National Consumer Disputes Redressal Commission, New Delhi

K S Chaudhari, Presiding Member and B C Gupta, Member

Khanna Automobiles and Anr - Petitioners

Versus

Shri Rajesh Kumar – Respondent

Revision Petition No. 1115 of 2012                                                      Decided on 23.04.2013

(From the order dated 19.12.2011 in First Appeal No. 1549/2005 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Automobiles - Manufacturing defect - District Forum directed Opposite Party/Petitioner to replace vehicle or to refund cost of vehicle along with 12% interest and also to pay Rs. 10,000 as compensation and cost of proceedings - There is no justification to ask Petitioners to replace vehicle at this stage or to refund cost of vehicle to Respondent given the fact that vehicle has already run for a number of years - Opinion of experts produced by other party is not convincing because no certificate has been produced to establish that they had requisite expertise in the matter - Affidavits of experts were not filed before case was fixed for final arguments and in such circumstances, these affidavits could not have been considered by District Forum - Orders of State Commission and District Forum set aside and complaint dismissed. (Paras 5 & 6)

 

Important Point

Vehicle cannot be replaced where it has already run for a number of years.

Judgement

1.B C Gupta, Member – Appeared on 10.04.2013 at the time of arguments. This revision petition has been filed against the order dated 19.12.2011 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (hereinafter referred to as "State Commission") in First Appeal No. 1549 of 2005, vide which appeal against the order dated 18.07.2005 passed by the District Consumer Disputes Redressal Forum, Yamuna Nagar was ordered to be dismissed.

2.The facts of the case are that the Respondent/Complainant purchased a Hero Honda Splendor motorcycle on 13.02.2004 for a sum of Rs. 40,765. It has been alleged by the Complainant that there had been a leakage of Mobil oil from the chamber since the date of purchase of the vehicle. The Complainant visited the dealer and made complaints regarding defects. Despite attempts to repair the vehicle and also changing some of the parts, the defects could not be removed. The Complainant filed the consumer complaint with the District Forum. The District Forum was pleased to allow the complaint and directed the Opposite Party/Petitioner to replace the vehicle or to refund Rs. 40,765, being the cost of the vehicle along with interest of 12% per annum from the date of making the complaint till realization and also to pay Rs. 10,000 on account of mental agony/harassment as well as cost of proceedings. An appeal against this order was also ordered to be dismissed by the State Commission, saying that the Complainant had proved manufacturing defect in the vehicle in question.

3.The learned counsel for the Petitioner, at the time of arguments before us, invited our attention to the conditions of warranty as contained in the service booklet, saying that it was obligation of M/s Hero Honda to repair the vehicle or to replace those parts, which are considered to be cause of malfunctioning, free of charge of both labour and material. The Petitioner has been attending to the complaints of the Respondent from time to time. Even after filing the consumer complaint, the Respondent brought the motorcycle for third free service to them on 15.12.2004, having run 4,655 kms already. The Complainant reported about oil leakage for the first time on 15.12.2004 and it was rectified by the Petitioner on that very day. The learned counsel further stated that the District Forum had relied upon the reports of two experts, namely, Jasbir Singh, Proprietor of Perfect Repair, Chhachhrauli and Gurmeet Singh, Proprietor of M/s Sidhu Automobiles, Jagadhri and passed their order on the findings given in these reports. There was, however, no material to establish that these two persons had proper expertise about the issue. Two affidavits had also been given on behalf of Gurmeet Singh and Jasbir Singh, which were both attested on 24.06.2005 while the case had already been adjourned for arguments on 18.05.2005. It was not clear how these affidavits had been brought on record. The learned District Forum had also mentioned about these affidavits in its order. The learned counsel further stated that the Respondent had been using the vehicle for the last many years and he was not required to be given any relief.

4.In reply, the learned counsel for Respondent stated that the defect of leakage of oil from the vehicle had been fully established from the material on record. It was also clear from the facts of the case and the reports of the two experts that Petitioners had failed to repair the oil leakage. The learned counsel confirmed that the vehicle was running even at the moment, but the defect of leakage of oil remained.

5.We have examined the entire material on record and given our thoughtful consideration to the arguments advanced before us. The District Forum had ordered the Petitioners to replace the vehicle in question or to refund the cost of the motorcycle along with 12% interest. The State Commission also dismissed appeal against this order. It is, however, made out from the facts on record and also admitted by the Complainant/Respondent that the vehicle has always been in running condition till date. The contention of the Petitioner is that the oil leakage was first reported to them on 15.12.2004 and it was rectified the same day. It is quite evident that there is no justification to ask the Petitioners to replace the vehicle at this stage or to refund the cost of the vehicle to the Respondent given the fact that the vehicle has already run for a number of years. We also find weight in the contention of the Petitioners that the opinion of the experts produced by the other party is not convincing, because no certificate, etc has been produced to establish that they had the requisite expertise in the matter. Affidavits of experts were not filed before case was fixed for final arguments and in such circumstances, these affidavits could not have been considered by District Forum

In the light of these facts, the petition is ordered to be accepted, the complaint is dismissed and the orders of the State Commission and District Forum are set aside with no order as to costs.

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