SMT. BANDANA ROY, PRESIDENT

            The gist of the present case is that on 02.06.2017the complainant purchased a bike from the OP no. 2 with the conditions that if any parts of the bike is found t be defective or if the bye carries any technical defect, that would be mend afterwards within a period of two months. After use for one week the complainant found problem in the handle of the bike and other problems. Accordingly the complainant went to the show room after two weeks when he was directed to come on 26.06.2017.   On that date when the complainant reached the show room, the Manager and other  technical staff of the show room misbehaved with him and demanded charge for changing the defects. The complainant was also called after two days  as there was rust in some parts of the bike which was prevalent before the purchase. Then the complainant sent email to the OP No. 2 for changing the bike. But in spite of repeated reminders, the Ops did not replace the bike. The price of the bike was 78,220/- out of which the complainant paid in cash Rs. 34,908/- and the balance amount was paid by a financial Co. Till date the bike is not free to move usually as the back wheel is not rotating.

Hence, the instant case with the prayers as made in the complaint petition on the allegation of deficiency of service and unfair trade practice against the OPs.

Summons were issued upon both the OPs, but the OP No.1 did not appear to contest the case. The OP No. 2 contested the case by filing written version. They prayed for dismissal of the complaint on various grounds.

The specific defense of this OP no 1 is that they are agent of Hero Motor Corp. Lts.  They provided the petitioner service during warranty period and replaced the defective parts of the motor cycle. Lastly on 24.01.2018 the petitioner took service and signed in the job card and tax invoice. As per terms and conditions of the warranty the OP complied with all the objections of the petitioner. After such warranty period the complainant demanded replacement of the bike which is not possible at all.

Under such circumstances, the Op prays for dismissal of the complaint.

The points require discussion are whether the case is maintainable and whether the complainant is entitled to get the reliefs  as prayed for.

Decision with reasons

            Both the points are taken up together for consideration for the sake of convenience.

            We have carefully perused the affidavit of the complainant, the written version and all  the documents filed by both the parties, the examination in chief on affidavit, questionnaires of both parties  and also reply thereto filed by the petitioner, heard the submission of the ld advocate for the complainant as  also the OP No.2.

             Regarding purchase of the bike there is no question from the side of the OP no. 2. The complainant purchased the bike from the show room of the OP no. 2 on 02.06.2017.The complainant has alleged that after only one week from the date of purchase, problem in the engine and some mechanical trouble started and the complainant informed the OP no. 2 accordingly and on 26.06.2017 the complainant went to the show room when the staff of the OP no 2 and the Manager misbehaved with him. According to the complainant the OP no. 1 marketed and sold the motor cycle which is defective one under the model Hero Achiever under Frame No. MBLKCS309HGEO1043 bearing engine No. KC10RZHGE 01129 model 2017 bearing Key No 1554.  The said bike was sold and sent to the complainant under the Road challan No. 1188 dated 02.06.2017. it is the case of the complainant that till date the back wheel of the bike  is not rerating properly and freely and the handle of the same is not in proper condition and there is every possibility of any accident and stake of life.  For getting relief from the Ops the complainant has filed this case.

            The contention of the OP no. 2 is that on 24.09.2018 the complainant took service  from the show room of the OP No 2  and signed  in the job card and took invoice on that date., OP no. 2 also stated that it is not possible for them to replace the bike as demanded by the complainant.

            We have carefully gone through all the documents on record ands the examination in-chief of the complainant on affidavit and its questionnaires and reply thereof filed by the complainant. The OP no; 1 did not appear to contest the case.  Though the OP no. 1 is the manufacturer of the bike in dispute.

            Admittedly the OP no 1 is the dealer of the bike in question and it is settled law that when there is manufacturing defect the dealer has no liability to replace the defective vehicle or to refund the price of the disputed defective product, here the motor cycle in question.

            When the OP no.1 the manufacturer of the bike has not appeared to controvert the statement of the complaint, it will be deemed that the OP has nothing to say about the allegation of the  complainant.

            So, we are of the view that the OP no 1 is liable to replace the vehicle and alternatively to refund the price of the vehicle to the complainant.

            Both the points are answered accordingly.

            Hence, it is

O R D E R E D

That CC/ 267 of 2018  be and the same is dismissed on contest against the OP no 2 and allowed in part  ex parte against the OP no. 1.

The OP no. 1 is directed to replace the motor cycle as described in the body of the judgment within one month from the date of this order failing which the OP no 1 will refund the price of the bike along with compensation of Rs 2000/- and litigation cost of Rs. 2000/-. In default,  the OP no.1  will be liable to p ay interest @ 9% per annum  till actual compliance. Of the order.

The complainant is at liberty to execute the order in case of non compliance by the OP no. 1.

Let copy of the judgment be supplied to all the parties free of cost.