Haryana

Ambala

CC/363/2018

Satish Sharma - Complainant(s)

Versus

Hero MotoCorp Ltd - Opp.Party(s)

Ramesh Rana

03 Feb 2020

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.:  363 of 2018.

                                                          Date of Institution   :   02.11.2018.

                                                          Date of decision      :   03.02.2020.

 

Satish Sharma son of Shri Som Nath, resident of village Langer, PO Kesri, District Ambala.

                                                                              …. Complainant.                                                              Versus

1. Hero MotoCorp Limited, Regd. Office; 34, Community Centre, Basant Lok, Basant Vihar, New Delhi-11005 Through its Managing Director. 
2. M/s Balaji Automobiles, Authorized ARD: Hero MotoCorp Ltd., Industrial Area Chowk, Ambala Cantt. through its Prop/authorized signatory.

                                                                        ….Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                            

Present:       Shri Ramesh Rana, Advocate, counsel for complainant.

Shri Ashutosh Gaur, Advocate, counsel for the OPs.

         

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following direction to them:

i)       To replace the motor cycle of the complainant with a new one.

ii)      To pay Rs.50,000/- as compensation for the mental agony and physical       harassment suffered by him alongwith litigation costs.

382.  

 

Any other relief which this Hon’ble Forum may deem fit.

 

Brief facts of the case are that on 14.07.2017, complainant had purchased Motor Cycle Splendor| Smart 110 of blue colour, of Model 2017, having Chasis No.MBLJAR139HHF15285, Engine No.JA06EPHHF15691, from the OP No.2, the authorized sealer of OP No.1 (Manufacturer) vide Invoice No. 1562, for a sum of Rs.55,100/-.  After nine months of purchase of motor cycle, it started giving trouble and he got it repaired from OP No.2. After about one month the same problem again occurred and after inspection the OP No.2 told him that there is defect in the engine. Thereafter he took his motorcycle to the OP No.2 for 5-6 times for repair of oil system silencer, carburettor for which it charged more than Rs.1,000/- despite of the fact that the motor cycle was within warranty. Since, the same problem still persist therefore he requested the OPs to exchange the said motorcycle with new one as he is in dire need of the motor cycle, for his day to day work,  but they condemned his genuine request. Even in the warranty period he had spent lot of money for undertaking the repair which he was not suppose to do as promised in the warranty period. During the warranty period the OP asked to pay the amount for engine kit change & timing chain system which the OP told that they have raised the demand with the OP no.2 online because the engine is having a manufacturing defect and till today the same has not been done. Not satisfying with the act and conduct of the OPs, he showed the motor cycle in question to Kaka Motors and the mechanic told that the motor cycle is having inherit manufacturing defect. Complainant served upon a legal notice dated 04.08.2018, but of no avail. The OPs by not repairing his motor cycle satisfactory, have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, the OPs appeared through counsel and has filed written version raising preliminary objections regarding cause of action, suppressing of true and material facts and not coming to this Forum with clean hands. On merits, it is stated that the complainant availed the free service and other services from the OPs and every complaint was attended with utmost sincerity as per the company’s policy. As per the history card of the motorcycle the complainant never utter a word about the permanent defect in the vehicle and never charged him for repairs under the warranty policy of the company. The vehicle history card shows that as on 26.09.2018 the complainant has covered 15525 KM with average of 30.86 KM per day and in complaint he is taking the plea of permanent defect in the vehicle. The complaints OPs received during the services are of normal wear and wear which occurred due to use of vehicle. The OPs always attend the complaints with utmost sincerity and repair/replaced to the utmost satisfaction of the complainant within the purview of company’s warranty policy. The OPs are still ready to attend the complaints and ready cure as per the terms and condition of warranty policy. They never received any request of exchange this motorcycle with new one. The parties of the present case are bound by the terms and conditions of the company’s policy. Complainant requested of exchanging this vehicle with new vehicle is untenable and against the warranty policy offered with the vehicle. The motorcycle of the complainant was delivered in fit and brand new condition at the time of purchase. Every complaint regarding the motorcycle was attended at the time of services and cured at the utmost satisfaction of the complainant within the purview of company’s warranty policy.  The complainant was never asked to pay any amount under the warranty repairs. The complaints as per jobs card of normal wear and tear of the vehicle’s part/consumption of oil, which occurred due to use of vehicle. It is further stated that Kaka Motors is not related to any of the OPs or not does Kaka Motors is authorized to repairs any vehicle manufactured by OP. Further stated that taking the vehicle to any non-authorized service centre is breach of the warranty clause. The OP No.2 denied the allegations of the complainant in his reply to legal notice of the complainant dated 04.08.2018. There is no deficiency in service on the part of the OPs and the present complaint may be dismissed with heavy costs.

3.                The learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-12 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavits of Shri Ujjwal Kumar, the Authorized Representative of OP No.1 and Pardeep Chauhan, the Authorized Representative/ proprietor of M/s Balaji Automobiles, Industrial Area Chowk, Ambala Cantt., as Annexure OPA and OPB respectively alongwith document Annexure OP1 to Annexure OP12 and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel for the parties and have carefully gone through the case file and the written arguments filed by Ld. counsel for OPs.

5.                The learned counsel for the complainant argued that the motor cycle in question, started giving problem after nine months of its purchase and he got repaired the same from the OP No.2. After about one month it again started giving the same problem and he took it to OP No.2 for its repair. On inspection the OP No.2 told him that there is defect in the engine. Inspite of repeated repairs the defect in the engine could not be rectified. Therefore, he requested the Ops to replace the defective motor cycle with a new one but they refused to do so.

                    The learned counsel for the OPs argued that the complainant has wrongly alleged that the motorcycle in question has covered the mileage of 15525KM with average of 30.86 KM per day and the complainant has wrongly alleged that there is manufacturing defect in the motorcycle in question. From the expert report dated 07.08.2019, it is amply clear that there is no manufacturing defect in the motorcycle in question.

6.                From the perusal of the expert report dated 07.08.2019, it is abundantly clear that there is not manufacturing defect in the vehicle in question, therefore the request made by the complainant for replacement of the vehicle cannot be accepted. However, at the same time this fact cannot be ignored that the complainant was complaining about one or another defect in the motorcycle in question within few months of its purchase. From the terms and conditions of the warranty downloaded online, it is evident that the manufacturer has given a warranty on all its motorcycles for a period of 5 years or 70,000 KM, whichever is earlier, from the date of purchase. From the job card dated 03.05.2018, Annexure OP-9, history card, Annexure OP-3 and vehicle history card, Annexure OP-4, it is abundantly clear that there was engine noise in the motorcycle in question. However, no cogent evidence has been produced by the OPs to show that the problem of engine noise has been rectified. It may be stated here that since the defect in the vehicle in question had occurred within warranty, therefore, it was the bounded duty of the OP No.1, being manufacturer and OP No.2, being the dealer/service centre, to rectify the problem of motorcycle in question, either by repairing/replacing the defective part(s), free of costs. But they failed to rectify the defect(s), which amounts to deficiency in service. As such, we are of the considered view that the OP No.2 shall rectify the defect of the motorcycle in question either by repairing or replacing the defective part(s) of the vehicle in question, free of cost. The OP No.1 shall provide the new part(s) needed to be replaced to the OP No.2, free of costs. The Ops are also liable to compensate the complainant for the mental agony and physical harassment suffered by him.

 7.               In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs in the following manner:-

1. The OP No.1 is directed to provide the new part(s) needed to be replaced, to the OP No.2 free of costs.
2. The OP No.2 is directed to rectify the defect of the vehicle in question by repairing or replacing the defective part(s), free of costs.
3. The OPs are directed to pay Rs.5000/- as compensation for the mental agony and physical harassment suffered by the him.
4. To pay Rs.3000/- as  litigation expenses.

 

                   The OPs are further directed to comply with the order within the period of 45 days, from the receipt of the certified copy of this order. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on :03.02.2020

 

 

(Vinod Kumar Sharma)            (Ruby Sharma)               (Neena Sandhu)

        Member                                Member                          President