DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, RUPNAGAR

                                                                    Complaint Case No. 134 of 2022

                                                                    Date of Institution : 28.09.2022

                                                                    Date of Decision   :  09.06.2023                                         

Jaspreet Singh aged about 35 years son of Harcharan Singh resident of Village Goslan, P.O. Sihon Majra, Tehsil and District Rupnagar.

                                                     ………Complainant

                                                    Versus

1. Gurkirpa Motors, Bajaj Authorized Sale, Service Centre and Outlet, Chandigarh Road,Kurali,District  SAS Nagar,Mohali through its Proprietor.

    2.   Bajaj AutoHead Office,Bajaj Auto imited,Akurdi Pune 11035 through its  authorized signatory.

            ……………Opposite Parties

  QUORUM:

          SH. KULJIT SINGH, PRESIDENT

          SMT. RANVIR KAUR, MEMBER

ARGUED BY:

For complainant :           Sh. Satwant Singh Saini, Advocate

For OP 1 &2      :           Sh.Balwinder Singh, proprietor  

 ORDER

         RANVIR KAUR   MEMBER

    The applicant respectfully submits  as under :-

1. That the complainant has purchased new Bajaj Platina 100 ES Motorcycle, Black Colour on 24-03-2022,Chasis No.- MD2A76AX3MPG40826 Engine No.PFXPMG7S220 bearing Registration No.PB-12-AH-0544 from opposite party No.l. At the time of purchasing the above said vehicle, opposite party no.1 gave the full guarantee of the motorcycle.

2. That after some days the colour of the motorcycle has started to remove/faint from the fuel tank and shows the red colour under the original colour of motorcycle . It is clearly shows that opposite party no.1  has sold the old motorcycle to the complainant by saying as new one and issued the invoices and other documents of new motorcycle and also opposite party No.1 charged the price of new motorcycle.

3. That thereafter the complainant informed the opposite party no.1 and requested that the opposite party no.1 has sold the old motorcycle instead of new one many times and also requested the opposite party no.1 to change the motorcycle. But opposite party no.1 putting the matter on one pretext to the other . Thereafter the complainant has given a written complaint to opposite party no.1 but they have not changed the motorcycle of the complainant till today.

4. That the opposite parties have cheated with the complainant by sold the old motorcycle and received the price of new motorcycle and also issued the documents of new motorcycle. Thus both opposite  parties  have committed fraud with the complainant.

5.  That thereafter the complainant has sent legal notice dated 17.06.2022 to OP but neither the OP has given any reply to said notice nor change the motorcycle of the complainant with new one.

6.  That due to the  deficiency in services and unfair trade practice on  the part of the OPs the complainant has suffered , monetary physical , mental pain , agony , harassment.

             It is therefore prayed that the Ops may kindly be directed:-

1. To reverse the   amount of Rs. 69,971/- Which was occurred on the purchasing of the vehicle of the complainant along with interest @12 % PA from the date of receiving till its realization.
2.  To Pay Rs. 50,000/- as damages on account of monetary , physical ,mental pain, agony and harassment.
3.  To pay Rs. 25000/ as litigation expenses.

Reply By OPs

 It is respectfully submitted as under :-

1.  The true facts are that the complainant is working as a delivery boy in  Zomato company and he used the vehicle for delivery purposes. In order to deliver items, the complainant had also installed a tank bag on the fuel tank of the said motorcycle, due to the installation of  the said tank bag, the colour of the fuel tank of the motorcycle was removed / damaged.  The complainant also used to carry  heavy items on the fuel tank of the said motorcycle and due to that very reason, there were many scratches on the fuel tank of the motorcycle. Hence there was no fault on the part of the opposite parties as the scratches on the fuel tank was the fault of the complainant as stated above. It is further important to mention here that the complainant had made many modifications the said motorcycle by installing an extra switch on the handle bar and tank bag on the fuel tank.
2.  It is further important to mention here that the said motorcycle has already been driven for more than 26,000 Km , thus, after driving the motorcycle for more than 26,000 KM and modifying the motorcycle as per the requirement of the complainant , the said complainant can not claim deficiency in service on the part of the OPs ,rather it is the complainant who is at fault and he cannot take advantage of his own wrongs.
3.  The complainant is not entitled for any relief . The condition no.4 of Part-c is stated as below:-

                “Painted parts.only blistering or peeling off of paint are covered under warranty . Any defect arising out of the external damages or due to usage of protective covers/additional protective coatings advers atmospheric conditions etc. are not allowed like under warranty.”

4. The complainant has installed a tank bag on the fuel tank which resulted in the scratches as well as peeling of  the paint in spite of being informed about the warranty as provided in the owner’s manual.

We have heard the learned counsel for the parties and have gone through the record carefully. Persual of the pleadingsand evidence led by the complainant and OPs reveals as follows:-

1. Complainant alleges that OPs have cheated him by selling the old motorcycle  and received the price of new motorcycle . Ops have tried to rebut the allegations of the complainant on the basis that the complainant had made many modifications with the said motorcycle by installing extra switch,handle bar and tank bag etc. but both the ops did not object  to the expert report nor they rebutted it on any ground.
2.  While, the complainant has proved on record technical observation report Ex-C-8 dated 24-01-2023 by the expert i.e mechanical engineer with 30 years experience in automobile industry .
3. In his report he has observed that red paint has appeared on peeling of paint of the fuel tank of the motorcycle . His investigation has proved that  the old motorcycle after repainting it has been sold to the complainant .It is pertinent to mention here that it is an independent evidence by the expert not rebutted on record by the OPs.
4. It  is well settled law that under consumer Act the claim can’t be rejected on flimsy ground.
5. Consequently ,the case of the complainant succeeds as unfair trade practice is proved on record and the complainant is entitled to the return of the sale price of the motorcycle with 6%PA interest from the date of return of the old motorcycle by the complainant to the OP No.1 till its payment. Reciprocally the old motorcycle is returnable by the complainant to the OP No.1 since the day of order when the OP No.1 is liable to return the sale price of old motorcycle to the complainant.
6. There is no order as to interest since the day of purchase of the old motorcycle till its return as the complainant has used the motorcycle during the said period.
7. Both the OPs are jointly and severally are held to be liable o pay the complainant Rs. 5000/- for mental harassment and Rs.5500/- as litigation expenses.
8. Further as the facts of the case also make out prima-facie criminal liability . Complainant is at liberty to pursue his case in the said regard if so desired by him.
9. Copies of the order be sent to the parties, as permissible, under the rules.
10.  File be indexed and consigned to record room.

Announced

Date :09.06.2023

                                                                                                                                                                                    (Kuljit Singh)

                                                                                                                                                     President

                                                                                                                                               (Ranvir Kaur)

                                                                                                                                                  Member