BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 294 of 2023.
Date of Institution : 20.07.2023.
Date of Decision : 29.08.2024.
Sunder Singh aged about 28 years son of Shri Dharam Pal, resident of village Kagdana, Tehsil Nathusari Chopta, District Sirsa.
……Complainant.
Versus.
1. M/S J.D. Auto Mobiles, G.T. Road, Odhan, District Sirsa through its Prop./ Partner/ Auth. Person.
2. Hero MotoCorp Limited, The Grand Plaza, Plot No.2 Nelson Mandela Road, Vasant Kunj, Phase-II, New Delhi- 110070 Contact No. +91-11-46044200.
...…Opposite parties.
Complaint under Section 35 of the Consumer Protection Act, 2019.
Before: SH. PADAM SINGH THAKUR ………………PRESIDENT
SMT. SUKHDEEP KAUR……………………….MEMBER.
Present: Sh. Vinod Goswami, Advocate for complainant.
Sh. Madan Goyal, Advocate for opposite parties.
ORDER
The complainant has filed the present complaint under Section 35 of the Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to OPs).
2. In brief, the case of complainant is that on 23.10.2017 complainant had purchased a new motor cycle of Hero company make HF Deluxe Kick Drum Cast from op no.1 for an amount of Rs.39,292/- vide invoice No. JD/17-18 Bill No. 153 dated 23.10.2017 and got registered the same vide registration No. HR-24Z-3258. The said motor cycle was purchased by him after every type of assurances given by op no.1. That however within 15 days of purchase of motor cycle, the engine of the same was seized. The complainant immediately approached to op no.1 on 06.11.2017 and told about it upon which op no.1 asked that it is a minor problem and he sent the complainant to Shri Ram Automobiles Bhadra Road Nathusari Chopta for removal of the defect and said agency repaired the motor cycle of complainant vide job card no. 1201 dated 06.11.2017. It is further averred that thereafter also the said motor cycle was creating some problems but in the month of May, 2018 the said motor cycle was again seized and complainant visited the Service Centre of Ajit Automobiles near Truck Union Sirsa Road, Ellenabad on 28.05.2018 which again repaired the said motor cycle and similarly on 24.10.2018 complainant got repaired the said motor cycle from Ajit Automobiles and thereafter got repaired the same on 05.01.2019 from Deep Automobiles, Sirsa. That in this way since the date of purchase of said motor cycle, the complainant got repaired his motor cycle several times from the service centre which proves that there is a manufacturing defect in the motor cycle. It is further averred that complainant approached to op no.1 again and asked that it has supplied a defective motor cycle to him and should replace the same with new one as per assurance but op no.1 did not hear him and flatly refused to replace the motor cycle with new one rather op no.1 started insulting him and also threatened him. That earlier complaint filed by him was dismissed in default on 30.09.2019 due to non appearance but he was given liberty to file fresh complaint on the same cause of action. In this way, the ops are deficient in service by their act and conduct and they are unnecessarily harassing the complainant, hence he is also entitled to compensation to the tune of Rs. one lac for harassment and mental agony besides replacement of his motor cycle or return of amount of Rs.39,292/- alongwith interest and also litigation expenses from ops. Hence, this complaint.
3. On notice, ops appeared and filed written statement taking certain preliminary objections that op no.1 is authorized dealer of op no.2 and engaged in selling product manufactured by op no.2, carrying out service and repair of two wheelers such as motor cycle/ vehicles manufactured by op no.2; that complaint is misconceived and untenable both on the facts and law and deserves to be dismissed in limine and that complainant has not come with clean hands and has intentionally and deliberately suppressed material facts, hence he is not entitled to any relief much less. It is further submitted that notice was issued on ops on 19.07.2023 and previous complaint was filed on exact same grounds which was dismissed in default on 30.09.2019. In the present matter, the complainant specifically mentions that cause of action accrued lastly on his last visit on 05.01.2019 to Deep Automobiles, Sirsa for repairs, therefore, present complaint is not maintainable as same has been filed beyond limitation period qua the ops. It is further submitted that as per warranty policy, the said vehicle is warranted for five years or 70000 KM, whichever is earlier and company does not provide replacement guarantee with their vehicles. The ops and complainant are bound by terms and conditions of the warranty policy. The ops always obliged its each and every obligation and never shy away from its obligations. The complainant deliberately concealing the service book of the vehicle which was handed over to him at the time of sale, it contains all terms and condition of the warranty. As per complaint, the last visit of complainant to Deep Automobiles on 05.01.2019 and there are no averments of the complainant qua visiting any dealership of op no.2 after aforesaid last visit. It is further submitted that further more, the complainant is not maintaining the vehicle as prescribed for smooth functioning of the vehicle and violated the warranty policy. 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. The complainant is well aware of the fact that he did not follow the service schedule as prescribed in the owner’s manual. It can be safely presumed that negligent attitude of the complainant towards maintenance of the vehicle must be creating problems in the vehicle. Further more, non adherence to the service schedule of the vehicle would render the warranty as void and complainant is trying to take advantage of his own wrong. The vehicle is more than five years old and it is beyond warranty period. Therefore, demanding replacement of vehicle or cost of used vehicle is not legally tenable when the complainant is using the vehicle till now. It is further submitted that complainant has not filed any acceptable evidence in the complaint or in support of the cause of action. The complainant in his previous complaint did not implead op no.2 as a party and made Shri Ram Automobiles, Ajit Automobiles and Deep Automobiles as parties but with malafide intentions to withhold the information did not make them as a party to the present proceedings, therefore, present complaint deserves to be dismissed on the ground of non joinder of necessary parties. It is also submitted that this Commission has no jurisdiction to entertain the present complaint as the head office of op no.2 is situated at New Delhi, hence, present matter ought to be dismissed for want of jurisdiction. On merits, the contents of complaint are denied to be wrong, pleas of preliminary objections are reiterated and prayer for dismissal of complaint made.
4. The complainant in evidence has tendered his affidavit Ex. CW1/A and documents Ex.C1 to Ex.C9.
5. On the other hand, ops have tendered affidavit of Mr. Dashmeet Uppal, authorized representative of op no.2 as Ex. R1/A and documents Ex.RA and Ex.RB.
6. We have heard learned counsel for the parties as well as gone through written arguments filed on behalf of ops which are repetition of their written version and have also gone through the case file.
7. Admittedly, on 23.10.2017 complainant had purchased motor cycle in question from op no.1 for a sum of Rs.39,292/- which fact is also evident from copy of tax invoice Ex.C2. The complainant alleges manufacturing defect in the motor cycle in question within warranty period and also filed an earlier complaint bearing No. 277 of 23.05.2019 against op no.1 as well as against Shri Ram Automobiles, Nathusari Chopta, Ajit Automobiles, Ellenabad and against Deep Automobiles, Sirsa which was dismissed in default on 30.09.2019 for want of prosecution and non appearance. No doubt, vide said order, the complainant was given liberty to file fresh complaint in case his cause of action survives, but complainant has filed the present complaint only on 20.07.2023 i.e. after about four years of the order dated 30.09.2019 and has not explained any reason for such delay of about four years. The motor cycle in question was purchased by complainant on 23.10.2017 and second complaint has been filed by complainant on 20.07.2023 i.e. after about six years of purchase of motor cycle whereas as per warranty card, the vehicle was warranted for a period of five years or 70,000 KMs. which ever is earlier from the date of purchase. So on the date of filing of present complaint, the warranty of five years was already elapsed and complainant has not explained any reason for filing second complaint after such a long delay of four years whereas as per the provisions of the Consumer Protection Act, 2019, the complaint is to be filed within two years from the date on which the cause of action has arisen and in case of delay, if any the complainant should satisfy that he had sufficient cause of not filing the complaint within such period. But however in the present case, firstly the complainant has not explained any cause for filing second complaint after delay of four years and secondly by that time the warranty of the motor cycle had already expired. Moreover, there is nothing on file to prove the fact that engine of the motor cycle was seized within 15 days of its purchase because job card dated 06.11.2017 placed on filed by complainant as Ex.C2 no where reflects that engine of the motor cycle was repaired on that date. There is nothing on file to prove the fact that said motor cycle is having manufacturing defect rather the version of ops that negligent attitude of the complainant towards the maintenance of vehicle must be creating problems in the vehicle has substance. The vehicle was serviced/ repaired on 28.05.2018 by the service centre of ops without any cost within warranty period when it covered 12292 Kms as is evident from invoice Ex.C6 and from the said document also, it is not proved that on that date the engine of the motor cycle was seized. Further on 24.10.2018 also though the motor cycle was extensively repaired and parts of engine were changed but same was repaired without any costs being within warranty period when it covered distance of 23080 Kms and it cannot be said that defects were due to manufacturing defect rather the possibility that defects were due to mishandling of vehicle cannot be ruled out because had there been any manufacturing defect in the motor cycle, same could not run for 23080 kms. At that time complainant received the vehicle in good condition and the fact that complainant filed the second complaint after long delay of about four years also strengthen our opinion that as vehicle was not having any manufacturing defect and was creating problems due to its mishandling on the part of complainant, therefore, he did not prefer to file second complaint in time and therefore, complainant has no cause of action and any case for its replacement or refund since its warranty has also already expired. The judgment of the Hon’ble Supreme Court of India in case titled as Ford India Private Limited Versus M/s Medical Eleborate Concept Private Limited and ors. CA Nos. 4192-4194 of 2023 decided on 05.07.2023 relied upon by learned counsel for complainant is not applicable to the facts and circumstances of the present case.
8. In view of our above discussion, we do not find any merit in the present complaint and same is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties as per rules. File be consigned to the record room.
Announced. Member President
Dt. 29.08.2024. District Consumer Disputes
Redressal Commission, Sirsa.
