Haryana

Panchkula

CC/563/2019

SUKHVINDER SINGH. - Complainant(s)

Versus

M/S REGENT AUTOMOBILES. - Opp.Party(s)

ROHIT ANAND

12 Jun 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

 

                                                       

Consumer Complaint No	:	563 of 2019
Date of Institution	:	26.09.2019
Date of Decision	:	12.06.2023

 

Sukhvinder Singh son of Shri Tek Chand Saini, Resident of House No.1990, Azad Colony, Ward No.10, Kalka District Panchkula.

                                                                         ..….Complainant

Versus                                                                  

1.     M/s Regent Automobiles, Authorised dealer/sale office of M/s     Hero Motocrop Ltd. near Dharmpur Road, Railway Crossing, Pinjore, District Panchkula, through its Sales Manager.   2^ndAddress:-No.50, Vanagaram Road, Ayanambakkam, Chennai-        600095

2.     M/s Regent Automobiles, Authorised service center/dealer of M/s       Hero Motocrop Ltd. 148, Industrial Area, Phase II, Panchkula- 134113, through its General Manager.

3.     M/s Hero Motocrop Ltd. Regd office: 34, Community Centre,      Basant Lok, Vasant Vihar, New Delhi-110057, through its General Manager.

                                                                       ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh. Rohit Anand, Advocate for the complainant.

                        Sh. Gaurav Arora, Advocate for the OPs No.1 & 2.

                        Sh. Raj Kumar Narang, Advocate for OP No.3.

 

ORDER

(Satpal, President)

1.Briefly stated, the facts, as alleged in the present complaint, are that the complainant has purchased a motorcycle model no. Hero Motocorp Super Splendor (SV)Drumselfcast, Engine no. JA06EHJ9G2-1018, Chassis no.MBLJARI63J9G20561 from the OP No.1 on 24.09.2018 by making the payment of sum of Rs.58,200/-. The OP No.1 had also collected the registration charges amounting to Rs.3,010/-and insurance premium of Rs.8,445/- from the complainant and the registration certificate of motorcycle bearing no.HR-49G-9653 was delivered to the complainant. It is averred that the said motorcycle was giving the problem, from the very beginning due to some manufacturing and technical defects in it. It is stated that there was gear shifting problem in the motorcycle. The OP no.1 as well as OP No.2 were apprised about the gear shifting problem. The complainant visited the services station of OP no.2 along with motorcycle for obtaining the first service of the motorcycle on 13.11.2018 and informed the technical person about the gear shifting problem in the motorcycle. The complainant  again visited  the service station of the OP No.2, in connection with said problem, on 14.11.2018, whererin the drum gear shift was changed vide invoice no.10656ck18v9462 but the problem of gear shifting still persisted. The complainant again visited the service station of the OP no.2 in connection with the gear shifting problem as well as low pick up on 20.11.2018 but the OP No.2 could not rectify the defects. The motorcycle remained in the service station of the OP No.2 for about 50 days. It is stated that the gear shifting problem has not been resolved by OP No.2 despite the fact that some replacements of the engine part has been made. In the month of May, 2019 again, some parts of the motorcycle were changed and job-card was issued but the problem could not be resolved. It is stated that the Op NO.3 was requested vide registered letter dated 24.12.2018 as well as through emails to replace the motorcycle as it has manufacturing defect in it but no heed paid to his request. A legal notice was sent to Ops on 26.07.2019 but to no avail. On 06.9.2019, the complainant again contacted the OP No.2, wherein its Chief Engineer checked the motorcycle and informed the complainant that it has manufacturing defect in it, which could not be removed.  Due to the act and conduct on the part of the OPs, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.Upon notice, the OPs No.1 & 2 has appeared through their counsel and filed written statement contesting the complaint by raising preliminary objections qua the complaint is not maintainable; no locus standi; no cause of action. The complainant has not come with clean hand and has intentionally and deliberately suppressed the true material facts. It is submitted that the Ops had sold a prefect motorcycle, in fully working condition without any fault, to the complainant. It is submitted that the complainant has not driven the motorcycle by taking precautions and he did not apply the clutch while shifting the gear. It is submitted that the complainant used to drive the motorcycle in question in negligent and careless manner, without applying clutch, while shifting the gear. It is submitted that there is no independent and third party opinion, which shows that there is any manufacturing defects in the motorcycle.

                On merits, it is specifically denied that, from the first day, the vehicle has technical and manufacturing defect in it and that there was gear shifting problem in it. It is submitted that the complainant’s complaint of gear shifting was addressed by changing the drum of gear shift under warranty. It is submitted that the complainant visited the OP No.2 on 13.11.2018 for availing free service, which was duly attended by the OP No.2 with utmost sincerity and the complainant did not register any problem of “gear shift is hard” on 13.11.2019. The complainant visited the OP no.2 on 14.11.2018 and raised the issue i.e.  “gear shift is hard” and the same was taken care of by the OP No.2. The complainant again visited the OP No.2 on 21.11.2018 qua the problem i.e. “gear shift is hard” and no such problem was found during inspection.  The complainant visited the OP No.2 after about 5 months.  It is specifically denied that the gear shifting problem remains unsolved despite opening of the engine & replacement many parts. It is specifically denied that OP No.1 supplied the vehicle with manufacturing defects. It is submitted that on 14.11.2018 & 07.05.2019, problem in gear shift were found during the inspection and parts were replaced within warranty without any charge and on other occasions, no such problem was found during inspection. Therefore, it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint of the complainant is liable to be dismissed.

3.Upon notice, the OP No.3 has appeared through its counsel and filed written statement contesting the complaint by raising preliminary objections qua the complainant has not come with clean hands and has intentionally and deliberately suppressed the material facts; hence he is not entitled to any relief, much less equitable relief, from this Commission. The present complaint is frivolous and vexatious and is based on baseless submissions as against the Ops.

                On merits, it is specifically denied that, from the first day the vehicle had technical & manufacturing defect in it and that there was gear shifting problem in it. It is submitted that the complainant’s compliant of gear shifting was addressed on 14.11.2018 and drum of gear shift was changed under warranty. It is submitted that the said vehicle is warranted for 5 years or 70000 km, whichever is earlier. The OPs are very much ready and willing to provide services to the complainant under the purview of the company’s warranty policy, if any required.  It is submitted that the complainant visited the OP No.2 on 13.11.2018 for availing free service and other petty repairs, which were duly attended by the OP No.2 with utmost sincerity and the complainant did not register the problem i.e. “gear shift is hard” on 13.11.2018. The complainant visited the OP No.2 on 14.11.2018 for general repairs and the issues of the complainant were duly attended to by the OP No. 2 and the vehicle was returned after due repairs.  It is specifically denied that the vehicle was kept for 50 days, when the complainant visited on 21.11.2018. It is submitted that the complainant himself had chosen not to collect vehicle and he was called time and again to take his vehicle and in this regard, a letter was sent by OP No.2 to him in the month of 2018. After rigorous follow up, the complainant picked up the vehicle in the month of Jan., 2019. It is submitted that the vehicle had covered a distance of 5141 kms till 06.09.2019 and thus, the complainant’s plea qua manufacturing defect is wrong and incorrect. It is specifically denied that OP no.1 supplied the vehicle with manufacturing defect. It is submitted that all the issues pertaining to the vehicle as reported by the complainant were handled with utmost care and rectified and relevant parts were replaced, wherever required, within warranty without any charge and on other occasions no such problem was found during inspection. The Ops are ready and willing to provide services to the complainant under the purview of the company’s warranty policy. It is specifically submitted that the Ops always attended the complaints of the complainant with utmost sincerity and carried out the repairs by replacing the required parts to the utmost satisfaction of the complainant. Therefore, it has been prayed that there is no deficiency in service on the part of the OPs and as such, the complaint of the complainant is liable to be dismissed.

4.To prove the case, the complainant has tendered affidavits as Annexure C-A along with document Annexure C-1 to C-22 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 & 2 has tendered affidavit Annexure R-1/A along with documents as Annexure R-1/1 to R-1/6 and closed the evidence.  The learned counsel for OP No.3 has tendered affidavit as Annexure R-3/A alongwith documents as Annexure R-3/1 to R-3/5 and closed the evidence.

5. We have heard the learned counsels for the parties, and gone through the entire record including the written arguments filed by the complainant, OPs No.1 & 2 as well as, minutely and carefully.

6. During pendency of the complaint, the matter, qua the defects in the vehicle, was referred vide order dated 01.03.2021 to the Principal, ITI, Bitna, Tehsil Kalka, District Panchkula seeking expert opinion on the application dated 02.09.2020 filed by the complainant. The expert report dated 15.04.2021(Annexure C-20) was received. The OPs No.1 & 2 have filed no objection against the said expert report, whereas the OP No.3 has filed objections against the said expert report dated 15.04.2021, which shall be discussed hereinafter in the later part of this order.

7.The question that falls for consideration before the Commission is whether the motorcycle in question bearing registration no.HR-49G-9653 is having gear shifting problem as alleged by the complainant.

8.During arguments, the learned counsel for the complainant while reiterating the averments as made in the complaint  as also in affidavit(Annexure C-A) of the complainant has contended that the OPs have failed to rectify the gear shifting problem, which had occurred from the very beginning. In support of his contentions, the learned counsel has placed reliance upon the tax invoice(Annexure C-5 & C-6), Car history(C-9 & C-19) Inspection report(Annexure C-20), Photographs(C-10). Concluding the arguments, the learned counsel has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint. In support of his contention, the learned counsel has placed reliance upon the order of the Hon’ble National Consumer Commission in case titled as Nuzhat Vs. Dee Dee Motors Pvt. Ltd. & Anr. in Revision petition no.1053 of 2016 decided on 03.12.2019.

9.The learned counsel on behalf of the Ops No.1 & 2 reiterated the averments as made in the written statement  as also the affidavit (Annexure R-A)and prayed for dismissal of the complaint being frivolous and baseless.

10.The learned counsel on behalf of the OP No.3 has also opposed the prayer of the complainant as per the pleas as raised in the written statement and contended that there is no manufacturing defect as alleged in the motorcycle in question. It is contended that the complainant was attended properly on each and every occasion as and when he approached the OP No.2 with his motorcycle. It is contended that necessary repairs were carried out by replacing the defective parts and thus, as per warranty conditions, no relief is permissible to the complainant. Reliance has been placed on record the following case laws as under:-

1. Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, 2006(4) 644(SC). 
2. Mahindra & Mahindra Vs. B.G.Thakurdesai II(1993) PCJ 225(NC)
3. Hyundai Motor India Limited Vs. Er.Gopal K.Sathi & Another 3 (2009) CPJ 131(NC).

11.The learned counsel raised strong objections qua the genuineness and correctness of an expert report dated 15.04.2021 (Annexure C-20) stating that no one on behalf of the OP No.3 was associated by the mechanical inspector at the time of inspection. The learned counsel vehemently contended that the inspection report (Annexure C-20) was given by the mechanical inspector without conducting any inspection of the vehicle and thus, the same lacks credibility & is liable to be ignored. It is also contended that the motorcycle was reported by the mechanical inspector to have been driven over a distance of 1000 kms, whereas the motorcycle had covered a distance of more than 5000 kms till the time of alleged inspection.

                Concluding the arguments, the learned counsel contended that the complaint is liable to be dismissed being frivolous and baseless. Reliance has been placed on record the following case laws as under:-

1. Sushila Automobiles  Pvt. Ltd. Vs. Dr. Birendra Narain Prasad & Others (2010) 3 CPJ 130(NC)
2. Classic Automobiles Vs.  Lila Nand Mishra & Anr. I(2010) CPJ 235(NC).
3. Md.Sassan  Khalid Haidar Vs. General Motors India Pvt. Ltd. and ors. IV(2018) CPJ 115(NC).

12.Before proceeding to look into the rival contentions raised by the learned counsels for the parties qua the merits of the case, we deem it expedient to discuss the opinion dated 15.04.2010(Annexure C-20) given by the expert i.e. Mechanical Inspector, ITI, Bitna, Tehsil Kalka, District Panchkula and the objections filed thereto by OP No.3.

13.The OPs No.1 & 2 have preferred  not to raise any objections qua  the said inspection report dated 15.04.2021(Annexure C-20) and thus, have admitted the contents of the same to be correct, genuine and valid.

14.The OP No.3 has filed objections qua said expert report dated 15.04.2021(Annexure C-20) mentioning that the inspection was not done in the presence of OP No.3 and that as per inspection report, the vehicle had covered only 1000 kms whereas the vehicle has covered 5141 kms on 06.09.2019. It is submitted that no inspection of the vehicle was carried out by the mechanical inspector and that the expert did not refer to the service schedule during the inspection.  The learned counsel contended that the said expert report suffers from several serious infirmities and thus, is of no use to the case of the complainant.

15.Having gone through the inspection report dated 15.04.2021(Annexure C-20) as also the submissions made by the learned counsel on behalf of the OP No.3, it is found that the inspection was carried out by Sh.Rajender Singh, Motor Vehicle Inspector posted in ITI, Bitna, District Kalka, Panchkula by driving the motorcycle for a distance of 50 kms as per inspection report. The manager of Op No.2 refused to visit the ITI, Bitna, District Kalka, Panchkula at the time of inspection. As stated above, the OPs No.1 & 2, who are seller and the authorized service centre of motorcycle in question, have raised no objections qua the validity and genuineness of inspection report dated 15.04.2021 (Annexure C-20). Therefore, the objection raised on behalf of the OP No.3 carry no merits. The expert opinion is unambiguous and no infirmity as alleged has been found therein. Further, it is specifically pointed in the expert report out that sound was found emanating from gear box, while driving the vehicle in short gear. As per inspection report, manufacturing defect was found, which was no curable.

16.Now, we advert to the car history of the motorcycle in question, which is on record in the shape of Annexure C-9 & C-19) and find that gear shifting problem was reported on 14.11.2018, 20.11.2018, 16.01.2019, 23.01.2019, 12.02.2019, 07.05.2019, 31.05.2019, 02.06.2019,  06.09.2019, 24.12.2020 and 12.10.2021. On 14.11.2018, drum gear was replaced. Some repair work has been found to have been done on 07.05.2019, 24.12.2020 and 12.10.2021 but as per car history, no repair work has been found on other dates, when the complainant visited the OP No.2 along with his vehicle in connection with the problem of gear shifting in the motorcycle. From the car history, it is abundantly clear that the problem of gear shifting in the motorcycle was not resolved and the same is still persisting despite the various visits made by the complainant to OP No.2 for removal of said defects. In our considered opinion, the OPs have failed to rectify the defect of gear shifting problem in the motorcycle; as such, OPs have been found deficient while rendering services to the complainant, for which, they are liable, jointly and severally, to compensate  the complainant.

17.As a sequel to the above discussion, the complaint is partly allowed with following directions to OPs No.1 to 3:-

1. To replace the entire gear assembly of motorcycle in question with new one, free of cost.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

 18. The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:12.06.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                             Satpal

                                            President