Delhi

North East

CC/99/2017

MR. VIJENDER SINGH - Complainant(s)

Versus

THE MANAGER, ALLFINE INDUSTRIES PVT. LTD. - Opp.Party(s)

12 Apr 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 99/17

 

In the matter of:

 

	Sh. Vijender Singh S/o Sh. Ram Charan R/o – H.No. B-86, Phase-I, Gali No. 6 B-Block, Shiv Vihar, Karawal Nagar Delhi-110094	Complainant
	Versus
	Allfine Industries Pvt. Ltd. Office A:- RZ C1-104, F/F Old Plot No. 34 & 13 Kh. No. 76/12, Mahavir Vihar Dwarka, Sec-1 New Delhi-110045	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

21.03.2017 12.04.2019 12.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. The brief fabric of facts, on which the case revolves, succinctly put are that the complainant had visited the showroom of OP at its Wazirabad address for purchasing an e-rickshaw and the OP convinced the complainant by showing false/ misleading advertisements catalogue / pamphlets / brochure to purchase Allfine E-Rickshaw and assured him benefits like double income, 130 km mileage, 2 years chassis warranty etc. to buy the said e-rickshaw bearing Model no. AF-7 chassis no. M67ERAF7M16K00007, Motor no. 000087 Controller  no. 000039, Charger no. 0000350 on 12.12.2016 for a total sale consideration amount of Rs. 1,31,334/-, out of which the complainant made part payment of Rs. 39,000/- in cash and  Rs. 39,000/- by way of cheque no. 064096 encashed by OP on 19.12.2016. For rest of the amount, the OP had taken three blank unsigned cheques bearing no. 064097, 064098 & 064099 drawn on SBI from the complainant. However, the complainant got the said cheque stopped for payment from his banker. The complainant has submitted that the said e-rickshaw started get problem due to improper running and poor mileage of only 30-40 kms as against promised / assured 130 kms in advertisement brochure and it also had a defective battery. Further the OP had not issued the RC, Number Plate, Permit, Insurance & Warranty papers to the complainant and whenever the complainant contacted OP about the defective vehicle for rectification of the same, the OP gave false assurance of getting it repaired shortly or replacing it with a new one. On 10.02.2017 when the complainant approached the OP for his grievance, the OP issued the retail invoice no.  AIPL/BHJ/16-17/006 of Rs. 1,31,334/- of the said e-rickshaw. Despite complainant’s several visits to OP office for replacement / repair of the defective e-rickshaw and for providing necessary documents of the e-rickshaw, OP deliberately ignored the complainant for which the complainant issued legal notice to the OP dated 20.02.2017 thorough his counsel which was served on the OP on 23.02.2017 but OP failed to take any action thereon. Lastly, alleging deficiency of service and failure and negligence on the part of OP, the complainant was constrained to file the present complaint praying for issuance of direction for refund of the part consideration paid of Rs. 78,000/- alongwith interest thereon @ 12% and compensatory relief of Rs. 2,13,500/- alongwith interest @ 12% for the aforementioned harassment caused to the complainant alongwith cost of litigation.
2. The complainant has attached copy of brochure /advertisements of Allfine E-rickshaw, copy of receipt no. 106 dated 12.12.2016 issued by OP acknowledging receipt of Rs. 39,000/- paid by complainant in cash, copy of invoice dated 10.02.2017 towards value of e-rickshaw, copy of legal notice dated 20.02.2017  issued by counsel of complainant to OP alongwith postal receipt and track report and handwritten note dated 25.03.2017 of dysfunctional battery issued by one M/s Electric Auto rickshaw for the battery serial no. HSQMC22102621770 fitted in complainant e-rickshaw.
3. Notice was issued to OP which entered appearance on 01.06.2017 and filed written statement in which OP, while admitting having received part payment of Rs. 78,000/- from complainant towards e-rickshaw by way of cash and cheque, took the preliminary objection that complainant had purchased the said e-rickshaw for commercial purpose and therefore not a consumer. OP urged that the three cheques issued by complainant were not for OP but in favour of Loan Agency as he was in requirement of loan to pay the balance sale consideration of e-rickshaw but the complainant failed to provide certain basic documents required for process for loan for which reason his loan application could not be process and loan could not be disbursed. The OP urged that complainant has filed the present complaint to forego his pending payment of Rs. 53,000/- and to blackmail OP into issuing Registration papers, Insurance, Warranty papers etc. of the E-rickshaw without making entire payment thereof. OP objected to any cause of action having arisen in favour of the complainant on the basis of allegation made by him for improper mileage and weak battery since the complainant had never raised any such issues or concerns before issuance of legal notice. OP took the defence that the battery and mileage of e-rickshaw is dependent on charging mechanism and usage pattern of the consumer and the battery fitted in e-rickshaw can function properly if it fully charged under stable electricity connection before use and requires monitoring and maintenance and all of the above instructions / directions were made known to the complainant at the time of purchase of the e-rickshaw which the complainant did not follow but instead filed the present complaint to evade payment of the balance amount and till such time he pays the same, the complainant has no right to come before this Forum to abuse the process of law. OP contended that though initially the complainant had given three cheques to OP to be handed over to loan agency for getting the balance amount of e-rickshaw financed, however, as soon as he got the possession of the e-rickshaw, the complainant did not process the loan request and failed to provide necessary document to the loan agency and instead filed this false and frivolous complaint against the OP. OP resisted the complaint further on grounds that the mileage of the said e-rickshaw is the same as advertised by OP in its brochures provided the battery of e-rickshaw is charged as per direction given it. OP denied having received any blank cheques from the complainant and submitted that the three cheques given by the complainant were in favour of loan agency but since the complainant failed to furnish the necessary documentations, the loan could not be disbursed and as a result, the OP could not receive its balance consideration amount of Rs. 53,000/- for which OP issued a legal notice to the complainant on 10.07.2017 for recovery of the balance sum of      Rs. 53,334/- alongwith interest @ 18% p.a. thereon but the complainant failed to pay the said sum. Lastly, OP while admitting  to not having provided the RC, Number plate, Insurance and warranty papers to the complainant reasoned the same for the complainant’s failure to submit the papers for loan process to pay the balance consideration and therefore OP was well within its right to withhold the said documents. Therefore submitting that complainant had never contacted OP regarding grievance with respect to e-rickshaw till he issued a legal notice as a vendetta for not paying the balance consideration amount causing lost to the OP, OP prayed for dismissal of the complaint with directions to complainant to pay the balance amount with interest to OP for the e-rickshaw in question.
4. OP has attached copy of instruction manual for battery usage and charging for its long life and copy of legal notice dated 10.07.2017 to complainant with postal receipt and AWB receipt of DTDC currier alongwith board resolution authorizing its Senior Manager (Operation) to represent OP in the present complaint.
5. Rejoinder to the written statement was filed by complainant in rebuttal to the defence taken by the OP and stated that the said     e-rickshaw was purchased by him for earning livelihood and therefore he is a consumer within the definition of the Act. Complainant denied e-rickshaw giving proper mileage or not suffering from battery problem on grounds that the e-rickshaw was defective one and the same was made known to the OP but OP did not care about it which compelled the complainant to stop further payment and submitted that the OP had sent a false and vague legal notice after receiving summons of this Forum in the present complaint. Complainant denied allegation of OP not having submitted requisite documents for loan processing or never having contacted OP regarding grievance with respect to the e-rickshaw till issuance of legal notice and urged that it was OP which had cheated the complainant despite promise better service and forced him to file present complaint and stop payment of balance consideration amount since the said e-rickshaw never gave proper mileage despite full charging of battery and OP never addressed problem of complainant despite repeated visits / requests.
6. In evidence by way of affidavit filed by the complainant, Complainant reaffirmed and reiterated his grievance in the complaint and prayed for relief sought.
7. Evidence by way of affidavit was filed by the OP reiterating his defence and exhibiting annexures A to F by way of copy of board resolution, copy of invoice, copy of receipt of payment, copy of three signed undated cheques numbers 064097 to 064099 issued by complainant in favour of Uphar Finvest Ltd. (Loan Agency) from his SBI account bearing no. 32352381453, copy of battery manual instructions, copy of mileage test report of e-rickshaw model AF7 done on December 2016 , copy of legal notice to complainant dated 10.07.2017 and copy of legal notice by complainant to OP dated 10.02.2017 with tract reports.
8. Written arguments were filed by both parties in reassertion / reiteration / reemphasis of their grievance / defence.
9. During the course of oral arguments, the complainant argued that he had taken his e-rickshaw to the workshop of the OP for removal of defects therein to which the OP in rebuttal argued that there is a standard practice of issuing job card for all vehicle inspections and repairs undertaken and not a single job card has been placed on record by the complainant to substantiate his allegations. As regards battery issue, OP argued that the validity / warranty for the same is for a period of 6 months but the complainant never contacted the OP regarding any battery issue since the date of purchase of the e-rickshaw i.e. December 2016 and the only correspondence / complaint made by complainant regarding the e-rickshaw was by way of legal notice dated 20.02.2017 issued by complainant’s counsel to OP.
10. We have heard the arguments addressed by the complainant and given a thoughtful consideration and carefully examined the entire material on record placed by both the parties before us. The key issue for consideration in the present case is whether the subject e-rickshaw in question suffered from any manufacturing defect or not in terms of poor mileage and malfunctioning of battery and deficiency of service, if any on the part of OP in failure to address the alleged problem which may entitle / disentitle complainant of relief if any as the case may be. 
11.  Defect is defined in clause 2(1)(f) of CPA and the onus to prove manufacturing defect in a vehicle is on the consumer alleging it and same should be proved by expert evidence, in absence of which no liability could be attributed to manufacturer to compensate the consumer. The Hon'ble National Commission in Swaraj Mazda Ltd. Vs P.K. Chakkrappore 2004 (I) CPC  421 (NC) was also of the view that expert opinion should be obtained from government organization, institution / agency  for going in to technical issue and submission of report that effect. The Hon'ble National Commission in Lovely Autos Vs. Harmesh Lal (2007) I CPJ 312 (NC) held that no manufacturing defect warranted replacement of vehicle or refund of its price on failure of complainant to establish defect in the engine as alleged. The Hon'ble National Commission in Chandeshwar  Kumar Vs Chairman TELCO Ltd. (2006) 3 CPR 402 (NC) dismissed the complaint where no expert opinion was placed on record as to whether vehicle had any manufacturing defect and no additional material or evidence brought on record to prove allegation of vehicle having any manufacturing defect. Similar view was taken by Hon’ble NCDRC in TATA Engineering and Locomotive Company Vs. Sunil Bhasin (2008) II CPJ 111 (NC) where neither the car  was sent to any workshop nor any independent expert opinion obtained about alleged defects. Further the Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt Ltd. I (2018) CPJ 425 (NC) observed that the complaint was sketchy and vague and no application was given by the petitioner / complainant to support his contention that the said vehicle had manufacturing defect and had also failed to place on record any expert opinion regarding the alleged manufacturing defect in his vehicle and had therefore dismissed the Revision Petition vide which the complainant had challenged the order of State Commission Jharkhand dismissing the complaint.  The Hon'ble National Commission in Sanjay Singh Vs Dabloo Bhagat II (2018) CPJ 533 (NC) observed in a case where manufacturing defect in a vehicle was alleged that the complainant having failed to place on record any technical expert report to support his allegation of defective tractor or any inspection report from a mechanic to whom he had allegedly shown the said tractor and who had given the report of its engine been old and defective, that in failure to do so the complainant has failed to prove to his case of allegation of defect in the said vehicle and upheld the order of State Commission Bihar disallowing relief granted to the complainant by District Forum. In the present case, the complainant has never during the pendency of proceedings since October 2014 moved any application seeking mechanical inspection of the subject vehicle by a technical expert to determine manufacturing defect if any said vehicle beyond reasonable doubt which is also a legal / procedural requirement mandated under Section 13 1 (c) of CPA. The Hon'ble National Commission in Hindustan Motor Ltd Vs K. Madhusoodanan Pillai and Anr III (2018) CPJ 639 (NC) observed in a case where no expert opinion was brought forth confirming any manufacturing defect alleged that even under warranty, only defective parts can be changed and not the whole vehicle and the vehicle having already run 39,000 kms when the complaint was filed cannot be said to be suffering from manufacturing defect. The Hon'ble National Commission in Md. Hassan Khalid Haidar Vs General Motor India Pvt Ltd and ORS IV (2018) CPJ 115 (NC) held in a case where the first problem in the car occurred after 9-10 months of its purchase when it had run over 25,000 kms that if the vehicle had manufacturing defect, it should have been manifested soon after purchase and since the petitioner had failed to provide any evidence to prove that the vehicle had manufacturing defect by way of either producing evidence of an expert or taking opportunity of submitting an application before District Forum for appointment of expert to examine vehicle for an expert opinion, the case is liable to be dismissed since the onus was on the complainant to prove manufacturing defect. The Hon'ble National Commission in Tractor Dealer Farm equipment Vs Ghanshaym Maurya and Ors I (2017) CPJ 671 (NC) observed in a case where manufacturing defects in vehicle was alleged and replacement / refund was sought that if the case of the complainant was of visit to the workshop as many as 21 times, there would have been job card opened on each visit to the workshop, however, no such job cards were filed by him before the District Forum not was any technical expert opinions sought for examination of the disputed vehicle to prove the defects therein and dismissed the complaint on such grounds.
12. In the present case too, there is not a single job card on record placed by the complainant to corroborate his contention / allegation of having taken the e-rickshaw in question to the workshop of OP.
13.  Having exhaustively dealt with the issue in hand in the light of legal discourse / settled proposition of law in the judgment aforecited, we have arrived at the following conclusion:

The complainant failed to proof any manufacturing defect in the vehicle in question as the complaint is vague, allegation therein unsubstantiated / uncorroborated and not supported by any report of a technical expert for which no application or permission was sought by the complainant under section 13 (1)(c) of CPA.The Hon'ble National Commission in P.C Sunil (Dr.) Vs. TATA Engineering & Locomotive Co. Ltd. III (2016) CPJ 236 (NC) held that only in case of manufacturing defect can the vehicle be replaced or its sale consideration be refunded. Similar view was taken in TATA Motor Vs Sharad IV (2016) CPJ 145 (NC) that no case is made out for replacement as no manufacturing defect is found in the vehicle. The Hon'ble National Commission in Baljeet Kaur Vs. Divine Motors III (2017) CPJ 599 (NC) held that where manufacturing defect is alleged, onus of proof has to be on complainant and in absence of expert opinion ,mere affidavit is no substitute for same and dismissed the Revision Petition. Therefore this issue is decided against the complainant in light of the settled law discussed above.

14. After having exhaustively discussed the legal proposition in the foregoing paras and after examining all the evidence placed on record, we are of the considered view that no refund of the part payment made by him to OP with respect to said e-rickshaw can be granted to the complainant due to lacunae in his own case in failure to establish any defect in the e-rickshaw in question by way of a report of a technical expert more so when this is not the entire sale consideration amount which the complainant himself had admitted to not having paid / withheld and therefore keeping in view the totality and balance / equity, the present complaint is devoid of merits and therefore we dismiss the same with no order as to costs.
15.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
16.   File be consigned to record room.
17.   Announced on  12.04.2019

(N.K. Sharma)      President

(Sonica Mehrotra)  Member