Adv. For the Complainant: - Sri S.P.Mishra
Adv. For O.P :- Sri P.K.senapati & others
Date of filing of the Case :- 03.06.2019
Date of Order :- 06.01.2020
JUDGMENT
Sri A.K.Purohit, President
1. The case of the complainant is that, he had purchased a CB SHINE DISK HONDA motorcycle from the O.P. No. 1 on dated 27.11.18 for a consideration of Rs. 61,658/- with the financial assistance of the O.P.2 . The said vehicle of the complainant was insured with the O.P. 3 & 4. After two free service of the motorcycle during warranty period the complainant found defect in the piston of the vehicle which was completely damaged to which the complainant requested the O.P. 1 for replacement of the vehicle as there is manufacturing defects in the motorcycle. But to the surprise of the complainant the O.P.1 denied his liability and has not provided any service. Hence the complaint.
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2. The O.P. 1,3 & 4 have contested the case by filing their written version. O.P. 3 & 4 have filed their version jointly and O.P. 1 filed his version separately. Although notice has been served on O.P.2 he neither appears nor proceeded with the case and hence he was set experte vide order dated 29.8.19.
3. According to O.P. 1 the complainant availed the second free service on dated 15.4.19 in the service center of the O.P.1 and the complainant used the vehicle without any defect. All of a sudden on dated 14.6.19 the complainant produced the vehicle before the O.P.1 complaining of defect in the motorcycle and after examination the O.P.1 found unauthorized tempering in the vehicle by the complainant and due to lack of engine oil the piston of the vehicle was damaged. Further the O.P.1 has submitted that although the piston of the vehicle is not covered with the warranty the O.P. 1 provided service by replacing the piston and handed over the vehicle to the complainant but the complainant denied to take the vehicle and demanded to replace a new vehicle. Hence the O.P.1 claims no deficiency in service on his part. According to O.P.No. 3 & 4, in order to avail the insurance claim either the owner or the dealer has to maintained the required procedure and should have intimated about the defect within warranty period or any other claim to the insurance company so that the same will be settled as per prescribed procedure . But in this case neither the complainant nor the dealer has intimated the insurance company about any claim or defect within warranty period. Hence the O.P. 3 & 4 is not liable for any defect in the complaint petition. The O.P. 3 & 4 claims for dismissal of the case.
4. Heard both the parties perused the material available on record. The learned advocate for the complainant submitted that, the defect in the vehicle has not been removed till second service and hence there is manufacturing defect in the vehicle and the complainant is entitled to the relief as prayed for. On the other hand the learned advocate for the O.P. 1 relying on a decision of the Hon’ble State commission reported in 2006 ( 1 ) OLR ( CSR ) 9 Sukanti Sahu Vrs. Executive engineer submitted that, nobody has control over the functioning of a machinery and hence in this case also the defect in the piston of the vehicle has already been replaced on dated 22.6.19 although the same has not been covered with warranty. Further it is submitted that, the case is not maintainable in the absence of the manufacturer.
5. Before going into the merits of the case it is necessary to discuss on the point of maintainability as raised by the O.P.1. It is true that the vehicle is warranted by the manufacturer. In order to discharge its warranty obligations manufacturer has a dealer network to discharge its obligation on its behalf under the contract of dealership. The manufacturer has also established service center on his behalf. In this case the O.P.1 is a authorized dealer as well as he is also managing the service center. Therefore the O.P. 1 acting on behalf of the manufacturer. In common practice the consumer has direct relation with the dealer and not
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with the manufacturer. Hence the O.P.1 is an authorized agent of the manufacturer and the case is maintainable in the absence of the manufacturer.
6. Coming to the merits of the case, It is an admitted fact that, the complainant had purchased a CB SHINE HONDA motorcycle from the O.P.No.1 on dated 27.11.18 for a consideration of Rs.61658/- vide invoice No. OR125C0118V00595 dated 27.11.18. It is also an admitted fact that the complainant had availed two free services. It is also an admitted fact that during warranty period defect in the piston of the vehicle was detected. With these admitted facts the only point for consideration is whether the said defect is an inherent defect for which replacement of the vehicle is necessary.
7. Piston is a short solid piece of metal that moves up and down inside a cylinder in an engine to press the fuel into a small space and to send the power produced by it to the wheels. Therefore the piston of a vehicle is an important part of the engine and due to its defect a vehicle cannot run smoothly. The documentary evidence available on record shows that the complainant is complaining the defect in the vehicle which cannot be removed till second service. It is seen from the technical report filed by the O.P.1 that the piston has been replaced with a new one on dated 22.6.19. The O.P. 1 has not produce any affidavit evidence of the technician to show that after replacement of the piston the vehicle is running smoothly without any defect. It is seen from the documentary evidence available on record that, the complainant has availed the second free service which shows that by the time of second service all defects must have removed and the oil level must be checked by the mechanic, but just after the second service again there is complaint in the piston which has been replaced as per the admission of the O.P.1. Therefore the plea taken by the O.P.1 regarding oil level cannot be sustained. The defect must be an inherent one. All this material available on record shows that, the vehicle is not free from defects. Law is well settled that a new vehicle must have perfection, and a purchaser cannot run to the service center repeatedly for the same defects. Piston is a vital part for the smooth running of the vehicle which is a defective one and the vehicle lacks its perfection .
8. The decision cited by the O.P.1 is not applicable to the present facts and circumstances of the case. In the cited decision the issue is relating to violation of agreement in the maintenance of transformer. But in the present case the dispute is relating to the defects in the vehicle.
9. With these evidence available on record and under the aforesaid discussion it is concluded that there is inherent defects in the vehicle of the complainant which requires replacement. Hence ordered:-
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ORDER
The O.P. No. 1 is directed to replace the vehicle of the complainant with a new one of the same model with same price and to pay Rs.1000/- ( One thousand ) to the complainant within one month from the date of receipt of this order.
Accordingly the case is disposed of.
Pronounced in the open forum to-day the 06th day of January’2020.
(S.Rath) (A.K.Purohit)
MEMBER. PRESIDENT
