BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no.126 of 2016.
Date of Institution : 16.05.2016.
Date of Decision : 06.07.2017.
Mala Ram aged about 32 years son of Shri Nathu Ram, resident of village Sadewala, Tehsil Rania District Sirsa.
……Complainant.
Versus.
1. Narula Motors, Sirsa Road, Opposite Dera Sacha Sauda, Rania, Tehsil Rania, District Sirsa through its Proprietor/ Authorized person.
2. TVS Motor Company, Post Box No.4, Harita, Hosur- 635 109, District Krishnagiri, Tamilnadu.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SMT. RAJNI GOYAT, PRESIDING MEMBER.
SHRI MOHINDER PAUL RATHEE, MEMBER.
Present: Sh. Preet Aman, Advocate for the complainant.
Sh. S.S. Dhot, Advocate for opposite party no.1.
Opposite party no.2 already exparte.
ORDER
The brief facts of the present complaint are that opposite party no.2 is the manufacturer of TVS vehicles whereas op no.1 is the authorized sub-dealer of op no.2. The complainant had purchased a motor cycle TVS Star City plus from opposite party no.1 vide bill No.3783 dated 8.10.2014. The op no.1 had charged a total sum of Rs.46700/- from the complainant including VAT as well as surcharge etc. and had given two years guarantee of the motor cycle in question. The complainant got registered the motor cycle with the Registering Authority, Ellenabad vide registration No.HR-44G/9781. It is further averred that complainant is a labourer and he often visits village Sadewala to Rania and Ellenabad for labour work and for this purpose he purchased the motor cycle in question in order to avoid the difficulties regarding transportation/ conveyance. It is further averred that as complainant is a labourer and is a poor person, so the aforesaid vehicle was got financed by him from New Light Finance Company Rania. As per the schedule given by op no.1, he got his vehicle serviced from op no.1 time to time and never remained careless in maintenance of his vehicle. That inspite of all this, in the month of July, 2015 to the surprise of complainant, the vehicle started giving a number of problems in its running. The engine used to release unnecessary noise and the gear and clutches were also not functioning properly. Not only this, some of other parts of vehicle also became out of function and the vehicle of complainant became un-roadworthy. It is further averred that complainant immediately took the motor cycle to op no.1 and narrated about non functioning of same to op no.1. The mechanics of op no.1 inspected and checked the vehicle and made some minor repairs therein and assured him that there were some defects in the vehicle and same have been removed. It was further assured by op no.1 that no such defect will arise again in the functioning of the vehicle. The complainant started using the vehicle but to his surprise the problem still existed. In this manner, the complainant a number of times visited the workshop of op no.1 in order to get repaired his vehicle and every time the same was delivered back by op no.1 to the complainant after making minor repairs with false assurances and the complainant has suffered financial losses on account of his absence at the site where he used to do the labour work. It is further averred that on 10.12.2015, on account of aforesaid defects, the vehicle of the complainant became totally un-roadworthy and he was forced to take the same to the workshop of op no.1 after arranging/ hiring a vehicle. However, seeing the condition of the vehicle, the op no.1 asked the complainant to leave the same in workshop and was asked to take delivery after about a week. It was further assured that the vehicle of complainant will be sent to the workshop of op no.2 for necessary repairs. During this period of one week, the complainant could not go for his labour work and suffered financial losses. It is further averred that on 16.12.2015, the complainant visited the workshop of op no.1 and requested to deliver the vehicle to him but the op no.1 asked him to pay Rs.2500/- qua repair (service, chamber clutch and labour etc.) charges. The complainant was shocked to hear this and stated to op no.1 that vehicle is still under the period of warranty/ guarantee and as per the assurance and promise made by op no.1 at the time of sale of aforesaid vehicle, the op no.1 cannot charge any amount from complainant on account of repairs but op no.1 refused to deliver the motor cycle to him without payment of Rs.2500/-. It is further averred that op no.1 wrongly charged the aforesaid amount of Rs.2500/- from complainant vide bill No.11892 dated 16.12.2015 which was paid by complainant under protest. It is further averred that on payment of aforesaid amount of Rs.2500/-, the delivery of vehicle was given to the complainant with the promise that each and every defect has minutely been inspected and the repairs have been made under the guidance of the professional engineers and now there will be no chance of arising any such defect in the vehicle. However, the problem is still existing in the vehicle. The condition of the vehicle itself speaks that neither any inspection was made nor any repair was got done under the guidance of any professional engineer as alleged by op no.1 and this time also, the op no.1 delivered the vehicle to the complainant after making minor repairs. It is further averred that from the facts and circumstances mentioned above, it is very much clear that op no.1 has failed to provide after sale service to the complainant and has unnecessarily harassed and humiliated the complainant which amounts to gross negligence, deficiency in service and unfair trade practice. The vehicle of the complainant is still lying useless and has become totally un-roadworthy. The complainant also got issued legal notice to op no.1 on 23.2.2016 to replace the vehicle with new one and to pay a sum of Rs.50,000/- as compensation within a period of 15 days but to no effect. The complainant is also entitled to refund of above said amount of Rs.2500/- alongwith interest and litigation expenses. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections regarding maintainability; cause of action; suppression of material facts and estoppal. On merits, it has been asserted that as per terms and conditions of the company, the complainant was to get the services of his vehicle from answering op on running of the vehicle, as per the details given below:-
First service between 500 K.M. to 750 K.M.
Second Service between 2500 K.M. to 3000 K.M.
Third Service between 5000 K.M. to 6000 K.M.
Fourth Service between 8500 K.M. to 9000 K.M.
Fifth Service between 11500 K.M. to 12000 K.M.
Sixth Service between 14500 K.M. to 15000 K.M.
These services are free services available to the customer. But the complainant did not get the above said services from the answering op as per the above said schedule of service. The complainant had got the fourth service of his motor cycle on 11580 KM while he was required to get same on completion of 8500 KM to 9000 KM and due to which the mobile oil of the motor cycle was finished and complainant drove the motor cycle dry and resultantly it became jammed. Thereafter, he did not bring his motor cycle at the workshop of the op no.1 and he continued kept on plying the motor cycle without getting the service as per the above said schedule and resultantly the mobile oil in the motor cycle reduced and the internal system etc. became jammed and blocked which caused heavy damages to the vehicle. In this way, the complainant himself is liable and responsible for the damages to his motor cycle and the answering op is not liable and responsible for the same in any manner. It is wrong and denied that he get his vehicle services from time to time and he never remained careless. It has been further asserted that as stated above, the defects in the vehicle i.e. in the gear and clutches occurred due to the carelessness and negligence on the part of complainant himself and not due to any negligence on the part of answering op in any manner. It has been further asserted that after purchase of the said vehicle, the complainant brought the said vehicle at the workshop of op no.1 after expiry of the time for getting the service and the same was done but thereafter he never brought the said vehicle at the workshop of op no.1. It has been further asserted that complainant is liable and responsible for making payment of the repairing work of the vehicle in question. The answering op has charged Rs.300/- as service charges, Rs.1820/- being the cost of the chamber clutches, Rs.40/- being the cost of zenkit, Rs.35/- as cost of gear shaft steel and Rs.300/- on account of labour charges. The work done by the answering op as mentioned in the job card dated 16.12.2015 does not come within the condition of free service. The complainant had himself broken the chamber of the motor cycle because he had not got the service of the motor cycle in time and the gear became jammed by plying the motor cycle in dry and dirty condition. The complainant had tried to operate the gear by use of pana and resultantly the chamber of the motor cycle broken, Remaining contents of the complaint have also been denied.
3. Opposite party no.2 did not appear despite notice and therefore, op no.2 was proceeded against exparte.
4. The complainant did not tender any document in evidence despite availing various opportunities including last opportunity. Similarly, op no.1 also did not tender any document despite several opportunities including last opportunity.
5. We have heard learned counsel for the parties and have perused the record available on file very carefully.
6. There is no dispute that complainant purchased the motor cycle in question from the opposite party no.1 on 8.10.2014. However, the complainant has not substantiated his allegations leveled in the complaint by reliable and cogent evidence. There is nothing on record to prove any manufacturing defect in the vehicle. No mechanical report/ expert opinion in this regard has been placed on file by the complainant. No doubt, the motor cycle was having two years warranty as is evident from copy of warranty card placed on file but there is nothing on file to suggest that complainant got conducted the service of his motor cycle as per schedule of company. So the possibility that above said defects pointed out by the complainant as well as op no.1 occurred due to negligence of complainant himself cannot be ruled out. In these circumstances, no case for replacement or refund of the amount of motor cycle in question is made out. However, as the motor cycle in question was serviced by op no.1 on 16.12.2015 against the amount of Rs.2500/- from the complainant and complainant is still alleging defects in the motor cycle i.e. within warranty period, therefore, it will be just and proper that opposite parties are directed to repair the motor cycle in question and to make it roadworthy without any charges from the complainant.
7. Keeping in view the facts and circumstances of the case narrated above, we partly allow the present complaint and direct the opposite parties to repair the motor cycle in question and to make it roadworthy without charging any amount from the complainant. The complainant is directed to produce the vehicle in question to the workshop of opposite party no.1 within 15 days from the date of receipt of copy of this order or latest by 30.7.2017 whichever is earlier and thereafter both the opposite parties jointly and severally will do the needful as per above direction within further period of 15 days or latest by 31.8.2017 whichever is later. In case the complainant fails to produce the vehicle to the workshop of op no.1 within the scheduled time, he will loose his entitlement for free service. Further, if the ops fail to do the needful within the fixed schedule, the ops will be liable to pay an amount of Rs.100/- per day as penalty to the complainant in addition to said free service. A copy of order be supplied to the parties free of cost. File be consigned to record room after due compliance.
Announced in open Forum. Presiding Member,
Dated: 06.07.2017. Member District Consumer Disputes
Redressal Forum, Sirsa.
