ORDER
PER SH. RAKESH KAPOOR, PRESIDENT
The complainant had purchased a bike make TVS Model Apache RTR 180 from OP1 on 5.1.2010. It was warranteed for a period of 4 months or upto 35,000 Kms Mileage in the hands of the original purchaser whichever is earlier. It is alleged by the complainant that on the 7th day of its purchase there was some problem in the tyre which caused an accident on the high way. The complainant had informed the sales manager of OP1 and had sent the bike to their workshop. Some parts of the bike wee replaced on FOC basis. The complainant has also availed of the five free services to which he was entitled under warranty. He however, was not satisfied with the performance of the bike and had complained that there was a manufacturing defect in the same. He has alleged that there was a problem of engine oil leakage , noise from the silencer , engine misfiring , central locking not working from key remote. Front and rear wheel noise coming while scaling LHS and RHS. Noise from engine @ 20-35 KMs clutch operating time at slow speed and noise coming from engine area , poor average noise from engine side 80-90 Kms speed check. The complainant had taken up the matter with the OPs but his grievances were not resolved he had a, therefore, approached this forum with the present complaint.
The Ops have contested the complaint. In its written statement filed by OP1. it has been stated that the complaint is not maintainable. And is liable to be dismissed s thecomplainant had concealed material facts. Para 2, 3 and 5 of the preliminary objections of the written statement are reproduced as under:-
2. That the present complaint is not maintainable and liable to be dismissed because the complainant has not disclose the facts that he has run the motorcycle in question for more then 20000 kilometers and still using the said motorcycle and on the other hand alleging defects in the said motorcycle.
3 That the present complaint is not maintainable and liable to be dismissed because the complainant has availed all the free warranty services since the purchase of said motorcycle with full satisfaction of the complainant and when the warranty of the said vehicle is going to expire then the complainant has cooked this false story to take advantage from the process of law and to get free services from the Opposite Parties. Hence it is evidence that the complainant has misused the process of
5 That the present complaint is not maintainable and liable to be dismissed because the motorcycle of the complainant has been thoroughly checked and tested by the skilled mechanics of the OP and they found that the motorcycle of the complainant is free form any defect./
OP1 has contested the complaint on merits and has claimed that the complaint has no merit and is liable to be dismissed. It has prayed accordingly. A separate written statement has been filed by OP2 . OP2 has also claimed that the complaint is not maintainable ad is liable to be rejected as the complainant has not come up with clean hands and has suppressed material facts preliminary objection no. b of the written statement of OP2 is relevant and is reproduced as under:-
That it is submitted that the Complainant has purchased the vehicle as on 5.01.2010 and considered the fact that the warranty provided for the impugned vehicle is for a period for a period of 24 (twenty four) months or upto 30,000 kms of run of the vehicle in the hands of the original purchaser, whichever is earlier. In fact the Complainant has used the vehicle extensively to the tune of 20,813 kms as on 13.02.2012. The warranty for the impugned vehicle has expired on 4.01.2012. The complaint was filed on or about 5.01.2012; therefore it is clear that the complainant has preferred this complaint beyond the period of warranty for provided for the vehicle as stipulated in the owner’s manual supplied along with the vehicle. Hence the complaint is barred by limitation.
OP2 has also contested the compliant on merits. Paras 20, 21 and 22 of the reply on merits is reproduced as under:-
20. The Complainant has alleged that the vehicle was found to be defective by way of giving multiple problems regularly Such allegation has no truth in it, The Complainant has purchased the vehicle on 5.1.2010. In fact, he has availed certain free and paid services on various dates. Especially he has availed services on 20.12010, 102.2010, 5.5.2010. 30.6.2010. 27.8.2010, 27.10.2010, 5.1.2011, 13.2.2012 etc. among other dates. The services were rendered by the First Opposite Party in a good and proper manner. As explained supra regarding practice followed in the service network, the Complainant informed that he wants the First Opposite Party to attend to few service requests. The First Opposite Party has verified the service requests and checked the vehicle. The First Opposite Party has attended the service requests to the satisfaction of the Complainant. The Complainant took delivery from the First Opposite Party and started using the vehicle. In any of these service calls. there were no defects or problems as claimed by the Complainant prevailed in the iehicle. There was no communication of whatsoever nature attributing any alleged deficiency in service. Had it been so. there was no occasion for the Complainant to report his satisfaction. From very fact that the Complainant has expressed his satisfaction. it is amply clear that the motorcycle was in perfect condition and Complainant thereafter used the vehicle continuously till the next service request made over a penod of time Hence, the allegation with reference to the vehicle delivered to him as the vehicle was alleged to be defective from the very beginning after the vehicles purchase. has no force and meaningless. Hence. it goes without saying that there is no truth in the statement of facts alleged by the Complainant in this respect, and the case set-up by the Complainant is clearly an attempt to cause irreparable loss to th opposite parties.
21. The Complainant has admittedly been using the vehicle extensively to the tune of 20813 kms as on 13.02.20i2 The Complainant has been availing service support” from the First Opposite Party. Hence, there is no occasion for the Complainant to dispute or allege any deficiency in service. It is learnt from the First Opposite Party that the Complainants vehicle was attended by them from time to time whenever the Complainants vehicle came for services It is evident by the job cards maintained by the First Opposite Party that there were no defects in the vehicle The nature of service requests made by the Complainant was nothing but the resultant of usage of the vehicle by the Complainant, which were called for maintenance services. The Complainant has malafidely colored the maintenance service calls as “alleged deficiency in services’ In the present matter, the complainant has not brought true and proper material facts before this Honble forum. The complainant has set-up a case by suppressing necessary facts, in order to take wrongful advantage:
obviously the reasons are best known to him.
22 It is submitted that the Second Opposite Party has categorically mentioned in the owners manual furnished to the Complainant being the purchaser of the motorcycle, therein there is no reqLrement of replacement of the vehicle. The obligation of the Second Opposite Party n normal circumstances, within the period of warranty namely twenty four months from the date of purchase or 30.000 kms of vehicle run whichever is earlier, only found to have manufacturing defect. the respective components are to be replaced. The arranty condition does not require replacement of the o-wheeler or refund of purchase price. It is well settled position of law that when the sale of vehicle is supported with warranty condition and the warranty condition stipulates clearly that no replacement of vehicle by the manufacturer or the dealer as the case may be are not at all liable for any replacement of motorcycle even assuming but not admitting motorcycle is found to have manufacturing defect. The Honbie National Commission has held in the case of R. Bhaskar Vs ON Udhani & another reported in 2007 CTJ 129 CP (NCDRC) that” if a particular part of a machine is having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the machine as a whole”. In the above matter there is no evidence on record furnished by the complainant to establish any alleged manufacturing defect. There is no record to show that what constitutes a manufacturing defect as alleged in the complaint. Therefore, there is no scope for the complainant to work out any remedy or seek any order from this Honble Forum on the basis of materials available herein. In the absence of such evidence on record, it would not be a case attracting the Consumer Protection Act 19 86
Op2 has also prayed for the dismissal of the complaint.
We have heard arguments advanced at the bar and have perused the record.
On behalf of the complainant, it has been contended, rather forcefully that the vehicle suffers from a manufacturing defect and the Ops are bound to replace the same. The complainant has pressed into service a report under the signatures of Vinod Pant an engineer.
On behalf of the OP, it has been contended that there is no inherent defect in the vehicle in question and that the complaint is false and frivolous, it has been further contened that the complainant had availed of five free services from it and was satisfied with the services rendered before taking the delivery of the vehicle. It has been further contended that the motorcycle has run more than 20000 Kms and , therefore, there is no occasion for holding that it is having a manufacturing defect in the same. We have considered the rival contentions and had given our thoughtful consideration to the same. It appears from the complaint that the complainant had purchased the vehicle in question on 5.1.2010. The complainant has placed on record a job card dated 18.8.2010 wherein the complaints were made about oil, chain sound, engine missing , shocker ,battery , low average and real break sound. The only other job card placed on record is dated 31.10.2011 wherein the complainant had complaint of engine oil leake , sound in engine , sound in clutch , sound in handle etc. The job card shows that the remote lock central locking had been purchased from outside and was not covered under the warranty clause. Due service was givven to the complainant. The sound in the engine / clutch were found to be OP and the complainant had received back the motorcycle after satisfying himself about its working. No other job card has been placed on record by the complainant. The job card dated 31.10.2011 shows that the vehicle had run 20,013 Kms in a span of about 2 years. The fact that the vehicle had run more than 20,000 Kms in about 2 years shows that there was no manufacturing defect in the vehicle in question. The expert opinion filed on record also does not show any manufacturing defect in the vehicle in question. It is pertinent to note that the said opinion was rendered on 30.1.2013 when the warranty had already expired. We are, therefore, of the considered opinion that there are no merits in this complaint. The same is hereby dismissed.
Copy of the order be made available to the parties as per rule.
File be consigned to record room.
Announced in open sitting of the Forum on.....................
