Complaint No: 305 of 2019.
Date of Institution: 27.09.2019.
Date of order: 18.03.2024.
Jasbir Kumar Son of Sh. Sardari Lal, resident of Village Jafalpur Tehsil and District Gurdaspur.
…....Complainant.
VERSUS
1. M/s Mahajan Motors, through its Proprietor, Authorized Service Centre Hero Motor Corp Opposite FCI Godown, G.T Road Dinanagar.
2. Hero Motocorp Ltd, 34 Community Centre, Basant Lok, Vasant Vihar, New Delhi.
….Opposite parties.
Complaint under section 12 of the Consumer Protection Act.
Present: For the Complainant: Sh.Rahul Puri, Advocate.
For the Opposite Party No.1: Sh.Sandeep Ohri, Advocate.
For the Opposite Party No.2: Sh.Sahil Kamboj, Advocate.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Jasbir Kumar, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against M/s Mahajan Motors Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that opposite party No. 1 is the authorized stockiest of Hero Motorcorp and running business of sale and service of opposite party No. 2. It is pleaded that on 11.04.2019 the complainant purchased one Passion Pro 110 IBS motorcycle bearing provisional registration No.PB-06-AU-8601, Engine No. JA06EUKHB04869 and Chassis No.MBLJAW029KHB01180 on 11.04.2019 and opposite party No. 1 issued sale letter dated 11.04.2019 alongwith its insurance and form No. 22 regarding certificate of compliance with pollution standards, hence the complainant is consumer of the opposite parties No. 1 and 2. It is further pleaded that the complainant is working in Jammu as a carpenter and he took his motorcycle alongwith him. On 26.06.2019 when the complainant was on his way from Jammu to his village in District Gurdaspur, the engine of said motorcycle got seized. Complainant informed the opposite party No. 1 regarding the seizure of the engine of motorcycle on mobile No. 9888258957 and the Manager of the opposite party No. 1 advised the complainant to take the motorcycle to the nearest authorized service center and get the motorcycle repaired. It is further pleaded that the complainant took the motorcycle to M/s Hari Om Automobile, Dyala Chack, Hira Nagar (Jammu) authorized service center of Hero Motorcorp and they repaired the engine of the motorcycle and charged Rs.900/- and issued cash memo S. No. 488 dated 28.06.2019. It is further pleaded that to the utter surprise of the complainant the engine of the motorcycle got again seized on the very next day i.e. 29.06.2019. The complainant then informed telephonically to the Regd. Head Office of Hero Motorcorp Ltd. New Delhi i.e., the opposite party No. 2 on their Helpline No. 1800- 2660018 and got his complaint registered regarding the seizure of the engine of the motorcycle vide complaint No. 22895061924. It is further pleaded that opposite party No. 2 assured the complainant that soon the Company Engineer will visit the complainant and will do the needful to address the complaint of the complainant, but till now no person from either opposite party No. 1 or opposite party No. 2 attended the complaint nor Company Engineer ever visited the complainant. It is further pleaded that the complainant was left with no option except to bring the motorcycle from Jammu to the premises of the opposite party No. 1 by hiring the Mahindra ACE (Shota Hathi / Three wheeler) and the complainant had to pay Rs.5000/- as transportation charges. It is further pleaded that the complainant insisted the opposite party No. 1 to replace the motorcycle since the engine of the motorcycle was getting seized time and again due to manufacturing fault and the motorcycle was still in the guarantee and warranty period, but the opposite parties flatly refused to get the motorcycle replaced and the opposite party No. 1 again charged Rs.520/- for repairing the motorcycle. It is further pleaded that when the complainant insisted the opposite party No. 1 to give the bill of repair charges of Rs.520/- but the opposite party No. 1 flatly refused to issue any bill rather the opposite party No. 1 threatened and misbehaved with the complainant. It is further pleaded that again on 09.08.2019 the engine of the motorcycle of the complainant got seized. When the complainant tried to lodge a complaint to the opposite party No. 1 regarding the defect in the engine of the motorcycle, the opposite party No. 1 did not attend the telephone call of complainant. On the same day complainant made a call to Mr. Deepak Verma Senior Official of the Hero Motorcorp on his mobile No. 9075092077 and informed him about the problems of the engine of the said motorcycle. It is further pleaded that Mr. Deepak Verma suggested to the complainant to talk with Mr. Amit since the area of Gurdaspur does not fall in his area of operation. Then the complainant approached Mr. Amit on his telephone No. 9988880685 and told his problems and his story of harassment being faced by the complainant. It is further pleaded that Mr. Amit advised the complainant to take the motorcycle to the opposite party No. 1 and get the motorcycle exchanged. But when the complainant again approached to the opposite party No. 1 but they flatly refused to entertain any complaint of the complainant and also threatened the complainant to do whatever possible he can. It is further pleaded that complainant then again approached Mr. Amit telephonically and also to the helpline number of the opposite party No. 2 number of times and narrated them his tale of woes but no satisfactory answer was received from the opposite parties. It is further pleaded that on 12.08.2019 complainant again tried to contact the opposite parties No. 1 and 2 in the office at Chandigarh on phone No. 0172- 2623773 but no response has been received from anywhere. It is further pleaded that the complainant got his motorcycle finance from ICICI Bank Ltd. and he is till now paying installments to the bank. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that so, there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the motorcycle with a new one alongwith amount of Rs.95,000/- towards damages, harassment, professional loss, transportation charges suffered by way of mental tension and agony and litigation expenses alongwith interest @ 12% per annum, from the date of filing the complaint, till its realization, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no cause of action to file the present complaint and the complainant has no locus standi to file the present complaint. It is pleaded that there is no deficiency in services on the part of the answering opposite party and the complaint of the complainant is not legally maintainable. It is further pleaded that the complaint of the complainant is bad for non-joinder of the necessary party. The complainant is in this complaint is alleging that he has got his motorcycle repaired from M/s Hari Om Automobile, Dyala Chak, Hiranagar, Jammu, but has not made them party to the present complaint. It is further pleaded that the complainant approached the answering opposite party regarding the repair of the vehicle on 03.07.2019. The vehicle was under warranty and due to which the vehicle has been repaired to the satisfaction of the complainant and no amount has been charged from the complainant by the answering opposite party as the vehicle was under warranty. It is further pleaded that after that the complainant made complaint to the company regarding the problem in the vehicle. The letter dated 20.09.2019 has been sent by the answering opposite party to the complainant and requested him to bring the vehicle for checkup, but the complainant never visited the answering opposite party, so there is no deficiency in services on the part of the answering opposite party and it is the complainant who is at fault and failed to fulfill his part of obligations. It is further pleaded that the complainant has not come to the court with clean hands and concealed the material facts. It is further pleaded that the complainant is still using the motorcycle, but he has not disclosed this fact. It is further pleaded that facts regarding the making of complaint and regarding the taking of motorcycle to Jammu are wrong. It is also wrong that any amount of Rs.5,000/- paid by the complainant. It is further pleaded that the complainant is leveling false allegations of charging Rs.520/- by the answering opposite party but no amount has been charged by the answering opposite party. It is further pleaded that the complaint has been made by the complainant, but he never visited the answering opposite party for the repair of the vehicle. It is further pleaded that as already stated even the letter dated 20.09.2019 has been dully sent to the complainant to come for checkup in response to his complaint, through registered post, but he never approached the answering opposite party. The allegations leveled are totally false and frivolous.
On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that at the outset it is stated and humbly submitted that the opposite party No. 1 (herein referred to as OP No. 1) is AD i.e. Authorized Dealer of the products manufactured by OP No. 2 and also engages in carrying out service and repair of the said two wheelers such as motorcycle/vehicles manufactured by OP No. 2. It is pleaded that the OP No. 2 is a company engaged in the business of manufacturing of Two-Wheelers in India. In the year 2001 the company had achieved the coveted position of being the largest Two-Wheeler manufacturing company in India and also, the world No. 1 Two Wheeler company in terms of unit volume sales on a calendar year. It is further pleaded that the present Complaint is misconceived and untenable both on the facts and in law and deserves to be dismissed in limine by the Hon'ble Commission and the Complainant has not come to this Hon'ble Commission with clean hands and has intentionally and deliberately suppressed material facts, hence not entitled to any relief much less equitable relief from this Hon'ble Commission. It is further pleaded that the OP’s have not indulged in any sort of unlawful trade practices or any deficiency in services and are only following the process/policy as per the industry standard which the Complainant is well aware of. It is further pleaded that the copies of the Complaint supplied by the Complainant to the OP’s have not been duly supported by sworn & duly attested Affidavit to verify the facts and contents stated by him in his Complaint as required under Order 6 Rule 15 of the CPC, 1908. In this light, the present Complaint deserves to be dismissed by the Hon'ble Commission. It is further pleaded that Complainant has not filed any acceptable evidence in the Complaint or in support of the cause of action made out in the Complaint before this Hon'ble Commission. It is further pleaded that the present Complaint is abuse the process of this Hon'ble Commission, hence deserves to be dismissed by the Hon'ble Commission. It is further pleaded that as per the Complainant the repair work for "engine seizure" was done on the vehicle on 26.06.2019 by "Hari Om Automobile", but as per the Vehicle history the Complainant lodged complaint regarding "timing chain noise" with Hari Om Automobile. It is further pleaded that Complainant deliberately did not make "Hari Om Automobile" as party in present Complaint and the Complainant concealing/misrepresenting the facts before Hon'ble Commission. Therefore, the present Complaint deserved to be dismissed for non-joinder of necessary party. It is further pleaded that a motor cycle is made of various components which are assembled in such a way that which can be easily replaced without in any manner affecting the performance of the vehicle. It is pertinent to mention here that the said vehicle is warranted for 5 years or 70,000 K.M, whichever is earlier. So, the said vehicle is very much in the warranty period and the answering OP are very much ready and willing to provide services to the Complainant, if required, under the purview of the Company's warranty policy. It is further pleaded that the Complainant has failed to pay appropriate court fees and place the deposit fee receipt on record towards filing of the present Complaint, hence, the Complaint ought to be dismissed for non-fulfillment of statutory obligations. The present Complaint is frivolous and vexatious and is based on baseless submissions as against both the OP’s. Hence, the same deserves to be dismissed.
On merits, the opposite party No.2 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Jasbir Kumar, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-15.
6. Learned counsel for the opposite party No.1 has tendered into evidence affidavit of Sh. Vaneet Mahajan, (Proprietor of opposite party No. 1) as Ex.OP-1/A alongwith other documents as Ex.OP-1/1 to Ex.OP-1/4.
7. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Siddharth Tewari, (Authorized Representative of Hero Moto Corp. Ltd., New Delhi) as Ex.OPW-2/A alongwith other documents as Ex.OP-2/1 to Ex.OP-2/3.
8. Rejoinder filed by the complainant.
9. Written arguments filed by the opposite party No.2 but not filed by the opposite party No.1 and also not filed by the complainant.
10. Counsel for the complainant has argued that complainant had purchased one motorcycle from opposite party No.1 on 11.04.2019. However, engine of the said motorcycle seized on 26.06.2019 and on complaint being lodged the complainant was directed to take motorcycle to nearest dealer and which was repaired by M/s. Hari Om Automobile, Dyala Chack, Hira Ngar (Jammu) who charged Rs.900/- from the complainant. It is further argued that again on next day on 29.06.2019 the engine again got seized and on complaint being lodged the opposite party No.2 manufacturer assured that engineer of the company shall visit and check the motorcycle. The motorcycle was brought back by the complainant and opposite party No.1 repaired the defect and charged Rs.520/- without any receipt but again on 09.08.2019 the engine of the motorcycle got seized then complainant had given call to the officials of the opposite party No.1 who first of all assured to replace the motorcycle but later on declined the request of the complainant. The motorcycle is lying non functional from the year 2019. Act of the opposite parties amounts to deficiency in service.
11. Counsel for the opposite party No.1 has argued that the complaint of the complainant is bad for non-joinder of the necessary party as the complainant is in this complaint is alleging that he has got his motorcycle repaired from M/s Hari Om Automobile, Dyala Chak, Hiranagar, Jammu but has not made them party to the present complaint. It is further argued that the complainant approached the answering opposite party regarding the repair of the vehicle on 03.07.2019 and the vehicle was under warranty and due to which the vehicle has been repaired to the satisfaction of the complainant and no amount has been charged from the complainant by the answering opposite party as the vehicle was under warranty. It is further argued that after that the complainant made complaint to the company regarding the problem in the vehicle and letter dated 20.09.2019 has been sent by the answering opposite party to the complainant and requested him to bring the vehicle for checkup, but the complainant never visited the answering opposite party, so there is no deficiency in services on the part of the answering opposite party and it is the complainant who is at fault and failed to fulfill his part of obligations. It is further argued that opposite party is still ready to repair the motor cycle but can not replace the motor cycle with new one as manufactering defect has not been proved on record.
12. Counsel for the opposite party No.2 has argued that as per record of Hari Om Automobile the complaint lodged by the complainant is timing chain noise which was repaired. It is further argued that on 29.06.2019 complainant never made complaint regarding engine seizer rather on 03.07.2019 complainant had lodged complaint of high oil consumption and smoky exhaust and not for engine seized. It is further argued that motorcycle has not been examined by any expert and as such there is no evidence on file regarding manufacturing defect in the engine.
13. We have heard the Ld. counsels for the parties and gone through the record.
14. During the pendency of the present complaint, complainant has handed over the motorcycle to the opposite parties 26.12.2023. However, inspite of having number of opportunities the opposite party No.1 has not submitted any report as to what is the defect in the engine of the motorcycle. Perusal of vehicle history card shows that the motorcycle was brought to the opposite parties on 26.06.2019 for general repair on 03.07.2019 and again on 09.08.2019 and motorcycle had covered only 4921 KMs. during the short general repair. Perusal of vehicle history card Ex.OP-2/2 shows that on 09.08.2019 the motorcycle was repaired by opposite party No.1 under warranty and valve inlet, valve exhaust and seal valve stem was replaced. On 03.07.2019 the motorcycle has been repaired by opposite party No.1 regarding high oil consumption, smoky exhaust, piston and other parts of the engine has been replaced under warranty and a complete overhaul of engine took place. On 26.06.2019 the motorcycle was repaired by Hari Om Automobile regarding engine oil and cam chain and it is the claim of the complainant that motorcycle was not in running condition ultimately motorcycle of the complainant handed over to the opposite parties on 26.12.2023 on the instructions of this Commission and thereafter vide order dated 06.02.2024 on the application of the complainant Sh.Harish Kumar Mechanical Engineer was appointed as expert/Local Commissioner with the directions to inspect the motorcycle and submit his report. Expert/Local Commissioner has submitted his report with this Commission as per which on 17.02.2024 the said expert/Local Commissioner found that the motorcycle was not in running condition and engine of the motorcycle was lying opened and some parts of the motorcycle were duplicate and motorcycle was not in running condition. The report of the expert/Local Commissioner is accompanied with affidavit, copy of diploma and photographs of the motorcycle. The opposite parties have not filed any objections to the report submitted by the expert/Local Commissioner nor has made any effort to place on record any report of engineer of the company regarding any inspection carried out by the engineer of opposite parties, which shows that opposite parties are not serious to remove the defect in the engine of the motorcycle. Although, opposite parties have offered to repair the engine being within warranty but perusal of service record shows that the engine of the motorcycle was already repaired by the opposite parties on 03.07.2019 by replacing of major components of the engine but after overhaul of the engine on 03.07.2019 but the engine of the motorcycle again seized on 09.08.2019 just after one month. We are of the view that since it is proved on record through evidence and report of expert/Local Commissioner that motorcycle is not in running condition and has un-repairable defect.
15. As such the present complaint is partly allowed and opposite parties are directed to replace the old engine of the motorcycle with a new engine. Opposite parties shall hand over the motorcycle to the complainant in full running condition within 30 days after receipt of copy of this order and since the complainant has not been able to run his motorcycle after 2019 and has definitely suffered mental tension, harassment and loss of work as such complainant is held entitled to receive compensation of Rs.15,000/- including Rs.5,000/- as costs of litigation. However, it is made clear that if engine of the motorcycle is not replaced with a new engine within above referred time i.e. within 30 days after receipt of copy of this order in that case opposite parties shall be liable to replace the old motorcycle of the complainant with a new motorcycle and opposite parties can retain the old motorcycle if so desired after completion of formalites by the complianant for transfer of the motor cycle in the name of opposite party.
16. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
17. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
March 18, 2024 Member.
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