This appeal is directed against the judgment and final order passed by Ld. DCDRF, Siliguri on 10/11/2017 in reference to consumer case no. 84/S/2014. The factum matrix of the case is that the respondent/complainant Bishnu Roy in profession as businessman bought a motor bike styled as Hero Super Splendour from OP no. 2, Darjeeling Auto Mobile Private Limited on 8th October, 2013. After some days of such purchasing the motor bike, it was found that the motor bike had multiple defects which was nothing but having manufacturing defects. The matter was agitated before the seller of the bike that is Op no. 2 but Op no. 2 did not bother towards the problems which was facing by the respondent/complainant for such defective motor bike. The defects was that the Shock Absorbers not operating properly, Faulty positioning of the Head lamp, oil overflow from the Engine, resulting in frequent shut down, very poor fuel efficiency which causes serious hamper to the journey of the complainant, who has purchased said bike for smooth running of his business and travelling in different places for the purpose of such business. He approached the seller for replacement of the said motor bike or to remove the defects. His approach was not entertained for which he raised the consumer complainant before the Ld. DCDRF, Siliguri. Ld. DCDRF, has admitted his compliant and asked the OP no. 1 and 2 that is the manufacture of the motor bike, Hero motor Corporation and the seller of the motor bike m/s Darjeeling Auto Private Limited to file the WV to contest the case. The OP no. 1 and 2 has jointly contested the case by filing written version and contended that the consumer complaint was baseless, false and vexatious one. The Positive case of the Op in that case is that after purchase of the said motor bike, he come to Opposite Parties and attended the service centres for servicing of the motor cycle time to time and issued satisfactory notes dated 1/2/2014 where he acknowledged that he had no complaint against the workshop and he was always satisfied with the services from the service centre designated by the Opposite Parties. So the Opposite parties in their written version has challenged and disputed the contents of the consumer complainant. Ld. Forum after recording the evidences of this case and after hearing the arguments, has passed impugned judgment and asked the OP no. 1 and 2 to immediate replacement of the motor bike by a new one or return back a price amount equal to the cost of the motor bike or return back the amount that is the cost of the motor bike to the complainant and pay compensation rupees 1 lakh and litigation cost of rupees 10,000. Being aggrieved with the said order, this appeal follows on the ground that the judgment and final order of the Ld. Forum was full of error and not appropriate to the facts and circumstances of the case. The appeal was admitted on its own merit and the memo of appeal was sent to the respondents asking them to contest the appeal. Accordingly the respondent/complainant has contested the appeal by authorisation of Ld. Advocate by executing a VAKALATNAMA. In this case the appeal was preferred by OP no. 1 that is Hero Motor Corporation but the OP no. 2 has not preferred any appeal. The appeal was heard, in presence of Ld. Advocate of both sides.
Decision with reasons,
Admittedly the respondent/complainant have purchased such vehicle, Hero Motor Bike on 10/1/2017 by making full payment of the price money and he took delivery of the said motor bike from the showroom of OP no. 2 on the very date of purchase. At the time of hearing argument, Ld. Advocate of the appellant submit that the respondent/complainant in many occasions as per agreement has come with his motor bike to the service centre for free service of the motor bike and he rode a huge distance since his purchase of the bike and automatically motor bike lost its face value due to over riding and at last he wants to have a new motor bike by replacing the old one and on that pretext, he has raised the problem of manufacturing defect which is nothing but a manufactured story.
He further mentions that manufacturing defect is a wider term while there is no specification in the averment of the pleading of the complainant as to what are the real defect he was facing at the time of riding the motor bike. He submits that he come to the customer service centre on repeated occasions. Each Occasion in the service centre the repairing of the motor bike was provided freely during the warranty period and before the service centre. He never claimed that the said motor bike was suffering in mechanical defects or manufacturing defects.
He further submits that in service card, he has certified the satisfactory note and have no serious complain against the workshop. Ld. Advocate of the respondent/complainant counter this argument by mentioning that the respondent/complainant is not an educated one. He simply can put his signature but he has not in a position to read the English terms and without knowing contents of the satisfactory note certificate, he put his signatures without awaring contents of it and taking this opportunity of ignorance of the complainant, the appellant company has claimed that no mechanical defect was there at the time of delivery of possession of the motor bike while the complainant has purchased the same,. Ld. Advocate of the respondent in his argument further submitted that in this case, the Ld. Forum has directed both OP no. 1 and 2 to pay the compensation to the respondent no. 1. Respondent no. 2 that is seller of the motor bike did not challenge the said judgment by preferring any appeal which shows that OP no. 2 was not dissatisfied with the impugned final order dated 10/1/2017. The Ld. Advocate of the appellant at the time of his term further argued that Ld. Forum had the occasion to have teste report of the motor bike from any motor vehicle expert to ascertain what was the manufacturing defect. But that process has not been exhausted by the Ld. Forum which is very much necessary to hold whether a defective motor bike was sold out or not on the part of the OP no. 2. On the other hand, if we go through the documents submitted by the respondent and op, it is brought to our knowledge that while the respondent visited workshop of Op no.2 only some superficial works was done without any try to find out the root of the problem by applying appropriate mechanism. After going through the signature of the respondent in the satisfactory certificate, it is found that he is not properly educated one. Only he can manage to put his signature in English otherwise got no sufficient knowledge to aware the actual contents of the satisfactory note which he has certified. He has purchased the vehicle with a hope that the purpose of riding the motor bike would smooth and satisfactory but he could not have attained the satisfactory level of service by driving the said motor bike and he felt uncomfortable and uneasy at the time of travelling the same and for that reason, he has approached the authorised seller to cure the said defect or replace the old one with providing a new motor bike. Ld. Forum at the time of adjudication, has opined that the appellant cannot use the satisfactory note certificate as a sword to avoid the responsibility towards the customer. So in our view errors or misappreciation of evidences on the part of the Ld. Forum are not revealed and we do not want to interfere with the order of Ld. Forum as because the LD. Forum has sufficiently mitigated the problems which was facing by the bona fide consumer and his grievances has been properly addressed by the Ld. Forum. The approach of the Ld. Forum should not be discarded at this stage of appeal otherwise there will no place for any bona fide consumer to get protection from the clatches of the big corporate houses and if the Commission discarded findings of the Ld. Forum then perverse of justice will prevailed.
However, the order of Ld. Forum should be interfered to that point that after replacement of a new motor bike further compensation of rupees 1 lakh awarded in favour of the complainant /respondent is not permissible one as because no pecuniary loss could be placed on the part of the complainant before the ld. Forum for such defective motor bike which was provided to him by the OP no. 2. Rather OP no. 2 who has contested the consumer case did not contest the appeal. In memo of appeal, also the OP no. 2 was there as proforma respondent. This commission has sent notice upon the said proforma respondent asking him to contest the case but proforma respondent that is OP no. 2 did not appear before the Commission to disagree with the claim of the respondent. So except the quantum of compensation awarded in favour of the complainant/respondent, the other order of the Ld. Forum is appreciable and should be confirmed.
Thus this appeal is disposed of in the following way.
Hence it is,
Ordered,
That the appeal be and the same is partly allowed on contest against the respondent no. 1 and ex-parte against respondent no 2. The order of Ld. Forum to replace the motor bike of the complainant by a new one or get back the amount equal to the cost of the motor bike on the date of the purchase from the OP are hereby confirmed. The process of such replacement or refund the cost of the motor bike be taken place within 45 days from the date of this order. The order for compensation of rupees one lakh on the part of OP no. 1 and 2 in favour of the complainant is hereby rescinded. The litigation cost rupees 10,000 awarded by the Ld. Forum in favour of the complainant is hereby modified to the extent of rupees 20,000 in stead of 10,000 as the respondent has incurred some litigation cost again before appellate Forum. The litigation cost shall be paid within 30 days from the date of receiving the copy of order of appeal, failing which 9 per cent per annum interest would be carried on.
If the appellant and respondent no. 2 want to refund the price money of the motor bike then they will be permitted to withdraw such motor bike from the complainant at the time of making refund of the price.
A copy of this order be supplied to parties free of cost and also to be sent to Ld. DCDRF, Siliguri by e-mail.
