Complainant Jagir Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite parties may be directed to give new motorcycle or to return the amount of Rs.49,997/- along with interest @ 12% per annum from the date of purchase till its realization to him. Complainant has also claimed Rs.30,000/- as compensation for harassment and Rs.10,000/- as litigation expenses.
The case of the complainant in brief is that he is a simple villager and had purchased motorcycle from opposite party No.1 on 04.02.2016 of 'Honda Company' for Rs.49,997/-. It was pleaded that from the first day of purchase motorcycle was not running properly and engine was also not working properly and motorcycle was emitting too much smoke. After 10 days complainant approached the opposite party No.1 and they told that they will remove the defect at the time of first service of motorcycle. It was pleaded that after one month of purchase complainant went to opposite party No.1 for first service and mechanic of opposite party No.1 told that there was defect in the engine due to which it was emitting more smoke and even half mobile oil left and even showed their inability to remove the defect and send the vehicle to head agency i.e. opposite party No.2. It was further pleaded that said motorcycle was handed over to the complainant after 10 days and opposite party No.1 told that the whole kit had been changed and defect had been removed but after that defect had not been removed and situation become worse and complainant again approached the opposite party No.1 regarding this many times but nothing had been done. It was also pleaded that now motorcycle is lying with the opposite party No.2 for last more than two months but defect had not been removed and opposite parties made false excuses and failed to hand over the said vehicle after removing the defect. It was next pleaded that there was manufacturing defect in the motorcycle and it was not possible to remove it and mechanic of opposite party No.2 told the complainant that whole engine had to be removed. It was pleaded that complainant was suffering due to the illegal act and conduct of the opposite parties whereas he has purchased the motorcycle for his convenience. Complainant requested the opposite parties to give new motorcycle but they failed to do so and there was deficiency in service and malpractice on the part of opposite parties. It was further pleaded that opposite parties no.3 and 4 are the maker of the said vehicle, hence this complaint.
Notice of the complaint was served upon the opposite parties who appeared through their counsels Sh.Pardeep Kumar and Sh.Vikram Kapil Advocates who had filed their joint memo of appearance but their counsels failed to appear again and also failed to file vakalatnama and written reply on behalf of opposite parties. As such opposite parties were ordered to be proceeded against exparte vide order dated 25.11.2016.
Sh.Dinesh Kumar Parts Manager of R.Auto/R.Honda i.e. opposite party No.2 appeared and had tendered into evidence Job Cards Ex.C1 and Ex.C2. Counsel for the complainant had also tendered into evidence affidavit of complainant Ex.CW1/A along with documents Ex.C3 to Ex.C7 and closed the evidence on behalf of complainant.
5. We have carefully examined all the documents/evidence produced on record and have duly considered and perused the arguments as put forth by the learned counsel for the present complainant litigants while (at the same time) taking the due judicial-notice of the opposite party vendors and manufacturers intentional ‘ex-parte’ participation, in spite of the ‘proven’ summon-service through the prescribed ‘Registered AD’ posts etc. Although, it has been a settled law that a titled party’s intentional absence/ex-parte participation gives rise to the judicial though discretionary presumption that the ex-parte/absentee(s) litigant(s) have no defense to prosecute; still, we have provided a judicious opportunity to the ex-parte absentees by way of a close examination and a fairly deduced ‘resume’ upon which to place/base the resultant award under the adjudicatory Act.
6. We find that the present dispute/complaint has arisen as a result of the alleged unsatisfactory repairs at the hands of the opposite party vendors 1 and 2 who have been fully responsible and liable to provide an efficient after sales service including satisfactory repairs to their customer/consumer vendees. However, we find that the titled opposite vendors have failed to provide the requisite repairs to the complainant’s motor-cycle that has been lying with OP2 at its Gurdaspur Work Shop since 22.04.2016.
7. We further find that the complainant has simply alleged ‘manufacturing defect’ in the Motor-Cycle but has not produced any evidence to prove his allegation and as such his sought after relief of ‘replacement and/or refund’ shall not be considered. Thus, the OP3 and OP4 manufacturers are absolved of their liability through the failure of the complainant to prove his allegation of manufacturing defect. The complainant has also not cared (rather not bothered) to inquire of the present repair-status of his motor-cycle and report before the forum accordingly. The OP1 and the OP2 vendors have surpassed the complainant in ignoring their responsibility and statutory liability towards the consumer-welfare by abstaining themselves to attend the present proceedings and also failing to report the status of the motorcycle in question. We deem it as ‘refusal’ to provide repairs to the ‘Motor Cycle’ Honda Make within the Warranty Period as purchased (Ex.C3 & C4) from the OP1 Vendor on 04.02.2016 vide Cash Memo # 260 for Rs.49,997/- for no good explained pretext etc. Somehow, the vendor Service Centre had first provided the requisite repairs to the defective Motorcycle but it again went out of order and the OP service provider was allegedly re-approached to provide service-repairs but the same were not satisfactorily provided and thus prompted the present complaint. Thus, we are of the considered opinion that the present complainant has not been able to statutorily establish any of the allegations as made out by him in the present complaint.
8. In the light of all above, we are of the considered opinion that the instant complaint can be best disposed of by directing the OP2 service provider to re-check the Motor Cycle in question exhaustively and keep it repaired and in right working order for free delivery to the complainant within a period of ‘7’ working days on receipt of the copy of the present orders and the complainant shall check and accept the same to his satisfaction. The parties shall however themselves bear their own costs, here.
9. 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)
FEB. 22, 2017 Member.
*YP*
