Complainant Shiv Singh had filed the present complaint U/s 35 of the Consumer Protection Act against the opposite parties and praying that the directions may kindly be issued to opposite parties to replace the defective motorcycle No.PB-06AX-8857 with new one and also paid Rs.2 lacs as a loss. He has also claimed Rs.50,000/- as harassment and agony etc. in the interest of justice.
2. The case of the complainant in brief is that on 18.07.2020 he purchased a motorcycle mark Platina 100 ES Black colour registration No.PB-6AX-8857 from opposite party No.1 for a consideration of Rs.58,000/-. It was pleaded that after the purchase of 15 days of the said motorcycle he was coming to Gurdaspur and on road vehicle in question was stopped and its oil was checked by him which was OK. Complainant tried to start the motorcycle but he failed and the same was toed by him with three wheeler and handed over to opposite party No.1 who kept it for two days in their workshop and on third day handed over to the complainant on the assurance that now motorcycle in question is OK as they removed the defect. It was further pleaded that after few days motorcycle again started same defect and complainant made complaint to opposite party No.1 and they again kept it for two days in their workshop but they failed to remove the defect and advised the complainant to do first service of motorcycle. On their advise first service of motorcycle was done by the complainant on .10.2020 but despite the first service opposite party No.1 failed to remove the defect and on 16.12.2020 a complaint was made by the complainant to opposite party No.2 on his mobile 97801-43641 vide complaint No.ISR812571 who advised the complainant to contact with opposite party No.1 and they will remove the defect and as per advise of opposite party No.2 complainant contacted with opposite party No.1 many times but they failed to remove the defect. It was also pleaded that defective piece of motorcycle was supplied by the opposite parties which is clear cut deficiency in service on their part. It was next pleaded that complainant is doing the work of dairy and due to the defective motorcycle he could not do his work properly and suffered a loss of Rs.2 lacs, hence this complaint.
3. Upon notice opposite party No.1 appeared through their counsel and filed its written reply by taking the preliminary objections that complaint is not maintainable and requires to be dismissed with costs and complainant had concealed the many things in the complaint; no such report or opinion of any expert was submitted by the complainant except the allegations of the complaint; at the time of purchase of any vehicle dealer checks the same and purchaser also takes drive of the same and after getting the registration papers purchaser receives the delivery of vehicle; once any vehicle is delivered to any customer after its sale dealers have no knowledge as to how vehicle is used and managed by the customer; complainant had made false and baseless claim; there was no manufacturing defect and deficiency in service; complaint is premature as the problem in the sensor due to unauthorisedly washing of the motorcycle was reported on 12.12.2020 and the spare part ECU-EMS Assembly was ordered on the same day to the Bajaj Auto Ltd. which was received on 28.12.2020 but inspite of phone call to the complainant he did not appear with motorcycle to replace the spare part. On merits, it was stated that first service of the motorcycle was got by the complainant on 01.08.2020 and next service was due on 30.09.2020 and till 01.08.2020 there was no defect development in the said motorcycle as alleged. It was further stated that missing problem in the said motorcycle was reported by the complainant on Dec. 2020 i.e. 12.12.2020 and on enquiry it was admitted by him that he washed the bike at home and water entered in the sensor and due to this it was stopped functioning and on the same day order was placed with the manufacturer by opposite party No.1. It was also stated that on 16.12.2020 online complaint was lodged by the complainant with opposite party No.2 and spare part was received vide invoice dated 18.12.2020 on 28.12.2020 on the order dated 12.12.2020 but inspite of the service of letter No.RP964767660IN dated 28.01.2020 by opposite party No.1 complainant failed to contact them with motorcycle in question to replace the defective part of the same with new one spare part. It was next stated that there was no defect in the motorcycle and the same was occurred due to unauthorised wash by the complainant and there is no need to replace the motorcycle with new one as only one part ECU-EMS Assembly i.e. sensor is required to be replaced. All the averments made in the complaint have been denied and lastly prayed for dismissal of complaint with cost.
4. Notice was issued to opposite party No.2 but they did not appear and prefer to proceed exparte vide order dated 12.02.2021.
5. Counsels for the complaint to prove the case has filed affidavit of complainant with copies of documents Ex.C1 to Ex. C5.
6. On the other hand counsel for the opposite party No.2 has filed affidavit of Mandeep Singh Prop. with copies of document Ex.OP-1 to Ex.OP-5.
7. Rejoinder not filed by the complainant.
8. Written arguments filed by the complainant and opposite party No.1.
9. We have carefully examined all the documents/evidence produced on record for its contained statutory merit and have also judiciously considered and perused the arguments duly put forth by the learned counsels for the parties.
10. From the over all circumstances as enumerated in respective pleadings of the parties, It reveals that on 18.07.2020 complainant had purchased a motorcycle mark Platina 100 ES Black colour registration No.PB-6AX-8857 from opposite party No.1 as per copy of gate pass at Ex.C-3. The complainant has further pleaded that after 15 days of purchase of motorcycle while complainant was going somewhere, the vehicle in question stopped working on road and he tried to start the motorcycle but failed and the same was towed by him with three wheeler and handed over to opposite party No.1 who kept it for two days in their workshop but they failed to remove the defect and advised the complainant to do first service of motorcycle which was done on 01.08.2020 as per Ex.C-4. But opposite party No.1 failed to remove the defect. It is further alleged that on 16.12.2020 a complaint was made by the complainant to opposite party No.2 on his mobile 97801-43641 vide complaint No.ISR812571 and on their advise complainant contacted opposite party No.1 many times but they failed to remove the defect which is clear cut deficiency in service on their part.
11. The complainant neither placed on record any evidence of defect of motorcycle as mentioned in this complaint nor any document showing manufacturing defect of the said vehicle but prayed for its replacement alongwith compensation.
12. On the other hand the Ld. counsel for the opposite parties argues that there was no manufacturing defect and deficiency in service on their part as the problem in the sensor due to unauthorizedly washing of the motorcycle was reported on 12.12.2020 and the spare part ECU-EMS Assembly was ordered on the same day to the Bajaj Auto Ltd. which was received on 28.12.2020 but inspite of phone call to the complainant he did not appear with motorcycle to replace the spare part. It has been pertinently mentioned by the opposite party No.1 that the complainant got servicing of the motorcycle on 19.02.2021, 29.06.2021 and 07.02.2022 from other service centre i.e. Sindh Motors Dhariwal. During the course of arguments by the Ld. Counsel for the opposite party no.1 it has been pointed out that the vehicle has run for more than 13,000 K.M. as per the record of vehicle history placed in file.
From the above details and facts of the case it is seen that after the first service of the said vehicle on 01.08.2020 the defect was reported to opposite party No.1 in 12/2020 after 4 months time as admitted by opposite party No.1. The complainant fails to prove the manufacturing defect of the said vehicle by way of cogent evidence of expert report etc. Moreover, the motorcycle has run for more than 13,000 K.M. as per vehicle history page-3 in the file and regular servicing of the said motorcycle was being done by the complainant from M/s Sindh Motors after first service from Madaan Motors. So we are of the view that the complainant failed to justify his claim for replacement of the motorcycle in question whereas opposite party No.1 is still ready to replace the defective part called ECU-EMS assembly i.e. sensor of the motorcycle in question.
13. Therefore, as a sequel of the above discussion, facts and circumstances of the case, the commission is of considered opinion that the present complaint can be best disposed off by giving directions to both the parties to repair the motorcycle in question. So that the complainant may enjoy the facilities of purchased product.
14. Hence, the complainant is hereby directed to visit the workshop of opposite party no.1 alongwith the motorcycle in question within 15 days from the receipt of copy of orders and opposite party No.1 is further directed to rectify the defect by repairing/replacement the required part of the said motorcycle within seven days from the receipt of motorcycle in their service centre.
15. Present complaint stand disposed off accordingly with no order as to costs.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
17. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record room.
(Kiranjit Kaur Arora)
President
Announced: (B.S.Matharu)
April 06, 2023 Member
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