Punjab

Faridkot

CC/17/296

Sumesh Kumar - Complainant(s)

Versus

Mother Automobiles - Opp.Party(s)

Dinesh Jindal

11 Mar 2019

ORDER

       DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :         296 of 2017

Date of Institution :      1.09.2017

Date of Decision :       11.03.2019

Sumesh Kumar aged about 57 years s/o Sadhu Ram, r/o Kochar Street, Jaitu, Tehsil Jaitu, District Faridkot.                                

  .....Complainant

Versus

1. Mother Automobiles (Authorized Dealer), Bathinda Road, Jaitu, Tehsil Jaitu, District Faridkot through its Authorized Person/ Responsible Person.
2. TVS Motor Company (Regd Office), Jayalakshmi Estates Vth Floor, 8, Haddows Road, Chennai-600006 through its Managing Director/Director / Responsible Person/Authorized Person.

.......OPs

Complaint under Section 12 of the

Consumer Protection Act, 1986.

Quorum:     Sh  Ajit Aggarwal, President.

 Smt Param Pal Kaur,  Member.

Present:       Sh Dinesh Jindal,  Ld Counsel for Complainant,

 Sh Jatinder Bansal, Ld Counsel for OP-1,

 Sh Amrit Bansal, Ld Counsel for OP-2.

 

ORDER

(Ajit Aggarwal , President)

                                             Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against seeking directions to Ops to replace the defective motor cycle sold by them and for further directing them to

 

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pay Rs.30,000/- as compensation for mental agony and harassment etc besides litigation expenses of Rs.10,000/-.

2                                          Briefly stated, the case of the complainant is that complainant sold his old motorcycle make Hero Honda CD Deluxe for Rs.18,000/- to OP-1 and purchased new TVS SPORT ES for Rs.46,890/- (46,890-18,000=28,890) on 4.11.2015 from OP-1 and at the time of purchase, OPs assured guarantee and warrantee for two  years about durability and quality of product and also gave assurance for after sale services through their dealer network, but since after 4^th day of purchase, motorcycle in question started giving trouble to complainant as it produced very harsh sound and its pickup was also not proper and due to this complainant suffered great problem in his tent house work. Complainant reported the matter to OP-1 who after checking returned the motorcycle to complainant saying all defects have been removed, but same problems occurred again alongwith problem of shocker, chain set and it did not run smoothly. Problem occurred two three times and then Op-1 advised complainant to go to their workshop at Bathinda, but from there also, defects in motorcycle in question could not be removed. They also returned the motorcycle saying it that it was defect free but same problem of engine noise, pick up,  chain set and shockers persisted again and again and thereafter, it stopped starting. Complainant made several requests to OPs to replace the motorcycle in question but all in  vain. All this amounts to deficiency in service and trade mal practice and has caused much inconvenience, harassment and mental agony to complainant and due to this complainant has prayed for seeking direction to Ops to accept the present complaint and give the relief sought and for further directing Ops to pay

 

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Rs.30,000/- as compensation for mental agony and harassment etc besides litigation expenses of Rs.10,000/-. Hence, the complaint.

3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 15.09.2017, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                               On receipt of the notice, OP-1 filed reply wherein they admitted that complainant purchased the motorcycle in question from them but have denied all the allegations of complainant being wrong and incorrect and asserted that answering OP has no liability regarding any defect in motorcycle and only Op-2 is liable for any manufacturing defect, but in case of defect due to mishandling, customer shall be liable to bear expenses for the same.  There is no irreparable manufacturing defect in said motorcycle and replacement is not permissible in this case. Complainant has not availed services of motorcycle as per owner’s manual and thus, he has himself violated the terms and conditions of the owners’s manual and thus, he is stopped by his own act and conduct to file the present complaint. Complaint availed four free services from OP-1 on 31.12.2015, 9.02.2016, 4.05.2016 and on 13.08.2016, but during services, he never complained any problem about his motorcycle, meaning thereby, there is not defect in vehicle and it has been running perfectly. After last service on 16.11.2016, complainant never visited their service centre with any complaint in his motorcycle. moreover, at the time of purchasing the vehicle, he thoroughly checked and tested the vehicle by taking test drive. All the other allegations of complainant that he has not been provided with service book and there is noise problem or pick up problem, are totally refuted and asserted that after nine months of purchase, complainant first time reported about the problem of shockers and side stand on 26.08.2016 and it

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was duly entertained by replacing the rear shocker and side stand and services were given free of costs to the full satisfaction of complainant. Job sheet in this regard  was also prepared. On 15.11.2016, complainant again reported about problem in rear shocker, clutch plate, side stand and services were again provided free of costs to the satisfaction of complainant by sending his motor cycle for repair purpose at Shakti TVS Bathinda. Technicians checked the same and after repairing it prepared job sheet and thereafter, complainant never approached them regarding any complaint in his motorcycle. It is reiterated that there is no deficiency in service on the part of answering opposite party and all the other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering OP.

5                                              OP-2 also filed reply wherein took preliminary objections that complaint filed by complainant is false and frivolous and there is no defect in motor cycle in question.  It is asserted that answering Op is a manufacturer of powered two wheeler products and two wheelers manufactured in their company pass through various tests and analysis like quality of components, engine alignment, engine function, components assemblies, electromechanical parts checks, ride test etc and they manufacture the vehicles in compliance of Motor Vehicles Act and its Rules, Notifications etc which are mandatory. It is further averred that they sell the products on Principal to Principal basis and they are not liable for providing any services and services are to be provided by dealer and not by manufacturer. Op-2 is responsible only in case of any manufacturing defect and in that case also, only defective components are replaced free of costs during the warranty period and onus to prove the manufacturing defect is on

 

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complainant. All the other allegations are denied being wrong and incorrect and prayed for dismissal of complaint with costs.

6                                             Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 and C-11 and then, closed the evidence.

7                                                          In order to rebut the evidence of the complainant, Counsel for OP-2 tendered in evidence affidavit of Gamdoor Singh Ex OP-1/1 and documents ExOP-1/2 to Ex OP-1/11 and then, closed the same on behalf of OP-1. Ld counsel for OP-2 tendered in evidence affidavit of Karandeep Singh Ex OP-2/1 and document Ex OP-2/2 and also closed the evidence.

8                                                                 We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                                         Ld Counsel for complainant argued that in exchange of his old motorcycle, complainant purchased new TVS SPORT ES for Rs.46,890/-(46,890-18,000=28,890) on 4.11.2015 from OP-1 and at the time of purchase, OPs assured guarantee and warrantee for two  years about durability and quality of product and also gave assurance for after sale services their dealer network, but since after the 4^th day of purchase, motorcycle in question started giving trouble. It  produced very harsh sound and its pickup was not proper. Complainant complained OP-1 regarding this, who after checking returned the motorcycle to him saying all defects have been removed. But defect was not removed and problem of shocker, chain set also caused. Problem occurred two

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three times and then on advice of Op-1, complainant sent his motorcycle to their workshop at Bathinda, but said defects in motorcycle  could not be removed. Problem of engine noise, pick up, chain set and shockers persisted again and again and thereafter, it stopped starting. Despite repeated requests, OPs did not do anything needful which amounts to deficiency in service and has caused  harassment and mental agony to him. He has prayed for accepting the complaint.

10                                            To controvert the allegations of complainant, ld counsel for OP-1 argued that there is no deficiency in service on their part and denied all the allegations of complainant being wrong and incorrect, but admitted that complainant purchased the motorcycle in question from them. OP-1 further argued that they have no liability regarding any defect in motorcycle and only Op-2 is liable for any manufacturing defect, but in case of defect due to mishandling, only complainant is liable to bear expenses. There is no irreparable manufacturing defect in said motorcycle and replacement is not permissible and even complainant has not availed services of motorcycle as per owner’s manual and thus, he has himself violated the terms and conditions of the owners’s manual. He availed four free services from OP-1 on 31.12.2015, 9.02.2016, 4.05.2016 and on 13.08.2016, but during services, he never complained any problem about his motorcycle. There is not defect in vehicle and it has been running perfectly. After last service on 16.11.2016, complainant never visited their service centre with any complaint in his motorcycle. It is averred that at the time of purchasing the vehicle, he thoroughly checked and tested the vehicle by taking test drive. After nine months of purchase, he first time reported about the problem of shockers and side stand on 26.08.2016 and it was duly entertained by making effective replacement and job sheet to this effect was also prepared. On 15.11.2016, he again reported about

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problem in rear shocker, clutch plate, side stand and services were again provided free of costs to the satisfaction of complainant by sending his motor cycle for repair purpose at Shakti TVS Bathinda. Technicians repaired the same and thereafter, complainant never approached them regarding any complaint in his motorcycle. It is reiterated that there is no deficiency in service on their part and prayed for dismissal of complaint with costs.

11                                             Ld Counsel for OP-2 argued that allegations levelled by complainant are false and frivolous and there is no defect in said motor cycle.  OP-2 is a manufacturer of powered two wheeler products and two wheelers manufactured by them pass through various tests and analysis like quality of components, engine alignment, engine function, components assemblies, etc and they manufacture the vehicles in compliance of Motor Vehicles Act and its Rules, Notifications. OP-2 sell the products on Principal to Principal basis and they are not liable for providing any services as services are to be provided by dealer and not by manufacturer. Op-2 is responsible only in case of any manufacturing defect and in that case also, only defective components are replaced free of costs during the warranty period and onus to prove the manufacturing defect is on complainant. They have never supplied any defective vehicle to complainant and allegations regarding alleged defect are totally wrong. It is reiterated that there is no deficiency in service on the part of OP-2 and prayed for dismissal of complaint with costs.

 12                                         From the careful perusal of record, evidence placed on file and after going through the arguments advanced by respective parties, it is observed that grievance of complainant is that he purchased the motorcycle in question from OP-1 and at the time of purchase, Ops  assured of full guarantee and warrantee regarding quality of product and after sale services, but since the

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purchase, motorcycle in question has been giving troubles to complainant as there is excessive noise production, problem of shockers and side stands, pickup problem and even there is a great problem at the time of starting the same. Despite repeated requests, Ops did not remove the said defects from his motorcycle and he has suffered great harassment and mental agony from the inconvenience caused to him by this act of Ops. On the other, plea taken by OP-1 is that there is no manufacturing defect in said motorcycle and defects which were reported by complainant to them, that have been removed with full satisfaction of complainant and moreover, OP-1 is not the manufacturer of the vehicle and manufacturing defect if any occurs then, replacement is the sole responsibility of OP-2 manufacturer of said products. On the other hand, Op-2 stressed mainly on the point there is no manufacturing defect in the vehicle of complainant and defects alleged by complainant have been totally removed by OP-1 and there is no deficiency in service on their part.

13                                               Through his affidavit Ex C-1, complainant has reiterated his grievance  and this point is further clarified from the careful perusal of affidavit given by Gurpiar Singh, Mechanic Ex C-6 wherein he has clearly mentioned that motor cycle purchased by him does not work properly as there is some problem of pickup in its engine and complainant has been facing difficulty in starting the said motorcycle. Further document Ex C-4 is the copy of job sheet dated 15.11.2016 issued by OPs to complainant wherein it is clearly mentioned in the column General Service as per above Menu that shockers of vehicle in question do not work, clutch plate do not work and there is a problem of making sound and its does not move upward. All these documents clearly reveal the fact that there was some technical fault in the vehicle sold by OPs to complainant. Moreover, OP-

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1 themselves admitted in their version that complainant reported them about defects in shocker, stand and excessive noise production and pick up problem.  Complainant has produced sufficient and cogent evidence to prove his case, authenticity of which is beyond any doubt. There is deficiency in service on the part of Ops in not attending the complaints of complainant properly upto his entire satisfaction. OPs should have provided effective and proper services to complainant.

14                                              In the light of above discussion and in view of record placed on record and pleadings of the parties and statements of complainant and OPs, the complaint is allowed with directions to OPs repair the motorcycle of complainant completely and effectively up to the entire satisfaction of complainant and make replacement of defective parts if any free of costs. Ops are further directed to pay Rs.3000/-to complainant as consolidated compensation for harassment and mental agony suffered by complainant as well as  for litigation expenses. Compliance of this order be made within one month of receipt of the copy of the order, failing which complainant shall be liable to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to the parties free of cost. File be consigned to record room.

Announced in open Forum:

Dated: 11.03.2019

 

(Param Pal Kaur)                            (Ajit Aggarwal)

             Member                                 President