Date of filing – 12.02.2014

Date of Hearing – 10.02.2017

PER HON’BLE SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER

            The challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) is to the Order No.33 dated 13.01.2014 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I (for short, Ld. District Forum) in Consumer Complaint no. 431/2009 whereby the consumer complaint initiated by the Complainant Sri Shantanu Boral under Section 12 of the Act was allowed with  directions upon the OPs/Respondents to refund a sum of Rs.20,000/-, to pay compensation of Rs.5,000/- and litigation cost of Rs.1,000/-.  By the said order, however, the Appellant was directed to return the two wheeler in question to the Respondents within 15 days after realisation of the aforesaid amount.

          The Appellant herein being Complainant lodged the complaint stating that on 23.06.2008 he purchased one two wheeler being Bajaj XCD 125 DTS-1 Bike manufactured and marketed by Respondent no.3 from their dealer at a price of Rs.37,289/- and Rs.4,661/- being VAT totalling Rs.41,950/-.  The warranty card dated 23.06.2008 specified that the warranty period for the said vehicle was for 24 months or 30000 KMs. whichever is earlier.  The Appellant alleged that from day one of the used of the said vehicle, he found to his utter surprise that mileage given by the said vehicle ranging from 40 to 45 KMs. per KMs, as against 109 KMs. Per litre represented by Respondent no.1 and assured by Respondent nos. 2 & 3.  Besides poor mileage, within span of three months, the clutch plate had to be replaced at the hands of Respondent no.2. The Appellant alleged that several times we brought to the notice to the Respondent no.2 about the problem but the same remain unattended for which on 01.07.2009 he through his Ld. Advocate wrote a letter to the Respondents to settle the dispute by replacing the defective bike with a new one but it also turned a deaf ear.  Hence, the Appellant being Complainant approached the Ld. District Forum with prayer for certain reliefs, viz – (a) to direct the Respondent nos. 1 to 3 for replacement of the vehicle alternatively to refund the entire consideration price; (b) to pay compensation of Rs.10,000/-; (c) to pay costs of litigation of Rs.10,000/-.

          The Respondent nos. 1 to 3 being OP nos. 1 to 3 by filing a written version disputed and denied the claim of the Complainant. It is stated by them that fuel average depends on various external factors on which they have no control.  It has also been stated that due to rough and tough usage of the vehicle, the clutch of the vehicle may broken.  The Respondents have categorically stated that there was no deficiency in services on the part of them.

          After assessing the materials on record, the Ld. District Forum by the impugned Order allowed the consumer complaint, with certain directions upon the OPs, as indicated above.  The Respondents/OPs have not preferred any appeal.  However, being dissatisfied with the amount awarded by the Ld. District Forum, the Complainant has come up in this Commission with the present appeal.

          We have scrutinised the materials on record and considered the submission advanced by Mr. Gouranga Gupta Roy and Mr. Barun Kumar Ray, Ld. Advocates for the Appellant and Respondents respectively.

          Having heard the Ld. Advocates appearing for the parties and on perusal of record, it would reveal that on 23.06.2008 the Appellant has purchased one two wheeler Bajaj XCD 125 DTS-1 bike manufactured and marketed by Respondent no.1 from their dealer i.e. Respondent no.3 at a consideration of Rs.37,289/- + Rs.4,661/- as VAT totalling Rs.41,950/-.  The said two wheeler received a registration being No.WB-20F/4230 on 25.06.2008. 

          It is alleged by the Appellant that soon after purchase he noticed that the vehicle started to give poor mileage and within a span of three months of purchase, clutch plate had to be replaced at the hands of Respondent no.2.  The Appellant basically on these two points hammer before the Ld. District Forum.  In this regard, the Ld. District Forum has observed – “The Complainant neither filed any expert report nor disclosed how many kilometres the two wheeler plied.  The mileage assurance given by OP is advocated in respect of running the vehicle only on top gear and without any interruption of the clutches.....”.

          For understanding the problem, it would be proper to have a look to the report of mechanical expert dated 17.05.2010.  The report speaks that clutch was defective and acceleration was hesitant and the engine running irregular but needs through clutches repairing and engine tuning.  The Appellant has not enclosed the statement made by PW-2 (Technical Expert) along with Memorandum of Appeal.  The Appellant also did not take any pain to produce ‘owners’ manual’ and the said manual which would reflect  that the clutch and other few things do not fall within the scope and limits of warranty.  So far as tuning of the engine is concerned, it is adjustable by an idle single screw.  The clutch plate may damage for several reasons, basically due to negligence or careless driving by the operator/driver of the vehicle.  In other words, the longevity of clutch plate depends upon the sincerity and skill of driver.

          Now coming to the point of poor mileage, it may be recorded that the mileage depends upon several factors – road condition, maintenance of vehicle, the load carried on the vehicle, number of starts and stops of the vehicle etc.  The Appellant never made any effort to get the vehicle examined through an expert whether the mileage given by the two wheeler was poor or not in terms of the assurance given by the company. 

          Mr. Gouranga Gupta Roy, Ld. Advocate for the Appellant has submitted that the Ld. District Forum has passed an order of refund of Rs.20,000/- as the vehicle is already more than five years old.  But to that effect, no liability can be attributed upon the Appellant because the Appellant was always ready and willing to return the vehicle.  On the other hand, Ld. Advocate for the Respondents has contended that as the Appellant did not appoint any expert to prove the alleged deficiencies, the order of the Ld. District Forum cannot be faulted with.

          After hearing both sides, we find that the Appellant did not specify how much kilometres the vehicle in question run.  It is well settled that it is the Complainant to prove that the vehicle suffered from manufacturing defect.  There is no evidence whatsoever to show that the vehicle in question had an inherent manufacturing defect. 

          After giving due consideration to the submission advanced by the Ld. Advocates appearing for the parties and on a close scrutiny of the materials on record, we find that the appeal has no merit and as such it is liable to be dismissed.

          Consequently, the appeal is dismissed on contest.  However, there will be no order as to costs in this appeal.

          The impugned order is hereby affirmed.

          The Registrar of this Commission is directed to send a copy of this order to the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-I for information.