Haryana

Panchkula

CC/475/2019

DEV VART. - Complainant(s)

Versus

HARMILAP AUTOMOBILES . - Opp.Party(s)

RANDEEP SINGH RANA.

21 Sep 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	475 of 2019
Date of Institution	:	26.08.2019
Date of Decision	:	21.09.2022

 

 

Dev Vart  aged 32 years son of Sh.Ranjeet Singh, resident of House No.173, VPO Bhurewala, Tehsil Naraingarh, District Ambala.

 

                                                                           ….Complainant

 

Versus

1.     Harmilap Automobiles Through its Proprietor Authorised Dealer Hero Chandigarh Road Near Petrol Pump, Raipur Rani, District Panchkula.

2.     Hero Motocorp Ltd. Through its Managing Director/Director/ Authorised Signatory 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110057.

….Opposite Parties

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

 

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

 

 

For the Parties:   Complainant in person alongwith Sh.Randeep Singh Rana, Advocate.

                        Sh. Kiran Pal Saini, Advocate for OP No.1.

                        Sh. Raj Kumar Narang, Advocate for OP No.2.

 

ORDER

(Dr. Pawan Kumar Saini, Member)

1.     The brief facts of the present complaint are that the complainant had purchased motorcycle bearing registration no.HR-04-H-9185 from the OP No.1 vide tax invoice no.106561854481 on 23.03.2018 for an amount of Rs.46,473/. The complainant had got the service of the vehicle time to time with the OP no.1. After driving the motorcycle for 6000km, the complainant found that there is manufacturing defect in the said motorcycle as the engine of the same is giving noise, leakage from engine, crank and piston voice. Thereafter, immediately the complainant contacted to OP No.1 for the rectification of the fault in the said vehicle but the OP No.1 told that after driving the motorcycle to 10000km, the said problem will remove from the same. Thereafter driving the said motorcycle for 10000km, the complainant visited OP No.1 and requested to remove the said defect many times but the OP No.1 did not pay any heed to the request of the complainant.  He tried to contact OP No.2 many times vide customer helpline no.1202707163 but till date no action has been taken in this regard. The complainant has also served a legal notice dated 02.08.2019 upon the OPs. Due to the act and conduct of OPs, the complainant has suffered a great deal of financial loss, mental agony and harassment; hence, the present complaint.

2.             Upon notice OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no locus-standi; complainant has not come with clean hands; concealed the true and material facts. On merits, it is stated that OP No.1 has no knowledge about the alleged defect in the motorcycle as the complainant has not approached to the OP no.1 about the said defect. Moreover the complainant had not got service done from the OP no.1 as per the manual book given by it at the time of its purchase. He had not contacted the OP No.1 for the rectification of the fault in the said vehicle as alleged. It is incorrect that the OP No.1 told that after driving the motor to 10000 kilometer, the said problem will remove from the same as alleged. The complainant had not visited the OP No.1 about the alleged defect in the motor cycle. The OP No.1 is the sub-dealer of M/s Regent Automobiles and if the complainant visited the OP No.1 about the said defect, then the OP no.1 forwarded his complaint to the main dealer i.e. Regent Automobiles, but he has not visited the agency of the OP no.1. So, there is no deficiency in service on the part of OP No.1 and prayed for dismissal of the present complaint.

        Upon notice OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable; no cause of action; complainant has not come with clean hands and suppressed material facts. On merits, OP No.2 denied that the vehicle is having any manufacturing defect as the engine of motorcycle is giving noise, leakage from engine, crank & piston voice. It is specifically denied that the complainant contacted the OP No.2 and OP No.2 gave no response. It is stated that no such complaints were received by the OP no.1 during the services Furthermore, the said vehicle is warranted for 5 years or 70000km, whichever is earliest. The OPs are very much ready and willing to provide services to the complainant under the purview of the Company’s warranty policy. It is also stated that the Ops always attended the complaints with utmost sincerity and repaired/replaced to the utmost satisfaction of the complainant and charged the complainant, within the purview of the company’s warranty policy. It is further stated that the complainant has concealed and miserably failed to place the warranty card/service book on record intentionally as the complainant is well aware that the repair carried out by the OPs is as per the warranty. It is submitted that the warranty card is the agreement between the consumer and the manufacturer and both the parties are bound by the terms of warranty and in the absence of the same the present complaint deserves dismissal. So there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the present complaint.

3.             To prove his case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-7 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 tendered affidavit Annexure R-1/A and closed the evidence. The ld. counsel for the OP No.2 has also tendered the affidavit Annexure R-2/A along with documents Annexure R2/1 to R2/4 and closed the evidence.

4.             We have heard the learned counsels for the parties and gone through the arguments filed by learned counsels for the complainant and OP No.2, record carefully and minutely.

5.             The purchase of motorcycle i.e. HF DLY self Alloy from OP No.1 vide tax invoice dated 23.03.2018(Annexure C-2) and amounting to Rs.46,473/- is not in dispute. The warranty of said for a period of 5 years or for a 70000KM is also not in dispute. The controversy between the parties is with regard to the defect in the engine of the said motorcycle, wherein, as per complaint, there was a manufacturing defect as there was noise in the engine as well as leakage of oil from engine crank and piston.

                 During arguments, the learned counsel for the complainant reiterating the averments made in the complaint contended that there was manufacturing defect in the engine of the motorcycle since its very purchase and thus, the complainant is entitled to the replacement of the said motorcycle with new one alongwith compensation of Rs.20,000/- and Rs.10,000/- on account of mental agony and harassment and litigations charges respectively.

6.             The OP no.1 has resisted the complaint stating that it is a sub-dealer of M/s Regent Automobiles and thus, is not responsible for any manufacturing defect in the engine, if any, as alleged by the complainant. The learned counsel reiterating the averments made in the written statement contended that the complainant had never visited the OP No.1 about the alleged defects in the motorcycle and that he had got the service of motorcycle from unauthorized agency and thus, no lapse and deficiency can be attributed on the part of OP no.1.

7.             The OP no.2, who is manufacturer of the motorcycle in question, has denied any manufacturing defect in the engine of the motorcycle. The learned counsel on behalf of the OP No.2 reiterating the averments made in the complaint as well as in the written arguments vehemently contended that there is/was no manufacturing defect in the engine as alleged. In support of his contention the learned counsel has placed on the following case laws:-

        i.      Sushila Automobiles Pvt. Limited Vs. Dr.Birendra Narain Prasad &                            Others. (2010) 3 CPJ 130(NC).

          ii.       Classic Automobiles Vs. Lila Nand Mishra & Anr. I(2010) CPJ 235 (NC).

          iii.       Md. Hassan Khalid Haidar Vs. General Motors India Pvt. Ltd. &    Ors.                       IV(2018) CPJ 115(NC).

          iv.      Gopal Aggarwal Vs. M/s Metro Motors & Anr.(Revision Petition No.1854           of 2011)  decided on 17.12.2019(NC).

8.             The learned counsel further contended that if a part of a defective engine is liable to be repaired, then whole engine is not required to be replaced or the whole vehicle is not liable to be replaced. It is contended that the necessary repairs were carried out and now there is no defect in the functioning of the motorcycle. It is further contended that the vehicle has now, as per version of the complainant, has covered a distance of 55000km and thus, no further relief is required to be given in the matter. The learned counsel in support of his contention has placed on several case laws which are as follows:-

1. Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, 2006(4)(SC)
2. Mahindra & Mahindra Vs. B.G.Thakurdesai reported as II (1993)CPJ 225(NC).
3. Hyundai Motor India Limited Vs. Er.Gopal K.Sahi & Another reported in 3(2009) CPJ 131(NC).
4. V.P.Kapoor & others Vs. Raj Chopra & others 1999(I) CPJ(NC) 31.
5. Jai Singh Vs. Haryana Agro Industries Corporation & Anr. I(1994) CPJ 350(SCDRC, Chandigarh).

 

                Concluding the arguments, the learned counsel contended that the vehicle is still within warranty and the OPs are ready to provide services to the complainant within limits of warranty conditions and thus, complaint is liable to be dismissed.

9.             Since the dispute between the parties was alleged qua the defects in the engine of the motorcycle in question, the matter was referred vide order dated 19.12.2019 to the Principal/Mechnical Instructor, ITI, Bitna for mechanical inspection of the vehicle. The mechanical inspection report dated 19.03.2020 was received in the Commission on 20.07.2021, according to which the bearings of connecting rod as well as timing chain were found in loose condition, thereby causing noise in the engine. Further, oil leakage from the gas kit was also detected. Thus, the contentions of the OPs No.1 & 2 denying any defect in the engine of the motorcycle has been found false, incorrect and baseless.

10.            The Technical Instructor Sh.Rajinder Singh, as per consent of both the parties, got replaced the major/vital mechanical parts like piston, piston ring, timing chain etc. with new one. As per inspection report, an expenses of Rs.5,335.94 were incurred. None of the parties filed the objections qua the said inspection report. The complainant on 09.09.2020 vide separate statement stated the he is not filing any objection qua the said inspection report but he has prayed for the granting of adequate compensation as per the merits of the case. Since the defects were found by the technical instructor as mentioned in his report, so the OPs were negligent and deficient while not giving any heed to the request of the complainant qua the defects in the engine; hence both the OPs are liable to compensate the complainant.

11.            Now adverting to the relief clause, we find that the complainant has prayed for the replacement of the motorcycle with new one along with the payment of compensation of Rs.20,000/- and Rs.10,000/- on account of mental agony, physical harassment and litigation charges respectively. As the defects have been removed with the replacement of necessary parts in the motorcycle, so replacement of the vehicle with new one is not fair and justified. The contention of the complainant as to the manufacturing defect in the vehicle is rejected because the inspection report is silent on this issue. Moreover, the vehicle has covered a distance of more than 55000km as per oral version of the complainant. However, the complainant is entitled to the refund of Rs.2,097/-, which he had paid under protest along with interest @9%p.a. w.e.f. 09.09.2020 till realization. Further, he is also entitled to the adequate compensation on account of the mental agony, physical harassment and litigation charges.  

12.            Before parting with this order, we deem it proper to direct the Principal, ITI, Bitna, Tehsil Kalka, District Panchkula to issue directions to all instructors including Sh.Rajender Singh, Mechanical Instructor to adhere strictly to the orders passed by the Commission. It is emphasized here that the Principal, ITI, Bitna, Tehsil Kalka, Distt. Panchkula was directed by the Commission vide order dated 19.12.2019 to depute any Mechanical Instructor to inspect the vehicle for ascertaining the manufacturing defect in the vehicle. In compliance of the said order, Sh.Rajender Singh, MVI submitted the inspection report dated 19.03.2020, according to which, he, apart from detecting the defects in the vehicle, got the vehicle repaired exceeding his jurisdiction without seeking permission or order from the Commission. Thus, Sh.Rajender Singh, MVI had acted beyond the scope of his duties as directed by the Commission. Therefore, Sh.Rajender Singh, MVI is warned to be careful in future and to observe precautions in future while complying with the order passed by the Commission.

 13.           As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. The OP No.1 is directed to refund Rs.2,097/- to the complainant( as paid to the instructor on 09.09.2020 under protest by the complainant) alongwith interest @9% p.a.(simple interest)w.e.f. 09.09.2020 till its actual realization.
2. The Op No.1 is directed to pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. The OP No.2 is directed to pay an amount of Rs.5,500/- as cost of litigation charges.

               

14.            The OPs No.1 & 2 shall comply with the directions/order within a period of 45 days from the date of communication of copy of this order to OPs No.1 & 2 failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint as well as to the Principal, ITI, Bitna, Tehsil Kalka, Distt. Panchkula and file be consigned to record room after due compliance. 

Announced: 21.09.2022

 

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

           Member                        Member                               President

 

Note: Each and every page of this order has been duly signed by me.

 

                                        Dr. Pawan Kumar Saini                                                                        Member