25.05.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 is directed by the OPs challenging the judgment and order dated 31.12.2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas in C.C.Case No. 383 of 2013, directing the OPs to replace the two-wheeler of the Complainant by a new one of the same brand and model within one month from the date of the order and also to pay to the Complainant Rs. 3,000/- as cost, failing which a penalty of Rs. 50/- per diem shall be payable by the OPs.
Facts of the case, as emerging from the materials on records, are, in brief, that the Complainant/Respondent purchased a two-wheeler of ‘Honda Shine-make’ (Chassis No. E4JC36JBP7310667 and Engine No. JC36E77490904) from the Appellant/OP No. 2 under Challan No. 187 dt. 15.2.2013, with warranty for repair or replacement free of cost, within 24 months from the date of sale or upto 32000 km whichever is earlier, of those parts found with manufacturing defect.
However, after four months from the date of purchase the Respondent/ Complainant noticed that ‘every possible metal area’ of the said two-wheeler was rusted. Thereafter, when the Respondent/Complainant contacted the Appellant No. 2/OP No. 2, the Appellant No. 2/OP No. 2 agreed to replace only three parts, i.e. Fuel Tank, Muffler Assembly and affected nuts and bolts, but not all the rusted parts. Then the Complainant by his letter dated 6.8.2013 requested the Appellant/OP for replacement of the said two-wheeler by a new one, but the Appellants/OPs, in reply, reiterated their earlier offer for replacement of only those parts noted hereinbefore. Thereafter, the Respondent/Complainant by its letter dated 22.8.2013 again requested for replacement of all the rusted parts, but the Appellants/OPs did not respond to, as alleged. Under the above circumstances, the Complainant filed the Complaint concerned before the Ld. District Forum.
In course of hearing of the Complaint before the Ld. District Forum as the OPs/Appellants delayed in filing the Written Version, so the Ld. District Forum fixed the hearing ex parte. Thereafter, when the Ld. Advocate for the OPs/Appellants filed a petition recalling the order of ex parte, the Ld. District Forum fixed the next date for hearing of the said Petition subject to payment of cost of Rs. 5,000/- by the OPs. Then the Complainant/Respondent filed further petition recalling of the order of the said cost, but the Ld. District Forum proceeded with the case without disposing of the said petition and recording Hazira of the Ld. Advocate for the OPs/Appellants as stated. With this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner. Aggrieved by such order the OPs have preferred the present Appeal.
The Ld. Advocate for the Appellants/OPs submits that the Ld. District Forum erred in passing the judgment and order impugned without allowing the Appellants/OPs to contest the case by filing Written Version.
The Ld. Advocate continues that the Ld. District Forum committed further error in passing the judgment and order impugned without disposing of the petition by the Appellants/OPs for recalling the order related to ex parte hearing and imposition of disproportionate cost of Rs. 5,000/- for unintentional delay in filing the Written Version.
The Ld. Advocate also submits that the impugned judgment and order to the extent of replacement of the two-wheeler is not sustainable in law as the terms and conditions of the warranty do not cover the replacement of the two-wheeler and there was no prayer to such extent in the Petition of Complaint.
The Ld. Advocate further submits that the Ld. District Forum passed the impugned judgment and order without any support of proof of manufacturing defect in the two-wheeler as alleged in the Petition of Complaint.
The Ld. Advocate finally concludes that in view of the aforesaid errors in the impugned judgment and order the instant Appeal should be allowed and the judgment and order impugned be set aside and the case be remanded to the Ld. District Forum for adjudication afresh.
On the other hand, the Respondent/Complainant appearing in person submits that the Ld. District Forum did not commit any error in imposing the cost of Rs. 5,000/- for filing the Written Version as the Ld. Advocate for the OPs before the Ld. District Forum defaulted repeatedly in filing the Written Version before the Ld. District Forum on 19.11.2013 and 28.11.2013.
The Respondent/Complainant also submits that despite recognizing by the Appellants/OPs the rusting of Fuel Tank, Muffler Assembly and nuts & bolts, which was a manufacturing defect, the Appellants/OPs did not replace the same in breach of the terms and conditions of the warranty and that such breach of the terms and conditions of the warranty constitutes deficiency in service on the part of the Appellants/OPs.
The Respondent/Complainant concludes that in view of the aforesaid submission, the instant Appeal should be dismissed and the impugned judgment and order be affirmed, the same being lawful and proper.
We have heard both the sides, considered their respective submission and perused the materials on records.
The materials on records reveal that the Ld. District Forum imposed cost of Rs. 5,000/- for filing Written Version after the Ld. Advocate for the Appellants/OPs repeatedly defaulted on 19.11.2013 and 28.11.2013 in filing the Written Version despite being allowed sufficient opportunities by the Ld. District Forum. Further, the Ld. District Forum was not statutorily empowered to recall its own order, implying thereby that the non-consideration by the Ld. District Forum of the petition for recalling the order of the ex parte and cost is not an error on the part of the Ld. District Forum.
The terms and conditions of the warranty, as available on records (Running Page-18 of the Memo of Appeal), cover only the ‘repair or replacement’ of the parts, but not the two-wheeler as a whole. So, the failure on the part of the Appellants/OPs to replace the parts which got rusted, i.e. Fuel Tank, Chassis (Inside and Outside), Spark Plug, Pilot Foot Rest, Pillion Foot Rest/sets, Muffler Assembly, Silencer Pipe, Engine (Outside and possible inside), Centre and side stand, Fuel Tank Cap, T (Inside and Outside), Wheel bush, Handle Bar Holder, Metal Fuel Pipe over engine, Rear suspension with spring, various nuts and bolts, Kick Levers etc. as mentioned in the Petition of Complaint, indicates breach of terms and conditions of the warranty and resultant deficiency in service on the part of the Appellants/OPs.
The above facts and circumstances of the case lead us to allow the Appeal in part and modify the judgment and order impugned to the extent as follows:
- The Appellants/OPs are directed to replace the rusted parts as detailed hereinbefore within 45 days from the date of the order;
- The Appellants/OPs are further directed to pay Rs. 5,000/- as compensation for harassment suffered by the Respondent/Complainant and Rs. 1,000/- as litigation cost.
- The other directions as passed by the Ld. District Forum are hereby set aside.
