BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 111 of 2015

Date of Institution: 24.2.2015

    Date of Decision:   26.02.2016

Gurwinder Singh son of S. Buta Singh resident oif village and post office Makhanwindi Tehsil and District Amritsar

Complainant

Versus

1. Speedways Agency Madan Mohan Malviya Road, Amritsar  through its Prop./partner/Principal Officer/Person to receive the summons Ph.No. 2210980, 2565514, 2565515  /9815942670/2581945
2. M/s. Hero Motor Corporation Ltd registered office 34, Community Centre Basant Lok Vasant Vihar New Delhi 110057 India through its Director/Principal Officer/Officer to receive the summons
3. M/s. Hero Motors Corp.Ltd, SCO 367-368 Ist Floor Sector 34A Chandigarh through its Managing  Director/Principal Officer/Manager/The Officer to receive the summons

Opposite Parties

Complaint under section 11 and 12 of the Consumer Protection Act, 1986

Present:  For the Complainant           :  In person

               For the Opposite Parties    : Sh.V.K.Sehgal,Advocate

Quorum:

Sh.Bhupinder Singh, President

Ms.Kulwant Kaur Bajwa, Member

Sh.Anoop Sharma, Member

Order dictated by:

Sh.Bhupinder Singh, President.

1.       Present complaint has been filed by Gurwinder Singh  under the provisions of the Consumer Protection Act alleging therein that he purchased one motorcycle Hero Passion from opposite party No.1 vide bill No. PS/1278 dated 20.12.2014 for a sum of Rs. 49,471/-. According to the complainant after three days, there was voice from the engine and complainant reported the matter to opposite party No.1 . Opposite party No.1 assured the complainant that the defect will be removed  and complainant   should come  at the time of first service. After 15 days complainant approached opposite party No.1 for removing the voice from the engine i.e. on 19.1.2015  and they stated that the defect will be removed after opening the engine. Complainant has alleged that opposite party No.1 opened the engine on 29.1.2015 and delivered the vehicle on the same evening i.e. 29.1.2015 and  there was again voice in the engine.  Complainant has alleged that he informed the opposite party on 15.1.2015, 16.1.2015 and 17.1.2015 regarding this defect and complainant also sent letter through speed post on 21.1.2015 but no action has been taken by the opposite party to remove the defect.  Thereafter complainant requested the opposite party vide letter dated 17.2.2015 to replace the motorcycle with new one, as after opening engine again its utility  will be finished  . Thereafter complainant made several visits to the opposite party to replace the motorcycle, but to no effect. Alleging the same to be deficiency in service complaint was filed seeking directions to the opposite parties to replace the motorcycle with new one or in the alternative to refund the price of the motorcycle i.e. Rs. 49,471/- plus Rs. 6000/- as RC and other Misc. expenses . Compensation of Rs. 30000/- alongwith litigation expenses were also demanded.

2.       On notice opposite parties No.1 to 3 appeared and filed joint written version in which it was submitted that complainant purchased the aforesaid motorcycle on 20.12.2014 with warranty of five years or 70000 km issued by opposite parties No.2 & 3 whichever is earlier. It was submitted that  on 11.2.2015 when the motorcycle was brought for repairs with the complaint of “Gear sound check, Tappet sound check and pick up check”, the motorcycle was  requested to be thoroughly investigated by the opposite party No.1 for which permission of the complainant was sought for opening the engine of the motorcycle to facilitate further investigation which the complainant declined  and thereafter the complainant filed the present complaint.  It was submitted  that complainant approached opposite party No.1 for service of the motorcycle, details of which are as under:-

3.       It was submitted that there is no defect in the motorcycle  and the same is being used regularly by the complainant. It was further submitted that  on 19.1.2015 complainant approached the opposite party No.1 and the motorcycle was also checked by opposite party No.1 and no abnormal engine noise was detected and the motorcycle was returned to the complainant. It was submitted that on 19.1.2015 it was observed that the entire body of the motorcycle  namely the Visor, Front Mudguard, both sides shields  and also the fuel tank bore scratches which proved that the motorcycle has earlier met with an accident . Further on 29.1.2015 complainant approached opposite party No.1 with allegations of noise from the kick and also engine noise, the kick washer was changed and engine was again checked  and nothing was found and the motorcycle was returned to the complainant . Finally on 11.2.2015 complainant  again came with the allegations of abnormal noise from the engine and it was again inspected  and the complainant was requested to permit them to open the engine for investigation purpose, however, complainant flatly refused  to open the engine and took the motorcycle back . While denying and controverting other allegations, dismissal of complaint was prayed.

4.       Complainant tendered his affidavit Ex.C-1 alongwith documents Ex.C-2 to Ex.C-10, affidavit of Kuldip Singh Ex.C-11, photograph Ex.C-12 and report Ex.C-13.

5.       Opposite parties tendered affidavit of Sh.Harbans Singh Dhillon Ex.OP1,2,3/1 alongwith documents Ex.OP1,2,3/2 to Ex.OP1,2,3/6.

6.       We have carefully gone through the pleadings of the parties, arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties  with the valuable assistance of the ld.counsel for the parties.

7.       From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that  complainant purchased one motorcycle Hero Passion from opposite party No.1 vide invoice/bill dated 20.12.2014 for a sum of Rs. 49,471/-. The complainant submitted that after three days from its purchase, he noticed voice from the engine of the vehicle and reported the matter to opposite party No.1. the complainant brought the motorcycle to the workshop of opposite party No.1 for removing the aforesaid defects on 19.1.2015. He submitted that opposite party opened the engine on 29.1.2015 and delivered the vehicle in the evening by stating that there shall be no voice in the engine in future. But the said defect  continued and could not be removed. The complainant had earlier sent letter to the opposite party in this regard by speed post , but no action has been taken by the opposite party to remove the defect in the vehicle of the complainant. The complainant also sent complaint No. 30 dated 17.2.2015 to the opposite party to replace the motorcycle with new one  because opening of engine again will deteriorate  utility of the vehicle . But the opposite party neither replaced the vehicle of the complainant nor made it fully functional. The complainant submitted that all this amounts to deficiency of service on the part of the opposite parties qua the complainant.

8.       Whereas the case of the opposite parties is that the complainant purchased the aforesaid motorcycle on 20.12.2014 with warranty of five years or 70000 km issued by opposite parties No.2 & 3. The complainant is, therefore, within his right to seek repairs of the defect, if any in the vehicle from the authorized dealer/service centre of opposite parties No.2 & 3. Obligation of the opposite parties under warranty is only to repair or replace the part which is the cause of said defect provided the said defect has not resulted due to mis-use/improper handling of the vehicle . Lastly the complainant brought the motorcycle to the opposite party on 11.2.2015 for repairs with complaint of “Gear sound check, Tappet sound check and Pick up check”. The motorcycle was to be thoroughly investigated /checked up by the opposite party for which permission of the complainant was sought for opening the engine of the motorcycle to facilitate further investigation which was however, declined by the complainant, to the opposite party. The vehicle of the complainant fully repaired as per job card dated 7.1.2015 Ex.OP3, job card dated 19.1.2015 Ex.OP4, job card dated 29.1.2015 Ex.OP5 and job card dated 11.2.2015 Ex.OP6 . As on the said visits, the complainant did not allow the opposite party to open the engine and to investigate the actual cause and he took the vehicle  back and filed the present complaint. Ld.counsel for the opposite party submitted that under these circumstances there is no deficiency of service on the part of the opposite parties qua the complainant.

9.       From the entire above discussion, we have come to the conclusion that complainant purchased vehicle Motorcycle Hero Passion  from opposite party No.1 manufactured by opposite party No.2, vide invoice dated  20.12.2014 for a sum of Rs. 49,471/-. The complainant submitted that he noticed noise from the engine of the vehicle in question, so he brought the matter to the notice of opposite party No.1 on various occasions for removing the noise from the engine. As per the record produced by the opposite party, the complainant brought the motorcycle to opposite party No.1 on 7.1.2015 vide job card Ex.OP3 for general service in which only engine oil of the vehicle was changed and the vehicle was returned to the complainant as fully functional. Thereafter the complainant brought the vehicle to opposite party No.1 on 19.1.2015 vide job card Ex.OP4 with complaint of engine noise. The defects in the vehicle were set right and was returned to the complainant . Again the complainant brought the vehicle in question to the opposite party No.1 vide job card dated 29.1.2015 Ex.OP1/5 with report of engine noise. Vehicle was repaired and handed over to the complainant. Lastly the complainant brought the motorcycle in question to opposite party No.1 on 11.2.2015 vide job card Ex.OP6 with complaint of “gear sound check, Tappet sound check and pick up check”. The motorcycle was required to be thoroughly investigated/checked up for  which the opposite party sought permission of the complainant to open the engine of the motorcycle to facilitate thorough investigation , which was, however, declined by the complainant to the opposite party and took back the motorcycle. The complainant also produced on record report from one Kuldip Singh of Bhollu Motorcycle Workshop dated 26.8.2015 Ex.C-13 which was proved by Kuldip Singh through his affidavit Ex.C-11 in which he stated that there is noise in crank and motorcycle consuming mobile oil due to ring piston. This witness was cross examined by the opposite party and during cross examination, this witness himself has admitted that there is no inherent/manufacturing defect in the vehicle of the complainant which is beyond repairs . Rather this witness admitted that the piston  of the motorcycle had seized due to the reason crank of motorcycle has been giving noise on account of dryness. The defect in the crank of the nature as involved in the motorcycle of the complainant, can be cured by repair of rod of the crank and by checking of the bearing of the crank. After setting right the crank, consumption of mobile oil comes to normal. All this fully proves that the defect in the motorcycle of the complainant is repairable. The motorcycle of the complainant  is within the warranty period as the warranty of this motorcycle is for 5 years. So the opposite parties are bound to repair the motorcycle of the complainant and make it fully functional without charging any amount from the complainant.

10.     Resultantly the present complaint is disposed of with the directions to the complainant to produce/ hand over the vehicle in question to opposite party No.1 at the earliest and the opposite parties are directed to repair the vehicle of the complainant and remove all the defects, if the crank of the vehicle is required to be changed, the same should be changed without charging any amount from the complainant, within one month from the date the complainant hands over the motorcycle in question to the opposite party No.1 and the opposite parties are directed to repair the vehicle of the complainant and make it fully functional to the satisfaction of the complainant. Opposite parties are also directed to pay litigation expenses Rs. 2000/- to the complainant. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

26.02.2016                                                           ( Bhupinder Singh )

President

/R/                                      (Anoop Sharma)               ( Kulwant Kaur Bajwa)

     Member                              Member