Before the District Consumer Disputes Redressal Forum, Mandi, H.P.
Complaint Case No.269/2009
Date of Institution 2-9-2009
Date of Decision 30-12-2009
Santosh Sharma wife of Sh. Tirth Ram Sharma resident of village Silh, Post Office Sadhyani, Tehsil Sadar, District Mandi, H.P.
…Complainant
Vs
Sikand and Company , Solan Chambaghat , Solan , H.P.
…..Opposite party
For the complainant Sh. J.D.Dogra, ,Advocate
Opposite party Exparte
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite party. The case of the complainant is that he has purchased a vehicle i.e. Tata -909 ( tipper ) from the opposite party on 17-4-2008 and he was not supplied the jack, service box and tool box which is part and parcel of the vehicle . The opposite party assured the complainant to supply the same within 15 days but did not supply the same. That after one month from the purchase of the tipper, the pressure pipe and centre bolt got damaged and the complainant telephonically reported the matter to the office of the opposite party and it had sent mechanic to repair the tipper . The mechanic checked and repair the vehicle but after 15 days of the said repair, pressure pipe and central bolt , clutch plates , crown wheel and gear box of the vehicle were tripped . The complainant again reported the matter telephonically to the office of the opposite party and it had sent a mechanic who checked and repaired the vehicle but when the aforesaid vehicle after repair was plied on the road , the pressure pipe, crown wheel and clutch plates again got damaged and gear of the vehicle got tripped and as a result of which the complainant again reported the matter to the opposite party and he was assured to repair the vehicle properly and replace the same within a week but after repeated requests , no one came to check the said vehicle . The complainant averred that he had served the opposite party with legal notice Annexure C-1 . The complainant requested M/S Sharma Auto Works Nerchwowk , Mandi on 6-4-2009 to repair the vehicle and he was told that the vehicle has some manufacturing defect and as a result of this the complainant had suffered a huge monitory loss and mental agony which according to him is deficiency in service as well as unfair trade practice on the part of the opposite party. With these averments , the complainant had sought a direction to the opposite party to replace the vehicle , to pay Rs. 20,000/- as compensation for mental tension and harassment . Apart from this , cost of complaint has also been claimed.
2. The opposite party has failed to contest the complaint and was proceeded against exparte.
3. We have heard the ld. counsel for the complainant and also gone through the record . The case of the complainant is that he had purchased a Tata tipper model 909 from the opposite party on 17-4-2008 but he was not supplied jeck, service box and tool box and was assured by the opposite party to supply the same within 15 days but did not supply the same. Further case of the complainant is that after one month from the date of purchase of the vehicle, the pressure pipe and central bolt got damaged and the complainant telephonically reported the matter to the office of the opposite party who deputed mechanic to repair the same and mechanic checked and repaired the vehicle but after 15 days the pressure pipe , central bolt and , clutch plates, crown wheel and gear box were tripped . The complainant again reported the matter telephonically and the mechanic checked and repair the vehicle but the defects could not be removed. The opposite party was again apprised of the defects but no one came from the side of opposite party to check and repair the vehicle . On these averments the complainant had sought replacement of the vehicle apart from compensation and cost of complaint. The complainant has placed on record his own affidavit in support of the averments made in the complaint apart from affidavit of Sh. Pawan Kuamr Manager of M/S Sharma Auto Works situated at Nerchowk who had deposed that on 6-1-2009 the vehicle in question was inspected by him and other mechanic and it was found that there was same manufacturing defect in the aforesaid vehicle due to which the pressure pipe , central bolt and clutch plates , crown wheel gear box of the said vehicle got damaged on different dates . He had further deposed that the vehicle was repaired in his workshop many times and the complainant had spent Rs.61,460/-. Not only this the complainant had also placed on record legal notice issued to the opposite party as Annexure C-1, RAD receipt Annexure C-2 , and the bills of repair . However no documentary evidence has been adduced by the complainant to establish that there is inherent manufacturing defect in the vehicle . In our opinion much weightage cannot be given to the affidavit of
Sh. Pawan Kumar, Manager of M/S Sharma Auto Works because he is not a qualified automobiles engineer . The complainant has failed to produce any detailed report of any qualified person regarding the manufacturing defect in the vehicle in question. The complainant ought to have filed opinion of an expert to establish the fact that the defects as pointed out by him in the vehicle developed due to inherent manufacturing defect in the vehicle . Therefore , it cannot be concluded that the vehicle of the complainant is suffering from inherent manufacturing defect in the absence of opinion of an expert and any evidence by a qualified person to state so that the vehicle had inherent manufacturing defect. In this respect we are fortified with the order of Hon’ble National Consumer Disputes Redressal Commission New Delhi titled Dagadu Bhairu Bhosale vs Scooter India Ltd and another II ( 2006) CPJ-443( NC) wherein it has been held that in the absence of any evidence of any person qualified to state that the vehicle had developed manufacturing defects it cannot be concluded that there is manufacturing defect in the vehicle. However, the fact remains that the vehicle of the complainant developed defects in the pressure pipe , central bolt , clutch plates, crown wheel and gear box . The complaint is supported by the affidavit of the complainant. The opposite party had failed to contest the complaint and was proceeded against exparte which shows that it has nothing to say in the matter except to admit the claim of the complainant. Therefore, it would be in the interest of justice if we direct the opposite party to repair the vehicle by removing all the defects in the pressure pipe , central bolt, clutch plates, crown wheel and gear box and to make the vehicle road worthy to the entire satisfaction of the complainant free of costs.
4 In view of the above discussion, the complaint is partly allowed and the opposite party is directed to repair the vehicle by rectifying all the defects in pressure pipe , central bolt , clutch plates, crown wheel and gear box of the vehicle and to make the vehicle roadworthy to the complete satisfaction of the complainant within a period of 60 days from the receipt of the copy of this order failing which to pay penalty of Rs.50/- per day from the date of decision of the complaint till the vehicle is repaired. The opposite party is further directed to pay Rs.2500/- as compensation on account of harassment and Rs.1000/- as costs of litigation.
5 Copy of this order be supplied to the parties free of cost as per Rules.
6 File, after due completion be consigned to the Record Room.
Announced
30-12-2009 (Sushil Kukreja ) President
*DKM* ( Lal Singh ) Alkananda) Members
Tags: Sikand and Company