MRS. NEENA SANDHU, MEMBER

1.       This is an appeal filed by the complainant against order dated 14.1.2010 passed by District Consumer Disputes Redressal Forum-II, UT, Chandigarh (for short hereinafter to be referred as District Forum) passed in complaint case No. 849 of 2009.

2.       Briefly stated the facts of the case are that on 3.10.2008 the complainant had purchased a Hero Honda Motorcycle (Hulk Disc Self Start) vide invoice No.2150 from OP No.1 and paid a sum of Rs.56,950/-. The complainant got his motor cycle serviced as per schedule mentioned in the maintenance booklet provided along with the motor cycle. It was submitted by the complainant that between the first and the second service, the motor cycle started giving trouble covering a distance of 1595 Kms, the engine of the motor cycle was seized and did not start. The above said motor cycle was sent to the agency i.e. OP No.1 on 28.11.2008 for repair and the same was repaired but not to the satisfaction of the complainant and the complainant was assured by OP No.1 that after running for a while, the machinery would be set and the defect would go. On the assurance of OP No.1, the complainant took the motor cycle and to the utter surprise, it again stopped on 3.2.2009 and was taken to the OP No.1, where the motor cycle was kept for 17 days, ultimately delivered on 20.2.2009 and this time some charges were also taken from the complainant. It was further submitted that the technical staff members unofficially told the complainant that this motor cycle was defective because it had seized engine and the crank was also making noise. The complainant requested the OPs for replacement of the motor cycle but OPs did not replace it as the same being defective and having manufacturing defect. The complainant issued a registered legal notice dated 10.2.2009 vide postal receipt dated 11.2.2009 to the OP No.2 as the OP No.1 refused to change the piece or refund the money of the vehicle but to no avail. It was further submitted by the complainant that he is a businessman and without the motorcycle, it become very difficult to attend to his business due to which the complainant had suffered a business loss. It was further submitted that on 6.5.2008 the engine of the motorcycle again seized and as such the complainant took the motorcycle to the premises of OP No.1 for repair and since then the motorcycle is in the custody of OP No.1 and despite repeated requests, the OP No.1 did not repair and return to the complainant. Hence, the complaint was filed.

3.       Reply was filed by OPs and admitted the factum of purchase of motorcycle from OP No.1 for a sum of Rs.56,950/-. It was denied that the engine of the motorcycle was seized and submitted that the complainant visited the premises of the OP No.1 for 1^st service of the above said motorcycle on 21.11.2008 and for the 2^nd service and running repairs on 3.2.2009 and took the vehicle fully satisfied on 20.2.2009. It was admitted that the motorcycle was serviced twice by OP No.1, free of cost and also admitted that the complainant again brought the motorcycle for repair on 3.2.2009, which was delivered to the complainant after 17 days. It was pleaded that the delay was occurred due to the fact that the complainant had insisted for check up of the motorcycle from the Service Engineer of OP No.2 only then he would take the delivery. The Service Engineer of OP No.2  visited the premises of OP No.1 and inspected the vehicle in the presence of complainant and assured the complainant that necessary repairs had been correctly accomplished by the OP No.1. Thereafter the complainant being fully satisfied took the delivery of the motorcycle on 20.2.2009. It was denied that the service staff/personnel of the OP No.1 unofficially informed the complainant that the said vehicle was a defective piece. It was vehemently denied that the vehicle in question suffers from any latent/patent manufacturing defect. It was further submitted that the complainant who parked the vehicle at the premises of the OP No.1 on 6.5.2009 at about 11.00 AM and left the place while the job card was being made out by the concerned mechanic stating that he did not want that the vehicle to be repaired, took the ignition key with him and also threatened the OP No.1 that he would now get a replacement through the Consumer Court. In the absence of ignition key, the motorcycle could not be started and repaired. A number of letters written to the complainant requesting him to hand over the ignition key so that the motorcycle could be repaired but neither the complainant handed over the ignition key nor the complainant ever visit the premises of OP No.1 for getting the motorcycle repaired. It was submitted that even today, if the complainant is willing to handover the ignition keys to the OP then the OPs are ready to repair the motorcycle as per the conditions of warranty. All other allegations leveled by the complainant in the complaint were denied and prayed for dismissal of the complaint as there was no deficiency in service on the part of OPs.

4.       The parties led their evidence in support of their contentions.

5.       The learned District Forum dismissed the complaint as the complaint has failed to make out any case of deficiency in service against the OPs.

6.          Aggrieved by the order passed by the learned District Forum, the present appeal has been filed by the complainant.  Sh.Vikas Cuccria, Advocate has appeared on behalf of appellant and Sh.Neeraj Sharma, Advocate has appeared on behalf of respondents.

7.       In appeal, it is contended by the appellant/complainant that the order passed by the learned District Forum is liable to be set aside on the ground that despite the fact, that work orders were attached with the complaint which goes to prove the case of the appellant/complainant beyond reasonable doubt and the deficiency in service on the part of OP. The mere finding that the repair could not have been done as the appellant/complainant did not hand over the ignition key is without any basis. The learned District Forum has overlooked the fact that the vehicle is lying with the OP ever since the month of May, 2009 and the OP has only approached the appellant/complainant a few day before the decision of the complaint, in order to just create a defence regarding the handing over the key. The learned District Forum has wrongly concluded that there is no deficiency in service and overlooked the entirety of facts. The learned District Forum at its own behest could have appointed a technical expert before coming to the conclusion that there is no manufacturing defect in the above said motor cycle. The learned District Forum has taken a very technical approach in deciding the matter and have not appreciated the law laid down from time to time, by the Hon’ble Apex Court, wherein it has been held that courts have to go beyond the technicalities while dispensing justice in the interest of equity and fair play. The learned District Forum has wrongly not marked the presence of the counsel for the appellant/complainant, despite the fact that the learned counsel appeared on the date immediate after the order was reserved and requested for making additional submissions in the case and submitted that the date was inadvertently noted as 15.1.2010 for arguments. Hence, it is prayed that the appeal may kindly be allowed and the impugned order passed by the learned District Forum may kindly be set aside.

8.       The learned counsel for the respondents/OPs argued that it is admitted fact that the above said motorcycle was purchased on 3.10.2008 for a sum of Rs.56,950/- from OP No.1  and also admitted that the said motorcycle was serviced by OP No.1. It is submitted that the engine of the above said motorcycle was not seized and there is no delay on the part of OPs in handing over the delivery of the motor cycle to the appellant/complainant. It is the appellant/complainant who himself insisted for check up of the motorcycle from the Service Engineer of OP No.2 i.e. Hero Honda Motors and only then he will take the delivery and as such, the Service Engineer of OP No.2  visited the premises of OP No.1 and inspected the vehicle in the presence of appellant/complainant and thereafter the appellant/complainant being fully satisfied took the delivery on 20.2.2009. It is submitted that the service staff/personnel of the OP No.1 unofficially never informed the appellant/complainant that the said vehicle was defective and the said vehicle was not having any latent/patent manufacturing defect. It is further argued that the appellant/complainant parked his motorcycle in the premises of OP No.1 on 6.5.2009 and took the ignition key with him.  In the absence of ignition key, the motorcycle could not be started and repaired. The OPs have written many letters to the appellant/complainant requesting the appellant/complainant to hand over the ignition key so that the motor cycle could be repaired but the appellant/complainant neither handed over the ignition key nor the appellant/complainant ever visited the premises of OP No.1. Hence, there is no deficiency in service on the part of OPs and prayed for the dismissal of the appeal.

9.       We have heard the learned counsel for both the parties and perused the record. The perusal of the zimini order dated 3.3.2010 shows that at the time of admission, the learned counsel for the appellant/complainant that instead of making submissions on merits, prayed for grant of relief on the basis of equity, good conscious and natural justice. Taking this submission made by the learned counsel for the appellant/complainant into consideration a notice was issued to the respondents/OPs, so that the matter could be settled amicably before the Lok Adalat. At the same time vide this order, the appellant /complainant was also directed to handover the original key of the vehicle to the OP No.1. In compliance with the order on 12.7.2010, it was stated by the learned counsel for the appellant/complainant that the appellant/complainant had already handed over the key of the motor cycle to the OP No.1. As this case, as per the desire of the learned counsel for the appellant/complainant was fixed before the Lok Adalat. On 19.7.2010, the learned counsel for the OPs stated at bar that the motor cycle of the appellant/complainant has been fully repaired and all the defects as alleged have been rectified and the same is ready to be handed over to the appellant/complainant but on 16.8.2010, after taking a trial of the above said motor cycle, the appellant/complainant Sh.Ravinder Singh stated before the Lok Adalat that he is not satisfied with the repair of the vehicle and prayed that matter be decided on merits. It is pertinent to mention here that the appellant/complainant has not mentioned any reason that why he is not satisfied with the repair and what else is likely to be done. 

10.     After going through the records, as per the report of the engineer of OP No.2 and in the absence of any document produced by the complainant in support of this allegation that there is a manufacturing defect in the above said motor cycle. We have come to the conclusion that there is no manufacturing defect in the above said motor cycle. Although there is no manufacturing defect in the motor cycle but at the same time, we cannot ignore this fact that after a short span from the purchase of the motor cycle and after only covering a distance of 1595 Kms, the complainant had come to the OP No.1 with the problem of seizure of engine, not only for once but three times in a year soon after the purchase of the motor cycle. From this, we can conclude that there is some defect in the motor cycle, moreover it has been admitted by the OP No.1 that during the repair, the OP No.1 has replaced the cylinder and piston of the said motor cycle.  Keeping these facts in mind, we are of the view that even though, there is no manufacturing defect but at the same time, we cannot ignore this fact that there is some defect which was not rectified properly by the OP No.1 and due to this reason, the complainant had to rush again and again for the repair to the OP No.1, which was a great cause of inconvenience to the appellant/complainant and ultimately out of frustration the appellant/complainant left the motorcycle at the premises of OP No.1.

11.     From the facts narrated above, it is apparent that the motor cycle of the appellant/complainant is not being repaired properly by the OP No.1. Because of this act of the OP No.1, the complainant had to suffer a lot. Hence, there is a deficiency in service on the part of OP No.1. In our opinion, due to this act of OP No.1, the OP No.2 is equally responsible and is deficient in service qua the complainant because the OP No. 2 being the manufacturer is liable for the act of OP No.1 who is his dealer. Thus the complainant is entitled for some compensation for mental agony and harassment. But at the same time it cannot be denied that there is a contributory negligence on the part of the appellant/complainant by leaving the motor cycle in the premises of the OP No.1 without handing over the ignition key for repair. Hence, the appellant/complainant is not entitled for any compensation on account of business loss as prayed for. Keeping all these facts into mind in our opinion the justice will be met if the OPs will repair the above said motor cycle to the satisfaction of the appellant/complainant and will pay a sum of Rs.5,000/- on account of mental agony and physical harassment.

12.     With the foregoing discussion, we allow the appeal filed by the complainant with a following direction to the OPs

1)                 To repair the motor cycle of the appellant/complainant to the satisfaction of the appellant/complainant.

2)                 We further direct the OPs to do this repair, free of cost and not to charge anything from the complainant for the replacement of any part, if any as the above said motor cycle is under a warranty till 2011.

3)                 We direct the OPs to pay a sum of Rs.5,000/- as compensation on account of mental agony and physical harassment along with litigation expenses of Rs.2,000/-.

          The OPs are directed to comply with the above said order jointly and severally within 30 days from the date of receipt of copy of this order, failing which an interest @ 12% will be charged on the compensation awarded by this Commission.

13.     In the meantime, we also direct the appellant/complainant to approach the OP No.1 within 10 days from the receipt of copy of this order and to cooperate with the OP No.1 for the repair of the above said motor cycle. We further direct the appellant/complainant to lift his motor cycle from the premises of the OP No.1 after the repair. 

14.          Copies of this order be sent to the parties, free of charge.  

Pronounced.                                                                   

22^nd December, 2010