DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.773 of 2016
Date of institution: 21.11.2016 Date of decision : 11.02.2019
Gurpreet Singh son of Shri Nirmal Singh, resident of # 2553/3, Ward No.11, Mundi Kharar, District SAS Nagar.
…….Complainant
Versus
1. M/s. Prem Motors Mohali, Authorised Hero Motocorp Ltd., Prem Motors, SCO 22-23, Janta Nagar, Kharar, District SAS Nagar (Mohali), Phone -0160-5009247, 0160-2283047 through its Manager.
2. Hero Motocorp Ltd. at Plot No.34, Community Center, Basant Lok Vasant Vihar, New Delhi 110057 (India) Phone No.+91-11-26142451.
3. Indusind Bank Ltd., SCO 24-25, Phase 3B-2, SAS Nagar, Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Shri Gautam Thapar, counsel for complainant.
Shri M.S. Chahal, counsel for OP No.1.
Shri Satyaveer Singh, counsel for OP No.2.
Shri Manav Puri, Legal Executive of OP No.3.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased Hero Splendor Plus Self Motorcycle from OP No.1, authorised dealer of OP No.2 for Rs.56,500/- on 27.07.2016. Out of this paid amount, Rs.49,100/- was the actual price of motorcycle and remaining were the registration fee and insurance premium amount charges. Payment of Rs.15,000/- was made as down payment in cash and the remaining amount was got financed from OP No.3. This motor cycle was having guarantee/warranty of 5 years qua manufacturing defects. First free service of motorcycle was not got done, but second free service got done on 19.10.2016 by paying Rs.260/-. This motorcycle was having starting problem and that is why it was brought to the workshop of OP No.1. The mechanic of agency disclosed complainant as if there are defects in the chain set, clutch plates and Grari Chain set. Third free service of motorcycle was got done on 07.10.2016 by paying Rs.340/-. The motorcycle is having major problems, but despite that on enquiry employees of OP No.1 refused to disclose the problems. Complainant as a student suffered loss of studies due to major problems in the motorcycle, which is not in working condition as per requirements of new branded motorcycle. It is claimed that there is manufacturing defect in the motorcycle and that is why requests were made to OP No.1 many times for replacing the motorcycle with new one because of motorcycle in question being a defective piece which cannot be repaired. By pleading deficiency in service on part of OPs, this complaint filed for seeking direction to OP No.1 and 2 to replace the motorcycle with new braded Hero Splendor Plus Self motorcycle. Compensation for mental and physical harassment of Rs.25,000/- more claimed.
2. In reply submitted by OP No.1 in the shape of affidavit of Manjinder Singh, it is pleaded inter alia as if complaint in the present form not maintainable; complainant has no locus standi to file the present complaint; complainant has concealed material facts and complaint is not maintainable. Admittedly complainant purchased motorcycle in question through OP No.1. Motor cycle is not having any guarantee, but the same is covered under five years conditional warranty clause. Limitations to the warranty are that all free services/paid services/oil top ups should be availed from the authorised workshop of Hero MotoCorp’s. This warranty even does not extend to normal wear and tear condition or to normal phenomenon like that of noise vibration, oil seepage etc. which do not affect the performance of the motorcycle. First service of motorcycle was due between 750 to 1000 KMs or within one month from purchase, but complainant did not visit OP No.1 or the authorised service station for getting this first service done within prescribed period. This motorcycle was serviced by OP No.1 on 20.08.2016, when it travelled distance of 1311 KMs. So this second service got done in violation of clause of limitation of warranty. 3rd service got done by complainant on 07.10.2016 when the motorcycle had travelled distance of 3450 KMs. After said services, the motorcycle was received by complainant in satisfactory condition by putting signatures in the feedback records. Complainant filed one online complaint to the manufacturer on 03.11.2016 regarding some problems in the motorcycle and thereafter the said complaint was attended by OP No.1 for resolving the problems. Despite repeated requests by OP No.1 on 03.11.2016, 04.11.2016, 06.11.2016 and 09.11.2016, complainant did not approach OP No.2 for getting the problems resolved. However, the motorcycle came to the workshop of OP No.1 on 21.11.2016 and thereafter on examination of same by mechanic, the problem was resolved and motorcycle delivered to complainant in satisfactory condition, but after preparing the job card. 4th free service of motorcycle was done on 06.01.2017. Disk Clutch friction was replaced at that time under goodwill warranty gesture without charging any amount from complainant. This motorcycle was again delivered to complainant and all the complaints projected were resolved. OP No.1 requested complainant that any defect in the motorcycle under warranty will be repaired by way of replacing the part, but the entire motorcycle could not be replaced. On examination of motorcycle, no manufacturing defect in the same was found. Even complainant has failed to mention particular defect in the complaint. Other averments of the complaint denied by claiming that complainant used the motorcycle in competitive events due to which the problem, if any, may have occurred.
3. In separate reply filed by OP No.2 it is pleaded as if complaint is misconceived; complainant has not approached the Forum with clean hands because he has intentionally and deliberately suppressed material facts; complainant has no cause of action and the complaint alleged to be filed for abusing process of law. Complainant voluntarily has not got the first free service done by due date. Second free service was done in proper manner. It is the duty of complainant to get the servicing of motorcycle done in time so as to keep the same in fit and running state. Complainant himself failed to take care of these material facts. Second and third services were got done by complainant on 19.07.2016 and 07.10.2016. It is claimed that due to fault of complainant, motor cycle has suffered from some defects. Admittedly motor cycle manufactured by OP No.1 purchased from OP No.2 on 27.07.2016. This motorcycle carried warranty of 5 years or upto coverage of 70000 KMs whichever is earlier from the date of purchase, but subject to limitation and conditions mentioned in the warranty. It is admitted that motorcycle of complainant is still under warranty with reference to the period and distance. Obligation of answering OP is to repair and replace the defective parts. That obligation does not extend to replacement of motorcycle or of refund of price. The motorcycle covered distance of 9288 KMs from the date of purchase on an average of 50 KMs per day which itself shows that there is no inherent manufacturing defect in it. Other averments of the complaint denied.
4. In separate written reply filed by OP No.3 it is pleaded as if there is no deficiency in service on part of OP No.3. Moreover, it is claimed that no relief against OP No.3 has been sought and as such complaint against OP No.3 merits dismissal. After payment of margin money of Rs.11,500/-, amount of Rs.44,500/- was advanced by OP No.3 to complainant as loan on 26.07.2016 for enabling him to purchase the motorcycle in question. OP No.3 has no connection with the faults in the motorcycle and as such all other averments of the complaint denied.
5. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-3 and then closed evidence. On the other hand Manav Puri, Legal Executive of OP No.3 tendered in evidence his affidavit Ex.OP-3/1 and thereafter closed evidence of OP No.3. Counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Manjinder Singh, authorised signatory alongwith documents Ex.OP-1 to Ex.OP-7 and then closed evidence. Counsel for OP No.2 tendered in evidence affidavit Ex.OP-2/1 of Shri Manish Syal and thereafter closed evidence.
6. Written arguments in this case submitted by OP No.2, but not by remaining parties. Oral arguments heard and records gone through.
7. Submission of Shri Manav Puri, Legal Executive of OP No.3 certainly has force that no relief is sought against OP No.3, the financer of motorcycle in question and as such complaint against OP No.3 certainly is not maintainable. After going through whole of the contents of complaint and supporting affidavit, it is made out that major grievance of complainant is regarding problems on account of non working of motorcycle. Manufacturing defect of irreparable nature is alleged as cause of problems in the motorcycle. So virtually grievance of the complainant is against dealer/seller or the manufacturer i.e. OP No.1 and 2 only. As no grievance of complainant is projected through this complaint against OP No.3 and as such complaint against OP No.3 merits dismissal and same is hereby dismissed.
8. It is vehemently contended by counsel for complainant that motorcycle is standing with OPs, but the date since from when the motorcycle is standing with OPs is not mentioned in the complaint or in the submitted affidavit of complainant or through any other document. However, OPs produced on record job sheets Ex.OP-2, OP-3, OP-5 and Ex.OP-6 for establishing that motorcycle was brought for services on 20.08.2016; on 07.10.2016; on 21.11.2016 and on 06.01.2017. On all these documents Ex.OP-2, OP-3, OP-5 and Ex.OP-6 signatures of complainant are there in token of receipt of duly serviced/repaired motorcycle to his satisfaction. As complainant by putting signatures on these documents acknowledged having received back motorcycle after services/repairs, and as such in the absence of any material on record to show as to since when motorcycle is in custody of any of the OPs, it has to be held that complainant failed to establish as if the motorcycle is in custody of OPs.
9. It is admitted case of complainant that first service of motorcycle was not got done from authorised service centre of OPs or from any other mechanic. Ex.C-1 retail invoice shows as if motorcycle in question purchased by complainant from OP No.1 on 27.07.2016 and service of it was got done through job sheet Ex.C-3 on 06.01.2017 by paying amount of Rs.354.00 N.P. At that time replacement of disk clutch friction was done without charging anything because of motorcycle being in warranty period. Only charges for engine oil, gasket rotor oil filter or of drain cock packing were collected from complainant is a fact borne from contents of invoice Ex.C-3. So plea taken by OPs in the written statement is correct that the problems of disk clutch friction was removed without charging anything as per terms and conditions of warranty.
10. Copy of limitation of warranty produced on record as Ex.C-2 by complainant, but as Ex.OP-1 by OP No.1. First condition of these limitations is that warranty not to apply, if all free services/paid services/oil tops are not availed from Hero Motocorp’s authorised workshop as per recommended schedule. As in the present case first service was not got done and as such complainant himself remained negligent in not getting first free service availed as per recommended schedule. Servicing of motorcycle is essential for keeping it in running condition, but complainant himself committed default in availing first free service and as such he cannot attribute the motive to OP No.1 and 2 for the problems, if any, erupted.
11. Condition No.3 of these imitations of warranty contained in Ex.C-2 = Ex.OP-1 provides that warranty clauses does not apply to normal wear and tear components including brake shoe, clutch plates, electrical wiring etc. In view of this, fault if occurred in the disk clutches friction, then the same was due to normal wear and tear condition. Despite that service free of cost was provided on 06.01.2017 as evidenced by Ex.C-3 and as such certainly OPs rendered due services as per terms and conditions of warranty.
12. Submission advanced by counsel for OP No.1 has force that contradictory pleas taken in the complaint regarding alleged problems because starting problem certainly is different than that of the problem in chain set, clutch plates etc. The chain set problem will not cause the starting problem because the starting problem usually erupts in ignition system. Moreover, manufacturing defects have not been alleged or pointed out by way of naming those defects and as such in the absence of any report of the mechanic, it has to be held that complainant unable to establish as if the motor cycle suffers from any manufacturing defect. Defects due to normal wear and tear cannot be equated with manufacturing defects and as such manufacturing defects had to be explained by complainant by calling expert in the line, but that has not been done and as such certainly complainant failed to establish as if there is manufacturing defect of any type in the motorcycle in question.
13. In affidavit Ex.OP-2/1 of Shri Manish Syal of OP No.2 it has been specifically mentioned in Para No.14 that OP No.1 and 2 still ready to resolve the problems, if any, in the motor cycle in question and as such OP No.1 and 2 have not denied rendering due services to complainant. However, those services can be provided free of cost or on claim of charges as per terms of the warranty clause shown in Ex.OP-1. As manufacturing defect of irreparable nature not specified and as such complainant not entitled for replacement of motorcycle in question with new one or of refund of price of motor cycle in question.
14. As a sequel of above discussion, complaint disposed off in terms that the same is dismissed against OP No.3. However, direction issued to OP No.1 and 2 to repair the motorcycle for rectifying the problems, if any, found on production of the motorcycle by the complainant with any of them by rendering services as per terms and conditions of document Ex.OP-1. The complainant will be entitled to free services or paid services as per terms and conditions of document Ex.OP-1. No order as to costs. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
February 11, 2019.
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
