Delhi

North East

CC/367/2013

Shri Vikas Sharma - Complainant(s)

Versus

M/S Ganpati Auto - Opp.Party(s)

25 May 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 367/13

 

In the matter of:

 

	Shri Vikas Sharma S/o Shri Chander Kiran Sharma R/o B-92/9 Tejram Gali No. 1, Gamdi Road, Subash Mohalla, Vijay Marg, Delhi-110053	Complainant
	Versus
1       2	M/s  Ganpati Auto C-2/8 Main 100 Feet Road, near Babarpur Bus Terminal, Kabir Nagar, Delhi-110094   M/s Vijay Automobiles A-434, Main Wazirabad Road, Meet Nagar, Delhi-110094	Opposite Parties

 

	DATE OF INSTITUTION:	21.12.2013
	DATE OF DECISION      :	25.05.2017

 

Nishat Ahmad Alvi, Member:-

ORDER

1. By way of present complaint complainant has alleged that on 24-10-2011 he purchased a Bajaj Discover 100 CC Motor Bike of OP3 make from OP1. This motor bike was purchased by paying Rs. 20,286/- (Rupees Twenty Thousand Two Hundred Eighty Six Only) in cash and the rest through finance. On delivery of the motor bike complainant observed dent and scratches thereon. On complaint whereof to OP1, it referred the complainant to OP2 service centre for change of the part. On approach to OP2 he denied to change the parts. After few months of the purchase there started problem in the motor bike like- automatic on & off of light, noise in the Chain set, speedy consuming of battery, problem in the self start and average problem. All these problems were reported to Bajaj Service centre who got submitted the motor bike for 17 days with it. After 17 days complainant was asked to bring certain parts. The service centre used, to keep the motor bike with them from 2-4 days every time even and thereafter not rectify the defect but only report what is the problem therein. In this manner by visiting again and again to OPs service centre seven months have passed after repairs by OP2 service centre, on telephonic query to it complainant was asked to wait for 24 hours more as required parts were not available. And when after three days complainant personally visited OP3 the motor bike was still not completely rectified. Rather he was told that he has to incur Rs. 20,000/- as expenses for corroborator and cliché plate. Complainant has become tired and mentally harassed by visiting the OPs again and again and incurring huge expenses that too without any resolution of problem. Complainant has prayed for grant of directions to OPs to either repair the motor bike perfectly or replace the same with new one. Complainant has prayed for compensation of Rs. 50,000/- against harassment beside litigation cost of    Rs. 20,000/-.
2. After notice to OPs only OP2 appeared and filed its reply while, despite three opportunities, OP1 did not appear and it was proceeded against Ex-parte. OP2 by filing its reply has termed the complaint as false and frivolous stating that the complainant, has concealed the material facts and, is misleading this forum. When complainant brought motor bike in question for repairs it was out of warranty. The motor bike was very well repaired and delivered to the complainant against his full satisfaction and by making payment for the repairs etc. Hence, there being no fault and deficiency on its part, OP2 is not liable for the compensation etc as prayed for.
3. Complainant by filing its re-joinder to the reply of OP2 denied all the defences raised by OP3 further reiterating contents of the complaint that the same are correct and factual facts and it is OP2 itself who has concealed material facts and misleading this forum. Complainant has further stated that since the very beginning of the purchase of motor bike the same was found defective and was taken to OP2 for rectification of defects within warranty period. Complainant has specifically denied the fact that the vehicle in question was brought to OP2 after the expiry of warranty period. However, on one pretext of the other request of the complainant to either remove the defects therein or replace the same was declined by the OPs.
4. Thereafter OP2 did not appear before this forum and vide order dated 5-6-2014 OP2 was also proceeded against Ex-parte. Later on, after allowing application of the complainant, manufacturer of motor bike in question, was also impleaded, as OP3. Who even after due service of notice did not participated in the proceedings of this complaint before this forum.
5. Affidavit by way of evidence filed by the complainant.
6. Heard the complainant and perused the record.
7. In support of his contentions ,complainant has filed copy of delivery receipt dated 24.10.2011 and receipt of Rs. 19,800/- both issued by OP1, jobsheet dated 7.12.2013, bill dated 23.3.2012, and cash receipt dated 29.11.2013, all there issued by OP2. Besides copy of passbook entries showing payment of installment of motor bike to the financer is also placed on record by the complainant. OP2 has not filed any document in support of its defences.
8. Perusal of delivery receipt, cash receipt and pass book confirms purchase of the motor bike in question being Discover 100 CC Black/Green motor bike Engine No. 02976 bearing Chassis No. 28099 on 24.10.2011 from OP1 by the complainant after payment of sale consideration. Delivery Receipt also confirms that the motor bike was received by the complainant in, perfect order and good condition. Service complaint / jobsheet of OP2 dated 7.12.2013 show that the motor bike was submitted for repairs against complaint of average. Cash receipts also show that they issued bill for changing of engine and other oil with filter beside labour charges.

Although these documents does not support the contention of the complainant that there were, scratches and dent in the motor bike and other problem like - automatic on off of light, noise in the Chain set, speedy, consumption of battery, problem in self start, but going through the written statement of OP2 we find that all these problems have not been specifically denied by OP2. There is no denial or explanation of complainant’s allegations, of complaining defects in the bike and OPs receiving the same for repairs again and again. While complaint states that complainant had been submitting the bike to OP again and again during 7 months. Particularly no denial of the fact that even after keeping with it for 17 days OPs did not rectify it. There is also no denial or counter reply of OP2 in respect of complainant’s allegation of asking for Rs. 20,000/- for repairs by OPs. This silence hints towards a doubt that OPs are concealing something against their interests otherwise they would have come forward and produce jopbsheets of that period showing that those were the actual problems and not as alleged. The only defence raised by OP2 is that bike was out of warranty when it came to it for repairs. But again it has failed to produce any jobsheet or Bill to show what were the defects if rectified.

9. With respect to earlier defects prior to 7.12.2013 complainant has not produced jobsheets for that period. Reason for this has shown his inability as whenever the bike was returned after repairs, jobsheets whereof were taken back by OP2 and thereafter the same remained in exclusive possession of OP2.

 

10.   Going through the latest jobsheet dated 7.12.2013 we find that even till that date the bike was not in a condition of providing the required average and complainant had to submit the bike for rectifying the same  
11.  On the basis of above findings, we are of the view that though there may not be dent and scratches on the body of motor bike but the same was not performing well and there were problems in running it since the very beginning. To rectify the same complainant had to visit the OPs again and again. But OPs failed to rectify the problems in the bike even after keeping it so many times. Thus the problems continued till the warranty expired. In that condition warranty shall be construed not from the date of last jobsheet but from the first jobsheet which OP2 deliberately avoided to place on record.   In that event OP2’s contention of no warranty is baseless as warranty shall continue until the defect is perfectly rectified. Now it has been established that the defect is not rectifiable, as per settled law it is due to manufacturing defect for which OPs are liable to replace it with new motor bike.

 

12.   Hence holding OP1 guilty for selling a defective motor bike Bajaj Discover 100 CC Black/Green motor bike Engine No. 02976 bearing Chassis No. 28099 to the complainant  and OP2 for deficiency in service for falling to rectify the defects we direct the OPs to :-

 

1. Replace the motor bike with new defect free one alongwith fresh warranty thereon within 15 days from the receipt of the order failing which refund the cost of motor bike being Rs. 46,305/- (Rupees Forty Six Thousand Three Hundred and Five only) by OP1 and OP3; and
2. Pay a compensation of Rs. 5,000/- (Rupees Five Thousand only) with litigation cost of Rs. 2,000/-(Rupees Two Thousand only)

jointly and severally.

 

13.   Order shall be complied within 30 days from the receipt of order of this Forum. Failing which cost of the bike shall be paid with interest thereon @12% p.a. from the date of its payment till final compliance of the order.
14.    Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

10.              File be consigned to record room.

(Announced on  25.05.2017)        

 

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member