Orissa

Cuttak

CC/18/2018

Binayak Prasad Mishra - Complainant(s)

Versus

Managing Director,Lohia Two Wheelers Pvt Lts - Opp.Party(s)

U N Sahoo

17 Jul 2019

ORDER

                IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

C.C No.18/2018

 Binayak Prasad Mishra,

At:Satabdivihar,PO:Bidanasi,

Dist:Cuttack.                                                                                     .… Complainant.

 

Vrs.

1.         The Managing Director Um Lohia Two Wheelers Pvt. Ltd.,

A-79,DDA Shed,Okhla Phase-2,Industrial Area,

New Delhi-1100200..

 

2.        The Dealer-Cum-Proprietor UNI DEAL (INDIA) Pvt. Ltd.

NH-5,Pahala,Cuttack,Bhubaneswar Road,

                  Bhubaneswar.                                                                                    ...Opp Parties

 

Present:               Sri Dhruba Charan Barik,President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:    06.02.2018

Date of Order:  17.07.2019

 

For the complainant  :    Sri Udaya Nath Sahoo,Adv. & Associates.

For the O.P No.1         :    Sri D.Pradhan,Adv. & Associates.

For the O.P.No.2         :    Sri M.R.Mishra,Adv. & Associates.

 

Smt. Sarmistha Nath,Member(W).

                                               

                                The complainant being a consumer has filed this consumer complaint before this Forum against the O.Ps for Redressal of his grievances U/S-12 of the C.P.Act  in terms of the prayer made in the complaint petition alleging deficiency in service on the part of O.Ps.

1. Case of the complainant in brief is that the complainant was purchased a two wheeler vehicle “Renegade Commando” bearing engine No.US300ZGA01087, chassis no.MDCM3RBFIKL02755 on 15.3.17 from O.P No.2 after making payment of Rs.2,02,000/- towards cost of vehicle including cost of registration and insurance charges which was registered on 12.4.17 bearing Regd. No.OD-05Z-7755.  After two to three days of plying the said vehicle, the complainant noticed that the gear of the vehicle was not shifting properly.  Complain was made to O.P No.2 and the Sales Manager of O.P.2 intimated that the above problem will be rectified during the first free service of the vehicle.  First free service was made on 13.4.17 at the service centre of the O.P NO.2 dealer.  But general maintenance work was carried out but gear shifting problem was not rectified rather in order to protect the wire of the vehicle, a bobber was pasted through gum in the front visor making the vehicle ugly.   On the first free service of the vehicle the O.P No.2 charged the cost of Rs.997/- towards chain lubricant, slackness adjustment, oil filter coolant collelfal and engine oil UM EGNO separately.

After first free service the key lock was not functioning and after some days the said vehicle did not start, so the complainant contacted the O.P No.2 about the starting problem.The service engineer of O.P No.2 intimated that due to non-plying of the vehicle, the battery might have been discharged.In order to make necessary repair on the very same day the RSA of O.P No.2 took the vehicle to the workshop through an Auto rickshaw trolley and kept the vehicle at the service centre from 25.5.2017 to 17.6.2017. To rectify the above problem, the service engineer of O.P No.2 changed the old clutch plate with a new one and placed a new 12 volt battery in order to protect the wires of the front of the vehicle and also changed some parts, protector of the visor of the vehicle and also changed the lock of the vehicle.During delivery of the vehicle pursuant to query of the complainant, the service engineer of O.P No.2 intimated that due to manufacturing defects, the clutch, battery and hand lock etc were changed as per advice of the manufacturer O.P No.1 for free of cost but the cost of the above new parts were paid for Rs.1620/- and he advised the complainant that the vehicle must be started for about five minutes every day.

After each two to three days in case the vehicle is not used, the starting problem occurs.O.P No.2 has neither mentioned the same in the user manual of the vehicle nor it was even intimated at the time of purchase of the vehicle.O.P No.2 failed to intimate the complainant regarding discharge of the battery without use of the vehicle.During servicing, O.P No.2 charged Rs.450/- for general maintenance but separately charged Rs.250/- towards gasket, rear crack case cover and Rs.45/- for cost of visor pad.On 19.6.17 the complainant after receiving the vehicle plied the same and on the next day he noticed that there was leakage of engine oil.On intimation of such defect pursuant to the demand of the complainant the same was rectified and cost of oil seal packing was demanded from the complainant but after telephonic discussion with regional service manager, the cost of oil seal was not realized and that apart the engine oil was not filled up to the recommended level as yet since during change of the oil seal, the engine oil was destroyed by the mechanic deputed by the serviceengineer of O.P No.2 and gear shifting problem has not been rectified in spite of repeated complaint.

The legal notice was sent to O.P No.1 manufacturer and also to O.P No.2 on 15.7.17 but no reply was received till date.The complainant noticed that some major defects in the above mentioned vehicle is the manufacturing defects.The vehicle was handed over to the O.P No.2 dealer on 20.11.17 and the vehicle is in his custody till date.USB port protection cap provided for water protection was removed and while consulting with the service engineer of O.P No.2, he suggested that there is no need of its covering.So the USB port is always subject to atmospheric condition.During change of engine oil, the complainant complained regarding excess heating of the head lamp though rectified to some extent but the reason was not communicated.During shifting the first gear, the said vehicle is shivering while acceleration.Radiator cover was not fitted properly during second service; rubber cap of the main stand removes automatically.Since it is crystal clear that the said vehicle has several manufacturing defects as mentioned above and also mail was sent to the O.P No.1 manufacturer.

The complainant has prayed for a direction to O.Ps to exchange two wheeler vehicle with a new one or direct to refund the cost of vehicle including registration charge and insurance i.e. Rs.2,02,000/- along with interest @ 18% per annum from the date of purchase till payment and also grant compensation of Rs.1,00,.000/- towards harassment, mental agony and litigation cost of Rs.20,000/-.

2. The O.Ps appeared and filed their written version though separately but with identical pleas.  The case of the O.Ps are that the complainant has filed a false and frivolous complaint without any material on record against the answering O.P No.1.  There is no cause of action against the O.Ps and without any specific allegation; the complainant has filed the present case against the answering O.Ps.  The cause of action alleged neither to have happened within the territorial jurisdiction of this Hon’ble Forum nor the O.Ps actually and voluntarily resides or personally works for gain or has a branch office within the territorial jurisdiction of the Forum U/S-11(2) of the Consumer Protection Act,1986.  The entire transactions are caused at Pahal,Bhubaneswar and there is not a single transaction between the parties caused at Cuttack within the territorial jurisdiction of this Forum.

As per the terms of warranty, it is specifically agreed that during first few kilometers of driving the adjustments of the parts and preventive maintenance are extremely important, which is why UM requires the presentation in authorized service centers in order to perform the mandatory reviews, which are required for any future warranty claim.For the warranty claim to be processed, the motorcycle must have met the relevant mandatory revisions based on mileage.The allegations of complainant about shifting of gear and other problems are always subject to aforesaid condition and rectification as per above terms and conditions of warranty.The allegations of complainant are external, minor and temporary in nature which can be removed and rectified in the ordinary course of repair.The charging of cost towards lubricants, engine oil etc are always in conformity with terms and conditions of warranty and the labour charges are free of cost.

The warranty is recognized for any original component that is defect attributed to the manufacturing or assembly used in accordance with UM technical standard during warranty period.Relevant page of warranty manual is Annexure-C.

The defects as per allegation has been removed and the motorcycle was brought to workshop of O.P No.2 for four times and every time the complainants were attended by the O.P No.2 but the complainant did not take the motorcycle in spite of repeated requests and reminders.The vehicle is free from all alleged defects and kept ready for its delivery.Copy of job cards are Annexure-D series.

The further plea of the O.Ps is that the allegations are falsely brought against the O.Ps as complainant is interested for a higher version motorcycle in exchange of the present motorcycle which is hot possible as the O.Ps are not doing the exchange business and do not do the selling of old and used vehicle.So the O.Ps declined to accept the proposal of complainant.

3. We have heard the arguments advanced by the counsel of the parties at length and gone through the documents and papers carefully.  The questions that fall for consideration is whether any part of cause of action arose within the jurisdiction of this Forum and the vehicle in question suffers from inherent manufacturing defect and the vehicle needs replacement.
4. During the course of argument, the learned counsel for the complainant contended that the part of cause of action arose at Cuttack as the O.Ps deputed their Road side Assistance team to receive the vehicle and to tow the same from Cuttack to Pahal and the vehicle was kept in service centre from 25.5.17 to 19.6.17.  The O.Ps have changed the clutch plate and replaced 9 volt battery in lieu of 12 volts battery to make the vehicle operational.
5. The learned counsels for the O.ps on the other hand submitted that no part of cause of action arose within the jurisdiction of this Forum.  He denied the allegation that the road side assistance team has ever been deputed to Cuttack rather the complainant has brought the vehicle to the workshop of O.P.2 at Pahal in four occasions and services were provided in each occasion. So mere averments are not enough and there is no documentary proof with the complainant.  He further argued that each time the complaints were attended by the O.P.2 and in spite of reminder the complainant did not receive the vehicle rather proposed for exchange of the vehicle and for a higher version one.

Considering the rival submissions of the parties, we are of the view that the complainant could not produce any documentary evidence with regard to deputation of Road Side Assistance Team to Cuttack. So it does not indicate that the cause of action arose within the jurisdiction of this Forum.

                                                                                ORDER

In the facts and circumstances of the case, the complaint is dismissed on the ground of maintainability.

Typed to dictation, corrected and pronounced by the Hon’ble Member in the Open Court on this the 17^thday of July,2019 under the seal and signature of this Forum.

                                                                               

                                                                                                                      ( Smt. Sarmistha Nath )

                                                 Member (W)                                                                                                                                                                                                                                                                                                                                                                                                                                (Sri D.C.Barik)

                                                                                                                                           President.