Before The District Consumer Disputes Redressal Forum, Barnala.

                                                Complaint No.     :         17/2015

                                                Instituted on                  :         06.01.2015

                                                Date of Decision   :         21.07.2015

Jaspal Singh aged 59 years, S/o Shri Pritam Singh, Resident of Jandawala Road, Barnala , Presently residing at #B-XIII/1161, Mehal Nagar, Near ITI Chowk, Barnala.                                                    

                                                                   …Complainant

Versus  

1. M/s Global Automobiles, Opposite Power Grid, Dhanula Road, Barnala, through its Proprietor.

2. Honda Motorcycle and Scooter India Pvt. Ltd. (HMSI), Registered Office Plot No. 1 and 2, Sector 3, IMT Manesar, District Gurgaon (Haryana) 122050 through its Managing Director.

                                                                   …Opposite Parties 

                   Complaint under Consumer Protection Act. 1986.

Present :      Sh. NK Singla counsel for complainant.

                   Sh. AK Jindal Counsel for opposite party No. 1

                   Opposite party No. 2 exparte

Quorum:

1. Shri S.K. Goel                     :         President

2. Sh. Karnail Singh                :         Member

3. Ms. Vandna Sidhu              :         Member

                                            ORDER

(By Ms. Vandna Sidhu Member):       

This complaint No. 17/2015 filed by the complainant, as per complaint, he purchased one Activa DLX Scooter Model 2014 bearing Engine No.JF50E71173401, Chassis No. ME4JF502HE7173393   manufactured by opposite party no.2 for his personal use on 01.09.2014 from the opposite party no.1 and got the same be registered with the District Transport Officer, Barnala and registration no. PB-19-K/6827 has been allotted by the District Transport Officer, Barnala to the said scooter of the complainant. As such the complainant is the consumer of the opposite parties.  

2.                At the time of purchase of the said scooter a warranty for a period of 24 months or a run of 24. 000 Km whichever is earlier from the date of purchase of the said scooter against defects in material or workmanship was given by the opposite parties. The said scooter started giving trouble in starting due to some manufacturing defect and used to stop after about a Km or so. The said manufacturing defect was brought to the notice of the opposite party no.1 on 3.10.2014, when the complainant went to opposite party no. 1 for getting the first free service of the said scooter effected, but the complainant was sent back on the said date without effecting any service being Dushehra festival on that date and the complainant was requested by opposite party no.1 to come for getting the first free service effected on 21.10.2014. It is further submitted that the complainant was assured that after first free service of the said scooter there would not be any such problem in the said scooter. Complainant got first free service on 21.10.2014 when the said scooter had plied for 328 KMs only. After effecting the said first free service, opposite party no. 1 gave assurance to the complainant that the defect has been removed and there would not be any problem about the scooter in future. But inspite of the first free service of the said scooter got effected by the complainant from opposite party no.1 the said scooter started giving the same trouble as mentioned above on the very same day. As such on 22.10.2014 the complainant approached opposite party no.1 and apprised them of the said defect upon which opposite party  no.1 got the said scooter parked from the complainant in its workshop and assured the complainant that the defect would be removed and the complainant would be informed  when needful is done. When opposite party no.1 failed to deliver back the said scooter after removing the aforesaid defect even after about a month from 22.10.2014, the complainant visited the workshop of opposite party   no. 1 on 1.12.2014, but the complainant was stunned to see that the said scooter was lying dismantled there. Upon enquiry opposite party no.1 told the complainant that the said scooter would be sent   to the house of the complainant after removing the said defect by 15.12.2014. When the said scooter was not sent to the house of the complainant, he again visited the premises/workshop of opposite party no. 1 on 20.12.2014 and found the said scooter was still lying dismantled there. As such the complainant requested the opposite party no.1 to exchange the said scooter with a new one having no such  manufacturing defect and to refund the amount  of expenses incurred by the complainant  for getting the same  insured  and registered, but opposite party  no.1 flatly refused  to accede to the request of the complainant, which caused a great mental agony to the complainant.  And scooter is still lying parked in the premises of opposite party no.1. So, as per the facts of  above stated complaint  it is clear that there has been deficiency of service and unfair trade practice on the part of the opposite parties. Hence the present complaint.

Relief claimed by the complainant that -

    The opposite parties be jointly and severally directed:

i) to exchange the said scooter with a new one having no such manufacturing defect;

ii)  to pay an amount of Rs. 3000/-  on account  of expenses incurred by the complainant for getting the said scooter insured and registered;

iii)  to pay an amount of Rs. 40,000/- only on account of  mental agony  and harassment suffered by the complainant .

iv)  to pay Rs. 10,000/- on account of litigations expenses.

3.       Jurisdiction:

          The above stated scooter purchased by  opposite  party no .1, which was manufactured  by opposite party no.2. And opposite party no. 1 is residing and carrying its business at Barnala.  As such this Hon’ble Forum has got the Jurisdiction to entertain, try and decide the instant complaint.

4.                After admission notice sent to opposite parties.  In version filed by the opposite party No. 1 legal objections were taken interalia that the complainant has no locus standi or cause of action to file the present complaint, present complaint is  frivolous and liable to  be dismissed  under Section  26  of the CP act. The present complaint is   wholly  misconceived, groundless and unsustainable in law and is liable to be dismissed. This court has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint as well as it is not a consumer dispute and does not fall within the ambit of the provisions of the Consumer Protection Act. The present complaint is baseless and flagrant abuse process of law to harass the answering opposite parties. The present complaint has not been verified in accordance with law. Complainant has not come to the Forum with clean hands. As per merits of the reply the opposite party submitted that the said scooter is under warranty for the period of 24months of 24000 KMs, whichever is earlier from the date of its purchase. Moreover as per submissions of the opposite party No. 1 the opposite party is provided warranty to the extent to change the part which is to be defective under warranty. Moreover the complainant parked his vehicle for his satisfaction in the premises of opposite party no. 1 on 21.10.2014 for first service. The scooter of the complainant was duly checked by the trained mechanics of the opposite parties and after duly   checking and service, the said scooter of the complainant was duly checked and after duly checking and service, the said scooter was ready for delivery. But the complainant had failed to get the delivery from the opposite party no.1 and after repeated requests made by opposite party No. 1 but till today complainant never get the delivery. As per the submission of the opposite party No. 1 para no. 3 (e) of the complaint is wrongly mentioned by the complainant that is why opposite party denied the allegations. The story made in the complaint is wrong, in fact the complainant never visited the office of opposite party no.1 after 21.10.2014. And complainant never visited the office or workshop of the opposite party no.1 on 15.12.2014. The complainant concocted a false story and mentioned in his complaint. It is further submitted that the complainant instead of got the delivery of the said scooter from the opposite party No. 1 filed the present false complaint against the answering opposite party and dragged the answering opposite party in false litigation. In prayer clause opposite party no. 1 seeks that the complaint may kindly be dismissed with costs.  

          The opposite party No. 2 has preferred to remain exparte.

5.       In order to substantiate his case, the complainant has tendered in evidence copy of RC Ex.C-1, copy of insurance policy  as Ex. C-2, copy of gate pass  as Ex.C-3,  affidavit of Jaspal Singh as Ex. C-4,  affidavit of Raj Kumar as  Ex. C-5, copy of certificate as Ex. C-6  and job card dated 21.10.2014 as Ex.C-7 and closed the evidence.        

6.                On the other hand, to rebut the evidence of the complainant, the opposite party No. 1 has tendered affidavit of Rajinder singh as Ex.OP-1/1, affidavit  of Parveen    Kumar  as Ex. OP-1/2, copy of job card as Ex.OP-1/3, copy of letter dated 11.3.2015 as Ex.OP-1/4 and closed the evidence.

7.                We have heard the learned counsel for the parties and have gone through the entire record minutely.

8.                First of all this complaint is liable to accept due to these reasons, it is a clear cut view that this complaint falls under the Consumer Protection Act because the complainant bought the alleged scooter from opposite party no. 1 as per Ex. C-7 i.e. job card. So, the objection of the opposite party in regard of jurisdiction is baseless because Ex.C-7 and Ex. C-3 proves that complainant purchased the above said scooter from Global Auto mobiles, opposite power Grid Dhanaula Road, Barnala and by this way complainant has become consumer of opposite parties. So, he purchased it from Barnala where opposite party no.1 carries its business. That’s why this Forum has jurisdiction to try the present complaint. Moreover the above said scooter still under a warranty for a period of 24 months  and  had plied for 328 KMs. It is pertinent to mention here that complainant brought on record the affidavit i.e. Ex. C-5 of Raj Kumar who is running    business of repairing all types of the vehicles just like two wheelers  for last more than 20 years  in the name and style  of M/s Dutt Auto Service, Ram Bagh Road, Barnala and he enclosed his Ex.-C-6  i.e. his certificate regarding it and he was sole proprietor. He further submitted in his affidavit that he is fully aware of all parts of two wheelers. He attended  local workshop Owner  Training Course of Escorts at Faridabad from 18.11.1996 to 23.11.1996 and certificate to this effect was issued by the Training  Manager and Department Head of the said Company. He further submitted that he had seen the photocopy of job Card no 17534 of Global Automobiles Barnala, with regard to scooter  No. PB-19-K/6827. As per job card Four Head parts detailed in the said job card of the said scooter have been replaced. The said spare parts cannot be inserted in the scooter without opening the head of the Engine of the scooter. It will not be out of place to submit here that in case there is any defect in any of the aforesaid part in the head of the engine of the scooter it will not run a distance of more one KM only.  He further explained about the condition of the scooter that such defects cannot be removed from such scooter. It is clear that there is manufacturing defect in the head of said scooter No, PB-19-K/6827. So, as per the Ex. C-5 nutshell is that here is manufacturing defect  in alleged scooter. But as per  Ex. OP-1/1 affidavit of Rajinder Singh who is repairing all types of scooter since 15 years back submits in his affidavit that he inspected the said scooter and trouble faced by the complainant in scooter due to bad quality of petrol, which is fully vague, ambiguous, incorrect affidavit. So after considering affidavit i.e. Ex. OP-1/2  of Parveen Kumar who is the sole proprietor is baseless one, part of deficiency proves against opposite party No. 1 and citation titled as Satnam Singh Versus Mahindra and Mahindra Limited and others in Revision Petitioner No. 2920 of 2013 decided on 20.7.2014 by the Hon’ble National Commission, New Delhi, which opposite party elaborate is not accurate with facts of this complaint.                                                                                            

9.                In case titled Tata Motors versus Rajesh Tyagi & others reported in CLT-2014(1) Page No. 238 (N.C.) it is held as under:-

“Defective  vehicle- Not necessary to prove manufacturing defect – It is the bounden duty of both the manufacturers and the dealer to attend  to the said  defect and make it  a defect  free  vehicle – if they  are not in a position  to do so, they  should either  refund the cost  of the vehicle or provide a new vehicle to the consumer. (para no. 8 )   

 (ii) Consumer Protection Act, 1986, Section 21 (b) & 2 (1) (f) Manufacturing defect -Held -That  whenever  a brand  new  vehicle  is sold to a consumer, there is an implied  contract  that the vehicle  being sold does not suffer from and will not suffer from any kind  of fault  or imperfection or short coming  in the quality, potency and standard which  is required  to be maintained (Para 8)

(iii) Consumer Protection Act , Section 2(1)(f)-Manufacturing Defect – Object of Act – Observed- That the Consumer Protection Act 1986, is a benevolent  social legislation as held by the Hon’ble Apex court in their   judgments from time to time and is aimed at providing for better  protection  of the interests of the consumers as defined in the preamble of the Act itself-Given the facts at hand, the interests  of the consumers in the present case can be  protected only if he is provides a vehicle which  is free  from defects  from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not. (para no. 9)               

10.              In case titled as Ghaziabad Development Authority Versus Balbir  Singh (2004 ) 5  Hon’ble Supreme Court Cases-65 it is held for such type of manufacturers and service providers, the Hon’ble Supreme Court has come down heavily and called upon the Consumer Forum and Commission  established  under  the  Consumer Protection Act, 1986 to not only  compensate the consumer as to the actual loss suffered by him but also to compensate  him as to the mental  agony, harassment, emotional  suffering,  physical  discomfort, loss of business, loss  of time by taking   vehicle  time and again to the work shop.  

11.                   In view of the above discussion present complaint is allowed and opposite parties i.e. the manufacturer as well as dealer are directed jointly to replace the alleged vehicle of the complainant with a new one and give a clear cut certificate signed by a senior  officer  of the manufacturer, not  below  the rank of a General  Manager  declaring  in  categorical terms that the vehicle  is free from any defects and also to pay Rs. 3,000/- as litigation expenses etc. This order shall be complied with within 45 days from the date of the receipt of this order. Copy of this order be supplied to the parties free of costs. File after its due completion be consigned to the records.

ANNOUNCED IN THE OPEN FORUM:

21st Day of July, 2015

(S.K. Goel)

President

(Karnail Singh)

Member

(Vandana Sidhu)

Member