SILIGURI CIRCUIT BENCH

of

WEST BENGAL STATE CONSUMER DISPUTES REDRESSAL COMMISSION

2nd MILE, SEVOKE ROAD, SILIGURI

JALPAIGURI - 734001

First Appeal No. A/7/2020

( Date of Filing : 28 Jan 2020 )

(Arisen out of Order Dated 30/12/2019 in Case No. CC/60/2018 of District Jalpaiguri)

1. HERO MOTOR CORP.

34, COMMUNITY CENTRE, BASANT LOK, VASANT

VIHAR, NEW DELHI, DELHI-110057 NEW DELHI ...........Appellant(s) Versus

1. SRI. BHABATOSH ADHIKARY & ANOTHER S/O-SHRI. KISHOR MOHAN ADHIKARY, R/O-INDIRA GANDHI COLONY, DENGUAJHAR, KHARIA-P CT, P.S- KOTWALI, P.O-JALPAIGURI, PIN-735101

JALPAIGURI

WEST BENGAL

2. ANAND AUTOMOBILES

REPRESENTED BY MR. SUMIT GOYAL, N.S. ROAD,

BAJRAPARA, P.O-JALPAIGURI, PIN-735101

JALPAIGURI

WEST BENGAL ...........Respondent(s)

BEFORE:

HON'BLE MR. Subhendu Bhattacharya PRESIDING MEMBER HON'BLE MR. Amal Kumar Mandal MEMBER

PRESENT:

Dated : 10 Mar 2022 Final Order / Judgement

This appeal is directed against the Final Order dated 30.12.2019 passed by Ld. D.C.D.R.F., Jalpaiguri in CC No 7 of 2018. This appeal is registered against Bhabatosh Adhikary and Anand Auto Mobiles by appellant company Hero Motor Corp. The fact of the case in nutshell that the complainant Bhabatosh had purchased a glamour motor bike on 22.02.2018 from authorized dealer Anand Auto Mobile and since the purchase of the said bike he had to face some problems. The bike had starting problems.He approached the service center for repairing of the said manufacturing defects of the bike but the said defects was not removed. And in spite of making complaint the defects were not cured and for that reason he could not use the said bike for the purpose he purchased the same. So, he registered the instant Consumer Complaint which was disputed by Anand Auto Mobile and Hero Motor Corp by joint W.V and contended that the bike purchased by the Complainant had no manufacturing defect as the O.P Company maintains high quality standard in terms of manufacturing vehicles each and every vehicle

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passes through stringent quality test before release from the manufacturing plant for its onward sale to the customer and proper service was provided whenever the defects was arose and reported by the Complainant to the service center and after proper test it was not detected having any manufacturing defects in the vehicle concern. The Opposite Party No. 2 Hero Motor Corporation in the said W.V clearly mentioned that the relationship of the Opposite Party No. 1 with the O.P No. 2 was created solely on the basis of dealership agreement and is on principal- to-principal basis. The dealers that is O.P No. 1 placed bulk orders with the Opposite Party No. 2 and the Opposite Party No. 2 supplied the said vehicles to the dealers on the basis of their demand and Opposite Party No. 2 Anand Auto Mobile and manufacturing Company had no responsible for the terms of the sale by the dealer to the purchaser. The role of the Opposite Party No. 2 was limited to the extent of providing warranty benefits to the end customers based on terms of conditions mentioned in the warranty booklet which was provided to the end customers at the time of purchase and delivery of the vehicle and Opposite Party No. 2 was not at all liable for any disputes other than a genuine case of manufacturing defect subject to technical expert's report and as such the O.P No. 1 and O.P. No. 2 had no liability as they have provided proper service to the customer/complainant and the instant complaint was frivolous and liable to be dismissed. Ld. Forum after recording evidences and hearing the arguments has passed the impugned order by which both the Opposite Parties that is M/S Anand Auto Mobile and Hero Motor Corp was directed jointly and separately to refund the consideration money amounting to Rs. 57,888/- to the Complainant with interest there on at the rate of 9% Per- annum since 22.02.2018 within one month and also pay Rs. 25,000/- as compensation for harassment and inconvenience suffered by the Complainant and also directed to pay Rs. 10,000/- as litigation cost and the Opposite Parties were further directed to pay a sum of Rs. 25,000/- to the District Consumer Legal Aid account. Being aggrieved with this order this appeal follows on the part of the O.P No. 2 that is Hero Motor Corp on the ground that the order of Ld. Forum was bad in law defective and not vested with the power enunciated in the provisions of C.P Act, 1986 and liable to be set aside. The appeal was registered against the Complainant Bhabatosh Adhikary and Anand Auto Mobile the dealer and the seller of the vehicle. The appeal was admitted on merit and notice was sent to the respondents through Post. Ld. Advocate Mr. J. Ganguly has contested the appeal on behalf of respondent No. 1 Bhabatosh Adhikary. The respondent No. 2 did not contest the appeal. The hearing of the appellant was conducted by Ld. Advocate Mr. M. Paul while the respondent No. 1 was represented through Ld. Advocate Mr. J. Ganguly. Both sides have submitted the Written Note of Arguments.

Decision with reasons

Having heard the Ld. Advocate of both sides it is apparent from the record that Bhabatosh Adhikary has purchased the Hero Glamour Bike from the authorized dealer of Hero Motor Corp that is Anand Auto Mobile on 22.02.2018 having registration No WB72R8700 by making payment of Rs. 57,888/- which was ultimately registered through the motor vehicle office on 28.02.2018 and the warrantee of the said bike was either run of 70,000 kilometers or five years from the date of purchase which is earlier. And within 10 days taking delivery of the vehicle the Complainant found that the said vehicle and the engine of the said vehicle was stopped automatically after travelling 10 to 20 kilometers distance and it took 10 to 13 minutes to restart and after one week of purchase the engine of the said vehicle seized to function on the road causing inconvenience and it is reflected from the email sent by the Complainant to the

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Opposite Parties from 30.09.2018 to 02.10.2018. Ld. Advocate of the appellant pointed out during the course of argument that the vehicle was purchased on 22.02.2018. First complaint of defect was registered on 30.09.2018 that is after seven months from the date of purchase and by this time the Complainant completed the huge run of the vehicle and according to the job card report no manufacturing defect was detected at the time of servicing the vehicle as per schedule mentioned in the job card. He, further argued in the case of ascertaining existence of any manufacturing defect in the subject matter of the case, the laboratory test report is very much essential to substantiate the allegation of complaint regarding manufacturing defect of the vehicle. He, further pointed out that the documentary evidences submitted in this case clearly speaks that the kilometer reading of the motor bike shows of optimum uses by the user over the time period. And such optimum is not at all possible if at all any such manufacturing defect as alleged would at all had existed in the bike. And Ld. Forum's order and Ld. Forum's revelation about having manufacturing defect of the bike since the date of purchase was based on surmise and conjecture as because no qualified engineer or mechanics under their own supervision as claimed that the instant motor bike had manufacturing defect since the date of manufacturing and delivery of the bike to the customer. He, further argued that Ld. Forum had failed to appreciate that a motor bike a two-wheeler vehicle was a subject matter of high rate of depreciation if not maintain in the prescribed manner in terms of the guidelines given in the owner's manual and warrantee policies of the manufacturing company and without having any expert report the Ld. Forum had no option to take into granted that since the very inception of manufacturing of the bike it had inherent manufacturing defect. Ld. Advocate of the Complainant cum respondent countered this argument by mentioning that the Consumer Protection Act, was enacted to provide a similar and equal access of redressal towards the Consumer grievances and after purchasing of the bike the Complainant/Respondent faces problems during the run of the bike as off and on the engine of the bike was stopped in a gap of 10 to 12 kilometers run and for that reason motor bike was brought for repairment at the workshop of respondent No. 2 within six months of purchase sometimes job card was given but most of the visits job card was not provided to him. The motor bike was taken to the workshop of respondent No. 2 at least nine to ten times and sometimes one or two parts were replaced to cure the problem but the problem remained the same and sometimes the vehicle was overheated. The motor bike was taken to the workshop of respondent No. 2 on 11.06.2018, 18.06.2018, 25.06.2018 and 27.06.2018 for necessary repairments and the respondent No. 2 could not solve the overheating problem and the starting problem of the bike. The Ld. Advocate further says that in this case the appellant always negated the allegation of manufacturing defect by taking a alibi that the Complainant was using the bike with non-standard fuel and such allegation of using non-standard fuel was also not substantiated on the part of the appellant. Ld. Advocate further mentioned that the Complainant was assured by the service center of the Hero Motor Corp that is respondent No. 2 that the problems of the Complainant would be solve after each repairment but ultimately the problems remained the same and at last he was compelled the abandon the said vehicle in the custody of respondent No. 2. since, 27.09.2019 and since then the motor bike is lying in the custody of respondent No. 2. The appellant and the respondent No. 2 are wasting the valuable time of respondent No. 1 deliberately for no good reason harassed the complainant and the appellant and the respondent No. 2 having deficiency of service on their part are liable to pay jointly and separately compensation and the other penalties to the respondent No. 1.

After, hearing both sides and after consulting all the necessary documents connected with this

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case, we find that the Ld. Forum has checked every aspect of the case and thereafter decided the matter very judiciously and passed the impugned order to protect the interest of a Consumer who has purchased a motor bike for his own purpose and he could not achieve to enjoy the said purposes due to defect of the vehicle since the date of purchase and for that reason Ld. Forum has rightly secured the interest of a bonafide consumer and directed the O.P No. 1 and O.P No. 2 to make refund of the payment of the consideration money of the vehicle to the tune of Rs. 57,888/- and interest at the rate of 9% Per-annum. And also asked the Opposite Parties to pay compensation, litigation cost and penalty for depositing Rs. 25,000/- in the Consumer Legal Aid Fund.

It is also fact that Hero Motor Corp is a well reputed company, manufacturing unit having good name in the manufacturing sector of vehicle and unfortunately there may be some problems in manufacturing of any items amongst the huge numbers and it can be easily said it was an act of god and huge penalty imposed upon them is not at all appreciable and for that reason we think that the order of refund of Rs. 57,888/- is justifiable one but imposing other penalty as fine is not at all appreciable. So, the interest at the rate of 9% Per-annum should be confined from the date of purchase of the vehicle 22/02/2018 till the date of Final order that is on 30/12/2019 passed by Ld. Forum and such interest to be confined only for the said period if the appellant and respondent No. 2 makes payment the same including refund money jointly and separately to the respondent No. 1 Complainant within two months from the date of passing the order of this Commission. The award of Rs. 25,000/- as compensation, 10,000/- as litigation cost and penalty of depositing Rs. 25,000/- to the Consumer Legal Aid Fund are at all not appreciable and such order should be deleted from the ordering portion of the Ld. Forum in the instant Judgement.

Hence, it's ordered

That the appeal be and the same is partly allowed on contest without cost subject to modification of the Final order dated 30/12/2019 in CC No. 60 of 2018 as follows:

That the appellant and respondent No. 2 are directed to pay jointly and severally to refund the consideration money of the Hero Glamour Bike to the Complainant to the tune of Rs. 57,888/- including interest at the rate of 9% Per-annum for the period between 22.02.2018 and date of Judgement of Ld. Forum dated 30.12.2019 within two months from this day, failing which the interest at the rate of 9% Per-annum over the decretal amount will be continued till the date of full payment of the same. The order of Ld. Forum in respect of payment Rs. 25,000/- as compensation, Rs. 10,000/- litigation cost and direction to pay Rs. 25,000/- to the fund of District Consumer legal aid account is hereby set aside.

Let a copy of this order be supplied to the parties free of cost and same to be communicated to the Ld. D.C.D.R.F, Jalpaiguri.

[HON'BLE MR. Subhendu Bhattacharya]

PRESIDING MEMBER

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[HON'BLE MR. Amal Kumar Mandal]

MEMBER

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