Aher Auto Private Limited, Regd. Office: Kalyan (West) Vs. Shri Indrapal Singh and Another - Court Judgment

Per Shri P.N. Kashalkar, Honble Presiding Judicial Member.

1. Aggrieved by the judgment/award passed by Consumer Disputes Redressal Forum, District Thane, in Consumer Complaint No.543/2007 decided on 15.11.2008, where by allowing the complaint, the forum below directed the Opposite Party Nos.1 and 2 to take back old vehicle sold to the Complainant and to give him new Hero Honda Motor Cycle without any defects to the Complainant without charging anything from him. The Forum below also directed the Opposite Parties to pay R.T.O. taxes and octroi for the new vehicle to be given to the Complainant. Forum below also directed the Opposite Parties to pay Rs.5,000/- for mental agony and Rs.5,000/- towards costs of the complaint, the original Opposite Party No.1 – Aher Auto Pvt. Ltd., has filed this appeal.

2. The facts to the extent appeal may be stated as under:

Complainant had filed a consumer complaint against the Opposite Party No.1, dealer of the vehicle and Opposite Party No.2 – Hero Honda Motors Ltd., the manufacturer of the vehicle, alleging deficiency in service on their part. According to the Complainant he had purchased from Opposite Party No.1 on 12.08.2007 Hero Honda motorbike by paying Rs.53,000/- to the dealer. For purchase of the said vehicle he had taken loan from I.C.I.C.I. Finance Bank Ltd. However, it is the grievance of the Complainant that while giving delivery, the Opposite Parties gave him old model of 2005 and not sold him latest model of 2007. He also found that colour of the vehicle had fainted. There was defect in the engine, side panel was broken, there was defect in rear side light, vehicle was not easy to operate and oil was leaking. He made complaints with Opposite Party No.1. Opposite Party No.1 assured him orally that he would be given new vehicle by replacing the old vehicle after receiving new models from the Company. He accordingly got written from Opposite Party No.1 on cash memo on 01.10.2007 about the assurance. The Opposite Party No.1 also assured that if new parts are supplied by Opposite Party No.2 the same would be given to the Complainant by replacement. The Complainant found that this vehicle was a model of 2005, therefore, he sent registered notice to both the Opposite Parties on 03.10.2007 and requested them to give replacement of vehicle and wanted model of 2007, but no replacement was given and therefore, he filed consumer complaint against the Opposite Parties. He listed all the defects in the notice in the vehicle supplied to him. He also claimed Rs.1,00,000/- as damages or order of the Forum to direct both the Opposite Parties to replace the vehicle and give him brand new vehicle.

3. Opposite Parties filed written statement and admitted that they sold the vehicle to the Complainant, but they pleaded that Complainant was knowing that it was the model of 2005. Since it was old model, they had given trade discount of Rs.2,665/- to the Complainant. While giving delivery of the vehicle the Hero Honda bike was in proper order, there were no defects, but, since Complainant handled the vehicle roughly some defects developed for which Opposite Parties are not responsible. Opposite Parties pleaded that they had never assured to the Complainant to give replacement of the vehicle by giving him new model. Opposite Party No.1 also pleaded that it was not concerned with the entries made in the insurance policy issued by Insurance Company. Opposite Party No.2 pleaded that complaint was absolutely false, they had not tried to cheat the Complainant in any manner. They had sold vehicle of 2005 model and Complainant purchased the same with his open eyes and he availed the trade discount and when the possession of the vehicle was given to the Complainant it was in proper order and in roadworthy condition and Complainant was satisfied with roadworthiness of the said vehicle. Therefore, they prayed for dismissal of the complaint with costs.

4. On considering the documents and affidavits filed on record, forum below held that the Opposite Parties had accepted that in 2007 they sold him the vehicle (model of 2005) that itself was deficiency in service. They were guilty of unfair trade practice and therefore, they were liable to replace the vehicle and accordingly they allowed the complaint and passed the direction for replacement of the vehicle. Aggrieved thereby, Opposite Party No.1 – Aher Auto Pvt. Ltd., filed this appeal.

5. We heard submission of Mr. N. S. Parte, Advocate for the Appellant, Respondent No.1 in person and Mr. Rovan Menenzes, Advocate for Respondent No.2 Company, was also heard.

6. We are finding that the complainant was sold the vehicle in 2007, but the said vehicle was manufactured in 2005. The vehicle was booked on 12.08.2007 with the Appellant by Respondent No.1, which was a model -Achiever Drum Kick. According to Appellant this model was not manufactured in 2007, so it was the model of 2005. Complainant had inspected the vehicle and then purchased it. The sale letter was issued by Aher Auto Pvt. Ltd. in favour of Complainant. It clearly mentions Chassis No. 05MBAC02885 and Engine No.05MBAM03654. So 05, in the Chassis number and engine number confirms that the vehicle was manufactured in 2005. It was amply made clear in column no.8, that it was the model of December, 2005. This Sale Certificate was issued to the Complainant as per requirement of Rule 47 (a) (b) of the Motor Vehicles Rules in Form No.21. This sale certificate itself would make it very clear that Complainant/Respondent No.1 had purchased the vehicle which was a model of 2005. In tax certificate issued by Aher Auto Pvt. Ltd., vehicle was declared as Achiever Drum Kick – Magnetic Blue vehicle Chassis No. 05MBAC02885 and Engine No.05MBAM03654, this is dated 14.08.2007. Thus, these documents clearly proved that Complainant had purchased Hero Honda bike from Appellant which was a Model of 2005. Same is further made clear from R.T.O. Invoice document issued by Aher Auto Pvt. Ltd., Appellant herein. When this is so, the forum below appears to have wrongly held that the old vehicle was sold by the Appellant to the Respondent No.1. What is pertinent to note is the fact that vehicle booking form mentions that Complainant was given discount of Rs.2,665/- and this was on account of the fact that Complainant was purchasing the vehicle a model of 2005 in the year 2007. When this is so, it cannot be said that opposite Party Nos. 1 and 2 had deceived the complainant by selling him the model of 2005 in the year 2007. The documents on record clearly supported plea of Opposite Parties that it was the model of 2005 which had been sold to the Complainant with a discount of Rs.2,665/-. These facts themselves clearly prove that Appellant or Hero Honda manufacturing Company did not cheat the Complainant/Respondent No.1 and they had sold the vehicle to the Respondent No.1 as was available with them in 2007. For an old model, Complainant was given discount of Rs.2,665/-.

7. As regards the defects, it must be noted that Complainant had not produced any expert evidence before the District Forum. He had mentioned some defects on the back of booking form, but Appellant is ready to remove those defects which are of minor nature. Complainant was time and again asking for replacement of vehicle and therefore, he did not take his vehicle to the service centre of appellant for getting minor defects removed. Counsel for the Appellant stated that they were all the while ready and willing to remove the minor defects if the vehicle was made available to them at their service centre, but it was Respondent No.1 did not want those defects removed because he was interested that he should be given new model of 2007 and accordingly, Counsel for the Appellant/Opposite Party No.1, stated that the Achiever Drum Kick – Magnetic Blue model is not being manufactured at all, so replacement could not possible. Moreover, replacement can be ordered only if there are manufacturing defects in the vehicle sold by the dealer or manufacturing company. We have already mentioned above that Complainant had not adduced any evidence to prove that the vehicle sold to him by the Appellant was having inherent manufacturing defects. In the absence of any evidence, the Forum below wrongly held that vehicle sold to the Respondent No.1 was having manufacturing defects. No such findings could be given in the absence of evidence. So forum below erred in law by directing Appellant and Respondent No.2 to give replacement of the vehicle. Therefore, order passed by the forum below is appearing to be bad in law and cannot be sustained in law. As such, the appeal will have to be allowed to quash and set aside the judgment/award passed by the District Forum. Hence, we pass the following order:

Order:

(1) Appeal is allowed.

(2) The impugned judgment/award passed by the District Forum in Consumer Complaint No.543/2007 is quashed and set aside.

(3) The complaint stands dismissed.

(4) Parties are left to bear their own costs.

(5) However, we direct the Appellant to remove the defects in the vehicle, if vehicle is brought to their service centre within one month from the receipt of this order by the Complainant and that should be done free of costs.

(6) Inform parties accordingly.