Darshan Singh complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 requiring the opposite parties to replace the motorcycle or repay back the sum of Rs.39,000/- the cost of the motorcycle and to pay Rs.50,000/- as compensation for causing mental tension, and deprivation of using the motorcycle purchased for personal daily use, harassment and to pay Rs.3500/- to the Advocate as his fee. <br /> 2. The complainant averred in his complaint that the complainant is the resident of village Ran Singh Wala P.O. Behbal Khurd Tehsil Jaitu District Faridkot. He had on 2/3/2006 purchased new motorcycle make Hero Honda with chassis No. 05L16F21645 Engine No. 05LISE21673 model Splendor Plus from opposite party No. 1 M/s Farid Service Station (A.D.), Ferozepur Road, Faridkot for Rs.39,000/- through invoice No. R-9323 manufactured by opposite party No. 2 M/s Hero Honda Motors Limited, 69th KM Stone, Delhi-Jaipur Highway, Dharuhera-122100, Haryana carrying two years warranty. The motorcycle was purchased by the complainant for his own daily use. The complainant sent for registration of the vehicle and the same was registered as PB-04K-5085 with District Transport Officer, Faridkot and in the column of registration certificate in was mentioned month and year of manufacturing 2005 when the same delivered on 2/3/2006 as model 2006. The motorcycle is giving trouble from day one, the engine gave cracking noise at the time of using clutch and has been got checked from opposite party No. 1 on various occasions and on four occasions the motorcycle remained parked with opposite party No. 1 for 4-5 days at a stretch. The motorcycle engine was opened and the fault was tried to be corrected but the fault is still in the motorcycle. The market value of the motorcycle by opening the engine diminished considerably. The opposite party No. 1 have still not been able to rectify the manufacturing fault in the engine of the motorcycle. The opposite parties are negligent in providing old defective motorcycle to the complainant and the complainant had been deprived the use of motorcycle on various occasions as the same new motorcycle remained and is under constant repairs. The motorcycle is still not in proper working conditions. Now the opposite party No. 1 is asking for Rs.10,000/- so as to enable them to replace this defective old model motorcycle with a new one. Hence the present complaint. <br /> 3. The counsel for complainant was heard with regard to admission of the complaint and vide order dated 25-7-2006 complaint was admitted and notice was ordered to be issued to the opposite parties. <br /> 4. On receipt of notice the opposite parties appeared through Sh. Jatinder Marria Advocate and filed written reply taking preliminary objections that the complainant does not come to this Hon'ble Forum with clean hands sos the complaint is likely to be dismissed. The complainant has concealed the material facts from this Hon'ble Forum. The complaint is not maintainable in the present form and the complainant has filed this complaint just to harm and harass and defame the opposite parties. So the complaint be dismissed. On merits The opposite parties submitted that the complainant is educated person and he was deliver the sale letter to him 2/3/2006 in which particularly mentioned the date of manufacture of the motorcycle 2005 and the complainant after admitting the correctness of the said sale letter put his signatures on the same. He never parked the motorcycle with the opposite party No. 1 for 4-5 days. He came to the opposite party No. 1 and disclosed that the motorcycle have some problem with its clutch. The opposite party checked the motorcycle under warranty and found that there was no problem at all in clutch and advised him to ply the motorcycle and change the gear with pressing of full clutch. The complainant used to ply the motorcycle with half clutch and he was fully satisfied with the quick service done by the opposite party and put his signatures as satisfied on the quick service job card. He came to the opposite party No. 1 on 27/7/2006 and got the fifth service of the motorcycle and he never disclose regarding any trouble in the motorcycle and put his signatures after completing the service of the motorcycle. Even now the complainant has if some trouble in the motorcycle the opposite party is still ready to check and remove the said trouble under the warranty of the motorcycle. He was provided new motorcycle in good condition and he is a wood contractor and carpenter and frequently moved on the said motorcycle from city to city and the job card dated 5/7/2006 and 27/7/2006 showing the plying of of the said motorcycle. On 5/7/2006 motorcycle covered 7605 KM and on 27/7/2006 it covered 9318 KM. It is wrong that the engine of the motorcycle was opened 4 times actually the clutch portion of the motorcycle got checked only once when the complainant made complaint regarding the clutch on 5/7/2006 and the company trained mechanic found that there was no fault in the engine of the motorcycle so question of diminishing the market value of the motorcycle does not arise at all. The opposite party never asked for replace the said motorcycle and the opposite party never deals with the business of sale and purchase of old motorcycle. So the complaint be dismissed and complainant be directed to pay Rs.50,000/- on account of harassment and mental agony and Rs.5500/- as legal expenses. <br /> 5. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence affidavit of Sukhjinder Singh Mechanic Ex.C-1, affidavit of Sukhmander Singh Ex.C-2, copy of ownership of record of motorcycle Ex.C-3, copy of service record sheet Ex.C-4, affidavit of Vakil Singh Ex.C-5, copies of documents Ex.C-6 and Ex.C-7, affidavit of Lachman Singh son of Babu Singh Ex.C-8, copy of job card Ex.C-9 and closed his evidence. <br /> 6. In order to rebut the evidence of the complainant the opposite parties tendered in evidence affidavit of Mr. Pankaj Gulati Partner of Farid Service Station Ex.R-1, copy of sale certificate dated 2/3/2006 Ex.R-2, copy of job card dated 5/7/2006 Ex.R-3, copy of job card dated 27/7/2006 Ex.R-4, copy of satisfaction report Ex.R-5, copy of job card dated 17/8/2006 Ex.R-6, affidavit of Manoj Kumar Head Mechanic/Foreman Ex.R-7, copy of cash memo invoice No. R-9323 dated 2/3/2006 Ex.R-8, copy of temporary number Ex.R-9, copy of form No. 22 dated 2/3/2006 Ex.R-10 and closed their evidence. <br /> 7. We have heard the learned counsel for the parties and have very carefully gone through the affidavits and documents on the file. Our observations and findings are as under.<br /> 8. Learned counsel for the complainant submitted that the motorcycle purchased by the complainant from the opposite parties is having manufacturing defect so the complainant is entitled to refund the amount of Rs.39,000/- alongwith compensation of Rs.50,000/- for harassment and costs of the litigation of Rs.3500/-. The opposite parties have defrauded the complainant by supplying motorcycle manufactured in 2005 by describing the same as model 2006 at the time of delivery of the motorcycle on 2/3/2006. <br /> 9. Learned counsel for the opposite parties has submitted that there is no manufacturing defect in the motorcycle. Even during the pendency of this complaint the opposite parties have changed the clutch plate etc. though the same was not required to be changed but just to satisfy the complainant. The complainant himself has purchased model of 2005 by putting his signatures on the documents of purchase. <br /> 10. From the perusal of the file it is made out that the complainant Darshan Singh has put his signatures on sale certificate Ex.R-2. In this sale certificate the year of manufacturing of motorcycle has been mention as 2005. So it cannot be said that complainant was having no knowledge about manufacturing year of the motorcycle at the time of its purchase. So this contention of learned counsel for the complainant stands repelled by the opposite parties. <br /> 11. With regard to manufacturing defect during the pendency of the case vide statement dated 29/9/2006 in the Lok Adalat Pankaj son of Hari Chand Partner Farid Service Station, Faridkot made statement that if the motorcycle is handed over to the opposite party for two days within which repairs can be carried out then they shall be able to satisfy the complainant for proper working of the motorcycle. Vide statement of the same day Darshan Singh complainant handed over the motorcycle to the opposite parties. On the same day complainant received motorcycle from Pankaj Partner of Farid Service Station, Faridkot. However the complainant still was not satisfied but learned counsel for the opposite parties is submitted that motorcycle was handed over to the complainant to his satisfaction after change of the clutch on the request of the complainant though the same was not required to be changed. <br /> 12. With regard to manufacturing defect complainant have placed reliance on statement of Lachman Singh Scooter Mechanic. Lachman in his affidavit Ex.C-8 has deposed that he is having experience of 25 years for repairs of scooters and motorcycles. Darshan Singh brought his motorcycle for repairs. He checked motorcycle engine was giving noise on its driving at slow or even fast speed. He told Darshan Singh that clutch and gear shall have to be changed. Darshan Singh told him that clutch and gear have been changed by Farid Service Station. Lachman Singh told the complainant that engine shall have to be opened and thereafter the defect can be traced out. Lachman Singh told him that if the motorcycle was within the guarantee then he should get it repaired from the agency. This affidavit is dated 13/11/2006. He has not mentioned as to when complainant approached him for repair of the motorcycle. So affidavit of Vakil Singh to the effect that he has seen Darshan Singh on 6/7/2006 in Farid Service Station with his new motorcycle which was undertaken by the agency for major repairs. Engine of the motorcycle was opened, however this statement is not coinciding with the statement of Lachman Singh. Lachman Singh has not revealed the fact of removal of the engine for major repairs. So also affidavit of Sukhmandir Singh in this regard is not helpful to the complainant in any manner. Even the job card Ex.C-9 dated 24/10/2006 is not of the dates for repairs mentioned by Lachman Singh, Vakil Singh and Sukhmandir Singh. <br /> 13. Lachman Singh as per his cross examination is having no degree of mechanic from ITI of Government Institute. He does not know where Hero Honda motorcycle are manufactured. He has disclosed the place of manufacture to be Kanpur whereas manufacturing of Hero Honda is undertaken at Gurgaon. He does not know on which date complainant came to him with the motorcycle. He did not open clutch and gear of the motorcycle. The job card does not find the signatures of the complainant. So evidence of the Lachman Singh to the effect that there is manufacturing defect in the motorcycle is of no avail to the complainant. Above noted facts of the complaint stands rebutted by the statement of Manoj Kumar Foreman of Farid Service Station Ex.R-7. Pankaj Gulati in his affidavit Ex.R-1 also have rebutted above noted facts of the complaint. Manoj Kumar in his affidavit Ex.R-7 have deposed that he is working as Foreman in Farid Service Station Faridkot for the last 7 years. The free services of the motorcycle of the complainant were undertaken by him on different dates. On 5/7/2006 the complainant told him that clutch of the motorcycle was making some noise when he changed the gear. Then after checking of the motorcycle and clutch he advised the complainant to press the full clutch at the time of changing of the gear and plying the motorcycle and the said motorcycle was working in good condition. There was no problem at all in the motorcycle as well as in the engine of the motorcycle. Deponent has does six services of the motorcycle and complainant never made any complaint regarding the motorcycle. Moreover the complainant put his signatures on the job card being satisfied after his satisfaction. Job Card Ex.R-3 dated 5/7/2006 bears the signatures of the complainant. Job Card Ex.R-4 dated 27/7/2006 also bears signatures of the complainant. He has not made any complaint except fifth service of the motorcycle though he had already engaged counsel on 19/7/2006 to file this complaint. The complainant signed satisfaction note Ex.R-5 on 6/7/2006. Sixth service was signed by Darshan Singh vide job card Ex.R-6 dated 17/8/2006 even after filing of this complaint even after appearance of opposite parties on 8/8/2006. From these facts it is made out that witnesses of the complainant are got up witnesses. Complainant got two services done after filing of this complaint but he has not got entered in any manufacturing defects in job card dated 27/7/2006 and 17/8/2006.. The motorcycle of the complainant was not having any manufacturing defect. Lachman Singh Motorcycle Mechanic examined by the complainant is not an expert witness. On the one hand he says clutch and gear is to be changed, when the complainant told him that it already has been changed then he said that engine shall have to be opened to trace defect. This is matter of 5/7/2006 but witness of the complainant saying matter of to be of 6/7/2006 appeared to be wrong as on 6/7/2006 the motorcycle was not with the opposite parties which was returned on 5/7/2006 not on 6/7/2006. There is no complaint of this nature on 27/7/2006 or 17/8/2006 by the complainant. So Lachman Singh is not expert witness. He has no mental mechanic prods to probe and to produce with exact diagnosis. He is mechanic of hit and trial method. So his evidence is of no use to the complainant. Complainant has failed to prove any deficiency of service to be provided by the opposite parties to the complainant on account of sale and working of the motorcycle of the complainant. There is no apparent manufacturing defect. So the complaint being devoid of merits is dismissed. No order as to costs due to peculiar circumstances of the case. Copies of the order be sent to the parties free of costs. File be consigned to the record room. <br /> Announced in open Forum:<br /> Dated: 13/8/2007<br /> <br /> <br /> <br />