Complaint No: 333 of 2019.

                                                                    Date of Institution: 19.11.2019.

                                                                           Date of order:  03.10.2023.

Mr. Bhupinder Singh S/o Lakhwinder Singh, resident of Village Bhumbli, Tehsil and District Gurdaspur. Pin Code - 143529

                                                                                                        …...................Complainant.                                                                                                                                                                                                                                                                                                                                       

             VERSUS

1.       M/s Hero Motor Corp Ltd, 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi - 110057, through its Authorized Signatory.

2.       Duggal Automobiles (Regd.),  Batala Road, Improvement Trust Scheme No. 1, Gurdaspur, through its Manager Manohar Lal (Works Manager). Pin Code - 143521

                                                                                                        ….Opposite parties.

                                  Complaint u/s 12 of the Consumer Protection Act.

Present: For the Complainant: Sh.Amandeep Sran, Advocate.

             For the Opposite Parties No.1: Sh.Sahil Kamboj, Advocate.

             For the Opposite Parties No.2: Sh.Bharat Aggarwal, Advocate.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President

          Mr. Bhupinder Singh, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against M/s Hero Motor Corp Ltd. etc. (here-in-after referred to as 'opposite parties).

2.      Briefly stated, the case of the complainant is that the complainant Bhupinder Singh purchased New Motorcycle Splendor I Smart 110 having Engine No.JA06EPGHK30524 and Chasis No. MBLJA06AXGHK27245 from Opposite Party No. 2 on 30.10.2016 for the total price of Rs.53,213/- and the same was hypothecated with Hero Fincorp Ltd. and Opposite Party No. 2 issued retail invoice to the complainant. It was submitted that it was mentioned on the Retail invoice that all the Hero Products comes with 5 year warranty without any additional cost. It was alleged that after 3 months from the date of purchase a noise started coming from the Engine of the Motorcycle purchased by complainant and complainant went to the office of Opposite Party No. 2 and it was fixed up but again after some time, same problem occurred. It is further pleaded that complainant again took the Motorcycle to Opposite Party No. 2 and Opposite Party No. 2 changed the Kit of the Motorcycle after taking charges from complainant. It was further submitted that complainant is regularly coming in the office of Opposite Party No. 2 for regular service. It was further alleged that now again the severe noise has started coming from the Engine of the Motorcycle and complainant is not even able to take ride properly on the motorcycle due to the disturbance of the Engine. It is further pleaded that concerned Manager of Opposite Party No. 2 is also very much in the knowledge that the Motorcycle is having manufacturing defect in Engine but on the repeated requests of complainant his behavior towards complainant has become very cruel. It is further pleaded that complainant requested many times to Opposite Parties that he has paid the whole amount of the Motorcycle but he is unable to run the Motorcycle due to the defect and requested Opposite Parties to change the defective motorcycle. It is further pleaded that the Opposite Parties did not pay any heed to the genuine request of the complainant. It was further submitted that the Motorcycle was purchased in the year 2016 and as per the retail invoice the warranty period is upto 29.10.2021. It is further pleaded that the complainant approached the officials of the Opposite parties again and again with folded hands and requested them to change the defective motorcycle, but the Officials of the Opposite Parties showed reluctance / high headedness attitude and the officials of Opposite Party No. 2 also abused the complainant and behaved in very rude manner and use very offensive language. It is further pleaded that the Opposite Parties kept the matter lingered on one pretext or the other and now finally refused to admit the genuine claim of the complainant. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to change the defective motorcycle of the complainant with the new Motorcycle or to refund the total amount of the Motorcycle alongwith interest @ 18% per annum from the date of purchase and the complainant may also be awarded the amount of Rs.30,000/- for the physical harassment and mental agony at the hands of the Opposite Parties and Rs.20,000/- as a cost of litigation to the complainant, in the interest of justice.

3.       Upon notice, the opposite party No. 1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the outset it is stated and humbly submitted that the Opposite Party No. 2 (herein referred to as 'OP No. 2) is AD i.e. Authorized Dealer of the products manufactured by OP No. 1 and also engages in carrying out service and repair of the said two wheelers such as motorcycle/vehicles manufactured by OP No.1. It is further pleaded that the Opposite Party No. 1 (herein referred to as 'OP No. 1) is a company engaged in the business of manufacturing of Two- Wheelers in India. It is further pleaded that in the year 2001 the company had achieved the coveted position of being the largest Two-Wheeler manufacturing company in India and also, the world No. 1 Two Wheeler company in terms of unit volume sales on a calendar year. It is further pleaded that the present Complaint is misconceived and untenable both on the facts and in law and deserves to be dismissed in limine by the Hon'ble Commission. It is further pleaded that the Complainant has not come to this Hon'ble Commission with clean hands and has intentionally and deliberately suppressed material facts, hence not entitled to any relief much less equitable relief from this Hon’ble Commission. It is further pleaded that the OP No. 1 has not indulged in any sort of unlawful trade practices or any deficiency in services and are only following the process/policy as per the industry standard which the Complainant is well aware of.  It is further pleaded that the copy of the Complaint supplied by the Complainant to OP No. 1 has not been duly supported by sworn & duly attested Affidavit to verify the facts and contents stated by him in his Complaint as required under Order 6 Rule 15 of the CPC, 1908. It is further pleaded that in this light, the present Complaint deserves to be dismissed by the Hon'ble Commission and the Complainant has not filed any acceptable evidence in the Complaint and in support of the cause of action made out in the Complaint before this Hon’ble Commission. It is further pleaded that the present Complaint is abuse the process of this Hon’ble Commission, hence deserves to be dismissed by the Hon'ble Commission. It was pleaded that the vehicle in question has covered the distance of 37871 K.M. as on 09.09.2019 with an average of 33.31 K.M. per day and on other hand the Complainant taking plea of manufacturing defect in the vehicle. It is further pleaded that Complainant is still using the vehicle without any problem and the demand of the Complainant of replacing the more than 39 months old vehicle is untenable, illegal & against principle of law. It was further pleaded that the Complainant availed the fourth free service on 07.05.2018 and thereafter failed to adhere to service schedule which is evident from the fact that the Complainant failed to avail further services scheduled service on time. It is further pleaded that after 07.05.2018 the Complainant availed paid services on 22.11.2018, 04.06.2019 & 09.09.2019. It was further pleaded that the Complainant has been negligent in maintaining the vehicle and did not adhere to the service schedule for maintaining his vehicle in perfect running condition. It was further pleaded that the Complainant is well away of the fact that he didn't follow the services schedule as prescribed in the owner's manual. It is further pleaded that negligent attitude of the Complainant towards the maintenance of the vehicle is main cause behind problems surfaced in the vehicle. It was further pleaded that non adherence to the service schedule of the vehicle would render the warranty as void, but the OP No. 2 repaired the vehicle even after violation of terms & conditions of the warranty policy. The relevant & mandatory provision is reproduced below for ready reference:

• “It is mandatory to avail all free and paid services from Hero Moto Corp's authorized workshop only, as per the recommended service schedule, to be eligible for the Warranty benefits. Each paid service should be availed within 90 days from the date of previous service or as per the recommended schedule (refer Owner's manual), whichever is earlier."

It was further pleaded that the Complainant in his last three visits i.e. 09.09.2019, 04.06.2019 & 29.01.2019 did not complaint in regards to "engine noise" as the problem was already cured in previous services. It is can be very safely presumed from the vehicle history that the problem the Complainant faced in the vehicle due to improper maintenance of the vehicle for which the OP’s in no manner can be held responsible. It was further pleaded that a motor cycle is made of various components which are assembled in such a way that which can be easily replaced without in any manner affecting the performance of the vehicle. It is further pleaded that the said vehicle is warranted for 5 years or 70000 K.M. whichever is earliest. And  the said vehicle is very much in the warranty period and the OP No. 1 is very much ready and willing to provide services to the Complainant, if any required, subject to the Company's warranty policy. It was further pleaded that the present Complaint is frivolous and vexatious and is based on baseless submissions as against, the OP No. 1. Hence the same deserves to be dismissed. 

          On merits, the opposite party No. 1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.         Upon notice, the opposite party No. 2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint qua opposite party No. 2 through its Manager Manohar Lal is not maintainable. Manohar Lal is Work Manager in workshop of Duggal Automobiles. It is further pleaded that Duggal Automobile is proprietorship concern and Navneet Kumar Duggal is proprietor of Duggal Automobiles. It is further pleaded that the present complaint is just abuse of the process of law and the complainant has concealed the material facts from this Hon’ble Commission. It was pleaded that the real facts are that the complainant came to the service center of the opposite party No. 2 on 06.04.2017 after running of Motorcycle to the extent of 3248 Kilometer and there was no complaint from the side of complainant. It is further pleaded that on 06.04.2017 after service of the vehicle, the vehicle was handed over to the complainant with his entire satisfaction without getting any money from him. It was further pleaded that again on 07.08.2017 the complainant came to the service center for next re-service and at that time the motorcycle giving the reading of 6500 Kilometer accordingly 3 services was done and as per norms engine oil and shocker oil were changed after taking requisite amount as being costs of oil as per norms, terms and conditions. It was further pleaded that again on 29.09.2017 at the reading of 9532 Kilometer, the complainant came to the service center for next free service, the free service was done and at that time the required oil were again changed which is mandatory for the smooth running and alongwith tail bulb light and buzzer (a kind of horn giving voice at turning) was changed. It is further pleaded that there was absolutely no complaint by the complainant up till that day. It is further pleaded that on 14.11.2017, the complainant came to service center with the reading of motorcycle as 11234 Kilometer and at that time two push roads, break road and ARM COMP. CAM CHAINTENS was changed without taking any amount from the complainant. It was further pleaded that on 24.01.2018 again the complainant came to free service with reading of Motorcycle 12500 Kilometer and free service was done after changing mandatory oil. It is further pleaded that again there was no complaint by the complainant regarding any noise as alleged. It is further pleaded that further that on 04.04.2018 the complainant came to service center with reading 16148 Kilometer and complaint for noise in the Motorcycle and the motorcycle was thoroughly checked and the kit bearing No.SPD01ABAACYLS-KIT CYL worth Rupees 3752.34/- was changed free of cost and without taking any even labour charges and the vehicle was handed over to the complainant with his full satisfaction. It was further pleaded that it was also advised to the complainant to run the motorcycle with care and drive not rashly because the complainant was using motorcycle with very harsh and over speed due to which the kit was required to change and the same was changed without getting any costs. It is further pleaded that further that on 07.05.2018 the complainant came to service center and again free service was done and there was absolutely no complaint by the complainant. It is further pleaded that on 23.06.2018 the complainant came with the complaint of some noise and it is found that the complainant is using the motorcycle at very high speed and in harsh manner. It is further pleaded that on 23.06.2018 the reading of the motorcycle was 23293 Kilometers which was 15550 Kilometers on 07.05.2018. It shows that within the span of 35 days the complainant used the motorcycle for about 5000 Kilometers. It is further pleaded that, the Valve Kit worth Rupees 127.34/- was changed without getting any money from the complainant and the complainant was fully satisfied. It was further pleaded that on 22.11.2018 with the reading of 26316 Kilometers first paid service was done and the motorcycle was handed over to the complainant with full satisfaction. It is further pleaded that further that on 28.12.2018 again regular service was done which was a paid service and mandatory oils were changed and the minor amount of Rs.661/- was received from the complainant and the complainant took his vehicle at his entire satisfaction. It is further pleaded that further that on 29.01.2019 the service of the vehicle was done with meter reading of 28100 Kilometers. It is further pleaded that there after the complainant came to the service center on 04.06.2019 and regular paid service was conducted after changing damaged parts and oils at amount of Rs.1067/- was received from the complainant. It is further pleaded that complainant was also advised to use the vehicle properly and with care. It is further pleaded that on 04.06.2019 the meter reading was 32839 Kilometers and on 09.09.2019 again service of vehicle was done when vehicle was having reading of 37871 Kilometers it shows that till the running of vehicle have no deficiency on the part of the opposite Party. It was further pleaded that after on 09.09.2019 the complainant never came to the service center with complaint. It is further pleaded that on receiving the complaint from the complainant, the complainant was invited for inspection of the vehicle vide letter dated 18.02.2019 and even his notice dated 15.10.2019 was dully replied vide reply dated 31.10.20 but invite of coming to service center, the complainant filed the present complaint and concealed the facts mentioned above. It was further pleaded that there is no deficiency of services on the party of the opposite party No. 2.

          On merits, the opposite party No.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

5.       Learned Counsel for the complainant has tendered into evidence affidavit of Bhupinder Singh, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-8.

6.       Learned Counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Siddharth Tewari (Authorized Representative, Hero Moto Corp Ltd. New Delhi) as Ex.OP-1 alongwith other documents as Ex.OP-1/A to Ex.OP-1/B.

7.       Learned Counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Navneet Duggal (Proprietor of M/s Duggal Automobile, Gurdaspur) as Ex.OP-2/A alongwith other documents as Ex.OP-2/1 to Ex.OP-2/7.

8.       Rejoinder not filed by the complainant.

9.       Written arguments filed by the complainant but not filed by the opposite parties.

10.     Counsel for the complainant has argued that  complainant Bhupinder Singh purchased New Motorcycle Splendor I Smart 110 from Opposite Party No. 2 on 30.10.2016 for the total price of Rs.53,213/- and Opposite Party No. 2 issued retail invoice Ex C2 to the complainant and it was mentioned on the Retail invoice that all the Hero Products comes with 5 year warranty without any additional cost but after 3 months from the date of purchase a noise started coming from the Engine of the Motorcycle purchased by complainant and complainant went to the office of Opposite Party No. 2 and it was fixed up but again after some time, same problem occurred. It is argued  that again the noise started coming from the Engine of the Motorcycle and complainant is not even able to take ride properly on the motorcycle due to the disturbance of the Engine and  Opposite Party No. 2 is also very much in the knowledge that the Motorcycle is having manufacturing defect in Engine but on the repeated requests of complainant his behavior towards complainant has become very cruel and on account of  refusal to change the motor cycle, there is a clear cut deficiency in service on the part of the opposite parties.

11.     On the other hand counsel for the opposite parties has argued that Motor cycle in question has covered the distance of 37871 K.M as on 09.09.2019 with an average of 33.31 K.M. per day as such plea of manufacturing defect is itself falsified. As the complainant is still using the vehicle without any problem and the demand of the Complainant of replacing the more than 39 months old vehicle is untenable illegal & against principle of law. It is argued  that the Complainant availed the fourth free service on 07.05.2018 and thereafter failed to adhere to service schedule which is evident from the fact that the Complainant failed to avail further services scheduled service on time and after 07.05.2018 the Complainant availed paid services on 22.11.2018, 04.06.2019 & 09.09.2019 and since the Complainant has been negligent in maintaining the vehicle and did not adhere to the service schedule for maintaining his vehicle in perfect running condition, as such there is no deficiency in service and complaint is liable to be dismissed.

12.     We have heard the counsels for the parties and have gone through the record. It is admitted fact that complainant purchased Motor cycle from opposite party No.2 and manufactured by opposite party No.1 vide retail invoice Ex C2. It is further admitted fact that Motor cycle was having warranty of five years as per Ex C2 and upto 9-9-2019 and KMs 37871, the motor cycle was brought to the work shop of the opposite party No.2 for 14 times for services and some time for the defects. The plea of the complainant for replacement of the motor cycle is not acceptable as non of the party has made any effort to produce the report of some expert to prove this fact that motor cycle is having manufacturing defect in it, and on 9-9-2019 the motor cycle has run upto 37871 KMs, as such the plea of replacement of the motor cycle is declined. The second plea of the complainant is regarding notice in the motor cycle. It is admitted by the representative of the opposite parties that there was problem in the chain set of the motor cycle which was placed, but since in spite of replacement of chain set the same problem has occurred within warranty periods and opposite parties can not save their skin by taking plea of non adherence to the service schedule and misuser of motor cycle, as the plea of opposite parties is not supported by any report of qualified engineer of the opposite parties, as such the plea of the opposite parties is nota acceptable and seems to have been taken to avoid repair with in warranty which amounts to business mal practice and deficiency in service.

13.     Accordingly the present complaint is partly allowed and opposite parties are directed to replace the chain set of the motor cycle without charging any amount. Opposite parties are further directed to pay Rs.2,000/- to the complainant for mental tension and harassment and cost of litigation. 

14.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

15.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

Oct. 03, 2023                                                        Member.

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