DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.315 of 2018
Date of institution: 16.03.2018 Date of decision : 30.07.2019
Harish Kumar Bansal son of Late Shri Kedar Nath Bansal, resident of House No.763, 1st Floor, Sector 22-A, Chandigarh.
Presently residing at House No.258, Phase I, Jarnail Enclave, Bhabat Road, Zirakpur, District Mohali 140603
…….Complainant
Versus
1. The Managing Director, Hero Moto Corp Limited, Corporate & Registered Office 34, Community Center, Basant Lok, Vasant Vihar, New Delhi 110057.
2. The Charisma Authorised Dealer, Hero Moto Corp Limited, SCO No.69-71, Near Oasis Banquet Opp. J.P. Hospital, Zirakpur, District Mohali Punjab 140603 through its Owner/Partner/Proprietor.
3. Owner/Partner/Proprietor Charisma Authorised Dealer, Hero Moto Corp Limited, SCO No.69-71, Near Oasis Banquet Opp. J.P. Hospital, Zirakpur, District Mohali Punjab 140603
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Mrs. Natasha Chopra, Member.
Present: Complainant in person with counsel Shri APS Rana.
Shri Simranjit Singh Sidhu, counsel for OP No.1
Shri Gaurav Bhardwaj, counsel for OP No.2 and 3.
Order by :- Shri G.K. Dhir, President.
Order
Complainant in January, 2018 after making arrangements for bank loan purchased Maestro Edge, VX Deep Blue Grey two wheeler from OP No.2 and 3 by paying sale consideration amount of Rs.54,462/- through demand draft dated 30.12.2017. This vehicle was purchased by complainant for convenience of his daughter-in- law who got employment as Data Entry Operator. This vehicle was purchased on 01.01.2018. Copies of loan demand draft disbursement letter in favour of OP No.2 alongwith copy of insurance cover note and temporary registration certificate are produced with the complaint. Within an hour of receipt of delivery of the vehicle, same started giving problems because the fuel meter was not showing any fuel. So the vehicle was brought to OPs at about 5.30 P.M. on the date of purchase itself. As complaint of complainant was found genuine by employees of OPs and as such the vehicle was repaired and handed back to complainant at 6.15 P.M. on 01.01.2018. Again on 10.01.2018, two wheeler gave same problem regarding fuel meter and same was brought to workshop, where after checking and repair, the same returned back to complainant after 3-4 hours, but after preparing job card. On 13.01.2018 the vehicle started creating problems in start and ignition because despite kicking for more than half an hour, vehicle could not be started. Ultimately complainant was forced to hire rickshaw for taking the vehicle to workshop of OPs. After repair, the vehicle was returned to complainant in the evening. It is claimed that when the vehicle was returned back to complainant on 01.01.2018, then there were scratches on wind screen which were noticed by complainant after few hours and those were brought to the notice of OPs. Scratched wind screen was also replaced by OPs on 13.01.2018 only. It is claimed that said breakage of wind screen took place because of fault of officials of OPs. As the problems still persisted and as such complainant was forced to take the vehicle again to OPs on 23.01.2018. After checking vehicle, persons at the workshop replaced the battery and thereafter handed over vehicle to complainant after about 8/9 hours. Again on 27.01.2018, vehicle had to be brought to workshop of OPs for same faced problems alongwith other problems. Officials of Ops claimed that they will get the vehicle checked from senior engineers of manufacturing section and as such complainant can get the vehicle after 3-4 days. On 30.01.2018 complainant visited OPs for getting back the vehicle, but he was disclosed that vehicle had been sent for checking to Chandigarh. Copy of job card dated 27.01.2018 also produced with the complaint. Taking of vehicle to workshop of OPs time and again caused immense harassment, mental agony and loss of valuable time of complainant. On 30.01.2018 complainant disclosed OPs that he will not take back the defective vehicle because he is seeking for refund of sale consideration amount alongwith amount incurred on accessories of vehicle and registration charges etc. Complainant claims to have faced difficulty in a span of less than one month due to multiple problems/defects and that is why after serving notice dated 01.02.2018, this complaint filed for refund of price amount alongwith financial loss of Rs.5,000/- as transportation/freight charges for taking the vehicle to workshop of OPs. Compensation for financial loss of Rs.50,000/- and compensation for mental agony and harassment of Rs.50,000/- more claimed alongwith interest @ 18% per annum. Rs.25,000/- on account of litigation expenses also claimed. Though complainant was called upon on 02.02.2018 to pick up the vehicle by sending letter, but complainant immediately replied to that letter. Complainant send reminder on 16.02.2018 for calling upon OPs to refund entire cost of vehicle. OP No.1 is manufacturer of vehicle in question.
2. In reply filed by OP No.1 it is claimed that OP No.2 is authorised registered dealer/retailer of the products manufactured by OP No.1. Complainant purchased the alleged defective vehicle from OP No.2 and OP No.3 and as such there is no privity of contract between complainant and OP No.1. OP No.1 Company has achieved coveted position of being largest two wheeler manufacturing Company in India. Present complaint alleged to be misconceived one, more so when the same filed by suppressing material facts. No cause of action alleged to have accrued to complainant against OP No.1. Moreover, copy of complaint supplied by complainant has not been sworn by him and as such in view of frivolous and capricious allegations, prayer made for dismissal of complaint by claiming that same is frivolous and vexatious. Alleged defects pointed out by complainant have been duly removed by OP No.2. Complainant has failed to prove by way of any document that the two wheeler still has problems/defects persisting in it. Proper servicing of two wheeler is essential for efficient working of its engine and as such complainant is required to keep the two wheeler in a fit and running state. As complainant himself failed to take care of important facts by abstaining from getting proper servicing of vehicle done and as such he is not entitled to any relief. No report of expert produced to show manufacturing defect. It is claimed that vehicle in question was inspected and duly serviced on 5 different occasions namely 01.01.2018, 10.01.2018, 13.01.2018, 23.01.2018 and 27.01.2018. There were no irreparable defects found on these dates, but complainant by getting undue advantage of his position, has filed this complaint for unlawful enrichment. Though there is no defect in the vehicle, but despite that replacement of vehicle is sought. Complainant took delivery of vehicle without protest after thorough inspection and due satisfaction. Minor tuning problems were duly taken care of by service team of OP No.2. There was slight defect in the fuel meter found on 01.01.2018 and on 10.01.2018 and that is why replacement of fuel meter done free of cost for ensuring that complainant does not face problem. It is claimed that OPs remained bonafide and loyal towards its customers including complainant. Due care of starting problem in the vehicle, pointed out on 13.01.2018, was taken by OP No.2 by replacing the relevant parts and removing the minor defects. Scratches on wind screen occurred due to carelessness and irresponsible driving of vehicle by complainant, but despite that said wind screen was replaced by OP No.2 for keeping complainant happy. Even OP No.2 on 23.01.2018 replaced battery free of cost for rendering satisfactory services to complainant. Minor defects, which can be rectified by way of replacement of parts cannot be termed as manufacturing defect as per cited legal position in the written statement. By denying other averments of the complaint, payer made for dismissal of the complaint.
3. In separate joint reply submitted by OP No.2 and 3, it is claimed that no cause of action disclosed by complainant against answering OPs, more so when complainant himself is refusing to receive back the vehicle from OP No.2 and 3 despite issue of letter and reminder by them to complainant. It is claimed that the vehicle is free of defects and is ready for delivery w.e.f. 30.01.2018. Decision to not to receive the scooter back by complainant shows that he is merely propelling the present litigation. As per terms and conditions of warranty issued by manufacturer i.e. OP No.1, OP No.2 and 3 to carry such repairs as are required either by replacement of defective parts or by curing those defects. Refund of price is forbidden by terms and conditions of warranty. Admittedly vehicle in question was purchased by complainant on 01.01.2018 after contracting loan. Fuel gauge was found inaccurate and that is why replacement of same with brand new fuel gauge took place on 01.01.2018 as per terms and conditions of warranty. Repair of vehicle on 10.01.2018, 13.01.2018, 23.01.2018 and 27.01.2018 are admitted facts by claiming that the vehicle was returned to complainant after due checking/replacement and alignment as per terms and conditions of warranty. Lastly when the vehicle was brought with the alleged starting problem on 27.01.2018, then same was found in OK condition by engineers of the manufacturer. Though due intimation was given to complainant in that respect with request to take back the scooter from premises of OP No.2 and 3 vide letter dated 01.02.2018, but complainant instead of picking up the same has filed this complaint. Replacement of battery free of cost also was done. There is no occasion with answering OPs to indulge in any acts of omission and commission, as alleged. Other allegations of the complaint denied.
4. Complainant in order to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-16 and thereafter his counsel closed evidence. On the other hand counsel for OP No.2 and 3 tendered in evidence affidavit Ex.OP-2/1 of Shri Rakesh Kumar alongwith documents Ex.OP-2/2 and Ex.OP-2/3 and thereafter closed evidence. Counsel for OP No.1 tendered in evidence affidavit Ex.OP-1/1 of Shri Manish Syal, authorised representative of OP No.1 and thereafter closed evidence.
5. Written arguments not submitted by any of the parties. Oral arguments heard and records gone through.
6. From perusal of pleadings of parties and documents Ex.C-1 and Ex.C-2 it is made out that complainant purchased vehicle in question from OP No.2 and 3 after contracting loan from Bank of Maharashtra, who had issued demand draft of Rs.54,462/- in favour of concerned OPs for full payment of cost of the vehicle. This vehicle was purchased on 01.01.2018 through invoice Ex.C-2 and thereafter temporary registration certificate Ex.C-3 and insurance cover note Ex.C-4 as well as permanent registration certificate Ex.C-5 of this vehicle were obtained by complainant. So certainly complainant is owner of the vehicle purchased by him from OP No.2 and 3. It is admitted by concerned OPs that OP No.1 is manufacturer of this vehicle and as such services as per terms and conditions of warranty to be provided by OP No.1 through OP No.2 and 3.
7. From contents of Ex.C-6 as well as vehicle history card Ex.OP-2/2 it is made out that complainant on 01.01.2018 itself reported about problem of fuel gauge not working and as such this problem virtually was reported just within few hours after purchase of vehicle on the same day itself. Replacement of fuel gauge done on the same day as per contents of Ex.C-6 and as such virtually due services in that respect rendered by concerned OPs.
8. Perusal of Ex.C-7 alongwith contents of vehicle history card Ex.OP-2/2 further establishes that this vehicle was again taken to OP No.2 and 3 on 10.01.2018 for the problem of misfiring or of non start. General repair was done on the customer request of misfiring as per these documents and thereafter vehicle admittedly was returned to complainant on same day itself. However, through Ex.C-7 itself complaining again claimed as if the fuel gauge meter showing less fuel in the tank and as such it is obvious that problem of fuel gauge meter again reported by complainant on 10.01.2018. So in view of this it is obvious that OPs tried to remove the problem of fuel gauge meter reading.
9. Again the vehicle was taken by complainant to OPs on 13.01.2018 as revealed by job sheet Ex.C-8 and contents of Ex.OP-2/2. This time problem of starting was reported and in the closure action report prepared by officials of OP No.2, it is mentioned that wind screen had been replaced and as such due services at this time even were rendered by concerned OPs. Contents of job sheet Ex.C-9 dated 23.01.2018 alongwith corresponding entry in Ex.OP-2/2 establishes that vehicle was again brought to OP No.2 and OP No.3 because there was starting problem and the battery was not working. This battery was replaced and carburator was cleaned as per follow up action recorded in Ex.C-9. OP No.2 again on 25.01.2018 did the general repair on customer request, is a fact borne from vehicle history card Ex.OP-2/2. However, mention of repair being got done on 25.01.2018 is not at all made in the complaint or in the supporting affidavit and as such OP No.2 and 3 have tried to record true facts regarding repairs being done on 25.01.2018 also. Again on 27.01.2018 vehicle was taken to OP No.2 for removal of problem of non starting and battery and mention of same made in Ex.OP-2/2. This vehicle was delivered to OP No.2 and 3 on 27.01.2018 through receipt Ex.C-10 by complainant and delivery of same has not been taken back by complainant because the problem of non starting and battery was still persisting on 30.01.2018 as disclosed by contents of Ex.C-11 and the corresponding entry in Ex.OP-2/2 as well as pleading in the written reply of OPs. However, contents of Ex.C-11 establishes that the vehicle was taken to Chandigarh for checking up and as such it is obvious that OP No.2 and 3 tried to do their best for removal of defects either by replacing the concerned parts or by removing the defects to the best of their ability. Had OP No.2 and 3 were having any malafide intention in not rendering due services, then they would not have replaced the wind screen, even though as per them, breakage of wind screen took place due to negligent driving of vehicle by complainant. Besides replacement of battery free of costs was done and as such OPs tried to render due services to complainant, but complainant had to take the vehicle time and again to OP No.2 and 3 and as such it was but natural for him to suspect as if there is manufacturing defect in the vehicle, due to which problems are erupting time and again. However, suspicion arisen in the mind of layman regarding manufacturing defect cannot assume the shape of actual manufacturing defect because manufacturing defect has to be established by producing report of expert. No such report of mechanic/expert has been produced by complainant and as such keeping in view the law laid down in case of Tata Engineering & Locomotive Co. Ltd. Vs. M. Moosa, (1994) 2 CTJ 1046 it has to be held that even if there may be numerous defects, despite that inference of manufacturing defect cannot be drawn, more so when those defects had been removed by OP No.2 and 3 on different intervals. Manufacturing defect can be proved by leading cogent evidence of an expert as provided by Section 13 (1) (c) of Consumer Protection Act and as per proposition of law laid down in case Classic Automobiles Vs. Nand Mishra & Anr. 2010 (I) CPJ 235 (NC). However, report of mechanic or of expert in the line has not been produced by complainant and as such even if complainant may have to take the vehicle to OP No.2 and 3 on above referred occasion, despite that inference of manufacturing defect cannot be drawn.
10. As per terms and conditions of warranty, copy of which is produced on record Ex.OP-2/3 the customer must avail free and paid services through authorised workshop, so as to keep the vehicle in efficient running condition. If any defect is observed in the vehicle, then liability of replacement of defective parts or of removing the problems remains of manufacturer through its dealers, provided defects has not surfaced due to misuse or improper handling of vehicle. Refund of price is not warranted by terms and conditions of warranty is the fact borne from perusal of contents of Ex.OP-2/3 itself. As defects have been alleged to be removed and that is why claim of OPs is that vehicle is in perfect condition now, but complainant has not turned up for collecting the vehicle, and as such fault lay with complainant in that respect also. As complainant had to take the vehicle many times to OPs for removal of defects/problems of battery charging or of fuel gauge meter, which must not have surfaced immediately after few hours/days of purchase, and as such it is obvious that complainant suffered lot of mental agony and harassment. Replacement of vehicle in question is not required, but replacement of defective parts or of battery required for making the vehicle fully defect free. OPs must replace the defective parts free of cost for rendering the vehicle in question, fully defect free. After rendering this vehicle fully defect free, OPs will inform complainant in writing by mentioning date and place, wherefrom complainant can recover or take delivery of vehicle. As complainant had to take the vehicle for more than 5 times and as such he is entitled for compensation for mental agony and harassment of Rs.20,000/- and also to litigation expenses of Rs.10,000/- more. For ensuring that these amounts are paid within specified time frame, it is ordered that in case payment of these amounts not made within 30 days of receipt of free certified copy of the order, then complainant will be entitled to interest on these amount @ 7% per annum from today till recovery.
11. Shri Simranjit Singh Sidhu, counsel for OP No.1 vehemently argued that free of cost services have been rendered for removing defects through service engineers by OP No.1 and as such complaint is misconceived. These submissions have no force because no one will file a false complaint like this, more so when he has to take the vehicle for removal of defects for more than 5 occasions to the workshop immediately after its purchase and within span of 30 days. Even if OP No.2 and 3 may have sent letter to complainant for calling upon him to take delivery of vehicle, despite that satisfaction of complainant is essential to the effect that vehicle is defect free. It was responsibility of OP No.2 and 3 to make the vehicle defect free and as such submission advanced by counsel for OP No.2 and 3 has no force that fault lays with complainant in not collecting the vehicle, even though intimation of due repair of the vehicle has been sent to him. Complainant has not claimed about over charging, but his grievance is that despite services rendered on more than 5 occasions, defects persists and as such certainly OP No.2 and 3 liable to rectify the defects as per terms and conditions of warranty, as discussed in detail above.
12. No other worth mentioning point argued.
13. As a sequel of above discussion, complaint allowed with direction to OPs to hand over the duly repaired Maestro Edge VX vehicle, free of cost to complainant within 15 days from date of receipt of copy of the order. In case replacement of any defective part or battery required, then replacement of those parts will be done by the OPs free of cost for rendering the vehicle in question fully defect free. On rendering the vehicle in question fully defect free, OPs will inform the complainant in writing by mentioning the date and place, wherefrom the complainant can recover/take delivery of the vehicle from the OPs. Compensation for mental agony and harassment of Rs.20,000/- and litigation expenses of Rs.10,000/- more allowed in favor of the complainant and against the OPs. Payment of these amounts of compensation and litigation cost be made within 30 days from date of receipt of certified copy of order, failing which the complainant will be entitled to interest on these amounts of compensation and litigation expenses @ 7% per annum from today till recovery. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
July 30, 2019
(G.K. Dhir)
President
(Mrs. Natasha Chopra)
Member
