BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.207 of 2017

Date of Instt. 05.07.2017

Date of Decision: 15.04.2019

Gagan Sondhi S/o Sh. Madan Lal Sondhi resident of KMV College B2, Jalandhar.

..........Complainant

Versus

1. India Yamaha Motors Pvt. Ltd. Regd. Office A-3, Industrial Area, Noida-Dadri Road, Surajpur, Gautam Budh Nagar, UP- 201306 through its MD.

2. Gupta Motors, Authorized Dealer India Yamaha Motors Pvt. Ltd. Mangat Market, Dr. Ambedkar Chowk, Nakodar Road, Jalandhar through its Head/Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: None for the Complainant.

None for the OP No.1.

Sh. Ravi Kant Jakhu, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that he purchased one Scooter Make Fascino Model 2017 from the OPs, vide Bill dated 09.03.2017. At the time of purchase of the said Scooter, OP No.2 assured the complainant that Scooter is of best quality and of great performance and as per his assurance, the complainant get ready to purchase the said Scooter. After about 4-5 days from the purchase of the scooter, the complainant found certain defects in the scooter such as suspension problem, shocker problem and there is also defect in the front paint of the scooter as well. The complainant visited the OPs on 17.03.2017 and informed them about the defect in the scooter, but they did not pay any attention towards the complaint of the complainant and as such, the complainant brought the vehicle on 21.04.2017, when the incharge of the service station of the OP No.1 came there. On 21.04.2017, the complainant reached to the workshop of the OP No.2 and OP No.2 told to the complainant to leave the vehicle and they will change the shockers and there is also fault in clutch and due to defect in paint front of the scooter. Even thereafter, the defects of the vehicle was not removed and there is vibration in the scooter. Then the complainant submitted one online complaint to the OP No.1 and they assured to the complainant that the defects will be removed within 48 hrs, but they failed to keep their words.

2. That thereafter, the complainant visited several times to the workplace of the OP No.2, but they did not give proper response to the complainant and ultimately, to stop the vibration by affixing double tapes on the vehicle. The complainant opposed to the said act of the OP No.2, then they talk very rudely with the complainant and handed over the service book of the complainant and told that they will not do anything. Despite several representation of the complainant to the OP, they did not pay any heed to the complaint of the complainant and as such, a legal notice was given to the OP, but the same remained vain and accordingly, a cause of action accrued to the complainant to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the total value of the vehicle and further OPs be directed to pay compensation of Rs.50,000/- for causing harassment to the complainant and litigation expenses of Rs.5000/-.

3. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that as per records maintained by the answering OP, the complainant admittedly purchased the Scooter in question, but the complainant has made false and malicious allegations just to harass the answering OP by stating certain non-existing defects of suspension problem, vibration in engine of Scooter in order to gain illegally at the cost of the answering OP. It is further averred that the answering OP provided a warranty on the said Scooter for a period of 2 years or 24,000 kms, whichever is earlier from the date of sale to the original purchaser. As per the terms of the said warranty, the same is extended only to the extent of certain parts that are found to have a manufacturing defect and not to the complete Scooter. Further, no liability lies of the answering OP for claims on those parts of the Scooter that have been subjected to mishandling or negligent treatment by the user. It is further submitted that as per the terms of warranty, the answering OP undertakes to repair and replace the parts that are found to have manufacturing defect within the period of warranty and not to refund cost of Scooter or replace the Scooter with a new one. It is further alleged that the complainant approached to the OP No.2 for the first time on 11.04.2017, vide Job Card No.538 for availing first free service of the Scooter. It is pertinent to mention here that during the said service, no defect/problem, whatsoever was alleged by the complainant and the scooter was brought for only availing general routine service. Then the complainant once again approached to OP No.2 on 24.04.2017, vide Job Card No.731 raising issues of rear shocker leakage and body panel colour. It is submitted that the service engineer of the OP No.2 immediately attended the vehicle and replaced the front body panel, rear shocker under company goodwill warranty policy without charging any amount from the complainant. Thereafter, the complaint of the complainant was received dated 25.04.2017 and scooter of the complainant was inspected and during the examination of the scooter, the OP found no defects in the scooter, much less as alleged by the complainant. Accordingly, the said complaint dated 25.04.2017 of the complainant was closed. Then the complainant again approached to the OP No.2 on 12.05.2017, vide Job Card No.1071 for availing second free service. That during the aforesaid service, the complainant raised problems/issues of vibrations, suspension, noise from the engine. That the examination and service engineer at the time of servicing of the scooter observed that no such vibration exist in the scooter as alleged by the complainant. The service engineer further observed that the scooter had low rotation per minute, which was result of mishandling of the scooter. It is further submitted that even after delivering the scooter to the full satisfaction of the complainant, the complainant has filed the instant complaint with the sole intention to gain illegal at the cost of the answering OP. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

4. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint filed by the complainant is not maintainable against the answering OP No.2, hence, the same is liable to be dismissed. It is further averred that the complainant has concealed the material facts from this Forum therefore, the complaint is liable to be dismissed and further submitted that the complainant came to the OP No.2 for service and told that there is a defect in shocker. It is pertinent to mention here that the complainant came to the OP No.2 on 24.04.2017, so, on the request of the complainant, the shocker were changed. If, he drive the vehicle on the road, then the answering respondent/OP No.2 is not liable for the same, hence, the present complaint is liable to be dismissed. On merits, the factum in regard to purchase of the vehicle is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. In order to prove the case of the complainant, the complainant himself tendered into evidence his own affidavit Ex.CA alongwith some documents Ex.C-1 to Ex.C-10 and closed the evidence.

6. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A alongwith documents Ex.OP-1/1 to Ex.OP-1/5 and closed the evidence.

7. Similarly, OP No.2 tendered into evidence his duly sworn affidavit Ex.OPW1/A alongwith some documents Ex.OP-1 to Ex.OP-3 and closed the evidence.

8. We have heard the counsel for the OP No.2 and also gone through the case file very minutely.

9. After considering the over all factors as alleged in the complaint, we find that the complainant categorically alleged in the complaint that there is a defect in the scooter, which occurred after about 4 or 5 days of the day of purchase, but this fact of the complainant is not established by any cogent and convincing evidence because if the defect occurred after 4 or 5 days from the date of purchase, then why the scooter was not brought to the service center of the OP rather as per Job Card placed on the file by the OP, the scooter in question was firstly brought to the service centre of the OP on 11.04.2017 for general check-up and service, if there was any defect in the scooter, then why the same was not reported to the OP No.2 on 11.04.2017, when Job Card No.538 was issued and then the complainant brought the scooter with the OP No.2 on 24.04.2017, vide Job Card No.731, raising the issue of shocker leakage and the same has been also told by the OP, then again the complainant brought the scooter in the service centre of OP No.2 on 12.05.2017, vide Job Card No.1071. All the Job Cards Ex.OP1/3 to Ex.OP1/5 have been brought on the file by the OP, the complainant miserably failed to bring on the file any documentary evidence, where-from we can construe that there is some manufacturing defect in the scooter, not manufacturing defect rather other defect is also not established by the complainant by leading cogent and convincing evidence. So, in the absence of any such type of evidence, how we can accept the version of the complainant that there is a manufacturing defect in the scooter and the same be returned to the OP with the direction to refund the payment. So, with these observations, we are of the opinion that the complaint of the complainant is without merits and accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

15.04.2019 Member President