Punjab

Ludhiana

CC/23/117

Ram Nath - Complainant(s)

Versus

M/s India Autos - Opp.Party(s)

Gagandeep Bakshi

23 Aug 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:117 dated 16.03.2023.                                                         Date of decision: 23.08.2023.

 

Ram Nath, aged 80 years son of Shri Banarasi Dass, resident of House No.572, Ward No.24, Guru Ram Dass Nagar, Khanna, District Ludhiana. 94641-38613.                                                                                  ..…Complainant

                                                Versus

1. M/s. India Autos, 14579, G.T. Road, Dholewal, Ludhiana through its Partner/Proprietor/Manager/Director/Authorized Person.          
2. Partner/Proprietor/Manager/Director/Authorized Person M/s. India Autos, 14579, G.T. Road, Dholewal, Ludhiana.                                                                                                                         …..Opposite parties 

Complaint Under section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Gagandeep Bakshi, Advocate.

For OPs                          :         Exparte.

 

ORDER

PER MONIKA BHAGAT, MEMBER

1.                Briefly stated, the facts of the case are that the complainant intended to purchase electronic scooter taking in view high prices of petrol and after seeing the advertisement of electronic scooter on social media, he contacted the opposite parties. The opposite parties sent their official/agent to the complainant who gave all the details and benefits and told the complainant that the warrantee of said scooter as well as its battery and other parts are for three years and in case during the warranty period, if said scooter give any problem, then the company will be responsible for the same and will replace its parts including the battery with new one.  The complainant further stated that on 22.07.2021, he visited the opposite parties and purchased Optima E5 (white) electronic scooter for Rs.72,991/- including all taxes vide invoice No.89 VAT 36 dated 25.07.2021. The said scooter was insured with ICICI Lombard General Insurance Company and the opposite parties assured to give registration certificate within a week. The complainant further stated that he time and again visited the opposite parties with request to give registration certificate but they always kept lingering on the matter. Thereafter in September, 2022 the said activa started giving problem during its start and in the month of October, 2022 it did not start despite several efforts by the complainant. Then the complainant approached opposite parties and on inspection of the said vehicle, the officials informed that the battery has not been working. Thus, the opposite parties have sold defective piece of scooter to the complainant having knowledge about the said defect and have cheated the complainant. The opposite parties took the defective battery from the scooter with assurance to remove the defect from the battery or to replace the same with new one. The complainant towed the vehicle to his residence after hiring auto rickshaw and spent charges from his own pocket. Thereafter, the complainant approached the opposite parties with request to replace the defective battery with new one then their officials told the complainant that they have already sent mail to the company and also sent the defective battery to the company for its replacement with new one and as and when they get approval from the company, then they will replace the same with ne one and affix the same in the scooter due to which he suffered undue harassment and was constrained to purchase new bicycle at Khanna by spending Rs.6750/-. The complainant further stated that in November 2022 he approached the opposite parties with request to replace the defective battery upon which the opposite parties replaced the battery with new one by saying the complainant to get it affix from some mechanic. The complainant took the battery and got it affixed from the mechanic but the new battery also started giving problem and not working properly. The complainant also sent a legal notice to the opposite parties in response to which their officials visited the complainant  and after inspection, found the battery not working. Even they informed the complainant that they will send email to the head office for replacement of said battery with new one but till date the opposite parties have failed to replace the battery. The opposite parties have supplied a defective electronic scooter to the complainant with old battery which amounts to deficiency in service on the part of the opposite parties due to which the complainant suffered mental loss, agony and torture. In the end, the complainant has prayed for directing the opposite parties to replace the defective piece of electronic scooter with new one at their own costs and further to pay Rs.2,00,000/- as compensation and Rs.11,000/- as litigation cost. 

2.                Upon notice, none appeared on behalf of the opposite parties despite service and as such, the opposite parties were proceeded against exparte vide order dated 13.06.2023.

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the legal notice dated 02.02.2023, Ex. C2 and Ex. C3 are the postal receipts, Ex. C4 is the delivery challan/estimate No.2 dated 22.07.2021 of Rs.67,500/- , Ex. C5 is the copy of tax invoice dated 25.07.2021, Ex. C6 is the copy of insurance policy, Ex. C7 is the copy of Aadhar card of the complainant and closed the evidence.

4.                We have heard the arguments of the counsel for the complainant and also gone through the complaint, affidavit and annexed documents by the complainant.

5.                On 25.07.2021, the complainant, a senior citizen of 80 years had purchased an e-scooter from the opposite parties and the complainant further claimed that assurances of warranty of the vehicle as well as its parts have induced him to purchase the said vehicle. The complainant used the vehicle for 14 months and in September/October 2022, the scooter developed snag and requested the opposite parties to replace the defective battery with new one. The said defective battery was replaced by the opposite parties but according to the complainant, his problem with regard to the functioning of the e-scooter remained the same. The complainant further claimed that an e-scooter with manufacturing defect has been sold to him.

6.                In order to prove his case, the complainant was required to produce the warranty card issued by the opposite parties. It is not the case of the complainant that despite giving assurances with regard to the warranty, no written document was provided to him. The complainant has also not produced any documents/photographs with regard to the replacement of old battery with new one. He has also not produced the bill/receipts of the logistic charges said to have been paid by him while transporting the defective scooter to the workshop of the opposite parties. The bald assertions of the complaint have not been supported by any credible evidence on record. No mechanic/expert report has been placed on record to substantiate his claim that the e-scooter had developed defects due to some manufacturing defect.  Therefore, the complainant has failed to discharge the initial burden of proving deficiency in service on the part of the opposite parties by way of any credible evidence.

7.                In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon'ble Supreme Court of India whereby it has been held as under:-

19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon'ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. "6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent." 20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

"28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service."

The Hon'ble Supreme Court of India has further upheld this view in recent judgment II(2023) CPJ 83 (SC) in Chairman & Managing Director, City Union Bank Ltd. & Anr. Vs R. Chandramohan. In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite party by any cogent and convincing evidence. 

8.                As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. The original documents placed on record by the complainant are ordered to be returned to the complainant against proper receipt and by placing on record the photocopy of the given documents on record. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                     (Sanjeev Batra)

Member                         Member                                       President         

 

Announced in Open Commission.

Dated:23.08.2023.

Gobind Ram.

Ram Nath Vs M/s. India Autos                             CC/23/117

Present:       Sh. Gagandeep Bakshi, Advocate for the complainant.

                   OPs exparte.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. The original documents placed on record by the complainant are ordered to be returned to the complainant against proper receipt and by placing on record the photocopy of the given documents on record. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:23.08.2023.

Gobind Ram.