DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC.No.178 of 03.08.2009<br /> Decided on: 19.11.2009<br /> <br /> Raj Kumar, aged about 37 years, son of Sh. Om Parkash son of Sh. Radha Ram, resident of House No.33, Green Avenue, Bathinda.<br /> <br /> ……..Complainant.<br /> Versus<br /> 1. M/s. Honda Motorcycle & Scooter India (Pvt.) Ltd., Plot No.1, Sector 3, IMT Manager, District Gurgaon, (Haryana), through its MD/Chairman.<br /> 2. M/s. Empire Automobiles having its Head Office 3029, Guru Kashi Marg, Bathinda, through its Prop.<br /> …….Opposite parties.<br /> <br /> Complaint under Section12 of the Consumer Protection Act, 1986.<br /> <br /> Present:<br /> For the Complainant : Sh. Ashok Gupta, counsel for the complainant.<br /> For the Opposite parties : Sh. S.K.Sharma, counsel for opposite parties.<br /> <br /> QUORUM<br /> <br /> Sh. George, President.<br /> Dr. Phulinder Preet, Member.<br /> Sh. Amarjeet Paul, Member.<br /> <br /> ORDER<br /> <br /> GEORGER, PRESIDENT:-<br /> <br /> 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as ‘Act’) with the allegations against the opposite parties that he purchased one Honda Shine Motor cycle, Model CBF 1250, (Frame No. ME4JC 368 K-88065875 Engine No. JC 36E-9271626 of Grey Colour, being temporary registration No. 08 IN 01291 on 26.10.2008, from opposite party No.2, for an amount of Rs. 48,915/-. The performance of the Motor cycle was good on the first day, but thereafter, it was totally unsatisfactory; the Motor cycle giving trouble, immediately, after its purchase, and it did not run properly; it was taken to opposite party No.2, repeatedly for rectification of the various defects; all the three services were being conducted by him, legally as per schedule, but still the Motor cycle within a span of 4-5 months from its purchase, started giving trouble, due to various defects. The defects were developed from valve, inlet, valve, exhaust problems, and also Grip comp., throttle, and grip throttle problems. M-oil was coming out of cylinder; its head ball zamed, and it was taken to the workshop of opposite party No.2 for 10 to 15 times, but opposite party No.2 could not repair the same, to the satisfaction of the complainant, and took the plea, that there is some manufacturing defect, which could not be repair. Wall head of even engine of Motor cycle, also replaced by opposite party No.2, even thereafter, it was not found trouble free; original job sheets, and defect noticed to the opposite party No.2, at some offices visit to the workshop. Opposite party No.2 finally told him that he has no responsibility for removing the defects. It is the responsibility of the company, but opposite party No.1, and thus, opposite party No.2 had shown his inability to replace the Motor cycle. Due to the act and attitude of opposite parties, complainant could not enjoy, and the Motor cycle, which he purchased on cash payment of Rs. 48,915/-. Rather, he had to under go, mental tension, agony, harassment and inconvenience, and had to file the present complaint. He has prayed that his complaint is accepted with cost, and opposite parties be directed to replace the Motor cycle, as it is giving time, and again problem, with in warranty period, or in the alternative, opposite parties may be directed to return the amount i.e. cost of the Motor cycle Rs. 48,915/- alongwith interest from the date of purchase, up to the date of payment, and also be direct, the opposite parties to pay compensation to the tune of Rs. 50,000/- alongwith litigation expenses.<br /> 2. Opposite parties contested the allegations raising objections that there is no deficiency in service on the part of the opposite parties; complainant is not a consumer, as per the ‘Act’; he has not come before this Forum with clean hands, and suppressed the material facts from this Forum, and has filed the instant complaint by twisting the facts, and complaint is false and frivolous. <br /> 3. On merits also while denying all the allegations of the complainant. It has been admitted that complainant visited opposite party No.2 several times, and each time, he was attended to properly, and whatever defect found in the Motor cycle that was rectified. There was no manufacturing defect in the Motor cycle, the defects whatever, were developed, due to mis-handling or mis-driven in rash or negligence manner. However, it has been admitted that, the complainant came to opposite party No.2 on 13.12.2008 with the complaint that Engine Oil is coming from the Muffler, and showing smoke, and on examination of the vehicle, it was found that seat of exhaust valve was not proper, and the valve was replaced and guide was set. It is also admitted that the complainant again visited opposite party No.2 on 17.12.2008, with the problem of race grip not working, and grip comp. throttle was found broken. Though, the part was broken, due to mis-handling by the complainant, but it was replaced. Complainant again visited opposite party No.2 on 14.03.2009, and reported that some noise in the chain, and the problem was solved. The complainant remarked in the job card “Not fully satisfied”. Complainant again visited opposite party No.2 on 12.05.2009 with the compliant that checking average, stop vehicle at slow speed, and for chain noise. The average was checked, and the same were removed. Opposite party No.2 has never told the complainant that the Motor cycle had some manufacturing defect, and problem reported by the complainant, cannot be removed. There is no deficiency in service on the part of the opposite parties, and there is no manufacturing defect in the Motor cycle. Therefore, complaint is liable to be dismissed.<br /> 4. Complainant in order to prove his allegations, filed his own affidavits dated 07.10.2009 Ex.C-1 and dated 30.07.2009 Ex.C-5; affidavit of Sh. Vijay Kumar dated 07.10.2009 Ex.C-2; affidavit of Sh. Amit Kumar dated 08.10.2009 Ex.C-3, and also brought on record, copy of certificate dated 07.10.2009 Ex.C-4; copy of Invoice dated 26.10.2008 Ex.C-6, and copies of Tax Invoice dated 26.10.2008 Ex.C-7 to Ex.C-9.<br /> 5. To controvert the evidence of the complainant, opposite parties bought on record, affidavit of Sh. Sat Pal Passey dated 27.10.2009 Ex.R-1.<br /> 6. We have heard the learned counsel for both the parties, and perused the entire record of the case carefully.<br /> 7. It is an admitted fact that the complainant has purchased a new Motor cycle, at the cost of Rs. 48,915/-, with the hope that, he will have the Motor cycle free from any kind of defect, but immediately, after the purchase of the Motor cycle, it stated giving trouble, the defects appointed out by the complainant in his complaint are not denied by the opposite parties. It is also not denied that the complainant visited opposite parties, number of times, and reported many defects, which were in fact got rectified by the opposite party No.2. This fact is also proved from the job sheets brought on the record for 13.12.2008, 17.12.2008, 14.03.2009, and also 12.05.2009; these job sheets to reveal that the defects were found in the Motor cycle and the Motor cycle attended to by different technicians on different dates. No doubt that, the complainant has not mentioned his dissatisfaction on job sheet dated 13.12.2008, and 17.12.2008, but he did show his un satisfaction on job card for 14.03.2009 on job card. It is also admitted by the opposite parties, in their reply that noise in chain in the Motor cycle was reported written twice by the complainant, and it was not rectified being the Motor cycle in warranty period. The complainant has relied upon the job sheets, which the opposite parties have brought on the record, and also got the Motor cycle is examined from Sh. Vijay Kumar, who is in profession of the Motor cycle mechanic, for the last 8 years, and according to his certificate Ex.C-4, the Motor cycle is giving continuous noise from its engine, and the defect can only be looked into by opening the engine of the vehicle, which can be done only by company. He has also filed his affidavit to this effect, which is Ex.C-5. Opposite parties had number of machines/technicians with them, who are trained by the company. The Motor cycle was attended to by various technicians of opposite party No.2, on different dates. However, opposite parties have not examined any of such technicians to show that, whatever defects appointed out by the complainant, and also reflected in the Job sheets, by opposite party No.2, which is duly supported by opinion of Vijay Kumar Ex.C-4, and affidavit of Sh. Raj Kumar Ex.C-5. The defects appointed out by the complainant, are not denied in the reply of the opposite parties. The defence of the opposite parties is based on mere denial, and opposite parties have brought on the record, only an affidavit Ex.R-1 of Sh. Sat Pal Passey, a partner of opposite party No.2, except the affidavit Ex.R-1, and job sheet referred to above, no other evidence has been brought on the record, by any of the two opposite parties.<br /> 8. It is an admitted fact that the defects appeared in the Motor cycle, immediately after, it was purchased by the complainant. The defects neither denied by the opposite parties nor opposite parties could point out any permanent solution of stop vehicle at slow speed, and for chain noise of the Motor cycle. The defects admittedly could not be rectified by the dealer. Opposite parties who have under taken to do free service, after receiving the requisite amount, and thus, opposite party No.2 can not escape his liability. The Hon’ble National Consumer Disputes Redressal Commission, New Delhi, has taken similar view in case titled Shanker Automobile Vs. Deepak Kumar Singh, 2009 (1) CPC 310, and in another case titled Tata Motors Ltd., Vs. Manoj Gadi and Anr., 2009 (1) CPC 82, where in, it has been held “Manufacturing defect-Once the consumer proves from job card that vehicle was taken several times for renewal of defects to the mechanic, onus to prove that there was no manufacturing defect lies on the manufacturer.”<br /> 9. In the present case, it is an admitted fact that the Motor cycle developed many defects, immediately after its purchase, and it was taken by the complainant to opposite party No.2, time and again, for servicing as well as for rectification of defects developed during the warranty period, but opposite party No.2, who is a dealer, and who is sold the Motor cycle to the complainant, after receiving his margin of profit may be manufacturer by opposite party No.1. Opposite party No.2 could not escape his liability under the garb that only, the manufacturer is liable to answer for the manufacturing defect, since the opposite parties have failed to discharge the onus to prove that there was no manufacturing defect in the Motor cycle, whereas, the job card reveals that the position otherwise, both the opposite parties are liable for rendering deficit service to the complainant, and the complainant is, therefore, entitled for refund of the price of the vehicle, for which the Motor cycle was purchased i.e. Rs. 48,915/-, alongwith interest @ 9% from the date of purchase of the Motor cycle, till the amount is finally paid to the complainant, or in the alternative, replacement with a new Motor cycle of the same model with full warranty alongwith reasonable amount of compensation, on account of mental tension, agony, harassment and inconvenience, he had to suffer despite spending an amount of Rs. 48,915/- for the purchase of Motor cycle from opposite party No.2, under peculiar circumstances of this case, we assess the compensation to the tune of Rs. 10,000/- alongwith litigation expenses to the tune of Rs. 2000/-. <br /> 10. Both the opposite parties shall be liable to comply with the order jointly and severally. <br /> 11. The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> 12. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned.<br /> <br /> Pronounced (GEORGE)<br /> 19.11.2009 PRESIDENT<br /> <br /> <br /> (DR. PHULINDER PREET)<br /> MEMBER<br /> <br /> <br /> (AMARJEET PAUL)<br /> MEMBER<br />