Decided on September 09,2010

Makwana Bharat Kumar Jethalal Appellant
Punjab Automobiles Respondents


- (1.) THE appellant original complainantbeing aggrieved by and dissatisfied with the order passed by consumer Disputes Redressal Forum, Ahmedabad (Rular) in Consumer Complaint No. 103 of 2007 on 11.3.2008, dismissing the complaint has filed this appeal on the grounds stated in the appeal memo. The appellant is the original complainant and respondents are original opponents and as such they have been referred to in their original nomenclature for the sake of convenience.
(2.) THE short facts of the case are that the complainant had purchased a Honda 150 c.c. motor cycle from the opponents on 3.2.2006 for Rs. 53,120. The said motorcycle had R.T.O registration being No. GJ -18 -P.8727. There was noise in the engine and the motorcycle was giving the mileage of 20 per litre. The motorcycle in question has been kept at opponent's service centre Royal Motors at Gandhinagar for service and repaired on 26.3.2006, 2.4.2006, 27.7.2006, 16.9.2006, 14.2.2007, 28.3.2007, 15.6.2007, 3.7.2007 and 9.8.2007. i.e. nine times. Since 9.8.2007 the motorcycle has been lying with Gandhinagar service centre. The trouble in regard to noise in the engine and less average had started during the warranty period. The complainant had served legal notice on the opponents who had not replied the same. The opponents have raised certain technical objections but most of their case is in denial. The opponents have admitted that the complainant was charged Rs. 185 on 9.8.2007, Rs. 250 on 28.3.2007 and Rs. 300 on 3.7.2007. It is also admitted fact that in the job card dated 9.8.2007 the complaint of noise in the engine is recorded. However, according to opponents the motorcycle was properly repaired and there was no noise after the repairing. As per opponents say the average of the vehicle was of 60 kms. Learned Forum held that the burden of proving manufacturing defect and the average of 20 kms or less was on the complainant. The complairit came to be dismissed by the Forum as the complainant has failed to discharge the burden of proof on him.
(3.) THE expression 'DEFECT' has been defined in Clause (f) of Section 2(1) of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act' for short). It means any fault, imperfection or shortcoming in the quality, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied or as claimed by the trader in any manner whatsoever in relation to any goods. A defect in the goods may be a inherent manufacturing defect or not. A sale or supply of defective goods gives a right to the consumer to seek appropriate redressal in Consumer Fora under the Act. It is a misconceived notion that unless manufacturing defect is pointed out, the goods cannot be declared defective goods, if having defect which causes inconvenience and discomfort and requires the purchaser to visit manufacturer and/or dealer time and again, have to be declared defective. In such cases mere allegations of defect is sufficient and onus to prove contrary lies on manufacturer. This legal position gets support from the ruling pronounced in the case of Endolite India Ltd v. Reena Aggarwal,2009 1 CPJ 564, and Nexus Computer Pvt. Ltd. v. K. Thenmozhi, 2009 4 CPJ 295. In both aforesaid authorities the Supreme Court authority pronounced in the case of Ghaziabad Development Authority v. Balbir Singh, 2004 2 CPJ 12, has been relied on. As far as facts of this case are concerned the motorcycle in question was purchased by the complainant on 3.2.2006 and immediately thereafter on 26.3.2006 it was taken to the opponents service centre at Gandhinagar with the complaint of noise in the machine and less average. Again it was taken to service centre on 2.4.2006, 27.7.2006. 16.9.2006, 14.2.2007, 28.3.2007, 15.6.2007, 3.7.2007 and 9.8.2007, i.e. nine times total. After 9.8.2007 the motorcycle has been lying with the Gandhinagar service centre. Complaint in regard to noise in machine and less average was raised by the complainant during warranty. The complainant had served a legal notice on the opponents, who did not care to reply the same. The say of the complainant in notice, therefore, remains uncontroverted. It is an admitted fact that in the job card dated 9.8.2007 the fact of noise in the engine is recorded. The opponents have further admitted that the complainant was charged Rs.185 on 9.8.2007, Rs. 250 on 28.3.2007 and Rs. 300 on 3.7.2007 for repairs. The complainant has thus proved that the motorcycle was defective from the very beginning during the warranty period by his affidavit read with the opponent's job cards. The onus, therefore, shifts on the opponents to prove that they had repaired the motor -bike completely and made it road worthy. The opponents at least could have taken such a report from their lab at Manesar Gurgaon. The opponents have not discharged the onus. Hence, allegation have to be believed that the vehicle in question was at least defective. Even if we come to conclusion that an inherent manufacturing defect is not established for want of an expert opinion to that effect in that case also it would be an unfair trade practice on the part of opponents to supply defective goods to the consumer.;

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