SRI BIJOY KUMAR DAS,PRESIDENT:-
Allegation of manufacturing defects in the Motor bike of the Complainant and refund of cost of the Motorbike are the allegations arrayed against the Opp. Parties.
2. Complaint, in brief reveals that, Complainant purchased a Renegade Commando Two-Wheeler Motor Cycle from Op No.1 on dt. 17.03.2017 with delivery invoice No. 183 dt. 17.03.2017 by paying an amount of Rs. 2,01,449/-. The manufactures of the Motor cycle is Op No.2 and Op No.1 is its authorized dealer. Complainant to purchase the motorcycle availed the finance from HDFC-Bank Bhubaneswar(Op No.3). It is stated in the complaint that, warranty card issued against the purchase of the Motorcycle is valid for 24 months or 20,000kms of running whichever is earlier. It is alleged that, after few days of purchase of the Motorcycle several defects like regular oil leaking from engine, wiring problem, starting problem and sudden break down were noticed and complaint was lodged before the Op No.1-Dealer. On receipt of complaint, OpNo.1 deputed their service mechanic to the house of the complainant for rectifying the defects and the vehicle was even brought to the house of the complainant on its sudden break down on the road. It is also alleged that inspite of replacement of sidedrum, break shoe by the mechanic of Op No.1 still the defects persist on the motorcycle. Complainant to eradicate defects had taken the motorcycle to the work-shop of the Op no.1 for more than 4 to 5 times. As the defects continued on the vehicle within a short period of its purchase and complainant being aggrieved issued a legal Notice on dt. 13.12.2017 by Regd. Post with A/D. It is further alleged that on receipt of Notice dt. 13.12.2017 and in the instruction of Op No.1-Dealer the defective vehicle was produced at Sukarpada by hiring an auto-rickshaw on 23.12.2017 and one Kali Ch. Pradhan the mechanic of the OpNo.1 attended the vehicle, but could not rectify the defect and took away the vehicle to their authorized work-shop for replacement of spare-parts and eradication of defects. According to complainant the defects occurred on the Motor bike are inherent in nature and he has spent a good amount for repair of the vehicle during the warranty period and the Op No.1 dealer has no adequate technical knowledge to rectify the defects. The acts of the Ops are Unfair Trade Practice, which gives financial loss and mental agony to the Complainant. Complainant preys this forum for refund of the cost of the vehicle was purchased by occurring a finance from Op No.3-Bank. It is also prayed that an amount of Rs. 2,90,000/- be awarded in favour of the Complainant alongwith cost of litigation.
3. Upon Notice Op No.1 Managing Director, U.M.Odisha, Pahal, Bhubaneswar appeared through their Ld. Counsel and filed written version into the dispute with preliminary objection. Op No.1 in the preliminary objection has raised the point of Jurisdiction U/S11(2) of C.P.Act-1986 by averring that neither any office/branch office of the Ops are located nor any cause of action arose within the local jurisdiction of this Forum. In the written version of Op No.1, it is averred that, as per the terms of warranty during the first few Kms of driving the adjustment of the parts and preventive maintenance are extremely important for the motorcycle. The warranty is filed as Annexture-A and D series. The invoice issued in favour of the complainant on dt. 27.03.2017 reflects that complainant paid a total amount of Rs. 1,92,418/-, which includes the cost of the vehicles, GST and Road TAX. The money receipts/invoice are marked as Annexture B & C. It is also averred that the alleged defects are minor and temporary in nature and were rectified during its repair and the allegations are baseless as the alleged defects are without any proper analysis as prescribed U/S 13(C ) of C.P.Act-1986. It is also averred that the Motorcycle in question was brought to the workshop of OpNo.1 for six(6) times for repairs with replacement of different spare-parts. Copy of the six job cards are annexed and marked as Annexture-E series and Job-history is annexed as annexture-F. It is the plea of OpNo.1-Dealer that certain problems occurred in the bike are due to modification in roadside garage. It is further averred that, the Motor-bike of the Complainant is complete in all respect and ready for its delivery at the workshop and inspite of contact, the complainant is not taking the delivery of the vehicle. The Op No.1-Dealer also states no Unfair Trade Practice or deficiency in service has been committed and complainant has foist a false case to avail the illegal gain and complaint being a non-technical person can’t opine that the defects in vehicle are inherent in nature. In the circumstances, the Complainant is to be dismissed against Op No.1 with cost U/S 26 of C.P.Act-1986.
OP No.2 U.M. Lohia two wheelers Pvt. Ltd., Okhla, New Delhi on receipt of the Notice appeared through their Ld. Counsel and filed written version, which is similar to the version of Op No.1Dealer, hence the version of OpNo.2-Manufactureing Company needs no elaboration. Op No.3, HDFC-Bank Unit-8, Nayapallai, Bhubaneswar though received the Notice of the Forum, but did not prefer to appear into the dispute, hence, set ex-parte by this Forum bearing order No.12 dt. 08.04.2019.
4. Heard the arguments advanced by Ld. Counsels appearing for the contesting parties, ex-parte hearing against Op no.3 and perused the documents filed into the dispute. Complainant to substantiate his case filed documents as per the list. Opno.2 filed documents as annexures. The admitted facts of the case are that, Complainant purchased a Renegade Commando two-wheeler Motor cycle from the Op no.1 Authorized Dealer U.M. Odisha, Pahal, Bhubaneswar and the Motor cycle is manufactured by Op No.2, U.M. Lohia Two Wheelers Pvt. Ltd., Okhla, New Delhi. It is an admitted fact that the retail invoice in support of sale of the Motorcycle issued on dt. 27.03.2017 alongwith the warranty card. It is also admitted that during existence of the warranty period the vehicle has been repaired or the spare parts are replaced. It is further admitted that, till-date the disputed vehicle remains in the workshop of the Op No.1 Authorized Dealer.
Both the contesting Ops (Op No.1&2) raised the question of maintainability on ground of ‘Jurisdiction’ of the Forum, U/S11 of C.P.Act-1986. It is the case of the contesting Ops that there is no office/branch office or no cause of action located/arises within the local Jurisdiction of this Forum. The facts reveals from the complaint/documents presented by Complainant that, there is no office situated within the local limits of this Forum. But according to Complainant the ‘cause of action’ or a ‘part of the cause of action’ arose within the territorial Jurisdiction of this Forum. It is the case of the complainant that, the disputed vehicle after its purchase was running and defects occurred into vehicle and its repair by the service guy in house of the complainant are part of cause of action, which arises within the local limits of this Forum. It is the further plea of the Ops that, the legal Notice and other correspondence to the Op No.1-Dealer generated from the residential District of Kendrapara, hence the complaint is maintainable. In this question, we are of the opinion that ‘cause of action’ means a ‘bundle of facts’. The attested copy of the ‘Job-card’ reveals that when the vehicle was handed over to the service guy at Sukarpada on dt. 23.12.2017 was not in a running condition and said vehicle was brought and handed over by ‘towing’ the vehicle.Hence, it is clear that, prior to handing over, the vehicle was not functional and remains with the complainant-customer, whose residence is well within local-limits of this forum. As we have discussed earlier, a part of cause of action arises well within the local limits of this Forum and the Complainant is maintainable U/S 11(C ) of C.P.Act-1986. The allegation of the complainant regarding manufacturing defects in the vehicle, for which complainant preys for refund of cost of the vehicle and compensation. The contesting Ops countered the allegations mainly on two(2) grounds. First, it is the defence plea of Ops that as the allegations are not supported by any expert opinion the grievances can’t be considered, and as per the terms of warranty of the vehicle, if any defects occurred during the warranty period same is to repaired/replaced as per the stipulation of the warranty. The second defence plea of the contesting Ops that as the modification works in the vehicle are done on roadside garage, the Ops are not responsible for the defects as narrated.
Complainant alleges that after few days of purchase, the disputed vehicle crropts a number of defects for which either the service guy attend the complainant or the vehicle was brought to the workshop of Op No.1 for its repair, the complainant alleges defects of the vehicle on break system, sudden hit in engine, constant leaking of oil from engine and cooling filter, defects in clutch, low-lighting, unusual sound in the motorcycle etc. On the otherhand contesting Ops vehemently opposed the allegations and filed six(6) nos of job-cards showing the repairs carried out in the disputed vehicle, when the complaint/defect is noticed. Now, it is clear that, the Job-cards filed by the contesting Ops are the documents of their own. It is also clear in the dispute that, complainant hasnot filed any expert opinion to substantiate his case of manufacturing defects in the disputed vehicle. We, feel that, when it is evident from the six nos Job-cards produced by the contesting Ops that defects in the vehicle are repaired and spare-parts are replaced in between dt. 21.04.2017 to 25.12.2017 during the existence of the warranty period. The vehicle in question is purchased on March-2017 and in between 9 months the Ops have tried to rectify the defects for six times and the Job-cards reveal that the vehicle was repaired for complaint of Rearside noise, starting problem, Rear break noise, coolant-leaking, vibration on the body lighting etc. and accordingly spare parts are replaced. Apart from the production of Job-cards, though the submission of the complainant regarding repair of vehicle in question by the service guy at the residence of the complainant is not substantiate by any evidence, this Forum relies on the Job-cards as a vital piece of evidence for adjudication of the allegations. In addition to the repairs, the vehicle was delivered to the authorized person of the contesting Ops on dt. 23.12.2017 was brought to Sukarpada for its delivery by ‘towing’. It is justify the allegation of the complainant that, after repeated repairs the vehicle in question was not in a running condition. Further, the Job-card dtd, 23.05.2017 produced by the contesting Ops reflects that attempts has been made to erased the ‘action taken’ column in the disputed vehicle, the reason is best known to the Ops. It is convincing that when within a period of 9 months, if a newly purchased vehicle is brought to the workshop for six-times for its repair and replacement. There is no necessity of opinion of an expert, when the continuous defects and its repair/replacement of spare-parts indicates that the vehicle in question was/is having inherent manufacturing defects. The Job-cards presented before us tells it is own story. Further, if the Ops are so confident in their product, they have also not filed any petition before this forum to obtained an expert opinion as the vehicle is very much present with their workshop. It is obvious that a customer does not purchase a Motorbike by spending a good money which is found to be defective for six-times within a year, can satisfy the customer by just repairing or replacing the spare parts and the prayer of Complainant for refund of cost of the vehicle is justified to avoid further harassment to the complainant by receiving the vehicle inquestion, which remains with the Op No.1 dealer.
On defence and presentation of Job-cards (Annexure-F) the contesting Ops has taken the plea that, as disputed vehicle of the complainant has been modified by the Roadside Garage the terms and conditions of the warranty are not applicable to the instant case. In this point Forum feels that, the defence plea of the contesting Ops in-connection to modification in roadside garage is not supported by a single evidence, hence this plea of contesting Ops is not appreciated by this Forum. In the dispute the pleas of non-application of terms & conditions of the warranty is not legally sustainable for the reasons discussed above. It is also clear in the dispute that, the disputed vehicle inquestion remains with OP No.1 Dealer from 23.12.2017 to till-date and no written reply is given to complainants’ legal Notice dt. 08.03.2018 by the Op No.1 authorized dealer. Considering the prayer of the Complainant for refund of cost of the vehicle and award of compensation for mental agony etc. We are of the opinion that in our earlier observation, we have made it clear that, the case vehicle is/was having manufacturing defects, the refund of cost of the vehicle is the only alternative to compassionate the complainant. OpNo.2, Manufacturing is held liable for Unfair Trade Practice, as Op No.1 is the authorized Dealer both the Ops are jointly severally liable for Unfair Trade Practice. The proforma invoice issued on dt. 17.03.2017 bearing No. 183 to complainant reveals that the on road price of the vehicle which is paid by the complainant amount to Rs. 2,01,449/-. In the proceeding complaint files documents reflects that certain amount has been incurred as expenditure towards transportation of the case vehicle by hiring Pvt. Vehicle on different dates. In addition to the same the complainant has purchased the vehicle by availing a loan from the Banks, and complainant has to repay the dues/interest of the Bank inspite of not using his Motorcycle. So, financial loss due to defects on the vehicle is abudently clear. In the OP No.3-Bank has not role to play and is free from any charge of deficiency in service.
Having observations reflected above, it is clear that Op No.2, U.M. Lohia Two-Wheelers Pvt. Ltd. shall refund the cost of the vehicle Rs. 2 Lakhs(Rs. Two Lakhs only) to the complainant and OpNo.1 & 2 jointly pay Rs. 20,000/-(Rs. Twenty thousand only) as compensation alongwith Rs. 2,000/-(Two Thousand only) as cost of litigation. The amounts directed shall be paid to the complainant within one month of receipt of this order, failing which 9% interest will be charged for the delayed period.
The Complaint is allowed inpart with cost on contest against OpNo.1 &2.
Pronounced in the open Court, this 28st day of June-2019.
I, agree.
Sd/- Sd/-
MEMBER PRESIDENT
