Haryana

Yamunanagar

CC/1303/2012

Suresh Kumar - Complainant(s)

Versus

Dang Automobiles - Opp.Party(s)

Avdesh Kumar Chaudhary

16 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1303 of 2012

                                                                                    Date of institution: 18.12.2012

                                                                                    Date of decision: 16.08.2016

Suresh Kumar aged about 29 years son of Sh. Banchi Lal, resident of H. No. 104D, Railway Colony, Jagadhri Workshop, Tehsil Jagadhri, District Yamuna Nagar.                             

                                                                            …Complainant.

                                                     Versus

 

1. Dang Automobiles, Barara Road, Near Sahani Carpets, Sadhaura, Tehsil Bilaspur, District Yamuna Nagar through its Proprietor/ Partner.
2. Krishna Automobiles, Near Goel Hospital Yamuna Nagar road, Jagadhri-135003 through its Propreitor/partner.
3. Bajaj Auto Limited, Akurdi Pune 411035 through its Managing Director.

                                                                                                                                                            …Respondents.                                       

 

Before: SH. ASHOK KUMAR GARG…………….. PRESIDENT

            SH. S.C.SHARMA………………………….MEMBER

 

Present:    Sh. Avdesh Kumar Chadhary, Advocate, counsel for complainant.  

                 Sh. S.C.Jindal, Advocate, counsel for Ops.

           

ORDER

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986 

2.                    Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased a motorcycle Bajaj Discover 125 CC bike bearing Chassis No. MD2DSJZZZUPG60671 Engine No. JZUBUG50794 vide bill No. 4614 dated 07.11.2011 for Rs. 47390/- from respondent No.1 (hereinafter referred as OP No.1) and got it financed from Bajaj Finance Ltd. OP No.3. After purchase of the motorcycle in question, the complainant used the same, but in the month of February 2012 complainant faced problem in respect of over heat and over race of the motorcycle, upon which complainant contacted the OP No.2 who is service centre on the advise of OP No.1. After checking, the motorcycle in question, the mechanic of the Op No.2 told to the complainant that said problem is due to defective battery. On this, OP No.2 replaced the defective battery on 24.04.2012 but it was utter dismay for the complainant that after replacing the said defective battery, the replaced battery again become defective and self start system of the motorcycle in question become inoperative, when the complainant starts his motorcycle, the engine suddenly breakdown. On this, complainant immediately called the OP No.1 and narrated his grievances to him. Again on 17.10.2012, complainant narrated all the facts to the OP No.2 and left his motorcycle to remove all the defects. When on 22.10.2012 complainant visited the service centre of Op No.2 for collecting the motorcycle in question then Op No.2 told to the complainant that they have removed all the defects of the motorcycle and further they have overhauled the engine of the motorcycle and also changed its battery and assured the complainant that now the motorcycle will ride smoothly. The OP No.2 demanded an amount of Rs. 1500/- from the complainant on account of overhauling the said engine but when the complainant objected the same on the ground that motorcycle in question was under warranty of 2 years or 30000 Kilometers in case of manufacturing defect then Op No.2 issued a fresh bill bearing No.22 dated 22.10.2012 amounting to Rs. 1069/- from the complainant on account of maintenance/ repair charges except labour. The complainant again objected for the same but the OP No.2 remained adamant and ultimately complainant paid the same amount of Rs. 1069/- to Op No.2. Thereafter, when the complainant gone to the market on 11.11.2012, the said motorcycle in question become dead stop and did not start. On this, the complainant brought the said motorcycle after loading the same in three wheeler to the service centre of Op No.2 and it was told that ring wall of the motorcycle have been damaged which were replaced by Op No.2 and charged Rs. 130/- vide bill No. WS09/120 dated 11.11.2012. Lastly, it has been mentioned that the motorcycle in question has become bundle of problem for the complainant and the said motorcycle is stand still and prayed for replacing the defective motorcycle with new one of the same standard i.e. Bajaj Discover 125 CC and further to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement jointly by taking some preliminary objections such as there is no manufacturing defect in the motorcycle in question; complainant has no cause of action to file the present complaint; complaint is frivolous and vexatious one; complainant has not come to this Forum with clean hands and has concealed the actual and material facts from this Forum; this Forum has got no jurisdiction to entertain and try the present complaint; there is no expert opinion or report filed in support of allegations which is required as per section 13 of C.P.Act and on merit it has been admitted that the motorcycle Bajaj Discover 125 CC was sold to the complainant on 07.11.2011 for Rs. 47,390/- and the complainant got it financed from Bajaj Finance Limited. It has been further admitted that motorcycle in question was having warranty of 24 months or 30000 kilometers against and manufacturing defects. It has been further mentioned that complainant has leveled flimsy allegations against the Ops whereas real facts are that the complainant brought his motorcycle for second free service on 27,02,2012 when the motorcycle in question had run 7005 KM. The oil was changed and general checkup including battery check, chain checkup and average set was done vide job card (Annexure R-1) and Rs. 460/- was charged from the complainant on account of only oil and filter change and change of clutch wire. As per owner manual, the first service of the vehicle is to be carried out within 30 days from the day of sale or 500 to 750 KMs which ever is earlier but the complainant has failed to follow the guidelines given to him. The complainant brought his motorcycle for third service on 23.04.2012 when the motorcycle had run 10900 Km. and Rs. 360/- was charged from the complainant on account of oil filter change. Again on 19.10.2012, complainant brought his motorcycle when the motorcycle in question had run 15726 KMs with the complaint that motorcycle in question is giving smoke. The job of cylinder block piston, valve set timing, chain tensioner was done free of costs whereas OPs had charged only Rs. 1069/- on account of change of oil, outside job, gasket and oil seal (Annexure R-3). Again complainant brought his motorcycle on 11.11.2012 when the vehicle had run 16794 KMs with the complaint that motorcycle in question is giving starting problem due to excess quantity of ethanol in petrol thereby vehicles experienced starting problem. The job of change of valve set was done free of costs and Rs. 130/- was charged from the complainant on account of oil seal and outside job (Annexure R-5 & R-6). After that complainant brought his motorcycle for paid service on 24.11.2012 when the motorcycle in question had run 16875 KMs (Job card Annexure R-7) and Rs. 510/- were charged on account of oil and filter change and spark plug from the complainant. The complainant had also raised the battery issue for the first time on 24.11.2012 after the sale of vehicle on 07.11.2011. Lastly, it has been mentioned that from all the five (5) job card, it is amply clear that complainant had never any problem of battery as alleged in these paragraphs which he is agitating before the Forum. As such, the complainant has filed the false and frivolous complaint against the OPs. The allegations leveled in para No.6 to 11 are totally manipulated false and without any basis and lastly prayed for dismissal of complaint as there was no deficiency in service on the part of OPs.

4.                     To prove the case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CX and photo copies of documents i.e. copy of RC as Annexure C-1, job sheet dated 22.10.2012 as Annexure C-2, Job sheet dated 11.11.2012 as Annexure C-3, Bill of purchase as Annexure C-4, copy of sale certificate as Annexure C-5, copy of form No.22 as Annexure C-6, Delivery challan as Annexure C-7, Insurance cover note as Annexure C-8, Service book of vehicle in question as Annexure C-9 to C-11 and closed the evidence on behalf of complainant.

5.                     On the other hand, counsel for the Ops tendered into evidence photo copies of documents i.e. job sheets, satisfaction voucher and repair bills as Annexure R-1 to R-7 and closed the evidence on behalf of OPs.

6.                     We have heard the counsel of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OPs reiterated the averments made in the reply and prayed for dismissal of complaint

7.                     During the pendency of complaint counsel for the complainant filed an application on 19.04.2015 for appointment of local commissioner to inspect the motorcycle in question and the same was allowed vide order dated 13.08.2015 in which the Principal of I.T.I. Yamuna Nagar was directed to appoint any Automobile Engineer/Instructor as a local commissioner and to report whether the motorcycle in question is in running condition or not and the engine of the motorcycle in question was having any manufacturing defect or not? In compliance of this order, local commissioner submitted his report on 22.09.2015 covering all the facts in detail. the local commissioner has specifically mentioned in reply to Question No.2 that motorcycle in question had run 18313.5 KM and motorcycle in question had been repaired three times i.e. on 19.10.2012 at 15726 KM, on 11.11.2012 at 16794 KM and on 24.11.2012 at 16875 KM and during this repair so many parts of the motorcycle in question were replaced. It has been specifically mentioned that motorcycle in question became in the position of overhauling just it had run only 2587KM. ( 18313-15726 = 2587) from which it is clearly established that there was manufacturing defect in the motorcycle in question and in the last para No.5 of the report it has been mentioned that above noted defects can be rectified/ removed by changing some parts i.e. Engine kit, Crank shaft, camshaft, connecting rod, gear pin and valve set and timing change etc.

8.                     From the perusal of job sheets Annexure C-2, C-3 and R-1 to R-7 it is clearly evident that motorcycle in question started giving troubles/ problems within a short span of time and most of the parts were replaced by OPNo.2 and this fact has been admitted by the Ops in their written statement under sub para ‘a’ to ‘e’ of main para 6 to 11. Further, from the perusal of local commissioner report it is also clearly evident that motorcycle in question become in the position of overhauling just after running 2587 KM. Further the mechanical engineer of ITI, Yamuna Nagar has specifically expressed his view that the motorcycle in question was having manufacturing defect which could be rectified by changing some parts suggested in the report. Although the counsel for the OPs has filed objections against the report of Local Commissioner on 16.11.2015 mentioning therein that complainant has purchased the motorcycle in question on 07.11.2011 whereas local commissioner has inspected the motorcycle in question on 21.09.2015 i.e. after a period of near about 4 years. So, this report is not reliable. Besides this, counsel for the OPs has also taken some other objections. However, the objections taken by the OPs does not carriage any weightage and not justified because it is admitted case of the OPs that the motorcycle in question was having warranty of 24 months or 30,000 KMs whichever is earlier but in the present case, as per report of the Local Commissioner, the motorcycle in question had run only 18313 KM at the time of his inspection on dated 21.09.2015. Moreover, the OPs has admitted in sub para No. A to E of main para No.6 to 11 of the written statement that on 27.02.2012, 23.04.2012, 19.10.2012, 11.11.2012 and 24.11.2012 motorcycle in question was repaired by OP No.2 and has been replaced so many major parts of the motorcycle in question free of costs except charging the amount on account of oil or change of filter etc. From the perusal of these dates, it is clearly evident that motorcycle in question has been repaired so many times by the OPs within a warranty period of 1 year. So, the arguments advanced by the counsel for the OPs are not tenable.

9.                     Further, the OPs have also failed to place on file any affidavit of any service engineer of their service centre in respect of that the motorcycle in question was not having any manufacturing defect. Even, the OPs have also not tendered into evidence any affidavit in support of their version.

10.                   In the circumstances noted above, we are of the considered view that there is a deficiency in service and unfair trade practice on the part of the OPs as the service centre i.e. OP No. 1 & 2 has totally failed to rectify/remove the defects in the motorcycle in question purchased by the complainant manufactured by OP No.3 and sold by OP No.1. Although, the some parts have been replaced by the OPs free of costs even then it is duly proved that motorcycle in question of the complainant almost remained with the service centre of OP No.2 with one problem or other and complainant could not enjoy the investment in purchasing the motorcycle in question and suffered mental agony, harassment at the hands of the OPs.

11.                   As a considerable time has been lapsed from the date of its purchase i.e. 07.11.2011, so, in the interest of justice, it will not be justified to order that motorcycle in question be replaced with new one. However, complainant can be compensated in other way i.e. by awarding compensation on account of harassment, mental agony as well as cost of repair and change of parts which are required to put the motorcycle in question in order as per local commissioner report.

12.                   Resultantly, we partly allow the complaint of complainant and direct the OPs to pay a sum of Rs. 15,000/- as compensation as cost of repair and change of parts which are to be required to be put in the motorcycle in question to bring it in proper running condition as per local commissioner report as well as mental agony and harassment and further to pay a sum of Rs. 3,000/- as litigation expenses.   Order be complied within a period of 30 days after preparation of copy of this order failing which complainant shall also be entitled to get interest at the rate of 7% per annum on the  awarded amount for the defaulting period and is at liberty to initiate the proceedings as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court 16.08.2016.

                                                                                    (ASHOK KUMAR GARG)

                                                                                      PRESIDENT

                                   

                                    (S.C.SHARMA)

                                     MEMBER