Tripura

StateCommission

A/28/2016

Sri. Umesh Sarkar - Complainant(s)

Versus

The Managing Director TVS Motors. - Opp.Party(s)

Mr. Bhaskar Debroy, Mr. Pulak Saha

10 Nov 2016

ORDER

 

STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

TRIPURA

 

APPEAL CASE No.A/28/2016

 

 

 

 

1. Sri Umesh Sarkar,

S/O Pradip Sarkar,

Resident of Durgabari, Master Para,

Bamutia, Pin: 799015.

Dist. West Tripura.

                                                  ….    ….    ….    ….    Complainant/Appellant.

                                                           

 

                   Vs

 

 

1. The Managing Director, TVS Motors,

Jayalakshmi Estates, 5^th Floor 8,

Haddows Road, Chennai-600006,

Tamil Nadu, India.

 

2. The Manager,

Choudhury Motors, Authorised TVS,

Main Dealer, Shibnagar,

College Road, P.S. East Agartala,

Dist. West Tripura.  

….    ….    ….    ….   Opposite Parties/Respondents.

 

 

 

 

PRESENT

 

HON’BLE MR.JUSTICE U.B. Saha,

PRESIDENT,

STATE COMMISSION

 

MR.NARAYAN CH. SHARMA,

MEMBER,

STATE COMMISSION.

 

 

 

 

For the Appellant               :         Mr. Pulak Saha, Adv.

For the Respondents          :         Mr. Sankar Lodh, Adv.

 

Date of hearing and delivery of Judgment: 10.11.2016.         

 

 

J U D G M E N T (O R A L)

 

 

U.B. Saha, J,

The instant appeal is filed by the appellant-complainant, Sri Umesh Sarkar, under section 15 of the Consumer Protection Act, 1986 against the Judgment dated 02.05.2016 passed by the Ld. District Consumer Disputes Redressal Forum, West Tripura, Agartala (hereinafter referred to as District Forum) in Case No.CC-99/2015 whereby the Ld. District Forum dismissed the complaint petition of the appellant-complainant.  

2. Heard Mr. Pulak Saha, Ld. Counsel appearing for the appellant-complainant. Also heard Mr. Sankar Lodh, Ld. Counsel appearing for the o.p.-respondents.
3. The facts relevant for disposal of the instant appeal lie in a narrow compass are as follows:-
4. The appellant-complainant, Shri Umesh Sarkar purchased a motor cycle Model (RTR-160) from the showroom of the o.p.-respondent no.2, Chowdhury Motors, Authorised Dealer of o.p.-respondent no.1, TVS Motors on payment of Rs.75,507/-. The motor cycle was purchased through private finance. After few days of delivery, the motor cycle was disturbing, particularly, whenever the speed of the said motor cycle exceeded 30 km/h, the engine created noisy sounds and also became over heated. The appellant-complainant then made contact with the o.p.-respondent no.2 and the said motor cycle/bike was placed in the workshop, but it was not repaired properly and there was still noisy sound and smoke. So, the appellant-complainant visited the workshop of the o.p.-respondent no.2 time to time and the bike was repaired, but the defect of the said motor cycle was not cured. So, lastly, on 26.10.2015, the appellant-complainant had left the said motor cycle to the workshop for repairing. Ultimately, as the vehicle was not repaired properly, the appellant-complainant demanded for replacement of the same. But the o.p.-respondent no.2 did not replace the said motor cycle as demanded by the appellant-complainant. Then the appellant-complainant sent one lawyer notice to the o.p.-respondents. After getting the lawyer notice, the o.p.-respondent no.2 replied to it on 16.11.2015 denying the claim of the appellant-complainant. Being aggrieved by the action of the o.p.-respondents, the appellant-complainant filed complaint petition before the Ld. District Forum.
5. The o.p.-respondent no.1, Managing Director, TVS Motors appeared and filed the written statement denying the claim. In the written statement it is stated that 660 km was run by the purchased motor cycle on 25.08.2015. It is also stated that during the first servicing on 25.08.2015, the purchased motor cycle was run 660 km. It is further stated that the first servicing was not done on 23.08.2015 as contended by the appellant-complainant, but on the said date the workshop was closed being Sunday and no problem was found with the said motor cycle during the servicing and checking of the same. It is also stated that after first servicing, the appellant-complainant took the vehicle with full satisfaction. Again, the appellant-complainant was visited the workshop of the o.p.-respondent no.2, when the said motor cycle was run 848 km with a complaint regarding engine sound, gear hard and disc brake hard. Then the technician of o.p.-respondent no.2 fixed the problem and a trial run was done by the appellant-complainant and he found no problem of the motor cycle. It is the further case of the o.p.-respondents that the said motor cycle was damaged by an accident. Again, the appellant-complainant visited the workshop of the o.p.-respondent no.2 on 28.09.2015 (3100 km was run) and asked for repairing of the motor cycle and the workshop staff repaired the same. On 26.10.2015, the said motor cycle was run 3535 km. The condition of the motor cycle was good. Thus, the complaint of the appellant-complainant was bogus and the same is liable to be rejected.
6. On the basis of the aforesaid contention raised by both the parties, the Ld. District Forum framed the following points for deciding the case:-

1. Whether the motor cycle purchased by the appellant-complainant was defective?
2. Whether the appellant-complainant is entitled to get redress for the deficiency of service of o.p.?

7. Appellant-complainant side produced the copy of Tax Invoice, Trade Certificate, Demand Notice, reply of Demand Notice, delivery of vehicle. He had also examined himself as witness.                 
8. On the other hand, the o.p.-respondent no.2 examined one witness, namely, Rajesh Roy Choudhury who stated that the complainant purchased a motor cycle from his firm i.e. Choudhury Motors and also produced the mechanical report.
9. On the basis of the evidence as produced by the parties, the Ld. District Forum dismissed the petition.
10. Being aggrieved by the judgment of the Ld. District Forum, the appellant-complainant filed the present appeal on the ground that though the P.W.2, Samrat Das was present on the date of evidence by the appellant-complainant, but the Ld. District Forum did not allow the P.W.2 to adduce evidence on behalf of the appellant-complainant. The appellant-complainant in his memo of appeal also stated that after recording of the evidence, the date was fixed for argument on 03.03.2016 and thereafter, the date was fixed on 08.04.2016 for submission of mechanical report and finally, on 22.04.2016, the case was fixed for argument and judgment, but on that date Ld. President of the District Forum was absent. On 02.05.2016, without hearing any argument, the Ld. District Forum had pronounced the judgment. The Ld. Counsel for the appellant-complainant while urging for setting aside the judgment of the District Forum contended that in the impugned judgment, it is mentioned that the o.p.-respondents produced the job card and also examined one witness, Rajesh Roy Choudhury, but the appellant-complainant does not know on which date the o.p.-respondents have adduced evidence or produced documents before the Ld. Forum. He further contended that non-providing of job card itself is deficiency of service.
11. Mr. Lodh, Ld. Counsel appearing for the o.p.-respondents while supporting the judgment of the Ld. District Forum submitted that though the appellant-complainant produced statement on affidavit of two witnesses including him, but P.W.2, Samrat Das was not produced for cross-examination and also to support the case of appellant-complainant. He also contended that the appellant-complainant did not produce any evidence of mechanic/mechanical report or any supporting evidence to establish his case. He further submitted that the contention of the appellant-complainant is not correct that he was not aware when Rajesh Roy Choudhury, O.P.W.1 was examined as it would be evident that said Choudhury was cross-examined by the Ld. Counsel for the appellant-complainant. He also submitted that the case was not fixed for argument on 03.03.2016, but the case was fixed on 30.03.2016 for argument. It would appear in the order dated 15.03.2016 of the Ld. District Forum, that both the Ld. Counsels for the appellant-complainant and o.p.-respondents were present with witnesses, both cross-examined and evidence was closed. He finally contended that on 30.03.2016, the argument was heard and both the parties were directed to produce the mechanical report about the fitness of said motor cycle, but the appellant-complainant did not produce any mechanical report to establish that the vehicle was defective. On the other hand, o.p.-respondents have produced the mechanical report in presence of the Ld. Counsel for the appellant-complainant who did not raise any question regarding admission of the mechanical report. Thus, the Ld. District Forum did not commit any error.
12. As an Appellate Court, we have gone through the impugned judgment as well as the evidences on record and other documents. Admittedly, the appellant-complainant produced statement on affidavit of two witnesses, but he did not produce P.W.2, Samrat Das either to support his case or for cross-examination. There is no document available on record that on the date of cross-examination of P.W.1, appellant-complainant, the P.W.2, Samrat Das was also present.
13. The contention of the Ld. Counsel for the appellant-complainant that the appellant-complainant was not aware regarding the cross-examination of O.P.W.1 Rajesh Roy Choudhury is not correct, as the Counsel for the appellant-complainant himself had cross-examined the O.P.W.1 on 15.03.2016.
14. It also appears from the certificate issued by Sri Haradhan Das, mechanics of Choudhury Motors that the said motor cycle was in good condition and he had checked the entire engine, electrical point and all other important places of the said motor cycle.
15. In that case, the appellant-complainant could have called the said mechanics in the witness box for his cross-examination, but that was not done. Not only that, the appellant-complainant also did not examine any other mechanics though the Ld. District Forum directed him to produce the mechanical report by its order dated 30.03.2016.
16. The O.P.W.1 in his statement specifically stated that in a short period, the said motor cycle crossed longer distance. He also admitted that the appellant-complainant had visited the workshop several times and his problem was solved and the said motor cycle was in good condition. It is also stated that on 25.08.2015, the first servicing of the said motor cycle was done and again the said motor cycle was taken in the workshop for repairing and the same was repaired and delivered. It is further stated that on several occasions, the appellant-complainant was asked to receive the motor cycle with good condition, but he did not response.
17. Making an allegation regarding deficiency of service is not enough as the same has to be proved by cogent evidence. After re-appreciation of the evidences and perusal of the impugned judgment, we are of the considered opinion that the Ld. District Forum did not commit any error while dismissed the petition for lack of evidence.
18. In the result, the appeal is dismissed. No order as to costs.             

Send back the records to the Ld. District Forum.    

 

               

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura