1. The brief history of the case of the complainant is that he purchased a Hero Splendor ISMART 110 bike from OP.1 on 22.8.2016 vide Invoice No.10220-03-SINV-0816-563 for Rs.56, 448/- and during January, 2017 the vehicle started giving engine problem for which it was referred to the branch of OP.1 at Semiliguda on 14.1.2017. It is submitted that the technician of the branch expressed its inability to repair the vehicle due to lack of parts and equipment and insisted to produce the vehicle at Hero Showroom, Jeypore. It is further submitted that the vehicle of the complainant bearing No. OD 10E 9432 was handed over to OP.1 who assured to return the vehicle after necessary repairs but in spite of several approaches the OP.1 is doing nothing to repair the vehicle for which the complainant is suffering. Thus alleging deficiency in service on the part of the Ops, he filed this case praying the Forum to direct the Ops either to replace the defective bike with a new one or to refund Rs.56, 448/- towards its cost and to pay Rs.35, 000/- towards compensation and costs to the complainant.
2. The OP No.1 filed counter denying the allegations of the complainant but admitted about the receipt of vehicle of the complainant for repair on 14.1.2017 at Semiliguda and due to non repair at Semiliguda it came to OP.1 on 17.1.2017. It is contended that after opening of Job Sheet No.10220-04-RJC-0117-14068 dt.17.1.2017, the OP.1 rectified the defects pointed out i.e. starting problem and Kick Jam after replacing necessary parts and the vehicle became running condition on the same day but after repeated requests the complainant did not receive back the vehicle from OP.1. Denying the allegation of the complainant that he has been regularly visiting to take back his bike, the OP submitted that the vehicle was ready to be handed over to the complainant on the same day but the complainant denied accepting the same. Thus denying any fault on its part, the OP.1 prayed to dismiss the case of the complainant.
3. The OP No.2 also filed counter adopting the versions of OP.1 and contended that no complaint has been made before OP.2 by the complainant with regard to any problem in the bike. Denying the allegations of the complainant regarding deficiency in service and unfair trade practice, the OP contended that the vehicle is defect free after its repair but the complainant is not interested to take back his vehicle and in the above circumstances, replacement of vehicle with a new one or refund of its cost to the complainant is not possible as because the complainant has not proved any manufacturing defect by adducing expert opinion. Thus denying any fault on its part, the OP.2 also prayed to dismiss the case of the complainant.
4. The complainant as well as OP.1 has filed certain documents in support of their cases. The complainant has filed affidavit. Heard from the parties through their respective A/Rs and perused the materials available on record.
5. In this case purchase of Hero Splendor ISMART 110 Bike from OP.1 on 22.8.2016 by the complainant for Rs.56, 448/-, refer of bike for engine problem to Semiliguda branch of OP.1 on 14.1.2017 and for non repair by the said branch again refer of bike to the workshop of OP.1 at Jeypore on 18.01.2017 by the complainant are all admitted facts. The case of the complainant is that he handed over the vehicle to OP.1 on 18.1.2017 for necessary repairs but in spite of regular visit to take back the vehicle, it had not been repaired and hence the complainant has been suffering. Thus the complainant prayed for replacement of vehicle with a new one or refund of its cost.
6. The OP.1 stated that on receipt of vehicle, it was repaired as per the fault pointed out by the complainant by replacing as many as 10 number of parts and the vehicle became roadworthy but in spite of requests, the complainant is not interested to take back the vehicle. Perused the job sheet in which it is mentioned that the complainant handed over the vehicle to OP.1 on 17.1.2017 with 4322 Kms run. As per version of the OP.1, the vehicle was repaired on the same day and ready to hand over but the complainant is not cooperating and hence the vehicle is with them.
7. Further on perusal of vehicle history card it was observed that the said vehicle was repaired at 4325 Kms run on 02.3.2017 vide Job No.RJC-0317-16119 for Engine sound. From the above fact, it was ascertained that the vehicle was not fully repaired on 17.1.2017 to the extent of complaint made and we, therefore, firmly believe the contention of the complainant that he was approaching the OP.1 regularly to take back his bike but it was not repaired. After filing of this case on 10.2.2017, the OP.1 woke up and repaired the vehicle on 02.3.2017. It was the duty of the OP.1 to repair the vehicle and hand over the same to the complainant immediately within the warranty period, so that the bike if gives any problem further, it can be repaired under warranty. Due to non repair of the bike the complainant could not take back his vehicle and this inaction of the OP.1 in our opinion, amounts to deficiency in service.
8. The complainant has filed this case praying the Forum to direct the Ops either to replace the bike with a new one or to refund its cost. In support of his case, he relied the decision of Honble National Commission in R. P. No.1445 of 2008 decided between Maruti Suzuki India Ltd. Vs Pravenchandra Shetty and Anr on 28.9.2013. In that case the complainant took his vehicle to OP a number of times and they tried to remove the defects every time and replaced certain parts as well but to no avail. Hence considering the facts and circumstances of the case, the Honble Commission has been pleased to order for compensation of Rs.3.00 lacs instead of cost of the vehicle at Rs.3, 73,364.
9. The OP.1 also has relied a decision of Honble National Commission decided on 07.5.2010 between Sushila Automobiles Pvt. Ltd. Vrs Dr. Birendra Narain Prasad and Ors. In that case, the Honble Commission observed that in order to claim for the total replacement by a new bike, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the vehicle suffered from inherent manufacturing defect.
- The complainant must have suffered some mental agony and physical harassment for non repair of the vehicle and repeated personal approach to OP.1. As such he is entitled for compensation and considering the sufferings of the complainant, we feel a sum of Rs.5000 towards compensation and cost will meet the ends of justice.
11. Hence ordered that the complaint petition is allowed in part and the OP.1 is directed to deliver the vehicle with adequate repair to the utter satisfaction of the complainant and to pay Rs.5000 towards compensation and cost to the complainant within 30 days from the date of communication of this order.
