Delhi

North East

CC/273/2012

MOHD KAMIL - Complainant(s)

Versus

M/S GAYATRI PREM AUTO PVT. LTD. & ORS - Opp.Party(s)

27 Oct 2016

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. 273/12

 

CORUM:-      Hon’ble President N.K.Sharma

                        Hon’ble Member Nishat Ahmad Alvi

 

In the matter of:

 

		Mohd Kamil S/o Late Safdar Ali Khan R/o F-151, 2nd Floor, West Jawahar Park (Ramesh Park) Laxmi Nagar, Delhi-92		Complainant
		Versus
	1             2	M/s Gayatri Prem Auto Pvt. Ltd & Ors Through its Director 485-A/5, Dilshad Garden Opp. Metro Station, G.T. Karnal Road, Shahdara, Delhi-95   M/s Suzuki Motorcycles India Pvt Ltd Through its Managing Director/CEO, Village Kherki, Dhaula Kuan Badshah Pur, N.H.8 Link Road, Gurgaon, Haryana-122004		Opposite Parties
			DATE OF INSTITUTION:		17.07.2012
			DATE OF DECISION      :		27.10.2016

 

 

Nishat Ahmad Alvi, Member:-

ORDER

1. As per complaint complainant has purchased a Motorcycle Model “Suzuki GS 150 R” of OP2 Company from OP1 on 26.02.2012 for a sale consideration of Rs. 60,500/- (Rupees Sixty Thousand and Five Hundred). The said motorcycle had two year warranty. Since very inception there were technical faults for which complainant had to visit workshop of OPs. On one occasion the chain cover of motorcycle started creating loud noise and got entangled. As workshop of OP was too far he got the chain cover removed from local mechanic and brought the same for repairs to the workshop of OPs where OPs mechanic advised him to get the entire chain replaced to which complainant agreed and even purchased the chain cover set from OP1. But the mechanic being not ready to change the same, he was compelled to get the same changed from other local mechanic. Besides right from the very beginning the motorcycle had a tilting problem towards right. On complaint OPs workshop mechanic advised to get the handle bar replaced which the complainant got replaced by paying cost of the handle bar as the same was told not covered under warranty. But OP1 could not remove the defect in motorcycle. Against which a written complaint dated 12.12.2011 was also made by the complainant to OP2. But with no result and again “Rods”  front shock absorbers were advised to be replaced by OP1 which the complainant got replaced by paying cost of the rods as the same was also told not covered under warranty. Even thereafter the defect remained the same and complainant was compelled to issue notice dated 04.02.2012 thereby requiring to replace the said “Rods” under the warranty. Thereafter, the same was replaced but the tilting problem not removed and is still persisting.  Pleading harassment, causing financial loss, unfair trade practice and deficiency in service on the part of OPs for not rendering quality after sale service as assured, complainant has prayed for the directions to OPs to either replace the motorcycle with new-one or to refund cost of the motorcycle being Rs. 60,500/- (Rupees Sixty Thousand and Five Hundred) with interest thereon @ of 24%.p.a. from the date of purchase till final realization and compensation of Rs. 1,00,000/- (Rupees One lakh) with Rs 11,000/- (Rupees Eleven Thousand) litigation cost.
2. OP1 and OP2 by filing their respective replies have challenged maintainability of the complaint on the grounds that                (i) complainant is not a consumer of OPs (ii) this forum has no Territorial Jurisdiction over the present complaint                   (iii) there is mis-joinder and non-joinder of necessary parties. Admitting the complaints and visits, to OP1, by the complainant, OPs state that they have provided their best services as and when the complainant visited during warranty period, which has come to an end as soon as warranty condition is violated by getting the vehicle repaired through local Mechanic. Thereafter complainant is no more entitled for the reliefs under warranty.  There is no manufacturing defect in the vehicle. Photograph annexed with this complaint are manufactured and concocted documents.
3. Complainant by filing rejoinder of replies of the OPs has specifically denied all the defence raised further reiterating all the allegations in the complaint.
4. Parties filed their respective affidavits by way of evidence alongwith supporting documents.
5. Heard and perused the record.
6. OPs objections qua maintainability of the complaint seems baseless as they have placed on record no fact/document in support of their objections. OPs have failed to show as to how complainant- a purchaser of the motor bike in question, as per invoice placed on record, is not a consumer. OP has also failed to show as to who are the necessary/ not necessary parties in support of their objections of non-joinder/mis-joinder of the party. Similarly, OP has again failed to establish their objection of territorial jurisdiction of this forum while as per record the bike in question was purchased as well as jobsheets for repairs thereof were issued by the persons working within jurisdiction of this forum.
7. On merits we find that as per record after purchasing bike complainant approached OP three time in the year 2010, 8 times in 2011 and 11 times in 2012. So many visits can’t be presumed only for regular service. Even otherwise change of chain, change of handle bar and rods against complaint of tilting of the handles towards right and change of shock absorbers and fitting of rubber of the handle in right side, are also admitted fact.  Thus there are visits to service centre so many times and replacing so many parts and even thereafter no rectification of the defects in the bike. OP’s only defence of waiver of rights of warranty by the complainant himself if so presumed is also not tenable as the only affect thereof will be that for rectifying the defect complainant will have to pay for the same. Record show that for rectifying the defect complainant had already paid for the change of chain and handle bar but the defect in the bike could not be removed even after so many efforts.

 As also held by an order passed by Hon’ble National Commission in SAS Motors Ltd vs Anand Hari Das CHaudhry iii (2013) CPJ520 (NC), the defect in the vehicle in question in the present case arose within a short period. Vehicle remain under repairs continuously time and again. Defects listed in the complaint have corroborated with jobsheets placed on record. Thus the facts speak themselves. Thus no expert advice is required to prove manufacturing defect. Even otherwise, it is also held by Hon’ble National Commission in this very matter that in case where there were complaints immediately after purchase a number of times, burden to prove that there was no manufacturing defect, shift to the OPs. In the present case OPs have produced no expert evidence showing that the defect in the motorcycle was not a manufacturing one which primafacie the complainant has shown that OPs continuously tried their best to remove the defect but could not remove the same.

8. All these are sufficient findings to establish that OPs sold a defective motorcycle to the complainant and could not remove the defect even after so many opportunities to the OPs and even after payments by the complainant. Complainant had to suffer harassment, mental, physical and torture due to his conduct of OPs by providing defective motorbike and not replacing the same with new one. For which OPs are guilty for not only unfair trade practice but also for deficiency in service.
9. Therefore, holding both the OPs guilty the same we direct them to pay to the complainant, jointly and severally

1. To either replace the Motorcycle Model “Suzuki GS 150 R” with new one and fresh full warranty or to pay cost thereof being Rs. 60,500/- (Rupees Sixty Thousand and Five Hundred) with interest thereon @ 9% p.a. from the date of its purchase till final realization; and
2. Compensation of Rs. 10,000/- (Rupees Ten Thousand only); and
3. Litigation cost of Rs. 5,500/- (Rupees Five Thousand Five Hundred Only)

 

10.  All these amounts shall be paid within 30 days from the date of receipt of copy of this order.
11. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
12. File be consigned to record room.

(Announced on  27.10.2016)    

 

(N.K. Sharma) President

(Nishat Ahmad Alvi) Member