Final Order / Judgement

Date of Filing             :    23 August, 2021.

Date of Judgement    :    26 December, 2023.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Krishnendu Lall Seal, hereinafter called the Complainant, filed a complaint under Section 35 of the Consumer Protection Act, 2019  (the Act), against (1) the Chairman, M/s. Classic Legends Pvt. Ltd., (2) M/s. Dynamic Autocraft and (3) M/s. Stellar Motors Pvt. Ltd., hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-replacement of new two wheeler motorcycle purchased by him nor even properly rectified the defects thereon by the OPs.     

            The material facts arising out of the complaint petition and the annexed documents attached with it are that the complainant allured by an advertisement purchased a motorcycle named JAWA 42, Model–BS IV, having Engine No. NAE-KK016264 on 03/11/2019 from the OP-2 for a total consideration of ₹1,91,333/-.  According to the statement of the complaint petition the complainant and his son, Sri Koustav Lall Seal, faced different problems while using the motorcycle.  Whenever they sent it to the authorised service centres, the OP Nos. 2 & 3 stated herein above, they temporarily cured the defects but after some days the same or different problems were faced. After facing frequents problems in using the motorcycle, the complainant sent letters to the OP Nos. 1 & 2 on 23/02/2021 requesting to remove all the defects in the motorcycle within 7 days, but his request brought no response from the OP Nos.–1 &2. He then sent a legal notice through his advocate to the Chairman of the manufacturing company, i. e. M/s. Classic Legend Pvt. Ltd. on 23/03/2021, with a copy to the OP-2, requesting to replace the defective motorcycle, failing which he claimed a sum of ₹2,000/- per day as penal charge along with a compensation of ₹1,00,000/- for the hardship faced by him.  This time also the complainant got no remedy and ultimately he filed this instant complaint before this Commission praying to direct the OPs: (i) to replace the defective motorcycle by a new one of the same model, (ii) to pay ₹10,00,000/- as penal damage for harassing the complainant along with an award of ₹2,00,000/- as litigation cost, (iii) to pay ₹2,00,000/- in the benevolent fund by OP Nos. 1 & 2, (iv) to pay ₹5,000/- per day from the date of purchase till replacing the motorbike and such other reliefs.

            Complainant filed copies of (i) Tax Invoice, Delivery Receipt cum Challan issued by OP-2 on 03/11/2019, (ii) letters issued by the complainant to the OP-1 & OP-2 on 23/02/2021 and (iii) the legal notice issued by his advocate to the OP-1 on 23/03/2021 as annexure to the complaint petition. Complainant filed some copies of Bills, Invoices, Job sheets and other documents as stated in the Firisty while filing his Evidence on Affidavit.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written version. Despite receiving notice none of the OPs appeared nor did they file any written version for which the case proceeded ex parte. Complainant then filed his Evidence on Affidavit along with some documents as stated in the Firisty. Then argument was heard in full and the complainant filed his Brief Notes on Argument.  We have now come to the position to deliver the Final Order in this case.  We have to decide whether the OPs are deficient in rendering proper service to the complainant for which the complainant is entitled to get relief as prayed for.

DECISION WITH REASONS

            The factual matrix arises in this case, as emerged from the complaint petition and the annexed documents, is that the complainant purchased a new motorcycle namely JAWA 42, Model – BS IV, on 03/11/2019 having Engine No. NAE-KK016264, and Chasis No. MZDKW1C16K1K16488 from the OP-2, M/s. Dynamic Autocraft. According to the complaint, just after a week of purchase complainant found some ‘defects’ in it for which he had to visit the authorised service centre of the manufacturing company, the OP Nos. 2 as stated herein above. Thereafter, whenever he faced difficulties in using this motorcycle, he was compelled to visit frequently to the service centres, the OP- 2 & 3. The service centres temporarily repaired the defects and again the complainant faced difficulties in using the motorcycle.  He had to pay some money each time for such repairs.  When the complainant found that the service centres could not cure the defects in the motorcycle permanently he sent a letter to the Chairman of the manufacturing company, the OP-1in this case, and also to the OP-2 on 23/02/2021 requesting them to cure all the defects within seven days.  But his request has not been fulfilled by both of them for which the complainant sent a legal notice on 23/03/2021 to the OP-1 through his advocate requesting to either repair the motorcycle properly and without any further defects or replace it with a new one of the same model.  This notice also brought no result for which this instant complaint has arisen.

            When we go through the annexed documents we find that the complainant failed to furnish any document when the first service was done.  In the annexed documents it is stated that the second service has been done on 02/11/2020 and the third service on 07/02/2021.  But from the Tax Invoice dated 02/11/2020 it is found that ‘3^rd Free Service’ has been done on that date by the OP-3 which the complainant has stated as the second service.  From this Invoice we find that it had been raised for Engine Oil, Oil Filter etc. amounting to ₹1,969/-.  From the Tax Invoice dated 07/02/2021 issued by the OP-2 it is found that another Free Service has been done and it is raised for MOTUL CHAIL CLEAN-C1 of ₹269/-.  From this Invoice it is revealed that the motorbike had run for 3027 KM from the date of purchase. Another service has been done by the OP-2 on 13/02/2021.  A service has been done on 02/07/2021 and a Tax Invoice has been raised by another service Centre, M/s. AUTO TECH Co., an authorised service centre of the OP-1, from which it is found that the Motorbike had run 3788 KM up to 03/07/2021 and this Invoice is for ₹1,641/- for Fuel Filter, Headlamp Grill, service charges, etc.  A money Receipt has been issued by this service centre on the same dated, i.e. on 03/07/2021, for ₹1,050/- on account of RSA, which the complainant stated as Road Side Assistance. A Tax Invoice has been issued by M/s. AUTO TECH Co. on 01/09/2021 for Paid Service and for supplying a parts for ₹1,965/-.  Up to this date the motorbike ran 4781 KM.   This service centre issued Tax Invoices on several dates and the details of which is given below:

                This table indicates that the motorcycle, bearing registration no. WB 12 BA 6386, which the complainant has not stated in his complaint, evidence and BNA, has run 9000 KM up to 02/06/2022 from the date of purchase.  Taking into consideration of the pandemic COVID-19 situation, we are of the view that the motorcycle in question has run sufficiently and the complainant failed to adduce any evidence that he has faced any specific major difficulty while using it.  Moreover the complainant has not taken any step to adduce any report of a technical expert in support of his claim, except citing in the pray portion of his complaint only with the word ‘Commissioner’.  The instant complaint has been filed on 23/08/2021 and the complainant has used the motorcycle till 02/06/2022.  All these Invoices mentioned the name of the complainant but not mentioned the registration number of the vehicle for which these parts were sold.

            The complainant stated in Para-8 of his complaint that: “…. your petitioner purchased the motorcycle on 03/11/2019 and finally your petitioner started to ply the motorcycle on road on 03/11/2019 and unfortunately, your petitioner realised that there were so many defects in the motorcycle and as such your petitioner had been facing great difficulties to continue your petitioner’s journey and prima facie detected certain faults in the motorcycle just after one week of purchase.”  In this statement and thereafter complainant has never stated what kind of ‘defects’ or ‘faults’ he faced during using it. He has not adduced any report of an independent expert on the condition of the motorcycle. Without specifying the defects or faults and without bringing in record any report of an independent expert we cannot ascertain what kind of defects the motorcycle has or whether there is any inherent manufacturing defect or defects for which the claim of the complainant could be justified. The Hon’ble Supreme Court in C.N. Anantharam Vs. Fiat India Ltd. & Ors., [(2011) 1 SCC 460], decided on 24.11.2010, directed that if independent expert was of the opinion that there were inherent manufacturing defects in the vehicle, the petitioner would be entitled to refund of the price of the vehicle  along with lifetime tax and EMI with interest and cost as had been directed by the State Commission. In the facts and circumstances of this case, the above-referred judgement, in our opinion, is of no help to the complainant since no particular manufacturing defect has been brought on record in this complaint. Moreover, no expert evidence was produced before this Commission at any point of time during pendency of the complaint.

              The above stated discussion compelled us to say that the complainant has failed to establish his claim that the motorcycle he purchased on 03/11/2019 has such defects for which his claim for replacement would be justified. He has not prayed for replacement of defective parts to cure the motorcycle permanently. Moreover, when we go through the annexed documents we see that there have some replacements of parts only done by the service centres for which he had to pay and such payments cannot compel us to say that the motorcycle has some inherent defects for which it should be replaced by a new one to justify his claim.  As the OPs did not contest the case, so we have no contrary material to counter or rebut our decision. In conclusion we consider this complaint petition is not maintainable and is liable to be dismissed for want of merit and without any cost.

            Hence, it is

ORDERED

            that the Complaint Case No. CC/172/2021  be and the same is dismissed ex parte against all the Opposite Parties and without any cost.

            Let a copy of this order be issued to both the parties free of cost.

Dictated and corrected by me

            Member.