DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA
CC.No.296 of 26-07-2013
Decided on 24-12-2013
Mohit Verma aged about 24 years S/o Ashok Verma R/o # 3132, 2nd floor, Opposite District Courts, near bus stand, Bathinda, District Bathinda.
........Complainant
Versus
1.Corporate Office, Hero MotoCorp Ltd., 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110057, through its Managing Director/Manager.
2.Raunak Motors, Authorized dealer of Hero MotoCorp Ltd., Opposite ITI, Mansa Road, Bathinda (Punjab)-151001, through its Manager/Proprietor/Partner.
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986.
QUORUM
Smt.Vikramjit Kaur Soni, President.
Sh.Amarjeet Paul, Member.
Smt.Sukhwinder Kaur, Member.
Present:-
For the Complainant: Sh.Deepak Sehgal, counsel for the complainant.
For Opposite parties: Sh.Sunder Gupta, counsel for the opposite party No.1.
Opposite party No.2 ex-parte.
ORDER
VIKRAMJIT KAUR SONI, PRESIDENT:-
1. The instant complaint has been filed under section 12 of the Consumer Protection Act, 1986 as amended upto date (Here-in-after referred to as an 'Act') by the complainant. The brief facts of the complaint are that the complainant has purchased one motorcycle model Splender PRO, black colour, bearing temporary No.PB-03AC-7171, bearing engine No.HA10ELDHE28710 and bearing chassis No.MALHA10ASDHE27699 for Rs.48,412/- on dated 6.6.2013, from the opposite party No.2 with the warranty of 5 years. The opposite party No.2 also charged Rs.3000/- as registration fee; Rs.1451/- as insurance charges; Rs.150/- as temporary registration number fee; Rs.250/- as membership fee of Good Life Card and Rs.300/- as laminate coating of bike from the complainant. On 7.6.2013 i.e. the next day from the date of the purchase of the abovesaid motorcycle, its engine started giving the extra loud knocking noise and was not work properly. The complainant immediately approached the opposite party No.2, it after inspection of the engine of the abovesaid motorcycle brought it back to him and issued him the job sheet No.11440-03-RJC-0613-251 dated 7.6.2013. After 2/3 days after receiving the abovesaid motorcycle, the complainant found that its engine again started giving the extra loud knocking noise and was not working properly. The complainant again approached the opposite party No.2, it after the inspection of its engine instead of issuing the job card, immediately changed its complete chain set, but could not removed the defect in the engine. The opposite party No.2 told the complainant that the chain set is new and after running few kilometers on the road the defect regarding the noise would be removed. Thereafter the complainant number of times approached the opposite party No.2 but nothing has been done. The complainant further alleged that there are manufacturing defects in all these model of the motorcycle that are not curable. The complainant has got issued a legal notice to the opposite parties on dated 4.7.2013 but no reply has been given by them to the legal notice. Hence the present complaint filed by the complainant to seek the directions of this Forum to the opposite parties to return the amount of Rs.53,563/- to him alongwith cost and compensation or to give any additional or alternative relief for which he may be found entitled to.
2. The opposite party No.1 after appearing before this Forum has filed its separate written statement and pleaded that the abovesaid motorcycle purchased by the complainant on dated 6.6.2013, carries a manufacturer's warranty of 2 years/30000 Kms, whichever is earlier till 5.6.2015, thus he is well within his rights to seek the repairs of the defects, if any, from its authorized dealer/service centre all over the country under the aegis of the warranty, but he has failed to do so and has propelled this case, thus the present complaint is premature and is liable to be dismissed on this ground only. The opposite party No.1 has relied upon the law laid down by the Hon'ble Apex Court in the case cited as Maruti Udyog Limited Vs. Susheel Kumar Gabgotra & Another, I (2006) CPJ 3 (SC). The complainant has alleged manufacturing defect in the vehicle in question, the onus heavily lies on the complainant to prove the same by way of cogent and qualified expert opinion, but he has failed to prove his allegation. As per the manufacturer's warranty the components namely chain set and sprockets etc. are excluded from the aegis of the warranty as mentioned in the Limitations of Warranty. After the sale made on 6.6.2013, the complainant solitary approached the opposite party No.2 on dated 7.6.2013 and has not again approached the opposite parties for the redressal of any alleged defects/grievances, but got issued a legal notice dated 4.7.2013, (Within less than a month of the sale) for seeking the replacement of the abovesaid motorcycle and has approached this Forum on dated 25.7.2013 without exhausting the remedies as available to him under the aegis of the manufacturer's warranty. The relationship between the opposite party No.1 being the manufacturer of the abovesaid motorcycle and the opposite party No.2 is on principal to principal basis only. The opposite party No.2 has received the entire consideration and allied charges from the complainant. The complainant himself vide job card dated 7.6.2013 has expressed the full and complete satisfaction with the work done by the opposite party No.2. Having executed the abovesaid note of the satisfaction on dated 7.6.2013 and without showing any poof of any defect occurred thereinafter, the complainant has no cause of action to file and propel the present complaint. The opposite party No.1 did not receive any legal notice as is being claimed by the complainant. Being a businessman as admitted by the complainant, he plied the abovesaid vehicle for the commercial purpose and has not pleaded the Proviso of 'For earning his livelihood by means of self-employment' anywhere in the case, thus the present complaint is not maintainable under the 'Act'.
3. Sh.Umesh Kumar, Proprietor appeared in person on behalf of the opposite party No.2 before this Forum and has filed the written statement on its behalf, but after filing the written statement none appeared on behalf of opposite party No.2 after 18.12.2013, hence ex-parte proceedings are taken against it on dated 24.12.2013.
The opposite party No.2 has pleaded that the complainant has purchased one motorcycle model Splender PRO, black colour, bearing temporary No.PB-03AC-7171, bearing engine No.HA10ELDHE28710 and bearing chassis No.MALHA10ASDHE27699 for Rs.48,412/- with the registration fee of Rs.3000/-; Rs.1451/- as insurance charges; Rs.150/- as temporary registration number fee; Rs.250/- as membership fee of Good Life Card and Rs.300/- as laminate coating of bike was optional. The opposite party No.2 admitted that the vehicle in question is of best quality and 5 years warranty has been provided on it to the complainant. The complainant brought the abovesaid vehicle to the service centre and the job sheet No.11440-03-RJC-0631-251 has been issued to him. The opposite party No.2 further pleaded that no chain set of the abovesaid vehicle has been replaced, no part of the vehicle under warranty has been repaired or replaced without claiming the warranty as the customers gets it free of cost and the dealer gets it reimbursed from the company, so the fact that the chain set has been changed without giving the job card is wrong. The opposite party No.2 never refused to entertain the complainant, whereas it was the complainant who has been refusing the inspection of the bike and has been threatening the opposite party No.2 by saying that his father is in the press and will defame his service center if the whole amount would not be refunded to him or new bike with different colour would not be given to him within a month. On receiving the legal notice from the complainant, the opposite party No.2 telephonically informed him to get his bike inspected in the service centre, but he refused to do so and was adamant to file the complaint against the opposite party No.2. The opposite party No.2 is still ready to get the vehicle inspected and serviced in the service centre and further ready to repair or exchange any part of the abovesaid vehicle, if found any defect in it. As per the company policy the complainant is not entitled for the refund or the replacement of the vehicle in question.
4. The parties have led their evidence in support of their respective pleadings.
5. Arguments heard. The record alongwith written submissions submitted by the parties perused.
6. Admittedly, the complainant has purchased one motorcycle model Splender PRO, black colour, bearing temporary No.PB-03AC-7171, bearing engine No.HA10ELDHE28710 and bearing chassis No.MALHA10ASDHE27699 for Rs.48,412/- on dated 6.6.2013, from the opposite party No.2 with 5 years warranty and also paid the amount of Rs.3000/- as registration fee; Rs.1451/- as insurance charges; Rs.150/- as temporary registration number fee; Rs.250/- as membership fee of Good Life Card and Rs.300/- as laminate coating of the bike to the opposite party No.2.
7. The complainant submitted that his abovesaid vehicle became defective and he has complained the opposite party No.2 on dated 7.6.2013 i.e. on the next day from the date of its purchase, as its engine started giving the extra loud knocking noise and was not work properly. The complainant immediately approached the opposite party No.2, it after the inspection of the engine of the abovesaid motorcycle brought it back to him and issued him the job sheet No.11440-03-RJC-0613-251 dated 7.6.2013. After 2/3 days from receiving the abovesaid motorcycle, the complainant found that its engine again started giving the extra loud knocking noise and was not working properly. The complainant again approached the opposite party No.2, it after the inspection of its engine instead of issuing the job card, immediately changed its complete chain set, but could not removed the defect in the engine. The opposite party No.2 conveyed the complainant that the chain set is new and after running few kilometers on the road the defect regarding the noise would be removed. The complainant further submitted that he approached number of times to the opposite party No.2 but till date the engine of the bike in question is giving the extra loud knocking noise and is not working properly and the opposite party No.2 failed to do the needful.
8. On the other hand the submission of the opposite party No.1 is that there is no manufacturing defect in the abovesaid vehicle. Under the warranty period, the obligation of the opposite party No.2 is to repair or replace those parts, which are found defective. The complainant has failed to place on file any cogent and convincing evidence or qualified expert opinion from a Government Approved Laboratory to prove that there is any manufacturing defect in the abovesaid vehicle. As per the manufacturer's warranty the components namely chain set and sprockets etc. are excluded from the aegis of the warranty as per the Limitations of Warranty. After the purchase of the abovesaid vehicle on dated 6.6.2013, the complainant approached the opposite party No.2 on dated 7.6.2013 and has sent a legal notice dated 4.7.2013 for seeking the replacement of the abovesaid motorcycle and has approached this Forum on dated 25.7.2013 without exhausting the remedies as available to him under the manufacturer's warranty. On 7.6.2013, the complainant has received the vehicle in question being fully satisfied. The opposite party No.1 further submitted that the complainant has been plying the abovesaid vehicle for the commercial purpose and in his entire complaint he has not mentioned that he is using the abovesaid motorcycle for earning his livelihood or for self-employment. The relationship of the opposite party No.1 with the opposite party No.2 is on principal to principal basis only and the opposite party No.1 has no direct relation with the complainant. However, as a goodwill gesture, the opposite party No.1 is ready to repair the abovesaid motorcycle, if there is any defect in it.
9. A perusal of record placed on file shows that the complainant has purchased the abovesaid vehicle on dated 6.6.2013 from the opposite party No.2 and took the same to the opposite party No.2 for its repair on dated 7.6.2013 and the job sheet No.11440-03-RJC-0613-251 has been issued to him for the general repair. A perusal of this job sheet, Ex.C5, shows that the repair was done free of cost and the complainant has received the abovesaid vehicle duly serviced/repaired to his entire satisfaction and has duly signed this satisfaction note on the job sheet. Besides this job sheet no other job sheet has been produced on file and no document has been placed on file to show that there is any manufacturing defect in the abovesaid vehicle. Moreover 'Limitation of warranty' at serial No.7 provides that The warranty shall not apply:-'For normal phenomena like noise vibration, oil seepage etc., which do not affect the performance of the motorcycle'. The complainant has alleged that the complete chain set of the vehicle in question has been changed and no job card has been issued to him, but to prove his this version
he has not placed on file any evidence. The opposite party No.2 denied that the complete chain set has been changed. The opposite party No.2 has specifically mentioned in its written statement 'That there was no occasion or reason for the dealer to do it from his own pocket when the vehicle is under warranty, so the fact stated by the complainant that the chain set was changed without giving the job card is absolutely wrong'.
10. The complainant has alleged manufacturing defect in the abovesaid vehicle, but no such cogent and convincing evidence or an expert evidence placed on file by him to prove that there is any manufacturing defect in the vehicle in question.
11. The opposite party No.1 has taken the legal objection that the complainant has been plying the abovesaid vehicle for the commercial purpose and in his entire complaint he has not mentioned that he is using the abovesaid motorcycle for earning his livelihood or for self-employment. This objection of the opposite party No.1 is not tenable as the opposite parties have failed to prove that the complainant has been using the abovesaid vehicle for the commercial purpose, not only this the opposite party No.1 has not mentioned about for how many Kms. it plied so far till date. In para No.8 of his complaint the complainant has mentioned his business has suffered due to the unfair trade practice on the part of the opposite parties from the purchase of the motorcycle, this does not mean that he is carrying on the business with the help of the motorcycle or he is engaged in re-sale of the motorcycles, thus again the objection of the opposite party No.1 is not tenable.
12. Keeping in view the facts, circumstances and evidence placed on file we are of the considered opinion that the defect, if any, has occurred in the abovesaid vehicle is minor in nature that does not attribute to the 'manufacturing defect'. The opposite party Nos.1 and 2 being the service providers are liable to provide the services to the complainant as the motorcycle in question is within the warranty period.
13. Therefore in view of what has been discussed above this complaint is partly accepted with Rs.1000/- as cost and compensation against the opposite parties. The opposite party No.2 is directed to rectify the defect in the abovesaid vehicle to the entire satisfaction of the complainant and at the same time the complainant will sign the satisfaction note to this effect.
14. The compliance of this order be done within 30 days from the date of receipt of the copy of this order.
15. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.
Pronounced in open Forum:-
24-12-2013
(Vikramjit Kaur Soni)
President
(Amarjeet Paul)
Member
(Sukhwinder Kaur)
Member
