Date of Judgement Dt.28.03.2014
J U D G E M E N T
By Sri S.C.Nayak, P.
This is complainant’s case alleging deficiency of service on the part of the O.Ps.
The complainant’s case is that he has purchased one Hero Honda Passion Pro vehicle from the O.P.No.1 on 22.1.2010. After he used the vehicle for 2 to 3 months the colour of the tank started fading and it was noticed that tank was damaged. He reported this matter to the O.P.No.1 on 27.3.2010 and the O.P.No.1 assured to replace the tank. On 15.4.2010 he reported this matter to Proprietor of Akash Motors, Bargarh who is the dealer of Hero Honda in the presence of O.P.No.1. He said the complainant to come after 15 days. Again on 1.5.2010 when he approached the said dealer, he expressed his inability to replace the tank due to non-availability of stock. After this the complainant filed a written complaint to O.P.No.1 but he refused to receive the same and assured the complainant that the tank will be replaced by Akash Motors. After this the complainant has gone to both the dealers several times and was harassed. Hence he has prayed that he should be provided with a new vehicle. He has also claimed Rs.1.00 Lakhs as compensation.
-: 2 :-
The O.P.No.1 has filed written version. The O.P.No.2 though noticed remained absent.
In his written version the O.P.No.1 has admitted the sale of vehicle to the complainant. But the other allegations are denied by him. He has averred that the complainant has never approached him regarding the defect in the tank. He has also denied that the complainant approached owner of Akash Motors in his presence. He has however expressed his willingness to replace the tank if the defect is detected by his Service Engineer.
We have heard the complainant in person, learned counsel for O.P.No.1 and we have also inspected the vehicle in the presence of complainant and learned counsel for O.P.No.1. During our inspection of the vehicle we found a scratch mark in the right side of the tank, which appears to be an old one. As this is apparent to the nacked eye, report of expert is not necessary. From the inspection of the vehicle we ascertained that the tank was damaged as the scratch mark clearly indicates fading of colour of the tank.
Now it is to be seen whether the O.Ps. have committed deficiency of service or not. The sale of vehicle is not denied by the O.P.No.1. He has averred that the complainant has never approached him regarding replacement of the tank. Court is not an outside world and a court of law can not close its eyes to the stark realities of life. By not reporting the defect to the dealer, the complainant gets nothing, rather he becomes a looser. Further more in consumer cases strict proof of allegations is not required as required in criminal cases and relief can be granted on preponderance of probabilities. So we are inclined to believe that the complainant has approached the O.P.No.1 for replacement of the tank and the O.P.No.1 has not taken any steps regarding the same. So there has been deficiency of service by O.P.No.1. Since the O.P.No.2 was never apprised regarding the defect by O.P.No.1, we are not making him liable for deficiency of service.
Now it is to be seen to what relief the complainant is entitled. The complainant has claimed a new vehicle and compensation of Rs.1.00 Lakh. It is settled law that in case of defect of a part, the concerned part is to be replaced and not the entire vehicle as held by Hon’ble Supreme Court in the case of Maruti Udyog Ltd. Vrs. Sushhil Ku. Gabgotra (2006) 4 S.C.C. 644.
-: 3 :-
Regarding the claim of compensation of Rs.1.00 Lakh, we are of the considered opinion that it is on the higher side. In the facts and circumstances of this case we direct that the O.P.No.1 shall pay Rs.5000/- as compensation for mental agony harassment and allied factors and Rs.2000/- as cost of litigation to the complainant. We order accordingly.
It is hereby ordered as follows :-
1. The complainant shall produce the vehicle before the O.P.No.1 and O.P.No.1 shall replace the tank with a new one within three days of its production by the complainant.
2. The O.P.No.1 shall pay Rs.7000/- to the complainant towards compensation and cost of litigation.
All these should be done within one month from the date of receipt /production of this order.
Complaint allowed in part.
Dated the 28th day of March 2014
Typed to my dictation
I agree. and corrected by me.
Sri R.K.Sahu Sri S.C. Nayak
Male Member President
Dt.28.03.2014 Dt.28.03.2014
