Haryana

Ambala

CC/66/2020

Harvinder Singh - Complainant(s)

Versus

Dhruv Automobiles - Opp.Party(s)

Rajiv Sachdeva

09 May 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	66 of 2020
Date of Institution	:	04.03.2020
Date of decision	:	09.05.2023

Harvinder Singh aged about 40 years s/o Shri Jit Singh, R/o Village Dhanauri, Post Office-Dhanora, Tehsil Barara, District Ambala.

……. Complainant

versus

 

1. Dhruv Automobiles, Plot No.2028, Abadi Kripa Nagar, Ambala City, through Authorized Signatory.
2. Hero Moto Corp. Limited, 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110 057 (India), through its' Authorized Signatory.

 

….…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Rajiv Sachdeva, Advocate, counsel for the complainant.

                    Shri Dinesh Sharma, Advocate, counsel for the OPs.

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

(i) To replace the Hero Splendor+135 Motor Cycle bearing Registration No.HR-54E-8615 or to return the cost of the same, to the complainant alongwith interest @ 18% p.a. from the date of purchase i.e. from 01.10.2019, till the date of payment.

(ii) To pay Rs.1,00,000/-, on account of compensation for causing deficiency in service and unfair trade-practice, harassment, mental torture and agony and damages.

(iii) To pay cost of litigation; and,

(iv) Grant any other relief which this Commission may deems fit.

2.             Brief facts of the case are that the complainant is an Ex-Serviceman and wanted to purchase a Hero Splendor Motor Cycle. OP No.1 induced him to buy Hero Splendor+135 Motor Cycle and agreed to sell the same through CSD Canteen. Resultantly,  the complainant purchased a Hero Splendor +135 Motor Cycle bearing Engine No.HA10AGKHHF2212, Chassis No.MBLHAW085KHH66354, Model-August 2019, from OP No.1 for a total sale consideration of Rs.48,018/-. Besides the said amount, OP No.1 also charged Rs.8,210/- on account of comprehensive Insurance Charges for 05 years from ICICI Lombard General Insurance Company Limited having validity with effect from 01.10.2019 to 30.09.2024 over and above the amount of Rs.3,570/- on account of preparing Registration Certificate of the said Motor Cycle of the complainant; Rs.100/- on account of number plate and Rs.800/- as Assy. In this manner, the OP No.1 charged the total sum of Rs.60,698/- from the complainant in respect of the motorcycle in question.  Registration Certificate of the aforesaid Motor Cycle was prepared having Registration No.HR-54E-8615. However, after few days of its use, the motorcycle in question started giving problem i.e. Engine Leakage Problem; starting problem and the engine used to seize on the way.. Since the Engine was found to be loose; consequently the complainant got the engine nut changed from Rakhi Hero Automobiles, Barara, District Ambala. Despite changing the engine nut of the Motor Cycle, there was no solution of Engine Leakage and problem continued. Under the constrained circumstances, the complainant apprised OP No.1 in the matter. Initially, OP No.1 postponed the complaints of the complainant by making excuses on one pretext or the other. However, even at the time of first and second service, the defect in the engine persisted.  On 26.02.2020, the complainant went to OP No.1 alongwith the motor cycle with the complaint of oil leakage problem from engine joint but it failed to rectify the same. Rather, it got the Job Card of service issued to the complainant on 26.02.2020 but did not remove the defect of the oil leakage from Engine Joint of the Motor Cycle and on the other hand, very cleverly issued Job Card of Service. When the defect in the engine of the motorcycle could not be removed by OP No.1, the complainant requested OP No.1 to replace the defective motorcycle with a new one, as it was suffering from manufacturing defect but it flatly refused to do so. Request made to the OPs, for redressal of his grievance did not yield any result. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed its written version wherein it  raised preliminary objections to the effect that the present Complaint is misconceived and untenable; the Complainant has not come to this Commission with clean hands and has intentionally and deliberately suppressed material facts; the Complainant intentionally with malafide intention did not make "Rekhi Hero Automobile, Barara, District Ambala" as party to the Complaint etc. On merits, it has been stated that the vehicle is made of various components which are assembled in such a way, which can be easily replaced in any manner affecting the performance of the vehicle. The alleged problem is not of nature which can't be removed or termed as manufacturing defect in a vehicle. Therefore, demanding replacement of vehicle or cost of used vehicle is not legally tenable. As per the warranty policy they said vehicle is warranted for 5 years or 70000 K.M, whichever is earliest. The vehicle manufactured by OP-2 comes with warranty only and the Company does not provide replacement guarantee with their vehicles. The OPs and Complainant are bound by the terms and conditions of the warranty policy. It is evident from the vehicle history the Complainant visited "Rekht Hero Automobiles, Barara" for availing free service & one time for check-up only and visited OP-1 first time on 12.02.2020 with problem of misfiring of engine and for second time on 26.02.2020 for engine oil leakage. The Complainant never reported alleged problem to "Rekhi Hero Automobiles, Barara" and engine oil leakage problem was for very first time reported on 26.02.2021. The vehicle history shows that as on 26.02.2020 the Complainant has covered a distance of 3898 KM. with the vehicle within a short span of 148 days and on the other hand taking the plea of manufacturing defect in the vehicle. OP-1 always attended the complaints with utmost sincerity and repair/replaced to the utmost satisfaction of the Complainant within the purview of company's warranty policy. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version wherein it  raised preliminary objections to the effect that the present Complaint is misconceived and untenable; this Commission is not  having territorial jurisdiction; the Complainant has not come to this Commission with clean hands and has intentionally and deliberately suppressed material facts; the Complainant has not filed any acceptable evidence in the Complaint or in support of the cause of action made out in the Complaint before this Commission; the Complainant intentionally with malafide intention did not make "Rakhi Hero Automobile, Barara, District Ambala" as party to the Complaint. The preset complaint deserved to be dismissed for concealment, non-joinder of necessary party & withholding information etc. On merits, it has been stated that   the vehicle is made of various components which are assembled in such a way which can be easily replaced without in any manner affecting the performance of the vehicle. Furthermore, the alleged problem is not of nature which can't be removed or termed as manufacturing defect in a vehicle. Therefore, demanding replacement of vehicle or cost of used vehicle is not legally tenable. As per the warranty policy the said vehicle is warranted for 5 years or 70000 K.M, whichever is earliest. The vehicle manufactured by OP-2 comes with warranty only as stated above and the Company does not provide replacement guarantee with their vehicles. OP-2 is always ready to oblige its each and every obligation and never shy away from its obligations. The Complainant deliberately concealing the service book of the vehicle which was handed over to him at the time of sale, it contains all terms & condition of the warranty.  OP-2 has not indulged in any sort of unlawful trade practices or any deficiency in services and is only following the process/policy as per the industry standard which the Complainant is well aware of. It is evident from the vehicle history the Complainant visited "Rakhi Hero Automobiles, Barara" for availing free service & one time for check-up only and visited OP-1 first time on 12.02.2020 with problem of misfiring and for second time on 26.02.2020 for engine oil leakage. The Complainant never reported alleged problem to "Rakhi Hero Automobiles, Barara" and engine oil leakage problem was for very first time reported on 26.02.2020. It is evident from the vehicle history that the Complainant never reported complaint regarding engine oil leakage problem prior to 26.02.2020. The vehicle history shows as on 26.02.2020 the Complainant had covered a distance of 3898 KM. with the vehicle within a short span of 148 days and on the other hand the complainant is taking the plea of manufacturing defect in the vehicle. The vehicle is warranted for 5 years or 70000 K.M, whichever is earlier. The vehicle manufactured by OP-2 comes with warranty only and the Company does not provide replacement guarantee with their vehicles. The OPs and Complainant are bound by the terms and conditions of the Warranty policy. OP-2 & OP-1 works on principal to principal basis and both are separate legal entity and can't be held liable for each other's acts. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CX alongwith documents as Annexure C-1 and C-11 and closed the evidence of the complainant.  On the other hand, learned counsel for the OP No.1 tendered affidavit of Dhruv Kapoor, authorized representative of OP No.1-Dhruv Automobiles, having its office at Plot No.2028, Abadi Kirpa Nagar, Ambala City as Annexure OP-1/A alongwith documents Annexure OP-1/B to OP-1/C and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Siddharth Tewari, Authorized and Representative of OP No.2-Hero MotoCorp. Ltd., having its office at Grand Plaza, Plot No.2, Nelson Mandela Road, Vasant Kunj, Plase-II, New Delhi-110070 as Annexure OP-2/A alongwith documents Annexure OP-2/A1 to OP-2/B  and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and have also carefully gone through the case file.
7.           The learned counsel for the complainant submitted that by selling the motorcycle in question, which was suffering from inherent manufacturing defects and thereafter neither replacing the same with a new one nor refunding the price thereof, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
8.           On the contrary, learned counsel for OPs No.1 and 2 while reiterating the objections raised in their written statements, submitted that since the complainant has failed to prove that the motorcycle in question is suffering from manufacturing defects, as such, he is not entitled to any relief. He further submitted that as and when the motorcycle in question was brought for repairs, the same was done, upto the full satisfaction of the complainant.
9.           It may be stated here that since neither the purchase of motorcycle in question by the complainant from OP No.1, (which is situated at Ambala), manufactured by OP No.2 nor the fact that defects in its engine were reported by the complainant to OP No.1, as mentioned in the complaint are not disputed, as such, the only moot question which falls for consideration in the case is, as to whether, the complainant is entitled to get any relief in the matter or not? The plea of the complainant is that there is manufacturing defect in the motorcycle in question. It is significant to mention here that vide order dated 16.05.2022, the motor cycle in question was sent to the Government Polytechnic College Ambala, for inspection. The technical expert submitted his report wherein it is stated that the minute leakage appeared on cylinder head and cylinder block joining line. If the engine is never opened. Then there should be no leakage. Hence, it may be manufacturing defect due to faulty cylinder head gasket or faulty engine head.  From the expert report it is quite clear that engine of the motorcycle was defective. It may be stated here that the OPs were under obligation, to rectify the defect (s) of the motorcycle in question either by repairing or replacing the defective part(s), free of costs, as per terms and conditions of the warranty. From the job cards placed on record it is apparent that despite making number of efforts, the defect (s) occurred in the motorcycle could not be removed by the OPs.  The Hon’ble Supreme Court of India in the case of Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra and another (2006) 4 SCC 644, has held that if defects in various parts of a car are established, replacement of the full car is not justified. Replacement of the entire item or replacement of defective parts only called for. From the report of expert it is quite clear that engine of the motorcycle was defective, therefore, as per warranty conditions, the OP no.1 being dealer and OP No.2 being manufacturer are liable to replace the defective engine, with the new one, free of costs. Thus the prayer made for replacement of the motorcycle or refund of the price thereof is not tenable, hence rejected.
10.           Since, the motorcycle in question got defective immediately after its purchase and complainant was forced to take it to the workshop for repairs of its engine, a number of times but to no avail, as such, complainant would have definitely suffered lot of mental agony, harassment and sufferings for which he needs to be suitably compensated. Thus, the OPs No.1 & 2 are liable to compensate the complainant adequately and are also liable to pay the litigation expenses.
11.           In view of the aforesaid discussion, we hereby partly allow the present complaint and direct the OPs No.1 & 2, jointly and severally, in the following manner:-  
    1. To replace the defective engine of the motorcycle in question, with a new defect free engine, and also remove other defects if any, free of cost.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.

 

The OPs No.1 and 2 are further directed to comply with the aforesaid directions within the period of 45 days, from the date of receipt of the certified copy of this order, failing which, they shall pay the aforesaid amounts to the complainant, besides compliance of direction given in para No.11 (i), alongwith interest @6% p.a. from the date of filing of this complaint i.e. 04.03.2020 till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 09.05.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President