Punjab

Rupnagar

CC/16/68

Davinder Kumar - Complainant(s)

Versus

Lucky Motors - Opp.Party(s)

Sh. Sukhwinder Singh Harraich, Adv.

20 Jun 2017

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR.

 

                                 Consumer Complaint No. :  68 of 03.10.2016

                                 Date of decision                    :      20.06.2017

 

 

Davinder Kumar, son of Sh. Ram Shah, Resident of Village Roruana, P.O. Kalwan, Tehsil Anandpur Sahib, District Rupnagar.

   

                                                                  ......Complainant

                                             Versus

 

1. Lucky Motors, Kh No.23/32/2, Garshankar Road, Nurpur Bedi, Tehsil Anandpur Sahib, District Rupnagar, authorized dealer SSP; Hero Motocorp Ltd. through its Manager    

2. Hero Motors Corporation Limited, SCO 367-368, 1^st Floor, Sector 34-A, Chandigarh, 160022, through its Branch Manager. 

                                                                                                                                                                                          ....Opposite Parties

 

                                   Complaint under Section 12 of the                                                      Consumer Protection Act, 1986

 

QUORUM

 

                        MRS. NEENA SANDHU, PRESIDENT

                        SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

 

Sh. S.S. Harraich, Advocate, counsel for complainant 

              O.P. No.1 ex-parte

              Sh. Varinderjit Singh, Advocate, counsel for O.P. No.2

 

 

ORDER

                        MRS. NEENA SANDHU, PRESIDENT

 

Sh. Davinder Kumar through his counsel has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for the following reliefs:-

i)       To replace the vehicle in question properly without any cost or to replace the engine of the vehicle in question  

ii)      To pay Rs.80,000/- as compensation on account of mental agony and physical harassment suffered by him along with interest @ 18% per annum       

                  iv)       To pay Rs.10,000/- as cost of litigation

 

                  v)        Any other relief as this Hon'ble Forum deems fit.

 

 

2.                                    The brief facts of the case are that the complainant on 30.09.2013, purchased a motor cycle Hero Honda Splender Plus, Model 2013, bearing registration No.PB-12-U-2413, having engine No. HA10EJDHF28692, Chassie No. MBLHA10AAMDHF17836, from the O.P. No.1, having warranty of five years. All the free services of the said motor cycle, were done by the O.P. No.1 and even thereafter he is taking his motor cycle for its service to O.P. No.1 only. Lastly on 22.8.2016, he got the paid service of his motor cycle done from O.P. No.1 and it charged Rs.796/- for it. After the service, whenever he started the motor cycle, he found that it emitted the electric current. He took his motor cycle to O.P. No.1 for checking its the employees told him that this problem in the motor cycle is because of retention of water, due to washing at the time of it service and the said problem would be solved within few hours. However, even after repair, the said problem still persisted. He again approached the O.P. No.1. Its employee changed the wire of plug. Inspite of that the problem could not be rectified. He again visited the O.P. No.1, for removal of the said problem. The employee of the O.P. No.1, opened the engine of the said motor cycle and thereafter, there was leakage of engine oil and noise from the engine of the said motor cycle. He requested the O.P. No.1 for doing the needful but its employee instead of doing so abused him and used filthy language. Hence, this complaint. 

3.                         On being put to the notice, the learned counsel for O.P. No.1 has filed written version taking preliminary objections; that the complainant has no cause of action to file the present complaint against it; that there was no deficiency in service on its part; that the complaint is bad on account of non joinder of necessary party. On merits, the O.P. No.1, admitted the factum of purchase of the vehicle in question by the complainant from it. It is also admitted that it is the authorized dealer of M/s Hero Moto Corp Ltd and on 22.8.2016, the service of the motor cycle in question was done by the authorized and trained engineers/mechanics as per norms of the company and after its repair the motor cycle was handed over to the complainant in a road worthy condition. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

4.               On being put to the notice the learned counsel for the O.P. No.2 has filed written version taking preliminary objections; that the  present complaint is misconceived and untenable both on the facts and in law; that complainant has not come to this Hon'ble Forum with clean hands; that the complainant has intentionally and deliberately suppressed the material facts; that the complainant has no cause of action to file the present complaint; that the present complaint is frivolous and vexatious; that the present complaint is an abuse of process of law; that the complainant had not impleaded the answering O.P. in the complaint. On merits, it is stated that answering O.P. deals with its dealer on principal to principal basis and as per terms and conditions of the dealership agreement, the dealers are authorized to carry out after sales service of the motor cycles, sold to the customers. It is further submitted that the motor cycle, which the complainant purchased on 30.09.2013, from M/s Lucky Motor son i.e. O.P. No.1 is having a warranty of five years or 70000/-, km whichever is earlier from the date of purchase of the motor cycle, subject to limitation and conditions mentioned therein. The motor cycle of the complainant is still under warranty with reference to the period and distance and under the express terms and conditions of warranty, the obligation of the answering O.P. is only to repair and replace the defective parts and not to replace the motor cycle or refund the price of the same. As per owner’s manual, the vehicle has to undergo three mandatory free services as well as the three paid services with reference to the distance or the period cover. The complainant has not produced, any record to show that he has complied with the terms and conditions of the warranty and got done the service of the motor cycle in question in time. The complainant himself was negligent in getting his motor cycle serviced in time and has violated the warranty terms and conditions, hence he is not entitled for any relief. The complainant has driven the said motor cycle for more than 3 years, having odometer reading of 35000/- Kms, without any problem, which clearly shows that there is no inherent manufacturing defect in the said motor cycle. Had there been any manufacturing defect the same would not have run for such a long distance, spanning more than three years without having problem. Rest of the allegations made in the complaint have been denied and prayer has been made dismissal thereof.

5.                          On being called upon to do so, the complainant tendered his affidavit Ex.CW1/A along with documents Ex.C1 to Ex.C13 and closed        the evidence. After filing the written version, none has appeared on       behalf of the O.P. No.1 and it was proceeded against ex-parte vide order        dated 26.5.2017. The evidence on behalf of the O.P. No.2 is also closed    by order on the said date  

6.                          We have heard the learned counsel for the contesting parties and have gone through the record of the file including written arguments filed by     the learned counsel for the O.P. No.2, carefully.

7.               Admittedly, on 30.09.2013, complainant purchased the motor cycle in question from the O.P. No.1 manufactured by the O.P. No.2. From the documents pertaining to warranty Ex.C13, it is evident that manufacturer has given a warranty of five years or 70000 Kms, whichever is earlier. The plea of the complainant is that he got his motor cycle serviced from the O.P. No.1 as and when required and to prove this fact he has placed on record several job sheets issued by the Lucky Motors. The complainant has alleged that after the service on 22.08.2016, on plying the said motor cycle, he found that there was an electric current and he again took his motor cycle to O.P. No.1 for removal of the said problem. However, the engineers/mechanics of the O.P. No.1 could not rectify the said problem even after their best efforts and had opened the engine of the motor cycle and thereafter there was leakage of oil and noise from the engine also. He complained about the problem to the O.P. No.1 but it refused to rectify the said problem, inspite of the fact that his motor cycle was under warranty. As per O.P. No.2, the motor cycle in question is still under warranty with reference to period and distance and as per the terms and conditions of the warranty, it is liable to repair or replace the defective part (s). Since, the motor cycle in question is still under warranty, therefore, as per terms and conditions of the warranty, the O.P. No.1 being service centre and O.P. No.2 being manufacturer were duty bound to set the motor cycle in question right, either by repairing/replacing the defective part(s). By not doing so, the O.Ps. have committed deficiency in service, therefore, they are not only liable to remove the defects of the motor cycle in question either by repairing/replacing the defective part(s) free of cost, as per terms and conditions of the warranty and to make it road worthy. But are also to compensate the complainant for the mental agony and physical harassment suffered by him along with litigation expenses.

8.                          In view of the aforesaid discussion, we allow the complaint and O.Ps. No.1 & 2 are directed in the following manner:-

1.     To hand over the motor cycle in question to the complainant in a road worthy condition by repairing/replacing the defective part(s) free of cost as per terms and conditions of the warranty within 15 days after receiving the motor cycle from the complainant.

2.     To pay Rs.10,000/- as compensation on account of mental agony and physical harassment suffered by the complainant and also litigation cost of Rs.5000/- to the complainant at the time of handing over the motor cycle in question to the O.P. No.1. 

The O.Ps. No.1 & 2 are further directed to comply with the aforesaid directions jointly and severally. The complainant is also directed to hand over the motor cycle in question for its repair to the O.P. No.1, within a period of 10 days from the date of receipt of certified copy of this order. 

9.               The certified copies of this order be supplied to the parties forthwith,      free of costs, as permissible under the rules and the file be indexed and     consigned to Record Room.

          ANNOUNCED                                                                       (NEENA SANDHU)

          Dated:20.06.2017                                       PRESIDENT

 

                                                           (SHAVINDER KAUR)

                                                                              MEMBER