Punjab

Hoshiarpur

CC/14/104

Pardeep Singh Rana - Complainant(s)

Versus

M/s Lagwal Automobiles - Opp.Party(s)

-

19 Jan 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM HOSHIARPUR

(3RD FLOOR, DISTRICT ADMINISTRATIVE COMPLEX, HOSHIARPUR)

C.C. No. 104/09.05.2014

Decided on : 19.01.2015

 

Pardeep Singh Rana aged about 35 years s/o Data Ram Rana R/o. 64, National Avenue, Rama Mandi, Jalandhar.

Complainant

 

vs.

1. M/S Lagwal Auto Mobiles, Village Singriwala, Jalandhar Road, Distt. Hoshiarpur through its authorized person/authorized dealer Royal Enfield.

2. Royal Enfield, Marketing Office, 7 HSIDC Sector - 18, Delhi NCR- 122005 through its authorized person.

3. Royal Enfield, (A Unit of Eicher Motors Limited) Tiruvottiyar High Road, Tiruvottiyar, Chennai 600019 through its authorized person

4. JAYY CEE Motors Royal Enfield G.T Road, Amritsar, Punjab through its authorized person.

5. Navyug Motors, Authorized Dealer ; Royal Enfield 775, Mota Singh Nagar Market, Near Bus Stand, Jalandhar through its authorized person.

Opposite parties

 

 

Complaint u/s 12 of the Consumer Protection Act, 1986.

 

Quorum: Sh. Ashok Kumar,President.

             Mrs.Vandna Choudhary, Member.

             Mrs. Sushma Handoo,Member.

 

Present: Sh.Puneet Joshi , counsel for the complainant.

             Sh.Raghav Sharma , counsel for the OPs.

 

ORDER

PER ASHOK KUMAR, PRESIDENT

1. The complainant has filed the present amended complaint under Section 12 of the Consumer Protection Act,1986 against M/s Lagwal Auto Mobiles and others (hereinafter referred to as OPs, for short) praying for a direction to the OPs to change the motorcycle with a new one or to refund its cost and to pay Rs. 50,000/- towards compensation for harassment and mental tension, Rs. 2,000/- for visits to the workshop of OP including other expenses and to pay Rs.5,000/-as legal expenses.

2. Briefly stated, the case of the complainant is that he purchased a Royal Enfield motorcycle Classic 500 from OP No. 1 for Rs. 1,34,732/- on 11.01.2013 bearing Registration no. PB08 CG 1779 and made the payment vide Demand Draft No. 598150 Dated 05.01.2013 to OP No.1. It is averred that at the time of sale of the said motorcycle, OP No.1 assured the complainant that the said motorcycle has one year guarantee/warranty and also assured that the said motorcycle is of high quality which will never give any type of trouble in future and further assured that if there would be any type of trouble/ defect, the same would be removed immediately to his satisfaction . It is further averred that after the purchase of the said motorcycle, the complainant felt that there is some defect in the motorcycle which produces some type of noise and giving trouble in its functioning . On 14.05.2013, as per the directions of OP No.1, the complainant went to the local authorized dealer i.e. OP No.5 and lodged complaint regarding the said defect who took the motorcycle and assured the complainant that the defect would be removed. OP No.5 charged Rs.1230/- vide Bill No.339 dated 14.05.2013 for removing the said defect. However, after some days the same defect again arose. The complainant again approached OP No.5 who told that there is problem in Spark Plug and Engine Oil and changed Engine Oil and Spark Plug with a new one and charged Rs. 280/- vide Bill No. 775 dated 18.07.2013 and assured that the defect is removed now. The defects again arose and on approaching OP No.5, it told that there is problem in Breather Pipe and Air Filter and changed the same with new one and charged Rs. 780/- vide Bill No. 840 dated 26.07.2013 and again assured to the complainant that the said motorcycle is OK as defect is removed. It is further averred that after some days same problem arose. The complainant again approached OP No.5 in this respect who told that there is problem in oil filter and oil and changed with a new one and charged Rs.1000/- vide Bill No. 4032 dated nil .

3. It is further averred that on 04.09.2013 the complainant went to Amritsar on the said motorcycle and the same started creating the same problems and its engine stopped working at once on the way and the complainant approached the OP No.4 and described whole story about the defects of said motorcycle who assured the complainant that the fault would be removed as early as possible and issued job card dated 04.09.2013. The complainant was shocked to know that the said motorcycle is already registered in the name of one Ramesh Chand r/o Hamir Pur (Himachal Pardesh) which shows that the OP no. 1 has sold the second hand motorcycle to the complainant. This information was supplied to the complainant by the clerk of the OP no.4 when he prepared the job card as mentioned above from the data maintained in his computer. This act of the opposite parties amounts to unfair trade practice. The said motorcycle is in the custody of OP No.4 since 04.09.2013 and the OP no. 4 did not return the same to the complainant till date. The complainant brought this fact to the knowledge of OP No.1 who instead of solving the problem miserably failed to satisfy the complainant. The complainant then got served a legal notice dated 28.09.2013 through registered post in which the OPs were asked to change the motorcycle with a new one or to refund the entire amount within 7 days from the receipt of the said notice but the OP no.1 replied the legal notice mentioning therein that “ Your client bought the bike from us on 11 January, 2013, choosing 1 bike out of 2 which were presented to him.” In this way, OPs admitted that they have sold the second hand or used motorcycle. It is further averred that the said motorcycle is still in the possession of OP no.4. Thus, there is clear deficiency in service and unfair trade practice on the part of the OPs .

4. It is further averred that earlier complainant had filed complaint before District Consumer Forum, Jalandhar who returned the same with a direction to file the same before District Consumer Forum Hoshiarpur as OP No.1 sold the said motorcycle to the complaint at Hoshiarpur and as such this Forum has got the jurisdiction to try and decide the present complaint. Therefore, complainant is entitled to the relief claimed as stated at the outset of this order.

5. On notice, OPs filed joint contested written statement taking routine preliminary objections. On merits, it is replied that the complainant took the delivery of brand new Royal Enfield motorcycle Classic 500 from the OP No.1-M/s Lagwal Automobiles through CSD Facility and the payment of the said motorcycle was made to OP No.3 by the Jalandhar Depot. The complainant made the payment to Govt. of India (Ministry of Defence) Jalandhar Area Depot Jalandhar being an army personal to purchase the motorcycle through CSD facility. He did not make any payment to OP No.1 directly. In so far as the registration number of the motorcycle is concerned, the same was applied by the complainant himself and it was registered on his name as first owner. The motorcycle in question was under the warranty of one year as provided by The Royal Enfield Motorcycle Company and complainant was told about the terms and conditions of warranty orally as well as in writing and Owner’s manual book was duly supplied to him. The said owner's manual also used to keep the record of first four free services and other service record of the motorcycle. However, after getting first free service of the motorcycle by the complainant from OP No.1, he did not bring his motorcycle for another service as per the schedule mentioned in service chart in owner’s manual book. Hence, the complainant violated the terms and conditions. It is further replied that the complainant approached OP No.5 for getting the service of his motorcycle and the same was done by OP No.5 and charged Rs. 1230/- for the consumable products only. The complainant took the delivery of his motorcycle being fully satisfied with the service done by the OP No.5. It is admitted that the complainant approached OP No.5 with the complaint of missing current in motorcycle and the same was attended to by its efficient engineers and equipments. There was some defect in Spark Plug and its wire and the same were replaced and after service, the complainant checked the motorcycle and received the delivery being fully satisfied. It is specifically denied that OP No.5 changed engine oil on 18.07.2013. It is further admitted that the complainant approached OP No.5 with some trouble in motorcycle but the same had arisen due to mishandling, abnormal use, negligence and improper maintenance of the motorcycle by the complainant himself as the motorcycle of the complainant met with an accident. The OP inspected the vehicle and told the complainant about necessary repair because said repair does not cover under warranty due to accident. The complainant assured that he will get the motorcycle repaired very soon. As per the instruction of complainant, OP No.5 changed the breather pipe, spark plug and air filter of the motorcycle and charged Rs. 780/- from the complainant. Thereafter, the complainant took the delivery of vehicle being satisfied from the service of the OP No.5. It is replied that bill No. 4032 dated nil belongs to the first service of the motorcycle in question which was done by the OP No.1 on 21.01.2013. It is admitted that the complainant approached OP No.4 at Amritsar with the complaint of starting trouble and the same was removed but the complainant did not take the delivery of his motorcycle till date after having intimation and reminders issued by the OPs . The OP No.4 also informed the complainant about inconvenience to park the motorcycle in his workshop for such long period but he did not bother. It is further replied that the Motorcycle of the complainant is in good running condition. The entire story of sale of the second hand motorcycle is denied being wrong and misstated . The complainant took the delivery of brand new Royal Enfield motorcycle from OP No.1 after proper satisfaction and then he applied for its registration and the same was duly registered on his name with District Transport Authority at Jalandhar being first owner so, the question of sale of second hand bike to complainant does not arise at all. It is admitted that the complainant served the legal notice and it is alleged that the same was duly replied. So, the complaint is liable to be dismissed with costs.

6. Both the parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them. The complainant tendered in evidence affidavit Ex. C-1, bill Ex. C-2, copy of RC Ex. C-3, bills Ex. C-4 to Ex. C-6, bill Mark C-7, copy of slip Mark C-8, legal notice Ex. C-9, postal receipts Ex. C-10 to Ex. C-14, reply Ex. C-15, copy of order of District Forum, Jalandhar Ex. C-16 and closed the evidence.

7. In order to rebut the evidence of the complainant , the OPs tendered in evidence affidavit of Dinesh Singh Dogra Ex. OP-1, terms and conditions Mark OP-2, regd. letters Mark OP-3, Mark OP-4, bill Mark OP-5 and closed the evidence.

8. We have heard learned counsel for the parties and have very carefully gone through the affidavits, documents and written arguments filed by OPs on the file.

9. Learned counsel for the complainant has vehemently argued that OPs have sold second hand motorcycle to the complainant and it produces some type of noise and is giving trouble in functioning. So, he is entitled to the relief claimed.

10. Learned counsel for the OPs has however repelled the aforesaid contentions of the learned counsel for the complainant on the ground that the defects in the motorcycle occurred for want of proper maintenance, mishandling and abnormal use by the complainant. It is further contended that a brand new motorcycle was sold to the complainant. No material to the contrary has been proved on record.

11. We have anxiously considered the rival contentions in the light of evidence on record.

12. The complainant has alleged that OPs have sold second hand motorcycle to him as per Mark C-8, a slip which was supplied to him by the clerk of the OP no.4 from the data maintained in his computer when he prepared the job card . However, a bare perusal of this document would show that it is neither stamped nor signed by anyone. No record of OP No.4 in this regard was summoned by the complainant even to prove the factum of issuance of slip by the clerk of OP No.4. Such slip can be conveniently prepared by use of computer these days. So, no reliance can be placed on this document.

13. There is persistent allegation of the complainant that vehicle developed defects after its purchase. Vide retail invoice Ex.C-5, spark plugs were changed on 18.7.2013 and vide retail invoice Ex.C-6, breather pipe, spark plug and air filter were changed on 26.7.2013. The aforesaid complaints came within a span of about 7 months after its purchase on 11.1.2013 well within warranty period of 12 months as is evident from warranty card Mark OP-2 . From the evidence led by the complainant, it is proved that vehicle was not working properly. However, the aforesaid defects by themselves cannot lead one to conclude that motorcycle purchased by the complainant is suffering from inherent manufacturing defect . Complainant has not examined any expert even to prove this fact . Therefore, prayer for replacement of vehicle or refund of purchase amount in respect of it is totally misplaced on the basis of either of the aforesaid grounds. However, it is noted that some starting problem has been there in the motorcycle in question during the warranty period which is stated to have been removed after replacing necessary parts as is evident from the written statement of the OPs as well as their reply Ex.C-15 to the legal notice Ex.C-9 got issued by the complainant. In our considered view, the defects in the motorcycle as also referred above can be removed by repair/replacement of parts of the vehicle, if need be. In Hema Vasantilal Dakoria vs. Bajaj Auto Limited and Others 2005(3) CLT 138, Hon'ble National Commission held that if a part could be replaced or a defect could be removed then replacement of vehicle cannot be ordered.

14. As already pointed out above, from the evidence available on record, it stands established that there is defect in the motorcycle which has remained to be removed so far to the satisfaction of the complainant . Furthermore, no cogent, reliable and conclusive material is forthcoming from the side of OPs that after repair of the motorcycle, he was duly informed. Therefore, complainant is found entitled to not only satisfactory repair of his vehicle but also for appropriate compensation for harassment and mental agony besides litigation costs. Relief sought by him as such can be moulded accordingly.

15. In view of our above observations and findings, the complaint filed by complainant stands disposed of with a direction to the OPs to repair the motorcycle of the complainant to his satisfaction free of cost and deliver it in perfectly fit condition to him within a period of 30 days from the receipt of copy of this order and also to pay Rs.5,000/- as compensation and Rs.7,000/- as litigation expenses failing which OPs shall be liable to pay interest @ 9% per annum on the aforesaid amount of Rs.12,000/- from the date of order till realization. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

Announced.

19.01.2015

 

 

(Mrs.Vandna Chowdhary) (Mrs. Sushma Handoo) (Ashok Kumar )

Member                                Member                   President

SS