BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 206 of 2015.
Date of Institution : 18.11.2015.
Date of Decision : 12.05.2017
Narender Saraf son of Shri Gaja Nand Saraf, resident of Gali Khajanchio Wali, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus.
1. M/S Madhur Motors, authorized dealer India Yamaha Motors Private Limited, Dabwali Road, Sirsa, through its Proprietor/ Incharge.
2. Customer Care Centre, C/O M/S Madhur Motors, Yamaha Motors Sirsa through its Manager/ Incharge.
3. M/S India Yamaha Motors Private Limited, Coremthem Building, Noida, Surajpur, Sector 62, Plot No.A-41, D-Tower, B-35 through its Director. Phone No.0120-2350634.
4. M/S India Yamaha Motors Private Limited, T.V.H., Velliciaa Tower, 8th Floor, MRC Nagar, Chennai-28 Block No.94 Samtom City through its Managing Director. 0442-4621305.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. RAGHBIR SINGH…………………PRESIDENT
SMT. RAJNI GOYAT ………..……… MEMBER.
SH. MOHINDER PAUL RATHEE…… MEMBER
Present: Sh. G.K. Saraf , Advocate for the complainant.
Sh. P.S. Chauhan, Advocate for opposite party No.1.
Opposite party no.2 exparte.
Sh. P.K. Mehta, Advocate for opposite parties No.3 and 4.
ORDER
Case of the complainant, in brief, is that on 2.11.2014, he purchased a motor cycle Yamaha Fazer FI bearing chassis No.ME1RG0749 Eooo3427, Engine No.G3C8E0039880, colour red black, temporary No.HR-99-TQ/0967 from op no.1 for a sum of Rs.87,865/- vide invoice/bill No.3298 ( it is 3293) dated 2.11.2014. At the time of purchase, the op no.1 gave guarantee of above said motor cycle for a period of two years. The registration No.HR-24-U/9741 was also allotted to the motor cycle of complainant. It is further averred that after purchasing of vehicle, its engine is not working properly as it could not be started smoothly rather created serious disturbance and problems of vibration from engine and complete vehicle gives serious vibration, so rider cannot move further without any fear. As per Works Manager, this vehicle is not safe for driving and they cannot remove this type of defects and only engineer of manufacturing company will do so. There is deficiency of pickup and the motor cycle has been serviced for about 20 times but defects could not be removed by the ops and the engineer of the company also told that due to serious manufacturing defect it could not be repaired and is to be replaced through the company. The said motor cycle is still lying with op in its work shop in guarantee period and the ops are bound to replace the said motor cycle or to refund the costs of the same alongwith interest. Even the op no.1 has misbehaved with him and charged excess in the name of insurance company. The complainant approached and requested the ops on many occasions to repair or replace the said vehicle but all in vain. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding suppression of material facts; mis joinder of the parties etc. It has been submitted that complainant has neither impleaded the Manager as party nor any copy of the said report has been placed on the file. The whole complaint of complainant is based on the oral allegations because he has no where stated about the specific day, time and month of his approach to any of the ops. The complainant has also failed to produce on file any report of the mechanic regarding alleged defect in the vehicle what to say of any manufacturing defect. It has been further submitted that complainant has never reported the alleged defects in the vehicle to any of the ops. Admittedly the complainant has availed free services on the said vehicle as is provided by the company but he has never reported about the same. Remaining contents of the complaint have also been denied.
3. None appeared on behalf of opposite party no.2 despite due service and therefore, op no.2 was proceeded against exparte.
4. Opposite parties No.3 and 4 in their written version have averred that said motor cycle was delivered to the complainant after completing the process of PDI (i.e. Pre Delivery Inspection) to the entire satisfaction of the complainant regarding the perfect working condition of the motor cycle and no defect was alleged in the same. It is further averred that it is admitted that within two years of the purchase of motor cycle, the answering op is liable to remove any/all manufacturing defects free of cost, but they are not liable to refund the cost of the motor cycle with interest. However, the case of the complainant is not for manufacturing defect and is an accidental case, which is not within the preview of the warranty stipulated by the answering ops. The answering ops provided warranty on the said motor cycle for two years and as per the terms of warranty, the same is extended only to the extent of certain parts that are found to have a manufacturing defect and not to the complete motor cycle. Further, no liability lies on the answering ops for claims on those parts of the motor cycle that have been subjected to mishandling or negligent treatment by the user. The complaints of complainant were duly and promptly attended every time by the ops and the motor cycle does not suffer from any manufacturing defect. It has been further submitted that the motor cycle was brought to the workshop of op no.1 for the first service on 29.11.2014 vide job card No.8970 for accidental repairs. The headlight, housing, stay side cowl etc. were duly replaced and the motor cycle was given to the complainant after he signed satisfactory note. It is pertinent to note that the words “Gadi vibrate karti hai” have been written separately after the preparation of the job card. The motor cycle was brought to the workshop of op no.1 for the 2nd service on 21.2.2015 vide job card No.9228 for regular checking. There was no complaint of engine or body vibration, only regular check up was carried out and the complainant signed satisfactory note. On 13.4.2015, 31.7.2015 and 21.10.2015 also 3rd, 4th and 5th services and regular checking were done but the customer in his writing chose to write the words “Gaadi vibrate karti hai” each time. After above said services, the motor cycle was delivered to the complainant and he signed satisfactory notes. It has been submitted that the damage caused to the motor cycle is a result of accident and same cannot be held as a manufacturing defect. As the answering op is a customer oriented organization, the complainant was called upon to get his bike repaired in the presence of RSM & SE personally in order to remove all his alleged defects. That vide job card no.1144 dated 1.12.2015, the complaint of the engine and body vibration of the vehicle was looked into closely and the necessary action was taken to repair the vehicle. The complainant in furtherance of the said service, wrote a satisfaction letter wherein he clearly mentioned that the problems in his vehicle has been fully rectified and he does not want to continue with the instant complaint. The above mentioned facts makes it crystal clear that the complainant is fully satisfied with the condition of the motor cycle and he wishes to withdraw the complaint, therefore, complaint deserves dismissal.
5. In evidence, complainant produced his affidavit Ex.C1 and copies of documents Ex.C3 to Ex.C18 (Ex.C2 left). On the other hand, ops no.3 and 4 produced affidavit Ex.RW1/A and copies of documents Ex.R1 to Ex.R8. OP no.1 produced affidavit Ex.R9 and copy of satisfaction note dated 1.12.2015 Ex.R10.
6. We have heard learned counsel for the parties and have perused the case file carefully. Written arguments submitted on behalf of complainant as well as on behalf of ops no.3 and 4 have also been perused.
7. It is established on record and not disputed that complainant purchased the motor cycle in question on 2.11.2014 from opposite party no.1. On 29.11.2014 when the motor cycle in question was brought for first service to the op no.1 on 830 Kms., it was reported that vehicle is doing vibration and making noise from front and rear portion but at that time the mechanic of op no.1 also mentioned that vehicle is accidental and this fact is evident from job card No.8970 Ex.C3. At that time, headlight, housing, stay side cowl etc. were replaced and the motor cycle was given to the complainant. Then at the time of subsequent services, besides regular issues, it has been reported on behalf of the complainant that vehicle is doing vibration. The complainant has produced copy of report of one Sonu Mechanic as Ex.C17 wherein he has reported that he checked the motor cycle in January, 2016 and there is manufacturing defect in the motor cycle as there is vibration in its engine due to which whole motor cycle vibrates and they are unable to repair the motor cycle and can be repaired only by Engineer of the company. But the complainant has failed to prove that said defect is only due to manufacturing defect and not due to the accident caused to the vehicle in question. The vehicle is repairable as per the above said report of the Mechanic. The opposite parties have relied upon customer satisfaction note dated 1.12.2015 wherein it is mentioned in the column of ‘reason for dis-satisfaction’ that “Problem not resolved” and in the column of ‘Action Taken’ it is mentioned that “checked and found swing arm bush and bearing play replaced and drive vehicle 3-4 Kms. No vibration of engine and vehicle.” According to the ops, said satisfaction note bears the signatures of the son of the complainant.
8. Learned counsel for the complainant has contended that job card No.1144 dated 1.12.2015 and satisfaction note was not signed by the complainant and the son of the complainant has no right to give satisfaction letter and has no authority to withdraw the case filed by complainant as the complainant is only the master of his complaint. We also concur with this submission that son of the complainant has no authority to withdraw the complaint filed by his father if any power of attorney etc. is not given by him to his son but at the same time it is to be seen that complainant has failed to prove any manufacturing defect in the vehicle and as per report of Sonu Auto Service placed on file by complainant himself as Ex.C17, it is evident that motor cycle is repairable. So, no case for replacement or refund of the amount is made out specially when the motor cycle in question met with an accident and the ops are only liable to repair the same as per conditions of the warranty. The ops are liable to inspect the motor cycle in the presence of complainant and to remove the defect, if any.
9. Thus, keeping in view the facts and circumstances of the present case, we partly allow the present complaint and direct the opposite parties to inspect the motor cycle in question thoroughly in the presence of complainant and to repair the same and to make it defect free after replacement of defective parts, if any without charging any amount from the complainant within a period of one month after production of the motor cycle by the complainant to the ops. This order should be complied by all the ops jointly and severally. A copy of this order be supplied to the parties free of costs. File be consigned to record room.
Announced in open Forum. President,
Dated:12.05.2017. District Consumer Disputes
Redressal Forum, Sirsa.
Member Member
