S.G.MALHOTRA vs EM PEE MOTORS AND SCOOTERS (P) LTD.

THIS is an appeal filed against order dated 2.7.2001 passed by the District Consumer Disputes Redressal Forum -II, U.T., Chandigarh (for short hereinafter to be referred as the District Forum-II) in Complaint Case No. 288 of 1997.

THE facts giving rise to this appeal may be narrated breifly as under : THE complainant Sh. S.G. Malhotra purchased a scooter from respondent No. 1 i.e. Em Pee Motors and Scooters (P) Ltd. THE model of the scooter is NV Special and its colour was P Black. THE scooter was manufactured in the year 1997 and the same was purchased for a sum of Rs. 24,350/-. THE said scooter LML Vespa was manufactured by the respondent No. 2, LML Ltd. Co. THE Engine No. of the scooter was EOIKD-698992 and Chassis No. CIKD-698999. THE price of the scooter was paid in cash through Invoice No. 1723 dated 26.2.1997, vide photocopy attached. THE said scooter was registered with the Registration Authority and its Registration No. was given as CH-01-S-1201. The grievance of the complainant was that he used the scooter upto 25th March, 1997 and it was driven upto a distance of 600 kms. when it was found to be defective. At the time of the first service given by the dealer Em Pee Motors and Scooters (P) Ltd. certain parts of the scooter were replaced. These parts were piston kit, bearing hom, clutching, front nose and D/CP hood etc. Despite the replacement of thse parts, the scooter still remained defective and continued to give noise and trouble when driven. It was further contended that the colour of the front nose andD/CP hood was not similar to the colour of the scooter, which was P black and its look was quite unpleasant. The complainant has prayed for replacement of the scooter and in the alternative its price of Rs. 24, 350/-. Apart from it, a sum of Rs. 20,000/- was claimed as damages for mental agony, harassment and trouble suffered by the complainant. A sum of Rs. 1,000/- was claimed as expenses of the Legal Notice. In all, the complainant prayed for a sum of Rs. 45,350/- with interest @ 24% p.a.

Notices were served on the respondents, who were impleaded as opposite parties. The O.Ps. did not file a reply to the complaint. However, Sh. Sandeep Kapoor, Senior Service Engineer of respondent No. 2 filed his affidavit in this case, wherein he deposed, inter alia, that he checked the scooter of the complainant under the directions of the District Forum-II on 14.9.1998 and made the following observations : (1) Cylinder Head was leaking. (2) Bellow was found removed from the Carburetor Housing. (3) Engine Oil was found only about 100 ml as against required quantity of 250 ml. (4) Overall maintenance was found to be very bad. (5) Speedometer was not working. (6) Condition of tyres revealed running of scooter to be more than 15,000 kms.

Sh. Sandeep Kapoor further deposed that the complainant, Sh. S.G. Malhotra had not availed of the sixth service of the scooter and as such manufacturer''s warranty had lapsed in terms of contract of sale. It was also deposed that the complainant did not allow Sh. Sandeep Kapoor to attend service the vehicle. The condition of the scooter showed excessive wear and tear and premature ageing of the engine as also low average.

THE complainant had filed his own affidavit in support of the complaint case. THE District Forum-II held that the scooter in question contained defects, which were attributed more to the improper use, wrong handling and improper and bad maintenance than on account of any manufacturing defect in the vehicle. THE District Forum-II did not uphold the case of the complainant for replacement of the scooter. In the result, the complaint was dismissed with no orders as to costs. The complainant felt aggrieved against the order of the District Forum-II and has filed this appeal. The notice of the appeal was served on the respondents. None appeared for respondent No. 1. Mr. Vijay Sharma, Advocate appeared for respondent No. 2, Mr. Terminder Singh, Advocate has appeared for the appellant. The record of the complaint case was summoned from the District Forum-II.

WE have heard the learned Counsel for the appellant and the learned Counsel for the respondent No. 2 and have perused the impugned order and the record of the complaint case. The learned Counsel for the appellant vehemently argued that the respondent did not file any written reply to the complaint case and still the District Forum-II did not rely on the averments made by the complainant in the complaint case. It may be pointed out that even in the absence of a written statement to the complaint case, the averments made in the complaint are required to be proved by the complainant because the averments made in the complaint are mere pleadings and not the proof of the averments made therein. The District Forum-II took into consideration the pleadings made in the complaint case and the evidence led by the complainant in the shape of his affidavit and other documents as also the affidavit of Sh. S.P. Kapoor, Senior Service Engineer of the respondent No. 2. In this view of the matter, we find no merit in the contention of the learned Counsel for the appellant that in the absence of a written statement, the complaint should have been allowed by the District Forum-I. The finding of the District Forum-II regarding the scooter not suffering from any manufacturing defect was also assailed. The learned Counsel for the appellant further submitted that at the time of the first service, certain parts of the scooter were replaced and still the scooter did not give satisfactory performance. The learned Counsel for the respondent No. 2, on the other hand, denied the allegations of the appellant made in the complaint about the scooter in question having manufacturing defects. It was categorically pointed out that the scooter aforesaid was run for a distance of 15,000 kms. and its maintenance was quite poor. The sixth service, which was due under the terms of the warranty was not availed of by the complainant and the warranty lapsed in terms of contract of sale. The affidavit of Sh. Sandeep Kapoor, Senior Service Engineer of respondent No. 2, showed the defects in the scooter, and revealed that the scooter was not maintained and driven as per the manual and was rather imroperly maintained.

IT was specifically found on inspection by Sh. S.P. Kapoor that the condition of the tyres revealed running of the scooter to be more than 15,000 kms. IT is significant to note that the appellant, Sh. S.G. Malhotra did not file any counter affidavit to the affidavit of Sh. Sandeep Kapoor, nor he made a request to the Forum for cross-examining Sh. Sandeep Kapoor with reference to the contents of his affidavit. Therefore, the contents of the affidavit of Sh. Sandeep Kapoor have not been controverted and challenged and we find no valid reasons to disbelieve the averments made in the affidavit of Sh. Sandeep Kapoor, Senior Service Engineer of respondent No. 2. The affidavit of Sh. Sandeep Kapoor further shows that though he wanted to repair the scooter and remove the defects found by him but the complainant. S.G. Malhotra did not allow him to attend or service the vehicle. In the opinion of Sh. Sandeep Kapoor, the condition of the scooter showed excessive wear and tear and premature ageing of the engine as also low average. The District Forum-II, duly took into consideration the affidavit of Sh. Sandeep Kapoor, who had inspected the scooter, as per the orders of the District Forum-II itself and we do not find any error committed by the District Forum-II in arriving at the finding in the impugned order that there was no manufacturing defect in the scooter and consequently, there was no case made out for replacement of the scooter. Apart from it, the condition of scooter worsened because of its improper handling and poor maintenance on the part of the complainant himself. The complainant has, thus, failed to prove any deficiency in service on the part of the respondents and has failed to show any manufacturing defect in the scooter in question.

WE find no merit in this appeal, which is dismissed. However, in the circumstances of the case, the costs of the appeal shall be borne by the parties themselves. Copy of the order be supplied to the parties free of charges. Appeal dismissed.