BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.348 of 2014
Date of Instt. 13.10.2014
Date of Decision: 25.07.2017
Keshav Sohal, aged about 35 years S/o Ram Kumar r/o 320 Ram Nagar Una, (Himachal Pardesh)
..........Complainant Versus
1. Jaswant Motors 39-40 G.T. Road, Jalandhar through its Manager/Office Incharge.
2. Hero Honda Motors Ltd. 18/1 P.L.N Complex 3rd Coronosmith Road, Gopala Puram Chennai-600086 through its M.D/Manager/Office Incharge.
….… Opposite parties
Complaint Under the Consumer Protection Act.
Before: Sh. Karnail Singh, (President)
Sh.Parminder Sharma (Member)
Present: Sh. Jaipal Sharma, Adv Counsel for complainant.
Sh. Harleen Kaur, Adv and Sh. KC Malhotra, Adv Counsel for OP No.1 and 2.
Order
Karnail Singh (President)
1. The instant complaint presented by complainant, wherein stated that he purchased one new Hero Honda Krisma motor cycle bearing Chasis No.MBLMC38E39GG00699, Engine No.MC36EA9GC1245 make Hero Honda Limited Colour yellow alongwith 2 years/30000 K.M guarantee in the month of July 2009 and made full and final payment in cash. As the complainant was on the way Una (H.P.) from Jalandhar Punjab the lights of the motor cycle automatically turned off and the complainant had to face serious problem in hill area at night time. The complainant made telephone complaint of the same to the OP No.1 and told them to show the motor cycle at M/s Rajan Automobile Una, who is the authorized dealer of Hero Honda motors OP No.2 the defect whatsoever was got checked next day at the said address. That later on after some days, new motor cycle started developed major mechanical problems and started heating up and again the complaint was made to the OP No.1 and the OP No.1 told the complainant that the engine of the motorcycle needed some repair. That within two-three months of the purchase of the motorcycle the engine was got over hauled to get rid of the mechanical problem whatsoever which is very shocking as the engine of the new motor cycle does not repair or over hauling even after 15 to 20 years. After the engine work was over the motorcycle again did not run well and developed the low average of about 8-9 KM per liter. Again complaint was registered to the dealer at this time the complainant was again told to visit M/s Rajan Automobiles, where it was told that motorcycle had some manufacturing defect and it was not possible them to make it right and were told to consult the dealer from where the motorcycle was purchased. In the above process of this repair the complainant is already spent a sum of Rs.10,000/- and also the motorcycle is not in running position and is standing at Rajan Automobile and they are demanding Rs.5000/- more for recent repair work. The OPs were requested to replace the said motorcycle number of times but to no avail. Earlier the complainant had filed a complaint before Consumer Forum Una (H.P.) and the said complaint was dismissed as withdrawn with the permission of Forum to file the same in proper forum on the same cause of action hence the present complaint filed with the prayer that OPs may kindly be directed to replace the motorcycle as the same is well within the guarantee period of two years/30000 KM, whereas it has run below 10000 KM only and to pay damages in sum of Rs.30,000/- to the complainant for causing harassment, inconvenience, mental tension and financial loss.
2. Notice of the complaint was given to the opposite parties who filed joint reply and contested the complaint by taking preliminary objections that the present consumer complaint is an abuse of the process of law and is liable to be dismissed on this ground. In the case set up by the complainant he has claimed the relief of replacement of the motorcycle however has not been able to prove any manufacturing defect therein. The complaint being baseless is liable to be dismissed and further averred that the present complaint is also liable to be dismissed on the sole ground that the authorized service centre (ASC) of the OP No.2 M/s Raizada Automobiles, Amb Road, Una (HP) with whom the motorcycle was last abandoned by the complainant on 29.12.2010, has not been made a party to the dispute, the complaint is bad for non-joinder of necessary parties and further alleged that the present complaint is an abuse of the process of law and is liable to be dismissed on this score alone. The said motorcycle as purchased by the complainant on 06.08.2009, carried a manufacturer's warranty of 2 years/30,000 Kms, issued by the OP No.2, whichever is earlier and the same expired with the passage of time on 05.08.2011 and thereafter the complainant is well within his rights to seek the repairs of the defects if any from the Authorized Dealers/Service Centres of the OPs, herein OP No.1 against Payment Basis only, although in the present case, the motorcycle was successfully repaired by the ASC of the OP No.2, M/s Raizada Automobiles, Amb Road, Una (HP) way back in the year 2010 and due intimation accorded to the complainant time and again. Even otherwise, once the motorcycle had been repaired, the complainant was left with no cause of action to file the present complaint and the same is liable to be dismissed on this score alone and further alleged that the present consumer complaint is also liable to be dismissed on the sole ground of time barred, because the motorcycle was sold to complainant by the OP No.1 on 06.08.2009, hence for all intents and purposes, the limitation would expire with the passage of time on 05.08.2011, however the complainant filed the present complaint before this Hon'ble Forum only on 13.10.2014, hence even at the time of being filed it was barred by limitation by a period of over 38 months. However, no separate application seeking the condonation of the delay was ever filed by the complainant. In this regard even otherwise, the order dated 22.07.2014 as passed by the Learned District Consumer Disputes Redressal Forum, Una (HP) only permitted the complainant to withdraw the complaint to file afresh before the proper Forum, however the essence of the said order cannot be construed to mean that the Learned Forum Una, HP or this Hon'ble Forum could have condoned the delay in filing the present complaint, thus the complaint being barred by limitation is liable to be dismissed. On merits, it is admitted that the complainant purchased the motorcycle but the other allegations as made in the complaint are categorically denied and lastly prayed that the complaint of the complainant may be dismissed with costs.
3. In order to prove the case of the complainant, complainant himself tendered into evidence his own affidavit Ex.CA alongwith documents Ex.C-1 to Ex.C-9 and in additional evidence, the complainant tendered into evidence affidavit of the mechanic Gurdeep Kumar Ex.CB alongwith his report presence sheet and photographs Ex.C10 to Ex.C21 and then closed the evidence.
4. Similarly, counsel for OP No.1 and 2 tendered into evidence affidavit Ex.OPA alongwith some documents Ex.OP/1/1 to Ex.OP/1/8 and then closed the evidence.
5. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
6. In nutshell, the analysis of the case in hand is that the complainant filed the instant complaint, whereby alleged that there is a manufacturing defect in the motorcycle Hero Honda Krisma and due to that reason, he alleged that the said motorcycle be replaced with the new one and also claimed compensation and litigation expenses. No doubt in order to prove his allegations, the complainant has brought on the file some documents i.e. his own affidavit Ex.CA and some documents Ex.C1 to Ex.C10 and also examined Gurdeep Kumar Mechanic, whose affidavit is Ex.CB and report as well as photographs Ex.C10 to Ex.C21.
7. The version of the complainant is controverted by the OP by taking numerous ground in preliminary objection that the complainant miserably failed to prove manufacturing defect in the motorcycle and even the complaint of the complainant is time barred and make request to dismiss the same.
8. Before imparting with the case on merit, we are of the considered opinion that the question of law is to be taken into consideration firstly i.e. whether the complaint of the complainant is within limitation or not. Obviously the complainant purchased the motorcycle in the month of July, 2009, but he very cleverly has not mentioned the date when any defect occurred to the motorcycle rather simply stated that after some days motorcycle started giving some major mechanical problem and regarding that the complainant filed a consumer complaint in the District Una, State Himachal Pardesh, copy of the order of the District Consumer Forum, Una (HP) is available on the file Ex.C1 dated 22.07.2014, no doubt the period consumed by the complainant in the said District Consumer Forum, Una is to be excluded while reckoning the period of limitation i.e. from the date of filing from 31.03.2011 to date of withdrawal 22.07.2014 and we have to take the time from the date of delivery of the copy of the order as passed by the District Consumer Forum, Una. As per endorsement made on the order Ex.C1, the copy of the order was delivered on 08.08.2014 and after receipt of the copy on 08.08.2014, the complainant is required to file a complaint in this Forum at Jalandhar immediately i.e. on the next date but obviously and admittedly, the complaint filed in this Forum was on 10.10.2014 means after two months and two days. So, there is a delay of two months and two days, no doubt the complainant has liberty to get it condoned by filing a separate application or explaining the delay in the complaint but if we go through the complaint, the delay has not been explained by the complainant and it cannot be suo-moto condoned by this Forum and accordingly if we considered the period for filing the complaint in this Forum from the date of the receipt of the copy of order then obviously there is a delay of two months and two days and accordingly, we hold that the complaint of the complainant is time barred and in support of this observation, we took a liberty to make a reliance upon the judgment of Hon'ble National Commission, cited in 2007(3) CLT 374, title “Punjab State Electricity Board & Others Vs. Saini Rice and General Mills & Others”. So, accordingly relying upon the aforesaid judgment, the complaint of the complainant is time barred and therefore, the same is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.
9. 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 Parminder Sharma Karnail Singh
25.07.2017 Member President
