Delhi

North East

CC/333/2017

Sh. Rishabh Pandey - Complainant(s)

Versus

Himgri Automobiles Pvt. Ltd. - Opp.Party(s)

17 Mar 2020

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.  333/17

 

In the matter of:

 

	Shri Rishabh Pandey S/o Shri Ravinder Pandey R/o, J-43/3, Jai Prakash Nagar,Ghonda Delhi-110053	Complainant
	Versus
1           2           3	Himgiri Automobiles Pvt. Ltd. Through its Manager (Service Centre) A-19, G.T. Road, Jhilmil Industrial Area Near Shahdara Flyover, Jhilmil Delhi-110095   Himgiri Automobiles Pvt. Ltd. B-28, East Jyoti Nagar, Near Jyoti Nursing Home, Loni Road Durga Puri Chowk, Shahdara Delhi-110032   Hero Moto Corp Ltd. Regd. Off: 34, Community Center Basant Lok, Vasant Vihar New Delhi-110057	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

23.11.2017 17.03.2020 17.03.2020

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

ORDER

1. Facts germane for the disposal of the present complaint are that the complainant has purchased a Hero Moto corp. Super Splendor  (SPSGDRSSC) motor cycle bearing registration no. DL-5S-BC-9196 from OP2 on 24.09.2017. However, on the very date of its purchase, when the complainant took the delivery of the said vehicle and was riding it on his way home, the subject bike suddenly stopped mid way and when the complainant tried to start its ignition, the automatic self button of the bike did not function for which complainant had to use the kick start mode to bring it home and at this time even the horn, front light and indicator were not working. The next day i.e. 25.09.2017, complainant went to OP1, Authorized Service Centre (ASC) of OP2 and narrated the technical faults in the subject bike and was asked by staff of OP1 to leave the vehicle for some time in its service centre. Complainant was assured by the staff of OP1 that the faults were minor in nature and would be rectified soon. However, even after repair of the vehicle by OP1, the defects therein continued to exist which when complained of by complainant to OP1, complainant was asked by OP1 to visit it at the time of first service when defect shall be removed. Accordingly, complainant visited OP1 on 23.10.2017 for his first free service and was given a delivery receipt mentioning delivery time as 3:00 pm but complainant could not visit at the said time and date due to personal problem and when he went to OP1 in the morning hours of 25.10.2017, 24.10.2017 being weekly holiday of OP1, to his utter shock and surprise, the complainant saw that the delivery slip was already signed on his behalf on 23.10.2017 and wiser of the subject bike was also damaged. When the complainant brought the discrepancy to the notice of OP1, initially he was ignored and after having been made to wait for three hours, OP1 changed the wiser but due to inordinate delay taken for such repair, complainant being an advocate had to miss an important hearing in Hon’ble Delhi High Court scheduled on the said date. The complainant has therefore alleged that the OP1 had been negligent and deficient in service for which the complainant had to face mental and physical harassment and therefore legal notices dated 27.10.2017 and 03.11.2017 were served by the complainant on OP1 & OP3 regarding deficient service and compensation for mental and physical harassment but legal notice went unheeded too. Therefore, as the last resort, complainant filed the present complaint against OPs praying for issuance of direction against OPs to pay Rs. 1,00,000/- as compensation for mental agony harassment and litigation charges.
2. Complainant has attached copy of receipt no.s 3816 and 3678 dated 24.09.2017 issued by OP2 acknowledging of payment of Rs. 12,000/- made by complainant towards the subject bike, copy of insurance certificate issued by ICICI Lombard, copy of form 22, copy of tax invoice dated 23.10.2017 issued by OP1, copy of cause list of 25.10.2017 highlighting the relevant case in which complainant was scheduled to appear and copy of legal notices dated 27.10.2017 and 03.11.2017 by complainant to OPs alongwith postal receipt.
3. Notice was issued to the OPs on 29.11.2017. None appeared on behalf of OPs despite service effected on 05.12.2017 and vide order dated 23.02.2018 the defence of OPs was closed due to lapse the mandatory period of 45 days permitted to file written statement. In hearing held on 01.10.2018, OPs entered appearance and filed copy of order dated 11.09.2018 passed by Hon’ble SCDRC Delhi in RP. No. 69/2018 reinstating the defence of the OPs subject to payment of cost of Rs. 5000/- to the complainant with direction to file the written statement on the date fix i.e. 01.10.2017. Joint written statement accordingly was filed by OP1 & OP2 wherein it took the preliminary objection of no negligence or deficiency of service on its part in servicing the subject bike which was sold in good condition and fault free. OPs resisted the complaint on grounds that whenever the complainant visited the OPs, be it on 23.10.2017 at the time of first service when the vehicle had run 750 kms and on subsequent date of 25.10.2017, 29.10.2017  and lastly on 14.12.2017 when the vehicle had run 2535 kms, general repairs were done under proper job card issued on every occasion and the reported noise in engine by the complainant was duly rectified by the OPs and for the minor scratch on the wise of the bike which was not caused by the OPs which despite not having been caused by OPs the same was replaced free of cost on 25.10.2017. OP denied having made the complainant wait for several hours in its workshop and urged that the complainant has failed to mention the specific date and time period of visit made by him as alleged to OP1 & OP2 or the name of mechanics whom he had met and reported technical fault of the vehicle. OP submitted that the complainant had first time visited its service centre on 28.09.2017 for general repair after having purchased the subject bike on 24.09.2017. In so far as the signature on the job card dated 23.10.2017 claimed to have not been signed by complainant as averred by him, OP submitted that complainant had duly signed the delivery report dated 23.10.2017 after receiving the vehicle on 25.10.2017 from OPs. Even subsequently every time after the every service, complainant received the vehicle in good condition and put his signature on the receipt without objection. Lastly, OP submitted that the complainant would not have visited them for services after October 2017 had OPs been negligent in performance of the duty. For the defence so taken OPs urged for dismissal of the complaint.
4. Rejoinder to the written statement was filed by the complainant reasserting his grievance against OPs. Complainant submitted that he had visited OPs for second service on the insistence of the OPs and their apology for inconvenience faced by complainant during the earlier service. OP has attached copy of order dated 11.09.2018 passed by Hon’ble SCDRC Delhi reinstating defence of OPs, copy of job cards dated 23.10.2017, 25.10.2017, 29.10.2017 and 14.12.2017 issued by OPs to the complainant, copy of vehicle history card highlighting the first and second free service, repairs made free of cost and under warranty in the nature of general repair for complaint of engine noise and the subject vehicle having run 2535 kms in a span of  2 ½ month from September 2017 and till December 2017.
5. Evidence by way of affidavit was filed by the complainant exhibiting documents relied upon Ex CW 1/1 to EX CW1/11.
6. Evidence way of affidavit was filed by OP sworn by its AR exhibiting the documents relied / filed alongwith written statement as Ex OPW1/1 to Ex OPW1/4.
7. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance / defence.
8. We have heard the arguments addressed by both sides and have given thoughtful consideration to the pleadings placed before us.
9. The main issue for consideration in the matter is whether the vehicle in question suffered from any manufacturing defect or not and whether OPs were deficient in rendering their services of repair of the subject motor cycle.  
10. Admittedly, all parties have undisputedly acknowledged the factum of service / repair of the subject vehicle between September 2017 to December 2017 for 5 times for availing 2 free services and general repairs specifically pertaining to engine noise as reported in the vehicle history card dated 25.10.2017 and 29.10.2017. The scrutiny of job cards reveal that the subject vehicle was giving engine noise problem from within month of purchase for which genera repairs were undertaken in the nature of Relay Compressor Power and Set FR Cowel replaced in October 2017 free of cost and under warranty. Till the last known date of service i.e. December 2017, the vehicle had run 2535 KMs in 2 ½ months. The subject vehicle would not have run the distance which it did had it been suffering from any serious manufacturing defect. The Hon'ble National Commission in TATA Motors Ltd. Vs Sharad and Anr. IV (2016) CPJ 145 (NC) held in a case of defects arising in motor vehicle with in warranty period that warranty includes only repairs and replacement of parts and change of vehicle in not mandated and ruled out any manufacturing defect in a vehicle having run 35000 KMs in one year and 90000 KMs in 10 years and only granted compensation for inconvenience suffered by the complainant due to improper functioning of vehicle from initial days of purchase. The Hon'ble National Commission relied on its own previous judgment in TATA Motors Vs Ran Singh in RP No. 2354/2011 decided on 01.02.2016 in this regard. 
11. We have observed that the complainant did not seek any expert opinion or file technical report in support of his allegation of the subject vehicle suffering from manufacturing defects in violations of mandatory compliance under Section 13 (1)(c) of CPA. The Hon'ble National Commission in Baljeet Kaur Vs Divine Motors & Anr. III (2017) CPJ 599  (NC) held that when manufacturing defect is alleged, onus of proof has to be on the complainant to prove the same before the Forum. Similar view was held by Hon'ble National Commission in Pawan Kumar Vs Nissan Motors India Pvt Ltd. I (2018) CPJ 425 (NC), Sanjay Singh Vs Dabloo Bhagat II (2018) CPJ 533 (NC), Honda Siel Cars India Ltd. Vs Savita Jerath II (2018) CPJ 552 (NC) and Hindustan Motors Ltd Vs K Madhusoodanan Pillai III (2018) CPJ 639 (NC) that manufacturing defect has to be proven by expert opinion confirming the same and that a vehicle having run substantially cannot warranty its replacement or refund but only compensation.
12. Based on the discussion above keeping in view the facts of the case, we observe that whenever the complainant presented the subject vehicle for free service and repairs with OPs, the defects was removed by repairs/replacement under jobcards issued on each free service as mandated under the warranty and the KMs covered by the vehicle do not warrant its replacement or refund at this stage. However, we cannot overlook the fact that the complainant suffered inconvenience / discomfort due to improper functioning of the vehicle as no person purchasing a brand new vehicle would expect it to be taken to workshop frequently, even for minor repairs. Since this was the case with the subject vehicle, the complainant is definitely liable to receive some compensation for inconvenience and mental agony as was held by Hon'ble National Commission in Tata Motors Ltd Vs Deepak Goyal and Ors. I (2015) CPJ 605 (NC) in RP No. 2309/2008 decided on 30.01.2015.  
13. The Hon'ble Supreme Court in Indochem Electronic Vs Addl. Collector of Customs (2006) 3 SCC 721 held that deficiency in service is must to award compensation and such deficiency must manifest itself for entitling complainant to compensation.  
14. Hon'ble Supreme Court in Landmark judgment of Charan Singh Vs Healing Touch AIR 2000 SC 3138 observed that while quantifying damages, consumer Forums are required to make an attempt to serve ends of justice so that compensation is awarded, which not only serves the purpose of recompensing the individual but also aims to bring about a qualitative change in the attitude of service provider. Indeed no hard and fast rule can be laid down for universal application / calculation of damages but relevant factors be taken into a count for assessing compensation on the basis of accepted legal principles or moderation. It is for the consumer Forum to grant compensation to the extent it finds it reasonable, fair and proper in the facts and circumstances of a given case according to the established judicial standards where the claimant is able to establish his charge.
15. We therefore deem it appropriate to partly to allow the complaint in terms of compensation in view of complainant having been compelled to take the subject bike for repairs barely within one month of purchase since the subject bike started giving noise in engine even before its first free service requiring replacement of parts and had to undergo general repair thrice within a span of one month from 29.09.2017 to 29.10.2017. We therefore deem fit that OP1 & OP2 be directed to pay compensation of Rs. 5000/- to the complainant jointly and severally inclusive of litigation charges. Let the order be complied with by OP1 & OP2 within 30 days from the date of receipt of copy of this order. No directions against OP3 for no manufacturing defect made out in the subject bike.
16. Let the copy of this order be sent to both parties free of cost as per Regulation 21 (1) of Consumer Protection Regulation 2005.
17.  File be consigned to record room.
18.   Announced on  17.03.2020

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member