BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no.128 of 2021.
Date of Institution : 19.07.2021.
Date of Decision : 17.04.2023.
Ram Pal Soni, aged about 50 years son of Shri Raghuveer Singh Soni, resident of Kirti Nagar, Ram Gali, House No.11/656, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. M/S Khanna Automobiles, Dabwali Road, Sirsa (Property ID No./ SRS/B-21/4179 Industrial Area-1, Dabwali Road), Sirsa authorized dealer of Hero Motocorps Limited, through its Manager/ authorized dealer.
2. Hero MotorCorp Limited, The Grand Plaza, Plot No.2, Nelson Mandela Road, Vasant Kunj, Phase-II, New Delhi- 110070 through its Managing Director.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
BEFORE: SH. PADAM SINGH THAKUR, ……………PRESIDENT
SMT. SUKHDEEP KAUR,………………… MEMBER.
SH. OM PARKASH TUTEJA, ……………. MEMBER.
Argued by: Sh. B.C. Bhatiwal, Advocate for the complainant.
Sh. Sudhir Narang, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred as Ops).
2. In brief, the case of complainant is that on 03.01.2021 complainant had purchased one new Motor Cycle HF Deluxe from op no.1 vide invoice No.12110BA21S794 dated 3.1.2021 on cash payment of Rs.59,925/- and op no.1 issued bill/ invoice, sale letter and manual book and also given free service card to the complainant. The op no.1 is authorized dealer and op no.2 is manufacturing company of Hero MotoCorps Motor Cycle and op no.1 on behalf of op no.2 company gave guarantee of motor cycle for a period of one year in all respects. It is further averred that after purchase, the said motor cycle could not work properly and there was serious problem in it. The engine of motor cycle gave high bad noise due to which complainant suffered serious harassment and could not get benefits even a single day. The complainant visited the op no.1 for five times and requested to remove the above said defects but all in vain and op no.1 has failed to remove the same rather told that it is manufacturing defect and cannot be removed. In this manner, both the ops are bound to replace the above said motor cycle with new one of same quality but none of the ops properly attended him in proper manner rather misbehaved with him. That act and conduct of the ops comes under the ambit of deficiency in service as well as unfair trade practice due to which complainant is suffering recurring financial losses and harassment. It is further averred that complainant also served a legal notice dated 24.03.2021 upon op no.1 but to no effect. That on 12.06.2021 two employees of company came to complainant and stated that his motor cycle is defective one which is due to manufacturing defect which is being replaced with new one by the company and they have taken the motor cycle from complainant by giving assurance that new motor cycle will be given by the company shortly. Thereafter complainant visited op no.1 on many occasions with request to replace the motor cycle and they also gave above said assurances to the complainant and on 30.06.2021 the op served a false and frivolous notice upon complainant to the effect that his vehicle is ready at shop and solved issues which is ready from 20.6.2021 and also imposed Rs.50/- per day garage charges upon complainant which is wrong, incorrect, against law and facts. It is further averred that thereafter complainant visited the op and asked that motor cycle was taken from complainant for replacing the same but in spite of replacing the motor cycle they have issued false notice but op no.1 stated that after opening the engine this vehicle was repaired and in such situation the said motor cycle cannot be replaced and also they have misbehaved with the complainant. In this manner by opening the engine of the vehicle, the value of the vehicle has been diminished in the market and they have also demanded Rs.7500/- from complainant for replacing vehicle otherwise they have refused to replace the same. That still the motor cycle is lying under the custody of op no.1 in its show room. Hence, this complaint.
3. On notice, ops appeared. Op no.1 filed written statement taking certain preliminary objections and submitted that complainant has suppressed the material facts, hence not entitled to any relief. It is submitted that the vehicle is made of various component which are assembled in such a way that which can be easily replaced without in any manner affecting the performance of the vehicle. The complainant last time visited the op on 30.07.2021 and all defects were repaired under warranty without charging from the complainant and no defect left to be cured as all were already being put in rest by op no.1 in previous visits. Further more, the problems alleged/ faced are not of nature which amounts to be manufacturing defect in a vehicle. It is further submitted that complainant is not maintaining the vehicle as prescribed as the complainant being mechanic of four wheelers cars done many tampering with the vehicle. Further more, the vehicle as on 30.07.2021 had covered 2859 KMs and on the other hand the complainant is alleging that it has manufacturing defect. The op no.1 repaired the vehicle of complainant even after violation of the warranty policy without charging for maintaining the cordial relationship with the complainant. Therefore demanding replacement of vehicle or cost of used vehicle is not legally tenable when the complainant is using the vehicle till now. It is further submitted that as per the warranty policy the said vehicle is warranted for five years or 70000 KMs whichever is earliest. Further more, the vehicle manufactured by op no.2 comes with warranty only as stated above and the company does not provide replacement guarantee with their vehicles. The ops and complainant are bound by the terms and conditions of the warranty policy. The ops are ready to oblige its each and every obligation and never shy away from its obligations. The complainant deliberately concealing the service book of the vehicle which was handed over to him at the time of sale, it contains all terms and conditions of the warranty.
4. On merits, while denying the contents of complainant, it is further submitted that it is evident from the vehicle history that complainant visited the op no.1 four times and out of which two times for availing free service and rest for general repair. It is specifically denied that complainant approached and requested the op no.1 repeatedly to replace the vehicle or to refund the cost of the vehicle alongwith the interest thereon but all in vain. The op no.1 sent reply dated 8.4.2021 to said legal notice by explaining the warranty policy in detail. Further more, the op no.1 also sent three letters dated 30.6.2021, 5.7.2021 and 14.7.2021 to the complainant for collecting his vehicle as it is ready for delivery since 20.06.2021. Remaining contents of complaint are also denied to be wrong and prayer for dismissal of complaint made.
5. Op no.2 also filed written statement on the similar lines as that of op no.1.
6. The complainant in evidence has tendered his affidavit Ex. CW1/A, affidavit of Sh. Subhash Chander son of Shri Mahavir Parshad Ex. CW2/A and copies of documents Ex.C1 to Ex.C7.
7. On the other hand, ops have tendered affidavit of Sh. Krishan Khanna authorized representative of op no.1 as Ex. R1, affidavit of Mr. Siddharth Tewari, authorized representative of op no.2 as Ex. R2 and copies of documents as Ex.R3 to Ex. R7.
8. We have heard learned counsel for the parties and have gone through the case file.
9. The complainant in order to prove that he had purchased motor cycle in question from op no.1 has placed on file tax invoice dated 03.01.2021 from which it is evident that said motor cycle was purchased by him on 03.01.2021 for a sum of Rs.59,925/-. Admittedly, the said motor cycle is manufactured by op no.2. The complainant alleges defects in the motor cycle in question for the very beginning of its purchase. Whereas ops have pleaded that complainant last time visited the op no.1 on 30.07.2021 and all defects were repaired under warranty without charging from the complainant and no defect left to be cured and the problems alleged/ faced are not of nature which amounts to be manufacturing defect in the vehicle. They have also pleaded that complainant is not maintaining the vehicle as prescribed and violating the warranty policy as the complainant availed the last free service on 26.02.2021 and thereafter he never brought the vehicle for service and as on 30.07.2021 the vehicle had covered 2859 Kms. It is specifically denied by the ops that vehicle has manufacturing defect and not repairable. There is also nothing on file to prove that motor cycle in question of complainant is having any manufacturing defect. The defects if any alleged by the complainant in the motor cycle may not be due to some manufacturing defect as complainant has not placed on file any expert opinion in this regard. But at the same time, the ops are liable to remove the defect, if any in the motor cycle free of costs being within warranty period as per warranty policy. So the ops are liable to hand over the motor cycle in question in road worthy condition without any defect and they are not entitled to charge any amount of Rs.7500/- from the complainant as alleged by him.
10. In view of our above discussion, we partly allow the present complaint and direct the opposite parties to hand over the motor cycle in question to the complainant after making it defect free even after replacement of defective parts, if any without charging anything from the complainant. We also direct the ops to pay a sum of Rs.5,000/- as composite compensation for harassment and litigation expenses to the complainant. The ops are liable to comply with this order within a period of 30 days from the date of receipt of copy of this order. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced: Member Member President,
Dated: 17.04.2013. District Consumer Disputes
Redressal Commission, Sirsa.
