Haryana

Yamunanagar

CC/693/2013

Sanjeev Kumar s/o Sh.Gurnam Singh - Complainant(s)

Versus

J Pupneja Agencies - Opp.Party(s)

Rajeev Khurana

20 Jul 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 693 of 2013

                                                                                    Date of institution: 24.09.2013    

                                                                                    Date of decision: 20.07.2017

 

Sanjeev Kumar son of Shri Gurnam Singh, resident of village Baindi, Tehsil Radaur, District Yamuna Nagar.

 

              …Complainant.

                                                            Versus

 

1. J. Pupneja Agencies # 8 Parlad Puri, Workshop Road, Opp. Booter Petrol Pump, Yamuna Nagar -135001(Haryana)

 

2. Mahindra Two Wheelers Ltd. D-1 Block, Plot No.18/2 (Part) M.I.D.C. Chinchwad, Pune.

                                                                                                              …Respondents.

 

BEFORE:       SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                      SH. S.C.SHARMA………………………….MEMBER.

                      SMT. VEENA RANI SHEOKAND………....MEMBER.

 

Present:          Shri Rajiv Khurana, Advocate for complainant

                      Shri Gaurav Mehta, Advocate for OP No.1.

                      None for OP No.2

 

ORDER (ASHOK KUMAR GARG, PRESIDENT)

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act. 1986 (amended upto date) against the respondents (hereinafter respondents will be referred as OPs).

2.                     Brief facts of the complaint, as alleged in the complaint, are that complainant purchased two wheeler “Mahindra Stallio” bearing Chassis No.MCDME1814A1K04069, Engine No.MFEAH011554 for a sum of Rs.44650/- vide bill No.184 dated 18.02.2011 from the OP No.1 who is dealer of the OP No.2 manufacturing company. At the time of purchase of two wheeler  in question, the OP No.1 assured the complainant that the two wheeler in question will give excellent mileage of 80KM per litre but since from the beginning, the said bike (two wheeler) in question gave the mileage of only 50 KM per litre instead of 80KM per litre as was claimed and assured by the OPs and even after some time it was also noticed by the complainant that the said motor bike was consuming excessive engine oil(mobile oil) upon which the matter was reported to the OP No.1 who kept on putting off the matter on one pretext or the other and ultimately OP No.1 called engineer from the OP No.2 and tried his best to solve the problem but despite that neither the mileage of the motor bike was increased nor the problem of consuming excessive mobile oil/engine could be solved and it was revealed that there is some manufacturing defect in the engine of the motor bike in question. After that complainant made many requests to the OP No.1 to return the sale consideration of the motor and to take back the motor bike in question. But the OP No.1 refused. Hence, this complaint with the prayer that OPs be directed to refund sale consideration of the motor cycle after taking back the same and also to pay compensation as well as litigation expenses.                    

3.                     Upon notice, OP No.1 appeared and filed its written statement  taking some preliminary objections such as complainant has not come to the Court with clean hands; true facts are that there is no manufacturing defect in the vehicle in question and if any alleged defect occurred in the vehicle the same is due to mis-handling, improper lubrication and lack of maintenance and due to negligence on the part of the complainant himself as the complainant availed five services from the authorized Service stations of the company i.e. on 16.03.2011, 12.11.2011, 21.08.2011, 28.10.2011 and 22.02.2012 and no defect of any kind in the vehicle in question was noticed and complainant was fully satisfied with the vehicle but the complainant has not come to the authorized service station for about 4 months and 6^th services was availed by him on 22.06.2012 as the tail light of the vehicle of the complainant was damaged in an accident as mentioned in the job card of the complainant and thereafter, complainant did not turn up to avail services from the authroised workshop of the company nor made any complaint with the OPs. It has been further mentioned that after 22.06.2012 the complainant never approached to avail any service and has not got extended the warranty of the vehicle by depositing, the fee required for further 2 years and on merit all the contents of the complaint were controverted and reiterated the stand taken in the preliminary objections.

4.                     OP No.2 also appeared and filed its written statement taking some preliminary objections such as complaint does not fall within the definition of ‘Consumer dispute’ as neither any manufacturing defect is proved nor any deficiency in service had been established against the OP No.2. All the averments and/or allegations made therein are frivolous and baseless and misconceived; the complainant has not placed on file any expert opinion/documentary proof in form of evidence from a notified laboratory to prove that the subject vehicle suffers from problems as alleged, which necessitated service of the vehicle free of cost under warranty or to establish any manufacturing defect in vehicle in question. The provision of under Section 13(1)(C) of the Consumer Protection Act has not been followed by the complainant; relationship exists between the OP No.2 and OP No.1 is on principle to principle basis. Thus, for acts of one opposite party, another opposite party cannot be held vicariously liable; the complainant has purchased the vehicle from the OP No.1 which is new vehicle, which requires mandatory servicing and replacement of specified components i.e. fuel, filter etc. at recommended intervals as mentioned in the service book. Further, it has been mentioned that the vehicle purchase by complainant is a well established product in the market and over a period of years, the consumers are using the product and the complainant had taken the delivery of the vehicle after being satisfied with the conditions of the vehicle and its performance; dispute in nature involves lot of technicalities, lot of examination and cross examination of the services inquiry determination of complicated question facts of law involved as such this matter cannot be decided in summary nature and on merit all the contents of the complaint were controverted and reiterated the stand taken in the preliminary objection. However, it has been submitted that mileage of the particular vehicle depends on various factors that inter alia includes geographic conditions, use of clutch, gear and braking, road condition, timely servicing, kind of engine/mobile oil used. Lastly prayed for dismissal the complaint qua the OP No.2.

5.                     In support of his case, learned counsel for the complainant tendered into evidence affidavit of complainant as CW/A, photocopy of purchase bill dated 18.02.2011 as Annexure C-1, photocopy of Insurance Cover note as Annexure C-2, photocopy of Form no.2 and Form No.15 as Annexure C-3 and C-4, photocopy of warranty registration card s Annexure C-5 and closed the evidence on behalf of complainant.

6.                     On the other hand, evidence of the OPs was closed by Court order on 14.07.2017. However, at the time of filing written statement, OP No.1 filed affidavit of Shri. Janak Raj Pupneja as Annexure A-1, photocopy of service book as Annexure A, photocopy of vehicle history copy as Annexure B.

7.                     We have heard the learned counsel for the complainant  and have gone through the pleadings, documents placed on file.

8.                     It is not disputed that complainant purchased two wheeler “Mahindra Stallio” bearing Chassis No.MCDME1814A1K04069, Engine No.MFEAH011554 for a sum of Rs.44650/- vide bill No.184 dated 18.02.2011 from the OP No.1 who is dealer of the OP No.2 manufacturing company.

9.                     The only grievance of the complainant is that at the time of selling the vehicle in question, the OP No.1 assured to the complainant that bike in question will give excellent mileage of 80KM per litre, whereas bike in question gave mileage only 50KM/per litre as claimed and assured by the OP No.1and it was also noticed that motor bike in question was consuming excessive engine oil, upon which the complainant requested the OPs to take back the vehicle in question and refund the cost of the vehicle. But, they flatly refused, which constitutes the deficiency in service and unfair trade practice on the part of the OPs. But this plea of the complainant is not tenable as the complainant has totally failed to place on file any cogent evidence to prove that the vehicle in question was giving mileage of 50KM instead of 80KM as no expert opinion or expert report or any report from any notified laboratory/ITI has been placed on file to prove the same. Even, the complainant has failed to place on file any such pamphlet in which the OPs has claim the mileage of 80KM/per litre and in the absence of any such assurance it cannot be presumed that the OP No.1 has misrepresented the facts regarding the vehicle in question to the complainant. Further, the complainant has not followed the provision of Section 13(1)(C) of the consumer protection Act, wherein it has been stated that :

“Where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods; the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum”.

 The complainant has placed on file only photocopy of purchase bill and insurance cover note and Form No.22 and 15 but from these document it is nowhere proved that the vehicle in question was having any manufacturing defect or was not giving proper mileage per litre as alleged in the complaint.

10.                   On the other angle also, the mileage of particular vehicle depends on various factors that inter alia include geographic conditions, use of clutch, gear and braking, road condition, timely servicing, kind of engine/mobile oil used etc.

11.                   Resultantly, in the circumstances noted above and the case law referred in the written statement by the OPs we are of the considered view that there is no merit in the present complaint and the same is hereby dismissed with no order as to cost. Copy of this order be sent to the parties free of cost as per rules. File be consigned to the record room after due compliance.

Announced in open Court:

Dated: 20.07.2017.

           

		(ASHOK KUMAR GARG) PRESIDENT,DCDRF, YAMUNANAGAR.
(VEENA RANI SHEOKAND) MEMBER	(S.C.SHARMA) MEMBER