Complainant Miss.Meena Mahajan Adv. vide the present complaint filed U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short The Act) for issuance of the necessary directions to the opposite parties to replace the defective scooter in question and to handover the new Activa Scooter in replacement of the vehicle or in the alternative the sale price of the vehicle be refunded to her and to return back the full amount of Rs.57,450/- and the opposite parties be further directed to pay compensation alongwith litigation expenses, in her favour on account of mental and physical harassment being suffered by her from the hands of the opposite parties, in the interest of justice.
2. The case of the complainant in brief is that she purchased Activa Scooter having Colour P.S White bearing Frame No.M
E 4 JE 502 JE 8249026, Engine No.JF 50 E 81247961 for Rs.47,679/- from opposite party no.1 on 15.10.2014 vide invoice no.14 IN 02939 and paid the cash payment. The opposite party no.1 in all received the amount of Rs.57,450/- from her containing of charges of Registration Fee and other accessories, Insurance etc. At the time of selling the said vehicle the opposite party no.1 had only one vehicle which was sold to her was defective and the same was having manufacturing defect even then the same was sold to her. After that she got registered her Activa from the competent District Transport Authority and the Registration number No.PB-06-AA-9407 was allotted to her. She has further pleaded that the colour of the said vehicle was While colour but strangely enough as after the purchase of about three months, its colour has been changed and the body cover/shell has been totally changed its colour from White to Yellowish colour. Her vehicle has totally lost its grace, since the same was of White colour at the time of purchase. She approached the opposite party no.1 and even the company official has visited the site and checked the vehicle in question by making inspection on 30.3.2015 and she next pleaded that even the said official and opposite party no.1 has admitted that it is a manufacturing defect while making colour on the body shell of the scooter. Opposite party no.1 and its official have admitted that they will got replaced the vehicle in question with new one within a period of 15 days but of no avail. She also issued a legal notice dated 16.4.2015 to the opposite parties for replacing the defective scooter but the opposite parties have not given any reply to the said legal notice. Hence this complaint
3. Upon notice, the opposite parties appeared through their counsel and filed their joint written version taking the preliminary objections that the present complaint is not maintainable. On merits, it was submitted that the Honda Motorcycle and Scooter Limited is a multinational company having its business all over the world. The paint used by the company is of world standard and the quality of the paint used by the company is of same standard all over the world. The vehicle of the company is painted in highly advanced plants wherein special chambers are built where no foreign particle, dust etc can enter. After painting the vehicle a close inspection of all the painted parts is done through computerized scanners and the level of the paint on each and every part is thoroughly checked. After painting the parts,the parts are dried through heat in enclosed chambers. In a single lot number of vehicles is painted and the opposite parties did not receive any such like complaint. After going through the whole process mentioned above there is no chance to change the colour of any part in such a short span of time. It was further submitted that it seems that complainant had herself applied some local made body shiner or some other material on account of which the colour of the vehicle has been affected and has become yellow from white. The complainant cannot take advantage of her own wrongs. It was next submitted that after receiving the notice the opposite parties contacted the complainant and without physically checking the vehicle, got ready to replace the parts if found in changed colour as the customers was always at priority for the opposite parties, whereas fact remains that there was no manufacturing defect in the vehicle, but the complainant did not respond to the opposite parties. Lastly the complaint has been prayed to be dismissed with costs.
4. Complainant tendered into evidence her own affidavit Ex.C1 and of Surinder Pal Mahajan Ex.C6 along with the other documents exhibited as Ex. C2 to Ex.C5 and Ex.C7 and closed the evidence.
5. On the other hand,Jatinder Pal Singh Prop of opposite party tendered into evidence his own affidavit Ex.OP1/A, alongwith the other documents Ex.OP1 to Ex.OP4 and closed the evidence.
6. We observe that the complainants’ sought after relief comprises of replacement of the defective Vehicle (Activa Scooter) in question with a new one along with the suitable cost and compensation or alternatively the refund of its full cost. However, we find that the present complainant has not produced any expert opinion/any other cogent evidence to prove the alleged ‘manufacturing-defect’ in the Scooter entitling her to replacement/refund etc. None of the document(s) produced in evidence (as Ex.C2 to Ex.C5 & Ex.C7) indicate the alleged fading/discoloring of the scooter’s white paint and in its ‘absence’ even the duly sworn out affidavits (Ex.C1 & Ex.C6) do not find the requisite support to serve the purpose of the very ‘prompt’. The affidavit Ex.C6 has seemingly gone ‘off-mark’ by losing its ‘conformity’ to the allegations as set out in the present complaint. Interestingly, we find further that the OP vendors/service providers while refuting and rebutting the complainant’s charges/allegations etc vide their written statement and affidavit Ex.OP1/A have also admitted therein their offer to ‘replace’ the ‘affected’ scooter body-parts without even physically checking the vehicle as a gesture of the priority concern to ‘customer’. But, for sure, the OP service providers’ non-submission of any post- examination report admitting/ refusing ‘discoloration’ etc gives rise to an adverse judicial presumption and thus an adverse award under the Act. Further, the superior courts’ decisions as cited by the learned counsel for the OPs do categorically bar the replacement/ refund in such cases where either the defective-part can be replaced and/or the ‘defect’ removed besides the suitable cost and compensation. In fact, the ‘onus of proof’ to prove the alleged defect, deficiency in service, employment of unfair trade practice and unscrupulous exploitation under the Act lay heavily upon the ‘complainant’ and here the present complainant has been unable to discharge/ execute the same successfully but on the other hand, we find that the OP service providers’ own ‘act & conduct’ shall not let them be left off to go scot-free, as such, under the Act.
7. In the light of the all above, we are of this considered view that this complaint can be best disposed of by giving directions to the OP’s and thus we ORDER the titled Opposite Parties to self-arrange collection of the color-faded Scooter from the complainant’s residence( within 15 days from the receipt of copy orders) to replace its ‘discolored’ parts with fresh ‘white’ painted parts and to deliver back the same( within 7 days from the collection of Scooter) besides to pay Rs.10,000/- as cost and compensation within 30 days of the receipt of copy of these orders otherwise the award shall attract interest @ 9% PA from the date of the orders till actual payment. All the titled OP vendor/manufacturer/service providers shall be jointly and severally held liable to ensure compliance to the present orders.
8. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President
Announced: (Jagdeep Kaur)
January 12, 2016 Member
*MK*
