Punjab

Rupnagar

CC/11/65

Ashok Tiwari - Complainant(s)

Versus

Mehar Internaional - Opp.Party(s)

Sh. Inderpal Vohra

08 Apr 2016

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. :    65 of 13.06.2011

                               Restored on                       :   14.01.2016  

                              Date of decision                         :   08.04.2016

 

Ashok Tiwari, aged about 44 years, Son of Sh. Suraj Nath, Resident of House No.1003, Uncha Khera, Ropar, Tehsil & District Ropar.

 

                                                                           ......Complainant

                                             Versus

1.   Mehar International Mktg. Pvt. Ltd., Shop No.11, Grain Market   (New Anaj Mandi), Ropar, Tehsil & District Ropar, through its Proprietor/Manager.

 

  2.  M/s Mehar Yahma, Mehar International Marketing (P) Ltd., B-26,  Phase-3, Industrial Area, Mohali through its Managing Director/Manager.

 

 

                                                                                 ....Opposite Parties

 

                                       Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

MRS. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Inderpal Vohra Advocate, counsel for complainant

None for O.Ps. No.1 & 2

 

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

 

                   Sh. Ashok Tiwari 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 issuance of the following directions to them:-

i)       To replace the motor cycle with new one

                                      Or

To refund the sale price of the vehicle in question along with interest @ 18% per annum from 14.6.2010 till its realization,

 

ii)      To pay Rs.50,000/- as compensation on account of mental, physical and financial harassment suffered by him.

 

 

1.                       In brief the case of the complainant is that on allurement of O.P. No.1 being an agent of O.P. No.2, he purchased the Yahma Motor Cycle from the O.P. No.1 for a sum of Rs.42,228/- on 14.06.2010. Within one month of its purchase, it started giving problem as while plying on the road, its engine would stop and it started emitting unwarranted smoke. He reported the said defects to the official of the O.P. No.1, who on 28.11.2010 sent the motor cycle in question to Mohali Service Station and delivered it back him on 09.12.2010.  However, on plying it on road, it was found that, the motor cycle in question was still emitting unwarranted smoke. He again made a complaint to the O.P. No.1 on 09.12.2010 itself. The official of the O.P. No.1 orally told him that there is manufacturing defect in the engine of the motor cycle in question and it can be changed, if he is ready to pay the costs of the parts which need replacement. It is further stated that he reported the said defect to the O.Ps. time and again but nothing was done by the O.Ps.  On 25.3.2011, he again approached the O.P. No.1 and requested it either to remove the defects of the motor cycle or to replace the same with the new one. His request was not accepted by the official of the O.P. No.1 but he told him that whenever their engineer visits Ropar, he would check the said motor cycle, but did not give any specific date. Ultimately, when nothing was done by the O.Ps. he again approached the O.Ps and requested them either to remove the said defects of the motor cycle in question or to replace the same with the new one or to refund the sale consideration of the motor cycle in question.   But the O.Ps. did nothing, due to which he has suffered mental agony, physical  harassment and financial loss. Hence, this complaint.
2.                 The notice of the complaint was given to O.Ps. but due to non appearance both the O.Ps were proceeded against ex-parte vide order dated 27.5.2011.
3.               After hearing the arguments, the complaint was allowed by this Forum vide its order dated 13.6.2011 However, on filing of appeal by the O.Ps. against the said order, the Hon’ble State Commission, vide order dated 01.08.2015 in FA No. 1793 of 2011 has set aside the order passed by this Forum and remanded back the case with the directions to this Forum to decide the same afresh after affording one opportunity to the O.Ps. to file their written version and to lead their evidence. The parties were directed to appear before this Forum on 25.8.2014.  
4. In compliance of the order dated 01.08.2015 passed by the Hon’ble State Commission, the O.Ps. No.1 & 2 filed written version taking preliminary objections that the present complaint is nothing but bundle of lies, as there is no iota of truth. It is the complainant who   himself refused to take the delivery of his motor cycle from the workshop of the O.Ps and the  same is still lying with the O.Ps. at the risk and costs of the complainant as number of times, he was requested to take back his motor cycle. Inspite of that, he failed to respond and instead has filed the present complaint before this Forum by alleging false facts. That the complainant had alleged manufacturing defect in the motor cycle in question but had not impleaded manufacturer as party in the arrays of opposite parties, therefore the complaint filed by the complaint is bad on account of non joinder of necessary parties. The motor cycle brought by the complainant for service/repair on 25.3.2011 was duly inspected and checked by the Engineer of the O.Ps. and he was duly informed that the petrol tank of the motor cycle contained sand, due to which its engine got seized and problem can be rectified by changing the essential parts. The estimate was prepared for the spare parts which needed replacement but he refused to cooperate with the O.Ps. and also refused to pay the necessary charges. For this reasons, the motor cycle is lying with the O.Ps, which can be taken back by the complainant during the working hours of the O.Ps. by making necessary payments; that there is no job sheets or documents on record from which it can be proved that the motor cycle was brought number of times, for repair etc., infact the motor cycle plies smoothly on road and there is no defect in it. The complainant concocted a false story just to get the refund of the amount of purchase price; that there are so many civil issues involved in the present complaint which can be adjudicated only by civil courts, hence the matter should be referred to the Civil Courts for deciding the issues/disputes between the parties; that there is no cause or reason against the O.Ps. which gave right to the complainant to file the present complaint. On merits, the facts stated in the preliminary objections were reiterated, it is stated that the O.P. No.1 never allured or attracted the complainant as alleged by him rather the complainant himself approached the O.Ps. for purchase of motor cycle in question, duly inspected the same and after full satisfaction had purchased the same vide bill dated 14.6.2010. A service book was provided by the manufacturer/the company and further the motor cycle purchased by the complainant carries guarantee subject to compliance of the terms and conditions, which the complainant in the present complaint failed to comply.  It is further stated that the complainant approached the O.P. No.1 for the first time on 09.12.2010, for service/repair of the motor cycle in question, which was duly inspected and checked in his presence. The Engineers of the O.Ps. performed their job while servicing the said motor cycle and necessary and required parts were replaced with the new one and an invoice No. 2315 dated 09.12.2010 for a sum of Rs.932/- was issued, qua the consumable item and no service charges were taken from him. It is vehemently denied that the motor cycle was giving any unwarranted smoke etc, there was no defect in the motor cycle in question and the same was handed over to him in perfect condition. It is further stated the engineer of the the O.Ps. never told the complainant that there was any manufacturing defect in the motor cycle in question. It is also denied that the O.Ps. ever demanded any extra charges from him. The warranty of the motor cycle was given on certain terms and conditions which have not been placed before this Forum intentionally.   The rest of  the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs.

 

5.               On being called upon to do so, the complainant, instead of tendering any documents in his evidence has suffered a statement, which has been recorded separately to the effect that he does not want to tender the fresh documents in evidence. He has already tender the documents and affidavit on 10.06.2011.  Sh. Janinder Singh, General Manager, Mehar International Marketing Pvt. Ltd for O.Ps. No. 1 & 2 has tendered his affidavit Ex. OP-1 and closed the evidence on their behalf.

 

6.             We have heard the learned counsel for the parties, gone through the record of the file and the written arguments filed by the learned counsel for the O.Ps. No.1 & 2 carefully.

 

7.              The learned counsel for the complainant submitted the motor cycle in question, which he had purchased on 14.06.2010 from the O.P. No.1,developed defects within one month of its purchase. He had taken the same to the O.Ps. for its repair several time but inspite of best efforts, the O.Ps. have not removed the defects that is why the said motor cycle is still lying with the O.Ps. From these facts, it is clear that there is manufacturing defect in the said motor cycle. Due to supply of defective motor cycle by the O.Ps., the complainant has suffered a mental agony, physical harassment and financial loss. Therefore, the O.Ps. be directed to either replace the motor cycle in question with the new or to refund the costs thereof paid by him along with interest, compensation and litigation expenses as prayed for in the complaint. On the contrary, the learned counsel for the O.Ps submitted that the complainant had alleged manufacturing defect in the motor cycle in question and O.Ps. have taken specific objection in the written version filed by them to the effect that the manufacturer of the motor cycle i.e. Yahma Motors Pvt. Ltd has not been impleaded as Opposite Party in the array of the O.Ps. , it being the necessary party, as such, the complaint without impleading the proper & effective parties is not maintainable and is liable to be dismissed on account of the non-joinder of necessary party. He further submitted that the on 22.3.2011 the complainant again brought his motor cycle for repair, the same was duly inspected & checked under the supervision of Sh. Balwan Singh, whose affidavit has also been placed on record, alongwith the affidavit (Ex. OP-1) of Sh. Janinder Singh, General Manager and it was found that the petrol tank of the said motorcycle contained sand due to which its engine got seized and the said problem could only be rectified by changing the essential parts. Since the engine of the motor cycle in question got seized due to the negligence of the complainant himself, therefore, the O.Ps. were not liable to rectify the defect(s) occurred in the motorcycle, free of costs. The estimate for replacement of the essential spare parts was prepared and handed over to the complainant, but he refused to pay the amount for the same, as such, till then the motorcycle is lying parked with the O.Ps. He further submitted that there is no job sheet or document on record from which it can be said to have been proved that the motorcycle in question was brought for its repair to the O.Ps. for a number of times and it is having any manufacturing defect. The complainant has filed the instant complaint just to grab money from the O.Ps. by concocting a false story, as such, the same may be dismissed with costs. In support of his submissions, the learned counsel has also placed reliance on the order passed by our Hon’ble State Commission in the case titled as—‘M/s Nirmal Electronics Vs Baldev Singh’,  decided on 08.08.2013, wherein it has been held that since the manufacturer has not been made a party, the opposite party cannot be fastened with the liability to replace the defective T.V., which was not manufactured by it, especially, when no warranty was given by the opposite party on its own behalf
8.             The complainant has alleged manufacturing defects in the motorcycle in question and has sought relief by way of replacement of the said motorcycle with a new one or in alternative for refund of the price paid by him for the same. In case, the complainant succeeds to establish that there is manufacturing defect in the said motor cycle, in that eventuality, the motor cycle was either to be replaced with the new or the refund of its price was to be made by the manufacturer only, because the warranty/guarantee is always given by the manufacturer only. Therefore, the O.P. No.1, who had sold the said motor cycle to the complainant and the O.P. No.2,  who had just done the repair/ service of the same cannot be fastened with any liability to replace the motor cycle with the new one or to refund of the price paid by him for purchasing the same. Even on merits, the complainant is liable to be dismissed because the complainant has failed to prove that the motorcycle in question suffers from any inherent manufacturing defect, because he has not placed on record even an iota of evidence, in the shape of job card/acknowledgement or expert opinion to prove that actually, the motorcycle suffers from manufacturing defect. Consequently, we dismissed the complaint with no order as to costs.
9.          The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file indexed & consigned to the Record Room.  

 

ANNOUNCED                                        (NEENA SANDHU)

Dated: 08.04.2016                                   PRESIDENT

 

 

                                                                 (SHAVINDER KAUR)

                                                                 MEMBER