This case arose out of application U/s 35 of the Consumer Protection Act, 2019.
The case of the petitioner is that he purchased a Super Splendor Metallic Nexus Blue Colour motor cycle/vehicle from O.P.No-1 paying Rs.71,200/- and he also paid Rs.21,000/- for registration, tax, insurance etc. After payment O.P.No-1 handed over the vehicle being Engine No:JA07ABM9A10935 and Chassis No:MBLJAW170M9A01573 on 21.01.2021 along with Challan/Tax Invoice and Owner’s Manual and he got it insured with O.P.No:-3/Insurance Company vide Policy No:3193121727/000000/00 period from 20.01.2021 to 19.01.2026.
That at the time of purchase O.P.No:1 assured him that if any dispute arises within 03 years or 30,000KM whichever occurs earlier, from the date of purchase, the Company shall be given emission warranty, in case any defect in any emission related to component which are covered under emission warranty, Hero Motocrop/O.P.No:2 only obligation/liability shall be to repair and or replace those part(s) which is/are considered to be the cause of non-compliance with the emission standards.
That he is plying the vehicle on road but after some days the vehicle is in trouble and oil is leaking from engine and the vehicle is going to stop suddenly any time. He informed O.P.No:1 immediate after the incident and time to time he maintained servicing the vehicle as per service manual. All time O.P.No:1 assured him that the vehicle is OK and O.P.No:1 always serviced the vehicle but same problem occurs again due to manufacturing defect. Due to negligent act of O.Ps he is suffering from mental pain & agony. He filed this case for return of purchase price of vehicle Rs.71,200/- or to replace the vehicle by new one, compensation of Rs.50,000/- , litigation cost of Rs.10,000/-.
O.P.No:2/Hero Motocorp/Manufacturing Company did neither appear nor contest the case.
O.P.No:3/Insurance Company also did neither appear nor contest the case.
O.P.No:1/seller contested the case by filing W.V that it is a service provider under O.P.No:2 and authorized service centre of Hero Company and is always ready to service the two wheeler vehicle of the Company. After purchasing the vehicle the complainant alleged the gear function problem of the vehicle so the vehicle is not plying on road properly and immediately O.P.No:1 serviced the vehicle properly but subsequently the complainant met with a road accident by the said vehicle and after repairing the vehicle is in OK condition and there is no problem since long and the complainant submitted a bill and voucher for claiming said repairing bill to the Insurance Company on 06.08.2021 and thereafter lapsing long period the complainant raised another problem for the vehicle i.e engine leakage and pouring oil from the vehicle. O.P.No:1 always trying to solve the minor problem of the vehicle & Territory Service Manager (TSM) after checking the vehicle opined that there is no manufacturing defect in the vehicle. O.P.No:1 always serviced the vehicle properly and lastly on 15.11.2021 also serviced it. If there be any manufacturing defect it was impossible to ply the vehicle on road. The vehicle is in OK condition but the complainant intentionally filed this case for undue advantage. Thus the case is liable to be dismissed.
Point for consideration are
- Whether there was/is any deficiency of service on the part of the O.Ps?
- Is the petitioner entitled to get the claim declaring the repudiation not proper?
D e c i s i o n w i t h r e a s o n s
Admittedly, O.P.No:2/Hero Motocorp Ltd is the manufacturing company of two wheeler vehicle/Motor cycle & O.P.No:1 is a service provider under O.P.No:2 and also authorized service centre of Hero Company and O.P.No:1 is always used to service the two wheeler vehicle of the Company.
It is undisputed that the complainant purchased a Super Splendor Metallic Nexus Blue Colour motor cycle/vehicle from O.P.No-1 paying Rs.71,200/- and he also paid Rs.21,000/- for registration, tax, insurance etc. After payment O.P.No-1 handed over the vehicle being Engine No:JA07ABM9A10935 and Chassis No:MBLJAW170M9A01573 on 21.01.2021 along with Challan/Tax Invoice and Owner’s Manual and he got it insured with O.P.No:3/Insurance Company vide Policy No:3193121727/000000/00 period from 20.01.2021 to 19.01.2026, being Registration No:W.B60W/6933.
Owner’s manual shows that the complainant availed First Free Service on 06.02.2021 at 580 KM, 2nd Free Service on 03.04.2021 at2525 KM, 3rd Free Service on 26.07.2021 at 6485 KM, 4th Free service on 08.11.2021 at 9029 KM. 5th Free Service coupon remain intact with owner’s manual. The defence case is that lastly on 15.11.2021 the complainant brought his vehicle to O.P.No:1 and it’s Technician changed his I-(iii)S Switch free of cost and after servicing the vehicle was OK. Vehicle history card containing service details up to 15.11.2021 at recorded Km 9029 with visit summary is produced by O.P.No:1.Thereby alleged assurance given by O.P.No:1 as to service the vehicle if any defect arises was complied by O.P.No:1. No document is produced by the complainant to the effect that if any defect occurs within 03 years of purchase or 30,000 KM whichever is earlier was given to him. Complainant in reply to the questionnaire admits that time to time he brought the vehicle to O.P.No:1 who serviced the same. Consequently it is held that there was/is no deficiency of service on the part of seller/service provider O.P.No:1.
The complainant suppressed in his complaint petition as to occurrence of any road accident by the said motor cycle. O.P.No:1 pointed out that the complainant met with a road accident by the said vehicle and get his vehicle repaired in OK condition & submitted bill and voucher to the Insurance Company for getting repairing charges on 06.08.2021. The complainant admits road accident by the vehicle in answer of Question No:3 to his reply. O.P.No:3/Insurance Company has no role regarding alleged dispute, who is an unnecessary party to this case.
The specific case of O.P.No:1 is that it engaged a TSM (Territory Service Manager) who after testing the vehicle opined that the vehicle is OK and there is no manufacturing defect in the said vehicle. The complainant replied to Question No:5 stating that TSM never check his vehicle, specially no such document handed over to him by O.P.No:1 & 2 so he is not in a position to answer the question when TSM checked his vehicle. TSM was not bound to answer the complainant. Evidence of O.P.W.1/Ashok Roy the Workshop Manager of O.P.No:1 service centre has corroborated defence case. The complainant answered Question No:8 leaving blank kilometer as present running position of the vehicle. How the complainant came at finding that there was manufacturing defect in his vehicle. The complainant answered “NO” to Question No:9-Did you get any expert opinion in respect of manufacturing defect of the vehicle?
O.P.No:1 denied that the statement of Para No:4 of the deposition of O.P.W.1 is not true. Answer to Question No:03 is “No”, it is not a fact that engine leakage and pouring oil from the vehicle is occurred from the initial stage of purchasing the vehicle. Question No:4 answered “Yes” O.P.No:1 submits TSM’s report/opinion. Question No:5 & 7 were answered “Yes”, at the time of servicing the O.P informed the complainant in this matter. Question No:6, 8, 12 & 13 were answered in negative, it is not a fact that said report (TSM’s)report was subsequently obtained only for the sake of the present complaint and that the report of TSM is false. Question No:9 was answered “Yes”, it is fact if any manufacturing defect detected the vehicle would unable to ply on road. Question No:10 & 11 were answered in negative, it is not a fact there is manufacturing defect upon the alleged vehicle.
Under the above facts and discussions, we are of the view that since manufacturing defect in the vehicle is not proved, the manufacturer/O.P.No:2 shall neither be liable to replace complainant’s vehicle by a new one nor to refund the price of the vehicle. The remedy available to the complainant to get his vehicle repaired is fulfilled, as the O.P.No:1/service provider in all occasions attended and repaired the complainant’s vehicle as and when requires, so the complainant is not entitled to get the claim as prayed for.
Hence, it is
O R D E R E D
that the petition of complaint filed U/s 35 of Consumer Protection Act, 2019 registered as C.C-21/2022 be and the same is dismissed on contest but without any cost.
Let a copy of this order be given to the parties free of cost.
