Punjab

Fatehgarh Sahib

CC/35/2017

Manpreet Singh - Complainant(s)

Versus

Hero Prime wheels - Opp.Party(s)

Sh Sumit Gupta

28 Jan 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FATEHGARH SAHIB.

                            Consumer Complaint No.35 of 2017

                                                        Date of institution:  22.05.2017                         

                                                        Date of decision   :  28.01.2019

Manpreet Singh aged about 27 years son of Sukhdev Singh, R/o Village Badwala(Bhedwala), Tehsil Bassi Pathana, District Fatehgarh Sahib.

……..Complainant

Versus

1.  Hero Prime Wheels, through its General Manager, Near Usha Mata Mandir, Grain Market, Morinda Road, Bassi Pathana, District Fatehgarh Sahib.
2. Hero Motocorp Ltd. at its registered office, 34 Community Centre, Basant Lok, Vasant Vihar, New Delhi 110057 through its Managing Director.
3. Hero Motocorp Ltd. at its Regional/Zonal office, SCO-367-368, 1^st Floor, Sector 34-A, Chandigarh through its Managing Director.

 

…..Opposite parties

Complaint under Sections 11 to 14 of the Consumer Protection Act

Quorum

Sh. Kuljit Singh, President

Sh. Inder Jit, Member   

                                     

Present :   Pt. Narinder Kumar, Adv.Cl. for the complainant.       

                  Sh. M.L.Singhi, Adv.Cl. for OP No.1.

                  Sh. J.S.Jandhu, Adv.Cl. for OPs No.2 & 3.

ORDER

Kuljit Singh, President

                  Complainant Manpreet Singh aged about 27 years son of Sukhdev Singh, R/o Village Badwala(Bhedwala), Tehsil Bassi Pathana, District Fatehgarh Sahib, has filed this complaint against the Opposite parties (hereinafter referred to as “OPs”) under the Consumer Protection Act. The brief facts of the complaint are as under:

2.               The complainant had purchased Hero Duet for his personal use bearing engine No.JF33AAGGEO1694 Chassis No. MBJF16ESGGEO1555, registration No.PB-23U-9420 on 24.05.2016 from OP No.1.  The complainant paid Rs.4500/- in cash and remaining amount of Rs.54,500/- through cheque as the same was purchased by obtaining loan from HDFC Bank. The OPs gave five year-warranty for the said vehicle. In the month of August 2016, when the complainant went to OP No.1 for service of the vehicle, then it was found that Oil Chamber of the vehicle got cracked. OP No.1 repaired the same and charged money for its repair and also assured that the said problem will not occur in future. But in the month of September 2016 the oil chamber again cracked and the same was repaired by OP No.1.  Thereafter, in the month of November 2016, the vehicle again started making noise and on checking by OP No.1, it was found that the noise is made by fan. Thereafter in the month of February 2017, when the noise became prominent then, OP No.1 after checking the vehicle told that there is fault with crank barring. OP No.1 repaired the same by charging Rs.2600/- from the complainant, but the noise continued and the vehicle is not working properly.  The complainant approached OP No.1 and requested it to change the vehicle as it has manufacturing defects but OP No.1 has not responded to the genuine requests of the complainant. The vehicle is standing at the premises of OP No.1. The act and conduct of the OPs amounts to negligence, deficiency in service and unfair trade practice. Hence, this complaint for giving directions to the OPs to replace the defective vehicle with new one and also to pay Rs.10,000/- on account of deficiency in service and causing great loss, mental agony and harassment to the complainant along with litigation expenses.

3.               The complaint is contested by OPs. In reply to complaint, OP No.1 raised certain preliminary objections, inter alia, that the present complaint is not maintainable; the complainant has not come to the Court with clean hands; the complainant has got no cause of action and locus standi to file the present complaint and the complaint is misuse of the legal process. As regards the facts of the complaint, OP No.1 stated that the vehicle in question was sold in absolutely sound, correct and drivable condition and the same was having no defect at all at the time of its sale.  It is further stated that the complainant brought the vehicle for service in the premises of OP No.1 on 06.08.2016 against the covered millage of 6410 Kms and service was done. The complainant made no complaint regarding Crank case(Chamber) nor the same was found cracked as alleged. The complainant again brought the vehicle for another service at 9086 Kms on dated 13.09.2016 without any complaint or the defect.  Thereafter on 14.10.2016, the complainant brought the vehicle to the premises of OP No.1 and made a complaint that oil was leaking from the vehicle. OP No.1 checked the vehicle and it was found that the crank case (chamber) of the vehicle was cracked.  It is further stated that the chamber is made of very hard metal and cannot get cracked except by accident or force i.e. on being hit by or upon any hard surface. The chamber was repaired on payment basis as the same was not covered in warranty. Thereafter in the month of December 2016, the complainant made a complaint that there is some unusual noise in the vehicle.  The OP No.1 replaced the crank of the vehicle by giving benefit of the warranty period. The vehicle was handed over to the complainant without any defect and in Okay condition. Again in the month of February 2017, the vehicle was got serviced from OP No.1, which had run 17202 Kms and the complainant had made no complaint regarding any defect in the vehicle. Thereafter, the complainant himself brought the vehicle to OP No.1 with a request that he wanted to sell it so that he may purchase a new vehicle as it has covered more than 19000 Kms and left the vehicle in the premises of OP No.1 for sale.  Thereafter, OP No.1 for selling the said vehicle, contacted the complainant so that the deal may be got finalized but there was no response from the complainant.  There is no manufacturing defect in the vehicle and there is no deficiency in service on the part of the OPs. After denying the other averments made in the complaint, OP No.1 prayed for dismissal of the complaint.

4.               In reply to complaint OPs No. 2 & 3 raised certain preliminary objections, inter alia, that the present complaint is misconceived and untenable both on the facts and in law and deserves to be dismissed in limine; the complainant has not come to this Forum with clean hands and the present complaint is frivolous and vexatious. As regards the facts of the complaint, OPs No.2 & 3 stated that due to rash and negligent driving, the complainant damaged the crank case/chamber and due to that it started leaking. The alleged defect is an external damage and there is no manufacturing defect. It is further stated that the complainant is not entitled for replacement or refund. The complainant is only entitled for the repair under the terms and conditions of the warranty. There is no deficiency in service and unfair trade practice on the part of OPs No.2 & 3. After  denying the other averments made in the complaint, OPs No. 2 & 3 prayed for dismissal of the complaint.

5.               In order to prove his complaint, the complainant tendered in evidence his affidavit Ex. C-1, true copies of documents i.e RC Ex. C-2, insurance cover note Ex. C-3, service coupon Ex. C-4 to Ex. C-9, service record sheet Ex. C-10, ownership record data Ex. C-11, warranty card Ex. C-12 and C-13 and closed the evidence. In rebuttal OP No.1 tendered in evidence affidavit of Himanshu Garg, Manager as Ex. OP1/1 and closed the evidence. OPs No. 2 & 3 tendered in evidence affidavit of Deepak Walia Ex. OP2/1 and closed the evidence.

6.               The Ld. counsel for the complainant argued that the vehicle in question had manufacturing defect in it owing to which, the problem of leakage/noise occurred. He pleaded for replacement of said vehicle alongwith compensation.

7.               The Ld.counsel for the OPs argued that the vehicle, when sold, was perfectly alright and whatever the defect occurred in it is attributed to rash and negligent driving. They further stated that no manufacturing defect has been established. They also argued that the complainant only wanted to sell the said vehicle. The Ld. counsel prayed for dismissal of the complaint.

8.               We have gone through the documents placed on record by the Ld.counsel for the parties and heard their oral submissions. We are of the opinion that the stand taken by the OPs is correct to a large extent.  The main grievance of the complainant is that the vehicle is giving noise but as per warranty clause No.7:- "The warranty shall not apply for normal phenomena like noise, vibration, oil seepage etc. which do not affect the performance of the scooter" and as per clause No.11 "the warranty shall not apply if any defect crops or repairs needed as a result of DUET scooter meeting to some accident". Since the defect is not covered under warranty, the complaint is not maintainable. However, while giving a benefit of doubt to the complainant, we dispose of this complaint with directions to the OPs to repair the vehicle in question as per warranty terms and conditions. No order as to costs.

9.               The arguments on the complaint were heard on 14.01.2019 and the order was reserved. Now the order be communicated to the parties. Copy of the order be sent to the parties free of cost and thereafter the file be consigned to the record room.      

Pronounced                                                                                                

   Dated: 28.01.2019