Haryana

Bhiwani

CC/849/2019

Krishan Kumar - Complainant(s)

Versus

JAYA AUTO - Opp.Party(s)

ANIL SHARMA

30 Sep 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BHIWANI.

 

                  Consumer Complaint No. : 849 of 2019

                  Date of Institution             : 13.12.2019

                                                           Date of Decision               : 30.09.2024

 

Krishan Kumar son of Sh. Nand Lal R/o village Jui Khurd, Tehsil and District Bhiwani.

          ……Complainant.

 

Versus

 

1. Jaya Auto Mobiles, Opposite Mini Zoo, Vidhya Nagar, Meham Road, Bhiwani, Tehsil and District Bhiwani through its authorized signatory.

 

2. Hero MotoCorp Limited, The Grand Plaza, Plot No.2, Nelson Mandela Road, Vasant Kunj Phase-II, New Delhi-110070 through its authorized signatory.

….. Opposite Parties.

 

COMPLAINT U/S 12 OF CONSUMER PROECTION ACT, 1986.

 

BEFORE:     Mrs. Saroj Bala Bohra, Presiding Member.

Ms. Shashi Kiran Panwar, Member.

 

Present:-      Sh. Anil Sharma, Advocate for complainant.

                    Sh. Rahul Kaushik, Advocate for OP No.2.

                    None for OP No.1 (defence struck off v.o.d. 05.07.2022).

 

ORDER

 

Saroj Bala  Bohra, Presiding Member.

 

1.                 Brief facts of the present complaint are that complainant purchased a motorcycle Splendor Ismart 110, bearing registration no. HR-16R-1669 from OP No.1 (in short the vehicle) in the month of August/September 2016. The vehicle was having warranty for five years. It is alleged that since the purchase of the vehicle its performance was not good and self-start system was not performing well. OP made some repairs but the problem did not rectify. It is urged that from the date of purchase of the vehicle, its engine has been exchanged three times and self-start system for five times. It is alleged that complainant has spent Rs.50,000/- on repairs of the vehicle. As per complainant, the vehicle sudden break down a number of times in the midway by seizing of engine and in such a situation, complainant had to bring the vehicle to the workshop of OP No.1 by a rented vehicle. Further, complainant requested many a times to OPs to replace the defective vehicle with new one or refund the entire purchase price of the vehicle but the Ops flatly refused for the same. Hence, the present complaint has been preferred seeking directions against OPs to refund the entire purchase price of the vehicle or to replace the vehicle in question with new one. Further to pay Rs.1.00 lac as compensation for harassment besides Rs.50,000/- incurred on repairs of the vehicle.  Also to pay Rs.10,000/- towards litigation expenses. Any other relief, to which this Commission deems fit, has also been sought.

2.                 Upon notice, OP No.1 appeared through counsel and tendered reply raising preliminary objections qua maintainability of the complaint and suppression of material facts. On merits, it is submitted that complainant has not adhered to service schedule. It is denied that the vehicle was suffering from any defect from the date of its purchase, however, it is urged that the vehicle has covered 24000 km. till 02.08.2019. The warranty of the vehicle is for five years or 70000 km. whichever is earlier. However, as a goodwill gesture, the answering OP is ready to extend the benefit of warranty to the complainant. It is submitted that it is evident from vehicle history  that complainant was not maintaining the vehicle as per the warranty policy, the complainant availed the free 3^rd service on 12.05.2017, 5^th free service on 04.12.2017 and regular services on 01.06.2018, 12.07.2018, 11.04.2019, 02.08.2018 and 18.11.2019. In the end, it is submitted that the complainant faced the problem due to improper maintenance for which answering OP cannot be held liable. Further, denied for any deficiency in service on its part and prayed for dismissal of the complaint with costs.

3.                 OP No.1 did not file written statement despite availing sufficient opportunities. As such, defence of OP No.1 was struck off by the Commission vide order dated 05.07.2022.

4.                 In evidence of complainant, his affidavit Ex. CW1/A alongwith documents Annexure C-1 to Annexure C-5 were tendered and closed the evidence on 19.04.2023.

5.                 In evidence of OP No.2, affidavit Ex. R2/A was produced and closed the evidence on 13.03.2024.

6.                 We have heard learned counsel for the contesting parties and perused the record minutely.

7.                 At the outset, it is not in dispute that the vehicle was within a warranty of 5 years or 70000 km. whichever is earlier. As per averments of complainant, he purchased the vehicle in the month of August/September 2016 and this fact has also not been disputed by the OP No.2. The grievance of complainant is that the vehicle was having problem since its purchase which could not be rectified by OPs despite various repairs/services. Thus learned counsel for complainant has argued that the vehicle is having some manufacturing defect which is not repairable.

8.                 From copy of R.C. of the vehicle (Ex.C-1), it is evident that the complainant is registered owner of the vehicle. Ex. C-2 reveals that the vehicle was brought to the service center of OP No.1 on 17.08.2016 where a part wheel lock was replaced. Thereafter, as per job sheet dated 29.12.2018 (Ex. C-5) major repairs was done in the vehicle, in which some parts were in the warranty and thus replaced free of costs whereas charges were taken for some of the parts by OP No.1. Complainant in support of his case has placed on record, his duly sworn affidavit Ex. CW1/A which corroborates the version of complaint.  Ld. counsel for complainant during the course of arguments has submitted that the motorcycle was purchased in about Rs.60,000/- and the bills and other relevant documents of the vehicle were submitted to the Registering Authority at the time of getting prepared the R.C. of the vehicle and the complainant is entitled to get refund of the said amount.

9.       In view of the above discussion and going through the record, we have observed that complainant has been able to prove on record that the vehicle was having some manufacturing defect which could not be rectified despite repeated repairs. It is pertinent to mention here that since the vehicle has plied upto 70,000/- kms., therefore, it becomes necessary to deduct depreciation value of the vehicle from its purchase price, to which we assess as 40% from the purchase price of the motorcycle. Since, the OP No.2 is manufacturer of the motorcycle in question, as such, it was bounden duty of the OP No.2 to get the vehicle repaired as roadworthy to the satisfaction of complainant within its warranty period but it failed in doing so. Therefore, OP No.2 is liable to pay the cost of the motorcycle to the complainant after deducting depreciation value besides compensation for harassment. As per Google search, price of the motorcycle in August 2016 was Rs.55,837/-, so, the amount payable by OP No.2 comes to Rs.33,503/-. Accordingly, the complaint is allowed and OP No.2 is directed to comply with the following directions within 45 days from the date of passing of this order:-

(i)       To pay Rs.33,502/- (Rs. Thirty three thousand five hundred two) alongwith simple interest @ 6% per annum from the date of filing of complaint till its realization subject to return of the defective motorcycle to the OP No.2 and also to complete necessary formalities for transfer of ownership of the vehicle in favour of OP No.2.

(ii)      To pay a sum of Rs.5000/- (Five thousand) as compensation for harassment.

(iii)     Also to pay Rs.5500/-(Rs. Five thousand five hundred) as litigation expenses.

                    In case of default, the OP No.2 shall be liable to pay simple interest @ 7% per annum on the aforesaid awarded amounts for the period of default. If this order is not complied with, then the complainant shall be entitled to the execution petition under section 71 of Consumer Protection Act, 2019 and in that eventuality, the opposite party No.2 may also be liable for prosecution under Section 72 of the said Act which envisages punishment of imprisonment, which may extend to three years or fine upto rupees one lac or with both. Certified copies of this order be sent to parties concerned, free of costs, as per rules. File be consigned to the record room, after due compliance.         

Announced.

Dated:30.09.2024