For the Complainant                           -  Mr. Suman Basu, Advocate

For the OPs    1 2 & 4                         - Mr. Raghu Nath Ghosh, Advocate

For the OP-3                                      -Mr. Barun Prasad, Advocate

FINAL ORDER/JUDGEMENT

SHRI SWAPAN KUMAR MAHANTY, PRESIDENT

This is an application u/s.12 of the C.P. Act, 1986.

Brief facts of the case are that the complainant purchased a Motor Cycle bearing registration No. WB-08B-2742 (Model No. CB UNICORN No.160, Model Code B, Engine No. Kc 20E 80511449) from OP-3 at a price of Rs. 88,052/-. In addition to the initial warranty for two years, complainant also availed extended warranty for five years on payment of Rs. 666/-. Immediate after purchase  of the Motor Cycle, complainant face a lot of trouble as the engine of the Motor Cycle stopped repeatedly in motion. Complainant took the Motor Cycle to the authorized  service centre of OPs 1& 2. The mechanics of service centre failed to rectify  the defect even after expiry of all free service period despite replacement of spare parts. On expiry of free services, complainant handed over the Motor cycle to the OPs 4 to 6 for removal of its defect but the defect could not be removed.

            Further case of the complainant is that again on 15.11.2017 he handed over the Motor Cycle against Job Card No. 3330 to the Authorized Service Centre of OP-1. Mechanics of authorized  service centre failed to remove the defect and a new Job Card No. 4060 dated 25.11.2017 was issued against old Job Card No. 3330. Complainant refrained from taking delivery of Motor cycle as there was manufacturing  defect. Finding no other alternative, complainant issued legal notice dated 15.01.2018 to the OPs seeking replacement of  the defective spare parts of the Motor Cycle. The OPs 4 to 6 replied the said legal notice with a request to take back the Motor Cycle from the service centre without making any whisper regarding details of service done and spare parts replaced. Hence, the complainant has approached this Forum by way of consumer complaint seeking reliefs as per prayer.

            OPs 1, 2 & 4 have contested the case by filing a joint WV denying all the material allegations of the complainant. The specific case of the answering OPs is that the complainant had purchased a Motor Cycle bearing registration No. WB-08B-2742  having Model No. UNICORN No.160, Model Code B, Engine No. Kc 20E 80511449 from OP-3. Defect of the Motor Cycle was rectified but the complainant continuously complaint for removal of defect of the Motor Cycle. Technical team of Honda Motor Cycle & Scooter  India Pvt. Ltd. inspected the Motor Cycle and certified that the Motor Cycle is fit to us. Despite repeated reminders from the service centre, Complainant did not bring his Motor Cycle for which he is liable to pay Rs. 25/- per day as parking charge. The OP-4 also assured to service the Motor Cycle  in future under extended  warranty as per terms & conditions laid down in the extended warranty. There is no deficiency in service and/ or unfair practice on the part of the answering OPs. Thus, the answering OPs have prayed for dismissal of the consumer case with exemplary costs.

The OP-3 has also contested the case by filing WV challenging the maintainability of the case on various grounds. The specific case of the answering OP is that the complainant purchased a Motor Cycle (CB UNICORN No.160 STD) bearing registration No. WB-08B-2742 against payment of Rs. 88,052/- and the said Motor Cycle was delivered to the complainant with good condition. Duty caste upon the manufacture to keep the said Motor Cycle in defect free condition within warrant period and the answering OP being the dealer has no role regarding repairing or replace of the Motor Cycle. Complainant raised allegations of defect in the motor Cycle but failed to mention the nature of defect. Apart that complainant failed to produce any expert opinion in support of his case of manufacturing defect. Being the authorized dealer the answering OP has no role regarding deficient in rendering service to the complainant. The instant consumer complaint is frivolous and abuse of process. Thus, the consumer complaint is liable to be dismissed with cost.

Despite service of notice, the OPs 5 & 6 did not turn up to contest the case. As such, the case has proceeded ex parte against the OPs 5 & 6.

Upon the pleadings of the parties, the following points necessarily came up for determination:-

1. Whether the subject Motor Cycle having Model No. CB UNICORN No.160, Model Code B, Engine No. Kc 20E 80511449 was suffering from manufacturing defects?
2. Whether there was any deficiency in service and/or unfair trade practice on the part of the OPs?
3. Whether the complainant is entitled to get relief or reliefs as prayed for?
4. To what other relief or reliefs the complainant is entitled?

Point Nos. 1 to 4

All the points are taken up together for the sake of convenience and brevity in discussion.

            The facts not in dispute that on 01.12.2015 the complainant purchased a Motor Cycle having Model No. CB UNICORN No.160, Model Code B, Engine No. Kc 20E 80511449 manufactured by OP-1 Honda Motor Cycle & Scooters India (Pvt.) Ltd. from OP-3 M/s Vikash Motor company at a price of Rs. 88,052/-. It is also true that OP-3 is the authorized dealer of OP-1. An extended warranty for five years was also availed by the complainant on payment of Rs. 666/- in addition to initial warranty for two years.

It is the case of the complainant that since purchase of Motor Cycle, he faced a lot of problem as the engine repeatedly stopped during motion and the motor cycle was placed to the authroized service centre for removal of defect during free service period. Despite replacement of spare parts the mechanics of OPs 4 to 6 failed to remove the defect. Photocopies of job cards also proved that the motor cycle was placed to the service centre for cure of its defect. Exchange of e-mails were made between the parties to that effect. Photocopy of e-mail dated 12.01.2017 goes to show that the complainant declined to take his Motor Cycle from the service centre (OP-5) unless the mechanics satisfies him in writing seeking for clarification and details of service and spare parts replaced. Exchange of legal notice was made between the complainant and OPs 4 to 6 in this regard. Complainant claims replacement of Motor Cycle and/or refund of price of the Motor Cycle along with interest  at the rate of 18  percent per annum from the date of purchase on the ground of its manufacturing defect.

On the contrary, the plea of the OP-3 is that they are the seller of two wheeler and they have no liability to rectify the defects. The manufacturer of the Motor Cycle is responsible for any defect as alleged by the complainant. OP-3 referred the complaint of the complainant  immediately to the OP-1 being manufacture for necessary action. OP-3 is only a communicator/ mediator. The plea of the OPs 1, 2 and 4 is that the trained technician of OP-4 repaired the defect and requested the complainant to take delivery of the Motor Cycle with an assurance to extend warranty as per terms & conditions of the warranty. The subject motor Cycle is still lying in the parking zone of the OP-5.

Undisputedly, no technical evidence is produced by the complainant to prove the alleged allegation of manufacturing defect of the Motor Cycle. Even he did not make any effort for appointment of a technical expert in this regard. The onus is upon the complainant to prove the alleged manufacturing defect. No technical evidence having been produced by the complainant, he failed to discharge the onus placed upon him. The fact that the Motor Cycle was running about 2500 KM. Even no MOU was executed between the complainant and OPs 1 & 2 that the subject Motor Cycle is defective. Thus, the complainant is not entitled for replacement of the Motor Cycle or to refund its price.

We deed it appropriate to order that the OPs 4 & 5 should repair the defect of the Motor  Cycle as per terms & conditions of the extended warranty within 45 days without paying any parking charge. In our opinion, there is no deficiency in service and or unfair trade practice on the part of the OPs. All the points under determination are decided, accordingly.

In view of the aforesaid discussion, we disposed of the consumer complaint with the following directions:-

1. The OPs 4 & 5 are directed to repair the Motor Cycle bearing registration No. WB-08B-2742 (Model No. UNICORN No.160, Model Code B, Engine No. Kc 20E 80511449) as per terms & conditions of the extended warranty.
2. The OPs 4 & 5 are also directed not to realize any parking charge of the Motor Cycle from the complainant.

Time of compliance is 45 days from the date of the order, failing which complainant may enforce the order under sections 25 & 27 of the CP Act, 1986 against the OPs 4 & 5.