BEFORE THE DISTT.CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No. 227 of 2018.
Date of Instt.:21.08.2018.
Date of Decision:07 01 .2019
Radha Rani wife of Radhe Shyam, resident of village Badopal, Tehsil and District Fatehabad.
...Complainant
Versus
1.Shree Balaji Motors/Parkash Enterprises, G.T. Road, Near Setia Palace, Fatehabad through its Proprietor.
2.Okinawa Scooters, Unit No. 119, 1st Floor, JMD Megapolis, Sector 48, Sohna Road, Gurgaon through its Director/Manager.
..Opposite Parties/ Respondents.
Before: Sh.Jasvinder Singh, Presiding Member.
Dr. Rajni Goyat, Member.
Present: Sh. S.C. Jangu, Advocate for the complainant.
Sh. Satvinder Kumar Proprietor for Ops.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter to be referred as OPs) with the averments that he had purchased a M-Cycle/Scooter-NT on 5.2.2018 vide bill no. 139 dated 5.2.2018 having number M5WBDFBBHG1100401, engine number BDF100083 Model No. RIDGE and complainant had made the payment of the same in cash to the OP no. 1 i.e. Rs. 48,500.00. It is further alleged that the said scooter is manufactured by the OP no. 1 and was to carry warranty/guarantee of two years against all defects including the manufacturing defects also. It is further alleged that the said scooter was registered vide registration no. HR-22P-5553 with Registering Authority (MV), Fatehabad. It is further alleged that since the date of purchase the scooter was not working properly and defect occurred & the scooter stopped working. It is further alleged that the complainant approached to the OP no. 1 but after this scooter did not give satisfactory performance and complainant again visited OP no. 1 more than 3 time and every time the defect occurred again and again. It is further alleged that on dated 6.7.2018 scooter purchased by complainant stopped performing properly and complainant approached the OP no. 1 and the OP no. 1 told to complainant that the some parts are not available and asked complainant to wait for 3 days and after this complainant visited OP no. 1 and asked about the same on this addressee no. 1 asked to wait more 3 days and assured that the same will be fixed after 3 days. As per assurance of addressee no. 1 complainant visited addressee no. 1 and asked about the same and addressee no. 1 this again asked to wait for one week. It is further alleged that the scooter of complainant laying with addressee no. 1 and complainant has to bear unnecessary loss of hard earned money and valuable time loss as complainant use to the scooter to drop and bring his child in School namely KVS situated at village Khara Kheri. It is further alleged that the complainant has to spend Rs. 4,00.00per day to drop and bring the child from school since 6.7.2018 and Ops are liable for the such losses. It is further alleged that on 17.5.2018 complainant served Ops with legal notice through Subhash Chander Jangu, Advocate but the OP does not even bother to reply the same.
2. It is further submitted that the complainant has suffered loss and damaged of Rs. 1,00,000.00 and further prayed for the following reliefs:-
a. Billing amount for vehicle Rs. 48,500.00 alongwith interest from 5.2.2018 at 18% per annum.
b. Damages for harassment, physical injury and mental agony assessed at Rs. 50,000.00.
c. Costs of the present proceeding assessed 15,00.00.
d. Further and other relief’s as complainant is entitled to.
Hence, the present complaint.
3. On being served the OPs appeared and filed written statement. It is submitted that on dated 7.7.2018 regarding defect in complainant scooter which was brought from Balaji Motors and being new retailer of Okinawa we did not had parts available at that point of time. We placed orders for parts with company immediately and asked complainant for 15 days time and for that regard we handed over them a receiving slip of 15 days for same. It is further submitted that on 20.7.2018 we have made a call to complainant to pick their scooter from the showroom after all the repairs and they did not come that day. We made several calls again and sent mail too but they did not turn up. We have also sent a letter to their address but again they did not turn up to receive. We made all efforts which we could made to make them pick their scooter. It is further submitted that they have not turn up their scooter and it is still laying in our showroom for which complainant should be made liable to pay for rent @ 70 rupees per day. It is further submitted that we have provided them proper service from time to time. So there is no deficiency in service on the part of OPs and as such the complainant is not entitled to get any amount of compensation from Ops.
4. The complainant tendered in evidence affidavit of the complainant as Ex.CW1/A and documents as Ax.C1 to Ax.C7. On the other hand, the learned counsel for the OPs tendered in evidence affidavit as Exhibit RW1 and closed the evidence.
5. We have duly considered the arguments advanced by learned counsel for the parties and have also perused the entire material placed on record. It is the case of complainant that he had purchased a scooter NT on 5.2.2018 from OP no.1. It is further the case of complainant that since the date of purchase the scooter was not working properly and defect occurred and scooter stopped working. It is further the case of complainant that complainant approached to OP no. 1 but after this scooter did not give satisfactory performance and complainant again visited OP no. 1 more than three times and every time defect occurred again and again. It is further the case of complainant that on dated 6.7.2018 scooter purchased by complainant stopped performing properly and complainant approached the OP no. 1 and OP no. 1 told to complainant that some parts are not available and asked the complainant to wait for three days, after that OP again takes time 3 more days and again 7 more days. It is further stated by complainant that scooter of complainant still lying with OP no. 1 and complainant has to bear unnecessary loss of hand earned money and valuable time. Complainant also used this scooter to drop and bring his child from school. On the other hand, it is the case of OP no. 1 that on dated 7.7.2018 regarding defect in complainant scooter which was purchased from Balaji Motors and being new retailer of Okinawa i.e. Prakash Enterprises, we did not had parts available at that point of time. We placed the order for parts with company immediately and asked the complainant for 15 days time and receiving slip was also handed over to them. It is further the case of OP no. 1 that on dated 20.7.2018, we have made a call to complainant to pick their scooter from showroom after all repair and they did not come that day. We made several call again and sent mail too but they did not turn up. We also sent a letter to their address but again they did not turn up to receive. We made all efforts which we could made to make them pick their scooter and scooter still lying in our showroom.
6. In the present complaint, the complainant has prayed for replacement on refund of the original cost of scooter. It is a settled proposition of law that a product can be ordered to be replaced or its original cost can be refunded only in case the complainant by producing cogent, convincing or credible evidence or expert opinion proves that product in question is suffering from manufacturing defect. In the present case, the onus was upon the complainant to prove that the scooter in question was suffering from a manufacturing defect. Therefore, we are of the considered opinion that complainant is not entitled for replacement or to refund to original cost of the scooter.
7. It is a settled principle of law that where any part of a product had become defective during the warranty period in that eventuality it is liablility of manufacturer to repair the defective part or to replace the same. In the present case from perusal of the job card/receipt for repairing dated 6.7.2018 (Annexure C-2), it is evident that the scooter in question was having problem i.e. was not working properly/stopped working etc. In its reply the OP no. 1 has submitted that the answering OP was still ready to provide services to the complainant for his scooter. Keeping in view the same the Ops are directed to repair all the defects if any in the scooter in question, free of cost within a period of one month from the date of receipt of copy of the present order and shall provide certificate to this effect to the complainant given by the independent technical expert. The Ops are further directed to make payment of Rs. 3100/- as compensation and litigation charges to the complainant.
Copy of this order be supplied to the parties free of cost. File be consigned after due compliance.
Announced in open Forum:
Dt.07.01.2019.
.
(Rajni Goyat) (Jaswinder Singh)
Member Member
