DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

[Complaint Case No.538 of 2010]

Bhushan Taneja s/o Sh. D.R. Taneja, r/o H.No.53/2, Subhash Nagar, Manimajra (UT), Chandigarh.

                                                                   ---Complainant.

Versus

1.                 M/s Kinetic Motor Company Ltd., now merge to M/s Mahindra 2 Wheelers Ltd. through its Managing Director, Head Office, D-1 Block, Plot No.18/2, MIDC, Chinchwad, Pune Pin : 411019

2^nd Address (Regd. Office)

Plot No.2, Industrial Area No.1, Mhow-Neemuch Road, Pithampura, District Dhar, 454775.

2.                 M/s Mahindra 2 Wheelers Ltd., now merge to M/s Kinetic Motor Company Ltd., through its Managing Director, Head Office, D-1 Block, Plot No.18/2, MIDC, Chinchwad, Pune Pin : 411019

2^nd Address (Regd. Office)

Plot No.2, Industrial Area No.1, Mhow-Neemuch Road, Pithampura, District Dhar, 454775.

3.                 M/s Sankalp (the taste of South), SCO No.11, Sector 26, Chandigarh; earlier known as M/s Amar Motors, authorised dealer M/s Kinetic Motor Company Ltd. through its partner Sh. Bhushan Aggarwal.

2^nd Address.

M/s Amar Electronics Plaza, SCO No.202, Sector 14, Panchkula.

4.                 M/s Chandigarh. Auto Care, Authorised Dealer M/s Kinetic Motor Company Ltd., as merge to M/s Mahindra 2 Wheelers Ltd., SCO No.482, Sector 35-C, Chandigarh through its proprietor.

---Opposite Parties.

BEFORE:  SHRI LAKSHMAN SHARMA                 PRESIDENT

                   SHRI JASWINDER SINGH SIDHU       MEMBER

Argued by: Sh. Neeraj Sobti, Adv. for the complainant

                        Sh. Sikander Bakshi, Adv. for OP No.1

                        Sh. Peeush Gagneja, Adv. for OP No.2

                        None for OP No.3

                        OP No.4 already exparte.

PER LAKSHMAN SHARMA, PRESIDENT

1.                           Sh. Bhushan Taneja has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as the Act only) praying for the following relief :-

“a)     To replace the scooter i.e. ‘Kinetic Flyte’ with brand new or in the alternate refund Rs.38,000/- charged from the complainant towards its price alongwith interest @ 18% since 23.5.2008 i.e. (date of purchase) to its actual realization.

b)                 To pay Rs.1,00,000/- as compensation towards mental agony/torture and physical harassment caused to the complainant on account of poor after sale services of the opposite parties.

c)                 To pay Rs.10,000/- towards counsel fee and Rs.5000/- towards costs of litigation.”

2.                           In brief, the case of the complainant is that on 23.5.2008 he purchased a “Kinetic Flyte” scooter from opposite party No.3 for Rs.38,000/- and the said scooter was having warranty of 3 years from the date of its purchase.  According to the complainant, the said scooter suffered from various defects, like some sound in the engine, suspension.  On 1.8.2008, at the time of first free service, he brought the said defects, as well as the problem of less average, to the notice of service advisor of the opposite parties.  At the time of delivery of the scooter, after service, the complainant was assured that the defects have been rectified.  On 12.9.2008 and 10.2.2009 at the time of 2^nd and 3^rd free service also the complainant apprised the service advisor about the said defects, but nothing needful was done.  The complainant contacted the customer care on 7.4.2009 and 14.4.2009 after which he was told to contact their Dhar office on phone.  According to the complainant, on 16.4.2009 he contacted the Dhar office of the opposite parties upon which he was asked to call the Service Engineer of Punjab Region (Mr. Pandita) on mobile No.9855610338.  When the complainant contacted Mr. Pandita on the aforesaid mobile he replied that he is out of station and advised to contact Mr. Rajiv on Mobile No.9781615009.  When the complainant called Mr. Rajiv, he told him to visit the Dealer’s office (i.e. Opposite party No.4). According to the complainant, he visited opposite party No.4 several times, but nothing needful was done.   On 22.5.2009, the complainant served a legal notice on the opposite parties, in response to which he received a letter dated 25.5.2009 asking him to contact Mr. Rajeev Raju.  Accordingly the complainant contacted the said person, who took the vehicle from him on 28.5.2009 and handed over the same back without rectifying the fault.  The complainant again contacted the representatives of the opposite parties for rectifying the existing defects and vide call letter dated 22.9.2009 he was asked to make the vehicle available on 29.9.2009 with opposite party No.4.  Accordingly, he contacted Opposite party No.4, but nothing needful was done.  In these circumstances the present complaint has been filed.

3.                           In its written statement, opposite party No.1 did not dispute that the scooter in question was purchased by the complainant from Opposite party No.3, after having satisfied about the performance of the vehicle during Pre Delivery Inspection (PDI) conducted before the complainant at the time of delivery.  It has been averred that the scooter is provided with warranty for repair/replacement of certain part(s) only during its validity period.   It has been denied that the vehicle in question suffers from any manufacturing defect or that the complainant was assured that the vehicle would give average of about 50-60 KM per litre.  It has been pleaded that the vehicle in question does not suffer from any defect and the same is perfectly in order and in roadworthy condition. According to the opposite party, there is no deficiency in service on its part and the complaint deserves dismissal.

4.                           Opposite party No.2 in its separate written reply pleaded that the complaint against it is not maintainable as the vehicle in question was manufactured and sold by Opposite party No.1.  It has further been pleaded that the liability of opposite party No.2 is limited to the extent of providing repairing services and passing of warranty claims of the complainant after the purchase of assets of opposite party No.1 on 1.11.2008 by Opposite Party No.2.  It has been pleaded that there was no defect in the vehicle and whatever defects were noticed, the same were rectified to the satisfaction of the complainant.  It has further been pleaded that the alleged defect, if any, were due to poor maintenance of the vehicle by the complainant as he did not adhere to the service schedule. According to the opposite party, there is no deficiency in service on its part and the complaint deserves dismissal.

5.                           Opposite Party No.3, in its separate written reply, at the outset stated that opposite party No.3 has ceased to be the dealer/service centre of opposite party No.2 since 1.4.2009 and that the complainant never came to it after the said date.  It has been further stated that there was no fault in the vehicle at the time of sale or at the time of requisite service.  The receipt of legal notice has been denied. It has been pleaded that there is no deficiency in service on its part and, in case of any manufacturing defect, opposite parties No.1 & 2 only are liable to replace or refund the amount.   Accordingly, prayer for dismissal of the complaint has been made. 

6.                           On 14.1.2011, the case was fixed for filing reply and evidence of Opposite Party No.4.  However, none appeared on behalf of Opposite Party No.4 on that day.  Accordingly, it was proceeded against exparte.  

7.                           We have heard the learned counsel for the contesting parties and have gone through the documents on record.

8.                           During the pendency of the complaint, the complainant moved an application for referring the vehicle in question to an independent expert for opinion. The said application was allowed vide  order dated 3.11.2011 and, in order to ascertain as to whether the vehicle in question suffered from some manufacturing defect, opinion was sought from the Expert Committee of the Punjab Engineering College (PEC), Chandigarh. The said committee gave its report vide memo No.PEC/MED/732 dated 12.4.2012 and the operative part of the same reads as under :-

          “The vehicle was inspected and test driven for about eight kilometers. The committee after the inspection and test drive observed that the front suspension system of the vehicle was not working properly and the sound of the engine was not proper.”

9.                           The aforesaid report of the expert does not mention anywhere that the vehicle in question suffers from any manufacturing defect.  Even in the complaint, the complainant has not mentioned that, apart from the problem of suspension and noise in the engine, the scooter in question suffered from any other defect.  Hence, in these circumstances, we are of the view that the relief of replacement of the scooter in question or refund of its price is unwarranted when the same can be set right by repair/replacement of the defective part(s).  Here we can also refer to the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra-II (2006) CPJ 3 (SC) in which the Hon’ble Supreme Court, inter alia, held that if the manufacturing defect was established, then replacement of the entire item or the replacement of the defective parts, is only called for.

10.                       However, the above does not absolve the opposite parties of their responsibility to repair the vehicle in question, to the satisfaction of the complainant, as the same was under warranty, but they failed to do so.   The opposite parties also did not file any objection to the aforesaid report, meaning thereby that they admit the authenticity of the same.   

11.                       In view of the above discussion, the present complaint is partly allowed, with costs, and the following directions are issued :-

i)                   The opposite parties shall replace the defective front suspension system of the scooter in question with a new one without charging anything therefor.

ii)                The opposite parties shall repair the engine, to the satisfaction of the complainant, to put an end to the problem of noise from the engine, without charging anything therefore. However, if the engine has become irreparable then the same shall also be replaced with a new one, without charging anything therefor.

iii)              The opposite shall pay an amount of Rs.11,030/- paid by the complainant to the PEC University of Technology, Chandigarh as fee for the inspection of the vehicle in question.

iv)              The opposite parties shall pay an amount of Rs.10,000/- to the complainant as compensation for mental and physical agony undergone by him.

v)                 The opposite parties shall pay an amount of Rs.7,000/- to the complainant as costs of litigation.

12.                       This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr. No.(iii) & (iv) above shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs and job work as per Sr. No.(i) and (ii) and job work as per Sr. No.1(i) & (ii) above.

13.                       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

31.7.2012.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

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