Shri A.K.Patra,President:

1. The captioned consumer complaint is filed by the complainant named above inter alia alleging deficiency in service & unfair trade practice on the part of the Ops for selling of defective motor cycle to the complainant.
2. The complainant seeks for the following reliefs:- (i) Direct the Opp.Parties to replace the present defect motor cycle of  the petitioners and  supply a new one to the petitioners, ii) direct the Ops to pay a sum of Rs.2,00,000/- as compensation for the mental agony and harassment,(iii) to declare the service of the Ops as deficient service  for not giving proper service  to the petitioner.(iv) to pass any other order(s) as this Hon’ble Commission may fell necessary and expedient in the interest of justice. 
3. The factual matrix leading to the case of the complainant as emerged from the case record is that, on 15.11.2022 the complainant No.1 has purchased a two wheeler namely “Glamour X Tec Drum Self Cast” vide Chassis No.MBLJAW218N9E02588, Engine No.JA07AFN9E0552 vide Registration No. OD 08 T 2327 from the OP 1    paying Rs.100342/- vide M.R. No.6128 dt.15.11.20222 which includes the cost of registration and insurance charges and other accessories. The subject vehicle is playing by her husband   Srikanta Nayak for moving business of Jewelry and earned their livelihood. It is alleged that from the date of its purchased, the subject vehicle was found defective  with starting problem and the accelerator does not work for which the Complainant  went to the  shop of No.1 but the OP 1 only  assured that,   the vehicle will run smoothly after running of the few  days but after running of few days also  the  complainant did not found any change in the vehicle  and hence she once again personally meet the OP 1 at his shop  and described about the problem  but the OP 1 failed to remove the defects for which the complainant suffered  mental and physical harassment due to false assurance of the OP 1.  On dt.12.12.2022 the first service of the vehicle was reported at OP 1 service center   but the alleged problem was not removed. The complainant approached the OP 1 time & again but the Manager of the Op 1 deliberately dishonored the complainant and the alleged problem of the vehicle is not yet removed. Hence, this complaint.
4. To substantiate his claim the complainant has filed the following documents (i) Copy of vehicle money receipt vide No.6128 dt.15.11.2022 (ii) copy of tax invoice No.11542BK2251556 dt.15.11.2022 (iii) Copy of Tax Invoice 5 Nos. bearing No.5064,5070,11542CK22P4047 respectively dt.15.11.2022 & O/C of the pleader’s notice vide letter No.32/2018 dt.21.12.2018&  11542CL22V8884 dt.12.12.2022 (iv) Copy of  Registration Certificate  vide No.OD08T 2327(v) Copy of Certificate cum insurance policy vide Policy No.P0023200001/4113/903613 dt.15.11.2022(vii) Vehicle service Job Card in the name of Rajeswari Nayak (viii) Copy of Aadhar Card of Rajeswari Nayak vide No.4948 0572 8870,(ix) Copy of postal article  tracking details dt.07.02.2023.The averments of the complaint petition are supported by an affidavit of complainant Rajeswari Naik is taken as evidence of the complainant in this case.
5. Being notice, the OP 1 appeared through their Learned Counsel Shri P.K.Bhoi but failed to file their written version as such the allegation against the Op 1 remain un-challenged.
6. The OP 2 appeared through Shri B.K.Acharya and filed their written version inter alia denying the petition allegations on all its material particulars.
7. The Op 2 submits that, the subject vehicle “Hero Glamour X Tec Drum Self Cast bearing Chassis No.MBLJAW218N9E02588,Engine No.JA067AFN9E0552 bearing Registration No.OD08T2327 was sold on 15.11.2022 by the OP 1 to the complainant no 1 .The vehicle was made  service  at the workshop of OP No.1 ondt.24.11.2022,dt.12.12.2022, dt.22.12.2022,dt.03.01.2023, dt. 27.02.2023 and dt.21.03.2023 and on every occasion the complainant received the vehicle to their satisfaction and signed on the job sheet. On dt.12.12.202 the complainant denied the replacement of certain products which are imperative to the smooth and unhindered usage of the motorcycle. The complainant did not bring the vehicle for periodic servicing which is mandatory for the smooth running of the vehicle and this irregular maintenance of the vehicle by the petitioner has led to defects in the running of the vehicles and cannot be remotely attributed as manufacturing defects. Apparently it is a case of destruction of the alleged vehicle due to neglect and ill handling on the part of the petitioner and at this juncture, the OP 2 has no role to pay.
8. The Op 2 to substantiate his claims , has filed the Job sheet with respect to the repairing of the subject vehicle marked as Annexure 1 series and further filed the details subject vehicle history  marked as Annexure 2 series of their written version . The written version is supported by an affidavit of one Sandip Das , the Senior Territory Manager ,Orissa of the Op 2 is taken as evidence of the Op 1 in this case .
9. Heard. Perused the material on record. We have our thoughtful consideration to the submission of rival parties.
10. After perusal of the complaint petition, written version and all the documents relied on by both the parties placed in the record, the points for consideration before the  Commission are :- (i) Whether the complainant is the consumer of the Ops ? (ii) Whether there is any deficient service & unfair trade practice on the part of Ops by selling a defective vehicle caused injuries to the complainant?   (iii) And whether the complainants are entitling for the relief(s) claimed?
11. As the Op.No.1 did not filed its counter though takes part in the hearing & argument .Hence doctrine of non –traverse squarely apply against the    OP no.1 .None of the allegations made by the complainant are ever disputed or traversed by the op .no.1 in any manner so all so Op no.1 has not produced any documents in contrary to the evidence adduced by the complainant, which in terms is a clear admission of the facts and the same need not be proved. 
12. It is proved on admission that, the complainant has purchased the subject vehicle from the Op 1 being manufactured by the  of 2 paying Rs.100342/- vide M.R. No.6128 dt.15.11.20222 which includes the cost of registration and insurance charges and other accessories. The vehicle was using by the complainant 2(two) namely Srikanta Nayak (the husband of the complainant 1)   for moving business of Jewelry and earned their livelihood as such we are of the opinion that the complainants are the consumer of the Ops.
13.  The  Op 2 (two) contended that , the complainant did not bring the vehicle for periodic servicing which is mandatory for the smooth running of the vehicle and this irregular maintenance of the vehicle by the petitioner has led to defects in the running of the vehicles and cannot be remotely  attributed as manufacturing defects contrary to his own version as it is  proved from the undisputed job sheet and history of the subject vehicle vide Annexure 1 series & Annexure 2 series placed on the record along with their  written version .
14. It is seen that the vehicle was made service at the workshop of OP No.1 time & again on dt.24.11.2022, dt.12.12.2022, dt.22.12.2022, dt.03.01.2023, dt.27.02.2023 and dt.21.03.2023 with the same complaint of starting problems of the vehicle along with other problems though on every occasion the complainant received the vehicle to his satisfaction for the time being and signed on the job sheet as a mere formality. It is seen that, the problems with the newly purchased vehicle  over come for a few days but arose  again &   again which clearly proved the inherent manufacturing defects there in the subject vehicle need no export opinion to proved the same., certainly frustrated the very purpose of purchasing of the subject vehicle
15. The complainants have purchased  the  subject vehicle  for their  personal use  by paying consideration price of Rs.100342/- vide M.R. No.6128 dt.15.11.20222 is proved but  they could not able to use it due to defects arose soon after the purchased of the said goods/vehicle .The wish of enjoyment of the  product  defeated as the OPs failed to  vehicle provide “ after sale service”  which amounts to deficiency in service under  Sec. 2(11) & unfair trade practice under Section 2(47) of C.C Act 2019 on the part of the O.ps  certainly caused financial loss and mental agony to the complainant need to be compensated .
16. Here it is observed  that,  the OPs have failed to restored  its normal functioning of the alleged goods/vehicle  for which the complainant suffered financial hardship & mental agony and finding no other option the complainant approached this Commission for redressal of his grievance .The complaint is found to be in time and well within the jurisdiction of this Honorable Commission. 
17. Hence, in view of the aforesaid discussion, we may conclude that, both the  opposite parties are deficient in their service & performed unfair trade practice by manufacturing & selling of defective vehicle to the complainants caused financial loss & mental agony to the complainant need to be compensated .As such, a new vehicle  of the same model with fresh warranty is to be replaced without charging any extra amount to the complainant or else the Ops are liable to refund the amount of the product i.e Rs.100342/ (which include the registration & insurance of the subject  vehicle ) with interest so also the Ops are liable to pay compensation for mental   along with cost of this litigation to the complainant. In the result, this complaint is allowed in part on contest against the Ops with the following directions:-

ORDER

          The Opposite Party No. 1(one) is here by directed to  replace  the  subject vehicle   with a new one of the same model with fresh warranty to the complainant without charging any extra amount within four weeks from the date of receiving of this order   or in alternative pay back the sale price of the product/vehicle  i.e Rs Rs.1,00,342/ with interest @ 9% per annum    from the date of filing of this complaint i.e.02.03.2023  till its actual payment and further to pay monetary  compensation of Rs.25,000/- ,which include litigation  cost, to the complainant

         The Op No 1(one) is at liberty to get reimbursed of the said awarded amount from the Op 2(two) on his own cost.

           It is further directed to comply the aforesaid order within four weeks from the date of receipt of a copy of this order falling which the OPs shall jointly be liable to pay Rs.500/-(five) each per day as delayed compensation to the complainant till compliance of this order .

Dictated and corrected by me.

 Sd/-        

President

                   I agree.

   Sd/-                             

Member

   Pronounced, in the open forum today on this    day of 8^th November 2023 under the seal and signature of this Commission. The pending application if any is also disposed off accordingly.

   Free copy of this order be supplied to the parties for their perusal or party may download the same from the Confonet be treated as copy served to the parties. Complaint is disposed of accordingly. Order accordingly.