Delhi

North East

CC/143/2014

Fahim Ahmed - Complainant(s)

Versus

M/s Shiva Motors - Opp.Party(s)

22 Mar 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.143/14

 

Sh. Fahim Ahmed

S/o Sh. Taslim Amhed

R/o: C-193/2. Gali No.3,

C-Block, Chauhan Bangar,

Delhi-110053.                                                  Complainant                                       

 

Versus

 

1. M/S Shiva Motors

Authorized Dealer

Sales, services, spares of

Yamaha Motors India Sales Pvt. Ltd

E-11, 100 Foota Road,

West Jyoti Nagar,

Delhi-110094.

 

2. M/S INDIA YAMAHA MOTORS PVT. LTD

at A-3, Surajpur Industrial Area,

Dadri Road, NOIDA,

India 201506                                             Opposite Parties

 

 

                                      DATE OF INSTITUTION: 29-04-2014

                                      DATE OF DECISION      :  22-03-2016

 

 

N.K. Sharma, President:-

Nishat Ahmad Alvi, Member:-

Ms. Manju Bala Sharma:-

         

 

 

Order

 

1.           The instant complaint was initially filed by the complainant on 23.04.2014 against Shiva Motors, OP1.  On 21.05.2014 filed an application for impleading M/s India Yamaha Motors Pvt. Ltd the manufacturer of the Motorcycle, which was allowed on 23.05.2014 by this forum and was impleaded on OP2.
2.           The facts of the present complaint are that the complainant purchased Yamaha Motor Cycle vide description Yamaha FZS colour YB DRYC vide Engine No. 21CH007367 vide Chasis No. NE121COH302007783 on 29.04.2013 vide Invoice No.8590 Book No. 172, Order No, 1998 for a grand total of Rs. 81,569/- from OP1, the authorized dealer of Yamaha Motors India Sale Pvt. Ltd. vide Registration No.DL-5S-AJ-7391.  As per recommended service schedule and owners’ manual free service and warranty was provided. From the inception of purchasing the above-said motorcycle it started giving problem and abnormal smoke when plied. As per recommended service schedule the complainant got his motorcycle serviced from M/s Kundan Lal service station, the authorized service station but the defect of abnormal smoke could not be removed despite best efforts of the authorized service station and it flatly denied vide Rejection Slip dated 24.03.2014 stating that its piston was not working properly being defective engine and hence motorcycle cannot be serviced and the reason for nor accepting the motorcycle for service was mentioned as “CO VALUE NOT IN RANGE” and thus service result failed. As per service warranty of the company it warrants the product to be free from manufacturing defects for two years from the date of sale or 30,000 kilometers whichever occurs first and as the terms and warranty given by the manufacturing company have not been fulfilled, the motorcycle is liable to be replaced. It is further alleged that there is breach of contract as the OP2 has failed to give proper performance after sale of product as despite repeated requests and demands and despite physical visits and demonstration of manufactural defects the motorcycle was neither restored in its proper working condition nor replaced with brand new when the motorcycle is in its warranty period. Pleading deficiency on the part of OPs the complainant prayed that OPs may be directed to replace the motorcycle in question with a new motorcycle having no defects in engine and also prayed for compensation to the tune of Rs. 30,000/-.
3.           Notice was issued to both the OPs. On 05.08.2014 Shri Parveen Kumar Adv entered appearance on behalf of OP1 and submitted that OP1 is ready to carry out all necessary repairs in the motorcycle to the satisfaction of complainant provided the complainant brings the same to the workshop of OP1. However, the complainant flatly refused to accept the offer and stated that since he has financed new motorcycle, therefore, he wants refund of the cost of motorcycle. This forum in view of the statements of complainant and OP1 opined that there is no need to take written statement on record or evidence and reserved its order while proceeding ex-parte against OP2 as nobody entered appearance on its behalf.
4.           The matter was again called up for hearing on 08.08.2014 when this forum observed as under:-

“ Present:   None

While going through the file, we came across that in para 6 of the complaint some term “Co-Value Not In Range” has been mentioned on which ground the service result of the vehicle had allegedly failed in Kundan Lal Service Station.

In order to understand the meaning of the said term filing of WS on behalf of OP1 is necessary.

Hence notice be issued to complainant and OP1 (OP2 is ex-parte).

 

 

5.           Written statement was filed on behalf of OP1. Preliminary objections have been taken while stating that the complaint is not maintainable and liable to be dismissed as the same is false and frivolous and without any basis and is filed only with a motive to harass the OP1. The complainant has not made proper party in the present complaint as M/s Kundan Lal service station and Yamaha Motors India Pvt Ltd have not been made parties. It is further stated that M/s Kundan Lal service station is not the authorized service station from where the complainant got his motorcycle serviced and that two years warranty to service/repair is given by the company and if any manufacturing defect occurs during this period only authorized service station can repair that defect. In its parawise reply the OP1 denied the allegation contained in the complaint while admitting the date of sale of motorcycle or first 30,000/- kilometers of its operation whichever occurs first or that the motorcycle of complainant has not completed both the conditions and thus is liable to be replaced as per the terms and warranty given by the manufacturing company of whom the Opposite party is the authorized dealer and stated that the complainant has not got his motorcycle serviced from authorized service station namely M/s Kundan Lal service station as per recommended service schedule.
6.           Complainant filed rejoinder to the written statement of OP1, reiterated the facts contained in the complaint and specifically stated that the complainant has made Yamaha Motors India Pvt Ltd as OP in the present complaint and that M/s Kundan Lal service station is the authorized service station of the OPs and that the complainant got service for removing defects in the motorcycle within the warranty period and at authorized service station of the OPs.
7.           Complainant filed evidence by way of affidavit and corroborated the facts stated in the complaint. The complainant has filed photo copy of the bill of Rs. 81,569/- issued by OP1 regarding purchase of motorcycle, copy of registration certificate, copy of free service and warranty, service/ warranty record and copy of Vehicle Rejection Slip issued by M/s Kundan Lal Service Station mentioning the term “Co-Value Not In Range”. On the other hand neither any evidence by way of affidavit or documents in proof of his assertions made in the written statement filed nor anybody entered appearance on behalf of OP1 despite registered notice which was received back with the remarks “No Such Person”.  The complainant had filed an affidavit along with a bill as well as photograph of OP1 stating that the OP1 is still working at the given address.  Hence it is presumed that OP1 is deliberately avoiding the notice of this forum.
8.           We have heard arguments advanced on behalf of the complainant and also gone through the record. Written arguments have also been filed on behalf of the complainant but as nobody entered on behalf of OP1 fifteen days time was granted to the counsel for OP1 to file written arguments but nothing has came on record so far.
9.           From the bare perusal of the record it is established that the complainant has purchased motorcycle from OP1.  As per the contention of complainant the motorcycle was found defective from the beginning when it was plied and as per recommended service schedule he took the motorcycle to M/s Kundan Lal Service Station, the authorized service station.  OP1 has in its written statement denied the fact that M/s Kundan Lal Service Station is the authorized service station to which the complainant has denied in its rejoinder and categorically stated in para 6 that M/s Kundan Lal Service Station is only authorized service station of the opposite parties.  Though OP1 has denied that M/s Kundan Lal Service Station is not its authorized service station but it has not given the name/particulars of the authorized service station to whom the complainant was supposed to contact for the service/repair of its motorcycle.
10.           OP No.1 in its written statement in para 7 has itself admitted that since two years from the date of sale of motorcycle or 30,000 Kms whichever occurs first has not completed in the case of complainant, thus motorcycle is liable to be replaced as per the terms and warranty given by the manufacturing company of whom the OP1 is the authorized dealer.  As the OP1 itself has admitted the liability of replacing the motorcycle we do not find anything further to go into the matter. 
11.           Hence we hold both the OPs jointly and severally liable for deficiency in service and direct to replace the motorcycle with the new brand motorcycle and pay compensation of Rs.10,000/- and Rs.2,500/- as litigation cost.
12.             The above order shall be complied with within a period of 30 days from the date of receipt of this order. 
13.           Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

12.               File be consigned to record room.

13.              Announced on    22.03.2016.           

 

( N.K. Sharma) President

(Nishat Ahmad Alvi) Member

(Manju Bala Sharma) Member