D.O.F. 01.03.2010

                                        D.O.O.30.01.2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:    Sri. K.Gopalan                 :   President

              Smt. K.P.Preethakumari  :   Member

              Smt.M.D.Jessy                :    Member

Dated this the 30^th   day of   January    2012.

C.C.No.78/2010

K.O.Joseph,

Kainikunnel House,

Back of Vyapara Bhavan,

Puthiyatheru, P.O.Chirakkal

Kannur 670 011.                              Complainant

(Rep. by Adv.Sahjith Kumar Chalil)

1. Hero Honda Motors Ltd.,

    Head Office, 34,Community Centre,

    Basant Lak, Vasant Vihar,

    New Delhi 110057.

    (Rep. by Adv.P.P.Bhargavan)

2. Managing Director,

    Arjun Associates,

    Hero Honda Authorised Dealer,

    South Bazar, Kannur 2.

    (Rep. by Adv.P.P.Bhargavan)

3. Servie Manager,

    Arjun Associates,

    South Bazar, Kannur 2.                         Opposite Parties

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay  `7468 with  `15,000 as compensation or to replace the motor bike having manufacturing defect with  `15,000 as compensation and cost.

          The case of the complainant in brief is that he had purchased a hero Honda glamour motor cycle having No.KL.13/5.7687 from opposite parties 2 and 3 on 7.10.08. The Bike has undergone all the services as per warranty through the opposite parties service centre. Within three months of its purchase the saree guard and leg guard etc. began to rust and the opposite parties agreed to replace after few days. At the time of 4^th service, the Fiber parts on the rear left  and right sides were seen broken and were replaced free of charge. The replaced parts and other fiber parts like locker and wiser also were broken and hence the complainant has suffered huge loss. From enquiry it was realized that the hero Honda bikes of the same series have manufacturing defects and  now the bike looks like very old one. At the time of 5^th service, since the battery overflow pipe was not fixed. The acid from the battery happened to fall on the complainant’s leg, chassis of the vehicle, engine cover and silencer and those parts rusted and holes were formed on the silencer. Even though the same was informed to the service centre, they have not heeded the words of the complainant. At the time of 9^th service, the chassis adjustment nut was not fitted and wheel nut was not tightened properly. Even though the service engineer of the 1^st opposite party inspected the vehicle and offered to replace the defective parts they are not yet replaced the parts. So the complainant had issued a registered lawyer notice on 16.1.10, but issued reply stating untenable contentions. Hence this complaint.

          In pursuance to the notice issued by the Forum both opposite parties appeared and filed their version. 1^st opposite party filed version admitting that the complainant had purchased the vehicle and had undergone routine thirteen services. Apart from these the complainant had only raised a specific complaint with respect to vibration in cowl, locker and visor and these complaints were satisfactorily rectified by the opposite parties 2 and 3. The complainant has not raised any complaint with respect to leg guard, sari guard etc. All the complaints raised by the complainant were satisfactorily met and the vehicle was satisfactorily taken by the complainant. The vehicle manufactured by opposite party is of very good quality. The complaints alleged by the complainant in the present case was not happen due to any sort of manufacturing defect. The allegation that the leg guard, sari guard etc of the vehicle have been infected with rust within three months of purchase of the vehicle is false. The complainant has not raised any such complaint at any point of time during the routine course before issuing a letter prior to the complaint. The complainant has never raised any substantial complaints with respect to breakage of any plastic or fiber components. The complainant raised the complaint that the vibration   of the cowl and the said part was replaced as a gesture of goodwill and it may be due to the above good gesture by opposite parties that the complainant is raising all sort of imaginary claims for unlawfully enriching himself. The complaints raised by the complainant are not due to any manufacturing defect, but due to various reasons such s misuse, improper handling and accident etc. After inspection confirms that the complainant’s vehicle had met with several accidents. The complaint raised by the complainant with respect to vibration in visor was satisfactorily rectified. The normal wear and tear components like bulbs, electrical wirings, fillers, spark plug, clutch plate, brake shoes, fastness, rubber and plastic components etc. are not covered under warranty and hence the claim of the complainant with respect to manufacturing defect of the fiber parts itself is not maintainable as per warranty condition. As per the records the  complainant have used the vehicle substantially without raising any complaints of service nature and the present attempt of the complainant  seems to be with an intention to obtain unlawful enrichment. The contention that after 9^th service the vehicle was delivered without fixing chassis adjust nut and without properly tightening the wheel nut, the consequence of which resulted in stoppages of wheel while riding the vehicle etc. are false and hence denied. From the present condition of the vehicle, it would be evident that the vehicle has not been maintained in proper. Fashion and might have sustained several accidents rather fallen down as several occasion due to carelessness. The allegation that the battery pipe was not put in the vehicle during 5^th service is false and the complainant had no case as above mentioned and the story that he had sustained burnt due to spillage of acid on his legs, rusting been caused to engine cover, chassis and complaint in the buffer etc. are false and made only for the purpose of this case. There is no cause of action and hence the complaint is liable to be dismissed.

          The opposite parties 2 and 3 also filed version contending that the opposite parties are unnecessary parties since they have not issued any warranty and have no role in manufacturing process. The 2^nd opposite party admits that they are the dealer of Hero Honda  motor cycles manufactured by  1^st opposite party and also admits that complainant had purchased a hero Honda passion motor cycle on  7.10.08 having No.KL.13/57687. The opposite parties 2 and 3 denied the allegation that after 3 months of purchase, the leg guard, sari guard etc. began to rust and then while giving the vehicle to 4^th service, the fiber parts in the rear left and right sides were seen broken without any reason and the complainant suffered huge los etc are false. The further allegation that at the time of 9^th service, the chassis adjustment nut was not fitted and wheel nut was not tightened properly and when he returned to service centre and requested to fit the  screw, the original nut and washer were lost and it was fitted only before the 11^th service and  at the time of 5^th service, since  the battery over flow pipe was not fixed, the acid from the battery happened to fall on the complainant’s leg, chassis of the  vehicle, engine cover and silencer and those parts rusted and holes were formed on the silencer etc. are false. The further allegation that even though the service engineer of the 1^st opposite party inspected the vehicle and offered to replace the defective parts, the defective parts are not yet replaced and that the complainant issued a registered letter  narrating all these facts and the opposite party has sent reply stating false statements etc. are also false. The further allegation that the complainant had suffered a total loss of `7468 due to manufacturing defect of the vehicle and that he is entitled to get `15000 as compensation is also false.

          As per the warranty the obligation of 1^st opposite party is limited to repair or replace those parts which are considered to be the cause of malfunction of free of charge. The warranty shall not apply to normal wear and tear components like rubber and plastic components as laid down in clause 8 of limitations of warranty. The fiber or plastic parts of the complainants’ vehicle were damaged due to accident and due to carrying of heavy luggage on the vehicle. The vehicle met with 3 or 4 accidents and once the cowl was replaced on goodwill basis. the claim of the complainant that the fiber and plastic parts of the vehicle are automatically breaking was found to be false by the service engineer of 1^st opposite party and the complainant was informed that those parts cannot be replaced under the warranty free of charge. The 2^nd opposite party is doing the warranty obligation of 1^st opposite party as per the agreement between  opposite parties 1 and 2 . 1^st opposite party is liable to reimburse the value of defective parts replaced by 2^nd opposite party. Complainant was willfully omitted to produce the warranty card. This case is filed as a test case and no merit and hence the complaint is liable to be dismissed.

          Up on the above pleadings the following issues have been taken for consideration.

1.         Whether there is any deficiency in service on the part of opposite parties?

2.         Whether the complainant is entitled for the relief as prayed in the complaint?

3.         Relief and cost.

The evidence consists of the oral testimony of PWs 1 and 2 and DW1 and Exts.A1 to A16 and Exts.B1 to B 4(a).

Issues 1 to 3 :

          The complainant’s case is that due to manufacturing defect the leg guard and sari guard of his bike started rust and its fiber and plastic parts are also broken within three months of its purchase and even though the 1^st opposite party had replaced the fiber and plastic parts it again became defective including locker and wiser etc.  Due to deficient service the acid from the battery happened to fall on engine cover, chassis and silencer and hence it also rusted and become defective. In order to prove his case  he was examined as PW1 and PW2 also examined and produced  documents such as service bills, notice dt.16.1.10, postal receipts, reply notice service record sheet, photograph of motor bike catalogue warranty details, receipt dt.21.7.10, Bills dt.21.7.10, statement dt.21.7.10 and certificates of insurance. In order to disprove the case DW1 examined and produced documents such as Inland telegram, receipt issued from Kandoth service station, credit bill issued from the above service station, cash voucher and bill dt.17.9.10. According to opposite parties the vehicle has no manufacturing defects and if there is any defect it was caused due to accident and due to overload and misuse of the vehicle. In order to prove and convince the Forum that the vehicle has inherent manufacturing defect, the complainant has not taken out any expert and not produced any expert report. It was true that the complainant has taken steps for appointment of an expert after his cross examination which was intended to fill up the lacuna. In order to prove that the vehicle has some defect, the complainant has produced Ext.A6 photos, but they are marked subjected to proof and the complainant has not produced the negatives also. More over the complainant examined a witness, insurance agent as PW2. He was examined with a view to prove that the vehicle was defective and also to prove that it has never met with an accident. He deposed before the Forum that Hero Honda glamour KL.13.53687 h­n FSp-¡p¶ ka-b¯v  insurance cover note sImSp-¯Xp Rm\mWv. 15.10.09 \v  hml-\-T-]-cn-tim-[n-¨n-cp-¶p. B ka-b¯v h­nbpsS ]nd-In   fiber piecesh¨v sI«n-bn-cn-¡p-¶-Xm-bn-«mWv I­-Xp. s]m«n-b-Xp-sIm­v plastic Ib-dn-«mWv sh¨vsI-«n-b-Xp.-A-Xnsâ  sari guard, silencer, crash guard\pT Xpcp-¼p­mbncp-¶p.     . But he has not stated anywhere that all these were due to manufacturing defect. More over it is brought out in cross examination that he was not the competent person to examine the vehicle to issue an insurance certificate. More over from the deposition of this PW2 it is clear that he is an interested witness also. The PW2 again deposed that “ h­n¡v accident claim D­m-bn-«nÔ. But he is only an insurance agent and he is not the competent person to say that there were no claims as far as an insurance company is concerned. So it is seen that the words of PW2 is not in any way supported the case of the complainant. The complainant has not proved beyond doubt that the vehicle has manufacturing defect and was not met with an accident. So we are not in a position to attribute deficiency of service on the part of opposite party. But during pendency of proceedings the complainant and opposite party were came to a settlement and as per the settlement term, the opposite party expressed their willingness to repair the vehicle as a matter of good will. Accordingly the opposite party agreed to replace the fiber parts, sari guard, leg guard, to paint the portion of chassis having rust and engine cover and also to do electroplating work for the silencer and for painting the same and the complainant has to pay `750 for this work.  Out of this above agreed work there was an oral agreement between the opposite party and the complainant that the opposite party will pay the amount required for electroplating work and the complainant has to do the work with the help of any other service centre. Accordingly the complainant brought his vehicle before opposite parties 2 and 3 and has done the work. But according to the complainant the opposite parties instead of doing the work as per settlement done some other work without his consent and charged `810 over and above the settlement amount of `750. But according to opposite party they have done the work as per the demand of the complainant. The complainant admits that he had demanded only for doing general service and replacement of break   shoe other than the settlement term and the opposite parties have not replaced all the parts as per the settlement term. In order to prove this contention he has produced Ext.A10, A11 and A12 bill. But the manager of 2<sup>nd</sup> opposite party who had done the work was examined as DW1. He deposed that “ h­n repairsNbvXp sImSp-¯n-cp-¶p. repairsNbvXn«v  810cq A[n-IT hm§n-sb¶p ]-d-ªm icn-bà .Ext.A10,A11 and A12 {]Im-cT 810cq] A[n-IT hm§n-bXp tImSXn \nÀt±-in-¨-Xp -Iq-SmsX A\ym-b-¡m-c³ sN¿n¨  work\mWv. A10  {]Im-cT engine oil amän-bXp 155.38 ss]k A\-ym-b-¡m-c³ ]d-ª-{]-Im-c-T-am-än-sIm-Sp-¯-XmWv , stay winkeramän-b-XpT A\-ym-b-¡m-c³ Bh-i-ys¸« {]Im-c-amWv. stay tail lightamän-b-XpT A\-ym-b-¡m-c³ Bh-i-y-s¸« {]Im-c-am-Wv.  consumables A\-ym-b-¡m-c³ Bh-i-y-s¸-«-{]-Im-c-ap-ff ]Wn¡v hm§n-b-XmWv. General service  125cq] hm§n-bXp A\-ym-b-¡m-c³ -h-i-y-s¸« {]Im-cT sNbvX-]-Wn-¡mWv. Washing charge 50cq] hm§n-bXp A\-ym-b-¡m-c³-A-A-h-i-y-s¸« {]Im-c-amW.C-§s\bmWv  810cq] hm§n-b-Xp”. Moreover the complainant has no case that the opposite parties have not done  the  work as per Ext.A10. The 2<sup>nd</sup> opposite party has produced Ext.B1 to B4 bill which shows that the opposite parties have done all the work as per the terms of settlement. Moreover the above stated  `810 was charged from the complainant for the work done to his motor cycle. So we are of opinion that there is no deficiency of service on the part of opposite party and the complainant failed to substantiate his claim. So we are of the opinion that the complaint is liable to be dismissed and order passed accordingly.

          In the result, complaint is dismissed. No cost.

                    Sd/-                      Sd/-          

                    President             Member     

APPENDIX

Exhibits for the Complainant

A1.Labour consumable bills issued by OP

A2. Copy of the letter dt.161.10 sent to OPs

A3. Postal receipt

A4.Letter dt. 19.1.10 issued by OP

A5.Copy  of the service record sheet

A6.Photos

A7.Palmphlet issued by OP

A8. Copy of the warranty card issued by OP

A9 to A13. Receipts issued by OP

A14 to A16. Certificate of insurance of motor cycle

 Exhibits for the opposite Parties:

B1.Copy of the Telegram dt.5.8.10

B2.Cash bill issued by automobile service station

B3.Credit bill issued by Pavizham associates

B4. Cash voucher dt.18.9.10 issued by Pavizham  Associates.

  Witness examined for the complainant:

PW1.Complainant

PW2. K.S.Sebastian

Witness examined for the opposite party

DW1.M.K.Sathyan.

                                                         /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur