(Delivered on 05/05/2022)

PER SHRI A. Z. KHWAJA, HON’BLE JUDICIAL  MEMBER.`

1.         Appellant Mr. Jitendra Hiraman Gaikwad, has preferred the present appeal under Section 15 of the Consumer Protection Act, 1986 feeling aggrieved by the impugned judgment and  order dated 26/10/2018 passed by the learned Additional District Consumer Commission, Nagpur  in Consumer Complaint No. CC/16/131, by which the complaint against the respondent Nos. 1&2 relating to the deficiency in service came to be dismissed.

2.         Short facts leading to filing of the present complaint may be narrated as under,

            Complainant/appellant – Mr. Jitendra Gaikwad claims to be resident of Kinhala, Post Ridhora, Tah. Hingna, District Nagpur. The complainant  was in need of two wheeler  and so he purchased  one  Passion Pro DRS Case Sport Red from the O.P.No.1/respondent No. 1-Thaparsons Motors (Dealer) for  price of Rs. 57,668/-. The O.P.No. 1/respondent No. 1 has also issued a receipt  to the complainant dated 31/10/2015. The O.P.No.1/respondent No. 1 also hand over the vehicle to the complainant after due registration from the Transport Department and papers were also handed over to the complainant.  The complainant  has alleged that  the O.P. No. 1- Dealer  had also taken the signatures  on the blank form forcibly from him after taking  the delivery of the vehicle and  after using the same  it was noticed  by the complainant  that  the vehicle  delivered to the complainant  was old one and some of the parts  like  Piston cover, Piston, Engine, Shockup, Nut-bolts were found  rusted and seem to be old.  The complainant then went again to the O.P.No. 1- Dealer and informed the same to him.  The complainant also told him that the vehicle delivered to him was old one  and not a new vehicle as assured but the O.P. No. 1 told the complainant that the vehicle was now duly registered by the Transport Department. On the next date i.e. on 04/11/2015 the complainant again found that the machine parts were rusted  and so handed over the vehicle to the O.P.No. 1.  The O.P.No. 1 then called him on 12/11/2015 and told him that  the piston was replaced and to take the delivery of the vehicle. The complainant took the delivery of the vehicle but found that the piston was not replaced but polished.  The complainant  then again took  the vehicle  to the O.P. No. 1 on 01/12/2015, 30/01/2016 and 03/02/2016 for servicing  but the grievances of the  complainant  regarding  the vehicle  were not redressed  and parts were  also not replaced. The complainant   was convinced that  he was given  delivery of  one old  and defective vehicle  and so the O.P. No. 1 had committed deficiency  in service.  The complainant then lodged  the present complaint  with a prayer that he may be  provided with another  new vehicle  or he may be paid back  the price of Rs. 57,568/- along with  interest at the rate of 18% p.a. as well as compensation  towards physical and mental harassment  and cost of litigation.

3.         The O.P.Nos.1&2 appeared and filed their  written  version. The O.Ps. denied  that the complainant  was  provided  with old vehicle  or that the machine  parts were in a  rusted  condition  when the delivery was given. On the contrary  the O.P. No. 1 has taken a plea that  after the  complainant  took delivery  of the vehicle,  he came to know that  some new vehicles were  received by the  dealer  having   new graphics  and so the complainant  was  avoiding  to keep the vehicle  in the hope of getting  a  new  one.  Piston and other parts were situated inside the vehicle and so there was no question of  there getting rusted.  The O.Ps. therefore, prayed that  complaint  be dismissed.

4.         The learned Additional District Consumer Commission, Nagpur thereafter went through the documents filed on record by both the parties and also heard the learned advocate by the complainant and O.Ps. The learned Additional District Consumer Commission, Nagpur  thereafter gave a finding that  the  complainant  failed  to  show that  there were  manufacture defects in the  parts of the two wheeler and further  that  the  complainant has  failed to  establish  that  there was deficiency  in service  on the part of the O.P. Nos. 1&2. The learned Additional District Consumer Commission, Nagpur therefore dismissed the complaint filed by the complainant by passing impugned order dated 26/10/2018. Against this order dated 26/10/2018 the present appellant has come up in appeal.

5.         We have heard Mr. A.T. Sawal, learned advocate for the appellant /complainant and also gone through the written notes of argument filed by the respondent Nos.1&2 on record. There is no serious dispute that the complainant had purchased one two wheeler namely Passion Pro DRS Cast Sport Red from the respondent No.1/O.P.No. 1 for  price of Rs. 57,668/- on 31/10/2015. The complainant  has come with the specific  case that  after taking  delivery of the  vehicle  it was noticed by him  that  some parts of the vehicle  namely  piston, Shockup, etc. were found  to be rusted and  vehicle  was also   giving  less mileage  then was promised by the respondent No. 1/O.P.No. 1. It is not in dispute that there after the complainant approached the respondent No. 1/O.P.No. 1- Dealer  from time to time and  brought  this fact to the knowledge of the respondent No.1/O.P.No. 1- Dealer. It is not in dispute that the complainant has sent the vehicle for servicing and repairs on 01/12/2015, 30/01/2016 and 03/02/2016. The complainant  has alleged that  though  the vehicle  was  sent for necessary  repairs, proper  repairs and replacement  of parts was not  carried  out by the O.P.No. 1- Dealer. On this aspect the complainant himself has filed on record several documents including copy of job cards which only go to point out that  the necessary  repairs were  carried out by the O.P.No. 1- Dealer from time to time.  Foremost contention of the complainant /appellant is that after taking the delivery the vehicle was found to be old one. In other word it was manufactured much earlier. Secondly, it is contended that even the material  parts of the two wheeler like piston, shockup, etc, were old one and were getting rusted. On this aspect the complainant has heavily relied upon several photographs to show that the piston of the vehicle delivered to him was found to be in rusted condition.

6.         If we go through the written version filed by the O.P. Nos. 1&2.  The O.P. Nos. 1&2 both have denied this aspect categorically.  The O.P.No. 1 have also taken a plea that the necessary repairs and polishing of the part was also carried out. Further the O.P.Nos. 1&2 have taken a plea that internal parts are duly covered and are not visible and so there is no question of there getting rusted. According to the O.P.Nos. 1&2 vehicle was thoroughly  inspected and after inspection was delivered back on 01/12/2015 and job card regarding  the same is also on record. The O.P.Nos. 1&2 have contended that   the grievance of the complainant relating to the piston was only imaginary and was nothing but a ploy to get fresh vehicle.  We have  also carefully gone through the documents placed on record by the complainant. Except the  photographs complainant  has not placed on record  any  material which could go to show that  the internal parts of the vehicle were  in rusted condition.  It was open  to the complainant  to place on record the report  of some technical expert on this aspect but  same is also not placed on record so as to  show  that  there was some manufacturing  defect in the vehicle.  The documents and papers placed by the complainant only go to establish that the O.P.No. 1- Dealer had not only given free service to the vehicle but had also carried out repairs on the say of the complainant but it seems that the complainant was not at all satisfied.

7.         If we go through  the impugned  order dated 26/10/2018 passed by the learned Additional District Consumer Commission, Nagpur  has also elaborately  dealt with  these aspect  in para No. 6 and 7 of the judgment  and has observed that  there was no material  to  draw such  inference as alleged by the complainant.

8.         So far as next contention of the appellant/complainant is concerned, the appellant/ complainant  has contended  that the vehicle delivered to him was  old one and was  manufactured earlier contrary to  the assurance and therefore the complainant  was entitled  for new vehicle. The appellant /complainant has submitted that the learned Additional District Consumer Commission, Nagpur has not appreciated the fact that no documents regarding date of manufactured  were placed  on record by the O.P.No. 1. However, it is necessary to mention that before the delivery of the vehicle the O.P.No. 1 had duly registered the vehicle with Transport Department. It is  necessary to point out that the Transport Department  takes every care to see that  the vehicle  registered  is manufactured  within  a stipulate  period  and without  verification  of date  of  manufacture  no registration  is done.  The learned Additional District Consumer Commission, Nagpur has mentioned that the date of manufacture is also specifically mentioned.  It was therefore not at all necessary for the O.P. Nos. 1&2 to place on record  any further documents relating to manufacture of the vehicle.  The O.P. No 1 has also pointed out that the vehicle was duly inspected and registered by the Regional Transport Authority, Nagpur on 02/11/2015. Further the sale certificate issued by the O.P. No. 1- Dealer also shows the manufacture year  of vehicle `is 2015. As such this contention, raised by the appellant/complainant is devoid of any substance.  In the light of  aforesaid  facts we find our self  unable to accept  the contentions advanced by the learned advocate for the appellant/complainant that  finding  given  by the learned Additional District Consumer Commission, Nagpur were erroneous  in nature  or that  they  were given  without  application  of proper  mind. As a result we proceed to pass the following order.

ORDER

i.          Appeal is hereby dismissed.

ii.          Appellant  to bear his own costs as well as costs of the respondents.

iii.         Copy of order be furnished  to both the parties, free of cost.