Punjab

Ludhiana

CC/20/373

Manoj Sharma - Complainant(s)

Versus

N.S.Motors - Opp.Party(s)

Kapil Sharma Adv

03 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 373 dated 24.12.2020.                                                       Date of decision: 03.04.2023. 

 

Manoj Sharma S/o. Sh. Baldev Raj, R/o. House No.B-X-390, Shri Durga Vishkarma Mandir Wali Gali, Neem Wala Chowk, Ludhiana.                                                                                                            ..…Complainant

                                                Versus

1. N.S. Motors, Authorized dealer of Hero Motocorp Ltd., Opposite Ansal Plaza, Ferozepur Road, Ludhiana through its authorized person.
2. Hero Motocorp Ltd., 34, Community Centre, Basant Lok, Vasant Vihar, New Dellhi-110057 through its Director/Partner/authorized signatory.

Second Address:

M/s. Hero Motocorp Ltd., SCO 367-368, First Floor, Sector 34A, Chandi.gasrh-160022, through its Authorized Signatory.…..Opposite parties

Complaint Under Section 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. Raghav Bhatia, Advocate.

For OP1                         :         Exparte.

For OP2                         :         Sh. Sumit Jain, Advocate.

 

 

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant purchased motorcycle Hero Super Splendor variant HSPSNDRSOOR from opposite party No.1 vide invoice dated 11.11.2019 and opposite party No.2 also gave 5 years warranty one very product of the company and there is relationship of consumer and seller between the complainant and the opposite parties. On 06.08.2020, the complainant went to opposite party No.1 for getting service of his motorcycle and the same was handed over to him by opposite party No.1 on same evening after servicing the same. The complainant requested them to deliver the job card of the service done but opposite party No.1 made an excuse that there is a technical fault in their computer due to which job card was not issued at that time and the complainant get the delivery of his motorcycle without raising any issue at that time. On 08.08.2020, the complainant went to Jind, Haryana on the said motorcycle as public transport were not running due to Covid-19 pandemic and after 150 KM, the motorcycle suddenly stopped. The complainant tried to get start the motorcycle but all his efforts went in vain as it did not start. The complainant submitted that he had to pull the motorcycle approximately more than 10 KM by foot as the motor cycle stopped on highway and there was no shop or service centre of opposite party No.1. The complainant suffered mental and physical distress as he has to pull the motorcycle more than about 10 KM to reach to the nearest service station of opposite party No.2 i.e. Narwana Automobiles, Narwana, Distt. Jind. On inspection, their mechanic disclosed that there is no engine oil in the motorcycle due to which there is a fault in the engine of the motorcycle. The complainant apprised the mechanic of Narwana Automobiles that the service of his motorcycle was done on 06.08.2020 from opposite party No.1, so how could it be possible that despite service there is no engine oil. The service manager of Narwana Automobiles disclosed the complainant that the fault in the motorcycle is only and only due to improper service of opposite party No.1 as it failed to fill the necessary engine oil in his motor cycle due to which the complainant had to pull the motor cycle in hot sunny days in the month of August 2020 for about more than 10 KMs. The complainant further submitted that he also lodged a complaint on toll free number 18002660018 on 08.08.2020. The service manager of Narwana Automobiles disclosed the complainant that there are requirements of parts as gasket R Crank, Case cover, cylinder kit, place clutch, ball races kit, kit disc clutch friction etc. as all these parts are damaged due to non-filling of engine oil in the motor cycle and the complainant had to left the motor cycle with Narwana Automobiles for its repair.  The parts were also not available with Narwana Automobiles due to which job card was repapered on 17.08.2020 and parts were supplied to Narwana Automobiles by the complainant as he himself purchased the parts from Ludhiana and delivered the same to Narwana Automobiles for rectification of his motorcycle. The charges of parts and service charges were paid by the complainant. In this manner, opposite party No.1 and 2 have cheated the complainant by not providing proper services due to which the complainant had to face lot of mental and physical distress on account of deficiency in service on the part of the opposite parties as opposite party neither serviced the motorcycle nor filled the engine oil in the same. The opposite parties are jointly and severally liable for their act and service as the motorcycle was under the warranty but they neither rendered the services nor performed their responsibilities. In the end, the complainant prayed for issuing direction to the opposite parties to refund the whole amount of Rs.70,000/- of the motorcycle and to pay compensation of Rs.1,00,000/- besides litigation costs of Rs.10,000/-.

2.                Initially, Sh. Sumit Jain, Advocate filed power of attorney on behalf of opposite party No.1 and 2 but later on, Sh. Sumit Jain, Advocate suffered statement that he has no instructions to appear on behalf of opposite party No.1 and no one appeared on behalf of opposite party No.1 despite wait and calling the case several times and as such, opposite party No.1 was proceeded against exparte vide order dated 28.09.2021.

3.                Upon notice, opposite party No.2 appeared and filed written statement and took preliminary objections by assailing the complaint on the ground of lack of jurisdiction; non-joinder of necessary parties; complaint being abuse of process of law; suppression of material facts by the complainant and lack of cause of action. Opposite party No.2 alleged that it is engaged in the business of manufacturing of Two-wheelers in India and opposite party No.1 is its authorized dealer engaged in carrying out service and repair of two wheelers manufactured by opposite party No.2. Moreover, opposite party No.2 sells its product through authorized dealers and they sell the products to their customer. Opposite party No.2 sells its vehicles, spare parts etc. to its authorized dealers on principle to principle basis which implies that opposite party No.2 sells its vehicles, spare parts etc. to authorized dealers on order placed by them and once the products are sold to the authorized dealers, opposite party No.2 has no effective control over the same and it has no role to play in any transaction taken place between the customers and the authorized dealers. Moreover, opposite party No.2 played no role in dealing with opposite party No.1 and it is for opposite party No.1 to explain the factual position to defend the allegations raised by the complainant. Opposite party No.2 further alleged that it has been unnecessarily impleaded in the present complaint. Opposite party No.2 further alleged that as per the warranty policy, the said vehicle is warranted for 5 years or 70000 KM whichever is earlier. The opposite parties and the complainant are bound by the terms and conditions of the warranty policy and opposite party No.2 had always performed its each and every obligation and is never shy away from performing its part of obligations. The complainant deliberately concealing the service book of the vehicle handed over to him at the time of sale which contains all the terms and conditions of the warranty. Moreover, there is no averment of “manufacturing defect” in the vehicle. Opposite party No.1 and 2 are separate legal entities and cannot be held liable for the acts of each other. The vehicles are sold by opposite party No.2 to opposite party No.1 by way of invoice and therefore, the ownership of the vehicle is transferred to opposite party No.1 on such sale. The vehicle in question was sold to complainant by opposite party No.1. Opposite party No.2 carries rigorous tests on its vehicle before selling the same to the authorized dealers and there was no direct transaction between the complainant and opposite party No.2. Opposite party No.2 further alleged that the complainant has raised serious allegations of cheating and criminal breach of trust punishable under Indian Penal Code which needs elaborate criminal trial to be decided and cannot be decided in summary proceedings. Moreover, the allegations of cheating, criminal breach of trust does not come under the purview of Consumer Protection Act, 2019 and the complaint is liable to be dismissed on this ground.

                   On merits, opposite party No.2 reiterated the crux mentioned in the preliminary objections. Opposite party No.2 denied any deficiency in service on its part and in the end, a prayer for dismissal of the complaint has been made.

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated her averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of tax invoice dated 11.11.2019, Ex. C2 is the copy of provisional registration certificate No.PB10-HF-8379, Ex. C3 is the copy of job card issued by Narwana Automobiles, Ex. C4 is the copy of complaint document pertaining to Narwana Automobiles, Ex. C5 is the copy of tax invoice of Jyoti Motors, Ludhiana, Ex. C6 is the copy of tax invoice of Ranbir Automobiles, Ex. C7 is the legal notice dated 27.10.2020, Ex. C8 are the postal receipts and closed the evidence.

5.                On the other hand, the counsel for opposite party No.2 tendered affidavit Ex. RA of Sh. Siddharth Tewari, authorized representative of opposite party No.2  along with document i.e. Ex. R1 is the copy of warranty policy  and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written statement produced on record by both the parties.  

7.                The complainant purchased the motorcycle make Hero Super Splendor variant HSPSNDRSOOR from opposite party No.1 vide invoice dated 11.11.2019 Ex. C1 and its provisional registration certificate is ex. C2. The vehicle had the warranty of five years or 70000 KM whichever is earlier. On 06.08.2020, the complainant got the service done from opposite party No.1, an authorized dealer and service centre of opposite party No.2. After two days i.e. on 08.08.2020, when the complainant went to Jind, Haryana and covered a distance of 150 Km, the motorcycle suddenly stopped on the way and he had to pull the vehicle for more than 10 KMs on foot to reach to the nearest service centre of opposite party No.1 i.e. Narwana automobiles, Narwana, Jind. On inspection, it was found that due to non-filling of engine oil, when it was lastly serviced, the vehicle had suddenly stopped. The complainant lodged a complaint on toll free number 18002660018 on 08.08.2020. In order to make the motorcycle functional, the complainant had to spent around Rs.5000/- on the purchase of spare parts and service charges as detailed in Ex. C3 to Ex. C6. Certainly, had opposite party No.1 taken due care and serviced the motorcycle and filled the engine oil, the vehicle could not have stopped suddenly and the expenses of repair and the sufferings of the complainant could have been avoided. As such, there is deficiency in service on the part of opposite party No.1.

8.                Opposite party No.2 is a manufacturing company who appoints authorized dealers on principle to principle basis meaning thereby it sells its vehicles, spare parts to the authorized dealers and once the sale is affected, it is for the authorized dealer to have a control over the things. Perusal of the complaint, affidavit and evidence on record shows that there is no allegations with regard to manufacturing defect in the motorcycle. As such, the complaint as against opposite party No.2 is dismissed.   

9.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 pay a sum of Rs.5,000/- spent by the complainant as repair charges, to the complainant within 30 days from the date of receipt of copy of order.  Opposite party No.1 shall further pay a composite costs and compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of the order. However, the complaint as against opposite party No.2 is dismissed. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

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

 

Announced in Open Commission.

Dated:03.04.2023.

Gobind Ram.

 

 

Manoj Sharma Vs N.S. Motors                                     CC/20/373

Present:       Sh. Raghav Bhatia, Advocate for complainant.

                   OP1 exparte.

                   Sh. Sumit Jain, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 pay a sum of Rs.5,000/- spent by the complainant as repair charges, to the complainant within 30 days from the date of receipt of copy of order.  Opposite party No.1 shall further pay a composite costs and compensation of Rs.5,000/- (Rupees Five Thousand only) to the complainant. Compliance of the order be made within 30 days from the date of receipt of copy of the order. However, the complaint as against opposite party No.2 is dismissed. Copies of order be supplied to 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:03.04.2023.

Gobind Ram.