Ld. Advocate(s)

                                    For Complainant: Safikul Alam

                                    For OP/OPs :Debraj Das

            Date of filing of the case                      :25.11.2021

            Date of Disposal  of the case              :06.05.2024

Final Order / Judgment dtd.06.05.2024

The concise fact of the case of the complainant is that the complainant Aniruddha Dutta purchased  a new Motor Vehicle  Pulsar  135LS (BS-IV) (JD07) from the OP No.1 Manager S.S Auto Trader L.P (12854) on 12.09.2017 for Rs.61,632/-. Since purchase  the motor cycle became defective  which is a manufacturing  defect. The said  motor cycle   had  starting  problem   and  its  light was  opened.  The battery  also defective . The complainant  informed the problem to the OP NO.1 but they did not repair  it. The OP NO.1 informed  that the production  of that motor cycle  was closed.  That problem  occurred within one  year from its  purchase . The  oil service  was also less for 30-35 Kilometre per litre. The complainant  purchased  new chain  from the OP NO.1.  On 14.04.2018 when the complainant  went to the  OP NO.1 office for taking  blue  book then the address of the complainant was  written  wrong in the blue book. After a few days  the OP NO.1 returned  the blue book  without  any initial  and stamp.  The complainant  then went to the  RTA who informed  that it was not their job. It was written  by OP No.1. But the OP No.1 failed to rectify  the problem. On 24.09.2020 the OP No.1 also failed  to repair  the problem.  The complainant  thereafter lodged a complaint  to the customer care of the OP NO.1 on 11.01.2021. But they could  not repair  the problem. The OP NO.1 gave one job sheet on 23.01.2021 for signature.  The complainant  returned the  job sheet  after signature.  They returned  the job sheet. Then the OP NO.1 informed  that the piston  was not functioning.  The said motor cycle  is lying with the  complainant since 23.01.2021. The said motor cycle  could not give  mileage of 60-65 kilometre per litre. But complainant , therefore,  suffered  heavy  loss for the  act of the OP NO.1. So, the present case is filed. The cause of action for the present case arose on 09.02.2021. The complainant  applied  to the CAB but the OP NO.1 did not admit the claim. Complainant , therefore,  filed this case  for passing  an award for direction  to OP NO.1 to return  the sale price  of the motor cycle , Rs.2,00,000/- to the petitioner  for harassment and Rs.2,00,000/- for mental pain and agony plus  cost of the case.

The OP No.1 contested the case  and the case  is heard ex-parte  against OP NO.1. The OP NO.1 challenged the case as not maintainable  on the ground that it is barred by limitation.  The positive defence case of  OP NO.1 is that the OP NO.1 sold  the said motor cycle  to the complainant  on 12.09.2017 after payment of consideration  money . There is no  document to show that the complainant  lodged any complaint  to the OP No.1 company  or through any helpline  mentioned  in the service book provided  to the complainant at the time of purchase.  There is no document  to show that there is any battery  problem  or starting problem , or any written  complaint  was lodged  in respect of the  dispute  as stated in the complaint.  The OP  NO.1company  did not give  any warranty  in respect of  the disputes as stated by the  complainant.  Had there been  any dispute within the warranty period the complainant  could  have lodged complaint  to the OP NO.2 in writing  or through helpline  but the complainant  did not lodge  any complaint  of manufacturing  defect within due time.  So,  the present  case  complaint   is  barred  by  law of limitation. There is no cause of action since the complainant  has no document  to show that he took  any steps  by stating  the dispute  to the OP NO.1 or that the OP No.1 has failed  to solve the said problem. So, the OP NO.1  claimed  that the case  is liable  to be dismissed  with cost.

OP  No.2 preferred  not to contest the case  , so as per order no.11 dated 29.08.2022 the case is decided to be heard ex-parte against  OP NO.2.

The conflicting pleadings of the complainant and OP NO.1 persuaded this Commission to ascertain the following points for determination.

Points for Determination

Point No.1.

Whether the  case is maintainable  in its present form and prayer.

Point No.2.

Whether the complainant  is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

The OP NO.1 challenged the case as not maintainable  on the ground that it is barred by limitation.

The complainant  categorically  stated in the complaint that  the cause of action for the present case  claimed to have arisen  on 09.02.2021. The OP NO.1 contended  that the cause of action  arose on and from the date of purchase . The said contention  is not acceptable  because the complainant categorically stated  that on different dates  to inform to the OP NO.1 about said problem.  The cause of action is bundle of facts and it is continuing  one.

Ld. Defence Counsel argued  that after 4 years  the case is filed without any  petition for condonation  of delay. The argument is not acceptable.  Until and unless the defect is detected, mere purchase cannot  be   the   date  of  arising   cause  of action.  Once  the defect is  found by the  complainant  he claimed to have raised  complaint to the  OP NO.1 which  the OP NO.1 could not discard.

So, in view of the specific  pleadings of the complainant  and having considered  the materials in the case  record the  Commission  is of the view that the present case is not barred by limitation.

Point no.1 is accordingly answered in affirmative  and decided  in favour of the complainant.

Point No.2&3.

Both the points are  closely interlinked with each other and as such  these are taken up together  for brevity and convenience of discussion.

It is the specific  case of the complainant  that since the time of purchase  of the motor cycle  it became defective on the ground  that it had a starting problem and battery was defective.  The OP No.1 challenged the case that there was  a warranty  period of one year in respect of the disputed  motor cycle  but the complainant never  lodged the complaint  within one year  of purchase.

The complainant  in order to substantiate  the claim, adduced both the oral evidence in the form of affidavit in chief and documentary evidence. Complainant Aniruddha Dutta proved  the following documents  in course of trial of this case:-

Annexure-1 is the  proceedings  before the CAB dated 09.02.2021.

Annexure-2 is the cash memo for purchase of the motor cycle.

Annexure-3 is the complaint  before the CAB.

Annexure-4 is the Tax Invoice.

Annexure-5 is the another Tax Invoice.

Annexure-6 is the battery warranty card.

Annexure-7 is the Tax Invoice  which is considered  as job card.

Annexure-8 is the insurance certificate.

Anneuxre-9 is the Tax Invoice  (Labour) which is also  called job card.

Annexure-10 is the application for registration certificate.

Annexure-11 is the road tax receipt.

Annexure-12 is the registration certificate of  M.V Bajaj Pulsar registration no.WB-52AJ 1704.

Annexure-13 is the job card  showing starting  problem, stating not working.

It is the admitted fact that  the complainant purchased  the disputed  motor cycle  from the OP No.1 on  12.09.2017 after the payment of the consideration  money.

The OP No.1 contended  that the complainant  has not filed any document  to show that  he lodged any complaint to the official shop OP NO.1 or called on any helpline.

From annexure-2, which is  the job card,  it is found that the  vehicle  had a starting  problem,  problem in clutch  and starting  was not  working. Another  document being  annxure-13 also discloses  that when the M.C was  in gear  position  there is starting  problem. It is also mentioned  that  there is  mileage problem  and other problems  as per point no.5, 7 , 9 and 10  of annexure-13 . The said receipts  were issued by OP No.1 S.S Auto trader . Therefore,  the defence plea  that the complainant  did not  lodge any complaint  is not acceptable  annexure-13 is the dated as 30.08.2017. So, the problem  is continued one .

Ld. Defence Counsel  for OP No.1 also  raised another  question that how  the Commission  would decide that the M.C was defective  without any  report from  auto mobile  engineer .

The said  question of fact  has been raised  for the first time  by the OP No.1 after conclusion of the trial. The OP No.1 could have  raised that point by filing a petition  to refer the case to any auto mobile   engineer for expert opinion as to whether  there is any manufacturing  defect  or not. But it is not the stage for raising  that point. In fact  the Commission  after considering  the case of the parties and  the materials  available  in the case record  the Commission  did not  consider  it necessary  to obtain  opinion of expert auto mobile  engineer.  From the document  it appears  that there is some technical problem  since the purchase  of the vehicle.  So, opinion of  auto mobile  engineer  is not required  at this belated stage at the  fag end  of the case.

It is very much  important  to further consider  that the complainant  categorically  answered against question no. 5 of the questionnaires  put by  OP No.1.  The complainant  categorically  answered that “after purchase  he came to learn  about the defects of his motor cycle.”

The complainant further answered  that he had informed all the matters to the OP No.1  and they  registered  complaint  on his behalf.  When he asked  for the receipt copy, OP No.1 stated  that it is their record and complainant was not provided the same.

If any answer of a particular  question comes  in cross-examination  it has  a special weight and evidentiary value. So  when the complainant  categorically  stated in cross-examination that since  purchase  the defect  in the motor cycle  was detected  and it was informed to the OP No.1.

The complainant  further answered  against cross-examination that he is not  an auto mobile  engineer  but the service engineer or the mechanic  of OP No.1 informed him  about the manufacturing  defect.

In view of the specific  answer  given by the complainant  in cross-examination, opinion of auto mobile  engineer  has been  reduced  and lost its force.

Ld. Defence Counsel  further argued  that the RTO also never opined  that there is  manufacturing  defect  in the disputed motor cycle.

The argument is not acceptable  because  RTO tested the vehicle  at a particular time  when the vehicle  might have been in order. But the complainant  stated in his pleading that motor cycle  was sometime stopped  due to starting problem.  It means that  the starting problem  was not  in all the time  but sometime it was stopped. So, that the RTO tested the vehicle  might not have been  stopped  and as such the opinion of RTO is  not vital in the given facts and circumstances of the case.

Ld. Advocate for the complainant argued  that from the  job card  it would be  found that the mechanic  tried to cure  the defect  but did not succeed  , so  it is evident  from the case record  that the disputed  motor cycle  had some manufacturing  defect. The argument has reasonable force . The OP  NO.1 could not  prove any  document to counter  or discard  the said defect.

Ld. Defence Counsel  for the OP No.1 referred  to one decision reported in Civil Appeal No.8663-8664 of 2015 passed by Hon’ble Supreme Court wherein  it was held  that consumer forum do not have the jurisdiction to entertain  a complaint  if it is not filed  within two years  from the date of arising  the cause of action.

The said case  law does not  help the OP NO.1 in as much as  the complainant  filed the job card  dated 24.09.2020 wherein  it is categorically  mentioned that there is starting  problem and other problems in the disputed  motor cycle  in the name of the complainant  Aniruddha Dutta. So, the cause of action is continuous one. If the said dated 24.09.2020 is considered  as the date for arising  the cause of action in that  case the present case is filed on 03.12.2021 which is well  within the  limitation period under the C.P Act. So, the said case law is not applicable  here.

Thus after assessing  the entire evidence  in the case record  and in view of the observation  made in the fore-going  paragraphs the Commission comes to the finding that the OPs have acted in a manner  with the complainant  which tantamount  to deficiency in service causing  harassment  and mental pain and agony to the complainant  which should be  compensated in terms of money.

Accordingly,  point no.2&3 are  answered  in affirmative  and decided  in favour of the complainant.

Consequently,  the complaint case succeeds on contest  with cost.

Hence,

                              It is

Ordered

that the complaint case no.CC/97/2021 be and the same is allowed on contest against OP No.1 and ex-parte against OP No.2  with cost of Rs.5,000/- (Rupees five thousand). The complainant do get an award for a sum of Rs.61,632/- (Rupees sixty one thousand six hundred thirty two) towards  the cost of the motor cycle  bearing no.135LS (BSIV) (JD07), Rs.50,000/- (Rupees fifty thousand) towards harassment  and mental pain and agony and Rs.5,000/- (Rupees five thousand) towards litigation cost against both from the OP NO.1&2 jointly and severally. OP  NO.1&2  are jointly and  severally  directed to pay Rs.1,16,632/- (Rupees one lakh sixteen thousand six hundred thirty two) to the complainant  within 30 days from the date of passing the final order  failing which  the entire award money shall carry an interest @ 8% p.a from the date of passing the final order till the date of its realisation. The complainant  is directed to  return the motor cycle  to the OP No.1 at the time of payment of award money along with  all documents.

All Interim Applications  (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.    

Dictated & corrected by me

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                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                             ................ ..........................................

                                                                                                                          PRESIDENT

                                                                                          (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

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          MEMBER                                                                

(NIROD  BARAN   ROY  CHOWDHURY)