Per Shri P.N. Kashalkar – Hon’ble Presidingf Judicial Member:
(1) This appeal is filed by the original Opponent No.1 – Kinetic Motor Company Ltd., being aggrieved by the judgement and award passed by the District Consumer Disputes Redressal Forum, Pune in Consumer Complaint No.390/2008. While allowing the complaint filed by Respondent no.1, the District Forum directed Original Opponent No.1 to refund full price of the vehicle amounting to `40,620/- within a period of 15 days from the receipt of the order and also directed Complainant to return scooter Kinetic 4 A (Black) bearing Registration No.MH-12DJ-8730 to the Appellant Company. Aggrieved by this order Opponent No.1 has filed this appeal.
(2) Facts lie in narrow compass. The complainant appears to have purchased Kinetic Scooter 4A (Black) from the authorized dealer of Opponent No.1. She paid total consideration of the said vehicle of `40,620/-. According to Complainant initially for two months she had no problem, but thereafter she faced a lot of problems in the scooter and found that there were many manufacturing defects resulting into excessive engine vibration, unusually loud noise, low fuel average and clutch jerks etc. She pleaded that she had taken the vehicle time and again to the various service centres of the Opponent no.1, but her problems continued unabated every time the vehicle was sent for servicing. The same problem persisted and therefore, fed up with such problem she ultimately gave legal notice through her Advocate. Even after legal notice the problems were not rectified by the Opponent Nos.1 and 2 she ultimately filed consumer complaint in District Forum, Pune against Opponent no.1, manufacturer of the vehicle and Opponent no.2 as the dealer of the said vehicle.
(3) Opponent no.1 contested the complaint and filed written version supported by affidavit of Mr.Harshad Mahajan, dated 12.11.2008 in which he pleaded that there was not having manufacturing defect in the vehicle purchased by the Complainant. There was no deficiency or negligence on the part of Opponent no.1 in rendering after sale service to the Complainant. Respondent no.1’s problems were well attended promptly and Complainant every time recorded satisfaction note on the job card. Opponent No.1 further pleaded that all the while it was ready and willing to give servicing to the Complainant subject to terms and conditions of the warranty of the vehicle. Opponent no.1 had agreed with the suggestion of the Complainant that vehicle should get inspected through some third party but Complainant was not ready to make available said vehicle for inspection by third party. Opponent no.1 also pleaded that the Complainant was using the alleged vehicle for more than 2½ years and as per warranty terms and conditions they had rendered the service to the Complainant and now after warranty period is over they are not liable to give replacement of the vehicle, particularly when they were always ready and willing to give services to the Complainant within warranty terms and conditions. They therefore pleaded that complaint should be dismissed with costs.
(4) Opponent no.2 also filed affidavit of Shri S.A. Rajput and adopted the written statement of Opponent no.1.
(5) On the basis of affidavits and documents placed on record the District Forum in paragraph no.15 gave finding that vehicle was beyond the repairs and it was of the opinion that the Opponent should refund the price of the vehicle. The District Forum emphasized upon the fact that the vehicle was taken to the service centre of the opponent no.1 on 21.09.2007, 07.10.2007, 07.11.2007, 07.12.2007 and 13.12.2007 and every time Complainant was required to approach service centre of the opponent for some sort of complaints and therefore the District Forum was of the view that the vehicle was having manufacturing defect and there was no need to obtain separate certificate to prove manufacturing defect and therefore, the District Forum allowed the complaint and directed Opponent No.1 to refund to the Complainant an amount of the vehicle of `40,620/- within a period of 15 days from the date of receipt of the order and also directed Complainant to return scooter Kinetic 4 A (Black) bearing Registration No.MH-12DJ-8730 to the Opponent no.1 Company.
(6) We heard Mr.Ashutosh Marathe, Advocate for the Appellant and Ms.Teja Thanekar, Advocate for the Respondent No.1.
(7) We are finding that the judgement and award passed by the District Forum is per se bad in law and cannot be allowed to sustain in law. What is pertinent to note is the fact that when Respondent No.1 is alleging that there is manufacturing defect she has to substantiate the said allegations by adducing evidence in that behalf. Evidence must be of technical expert. She has not adduced any evidence of technical expert from automobile industry. She had not sent the vehicle to institution like ARAI for inspection and for technical expert report. In the absence of any such report of the expert asserting and confirming Complainant’s allegations that the vehicle in question was having manufacturing defect, the District Forum ought not to have allowed the complaint in toto in favour of the Complainant. That apart, we have been taken to various job cards by Advocate Mr.Ashutosh Marathe, Counsel for the Appellant. All these job cards ultimately revealed that within warranty period her vehicle was given free servicing and whatever complaints were made by Complainant were attended to the satisfaction of the Complainant. Within warranty period no charge was levied on the Complainant. Even after warranty period, we are finding that the vehicle was attended free of charge and Complainant had recorded customer’s satisfaction letter dated 28.08.2007. This was during warranty period because the Complainant had purchased the vehicle on 10th May, 2006 and warranty was valid for 12 months from the date of purchase, so warranty was to expire on 10th May, 2007. On 28.08.2007 the vehicle was attended to the satisfaction of the Complainant and Complainant had recorded satisfaction letter, but while doing so Complainant was wise enough to mention further remark “problem attended by Kinetic technician, result found satisfactory. Further, unless I will not find any problem in any regular run the problem should not be considered rectified.” This is contradictory noting. At one stroke the Complainant is recording satisfaction of the servicing beyond the warranty period rendered by the authorized dealer of opponent no.1, but, in the next breath, the Complainant deliberately mentioned that though the results are satisfactory, the problems have been attended, she would not record satisfaction unless she takes regular run and she finds no problem. This is something which is unheard of. If you are recording that satisfaction in the servicing done after the test drive in the premises itself, you should not have written remark of this nature because vehicle was taken out from the dealer’s premises. You have to mention whether you are satisfied or not and whether your problems have been attended or not. And Respondent no.1 had clearly recorded satisfaction of the servicing done by the authorized dealer. When this is so her further remark is of no use. What is further pertinent to note is the fact that by letter dated December 7, 2007, the Appellant herein had asked Complainant to make available her vehicle for inspection and for contact with their Area Service Engineer - Mr.Randhir Pawar, for joint inspection in the presence of third party. But the reply given by Respondent no.1 is that unless Company gives in writing what action they are going to take once the surveyor will certify the problem she would not go in for the inspection. In other words, there was categorical default on the part of the Respondent no.1 in not making the vehicle available for inspection by the third party. There is another letter dated 22nd February, 2008 at page 85 in which Appellant had requested Respondent no.1 to kindly arrange to make her vehicle available at their dealer M/s.Sonia Kinetic, Thane by 27th February, 2008 and inform their Engineer Mr.Randhir Pawar. To this letter there is no reply or positive response from Respondent no.1. The only response to the Company was that the Company had received legal notice sent by the Complainant through her advocate. This would leave us in no doubt that Complainant did not want her Kinetic Scooter to be subjected to inspection by third party and even she was not prepared to bring her vehicle at the service centre at Thane, when she had made specific request in that behalf to the Appellant Company. All these facts speak for themselves. We are therefore finding that there was no manufacturing defect in the vehicle and complaints were filed by Respondent No.1 just to claim price of vehicle paid by her. It is also pertinent to note that District Forum, Pune in its order categorically observed that at the time of last servicing the vehicle had covered a distance of 9719 kilometers. We are of the view that if the vehicle has covered distance of this much kilometers then nobody can be allowed to say that it is still having manufacturing defect. Thus, two wheeler covering more than 9000 kilometers speaks volume about the perfect condition in which the said vehicle was. Complainant was unnecessarily making one or other complaint just to suit her ultimate motive of filing complaint to get refund of the full amount. In this view of the matter, we are finding that the award passed by the District Forum, is not sustainable in law and we reiterate that though there being no expert evidence, the District Forum allowed the complaint unnecessarily without any proof of any manufacturing defect. In the circumstance, we are inclined to allow this appeal to quash and set aside the order passed by the District Forum, Pune. Hence, we pass the following order:
O R D E R
(i) Appeal is allowed.
(ii) Impugned award passed by the District Forum, Pune is quashed and set aside.
(iii) Consumer Complaint no.390/2008 stands dismissed.
(iv) Parties are left to bear their own costs.
(v) Inform the parties accordingly.
Pronounced on 27th January, 2011.
