Punjab

Ludhiana

CC/22/33

Rajiv Kumar - Complainant(s)

Versus

M/s Alliance Automobiles Ltd - Opp.Party(s)

Nipun Gupta Adv.

17 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 33 dated 27.01.2022.                                                Date of decision: 17.01.2023.

 

Rajiv Kumar son of Sh. Subhash Chand, resident of House No.3, Ward No.7, Street No.4, Sukhdev Nagar, Ludhiana. P. No.9815916170. PIN-141010, E-mail-Rajiv-Kumar3@gmail.com.                                                                                                                                                           ..…Complainant

                                                Versus

M/s. Alliance Automobiles td. through its Managing Director/Directors, C/o. 610, Street No.4, Anandpura, G.T. Road Byepass, Chowk Basti Jodhewal, Ludhiana-141007.                                                                                                                                                                                     …..Opposite party 

Complaint Under Section 33 & 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Nipun Gupta, Advocate.

For OP                           :         Exparte.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In nutshell, facts of the case are that on 24.01.2021, the complainant got an advance booking of the vehicle and paid amount of Rs.2000/- and subsequently, on 28.01.2021, the complainant purchased an Apache RTR 200 4V bearing registration No.PB-10-HN-2088 maker name TVS Motor Company Limited from the opposite party by paying Rs.1,60,000/-. On the same day, the complainant took the insurance of the vehicle and paid Rs.8439/- to the insurance company. Registration of the vehicle was issued on 01.02.2021. At the time of purchase of the vehicle, the opposite party allured the complainant that the same is having good mileage and is very solid vehicle by representing it to be a very good product. So the complainant purchased the said vehicle by spending his hard earned money. The complainant submitted that to his utter surprise, after the purchase of the said vehicle and after 100 km running, the said vehicle started giving the following troubles:-

          a. There is a defect in the clutch plates of the vehicle.

          b. There is a defect in the engine of the vehicle.

          c. Body of the vehicle is also tilted.

          d. There is a defect in the brakes of the vehicle.

          e. There is a mileage problem of the vehicle.

          f. There is a shivering problem while driving the vehicle.

After the purchase of the vehicle, the complainant recorded through GPS mileage/rides at the bike and as the vehicle was defective and the recorded date, distance and duration of the vehicle is as under:-

Date	Distance	Duration	Time
30.01.2021	2 Kms	8 min 34 sec
29.01.2021	3.8 Km	7 sec	11.37pm
29.01.2021	1.7km	1.7km	5 hr 24 min
29.01.2021	5.5km	44min 1sec	2.49pm
29.01.2021	5.9km	24min 43 sec	11.30am
18.02.2021	19.4km	1hr48min	5.02pm
13.02.2021	4.9km	13min36sec	11.20pm
13.02.2021	9.7km	46min 43 sec	6.36pm
09.04.2021	153km	2hr17min	8.24am
16.03.2021	4.5km	24min6sec	8.19pm
06.03.2021	3.7km	4hr25sec	3.06pm
06.03.2021	29.9km	27min17sec	12.39pm
30.01.2021	5.4kms	42min2sec	7.57pm
30.01.2021	12kms	1hr57mins	4.07pm
30.01.2021	1.8km	6min32swec	3.53pm
30.01.2021	2.1km	21min15swec	2.40pm
31.01.2021	20km	54min36sec	10.17pm
31.01.2021	23.8km	50km36sec	8.49am
31.01.2021	21.1km	1hr27min	2.13pm
31.01.2021	28.3kms	58min38sec	7.27am`

 

As per the recorded mileage of the vehicle, it is cleared that the vehicle in question was defective one and it was taking a long time to travel for short distance as well. The complainant approached the opposite party asked the representative to check the bike and when the vehicle was sent for first service, at that time the mileage of the vehicle was 735 kilometers on 15.02.2021 and also requested them to fix the problems. After the first service, it was told by the opposite party that the defects have been duly rectified. After driving the vehicle up to 2734 kilometers on 07.04.2021, the complainant again requested opposite party to rectify the defects of the vehicle and once again the opposite party assured him that the vehicle is good for driving and al the defects have been duly rectified. Even at the time of third service at the mileage of 4236 kilometers on 16.07.2021 it was again assured that the defects have been rectified and kept the vehicle with it and returned the same with assurance that the defects have been rectified and vehicle is in good running condition. But again on driving the vehicle, the complainant came to know that the vehicle has same problems. The complainant approached the opposite party with complaint that the vehicle is still facing same problems but the opposite party did not listen to the genuine request of the complainant. The complainant further submitted that he took the bike to Gulzar Motors, a sister concern of the opposite party and when the representative of Gulzar Motors checked the bike and conveyed that the meter of the bike is having a problem and the bike is also tilted. Representative of Gulzar Motors told the complainant that the problems in the vehicle has been resolved and he may take the delivery of the bike from them but the bike is still having the same problems which shows that there is a manufacturing defect in the said vehicle due to which the complainant is still facing problems after getting the bike repaired several times. The complainant approached the opposite party and requested that the bike cannot be repaired and demanded for replacement of the bike but the opposite party started threatening the complainant and refused his genuine request by saying that they will not replace the bike whatsoever. The complainant served a legal notice dated 03.08.2021 upon opposite party to pay the amount of bike along with interest @12% per annum along with compensation of Rs.2,00,000/- but no positive reply was given by the opposite party. The opposite party has provided deficiency in services and in the end, a prayer has been made for directing the opposite party to refund the price of the bike to the complainant or to give a new bike of the same price along with interest @12% per annum and to pay Rs.2,00,000/- as compensation to the complainant.

2.                Notice was sent to the opposite party through registered post on 10.02.2022 but the same was not received back either served or unserved even after elapse of period of 30 days. As such, the opposite party was proceeded against exparte vide order dated 06.06.2022.   

3.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and claim the compensation as stated in the complaint. The complainant also tendered documents Annexure-C1 is the copy of delivery receipt dated 28.01.2021, Annexure-C2 is the copy of service record sheet, Annexure-C3 is the copy of provisional registration certificate dated 01.02.2021, Annexure-C4 is the copy of insurance policy, Annexure-C5 is the copy of registration certificate No.PB10-HN-2088, Annexure-C6 is the copy of quotation dated 24.01.2021, Annexure-C7 is the copy of acknowledgement, Annexure-C8 is the copy of receipt dated 24.01.2021, Annexure-C9 is the copy of receipt dated 24.11.2021, Annexure-C10 to Annexure –C15, Annexure-C18 to Annexure-C22 are the copies of ride details, Annexure-C16 and Annexure-C17 are the copies of text messages, Annexure-C23 is legal notice dated 03.08.2021, Annexure-C25 is the postal receipt and closed the evidence.

4.                           We have given thoughtful consideration to pleadings of the complainant and have examined evidence on record. It would be most appropriate to examine the definition of ‘defect’ as enshrined in Section 2 (10) of the Consumer Protection Act, 2019 which is re-produced as under:-

“ ‘Defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

The definition is wide enough to include any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard. A seller is under legal obligation to maintain goods free from any defect. In Tata Motors Jivan Tara Building Vs Rajesh Tyagi in 2013 SCC Online NCDRC 1031whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.      

5.                Perusal of evidence on record shows that the complainant started encountering the problem with the functioning of the bike even when it had just covered a distance of 100 kms. He has specifically enlisted the defects with regard to clutch plates, engine, tilting of body, engine brakes and the functioning of the body. The complainant has also recorded and produced data w.e.f. 30.01.2021 to 09.04.2021 showing mileage of the vehicle and depicting the fact that the vehicle was taking long time to travel for short duration as well. The complainant had been repeatedly approaching the opposite party to rectify the defect but the opposite party was unresponsive to the genuine requests of the complainant. However, till 16.07.2021, the vehicle has stated to have covered a distance of 4236 kilometers.

6.                In Maruti Udyog  Ltd. Vs Susheel Kumar Gabgotra and another 2006 (4) SCC (644) whereby it has been held by the Hon’ble Supreme Court of India that where defects in various parts of a car are established, direction for replacement of the car would be justified. “Replacement of the entire item or replacement of defective parts only called for.” Further in C.N. Ananthram Vs M/s. Fiat India Ltd. and others 2010 (4) CPJ 56 passed by the Hon’ble Supreme Court of India whereby the complainant sought replacement or full refund of the amount along with interest for “defect in the engine of the vehicle”. The Hon’ble Supreme Court has held that the replacement of the defective engine with new engine would suffice. Further, in Tata Motors Ltd. Vs Sharad and others in 2016 (SCC) NCDRC 1600 whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle purchased by the complainant suffered certain defects and also used for considerable kilometers, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that a new vehicle cannot be replaced and defective part of old vehicle has to be replaced.  Hence the act and conduct on the part of the opposite party amounts to unfair trade practice and deficiency in service. At this stage, the replacement of the vehicle cannot be ordered. As such, it would be just and appropriate if the opposite party is ordered to repair the vehicle in question to the satisfaction of the complainant free of costs and also to pay composite costs of Rs.15,000/- to the complainant.

7.                As a result of above discussion, the complaint is  exparte allowed with direction to the opposite party to repair the vehicle in question comprehensively and to the utmost satisfaction of the complainant free of costs within 15 days from the date of receipt of copy of order. The opposite party is further directed to pay a composite compensation of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:17.01.2023.

Gobind Ram.

 

 

Rajiv Kumar Vs M/s. Allianz Automobiles Ltd.                        CC/22/33

Present:       Sh. Nipun Gupta, Advocate for complainant.

                   OP exparte.

 

                                Arguments heard. Vide separate detailed order of today, the complaint is  exparte allowed with direction to the opposite party to repair the vehicle in question comprehensively and to the utmost satisfaction of the complainant free of costs within 15 days from the date of receipt of copy of order. The opposite party is further directed to pay a composite compensation of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

                

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:17.01.2023.

Gobind Ram.