BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (CENTRAL)
MAHARANA PARTAP BUS TERMINAL, 5TH FLOOR,
ISBT, KASHMERE GATE: DELHI-110006
No. DF(Central)/2015/ Dated:
Complaint Case No.123 of 2013
Sh. Prabhat Kumar Chaudhary
S/o Sh.Prabhu Narayan Chaudhary
R/o 716, DDA Flats, Sector – 14, Pocket – 1,
Dwarka,
NEW DELHI – 110 075 Complainant
Versus
- M/s XS Bikes
Rashtriya Towers
38, Rani Jhansi Road,
NEW DELHI – 110 055.
- M/s Shyam Motors
H-960, palam Extn. Sector – 7,
New Delhi – 110 075 Opposite Parties
ORDER
Complaint under Sec.12 of the CPA 1986 as amended upto date
Per Sh. Rakesh Kapoor, President
The complainant has purchased a electric scooter/bike (model Royale) from OP -2 M./s Shyam Motors vide invoice no. 323 dated 10.2.2013 for a sum of Rs.35,238/-. It is alleged by the complainant that the respondent No. 2 had sold away the said bike to him saying that it was a new piece and free from all defects. The complainant had, however, found out during its use that it was used by someone else before being sold to him. The complainant had also found out that the vehicle suffers from various defects relating to lock, brakes, horn, light. The vehicle also did not cover the distance of 75 kms after full charge as represented by OP -2. The complainant further found out that the vehicle had signs of repair all over its body which was deliberately hidden under the thick paintings/stickers. The bill of invoice was delivered to the complainant after one week from the date of purchase and the Owners’s manual was given later on. The Owner’s manual did not contain the pages meant for “three Free Services”. It is alleged by the complainant that he had approached OP -2 more than once and had requested him to replace the defective bike with a new one. On 19.2.2013 the complainants friend Sh. A K Jha had visited OP -2 and had asked it to rectify the defects failing which legal recourse would be taken. It is alleged that OP -2 had admitted that the vehicle was not getting full charge due to defect in its charger and had retained the charger for replacement vide claim Form No. 1 2 3 4 dated 19.2.2013. It is alleged that OP -2 had not replaced the charger till date, as a result of which the complainant has not able to use the vehicle in question. It is also alleged that OP – 2 had also refuse to provide three free services and had claimed that it has the liability of OP – 1. The complainant had served a legal notice dated 2.4.2013 on the OPs but to no result and has therefore approached this Forum with the present complaint.
The complaint has been contested by OP -1, the manufacturer of the bike in question. OP – 1 has taken a preliminary objection that the complainant had not approached the Forum with clean hands and had filed the present complaint against it without any cause of action. It has claimed that the grievance of the complainant is against OP -1. It has prayed that the complaint against it be dismissed.
OP -2 despite service has failed to contest the complaint and has been ordered to be proceeded with exparte.
We have heard argument advanced at the Bar and have perused the record.
The complainant has placed on record a copy of the retail invoice dated 10.2.2013, which shows that he had purchased the bike in question from OP -2 for a sum of Rs.35,238/- The complainant has also placed on record Annexure – 1 which is a dealer claim form dated 19.2.2013 showing that the charger had been left with OP -2 for its replacement. A copy of the Owners Manual has also been placed on record. A copy of the legal notice/the complainant had served on the OPs has also been placed on record. The OPs had not replied to this notice and had simply ignored the same. Courts in a number of cases have held that above serious allegations are levelled against a noticee and he does not refute them and simply ignored the same, a presumption may be drawn that the allegations levelled in the notice were true.
(see Kalu Ram V/s Sita Ram 1980 RLR (note 44) and Metro Polis Travel v/s Sumit Kalra and others 98 (2002) DLT 573 (BT).
The present case is one where such a presumption needs to be drawn in favour of the complainant and against OP – 2 with respect to the allegations made in the complaint. The complainant has in his affidavit corroborated the contents of the complaint which have not been refuted. Since OP -2 has chosen not to contest and since no explanation has given for OP -2, there is no reason to disbelief the affidavit filed by the complainant especially the statements that the bike sold to him was an old one and had signs of repairs all over its body.
We therefore, hold OP – 2 deficient in rendering service to the complainant and direct as under:-
- To pay to the complainant a sum of Rs.35,238/- (Rupees Thirty Five Thousand Two Hundred Thirty Eight Only) alongwith interest @ 10% p.a. from the date of institution of this complaint i.e. 16.5.2013 till payment.
- To pay to the complainant a sum of Rs.5000/-(Rupees Five Thousand Only) as cost of litigation.
- Take the E-Bike back from the complainant after payment.
The OP shall pay this amount within a period of 30 days from the date of this order failing which they shall be liable to pay interest on the entire awarded amount @ 10% per annum. IF the OP fails to comply with this order, the complainant may approach this Forum for execution of the order under Section 25/27 of the Consumer Protection Act.
Copy of the order be made available to the parties as per rule. File be consigned to record room.
Announced in open sitting of the Forum on.....................
(NIPUR CHANDNA) (DR. VIKRAM DABAS) (RAKESH KAPOOR) MEMBER MEMBER PRESIDENT
