BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.476 of 2015

Date of Instt. 04.11.2015

Date of Decision :30.05.2016

Mrs.Agnes, aged about 45 years wife of Hardev Singh R/o 290-A, Rose Park, Jalandhar through attorney Hardev Singh son of Diwan Singh.

..........Complainant

Versus

1. Cargo Motors Punjab Pvt Ltd., 40, GT Road, Jalandhar through its Director/Manager/Authorized Representative.

2. Honda Motorcycle & Scooter India Pvt Ltd (HMSI), Plot No.1&2, Sector-3, IMT Manesar, District Gurgaon (Haryana)-122050 through its Director/MD/Authorized Representative.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Bhupinder Singh (President)

Sh.Parminder Sharma (Member)

Present: Complainant in person.

Sh.Avtar Manmohanjit Singh Adv., counsel for the OP No.1.

OP No.2 exparte.

Order

Bhupinder Singh (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that complainant purchased Activa Honda Scooter from OP No.1 on 27.5.2015 for a sum of Rs.50,093/- and paid Rs.54,800/- to the OP No.1 including the cost of accessories. Complainant submitted that within 20 days from the date of purchase, the said vehicle started giving trouble, it became out of order and did not start by battery switch as well as by kick. Complainant informed the OP No.1 and two mechanics of OP No.1 came to complainant and started the vehicle. Complainant got done first service of vehicle on 11.7.2015 but same defect again arose. On 23.8.2015 again the vehicle failed to start. The vehicle was taken by the OP No.1 and was returned to the complainant on 24.8.2015 after repair. However, on 27.8.2015 it again became out of order. OP No.1 was informed and they again took the vehicle to their workshop and returned it to the complainant on 31.8.2015 after repair. The complainant got done second service of the scooter on completion of 4000KM on 12.10.2015 but even thereafter the defect remained the same as the vehicle did not start with kick or battery switch. Again the OP No.1 took the vehicle to their workshop on 27.10.2015 and returned it to 31.10.2015. When the complainant checked the vehicle, the same defect of starting trouble was found and complainant left the vehicle with OP No.1. Since then, the vehicle has been in possession of OP No.1 and they failed to rectify the problem in the vehicle in question. The OP No.1 & 2 neither repaired the vehicle in question nor replaced the same with new one nor returned the amount of the vehicle. On such averments, the complainant has prayed for directing the Ops to refund the cost of the vehicle. He has also claimed compensation and litigation expenses.

2. Upon notice, OP No.1 appeared through counsel and filed written reply pleading that the vehicle came to the workshop of OP No.1 for general services and no defect was noted in the vehicle and the vehicle was returned to the complainant to his entire satisfaction. The complainant approached the OP and brought the vehicle to the workshop of OP No.1 on 27.10.2015 at 4697 KM reading. The vehicle of the complainant was checked and was in proper running condition. The complainant was accordingly informed to take the vehicle but he refused to take the vehicle back without any reason. Resultantly, OP issued letter and reminders which were duly received by the complainant but inspite of that the complainant was not turned-up to take the vehicle which is in quite working condition and there is no defect in the same. OP submitted that OP is under obligation to make the vehicle of the complainant fully functional by replacing parts, if any and not by replacing the vehicle unless the complainant prove any manufacturing/inherent defect in the vehicle in question and complainant has failed to do so. OP No.1 denied other material averments of the complainant.

3. Notice of this complaint was given to the OP No.2 but nobody has turned-up despite service and as such it was proceeded against exparte.

4. In support of his complaint, attorney holder of complainant has tendered into evidence affidavits Ex.CA and Ex.CB alongwith copies of documents Ex.C1 and Ex.C2 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavits Ex.OP/A to Ex.OP/C alongwith copies of documents Ex.OP1 to Ex.OP16 and closed evidence.

6. We have heard the Ld. counsel for the parties, minutely gone through the record and have appreciated the evidence produced on record by both the parties with the valuable assistance of Ld. counsels for the parties.

7. From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that complainant purchased Activa Honda Scooter from OP No.1 on 27.5.2015 vide invoice Ex.C1 for a sum of Rs.50,093/- and complainant paid Rs.54,800/- to the OP No.1 including the cost of accessories vide receipt Ex.C2. Complainant submitted that within 20 days from the date of purchase, the said vehicle started giving trouble, it became out of order and did not start by battery switch as well as by kick. Complainant informed the OP No.1 and two mechanics of OP No.1 came to complainant and started the vehicle. Complainant got done first service of vehicle on 11.7.2015 but same defect again arose. On 23.8.2015 again the vehicle failed to start. The vehicle was taken by the OP No.1 and was returned to the complainant on 24.8.2015 after repair. However, on 27.8.2015 it again became out of order. OP No.1 was informed and they again took the vehicle to their workshop and returned it to the complainant on 31.8.2015 after repair. The complainant got done second service of the scooter on completion of 4000KM on 12.10.2015 but even thereafter the defect remained the same as the vehicle did not start with kick or battery switch. Again the OP No.1 took the vehicle to their workshop on 27.10.2015 and returned it to 31.10.2015. When the complainant checked the vehicle, the same defect of starting trouble was found and complainant left the vehicle with OP No.1. Since then, the vehicle has been in possession of OP No.1 and they failed to rectify the problem in the vehicle in question. The OP No.1 & 2 neither repaired the vehicle in question nor replaced the same with new one nor returned the amount of the vehicle. Complainant submitted that all this amounts to deficiency in service on the part of the OPs qua the complainant.

8. Whereas the case of the OP No.1 is that the vehicle came to the workshop of OP No.1 for general services and no defect was noted in the vehicle and the vehicle was returned to the complainant to his entire satisfaction as is evident from job card dated 11.7.2015 Ex.OP10, job card dated 12.10.2015 Ex.OP16, job card dated 25.8.2015 Ex.OP8 and job card dated 28.10.2015 Ex.OP2. The complainant approached the OP and brought the vehicle to the workshop of OP No.1 on 27.10.2015 at 4697 KM reading. The vehicle of the complainant was checked and was in proper running condition. The complainant was accordingly informed to take the vehicle but he refused to take the vehicle back without any reason. Resultantly, OP issued letter dated 26.11.2015 Ex.OP4 and reminders dated 1.12.2015 Ex.OP13 and dated 15.12.2015 Ex.OP12 through registered post which were duly received by the complainant but inspite of that the complainant was not turned-up to take the vehicle which is in quite working condition and there is no defect in the same. Learned counsel for the OP submitted that OP is under obligation to make the vehicle of the complainant fully functional by replacing parts, if any and not by replacing the vehicle unless the complainant prove any manufacturing/inherent defect in the vehicle in question and complainant has failed to do so. As such, there is no deficiency of service on the part of the OP No.1 qua the complainant.

9. From the entire above discussion, we have come to the conclusion that the complainant purchased Activa Honda Scooter from OP No.1 on 27.5.2015 vide invoice Ex.C1. Complainant submitted that there was defect in the vehicle in question regarding starting of vehicle by battery switch as well as by through kick. The complainant approached the Ops through job sheet dated 28.10.2015 Ex.OP2, job sheet dated 12.10.2015 Ex.OP16, job sheet dated 25.8.2015 Ex.OP8, job sheet dated 11.7.2015 Ex.OP10 and all the time the OP returned the vehicle to the complainant after making services/repairs, if any to the satisfaction of the complainant under the signatures of the complainant as is evident from the aforesaid job sheets. Lastly, the complainant brought the vehicle in question to the workshop of OP No.1 on 27.10.2015 at a reading of 4697KM. The vehicle of the complainant was checked and OP found no defect in the vehicle in question. The OP asked the complainant to take the vehicle but the complainant refused to take the vehicle and thereafter OP issued letter dated 26.11.2015 Ex.OP14 asking the complainant that his vehicle after minor repairs, is ready for delivery and is fully functional and the complainant was requested to take the vehicle in question but the complainant did not turn-up. Thereafter, OP issued two reminders dated 1.12.2015 Ex.OPO13 and 15.12.2015 Ex.OP12. All the letters were sent to the complainant through registered post and complainant received these letters but he did not turn-up to take the vehicle from the OP. The complainant failed to prove on record any manufacturing defect in the vehicle in question. It has been held by Hon'ble Supreme Court of India in case “Maruti Udyog Ltd Vs. Susheel Kumar Gabgotra and another” 2006(2) CLT 150 that “the warranty condition clearly refers to the replacement of the defective part and not the car. This is not a case of silence of a contract of sale as to warranty. It was held that the Hon'ble High Court is not justified in directing replacement of the vehicle”. The same view has been taken by Hon'ble National Commission in case Classic Automobiles Vs Lila Nand Mishra and Anr 2010 (2) CLT 367.

10. Complainant, in the present case, failed to prove on record any manufacturing or inherent defect in the vehicle in question and every time whenever the complainant brought the vehicle in question to the workshop of the OP, they serviced/repaired the vehicle to the entire satisfaction of the complainant duly under the signatures of Hardev Singh husband of the complainant as is evident from the job sheets Ex.OP2, Ex.OP16, Ex.OP8, Ex.OP10, etc and lastly the complainant brought the vehicle to the workshop of OP No.1 on 27.10.2015 at reading of 4697KM which fully proved that the vehicle of the complainant i.e. Activa Honda Scooter run on the road 4697KM within period of five months i.e. about 1000KM per month. The vehicle of the complainant is ready after minor repairs and the OP sent three letters through registered post Ex.OP14, Ex.OP13 and Ex.OP12 to the complainant, asking the complainant to take the vehicle as it is fully functional and without any defect but the complainant did not turn-up. As such, we do not find any deficiency in service on the part of the OP qua the complainant.

11. Resultantly, we hold that the present complaint is without merit and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Bhupinder Singh

30.05.2016 Member President