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Smart Summary

Comprehensive Summary of Opinion — First Appeal No. A/7/2020 (Dated 10 Mar 2022)

Factual and Procedural Background

This appeal arises from the Final Order dated 30.12.2019 passed by the Learned District Consumer Disputes Redressal Forum (D.C.D.R.F.), Jalpaiguri in CC No. 60 of 2018. The appellant company is Hero Motor Corp. The respondents are (1) Sri Bhabatosh Adhikary (the complainant/purchaser) and (2) Anand Automobiles (the authorised dealer and seller).

Relevant facts shown in the opinion: On 22.02.2018 the complainant purchased a Hero Glamour motorcycle from the authorised dealer Anand Auto Mobile for Rs. 57,888/-, the vehicle was registered (registration No. WB72R8700 on 28.02.2018) and came with a warranty (either 70,000 km or five years, whichever is earlier). Within about ten days of delivery the complainant began experiencing recurring engine-stopping and starting problems (engine stopped automatically after travelling 10–20 km and required 10–13 minutes to restart). Within a week the engine ceased functioning on the road. The complainant repeatedly approached the dealer/service centre for repairs (several visits and some parts replacements are recorded; specific service dates include 11.06.2018, 18.06.2018, 25.06.2018 and 27.06.2018), but the problem persisted. The bike was eventually retained in the custody of respondent No. 2 since 27.09.2019.

The District Forum (Ld. Forum) after recording evidence and hearing directed both Opposite Parties (Anand Auto Mobile and Hero Motor Corp) jointly and severally to refund Rs. 57,888/- with 9% per annum interest from 22.02.2018, pay Rs. 25,000/- as compensation, Rs. 10,000/- as litigation costs, and deposit Rs. 25,000/- into the District Consumer Legal Aid account. Hero Motor Corp. filed the present appeal challenging that order.

Legal Issues Presented

  1. Whether the District Forum correctly found that the purchaser suffered from a manufacturing defect/deficiency in service entitling him to a refund of the purchase consideration.
  2. Whether Hero Motor Corp. (appellant) can be held jointly and severally liable with the dealer in light of the dealer-principal relationship and the warranty/terms described by the manufacturer.
  3. Whether the District Forum's award of compensation (Rs. 25,000), litigation costs (Rs. 10,000) and the penalty (Rs. 25,000 to the Consumer Legal Aid Fund) were justified.
  4. What is the proper period for which interest at 9% per annum should be awarded on the refund (i.e., from date of purchase until which date)?

Arguments of the Parties

Appellant's (Hero Motor Corp.) Arguments

  • The relationship between Hero Motor Corp. and Anand Auto Mobile is a dealer-principal relationship; the dealer sold to the end purchaser and the manufacturer's role is limited to supplying vehicles and providing warranty benefits per the warranty booklet.
  • The complainant first registered the defect on 30.09.2018 (about seven months after purchase) and by that time the bike had undergone significant use, as reflected in the kilometre readings, undermining the claim of an inherent manufacturing defect from the date of sale.
  • Service job card reports did not detect any manufacturing defect. In the appellant's submission, a laboratory/technical expert report is necessary to substantiate a claim of a manufacturing defect.
  • The District Forum's finding of an inherent defect "since the date of purchase" was based on conjecture and surmise in the absence of expert evidence; the Forum erred in holding the manufacturer liable without such technical proof.
  • The imposition of heavy penalties, compensation and costs on a reputed manufacturer for an isolated manufacturing problem was excessive and not appreciable.

Respondent/Complainant's (Bhabatosh Adhikary) Arguments

  • The vehicle exhibited recurrent problems almost from the time of purchase (engine stopping after short runs), necessitating repeated visits to the authorised service centre; some job cards were produced, though not for every visit.
  • The bike was taken to the dealer/service centre at least nine to ten times; sometimes parts were replaced but the defect remained and the vehicle sometimes overheated.
  • The service centre repeatedly assured the complainant that the problem would be resolved after repairs, but the problems persisted and ultimately the vehicle remained in the dealer's custody from 27.09.2019.
  • The complainant alleged deficiency of service and consumer harassment by the dealer and manufacturer; the Consumer Protection Act provides redress for such grievances and the District Forum's reliefs were justified to protect the consumer's interest.

Table of Precedents Cited

No precedents were cited in the provided opinion.

Court's Reasoning and Analysis

The Commission reviewed the record, evidences and the arguments of both parties and proceeded as follows:

  1. Fact-finding on purchase and warranty: The Commission recorded the undisputed facts that the complainant purchased the Hero Glamour bike on 22.02.2018 for Rs. 57,888/-, registration occurred on 28.02.2018, and the warranty was for either 70,000 km or five years (whichever earlier).
  2. Evaluation of defect evidence: The Commission noted the complainant's account that within ten days of delivery the engine stopped automatically after short runs and thereafter failed completely on the road. The complaint evidences included multiple service visits and emails to the opposite parties between 30.09.2018 and 02.10.2018, and records of several workshop dates in June 2018. The bike was said to be in the dealer's custody since 27.09.2019.
  3. Consideration of appellant's technical contention: The appellant argued no manufacturing defect was detected in job cards and that a laboratory/technical report was necessary to establish a manufacturing defect. The Commission recorded that the appellant emphasized delayed complaint registration (30.09.2018) and the vehicle's kilometre readings as inconsistent with a defect from inception.
  4. Weighing of evidence and consumer protection purpose: The Commission concluded that the District Forum had "checked every aspect of the case" and acted to protect the consumer's interest, finding that the complainant could not enjoy the vehicle for its intended purpose due to defects present since the date of purchase as reflected by the complaint history and repair attempts.
  5. Modification as to penalties and interest: While the Commission accepted the basic relief of refund with interest, it considered the additional monetary awards (compensation of Rs. 25,000, litigation costs of Rs. 10,000, and Rs. 25,000 to the legal aid fund) to be excessive. The Commission therefore confined the interest award to the period between the date of purchase (22.02.2018) and the date of the District Forum's final order (30.12.2019), and deleted the award components it found disproportionate.
  6. Practical directions for enforcement: The Commission directed that the appellant and respondent No. 2 pay jointly and severally the refundable amount with interest for the specified period within two months; failing payment, interest at 9% per annum would continue on the decretal amount until full payment.

Holding and Implications

Holding: The appeal is partly allowed on contest without costs. The Final Order dated 30.12.2019 (CC No. 60 of 2018) is modified as follows:

  • The appellant (Hero Motor Corp.) and respondent No. 2 (Anand Auto Mobile) are directed to pay jointly and severally a refund of Rs. 57,888/- to the complainant, together with interest at 9% per annum for the period from 22.02.2018 to 30.12.2019. Payment is to be made within two months from the date of this Commission's order; failing which interest at 9% p.a. will continue to run on the decretal amount until full payment is made.
  • The Commission set aside the District Forum's awards of Rs. 25,000/- as compensation, Rs. 10,000/- as litigation cost, and the direction to deposit Rs. 25,000/- into the District Consumer Legal Aid account.

Implications: The direct effect is that the consumer is entitled to a refund with interest for a defined period, while the additional monetary awards previously granted by the District Forum were removed as excessive. The opinion does not announce or rely upon any new legal precedent; it modifies the lower forum's remedy-based order on facts and proportionality of monetary sanctions.

Bench: HON'BLE MR. Subhendu Bhattacharya (Presiding Member) and HON'BLE MR. Amal Kumar Mandal (Member). Final order dated 10 Mar 2022. This summary is prepared strictly from and limited to the content contained in the provided opinion.

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    HERO MOTOR CORP. v. SRI. BHABATOSH ADHIKARY & ANOTHER

    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

    1

    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

    2

    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

    3

    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

    4

    [HON'BLE MR. Amal Kumar Mandal]

    MEMBER

    5

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    HERO MOTOR CORP. v. SRI. BHABATOSH ADHIKARY & ANOTHER
    (Mar 10, 2022)