Punjab

Rupnagar

CC/14/155

Vijay Kumar - Complainant(s)

Versus

Sood Motors & Another - Opp.Party(s)

Sh. Aminderpreet Singh Bawa, Adv

24 Apr 2015

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

 

                               Consumer Complaint No. : 155 of 04.12.2014

                                 Date of decision               : 24.04.2015

 

Vijay Kumar, son of  Sh. Dharam Pal, resident of Village Sainimajra Jatt Patti, P.O. Ghanauli, Tehsil & District Rupnagar.

                                                                                     ......Complainant

                                             Versus

1. The Manager, Sood Motors, Near Nirankari Bhawan, GT Road,

    Ghanauli, Rupnagar.

2. The Manager, M.H. Automobiles, Near J. R. Theater, Kurali Road,

    Rupnagar.

                                                                                 ....Opposite Parties

 

                                        Complaint under Section 12 of the                                                           Consumer Protection Act, 1986

 

QUORUM

                             MRS. NEENA SANDHU, PRESIDENT

                             SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

Sh. Amarwinder Singh, Advocate, counsel for complainant

Sh. Udhey Verma, Advocate, counsel for the Opposite Parties

 

 

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

                   Sh. Vijay Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’ only) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’ only) praying that they be directed to replace the impugned vehicle with a brand new one and also to pay special costs of Rs. 50,000/-.

 

2.                In brief, the case of the complainant is that on 27.01.2014, he had purchased the new Scooter, Honda Activa, from the O.P. No.1, for a sum of Rs.48589/-, alongwith with insurance policy, which was issued by The New India Assurance Co. Ltd., against payment of premium amount of Rs.1401/-. The said scooter was got registered by him with the Registration Authority, Rupnagar, by spending a sum of Rs.5000/- for the said purpose, who issued its Registration No. PB12U6684. After five months of its purchase, he faced some mechanical problem in the engine of the said scooter and accordingly, went to the O.P. No.1, who told him that there was some problem in its engine and assured him that the defect would be removed within two days, because some mechanical part had to be replaced, which was not available with the said O.P. on that date and further assured him that he would be called, as & when the part would be available with it. Thereafter, on 29.10.2014, he again visited the O.P. No. 1 and told that the problem in the engine had become more serious and it had also started emitting hasty voice. Then the O.P. No. 1 told him to leave the scooter with it and asked him to take the scooter back on 31.10.2014. On 31.10.2014, the O.P. No. 1 told him that the problem could not be solved and asked him to visit the Service Centre of MH Automobiles i.e. O.P. No. 2 at Rupnagar. On 01.11.2014, he visited to the O.P. No. 2, whose Manager also assured him that the problem in the scooter would be solved within two days. He again visited the O.P. No. 2 on 3.11.2014 and remained present there for whole of the day. Its technician obtained his signature on various papers, on the pretext that some part of the scooter had to be changed. In evening, the workers of the O.P. told him to visit the next day. Thereafter, he again visited the O.P. No.2 on the next day and again remained present, for whole of the day, but the problem in the scooter could not solved by the technicians of the O.P. No. 2. Then he told them that he is a shopkeeper and his work suffers when he visits them for getting his scooter repaired, but they had failed to repair the same and even did not give him satisfactory answer. Therefore, he requested the O.Ps. to replace his vehicle with a new one, as the same is within 5 years guarantee period, but they refused to accede to his request. Then he got issued a legal notice on 11.11.2014 through his counsel, which was replied on 18.11.2014. After reading the reply, he got shocked to find that the O.Ps. had manipulated the documents, which were got signed from him and the reply given by them was totally vague & baseless. The act & conduct of the O.Ps. amount to deficiency in service, due to which he has suffered great mental, physical & financial harassment. Hence, this complaint.

 

3.                On being put to notice, the O.Ps. filed written statement taking preliminary objections; that the complaint is not maintainable and the same has been filed only to harass them; that it is bad for non-joinder & mis-joinder for the necessary parties and that the same has not been filed within the time. On merits, it is admitted that the complainant had purchased the scooter in question from them. It is stated that the complainant had availed the services from the O.P. No.1 on 07.04.2014, 16.06.2014 & 29.10.2014. Every time, the service was done to his satisfaction and after availing the said services, he had also signed the satisfaction note. No problem was reported by him in the column meant for ‘Customer Special Request/Comments’ in the job card. On  29.10.2014, the scooter was delivered to him on the very same day. However, in the evening, he again visited with complaint of some sound from right side. The said minor problem was solved by the O.P. No.1 immediately and the scooter was delivered to him, in the perfect running condition, on the very same day and the complainant also signed the satisfaction note on the job card.  The complainant had never visited the workshop of the O.P. No. 2 on 01.11.2014, as such, no question of keeping the scooter at the workshop of O.P. No. 2 for two days, arose, as alleged by the complainant. The complainant had visited the workshop of O.P. No.2 on 03.11.2014 and reported some concern regarding rear wheel sound and and the engine sound. The vehicle was checked and no problem was observed from its rear wheel or the engine and it was delivered to him approximately within an hour after reporting at the workshop of  O.P. No. 2. On 04.11.2014, the complainant again visited to the O.P. No.2 and requested to check the vehicle for engine sound problem and told the said O.P. that he would visit on 06.11.2014 to take delivery of the same. The O.P. No. 2 checked the vehicle and it was ready for delivery, as per request of the complainant. He was also informed telephonically about the same on 06.11.2014 & 07.11.2014. When he did not come to take delivery of the scooter, the O.P. No. 2 also sent a registered letter to him at his residential address on 8.11.2014 and requested him to take the delivery of the same. It is further stated that whenever the complainant had visited the O.Ps., he was attended properly to his satisfaction. There is no mechanical defect in the scooter and it is in perfect running condition & free from any defect and the complainant is not entitled to replacement of the same. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with costs, it being false, frivolous and without any valid base or cause or reason.

 

4.                On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant, Ex. C1, photocopies of the documents Ex.C2 to Ex.C15 and closed the evidence. On the other hand, the learned counsel for the O.Ps. tendered a joint affidavit of Sh. Pankaj & Sh. Sachin Gupta, Ex.OP-1, affidavit of Gurpreet Singh Ex.OP-2, affidavit of Harjinder Singh Raju Ex.OP-3, photocopies of documents Ex.OP-4 to Ex.OP-15 and closed the evidence.

 

5.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

6.                The learned counsel for the complainant submitted that on 27.1.2014, the complainant had purchased the scooter in question from the O.P. No. 1 for a sum of Rs.48,589/-. After 5 months of its purchase, he faced some mechanical problem in its engine and therefore, approached the O.P. No.1, who inspite of keeping the said scooter with it, failed to remove the defects and ultimately, on 31.10.2014, asked him to take the scooter to O.P. No.2 for doing the needful. On the said date, the engineer of the O.P. No.2, after examining the scooter, told him that some part of the scooter would be changed and on that pretext, his signatures were obtained on various papers and in the evening, the O.P. No.2 told him to visit the next day, but the problem occurred in the scooter was not rectified by the O.Ps. Since the scooter suffers from some mechanical defect, beyond repair and it bears guarantee for 5 years, therefore, the O.Ps. are liable to replace the same with a new one, in addition to payment of compensation on account of mental agony & physical harassment and financial loss suffered by him and also the litigation expenses.

 

7.                The learned counsel for the O.Ps. submitted that after purchase of the scooter in question by the complainant, he availed 2 services i.e. on 7.4.2014, 16.6.2014 vide Job cards, Ex. OP-4 & OP-5,  from O.P. No. 1 and gave his satisfaction note after doing the needful. From the job card dated 29.10.2014, Ex. OP-7, it is evident that the complainant had approached the O.P. No.1 for general repair and complained about some sound in right side of the scooter and the same was rectified and the complainant had signed the satisfactory note for the same and the delivery of the scooter was taken by him. He further submitted that the complainant had never visited the workshop of O.P. No. 2 on 1.11.2014, therefore, the question of keeping the scooter with it did not arise at all, as alleged by the complainant. He visited the workshop of O.P. No.2, for the first time on 3.11.2014, with the complaint about rear wheel sound and engine sound, but on checking the scooter, no such problem was observed and it was delivered to him within one hour in a perfect running condition and to that effect, he had even signed the satisfaction note on the job card in the column meant for the said purpose. On 4.11.2014, he again visited the workshop of O.P. No. 2 with the scooter and complained about sound in its engine and told that he would come on 6.11.2014 to take its delivery. However, he did not turn up to take delivery of the scooter, after its repair, then the official of O.P. No.2 informed him telephonically on 6.11.2014 & 7.11.2014, to take delivery of the scooter, but inspite of that, he had not taken delivery of the same. Thereafter, on 8.11.2014, a registered letter (Ex.OP-10) was sent to him at his residential address requesting him to take delivery of the scooter. He further submitted that there is no defect in the scooter in question, therefore, there is no question of replacing the same with a new one and the complaint filed by the complainant, being without any merit, is liable to be dismissed with costs. The learned counsel has also relied upon the decision dated 29.2.2012 given by the Hon’ble Punjab State Consumer Disputes Rderessal Commission, Chandigarh in the First Appeal No. 359 of 2010, titled ‘Tata Motors Limited vs. Sartaj Singh and others’ wherein it was held that the complainant has neither examined any expert nor any mechanic even to prove that there was excessive oil consumption or there was some defect in the gear system of the engine or in other parts of the engine, thus, the onus to prove the manufacturing defect was on the complainant, but he failed to do so, and accordingly, the impugned order passed by the District Forum allowing the complaint was set aside.

 

8.                From the perusal of job cards dated 7.4.2014 & 16.6.2014, Ex. OP-4 & OP-5 respectively, it is revealed that the complainant had taken his scooter to the O.P. No.1 for its service only and had signed the satisfactory note on the said job cards. From the job card dated 29.10.2014 (Ex. OP-7) it is evident that the complainant had pointed out some sound in the right side of the said scooter, and after rectification of the same, while taking its delivery, he had signed the satisfactory note on the said job card also. Further from the perusal of job card (Ex. OP-8) it is evident that on 3.11.2014, the complainant had again taken his scooter to the O.P. No.2 for removal of the problems in it i.e. sound problem, rim problem, engine sound problem, rear wheel problem and this time also, he had taken delivery of the scooter after signing the satisfactory note on the said job card. Again on 4.11.2014, he had taken his scooter to the O.P. No.2 with the problems as mentioned in the job card (Ex. OP-9), but, as per stand of the O.P. No. 2, this time he did not turn up to take the delivery of the same, inspite of repeated requests. It may be stated that on the basis of above said job cards, it cannot be concluded that the scooter in question suffers from inherent manufacturing defect, beyond repair. Moreover, in order to prove the fact that the scooter purchased by him suffers from some defect(s), the complainant has not produced on record any report of an expert. In the case of ‘TATA Motors Ltd. vs. Deepak Goyal & Ors.’ I (2015) CPJ 607 (NC) the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, has held that merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects, particularly when vehicle had run more than 56,000 kms. in a short span of one year and there is no evidence that there was high engine oil consumption and engine was over-heating. The complainant having failed to prove that there was any manufacturing defect in the vehicle, there was no question of replacement of the vehicle by new vehicle or refund of price of the vehicle. In view of the law settled by the Hon’ble National Commission in the aforesaid case and in the absence of any cogent & convincing evidence that the scooter in question suffers from any manufacturing defect, the prayer made by him for replacement of the same with a new one cannot be accepted and accordingly, the complaint is dismissed, with no order as to costs. However, the complainant is at liberty to take delivery of his scooter, from the O.P. No. 2 and approach the O.Ps. for rectification of the defect(s), if any, still found, in the said scooter, as per terms & conditions of the warranty, as the same is still within warranty period.

 

9.                The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

ANNOUNCED                                                                       (NEENA SANDHU)

Dated: 24.04.2015                                               PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.