STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
U.T., CHANDIGARH
Appeal No. | | 171 of 2018 |
Date of Institution | | 13.06.2018 |
Date of Decision | | 10.08.2018 |
Hero Motocorpn Ltd., having its registered office at 34, Community Center, Basant Lok, Vasant Vihar, New Delhi-110057 and its Regional Office at SCO 367-368, first Floor, Sector-34A, Chandigarh-160022 through Mr.Manish Syal, Deputy Manager Service/Authorized Person of HMC
…Appellant
Versus
1. Arvind Kumar s/o Sh.Lakhmi Chand, resident of House NO.265, Mauli Jagran, Chandigarh.
2. M/s Charishma Goldwheels, Plot No.7, Indl. Area, Phase-1, Chandigarh, Authorized Dealer Hero Motorcorpn Ltd., through its M.D./Director/Authorized person.
3. ICICI Lombard General Insurance Co. Ltd., 414, Veer Savarkar Marg, Near Siddhi Vinayak Temple, Prabhadevi, Mumbai 400025
……Respondents
Appeal under Section 15 of the Consumer Protection Act,1986 against order dated 26.3.2018 passed by District Consumer Disputes Redressal Forum-II, U. T. Chandigarh in C.C.No.No. 210/2017.
Argued by: Mr.Satyaveer Singh, Advocate for the appellant.
Mr.Kanwaljit Singh,Advocate for respondent No.1
Mr.Rajnish Malhotra,Advocate for respondent No.3
BEFORE: JUSTICE JASBIR SINGH (RETD.), PRESIDENT
MRS. PADMA PANDEY, MEMBER
PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT
Appellant/Opposite Party No.2 has filed this appeal against order dated 26.3.2018 passed by the District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (in short ‘the Forum’ only), vide which complaint filed by respondent No.1/complainant was allowed.
2. As per facts on record, the complainant purchased a Super Splendor motorcycle from OP NO.1/respondent No.2 on 5.12.2016 for an amount of Rs.55,140/-. Appellant/OP No.2 is the manufacturer of the said motorcycle. The complainant got the motorcycle insured from OP No.3/respondent No.3. It is an admitted case that within 6 days of its purchase, the complainant noticed some defect in the starting lever/kick. He took motorcycle to the workshop of OP No.1 on 11.12.2016. He was told that after removing the defect, motorcycle will be delivered to him the next day. When on 12.6.2016 complainant visited the workshop of OP No.1 to collect his motorcycle, he was surprised to see that engine of the motorcycle was dismantled. It is his grievance that it was done without getting his consent. On 13.12.2016, he gave notice to the OPs for their above said act and made a request to change the motorcycle with a new one. It was his grievance that an old/repaired motorcycle had been sold to him. Even legal notice sent on 26.12.2016 failed to get any result. Under above circumstances, the complainant filed a consumer complaint before the Forum on 2.3.2017.
3. Upon notice, reply was filed by OP NO.2/appellant. OP No.1/respondent No.2 adopted the said reply. In its reply, appellant/OP NO.2 specifically stated that the motorcycle was brought to the workshop with a minor defect which was cured. Thereafter, many letters were written to the complainant to get possession of his motorcycle, however, he failed to turn up. It was denied that an old/repaired motorcycle was sold to the complainant, as alleged. Admittedly the motorcycle is still standing at the workshop of OP No.1/respondent No.2..
In the same manner, reply was filed by OP NO.3 stating that qua alleged manufacturing defect, no liability can be fastened upon it, being only an insurer of the motorcycle.
4. To the reply, rejoinder was filed by the complainant controverting all the pleas taken by OP No.2/appellant and reiterating the averments made in the complaint.
5. Both the parties led evidence. The Forum, on analysis of pleadings, documents on record, and the arguments addressed, allowed the complaint and directed OP No.1/respondent No.2 and OP No.2/appellant to refund the invoice price of motorcycle amounting to Rs.55,140/- alongwith compensation of Rs.15000/- for mental tension and harassment and Rs.5000/- towards litigation expenses. The amount awarded was ordered to be paid in a time bound manner, failing which, it was to entail penal consequences.
The Forum, when granting relief to the complainant, observed as under ;
“The complainant has purchased the Motorcycle Super Splendor SUP SPL 16 DRM on 5.12.2016 on payment of Rs.55,140/- vide Invoice dated 5.12.2016 Ann.C-1. Just after 6 days of the purchase, the motorcycle in question developed major fault and could not be started due to its free kick. The complainant took the motorcycle to the Service Centre i.e. Opposite Party No.1 on 11.12.2016 and later on 12.12.2016, visited the Service Centre to take check the status of repair, he found that whole of the engine of the motorcycle opened in the workshop (Ann.C-8 & C-9), without the consent of the complainant and the Service Centre Engineers failed to justify the dismantling of engine of the motorcycle to rectify the defect in the starting kick.
The OPs No.1 & 2 admittedly have opened/dismantled the engine of the motorcycle, however, claimed to have repaired the motorcycle in a roadworthy condition.
A brand new motorcycle, just after 5 days of its purchase, have developed major fault for which the whole of the engine of the motorcycle has been dismantled in the service centre, which stands proved from the photographs annexed with the complaint as Ann.C-8 & C-9, obviously lead to the conclusion that there was definitely a major manufacturing defect in the motorcycle which the complainant has purchased from Opposite Party No.1. The motorcycle is with Opposite Party NO.1 since 11.12.2016”
6 It was noticed by the Forum that engine of the motorcycle was dismantled without giving any information and without getting consent of the complainant. It was also noticed that to remove a minor defect, as alleged by the OPs of starting kick, it is not necessary to dismantle the entire engine of the motorcycle. At the time of arguments, it was vehemently contended by Counsel for the appellant that there was no manufacturing defect. However, when we look to the photographs C-8 & C-9, it is apparent that the entire engine was dismantled. In our opinion, such an exercise is not needed to repair minor defect qua starting lever/kick of the motorcycle. Otherwise also, the very fact that within 6 days of purchase of a new motorcycle its engine had to be dismantled to remove a defect, would indicate that there was a manufacturing defect in the motorcycle. The poor consumer had spent his hard-earned money to purchase a new motorcycle and he was put to lot of harassment by selling him a defective piece.
7. Counsel for the appellant has relied upon ratio of judgment of Hon’ble Supreme Court in the case titled as Jose Philip Mampilli Vs M/s Premier Automobiles Ltd. & Another 2004(1)CPJ 9 to contend that upon getting the minor defect removed in the motorcycle, it is fit for use and as such its replacement cannot be ordered. We are of the opinion that the facts of above referred case were altogether different and furthermore in the written statement filed by the appellant/OP No.2, it is nowhere specifically denied that engine was not dismantled. It is also not disclosed, if dismantled, for what purpose. No expert opinion has been placed on record to show that to repair a minor defect regarding starting lever/kick of motorcycle, its engine needs to be dismantled. Furthermore as stated in the earlier para of this order, engine was opened/dismantled without any notice to respondent No.1/complainant. We are of the opinion that the view rendered by the Forum is perfectly justified. No case is made out to interfere in the order, under challenge.
8. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, with no order as to costs. The order of the District Forum is upheld.
9. Certified copies of this order, be sent to the parties, free of charge.
10. The file be consigned to Record Room, after completion.
