Date of Filing      : 03.03.2022
                                                                                                                  Date of Disposal: 16.05.2023

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                   .…. PRESIDENT
                 THIRU.P.VINODH KUMAR, B.Sc.,B.L.,                                                        .....MEMEBR-I
                 THIRU.P.MURUGAN,M.Com.,ICWA(Inter)., B.L.,                                    ....MEMBER-II

CC. No.18/2022
THIS TUESDAY, THE 16th DAY OF MAY 2023

Mr.Magesh, S/o.Mr.Devendran,
No.1/3A, Mudhaliyar Street,
Puliyur Village,
Pakkam Post,
Thiruvallur Taluk & District.                                                                          ……Complainant.
                                                                               //Vs//
1.Dhanalakshmi Motors,
   Auto Consultant,
   All Kind of Multibrand Vehicle,
   No.6,7, L.D.Naidu Complex,
   K.T.P.Complex, Pakkam Village,
   Thiruvallur District 602 024.

2.HM Motors,
    No.3, Porur Vanagaram Main Road,
    Near Saravana Bhavan Hotel,
    Sai Nagar, Ganapathi Nagar,
   Mogappair, Chennai 600 116.

3.Hero Motocorp Limited,
    No.1, Nelson Mandela Road,
    Vasant Kunj, Phase II,
    New Delhi, 110 070. India.                                         ..........Opposite parties.

Counsel for the complainant                             :   Mrs.R.Jayasree, Advocate.
Counsel for the 1st opposite party                    :   Exparte.
Counsel for the 2nd & 3rd opposite parties      : Mrs.S.Priya, Advocate.
                        
This complaint is coming before us on various dates and finally on 08.05.2023 in the presence of Mrs.R.Jayasree  counsel for the complainant and Mrs.S.Priya counsel for the 2nd & 3rd oppostie parties and the 1st opposite party was called absent and set exparte on 10.08.2022 for non appearance and not filing of written version within the mandatory period prescribed in the statue   and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY THIRU.P.VINODH KUMAR, MEMBER -I

This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in selling the damaged vehicle to the complainant along with a prayer to direct the opposite parties to pay a sum of Rs.2,00,000/- towards compensation for the loss and hardship caused to the complainant or in alternative to replace the new vehicle along with registration charges, insurance charges, Life Tax, service charges, EMI paid towards loan at Rs.6100/- per month and documentation charges to the complainant and to pay a sum of Rs.10,000/- towards cost of the proceedings to the complainant.
Summary of facts culminating into complaint:-

That the complainant had purchased a brand new two wheeler Splendor Plus from the 1st opposite party on 03.12.2021.  The complainant had paid Rs.23,000/- to the 1st opposite party and the balance payment in 12 monthly installments of Rs.6100/-.  The complainant had taken the delivery on 04.12.2021 during night hours and the vehicle appears like a new one at that time.  After the registration, the complainant noticed that all parts of the vehicle are in rusted condition. The opposite parties cheated the complainant by selling the vehicle in bad condition.  The 1st opposite party admitted that the vehicle was affected in flood and hence the vehicle got rusted.  The 1st and 2nd opposite parties either to replace the old vehicle with new one or to refund the initial payment made by him. The opposite parties never accepted his request and failed to replace the vehicle nor refund the amount.  Hence the act of the opposite parties amounts to negligent act and deficiency in service.  The complainant suffered hardship and loss and hence the complaint.
The crux of the defence put forth by the 2nd & 3rd opposite parties:-
The opposite parties 2 & 3 disputing all the allegations in the complaint interalia contending that the complainant’s vehicle had undergone stringent internal quality test but also rigorous external quality assessment by competent authority i.e. Automobile Research Association of India in compliance with S.126-A, of the Motor Vehicle Rules 1989.  The complainant has to prove that the vehicle is having inherent manufacturing defects or deficiency in service on the part of the opposite parties 2 & 3.  The minor issues have arisen due to usual wear and tear, quality of maintenance, quality of usages etc.  However, all such issues were attended by the 2nd opposite party. The complainant approached 1st opposite party on 17.12.2021 for rusting issue in the vehicle at the time of 1st free service of the vehicle and the same was repaired to the satisfaction of the complainant.  The 2nd opposite party replaced various parts under warranty terms.  The complainant had done three free services and the latest service was done on 08.06.2022.  No complaint was reported by the complainant relating to rusting in the last service.  As per vehicle service history, multiple parts of the vehicle was replaced at the time of servicing as per warranty terms job cards dated 17.12.2021, 24.02.2022, 07.04.2022 and 07.06.2022 revealed that the vehicle was serviced to the satisfaction of the complainant.  There is no manufacturing defect in the vehicle and the opposite parties have not committed deficiency in service on their part and hence prayed to dismiss the complaint.
On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.17 were marked on their side.  On the side of opposite parties 2 & 3 proof affidavit was filed and documents Ex.B1 to Ex.B4 were marked on their side. The 1st opposite party did not appear before this commission to file any written version, hence the 1st opposite party was called absent and set exparte on 10.08.2022 for non appearance and not filing of written version within the mandatory period prescribed in the statue  
 Points for consideration:-
Whether there is any deficiency in service on the part of the opposite parties?
If so to what reliefs the complainant is entitled?
Point No.1:-
It is the case of the complainant that he had purchased a brand new motorcycle Hero Splendor Plus from the 1st opposite party on 03.12.2021.  He had taken delivery on 04.12.2021 during night hours.  After registration, he came to know that certain parts of the vehicle got rusted.  Hence he approached the opposite parties for replacement of the vehicle with new one.  The opposite parties never adhered the request of the complainant and failed to replace the defective vehicle.
To prove the case, the complainant deposed proof affidavit with 17 documents which were marked as Ex.A1 to A17.  Ex.A1 is the receipt issued by the opposite party for payment of Rs.23,000/-, Ex.A2 is the Delivery note issued by the opposite party, Ex.A3 is the copy of insurance policy, Ex.A4 is the RC Book, Ex.A5 is the legal notice issued by the complainant, Ex.A6 is the acknowledgment card for proof of delivery, Ex.A7 is the rejoinder notice issued by the complainant, Ex.A8 is the acknowledgement card for proof of delivery, Ex.A9 is the Tax Invoice issued by HM Motors, Ex.A10 is the photographs, Ex.A11 to Ex.A14 are service record of the vehicle and Ex.A15 to Ex.A17 are Regulars Job cards.
Even after receipt of notice form this commission, the 1st opposite party failed to appear before this commission and file the written version within the mandatory period and hence the 1st opposite party set exparte on 10.08.2022.
Per contra the opposite parties 2 & 3 contended that there is no manufacturing defect in the vehicle and there is no deficiency in service on the part of the opposite parties. The complainant’s vehicle was serviced on several occasions to the satisfaction of the complainant and some parts of the vehicle were replaced under warranty terms.  The complainant has to prove that the vehicle is having inherent manufacturing defects.  The opposite parties have done several quality tests prior to the delivery of the vehicle.
To refute the claim of the complainant the opposite parties 2 & 3 filed proof affidavit with 4 documents which were marked as Ex.B1 to Ex.B4.  Ex.B1 is the vehicle history card, Ex.B2 is the job cards, Ex.B3 is the authorization letter and Ex.A4 is the Tax invoice.
It is not disputed that the complainant had purchased a brand new motorcycle with registration No.TN 12 AR 1260 and he had approached the opposite parties for replacement since the vehicle got rusted in several parts.  Ex.A1 is the advance amount paid by the complainant and Ex.A2 is the Delivery notice issued by the 1st opposite party.
It is admitted by the opposite parties 2 & 3 in para 21 of their written version that the complainant had approached the 1st opposite party on 17.12.2021 for rusting issue in the vehicle within two weeks from the date of delivery of the vehicle.  The said issue had been rectified by the opposite parties by replacing chain sprocket kit, mounting bolts etc.  The act of the opposite parties clearly reveals that the said complainant’s vehicle got rusted within two weeks from the date of purchase.  Since it is a brand new vehicle, it is not acceptable to get it rusted within the short span of usage.
Moreover the opposite parties had not explained the reasons for rusting in the vehicle within two weeks from the date of purchase.  The 1st opposite party had not appeared before this commission to refute the allegations of the complainant.  Therefore the allegations of the complainant is acceptable one that the said vehicle got drowned in the rain water as informed by the 1st opposite party and therefore the vehicle got rusted within the short time of usage by the complainant.
We have carefully perused the pleadings, documents and arguments advanced by both parties we are of the considered view that the act of selling the damaged vehicle which was affected in the flood to the complainant by the opposite parties amounts to deficiency in service.  This point is answered accordingly.
Point No.2:-
Since we have come to the conclusion that the opposite parties had committed deficiency in service, the complainant has to be compensation adequately.  However, the complainant had utilized the vehicle for considerable time after rectification and had driven the vehicle more than 14000 kms and hence the complainant is not entitled for refund of advance amount or replacement of the vehicle.  We are inclined to award Rs.20,000/- towards compensation for the loss and mental agony and Rs.5,000/- as litigation expenses to the complainant.
In the result, the complaint is partly allowed against opposite parties 1 to 3 directing them;
 To pay a sum of Rs.20,000/- (Rupees twenty thousand only) towards compensation for the mental agony and hardship caused to the complainant;
 To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
 The above order shall be complied within six weeks from the date of receipt of this copy of the order, failing which, this said compensation amount shall carry interest at the rate of 9% per annum till the date of payment.

 Dictated by the Member -I to the steno-typist, transcribed and computerized by him, corrected by the Member -I and pronounced by us in the open Commission on this the 16th day of May 2023.

  Sd/-                                       Sd/-                                            Sd/-
MEMBER-II                      MEMBER -I                            PRESIDENT

List of document filed by the complainant:-

Ex.A1 03.12.2021 Receipt issued by the 1st opposite party for payment. Photo copies
Ex.A2 04.12.2021 Delivery Note issued by 1st oppostie party  Photo copies
Ex.A3 04.12.2021 Copy of Insurance Policy. Photo copies
Ex.A4 ................ RC Book. Photo copies
Ex.A5 30.12.2021 Legal notice issued by the complainant to the 1st and 2nd opposite parties. Photo copies
Ex.A6 ................ Acknowledgement card. Photo copies
Ex.A7 31.12.2021 Jejoinder notice. Photo copies
Ex.A8 ............... Acknowledgement card. Photo copies
Ex.A9 05.01.2022 Tax Invoice. Photo copies
Ex.A10 ................. Photographs. Photo copies
Ex.A11 25.02.2022 Tax Invoice. Photocopies
Ex.A12 24.04.2022 Tax Invoice. Photo copies
Ex.A13 09.06.2022 Tax Invoice. Photo copies
Ex.A14 04.08.2022 Tax Invoice. Photo copies
Ex.A15 01.10.2022 Job Card. Photo copies
Ex.A16 18.11.2022 Job Card. Photo copies
Ex.A17 18.01.2023 Job Card. Photo copies

List of document filed by the opposite parties 2 & 3 :-

Ex.B1 …………….. Copy of the vehicle history card. Photo copies
Ex.B2 ……………. Copy of the job card dated 17.12.2021, 24.02.2022, 07.04.2022 and 07.06.2022. Photo copies
Ex.B3 15.07.2022 Authorization letter. Photo copies
Ex.B4 09.06.2022 Tax Invoice. Photo copies

     
   Sd/-                                             Sd/-                                                 Sd/-
 MEMBER-II                           MEMBER-I                                   PRESIDENT