`                                                                                                                                  Date of Filing:          08.08.2017

                                                                                                                                 Date of Disposal:  28.06.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.                    .…. PRESIDENT

                   TMT.      K. PRAMEELA. , M.Com.,                           ….. MEMBER-I

                   THIRU:  D.BABU VARADHARAJAN., B.Sc., B.L.,    ….MEMBER-II

CC.No.34/2017

THIS FRIDAY THE 28^th   DAY OF JUNE 2019

 Krishna Moorthy,

S/o.Govindaraj,

No.3/35, Kallur, Palavakkam,

Gummidipoondi - 601 201.                                                    …… Complainant.

                                                                   //Vs//

1.The selling dealer,

    (Code No.TN-01-0005)

    Balaji Automotive, No.853/274, T.H.Road,

    Old Washermanpet Road, Chennai - 600 021.

2. Veera Bikes,

    Honda Sub Dealer,No.101A, Vettu Colony,

    G.N.T.Road, Gummidipoondi - 601 201.

3. Corporate Warranties (I) Private Limited,

    Saker - 7, b-139, Ashram Road,

    Vishalpur, Ellisbridge, Ahmedabad

    Gujarath - 380 009.                                                               ……...Opposite parties

This complaint is coming upon before us finally on 13.06.2019 in the presence of M/s. D.Johnpaul,  Counsel for the complainant and Counsel for the 1^st & 2^nd opposite parties filed vakalat and subsequently they have not filed written version, proof affidavit and written argument, therefore the 1^st & 2^nd opposite parties were set ex-parte on 05.10.2017 and Sri.N.V.Nagendra Kumar, Counsel for the 3^rd opposite party and having perused the complainant and 3^rd opposite party documents, evidences, this Forum delivered the following:

ORDER

PRONOUNCED BY THIRU. JUSTIN DAVID, PRESIDENT.

This complaint has been preferred by the complainant U/S-12 of the Consumer Protection Act-1986 against the opposite parties for a direction to replace the ‘Dream Yuga’ bike with a new one of similar description and to pay  a sum of Rs.50,000/- towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite parties and to pay a sum of Rs.1000/- per day from the date of purchase till the date of filing this complaint with interest 2% per annum calculated as compensation for the loss to the complainant.

2. Brief Averments in the complaint filed by complainant is as follows:-

   The complainant purchased a Honda Motor Cycle bearing Registration No.TN-18-AH-2066 from the 1^st opposite party by paying a sum of Rs.53,089/- on 06.04.2016 and also purchased 365 days extended warranty from the 3^rd opposite party by paying Rs.473/- so that the warranty period is extended up to 07.04.2019. After purchase the above said vehicle within 18 days merely running only 580 kilo meters it is started problem, so the complainant has submitted his vehicle for 1^st service on 26.04.2016, 2^nd service on 22.07.2016 and 3^rd service on 27.01.2017.  After completion of 3^rd service, the complainant has taken delivery of his bike from 1^st opposite party, upon covering 4 to 5 kilo meters the above said bike suddenly stopped and the engine ceased irretrievably, at that point of time it merely ran 10,171 kilo meters only so that the complainant had decided to left in the custody of Veera Bikes and proper instructions were given to them to replace the defunct bike with a new one and free from any defect.  Further the Authorized dealer - Balaji Automotive, instead of replace the above said vehicle the 1^st opposite party prepared a JOB CARD indicating ‘Complaint’ and mentioning false date 18.01.2017 and also there was no response from the authorized dealer till 18.04.2017 in spite of many phone communications to attend the grievance of the complainant.  Therefore the complainant herein has to undergo mental agony, hardship and painful inconveniences.  Hence an advocate notice sent to the authorized dealer and sub-dealer by the complainant and this too was not responded.  Therefore the complainant prays that this Forum for a direction to replace the ‘Dream Yuga’ bike with a new one of similar description and to pay a sum of Rs.50,000/- towards compensation for causing mental agony to the complainant due to the deficiency in service on the part of the opposite parties and to pay a sum of Rs.1000/- per day from the date of purchase till the date of filing this complaint with interest 2% per annum calculated as compensation for the loss to the complainant.

3. The brief contention of written version of the  3^rd  opposite party is  as follows:-

The 3^rd opposite party totally deny any liability subsisting on its side as stated by the consumer complainant in the very consumer complaint’s averment and is an unnecessary party for the very impletion done in the very consumer complaint itself and is totally alien and an unconnected entity as there is no imputation of any averment made at the 3^rd opposite party in the very consumer complaint is the crystal clear vivid proof that this 3^rd opposite party just like that been impleaded as a party of formal mode as a formal party if at all to be viewed in the eye-of law and thus this 3^rd opposite party against which existence of any iota of privacy of contract held prior to the time of its commencement of the very time inter-regnum period of its starting point as vividly denoted and stated in the very 1^st document of this consumer complaint filed by the consumer complainant. The 3^rd opposite party’s impletion is either be of an opposite party of a formal nature or in strict-sensu legally to be deemed as an unnecessary party and liable to be ultimately dismissed as Mis-jointer of party in this consumer complaint limini instituted of this very consumer complaint by the said consumer complainant as against him i.e. consumer complaint at this stage but nothing otherwise and as there is no legal necessity of any time inter-regnum warrants its period that legally for any subsistence at this juncture of time of the very institutional stage.  The extended warranty of the 3^rd opposite party commences only after the expiration of its period of its cover of one year of the manufacturing unit’s warranty period of 05.04.2018 onwards and after the such expiration of the manufacturer’s warranty and not prior to it and extended warranty of the 3^rd opposite party commences only from 06.04.2018 and subsists till 05.04.2019 and not prior to its commencement for reckoning of the period of its time inter-regum and thus this consumer complaint filed by the consumer complainant impleading the 3^rd opposite party for any award of claim for its lawful passage in favor of the consumer complainant is legally fail. Hence the District forum may be exonerated 3^rd opposite party.

4. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 to Ex.A14 were marked.  While so, on the side of the 3^rd opposite party, the proof affidavit submitted as his evidence and Ex.B1 and Ex.B2 are marked and oral argument adduced on the side of the complainant and 3^rd opposite party.  The 1^st and 2^nd opposite parties were set ex-parte for non appearance before this forum.

5.  At this juncture, the point for consideration before this forum is:-

(1) Whether the complainant is entitled for the relief claimed in the complaint from the opposite parties?

(2) To what other reliefs, the complainant is entitled?

6. Point No.1:-

The case of the complainant is that the complainant purchased a Honda Motor Cycle bearing Registration No.TN-18-AH-2066 from the 1^st opposite party by paying a sum of Rs.53,089/- on 06.04.2016 and the above said Motor Cycle created problems within 18 days from the date of purchase.  The complainant handed over the vehicle to the 1^st opposite party for 1^st service on 26.04.2016 and 2^nd service on 22.07.2016 and 3^rd service on 27.01.2017.  After completion of the 3^rd service the above said bike suddenly stopped and the engine ceased irretrievably and the complainant reported the same with the 2^nd opposite party on 27.01.2017 itself.  When the complainant purchased a two wheeler from the 1^st opposite party, the 3^rd opposite party has given additional extended warranty for one year that is from 06.04.2018 to 05.04.2019.  Though the warranty period given by the opposite parties to the complainant in existence they have not replaced the vehicle with new one and committed deficiency in service. Therefore the complainant filed this complaint before this forum for remedy.

7. The 3^rd opposite party contended in the written version that the extended warranty period of the 3^rd opposite party commences only from 06.04.2018 to 05.04.2019 and not prior to its commencement for reckoning of the period of its time inter-regum and thus this consumer complaint filed by the consumer complainant impleading the 3^rd opposite party is not valid.

8. The complainant purchased a new Honda Motor Cycle bearing Registration No.TN-18AH-2066 by paying Rs.53,089/-.  Ex.A4 is the copy of the Registration Certificate issued by registering authority, RTO, Redhills, Chennai -52.  Therefore the complainant is the owner of the vehicle.  The 1^st opposite party is the dealer and the 2^nd opposite party is the sub dealer and 3^rd opposite party is the corporate warranties who issued extended warranty for the above Motor Cycle for one year.

9. The complainant has handed over the vehicle to the 1^st opposite party for service on 26.04.2016.  Ex.A8 is the copy of retail invoice issued by the 1^st opposite party and the complainant also taken the delivery of his vehicle from the 1^st opposite party after first free service.   The complainant has again handed over his vehicle for 2^nd free service to the 1^st opposite party on 22.07.2016 and taken delivery of the vehicle after service.  Ex.A9 is the copy of the invoice issued by the 1^st opposite party.  Thereafter the complainant handed over the vehicle for 3^rd service on 27.01.2017 to the 1^st opposite party.  At the time of 3^rd service the above said vehicle run 10,171 kilo meters.  Ex.A10 is the copy of the invoice issued by the 1^st opposite party.  According to the complainant, after service he has taken his vehicle on 27.01.2017 and on covering 4 to 5 kilo meters the above said bike suddenly stopped and the engine ceased irretrievably and therefore the complainant handed over his vehicle to the 2^nd opposite party for service and demanded for replacement of a new one.  But the 2^nd opposite party refused the complainant’s claims.  The 2^nd opposite party has issued a letter dated 27.01.2017 to the complainant stating that the vehicle is ready for delivery after the necessary repairs.   Ex.A12 is the copy of letter dated 27.01.2017.  But the complainant received Ex.A12 only on 07.04.2017.  The complainant in his legal notice stated that he received the letter Ex.A12 only on 07.04.2017.  But the opposite party has not sent any reply to the legal notice.

10. With respect to replacement of new one, the complainant has not filed any expert opinion that the vehicle is having manufacturing defect.  Further there is no proof on the side of the complainant to show that there is manufacturing defects in the above said vehicle.  Therefore the complainant is not entitled for replacement of new vehicle.  On the other hand the above vehicle created problem within 18 days from the date of purchase and the complainant handed over his vehicle for service to the 2^nd opposite party.  The above said allegation made by the complainant in the complaint is not rebutted by the opposite parties. Further the 2^nd opposite party is set ex-parte. Therefore the 2^nd opposite party is liable to repair the vehicle on free of cost.

11. The complainant’s counsel before filing this complaint issued a legal notice to the opposite parties on 10.05.2017.  Ex.A3 is the copy of the legal notice.  The opposite parties received the legal notice but the 2^nd opposite party failed to send any reply in the legal notice.  Ex.A3 it is stated as follows:-

Therefore my client is not satisfied to utilize the Motor Cycle and my client returned the vehicle and my client demanded for another new vehicle for his own use, but you have not consider my client’s demand and my client received the letter from the service center dated 07.04.2017 and the vehicle was made necessary repair and ready to deliver to my client.  On perusal of your letter my client shock and surprise that you have made the necessary repairs on my client’s vehicle.  My client is not willing to get back the vehicle, as per your letter my client already two time received the vehicle after your repairs, but the vehicle is not in good condition and my client is not satisfied to get back the very same vehicle.  Therefore you are requested to deliver fresh vehicle to my client.

12. As per legal notice it is stated that the 2^nd opposite party repair the vehicle and the vehicle is ready for delivery but the complainant is not willing to take back the vehicle and demanded to deliver with new one.  There is no proof on the side of the complainant that there is a manufacturing defect in the vehicle therefore the complainant is not entitled for new one. On the other hand the 2^nd opposite party is liable to repair the vehicle in road worthy condition on free of cost.  The complainant also admitted in the legal notice that the vehicle was repaired by the 2^nd opposite party but, the complainant refused to take delivery of his vehicle and demanded a new one.  Therefore the 2^nd opposite party also done their work within the time and there is no deficiency in service on the side of the 2^nd opposite party.

13. The 1^st opposite party is the dealer from whom the complainant purchased the Motor Cycle and the 3^rd opposite party who issued extended warranty certificate to the complainant and the extended warranty period commences from 06.04.2018 and up to 05.04.2019. But the complainant’s vehicle was handed over to the 2^nd opposite party for repair not during the extended warranty period.  Hence the 3^rd opposite party is not liable for rectifying the defects in the vehicle.   Therefore this complaint against the 3^rd opposite party is liable to be dismissed.  On the other hand, since the Motor Cycle created problem within initial warranty period, the 2^nd opposite party is liable to rectify all the defects in the vehicle on free of cost in road worthy condition.  Thus the point No.1 is answered accordingly.

14. Point No.2:-

In the result, this complaint is allowed in part.  Accordingly, the 2^nd opposite party is directed to repair the Dream Yuga Motor Cycle bearing Registration No.TN-18-AH-2066 in roadworthy condition on free of cost within one month from the date of receipt of this order copy.  Further the complainant is directed to take delivery of his vehicle from the 2^nd opposite party within three days from the date of completion of the repair works.  With respect to other reliefs and also against the 1^st and 3^rd opposite parties this complaint is dismissed.  No costs.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum on this 28^th June 2019.

-Sd-                                                       -Sd-                                                           -Sd-

MEMBER-II                                       MEMBER-I                                              PRESIDENT

List of document filed by the complainant:-

List of document filed by the 3^rd opposite party:-

    -Sd-                                                  -Sd-                                                                     -Sd-

MEMBER-II                                   MEMBER-I                                                          PRESIDENT