiles, G.T. Road, Near Milk Plant, Ambala City through its authorized signatory.
2. M/s Bajaj Finance Limited, Prem Nagar, Near Vikas Vihar, Ambala City through its authorized signatory.
3. Bajaj Auto Registered Office/Head Office, Bajaj Auto Limited, Akurdi, Pune, India- 411035.

 

   ….…. Opposite Parties.

Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Gaurav Rajpoot, Advocate, counsel for the complainant.

                   Shri Abhishek Bansal, Advocate, counsel for OPs No.1 and 3.

                    OP No.2 already ex parte.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To deliver/exchange the new motor cycle against the defective motorcycle having Chassis No.MD2A15AY9KRM02045, Engine No.JBYRKM60799.
2.  To refund the amount of Rs.12,500/- along with interest.
3. To return the signed blank cheques of Punjab National Bank, Ambala City and other documents of the complainant and also not to misuse the said cheques.
4. To pay compensation of Rs.20,000/- to the complainant on account of suffering of physical and mental harassment, wastage of his precious time, traveling expenses etc.
5.  To return the old motor cycle bearing registration no. HR01-AC-2157 to the complainant.
6. To pay Rs.10,000/- as litigation expense.
7. Grant any other relief which this Hon’ble Commission may deems fit.

2.             Brief facts of the case are that the complainant purchased a vehicle make Bajaj Discover bearing Chassis no.MD2A15AY9KRM02045 Engine no. JBYRKM60799, on finance from OP No.2. On 01.05.2019, the complainant along with her son approached the office of OP No.1 alongwith her old motor cycle bearing registration no. HR01-AC-2157. OP No.1 suggested the complainant to sell the old vehicle to it to which she agreed for an amount of Rs.12,500/-. The said amount was adjusted in the sale price of new motorcycle aforesaid. It was agreed that the complainant will pay remaining payment on installments. OP No.1 also took 4 blank cheques along with signature of the complainant, of the Punjab National Bank, Ambala City and also took PAN Card, Aadhar card, ration card photographs etc .The total price of the said motorcycle was fixed at Rs.80,000/-. The complainant has paid/adjusted an amount of Rs.12,500/- and an amount of Rs.67500/- was outstanding. The above said new motor cycle started creating problem from the very beginning ,started creating trouble for the complainant The piston, engine, ring etc. was not working properly and the motor cycle stopped on the road, within 30 days of its purchase. Matter was reported to OP No.1, who asked the complainant to leave the said motorcycle to its workshop which the complainant did. However, when the motorcycle was delivered back, it again started given same problem. Thereafter, the complainant approached number of times to the OPs No.1 and 3 for rectification of defects in the said motorcycle but to no avail. The complainant also sent legal notice through her counsel on 24-07-2019 to the OPs, to which false reply was sent by OP No.1 and 2. Hence, the present complaint.
3.           Upon notice OPs No.1 and 3, appeared and filed their short written version wherein they raised preliminary objections qua no cause of action etc. On merits, it has been stated that free warranty service is offered for normal routine maintenance service, as per warranty terms and conditions mentioned in the Owner's Manual. The vehicle in question is perfectly okay and is in continuous use. The vehicle is still under warranty and OPs No.1 and 3 are ready to render necessary services. However, in order to settle the matter, first step is that, the complainant may give the vehicle to the workshop/dealers, whereafter, necessary services, if any required, as per Warranty Terms and Conditions will be given and the complainant may take delivery with necessary trails. OPs No.1 and 3 are ready to submit report about the vehicle to this Commission with a request to pass necessary order. OPs No.1 and 3 had written to the complainant customer vide Regd Post No. RH479258925IN but the same had been returned back due to his non availability at the given address. Rest of the averments of the complainant were denied by OPs No.1 and 3 and prayed for dismissal of the present complaint.
4.           Upon notice, none appeared on behalf of the OP No.2, before this Commission, therefore, it was proceeded against ex-parte vide order dated 04.01.2021.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure C-W1/A alongwith documents as Annexure C-1 to C-8 and closed the evidence on behalf of complainant. On the other hand, learned counsel for OPs No.1 and 3 tendered affidavit of Davinder Kumar, Manager of M/s Goyal Automobiles, GT Road, near milk plant, Ambala City as Annexure OP-1& 3/A alongwith documents Annexure OP-1 & 3/1 to OP-1 &3/4 and closed the evidence on behalf of OPs No.1 and 3.  
6.           We have heard the learned counsel for the complainant and learned counsel for the OPs No.1 and 3 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by neither rectifying the defective motorcycle in question, despite the fact that the same was under warranty period, nor refunding the price thereof, as it suffered from inherent manufacturing defect, the OPs are deficient in rendering service and adopted unfair trade practice.  
8.           On the contrary, learned counsel for OPs No.1 and 3 submitted that since the complainant failed to prove by placing on record any expert report or otherwise, that any defect occurred in the said motorcycle during the warranty period, as such, still if any defect arise therein, the OPs are ready to remove the same, as per terms and conditions of the warranty.   
9.           It is significant to mention here that the complainant to prove this fact that the motor cycle in question is suffering from manufacturing defect because it started giving trouble within 30 days of its purchase, as its piston engine, ring etc. were not working properly and the defects were not rectified by the OPs, she has produced on record her affidavit only, not even a single job card has been placed on record by the complainant to prove that she took her motorcycle to the workshop of OPs No.1 and 3 even once. At the same time, she has neither moved any application under the provisions of the Consumer Protection Act, 2019 before this Commission nor has placed on file any expert report/opinion from which this Commission is convinced that the motorcycle in question suffering from any manufacturing defects.  Thus, when OP No.1 and 3 have taken specific plea to the effect that the motorcycle in question is perfectly OK and is in continuous use, then it was the duty of the complainant to rebut the same by filing the expert opinion/report or to move an application before this Commission to get inspection of the motorcycle in question by any expert but she failed to do so.
10.           In our considered opinion, when a manufacturing defect is alleged in any good/product, the onus of proof has to be on the complainant, which in the present case is find missing.  In 2017 (3) CPR 24 (NC) [Baljit Kaur Vs Divine Motors and Anr.] the Hon'ble National Commission dismissed the Revision Petition filed by the petitioner-Baljit Kaur by holding as under:-

"….While it is true that this has no relation with any manufacturing defect, it is also true that the manufacturing defect as alleged has not been proved before the fora below, by reference to any expert report in this regard. When a manufacturing defect is alleged, the onus of proof has to be on the complainant. Admittedly, the petitioner/complainant had produced, in support of her allegation of manufacturing defect, her own affidavit alongwith affidavit of 7-8 more witnesses. The District Forum correctly held - and the state commission concurred - that that these affidavits are no substitute for an expert opinion, to hold that the vehicle was indeed suffering from some manufacturing defect (s)..."

 

11.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove her case, therefore, no relief can be given to her. Resultantly, this complaint stands dismissed with no order as to cost. Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.        

Announced:- 03.02.2023.

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President