BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                               Consumer Complaint No. : 143 of 07.11.2014

                                 Date of decision               : 17.04.2015

Anil Kumar, aged about 38 years, son of Sh. Inderjeet, resident of House No.1145, Gugga Mari, Rupnagar, Tehsil & District Rupnagar.

                                                                                      ......Complainant

                                             Versus

1. The Ladian Motors, Village Kherabad, Bela Road, Rupnagar, Tehsil &

    District Rupnagar through its Prop.

2. The Customer Service Head, Hero Moto Corp Limited 34, Community

    Centre, Basant Lok, Basant Vihar, New Delhi 110057.

                                                                                 ....Opposite Parties

                                        Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SMT. SHAVINDER KAUR, MEMBER

ARGUED BY

Sh. Devinder Pal Singh, Advocate, counsel for complainant

Sh. Gurpreet Singh, Advocate, counsel for the Opposite Party No.1

Sh. Sumit Pasricha, Advocate, counsel for Opposite Party No.2

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Anil Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’ only) praying for the following reliefs:-

i)       To rectify the fault occurred in the motor cycle,

ii)      To pay Rs. 20,000/- as damages for harassment alongwith interest @ 18% P.A. from 17.04.2013 till realization,

iii)     To pay Rs.15,000/- as litigation expenses.

2.                 In brief, the case of the complainant is that on 17.04.2013, he had purchased one motorcycle, Hero Splendor Pro, bearing registration No. PB-12-T-0708 for carrying his business items from here & there, but it is not working properly. After two months of its purchase, the said motor cycle started giving problem, as its fuel gage became out of order. Within one year of its purchase, the motorcycle in question had started emitting smoke. He had visited the O.P. No.1 many times personally and also contacted it telephonically and requested to rectify the said faults, but to no use, because the said O.P. is putting off the matter on one pretext or the other and has not rectified the fault in it. It is further stated that the O.P. No.1 had received Rs.1407/-  as premium for the insurance of the said motorcycle, but had issued receipt only for a sum of Rs.1357/- (i.e. for lesser amount of Rs.50/-) wrongly. He had purchased the motorcycle in question for his convenience, but due to fault in it, he has faced a great hardship and suffered loss in his business. He has also served a legal notice upon the O.Ps. through his counsel on 16.9.2014, but the O.P. No. 1 has given a vague reply to the same. The O.Ps. are, thus, deficient in rendering service and have adopted unfair trade practice. Hence, this complaint.

 3.                On being put to notice, the O.P. No.1 filed written statement in the shape of affidavit of Sh. Ravinder Kumar, authorized signatory, taking preliminary objections; that the complainant has not come to the Forum with clean hands, therefore, the complaint is liable to be dismissed with costs; that the complaint is not maintainable in the present form; that the complainant has no cause of action and no locus standi to file the present complaint; that the intricate and contentious questions of facts and law, involved in the present complaint, require extrinsic, oral & voluminous documentary evidence, which is not possible in summary proceedings; that the complainant is guilty of suppressio very and has concealed the material facts from this Forum and he cannot claim benefits of his own wrongs; that the complaint is misconceived & frivolous and has been filed with ulterior motives to extract money from the answering  O.P.; that the vehicle in question is free from any manufacturing defect and that there is no deficiency in service on the part of the answering O.P. It is stated that the preliminary objections are of vital nature and go to the very root of the complaint, therefore, the same may be decided first. On merits, it is admitted that the complainant had purchased the motor cycle in question from the answering O.P. It is stated that the motor cycle in question, being manufactured by O.P. No.1, is designed for transportation of two persons (one driver & one pillion rider) and not for carrying heavy goods and it has a limited warranty. It is specifically mentioned in the service book of the motorcycle that –‘It is mandatory to avail all free and paid services as per the recommended schedule to be eligible for the warranty benefits’. It is denied that the motor cycle was purchased by the complainant for carrying on business activities. Even the Registration Certificate of the said motorcycle shows that it is having a seating capacity of two persons and it is nowhere mentioned in it that the motorcycle can be used for carrying goods. It is further stated that the complainant has failed to get the motorcycle serviced as per the recommended schedule. As & when the motor cycle of the complainant came to the workshop of the answering O.P., the experienced staff of the workshop had properly attended it and rectified the problem, if any, to the satisfaction of the complainant. The motor cycle of the complainant is free from any manufacturing defect and there has been no deficiency in service on the part of the answering O.P. The prayer made in the complaint is wrong, illegal and unsustainable. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with heavy costs.

4.                The O.P. No.2 filed separate written statement taking preliminary objections; that the present complaint is liable to be dismissed qua the answering O.P. on the sole ground that the complainant has himself admitted that the motor cycle in question is being used by him to carry plastic bottles of Medicine, which is not, what a two wheeler is required to carry and the only pay load for the said two wheeler is certified to carry one driver + one passenger, therefore, the same is being used in gross violation of the manufacturer’s warranty, the relevant portion of which states as under:

“THE WARRANTY SHALL NOT APPLY—

(5) If splendor Pro motor cycle has been used in any competitive events like races or allies or for any commercial purposes as taxi etc.”

In the present case, the complainant himself admits that he is using the motorcycle in question for supplying plastic bottles of medicine in Ropar and other places, meaning thereby that the vehicle is being used as a goods carrier, due to which the warranty stands void; that the warranty is a binding contract between the complainant, on the one hand, and the O.Ps., on the other hand, and its terms cannot be violated to the prejudice of the warrantor; that as per the terms and conditions of the warranty offered by the answering O.P., no relief, as prayed for in the instant case, is permissible under the aegis of the Manufacturer’s Warranty, therefore, the present complaint is also liable to be dismissed qua the answering O.P. No.2, being the manufacturer of the motor cycle in question, on this sole ground, because the only obligation of the answering O.P., being the manufacturer of the motor cycle in question, is enshrined as under :-

“(c) If a defect is observed in Splendor Pro motor cycle, Hero MotoCorp’s only obligation/liability is to repair or replace those part/parts which is/are considered to be the cause of such defect, provided however that such defect has not resulted due to misuse/improper handling etc of that motor cycle.”

That as per the contractual obligations cast upon the manufacturer of the motorcycle vide the terms of the warranty; the only obligation of the answering O.P. is to cause repair/replacement of those parts, which are found defective per their best judgment and the same is subject to the factum of the cause not having emanated from either (a) Misuse or ( b) improper handling. The law on this point has been laid down by the Hon’ble Apex Court in the case, ‘Maruti Udyog Limited Vs. Susheel Kumar Gabgotra and Anr.’, I (2006) CPJ 3 (SC), wherein it has been held that an order for any relief, outside the terms and conditions of the Manufacturer’s Warranty cannot be sustained.

          On merits, it is admitted that the complainant had purchased the motor cycle in question from the O.P. No.1. It is stated that as per the Job Card dated 29.5.2014, the fuel assembly of the motorcycle in question was changed free of cost and thereafter, the complainant had not reported any such problem with the fuel gauge. He had never approached the answering O.P. for repair of his motorcycle. The O.P. No.1 in its reply filed has clarified the entire sequence of events and has stated the true facts. It is further stated that the contents of the preliminary objections may be read as part and parcel of the reply on merits also. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, against the answering O.P., with heavy costs.

5.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1 and closed the evidence. On the other hand, Sh. Ravinder Kumar, authorized signatory of the O.P. No. 1 tendered his affidavit Ex.OP-1/1 and photocopies of documents Ex.OP1/2 & Ex.OP1/3 and closed the evidence whereas the learned counsel for the O.P. No. tendered affidavit of Sh. Abhay Kumar, Senior Area Service Manager Ex.OP-2/1 and photocopies of documents Ex.OP2/2 to Ex.OP2/9 and closed the evidence.

6.                We have heard the learned counsel for the parties and gone through the record of the file, including the written arguments filed on behalf of the O.P. No. 2, carefully.

7.                The learned counsel for the complainant submitted that the complainant is carrying on the business of supplying of plastic bottles of medicines for earning his livelihood. For carrying on the plastic bottles here & there, on 17.4.2013, he purchased the motorcycle in question from the O.P. No.1, but after two months of its purchase, its fuel gage became out of order and it had also started giving heavy smoke within one year. But the said defects could not be removed inspite of his several visits to the O.P. No.1. Not only this, the O.P. No.1 had received a sum of Rs.1407/- as premium for getting the said motorcycle insured, but had issued receipt for the same in the sum of Rs.1357/- only. The O.Ps. are, thus, deficient in rendering service and they be directed to rectify the faults occurred in the motorcycle and also to pay compensation for mental agony & physical harassment caused to him alongwith interest and litigation expenses.

8.                The learned counsel for the O.P. No.1 submitted that the O.P. No. 1 had sold the motorcycle in question to the complainant. The said motorcycle has been manufactured & designed by the O.P. No. 2, for transportation of two persons only i.e. one driver and one pillion rider and not for carrying heavy goods. Every motorcycle is having a limited warranty and to avail the benefits of the warranty, one has to avail all the free & paid services, as per the schedule, but the complainant had failed to get the motorcycle serviced, as per the said schedule. Whenever, the complainant had approached the answering O.P., its engineer attended the motorcycle properly and rectified the problem to the satisfaction of the complainant. The complainant has failed to prove that the motorcycle in question suffers from any defect, therefore, the complaint is liable to be dismissed.

9.                The learned counsel for the O.P. No. 2 submitted that the motorcycle manufactured by the O.P. No.2 is meant for transportation of two persons only i.e. one driver and one pillion rider and not for carrying goods. Since the complainant had misused the said motorcycle, the warranty has become void. He further submitted that the fuel assembly of the motorcycle was changed free of cost, the same is evident from Job Card dated 29.5.2014 (Ex. OP2/7). Thereafter, the complainant never complained about the same. Since the motorcycle was within warranty upto 16.4.2015, (i.e. for a period of 2 years or 30000 KMs. of use, from the date of its purchase, whichever is earlier) and the complainant is well within his right to approach any of its dealers/SSPs, for rectification of the genuine problem, if any, free of cost. Although the complainant has alleged that the defects in the motorcycle have not been rectified, but to prove this fact he has not produced any expert report, therefore, the complaint being without any merit, is liable to be dismissed with costs.

10.              Admittedly, on 17.4.2013, the complainant had purchased the motorcycle in question, from O.P. No.1, manufactured by O.P. No.2, and it bears warranty of 2 years or 30000 KMs. of use, whichever is earlier, from the date of its purchase, as is evident from Warranty document Ex.OP2/8. The O.Ps. have placed on record copies of various Job Cards. Perusal of the same reveals that the defect(s), found in the said motorcycle, were removed by the O.Ps., as per warranty terms & conditions. In support of his allegation that the motorcycle in question still suffers from defect(s), the complainant has only placed on record his affidavit, which is not supported by any document. Moreover, he has not produced any report of expert in the field of automobiles, thus, in the absence of any cogent & convincing evidence, it cannot be concluded that the motorcycle in question still suffers from defect(s) or that there has been any deficiency in service on the part of the O.Ps. Admittedly, the motorcycle in question is still within warranty and the O.Ps. are ready to provide requisite services as per the warranty, therefore, the complainant can approach the O.P. No.1 for rectification of the defect(s), if any, in the said motorcycle.

11.              In view of the above discussion, we dismiss the instant complaint, leaving the parties to bear their own costs. The complainant is at liberty to approach the O.P. No.1 for rectification of the defect(s), if any, in the said motorcycle, as per terms & conditions of the warranty.

12.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to the Record Room.

ANNOUNCED                                                                       (NEENA SANDHU)

Dated 17.04.2015                                        PRESIDENT

                                                (SHAVINDER KAUR)

                                                                     MEMBER.