RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 626 of 2005

1-  M/s Hero Honda Motors Ltd. through its

     Managing Director, 34-Community Centre,

     Vasant Lok, Basant Vihar, New Delhi.

2- M/s Atma Ram Auto Enterprises through

    Managing Director, 37/1, Bypass Road,

    Agra.                                                         ….Appellants. 

Versus

Anil Kumar Goyal s/o Sri Om Prakash Goyal,

R/o 38, Kailash Nagar, Balkeshwar, Agra. ...Respondents.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Sanjai Kumar, Member.

Sri R.N. Singh for the appellants.

Sri V.P. Sharma for the respondent.

Date 29.2.2016

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 5.3.2005, passed by the Ld. DCDRF-I, Agra in complaint case No.271 of 1999, the appellants M/s Hero Honda Motors Ltd. and another have preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind on the basis of surmises and conjectures and therefore, it has been prayed that the same be set aside in the interest of justice, otherwise the appellants will suffer irreparable financial loss.

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From perusal of the records, it transpires that the respondent/complainant purchased one Hero Honda Splender Motorcycle on 14.10.1998 bearing  Registration No.UP 80 P 6226, Chassis No.98K19F-03391 and Engine No.98K17E–03166 from M/s Atma Ram Auto Enterprises, Agra which acted as authorized dealer of the appellant Hero Honda Motors Ltd. Delhi. It has been alleged in the complaint that the motorcycle had some inherent manufacturing/technical defects as it used to produce unpleasant sound "Kat-Kat" at the time to changing the gears. Consequently, the dealer was approached for rectifying the defect. Accordingly, an engineer of the Company was deputed who vide Job Card no.8613, Job no.40525 dated 8.3.1999 inspected the motorcycle and reported that the defect had been removed and the vehicle was received back by the respondent/ complainant without any objection. From perusal of the records, it transpires that the motorcycle was purchased on 14.10.1998. It was registered on 16.10.1998 and various job cards and free service records indicate that by 26.7.2003 it had given a satisfactory run of 45604 Kms, as is clear from the report of Sri Shyam Singh Chauhan, Licensed Engineer, Surveyor and Loss Assessor. Shri S.S. Chauhan was appointed by the Forum below during the pendency of the complaint for submitting expert report. The owner of the vehicle was, however, not satisfied with the performance of the motorcycle and, therefore, he filed complaint case no.271 of 1999 for redressal of his grievances. He claimed refund of Rs.40,749.00 with

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interest @18% p.a. from14.10.1998 till full and final payment. He also claimed various other reliefs, in addition to compensation and cost of litigation.

The dealer M/s Atma Ram Auto Enterprises, Agra through it Managing Director filed written statement wherein it denied all allegations and claimed that there was no manufacturing defect in the  motorcycle. It had given satisfactory run of more than 45000 Kms within a short period of less than 5 years. The motorcycle was sold on 14.10.1998 and was in running condition throughout. Had there been any manufacturing defect in the motorcycle, it would have not been possible for it to give an accident free run for such a long time.

After considering all aspects of the matter, the Ld. Forum below allowed the complaint on 5.3.2005 and the appellant M/s Hero Honda Motors Ltd. and its authorized dealer M/s Atma Ram Auto Enterprises  were jointly and severally directed to replace the motorcycle with a new motorcycle of the same make, model and battery within 45 days from the date of the order. It also directed the them to pay a sum of Rs.1,000.00 as compensation. It further ordered that if the replacement is not done within 45 days then the respondent/complainant would be entitled to claim refund of  the entire cost of the motorcycle i.e. Rs.47,749.00 with 6% p.a. interest. Aggrieved by this judgment and order, the instant appeal was filed on 6.4.2005.

          From perusal of the records, it transpires that the appeal was dismissed in default on 13.5.2011 by the then

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Bench. A Revision bearing no.3818 of 2013 was preferred against the same. The Revision was allowed and the order of dismissal dated 13.5.2011 was set aside and the Commission was directed to dispose of the appeal on merit. Consequently, the appeal was restored to its original number.

Heard both the parties and have gone through the evidence on record. The undisputed facts are that the motorcycle bearing Chassis No.98K19F-03391 and Engine No. 98K17E – 03166 was purchased by the respondent/complainant Sri Anil Kumar Goyal on 14.10.1998 from M/s Atma Ram Auto Enterprises, Bypass Raod, Agra. M/s Atma Ram Auto Enterprises was authorized dealer of M/s Hero Honda Motors Ltd. The motorcycle was registered in the office of the RTO on 16.10.1998 and accordingly, Registration No.UP 80 P 6226 was assigned. The first Job Card dated 28.10.1998 indicates that the motorcycle had no manufacturing defect. The Gear Box required certain settings only. The defects were removed and the motorcycle was received back without any objection by the respondent/complainant. The second free Job Card dated 2.12.1998 shows that there was no complaint regarding the Gear Box and the motorcycle was taken back by the owner after servicing without any objection. The Job Card of Third free service dated 8.3.1999 indicates that there was no complaint regarding any defect in Gear Box and the motorcycle was again taken back after servicing without any objection.

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However, the Job Card no.41745 dated 3.5.1999 indicates that the motorcycle was taken to the Service Centre subsequently with the complaint in the Gear Box. This was done within the guarantee period. Thus, we find the Motorcycle was having problem in the Gear Box from 28.10.1998 which resurfaced again on 3.5.1999. A perusal of the report on the Job Card indicates that it was returned without removal of the problem in the gear box assembly. It was alleged that the motorcycle was giving a low average of 55 Kms to a litre due to problem in the Gear Box. This factum has not been controverted. Since the defects could not be removed, therefore, the complaint case was filed for redressal of the grievances and vide order dated 23.11.2002, a Technical Examination of the motorcycle was conducted by Sri Shyam Singh Chauhan, Licensed Engineer, Surveyor and Loss Assessor. The Engineer after inspection submitted following report:

"Undersigned inspected the vehicle physically and mechanically on 26.4.2003 and found that as vehicle started and by shifting ear Ist & IInd there is undue noise which is due to uneven matching of gear teeth by which noise created.  

In my opinion it is a manufacturing defect which is likely to be replaced the gear assembly. This report is issued by me without prejudice."

Thus, from perusal of the Expert Report, it is clear that there was problem in the Gear Box due to uneven matching of gear teeth and the problem could only be removed by replacing the gear assembly. The complaint

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related to mal-functioning of the Gear Assembly and the Expert Report proves that there was certainly problem in it which required replacement of the entire Gear Box. This report has not been challenged by the parties. Thus, it is clear that the appellant committed misfeasance, remiss and

gross deficiency in service in not removing the defects in the gear box in time. The gear box of the motorcycle required change and it should be changed forthwith as a road safety measure, if not changed already.

From perusal of the records, it transpires that the Forum below arrived at the conclusion that there was a defect in the gear box in the motorcycle. There is no inappropriateness in it. However, it failed to take into consideration that at the time of inspection by the Expert on 26.4.2003, it had given a run of 45604 Kms. There was no defect in any other part of the motorcycle nor alleged. Therefore, directing the appellant to replace the motorcycle with the same make, model and with a new battery was certainly unjustified, uncalled for and inappropriate. Directing the appellant to refund the entire amount of Rs.40,749.00 with 6% p.a. interest in default was also unjustified. Considering the totality of the circumstances and on the basis of the facts, circumstances and Expert Report available on the record, we are of the considered opinion that the Gear Box of the motorcycle in question needs replacement, free of charge on ground of manufacturing defect. No other relief is required to be given. Consequently, the appeal deserves to be partly allowed.   

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ORDER

The appeal is partly allowed with costs and the appellants are directed to replace the Gear Box of the Hero Honda Splender Motorcycle bearing Registration no. UP 80 P 6226 with new Gear Box Assembly of the same make and model entirely free of charge within 30 days from the date on which the motorcycle is produced before them for this purpose, failing which they will be liable to pay the price of the Gear Box with 6% interest from the date of sale of the motorcycle till full and final payment is made. No other relief.  

Certified copy of the judgment be provided to the parties in accordance with rules.

         (A.K. Bose)                               (Sanjai Kumar)

    Presiding Member                             Member

Jafri PA II

Court No.3