Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 180.
Instituted on : 26.04.2018.
Decided on :24.01.2024
Ramesh s/o Sh. Dalipsingh R/o KhandaynChhajayan, VPO-Mokhra District Rohtak.
………..Complainant.
Vs.
- Shivam Auto, Delhi Road, Rohtak-124001, Authorised Dealer of Hero Moto Corp. Ltd.
- Heero Moto Corp.Ltd. Rgd. Office034, Community Centre, BasantLok, Vasant Vihar New Delhi-110057. Through its Director.
- Hero Fincorp Ltd. 9, Community Centre, BasantLok, Vasant Vihar, New Delhi-110057 through its Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.NAGENDER SINGH KADIAN, PRESIDENT.
DR.TRIPTI PANNU, MEMBER.
DR. VIJENDER SINGH, MEMBER.
Present: Sh.Nitin Goyal, Advocate for the complainant.
Sh. M.K.Munjal, Advocate for the opposite party No.1.
Sh.HarshBhargav,Advocate for opposite party No.2.
Opposite party No.3 exparte.
ORDER
NAGENDER SINGH KADIAN, PRESIDENT:
1. Brief facts of the case are that complainant he had purchased a Scooter HEROMAESTRO EDGE bearing Registration No. HR15C 7710, Engine No. JF33AAGGA25359, Chassis No. MBLJF33AAGGA04467 from the opposite party No.1 Shivam Auto on dated 06.04.2016 vide invoice No. 10015-02-SINV-0416-54 amounting to Rs.51,500/- and got financed the same from the opposite party No.3. From the very first day when the complainant started to run its new vehicle, it started created problems and the complainant told the service centre that the alleged vehicle was giving too much problem to the complainant. But this fact was avoided by the opposite party No.1 and they did not provide good service to the complainant. Even they told to the complainant that it was a manufacturing defect. That Engine of the Scooter of the complainant creating problem day to day and on 14.04.17 (14744 Km) vehicle not started so he provided the vehicle to the service center i.e. the opposite party No.1 for service. After service they have disclosed that the problem is in the engine and after service, engine again started creating problem. The complainant again informed the opposite party No.1 about the said and visited to the service center time to time for the removal of said defect and every time the service of the said vehicle was done by the opposite party No. 1 but the said defect was not removed as the Engine of the said HERO MAESTRO EDGE is not in the proper working condition. The complainant visited to the opposite party No.1 many times for Engine work and every time the opposite party No.1 take charges for the same and also for the parts of the engine of said vehicle which was not worked property for a single time.
Engine Work Detail
Sr. No. Date Reading
(Km.)
1 14.04.17 14744
2 02.05.17 15254
3. 13.06.17 17439
4. 04.09.17 19892
5, 06.10.17 20822
6. 12.10.17 20919
7 23.10.17 21421
8 24.01.18 22538
9 06.02.18 22702
10. 09.02.18 22750
The alleged detail shows that there was a manufacture defect in the vehicle and company failed to remove the said defect despite various request and reminders.Opposite party No. 1 is harassing the complainant by not repairing this new defective Engine and charging the amount again and again on this defective Engine. Due to manufacturing defect in the said engine, opposite parties are liable to change the Engine of HERO MAESTRO EDGE of the complainant with a new piece of Engine.Hence this complaint and it is prayed that the opposite parties may kindly be directed either to replace the said vehicle with new one or to return back the price of said vehicle i.e. Rs.51,500/- with interest @ 18% from the date of purchase and Rs. 40,000/- on account of compensation for suffering harassment and Rs. 10,000/- as litigation expenses to the complainant.
2. After registration of complaint, notice was issued to the opposite parties. Opposite party No. 1 in its reply has submitted that it is wrong and denied that the vehicle of the complainant started creating problems from the very first day. It is submitted that the complainant got his vehicle serviced from the Opposite Party No.1 on 21.04.2016,17.06.2016,19.08.2016,04.11.2016 when the vehicle has run 578 Kms., 2625 Kms., 6285 Kms, and 9196 Kms respectively and no fault was found at that time. Thereafter the said vehicle was serviced on 16.12.2016 which was a general repair service when the vehicle has run 10287 Kms. During the service, engine overhaul work was done. Thereafter the 5th and 6th service of the vehicle was done while the vehicle has run 10841 Kms, and 12548 Kms, respectively and in both the services the vehicle was found in absolutely OK condition. Thereafter on 14.04.2017 first paid service was done and vehicle has run 14744 Kms. During this service certain engine parts were changed under warranty. Thereafter the 2nd, 3rd and 4th paid service was done on 02.05.2017, 13.06.2017 and 04.09.2017 respectively with vehicle running at 15254 Kms., 17429 Kms. and 19893 Kms. and no problem was found in the vehicle, since the vehicle was in absolutely OK condition. Thereafter general repair work was done on 06.10.2017 and 12.10.2017 while the vehicle has run 20825 Kms. and 20919 Kms. respectively. In the general repair held on 06.10.2017 certain engine parts were changed under warranty. In the general repair held on 12.10.2017 no problem was found in the vehicle being in absolutely OK condition. The 5th paid service was done on 23.10.2017 with vehicle running at 21421 Kms. and this time also vehicle was found in absolutely OK condition. On 12.01.2018 general repair with vehicle running at 21432 Kms. was done and no problem was found in the vehicle. The 6th paid service of the vehicle was got done on 15.01.2018 from District Jhajjar with vehicle running at 22385 Kms and no problem was found in the vehicle. Thereafter the general repair was got done on 20.01.2018 with vehicle running 22392 Kms. and it may be case of meter of the vehicle not working. Thereafter on 24.01.2018 with vehicle running at 22538 Kms. and no problem was found in the vehicle. Thereafter on 06.02.2018 on the asking of the complainant the vehicle was pick-up from Jaipur Highway i.e. approximately 100 Kms, away from Rohtak without demanding any single penny and advice was given to the complainant not to raise the speed of his vehicle above the limit of 45 Kms. per hour. It was clearly a case of misuse of the vehicle by the complainant who has raised the speed of the vehicle ranging between 70 Kms. per hour and 80 Kms. per hour. The engine of the vehicle was found seized and the complainant was given the benefit of warranty again. The 7th paid service of the vehicle was done on 20.03.2018 with vehicle running at 23433 Kms. and it was found in absolutely OK condition. Thereafter the vehicle had been got serviced on 06.04.2018 with vehicle running at 23804 Kms. and it was a general repair and the complainant had received his vehicle back in absolutely OK condition with no problem and to his entire satisfaction. The complainant himself has also given 9 marks out of 10 marks on the customer feedback form. The answering respondent/Opposite Party No.1 had always provided good and proper quality of service to the complainant and had never given any chance of complaint. It is wrong and denied that Engine of the Scooter of the complainant was creating problem day to day and on dated 14.04.17 (14744 km) vehicle not started and the complainant have to take leave from his office. There is no manufacturing defect in the engine/vehicle and the vehicle in question is in absolutely proper working condition. During free period of service, no amount has been taken from the complainant. All the other contents of the complaint were stated to be wrong and denied and answering opposite party prayed for dismissal of complaint with costs.
3. Opposite party no. 2 appeared and filed its reply submitting therein that OP No. 2 is a company engaged in the business of manufacturing two wheelers in India and OP No. 1 is an authorized dealer/retailer of the products and also engaged in carrying out service and repair of the said two wheelers/vehicles. The vehicle in question of the complainant was got serviced from the workshop of opposite party No.1 on multiple occasions and during all/any of these free and paid services, no such problem had ever been reported by the complainant as alleged in the present complaint and even if there was some problems with the Scooter, the same were duly corrected by the opposite party No.1 to the utmost satisfaction of the complainant and he received the same without any protest. The judgments of the Hon’ble Supreme Court as well as those of the National Commission clearly states that the terms and conditions of the warranty only entails repair and does not include replacement or refund of money. Thus, the complaint submitted by the complainant is not maintainable as no cause of action arose against the answering opposite party. The Hon’ble State Commission of Ernakulam in the matter of M/s Hero Honda Motors Ltd. Vs. Muralleedharanvide order dated 11.04.20210 has held the manufacturer of Hero Motorcycle is only liable to repair or replace the defective parts and the said replacement or repair is to be done free of charge. It is further held that if it is found that the manufacturing defect could not be rectified by replacement of the defective parts or that the manufacturing defect in the vehicle could not be rectified other than by replacement of the disputed vehicle, we can understand the forum below ordering replacement of the defective vehicle as such by a new vehicle or ordering refund of the price of the vehicle. But if the manufacturing defect is due to the defective nature of the chassis. Thus, the defect in the vehicle can be rectified by replacement of the defective chassis. But in the present case, there is no expertopinion or report showing that there is mechanical defect or manufacturing defect in the vehicle in question. All the other contents of the complaint were stated to be wrong and denied and answering opposite party prayed for dismissal of complaint with costs. Notice issued to OP no. 3 through registered post not received back and none appeared on behalf of opposite party No.3. As such after expiry of statutory period of 30 days, OP no. 3 was proceeded against exparte vide order dated 18.07.2018 of this Commission.
4. Notice issued to opposite party no.3 through registered post not received back and after expiry of statutory period of 30 days, opposite party no.3 was proceeded against exparte vide order dated 18.07.2018 of this Commission.
5. Ld. counsel for the complainant in his evidence has tendered affidavit Ex.CW1/A, documents Ex.C1 to Ex.C25 and has closed his evidence on dated 11.07.2019.Ld. counsel for the complainant also tendered documents Ex.C19 to Ex.C25 in additional evidence and closed his evidence on 14.12.2020. However as per the statement dated 24.11.2022 it is stated by ld. Counsel for the complainant that the documents Ex.C19 to Ex.C25be read as Ex.C19(A) to Ex.C25(A) as the same were already filed. On the other hand, ld. counsel for the opposite party No.1 tendered affidavit Ex.RW1/A, documents Ex.R1 to Ex.R17 and closed his evidence on dated 15.11.2019. Ld. counsel for the opposite party No.2 tendered affidavit Ex.RW2/A, documents Ex.R2-1 and closed his evidence on 08.01.2020.
6. We have heard learned counsel for the parties and have gone through material aspects of the case very carefully.
7. We have perused the documents placed on record by both the parties. In the present case it is not disputed that as per invoice Ex.C18, complainant had purchased the scooter from the opposite party No.1 on dated 06.04.2016 for Rs.51500/- and it is mentioned on the invoice that : “All Hero Products comes with 5 years warranty without any additional cost”. Meaning thereby the same was having 5 years warranty. As per the service detail given in the complaint and in the written submissions filed by the complainant which is supported with the documents Ex.C1 to Ex.C9 &Ex.C16 to Ex.C24, complainant had got serviced his vehicle so many times from the opposite party No.1, the detail of which is as under:
Sr. No. Date Reading
(Km.)
1 14.04.17 14744
2 02.05.17 15254
3. 13.06.17 17439
4. 04.09.17 19892
5, 06.10.17 20822
6. 12.10.17 20919
7 23.10.17 21421
8 24.01.18 22538
9 06.02.18 22702
10. 09.02.18 22750
11. 06.04.2018 23804
12. 28.05.2018 24950
13. 29.05.2018 24990
14. 11.06.2018 25239
15. 16.06.2018 25374
16. 11.08.2018 26359
17. 18.10.2018 26500
18. 27.12.2018 28654
19 08.01.2019 28821
We have also perused the documents placed on record by the opposite parties. As per Ex.R2, the service was done on 16.12.2016 and the next service was due on 19.06.2018 but in between the same, the vehicle had been serviced for 17 times. As per job card Ex.R6 dated 02.05.2017, the customer request was for: “Engine oil change, Engine oil leakage, Tappet noise, Nitrogen filling”, as per job sheet Ex.R7 dated 13.06.2017, the same was for : “Tappet noise, Nitrogen filling Standard service, Clutch juddering”, as per Ex.R8 dated 04.09.2017 for : “Nitrogen filling, Standard Service, Drive chain issue”, as per Ex.R9 dated 06.10.2017 for : “Engine noise, speedometer issue, standard service”, Ex.R11 dated 23.10.2017 is for “Standard Service”, Ex.R12 dated 12.10.2017 for : “Tappet noise”
, Ex.R13 for “Engine noise”, Ex.R14 dated 06.02.2018 is for “Starting trouble”, Ex.R17 dated 06.04.2018 is for “Engine overheating & low mileage”. All these job sheets shows that there were issues related to “Engine oil leakage, Tappet noise, clutch juddering, engine noise, speedometer issue, engine overheating & low mileage” in the alleged vehicle. All the alleged job sheets shows that there were issues related to the engine in the alleged vehicle. We have also perused the written statement filed by opposite party No.1, as per which in para no.2 of its reply, opposite party has submitted that in general repair held on 06.10.2017, certain engine parts were changed under warranty. As per affidavit Ex.RW1/A of Shri Bhagwan Works Manager, Shivam Auto i.e. opposite party no.1, he has also submitted that on 06.02.2018, the engine of the vehicle was found seized and the complainant was given the benefit of warranty. We have also perused the inspection report Ex.C22 issued by Monu Hero Honda Workshop, as per which it is submitted that : “they had checked the scooty and found that the engine of the scootywas got defected so many times. Chamber of scootywas broken due to which the engine was getting defective repeatedly and the engine had lost its power”. Hence all these documents show that vehicle in question of the complainant was got serviced from the workshop of opposite party No.1 on multiple occasions as there was defect in the engine of the vehicle which could not be removed by the opposite parties despite their repeated repairs. Hence there is manufacturing defect in the vehicle in question and the opposite party No.2 being the manufacturer is liable to refund the price of vehicle after deducting the 20% depreciation on it i.e. Rs.41200/-(Rs.51500/- less 20%). However ld. Counsel for the opposite party No.2 placed reliance upon the judgements of Hon’ble Supreme Court of India in Civil Appeal no.574/2021 titled as Tata Motors Ltd. Vs. Antinio Paulo Vaz and Anr.,2006(4)BCR266 titled as MarutiUdyog Ltd. Vs.Susheel Kumar Gabgotra and Anr., 2018(4) CPJ 115 titled as Md.Hassan Khalid Haldar Vs. General Motors India Pvt. Ltd.(NCDRC) New Delhi and 1999(1)CPJ 31 titled as V.P.Kapoor Vs. RajChopra(NCDRC)but the same are not fully applicable on the facts and circumstances of the present case.
8. In view of the facts and circumstances of the case we hereby allow the complaint and direct the opposite party no.2 to pay the amount of Rs.41200/-(Rupees forty one thousand and two hundred only)alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 26.04.2018 till its realization and shall also pay Rs.5000/-(Rupees fivethousand only) as compensation on account of deficiency in service and Rs.5000/-(Rupees five thousand only) as litigation expenses to the complainant within one month from the date of decision.
9. Copy of this order be supplied to both the parties free of costs.File be consigned to the record room after due compliance.
Announced in open court:
24.01.2024.
……...............................................
Nagender Singh Kadian, President
.....................................................
TriptiPannu, Member.
……………………………….
Vijender Singh, Member.
