Delhi

StateCommission

A/11/222

HIMGIRI AUTOMOBILE PVT. LTD. - Complainant(s)

Versus

RISHIB JAIN - Opp.Party(s)

03 Jul 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Arguments :03.07.2017

Date of Decision :10.07.2017

First Appeal  No.222/2011

 

IN THE MATTER OF:

 

1.M/s. Himgiri Automobiles Pvt. Ltd.

A-74, Main Road, Kanti Nagar,

(Krishna Nagar),

Through its authorised signatory

Shri R.K. Tomar                               

 

2. M/s. Hero Honda Motors Ltd.,

34, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi-110057.

Through its Deputy General Manager

Shri P.M. Agarwal                                                                                        …..Appellants                                              

Versus

 

Shri Rishab Jain,

S/o. Shri Prem Kumar Jain,

R/o. 1/9372, West Rohtash Nagar,

Shahdara, Delhi-110032.                                                                           …. Respondent

 

CORAM

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                                                               Yes/No

2.      To be referred to the reporter or not?                                                                                                        Yes/No

Present: Shri   G.L.N. Moorthy, counsel for the appellant.

 

PER  : HON’BLE SHRI ANIL SRIVASTAVA, MEMBER

Aggrieved by the decision dated 04.04.11 passed by Consumer Dispute Redressal Forum (East), Delhi in the matter of Shri Rishab Jain V/s. Himgiri Automobiles Pvt. Ltd and Hero Honda Motors Ltd., directing the opposite parties to pay jointly and severely Rs.96,285/- to the complainant  as the amount of vehicle and Rs.70,000/- as compensation for mental Agony and suffering  inclusive all the litigation charges, the M/s. Himgiri  Automobiles Pvt. Ltd. and M/s. Hero Honda Ltd., the opposite party before the district forum, have preferred an appeal against Shri Rishab Jain, complainant before the district for a, assailing the said orders with the following prayer.

1. Call for the record of complaint case no.404/2010 of the Learned District Consumer Dispute Redressal Forum (East), Convenient Shopping Centre, Saini Enclave, Delhi-110092.
2. Allow the appeal of the appellants by setting aside and quashing the final order dated 04.04.11 passed by the Learned Consumer Dispute Redressal Forum (East),Convenient Shopping Centre, Saini Enclave, Delhi-110092 in complaint no.404/2010;
3. Award costs of the present appeal to the appellants; and
4. Pass such other or further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances of the case.

According to the appellant the orders passed by the learned forum is bad in law and perverse on facts.

The facts of the case necessary for the disposal of the appeal are as under.

The appellant no.2, Hero Honda company is engaged in the manufacture of two wheelers and appellant no.1 namely Himgiri Automobiles Pvt. Ltd is a dealer duly authorized by the appellant no.2. The respondent had  purchased on 03.02.10 a new Hero Honda karizma ZMR motorcycle bearing chassis no.MBLMMC38ECAGA00111, which  vehicle was duly covered by a limited manufactures warranty for a period of three years or till it covers on 40,000 kms whichever is earlier. However, since the complainant noted problem of heating in the petrol tank of the vehicle for the first time to 31.03.2010 after usage of the vehicle for a little over 30 days and having covered of about 1663, matter was reported to the appellants but after examining the vehicle the respondents observed that there existed no problem of tank heating as reported and accordingly the custody of the motor cycle was handed over to the complainant/ respondent. Again the problem of the same kind has noticed on 13.04.2010. The vehicle was completely checked where after that was returned to the complainant on 15.04.2010. But, the defect as pointed out by the complainant could not be rectified fully. The continuous heating problem of the vehicle was also reported to the Service Manager of the appellant no.2 and even the Manager could not detect the fault in the machine despite he having taken  taking the motor cycle for a test drive, much to the disappointment of the complainant.

Since according to the complainant defect continued to exists he finally left the vehicle for thorough checkup. Nothing was done by the appellants herein to the satisfaction of the complainant. Being not satisfied with the heating problem a complaint  was filed before the District Forum seeking refund of the price of the motor cycle as also the compensation for mental and physical harassment. The District Fora after perusing the record and affidavit filed by the parties passed an order allowing the complaint and  directing to refund the price of the motor cycle i.e. Rs.96,285/-. Besides Rs.70,000/- was also awarded as compensation for the mental agony and harassment caused  to the complainant.

     The appellants being aggrieved by the orders so passed have preferred this appeal under section 15 of the Consumer Protection Act, 1986 on the ground that the impugned order is contrary to law and facts on records. The impugned order has resulted in violation of principles of natural justice and has resulted in the miscourage of justice inasmuch as the issue involved in the case according to them is severely covered by several judgment, applying to the facts of the present case.

     Notice was ordered and in response thereto reply has also been filed. The respondent has taken objection to the appeal  both on technical ground  as also on merit. It has been urged by the respondent that the appeal has been filed by Shri R.K. Tomar  and Shri Praveen Mohan Aggarwal who stated to be not authorized signatory.

Secondly the respondents have stated that there is a delay in preferring the appeal but no prayer has been made  for condonation of delay and as such the appeal is liable to be dismissed on this ground alone. Delay noticed  of 26 days.

On merits the respondents have stated that the mechanical defects as reported by him have not been properly attended to. Non-rectification of the defects amount to deficiency in service. Having regard  to this submitting that the order passed by the learned District For a suffers from no infirmity, he has prayed for dismissal of the appeal.

The matter was heard for final hearing before this Commission on 03.07.17 when Mr. G.L.N. Moorthy appeared for the appellant. None appeared for the respondent.

We have heard the arguments of the Ld. Counsel for the appellant and perused the record.

The Ld. Counsel for the appellant has again argued that the allegation regarding mechanical defects as pointed out by the respondent is not supported by any evidence. The onus of proving allegations of the kind lies on the complainant. In the absence of any cogent and tangible evidence the complaint before the District Fora should have been dismissed. On the contrary he has been subject to refunding of the money as also compensation. The Ld. Counsel for the  appellant has also taken us to the law settled on the subject  by the Hon’ble Supreme Court or Hon’ble National Commission in support of his contention that the appellants here  are not liable for the defects pointed out by the complainant more so when no evidence has been filed.

It is the case of the complainant that heating problem in the motor cycle sold to him continued which defect could not be rectified by the opposite parties; hence sought for the refund of the price of the vehicle. In addition to this compensation was prayed for the mental agony The complainant has not furnished the evidence nor any technical report in support of his claim.

The opposite parties have denied the allegations made in the complaint and specifically maintained that there was no heating problem in the motor cycle which fact was repeatedly informed to the complainant. Even the expert personnel of OP no.2 had checked the motor cycle and found no heating problem in  the motor cycle, warranting replacement of the vehicle or refund of the price of the vehicle.

The complainant has filed his evidence reiterating the contents of the complaint, praying for enhancing compensation for mental agony, pain, without indicating the basis therefore. OP no.1 has filed their evidence by way of affidavit. In the affidavits so filed no manufacturing detected. Consequently no deficiency in service existed. It has also been stated that the complainant had driven the vehicle for 3283 KMs in span of nearly three and half months. This would clearly lead to an in escapable conclusion that there existed no manufacturing defect in the motor cycle much less the alleged heating problem.  Besides no expert evidence were adduced by the complainant in support of the alleged heating problem. It is  pertinent to say that in the evidence filed there was reiteration of the contents of the complaint.

Reliance is placed on the following case law:-

1. S. Kumar Vs. New India Assurance Co. Ltd. (Union Territory Commission, Chandigarh) reported as 2004 (IV) CPJ 118 (Paras 12 &13), wherein it was held as under.

“… The fact, however, remains that the evidence to substantiate and corporate the pleadings contained in the complaint was relied on in the shape of affidavit which is received in summary jurisdiction of the District Forum and the complainant is required to prove as a fact the pleadings, which he has taken in the complaint case. If the pleadings in the complaint case are to be treated as piece of evidence, then there is no requirement of leading evidence in support of the averments made in the complaint, the complainant has merely deposed that the contents in the complaint be read as evidence by way of affidavit.

 

In the case of Maruti Udyog Limtied Vs. P. Rathnadurai (State Commission, Chennai) reported as 2004 (II) CPJ 563 (paras 7 & 8) where inter alia, it was held that the manufacturer is not liable to replace vehicle or refund the price merely because some defects identified which can  be rectified or replaced and that in the absence of expert report as to the manufacturing defects the allegation is not proved and complaint merits dismissal.

The Ld. Counsel for the appellant have also argued that there is no question of replacement or refund in the absence of proof of manufacturing defects the onus of which lies on the complainant and for this he has relied on the following judgements.

Tata Engineering & Locomotive Co. Ltd. Vs. M. Moosa reported as (1994) 2 CTJ 1046 = 1994 (III) CPR 395 wherein the Hon’ble National Commission has held that if the defects occurring in any goods purchased, Section 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed, even if there are numerous defects which can be rectified. It will be hard on the manufacturer to replace the vehicle or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced.

Villinur Associates Vs. Dhanaraj Denis A (national Commission) reported as 2003 (III) CPJ 78 (NC) (Para 3) wherein it was held that since all the defects which were minor in nature had been rectified and allegation of the complainant about manufacturing defect could not be proved.

Classic Automobiles Vs. Nand Mishra & Anr., (National Commission) reported as 2010 (I) CPJ 235 (NC) (Paras 15, 16 & 19) wherein it was held that onus to prove manufacturing defect is on the complainant by producing cogent evidence and also expert evidence as provided under Section 13(1) ( c) of the Consumer Protection Act and in the absence of the same set aside the orders passé by the lower for a in the above case.

For all these reasons and in view of the law settled by the Hon’ble Apex Court  we are of the considered view that the judgement of the District Fora can not sustain and accordingly we set aside the order with no order as to cost.

Copy of this order be sent to both the parties free of cost as contemplated under the Consumer Protection Rules 1987 read with Consumer Protection Regulations 2005.

A copy of this order may be sent to the District Fora for their information and record.

          File be consigned to Record Room.

 

 

(ANIL SRIVASTAVA)                                                  (O.P.GUPTA)

MEMBER                                                                     MEMBER (JUDICIAL)

 

 

 

 

 

 

 

 

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