DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> <br /> C.C.No.67 of 12.3.2007<br /> Decided on : 23.5.2007 <br /> <br /> Sanjeev Kumar S/o Sh. Udey Bhavan, R/o H. No. 11972, Street No. 2, Naruana Road, Dashmesh Nagar, Bathinda.<br /> ...... Complainant<br /> <br /> Versus. <br /> <br /> 1.Hero Honda Motors Ltd., through its Chairman-cum-Managing Director, 34, Community Center, Basant Lok, Vasant Vihar, New Delhi-110057.<br /> 2.Kamal Enterprises through its Proprietor, Authorised dealer of Hero Honda Motors Ltd., Bibi Wala Road, Bathinda.<br /> ...... Opposite parties<br /> <br /> Complaint under section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:<br /> <br /> Sh.Lakhbir Singh, President<br /> Sh. H.L. Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Navneet Kumar Garg, Advocate<br /> For the opposite parties : Sh. Sandeep Baghla, Advocate <br /> <br /> O R D E R.<br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Opposite party No1 is the manufacturer of Hero Honda Splendor Plus Motorcycles. Opposite party No.2 is the dealer of opposite party No.1. Complainant had purchased Hero Honda Splendor Plus Motorcycle on 8.12.2006, the engine No. & Chassis No. of which were 06LISE 03423 and 06L16F 22987 respectively. It was warranted for a period of two years or 30,000 Kms from the date of purchase, whichever is earlier. It was maintained by the complainant according to the instructions in the warranty card. He got it serviced twice according to specifications. Soon after the purchase, following manufacturing defects/problems were noticed:-<br /> ( i ) Abnormal noise was coming from the engine.<br /> ( ii ) Central lock was not working properly.<br /> ( iii ) It was giving less average i.e. 40 Kms per litre than the one claimed by the opposite parties. <br /> 2. On 22.7.2007, he visited the service station of the opposite parties at Bathinda running under the control of opposite party No.2. Complaints were made about the above mentioned defects. Foreman and other Technicians tried their best to rectify them, but they could not be removed. Foreman directed him to come after seven days as they wanted to check the Motorcycle in the presence and supervision of Engineers of opposite party No.1. When he visited the service station after seven days, Foreman told him that defects cannot be removed and Motorcycle has to be replaced. He was further told to come after seven days as on that day the Engineers were to come and they would finally approve the replacement of the motor bike. After seven days, he visited the service station. Foreman and Technicians tried their best to rectify the defects, but they could not remove them. While servicing the Motorcycle, opposite parties broke the rear flapper. Workmen did not behave properly. He was asked by them in rude manner to go away with the Motorcycle. Opposite parties refused to repair or replace the vehicle. He got issued legal notice to opposite party No.2 through his counsel. Reply of the same was sent stating that Motorcycle be brought on any working day for necessary repairs. On 3.3.2007, he alongwith his colleague Sh. Hukam Chand S/o Sadhu Ram, R/o Bathinda visited opposite party No.2. He (complainant) was misbehaved and unparliamentary language was used to him. Opposite parties flately refused to repair or replace the Motorcycle. In these circumstances, he alleges deficiency in service on the part of the opposite parties. Accordingly, complaint has been filed under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) seeking direction from this Forum to the opposite parties to replace the Motorcycle and to pay compensation of Rs.50,000/-, besides costs of the complaint.<br /> 3. On being put to notice, opposite parties filed reply taking legal objections that complaint is not maintainable in the present form; complainant has not come with clean hands; he has not complied with provisions of section 13 (1)(c); intricate and contentious questions of law and facts are involved which require oral and voluminous documentary evidence and as such, matter cannot be adjudicated by this Forum in summary procedure; complainant himself is a wrong doer and complaint is false and frivolous. On merits, sale of the Motorcycle on 8.12.2006 stands admitted. There is warranty of two years or 30,000 Kms whichever is earlier. Inter-alia, their plea is that Motorcycle was brought for service twice. First service was done on 22.12.2006 when it had run 663 Kms. Second service was availed on 30.1.2007 when it had run 2733 Kms. Alleged defects were not pointed out on both the occasions. Motorcycle was received after full satisfaction as is evident from the job cards. They deny manufacturing defects in the product. Had there been any problem, complainant could notify them at the time of getting the Motorcycle serviced. They deny the defects in the Motorcycle as have been alleged in the complaint. According to them, Motorcycle was not brought to the service station on 22.2.2007. They further deny that on 3.3.2007 complainant came alongwith Hukam Chand. They never refused to get the Motorcycle inspected, especially so when opposite party No.2 itself has issued letter dated 28.2.2007 to him. They refute the remaining averments in the complaint.<br /> 4. In support of his allegations and averments in the complaint, Sanjeev Kumar complainant tendered into evidence his own affidavit (Ex.C.1), affidavit (Ex.C.4) of Sh. Hukam Chand, photocopy of registration certificate (Ex.C.2), letter dated 28.2.2007 (Ex.C.3), photocopy of Owner's Manual (Ex.C.5), photocopy of warranty (Ex.C.6) and photocopy of legal notice (Ex.C.7).<br /> 5. On behalf of the opposite parties, reliance has been placed on affidavits (Ex.R.1 & Ex.R.2) of S/Sh. Lachhman Singh Mehta and Rajinder Singh, Foreman respectively, photocopy of job cards (Ex.R.3 & Ex.R.4) and photocopies of certificates (Ex.R.5 to Ex.R.7).<br /> 6. We have heard the learned counsel for the parties and gone through the record. Apart from this, we have considered the written arguments submitted by the parties.<br /> 7. Parties are not at issue on certain points. They are that Motorcycle was purchased by the complainant. It was warranted for a period of two years or 30,000 Kms from the date of purchase, whichever is earlier. Copy of the warranty is Ex.C.6. Complainant availed two services of the vehicle from the service station of the opposite parties. Legal notice, copy of which is Ex.C.7, was issued to opposite party No.2 by the complainant and opposite party No.2 gave reply of it on 28.2.2007, copy of which is Ex.C.3.<br /> 8. Learned counsel for the complainant urged that there is manufacturing defect in the Motorcycle as it gives abnormal noise, central lock is not working properly and average given by it is less i.e. 40 Kms per litre than the one assured by the opposite parties i.e. 80 Kms with one litre of petrol. Despite repeated requests and visits, opposite parties did not rectify the defects. Rather, the workmen of the opposite parties misbehaved with the complainant, used filthy language and refused to repair/replace the Motorcycle. For this, he drew our attention to the affidavit Ex.C.1 of the complainant and affidavit Ex.C.4 of Sh. Hukam Chand. According to Ex.C.4, he had visited the service station of the opposite parties alongwith the complainant and that workmen of opposite party No.2 misbehaved the complainant and used filthy language on 3.3.2007 and that Mechanics of opposite party No.2 broke the rear flapper as well. He further submitted that as per terms and conditions of the warranty, complainant could not get the Motorcycle inspected from any other Mechanic than from the authorised person/workshop of the opposite parties.<br /> 9. Mr. Baghla, learned counsel for the opposite parties vociferously argued that evidence of the complainant does not establish manufacturing defect in the Motorcycle and the defects pointed out in the complaint. There is no deficiency in service and unfair trade practice on the part of the opposite parties.<br /> 10. We have considered the respective arguments. Onus to prove version in the complaint is upon the complainant as has been held in the case of Ravneet Singh Bagga Vs. M/s. KLM Royal Dutch Airlines and another-2000(1)CLT-33. Now question is as to whether complainant has discharged this burden upon him. The reply to our minds is in the negative. No-doubt, in the warranty, copy of which is Ex.C.6, there are some limitations and one of them is that the warranty is not applicable if vehicle is tampered or repaired by unauthorised person/workshop. Complainant could move an application to this Forum seeking its permission for getting the Motorcycle checked from an expert to establish his version about the manufacturing defect in the vehicle. He did not move such application naming the expert for mechanically examining the vehicle. Under the garb of limitations in the warranty, he cannot wriggle out of the situation and say that manufacturing defect alleged by him be presumed in the absence of the evidence to this effect. Since expert evidence is missing, it cannot be concluded that there are defects in the vehicle which can totally impair its functioning. For this, we get support from the authority Kinetic Motor Company Limited Vs. Raj Kumar & Anr.-IV(2005)CPJ-417. Reference in this context can also be made to the authorities Apex Motors Vs. Neelam Rattan-I(2004)CPJ-84 & Mrs. Kanwaljit Kaur Vs. Pasco Automobiles & Anr.-IV(2003)CPJ-1. For want of expert evidence, no manufacturing defect can be inferred. We have no hesitation in observing that complainant has not come with clean hands. In para No. 3 of the complaint, his version is that soon after the purchase of the Motorcycle, defects/problems of abnormal noises in the engine, improper working of the central lock and less average came to his knowledge. Motor bike was purchased on 8.12.2006. It appears that soon after 8.12.2006, complainant came to know about these alleged defects and problems. Admittedly, complainant got Motorcycle serviced twice free of costs from the service station of the opposite parties. Learned counsel for the complainant could not show that free services were not availed on 22.12.2006 and 30.1.2007 respectively. Contention of the learned counsel for the complainant that copy of the job card which is Ex.R.3 does not bear the signatures of the complainant, cuts no ice as complainant admits that Motorcycle was got serviced twice. He could mention at least in his affidavit that he did not sign the job cards. Now, it does not lie in his mouth that the job cards do not bear his signatures or the signatures of his representative. As is evident from the copy of the job card Ex.R.4 dated 22.12.2006, Motorcycle had run to the extent of 663 Kms when it was brought for first free service. When it was brought for second free service, it had run 1733 Kms as is clear from Ex.R.3. Had there been alleged problems in the Motorcycle, complainant could notify them at the time of services of the Motorcycle. This lapse on his part falsifies the allegations. Had there been manufacturing defect in the Motor bike in question, its running of 1733 Kms on the day when it was brought for second service on 30.1.2007, did not arise. It is also worth mentioning that delivery of Motorcycle after service was received after entire satisfaction. This fact estops the complainant from leveling allegations of manufacturing defect and other defects in the Motorcycle soon after the date of its purchase by his act and conduct. There is no document on the record that opposite parties had assured the complainant that Motorcycle would give average run of 80 Kms with one litre of petrol. His bald affidavit Ex.C.1 cannot serve his purpose in the absence of any commitment in writing on the part of the opposite parties. <br /> 11. No-doubt, complainant served legal notice upon opposite party No.2 and copy of the same is Ex.C.7 and allegations in it have not been specifically denied by the opposite parties in reply, copy of which is Ex.C.3. This fact alone does not advance the cause of the complainant, particularly when averments in the complaint stand falsified with the contents of the legal notice itself. As per the contents of the legal notice, complainant had visited the service station on 22.2.2007 and Foreman of opposite party No.2 had asked him to come after seven days and that after seven days, he had visited the service station. It means that complainant visited the service station on 1.3.2007. Legal notice sent by the complainant is dated 24.2.2007. In its para No.3, complainant has averred that he had visited the service station on 22.2.2007 and after one week, he had again visited service station at Bathinda. Notice belies the stance of the complainant in the complaint. Had the notice been sent by the complainant after 1.3.2007, then some weight could be attached to his averments in the complaint that he visited the service station after seven days after 22.2.2007. From this, inference is that story of the complainant regarding his visit to the service station on 22.2.2007 and thereafter after one week is made up one. Hence, point that opposite parties did not give specific reply of the averments in the notice, would assume no significance, particularly when notice itself is contradictory to the pleadings. To the contrary, opposite parties have brought on record affidavits Ex.R.1 & Ex.R.2 of S/Sh. Lachhman Singh Mehta & Rajinder Singh respectively. Rajinder Singh is the Foreman of opposite party No.2. He has stated that he has bagged appreciation certificate in National Mechanics Contest. Copy of the same is Ex.R.7. He next stated that Motorcycle in question was brought for services on 22.12.2006 and 30.1.2007. No complaint was lodged by the complainant with respect to it. Motorcycle was serviced to his entire satisfaction. Alleged defects were not pointed out. Affidavit Ex.R.1 also supports the version in Ex.R.2. With bonafide intention, opposite party No.2 gave offer to the complainant to bring the Motorcycle to the workshop so that it could be checked to rectify the defects, but complainant never visited service station after 30.1.2007 as is evident from Ex.R.2. From the evidence on the record, story of the complainant regarding defects/problems in the Motorcycle, becomes incredible, improbable and not plausible. <br /> 12. In view of our foregoing discussion, crux of the matter is that complainant has failed to establish any deficiency in service or unfair trade practice on the part of the opposite parties. Hence, question of replacement of the Motorcycle or payment of compensation, does not arise.<br /> 13. In the result, complaint being devoid of merits is dismissed with costs of Rs.500/-. Copy of this order be sent to the parties free of cost. File be consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 23.5.2007 President<br /> <br /> <br /> (Hira Lal Kumar)<br /> Member<br /> <br /> <br /> (Dr.Phulinder Preet)<br /> Member <br /> <br /> 'bsg<br />