Jammu and Kashmir

Jammu

CC/151/2018

AKSHAY KOUR - Complainant(s)

Versus

SUPERTECH HOUSE - Opp.Party(s)

ZA CHOUHAN

26 Apr 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No.                 288/DFJ         

 Date of  Institution      19-10-2016

 Date of Decision          18 -09-2018

 

Amarjeet Singh,

S/O Sh.Harbans Singh,

R/O Preet Nagar,Digiana,

Aside Lane Bral Sweet Shop,

Jammu.

                                                                                                                                                Complainant

      V/S

1.Bajaj Auto Ltd.Head Office,

  Akurdi Pune 411035,through its

  Managing Director.

2.Branch Head M/S Jammu Motors Pvt.Ltd.

   Bajaj Stop B.C.Road,Jammu.

                                                                                        Opposite parties

  CORAM

              Khalil Choudhary    (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                       Member

                  Mr.Ghulam Sarwar Chauhan                               Member.

 

    In the matter of: Complaint under section 10 of J&K Consumer Protection Act 1987.

                             

S.Jagmohan Singh,Advocate for complainant, present .

Mr.Rajiv Chopra Advocate for OPs,present.

                                                        

                                                              ORDER

 

Shorn of unnecessary details, facts relevant for the disposal of complaint on hand are that; complainant is said to have purchased a Discover motor cycle  from OP2,authorized dealer of OP1,on, 09-05-2013,for sale consideration of Rs.57650 and thereafter OP2 handedover the possession of said motorcycle to the complainant. The complainant got registered the motorcycle bearing registration No.JK02BB-9630\ (AnnexureA&B).According to complainant, the said motorcycle from the beginning of its purchase started showing defects, particularly in the engine, as well as, gear shifting pattern and in the gear level welding, complainant took the motorcycle to the established unit of OP2,from where, it was purchased and requested OP2 that since he had got necessary services as and when required according to owner manual from the workshop of OP2,but despite that the engine of the vehicle gets over heat up and also shows defects in the gear shifting pattern, as well as, in the gear level welding and did not function properly. Grievance of complainant is that being aggrieved by the low quality of motor cycle which was having inherent manufacturing defect right from the beginning of its purchase. Constrained by the act of OPs,complainant served a legal notice to OPs,but despite that the OPs did not adhere to the request of complainant and being aggrieved by the act so OPs complainant filed a complaint through its counsel for redressal of his grievance and the Hon’ble Court was pleased to issue directions to Ops to repair the motorcycle of complainant free of costs alongwith damages to the tune of Rs.4000/-as compensation (Certified copy of judgment is annexed as Annexure-C).That thereafter complainant approached OP2 and submitted certified copy of judgment,thereafter,OP2 firstly have made excuses and delayed the matter on one pretext or the other despite of the order of the Hon’ble Court and after pressing hard,OP2 directed complainant to bring the defective motorcycle before it and the complainant brought the motorcycle before OP2 and the OP2 despite of the orders of Hon‘ble Court have not repaired the motorcycle for one week and asked complainant that one week is required for proper repairing of the motorcycle and also handed over a cheque of Rs.4000/-as per directions of Hon’ble Court. Allegation of complainant is that he approached OP2 and the OP2 handed over the defective motorcycle to him and falsely assured that there will be no such defects in future. Believing upon the false assurance of OP2,complainant took the motorcycle from the workshop of OP2 but to the utter dismay the motorcycle within a two days of its service again started showing same defects which were inherent in the said motorcycle right from the beginning and this act of OPs constitutes deficiency in service, therefore prays for compensation of Rs.1.00 lact on account of loss suffered due to negligence and deficiency in service of OPs and also on account of mental agony,torture,harassment and inconvenience litigation charges  to the tune of Rs.10,000/-.

            On the other hand,Ops have filed written version and while denying the allegations of complainant in toto went onto submit that paras 3 to 7 of the complaint are only repetition of earlier complaint filed by the complainant ,which has been disposed of by the Hon’ble Forum vide award dated 31-10-2015.The Ops further submitted that after the OPs had repaired the motor cycle of the complainant as per directions of District Forum, the vehicle was handed over to him after proper checking and testing by the trained staff.Inspite of repair of the vehicle of complainant, complainant refused to sign the satisfaction voucher. It is incorrect that complainant ever came to the workshop of OPs after he took his motorcycle for the alleged defect, which was satisfactorily repaired by the OPs.

       Complainant adduced evidence by way of duly sworn evidence affidavit and affidavits of Paramdeep Singh,Prem Chand and Banarsi Lal,respectively.Complainant has placed on record copy of retail invoice, copy of certificate of registration, copy of order passed by Hon’ble Forum, and copies of job cards.

 On the other hand,Ops adduced evidence by way of duly sworn evidence affidavit of Kuldeep Kaul,Works Manager M/S Jammu Motors.

 We have perused case file and heard L/Cs appearing for the parties at length.

                            Now the question for consideration in this case is whether order passed by this Forum on,31-10-2015 can be reviewed/modified or not.

                       In our opinion the point involved in the instant case is squarely covered by the decision of Hon’ble Supreme Court delivered in the  case titled Rajeev Hitendre Pathak & Ors.V/S Achyut Kashi Nath Karekar & Anr. Reported IV (2011) CPJ 35 S.C.wherein the Hon’ble  Supreme Court in paras 35 & 36 has held as under:

                35.We have carefully scrutinized the provisions of Consumer Protection Act,1986.We have also carefully analyzed the submissions and the cases cited by the L/C for OPs.

           36 On careful analysis of the provisions of the Act it is abundantly clear that the Tribunals are creatures of the statute and derive their power from the expressed provisions of the statute. The District Forums and the State Commissions have not been given any power to set aside exparte orders and power of review and the powers which have not been expressly given by the statute cannot be exercised.

                         

                         The view taken by Hon’ble Supreme Court in aforementioned judgment is again reiterated in judgment titled as Lucknow Development Authority Versus Shyam Kapoor (2013)CJ 294 (S.C.) wherein Hon’ble Supreme Court had categorically laid down that Consumer Fora has no power to recall or modify its own order. Para 13 of judgment is reproduced herein below:

     13. Despite our aforesaid determination of the present controversy, we consider it just and appropriate to set aside the costs imposed upon the appellant herein, by the National Commission, in view of the conclusion drawn by us, that the choice of the appellant in approaching the National Commission against the order passed by the State Commission (dated 11.5.2007) could not be described as frivolous. As already noticed hereinabove, the said order could have only been assailed only before the National Commission, as the State Commission had no jurisdiction to recall or modify its own order (dated 11.5.2007).Accordingly, the costs imposed on the appellant in the impugned order is hereby set aside. Besides the aforesaid, the order of the National Commission calls for no interference.

              Therefore, in view of settled preposition of law, this Forum lacks jurisdiction to recall/review/modify order dated, 31-10-2015, accordingly, the complaint is found without merit,therefore,same is liable to be dismissed.

                      In afore quoted back drop, complaint fails, accordingly, same is dismissed.However,in the facts and circumstances of the matter parties are left to bear their own costs. File after its due compilation be consigned to records .

 

Order per President                                                 (Khalil Choudhary)                               

 

                                                                               (Distt.& Sessions Judge)

                                                                                   President

Announced                                                           District Consumer Forum

18-09-2018                                                              

                                                                                       Jammu.

Agreed by                                                                

                                                                              

Ms.Vijay Angral          

  Member                                                                                                                                                               

 

Mr.Ghulam Sarwar Chauhan

Member