IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Dated this the 28th day of December, 2022
Present: Sri.Manulal.V.S, President
Sri.K.M.Anto, Member
CC No.157/2017 (Filed on 03/07/2017)
Complainant : Narayanan Govindan
Thondukadavil House,
Pallippurathussery, Vaikom
Kottayam District, Kerala.
(Adv.Siby Mathew)
Vs
Opposite parties :1. Managing Director
Hero Motor Corp. Limited
Reg Office 34, Community Centre
Basant Lok, Vasanth Vihar,
New Delhi-110057
2. The Manager, M.S & S (Motors) P.Ltd
M.S & S house, Palarivattom
Ernakulam-682 025.
(Adv.K.S.ARUNDAS)
3. The Managing Director,
Vaikom Hero, Opp.Union Bank
Valiyakavala, Vaikom- 686 141.
O R D E R
Sri.Manulal.V.S, President
The Complaint is filed under section 12 of the Consumer Protection Act 1986.
The case of the complainant is as follows:
The complainant purchased Maestro Edge Scooter bearing Reg.No. KL 36-F-864, Eng No.JF33AAG4D19206, Chasis No.MBLJF33AAGAD19327 from the first opposite party on 27-06-2016 on payment of Rs.53,000/-. After a week the vehicle showed starting complaint and the same was entrusted to the second opposite party for repair. The vehicle got repaired after a day and returned to the complainant. After a week it was found that the petrol was leaking and the same was informed to the second opposite party, at the request of the second opposite party the vehicle was entrusted with the third opposite party. On the next day itself, the vehicle was returned to the complainant stating that everything was repaired and the vehicle was in good condition. But after a month while the petitioner was coming back to his home the engine was stopped abruptly. Again the vehicle was entrusted to the opposite party and got repaired and again after a month, it was found that the petrol was leaking and it was informed to the second opposite party and as per their request the vehicle was again entrusted with the third opposite party.
The vehicle was returned after repair and the first service of the vehicle was also done on 10-11-2016, the second service was also done. On 21-11-2016 while the complainant was going to Vaikom and when he reached Vazhamana the brake system of the vehicle failed all of a sudden and thereby the complainant fell from the vehicle and sustained some minor injuries. Again the vehicle was entrusted to the second opposite party for repair. The complainant was told that the problem was with the carburetor of the vehicle ad so the same was replaced. On 20-03-2017 when the complainant was going to Kalamassery and when reached Edappally traffic junction the vehicle stopped abruptly and the complainant had a narrow escape. Immediately it was informed to the company and the employees of the second opposite party came to the spot and had taken the vehicle to the second opposite party’s workshop and another vehicle was given to the complainant for his use. After two or three days the vehicle was returned and after a week while the complainant was going to Ernakulam, when he reached MG. Road again the vehicle had a sudden stop and the complainant had a narrow escape. Again the vehicle was entrusted to the second opposite party and after inspection complainant was told that the problem was with the key of the vehicle and after two or three days the vehicle was returned. Thereafter, the vehicle showed starting problem and used to stop immediately on running and a strange sound was being produced by the vehicle both in running and on rest. So the vehicle was again entrusted with the second opposite party for inspection on 17-05-2017.
The complainant learned that the vehicle was got manufacturing defects and as the complainant was not ready to risk his life by using the said vehicle, he demanded replacement of the vehicle and was not ready to take possession of the vehicle from the second opposite party. A legal notice was issued by the complainant on 17-05-2017 to the second opposite party for the replacement of the vehicle, but they turned deaf ears. According to the complainant, the denial of genuine demand of the complainant by the opposite parties amounts to deficiency in service, and the opposite parties committed unfair trade practice by selling a vehicle having a manufacturing defect. Hence, this complaint is filed by the complainant for an order to direct the opposite parties to replace the vehicle with a new one or in the alternative to return Rs.68,674/- along with compensation of Rs.50,000/- and Rs.10,000/- as the cost of this litigation. Upon notice except third opposite party others appeared before the commission and filed joint version contending as follows:
The first opposite party is a highly reputed public limited company incorporated and registered under the companies act 1956, having its registered office at 34, Community Centre, Basant Lok, Vasanth vihar, Delhi, and engaged in the development, manufacture, and sale of motorcycles. The second opposite party is the authorized dealer of the first opposite party.
The first opposite party sells vehicles only after the number of quality check-ups and road tests. Complainant purchased a scooter, from the second opposite party on 27-07-2016 after fully satisfying himself regarding the description, functions, quality, and the sale price. The complainant had approached the opposite parties first time for regular service on 09-11-2016, which is nearly 4 months later from the date of purchase. Second opposite party never requested the complainant to entrust his vehicle with an unauthorized dealer. All the averments in paragraph 3 of the complainant which are contrary to the above fact are false.
The complainant approached the opposite party on 24-11-2016 and informed that the vehicle met with a road accident and requested repair of the vehicle. Based on the request the opposite parties repaired the vehicle and returned it to the complainant. The brake system of the vehicle was working properly. Thereafter, on 04-01-2017, the complainant approached the opposite party stating that ‘petrol overflow’. Based on the request opposite party replaced the Carburetor assembly of the vehicle free of cost. The complainant took the delivery after service with full satisfaction. On 04-01-2017, the complainant approached the second opposite party and reported that ‘Light Loose contact’ as a customer friendly company; the opposite party inspected the vehicle and replaced some minor parts of the vehicle in order to satisfy the complainant. Then again on 02-03-2017, the complainant approached the second opposite party for third free service. At that time the complainant did not make any complaint about the scooter and the complainant took the delivery of the vehicle after service with full satisfaction.
Thereafter on 21-03-2017, the complainant approached the second opposite party stating starting trouble. The opposite party after inspection replaced the ‘two way valve’ of the scooter under warranty. On 24-03-2017, the complainant contacted the opposite party stating that the key set is not working properly. Then immediately the service team of the opposite party rectified the defect. Thereafter, the complainant approached the second opposite party stating ‘starting trouble’. But on inspection, the vehicle seems normal, and free from any defect, and the same was informed to the complainant.
Then the complainant told that he will not take his vehicle from the service center due to the reason best known to him. So from 17-05-2017, the vehicle of the complainant was kept in the workshop. According to the opposite parties, they extended full support and assistance to the complainant, but it seems to be an apparent attempt on the part of the complainant to extort illegal and unjustified gains by harassing the opposite parties. There is no deficiency in service or unfair trade practice on the part of the first and second opposite parties.
Evidence part of this case consists of proof affidavit of the complainant and exhibit A1 to A13 from the side of the complainant and proof affidavit of Nithin baby who is the Territory service manager of the first opposite party from the side of the opposite parties. No documentary evidence from the side of the opposite parties. Expert commission report s marked as exhibit C1.
On evaluation of complaint version and evidence on record we would like to consider the following points.
1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. If so what are the reliefs and cost?
Point number 1 and 2
There is no dispute on the fact that the complainant purchased Maestro Edge Scooter bearing Reg. No. KL 36-F- 864, eng no. JF33AAG4D19206 , Chasis No. MBLJF33AAGAD19327 which is manufactured by the first opposite party from the second opposite party on 27-06-2016 on payment of Rs.53,000/-. Exhibit A1 is the retail invoice issued by the second opposite party for an amount of Rs.53,000/- being the price of the said scooter to the complainant. According to the complainant after a week from the date of purchase of the scooter, it started to show starting complaints. It is further averred in the complaint as well as in the proof affidavit that after a week it was found that the petrol was leaking and at the request of the second opposite party the vehicle was entrusted with the third opposite party. On the next day itself, the vehicle was returned to the complainant, but after a month while the petitioner was coming back to his home the engine was stopped abruptly. Again the vehicle was entrusted to the opposite party and got repaired and again after a month, it was found that the petrol was leaking and as per their request, the vehicle was again entrusted with the third opposite party. The vehicle was returned after repair and the first service of the vehicle was also done on 10-11-2016. Admittedly the carburetor of the vehicle was replaced on 04-01-2017, to cure the complaint of ‘petrol overflow’. It was admitted by the first and second opposite parties that on 04-01-2017, they replaced some minor parts of the vehicle to rectify the defect of ‘Light Loose contact’. It is submitted in the version that on 21-03-2017, the opposite parties replaced the ‘two way valve’ of the scooter under warranty to cure the starting trouble. There is no dispute on the fact that on 24-03-2017, the complainant contacted the opposite party stating that the key set is not working properly and the service team of the opposite party rectified the defect. The specific case of the complainant is that all these complaints are due to the manufacturing defect of the vehicle. Complaint was resisted by the opposite parties stating that the vehicle has no manufacturing defect at all.
According to the opposite parties, the complainant had approached the opposite parties first time for regular service on 09-11-2016, which is nearly 4 months later from the date of purchase. On 24-11-2016 the vehicle met with a road accident and based on the request the opposite parties repaired the vehicle and returned it to the complainant. The brake system of the vehicle was working properly. It is further contended that when the vehicle was entrusted with them after 24-03-2017, alleging ‘starting trouble’ on inspection, the vehicle seems normal, and free from any defect, and the same was informed to the complainant. Then the complainant told that he will not take his vehicle from the service center due to the reason best known to him. So from 17-05-2017, the vehicle of the complainant was kept in the workshop.
In order to prove his case complainant filed an application to appoint an expert commissioner to inspect the vehicle and the same was allowed by this commission. The report of the expert is marked as exhibit C1. In exhibit c1 the expert commissioner reported that the odometer of the vehicle is 9940 km at the time of inspection. However, at the time of entrusting the vehicle at the service center odometer reading was 9500 Km as per the service history. The expert commissioner ruled out the chance of inherent manufacturing defects in the vehicle. He further reported that some sort of part manufacturing defect can be claimed for the electrical side of the vehicle.
According to the expert commissioner, the unsmooth performance of the engine may be due to a clogged air filter or defective CDI unit. He further reported that the current system or electrical system is suspicious in the vehicle. It is stated in exhibit C1 the spark flow intensity is low when compared to another maestro edge present at the service center for service. According to the expert commissioner, it can be due to a faulty C D I unit.
The expert commissioner categorically reported in exhibit C1 that the complaints of the vehicle are related to the electrical system of the vehicle. He suggests replacement of the wiring harness of the starter circuit, Cd unit, and all other components of the starter system and charging system including the flywheel magneto. Apart from that replacement of two way valve, fuel coke, petrol lines, and carburetor overhauling are recommended by the expert commissioner to rectify the issue of overflow and to ensure the perfect condition of the vehicle. Therefore we are of the opinion that the vehicle has no manufacturing defect and the defect of the vehicle can be rectified by replacing some parts.
It is further reported in exhibit C1 that according to service history the complainant has to visit several times, exactly 7 times other than free service or accident repair. According to the expert commissioner, it proves that the vehicle is a frequent troublemaker or improper service from the side of opposite parties. Thus it is clear from the evidence that the first and second opposite parties committed unfair trade practice by selling a defective vehicle to the complainant. The first and second opposite parties are under a bounden duty to rectify the defect of the scooter in perfect working condition. The first and second opposite parties have no case that the vehicle was not under the coverage of the warranty that was offered by the first opposite party.
Thus the failure of the first and second opposite parties to rectify the defects of the vehicle in a perfect working condition amounts to deficiency in service. No doubt, the act of the opposite parties caused much mental agony and hardship to the complainant for which the first and second opposite parties are liable to compensate. The consumer protection act is a beneficial legislation intented to protect consumers from the deceptive practice of the seller and service providers. Considering the nature and circumstances of the case we allow the complaint in part and pass the following order.
We hereby direct the first and second opposite parties to carry out the repair works which were recommended by the expert commissioner in Exhibit C1 report and rectify the defect of the vehicle in a perfect working condition at free of cost within 30 days from the date of receipt of this order.
We hereby direct the first and second opposite parties to pay Rs.25,000/- to the complainant as compensation for the unfair trade practice and deficiency in service on the part of the first and second opposite parties.
We hereby direct the first and second opposite parties to pay Rs.3,500 to the complainant as the cost of this litigation.
The first and second opposite parties are jointly and severally liable to comply the order within 30 days from the date of receipt of this order failing which the compensation amount will carry 9% from the date of this order.
Pronounced in the Open Commission on this the 28th day of December,2022.
Sri.Manulal.V.S, President sd/-
Sri. K.M. Anto, Member sd/-
Appendix
Exhibits marked from the side of complainant.
A1- Copy of retail invoice dated 27/07/2016.
A2 - Copy of retail invoice cash dated 10.11.2016.
A3- Copy of Retail invoice spare bill dated 08.12.2016.
A4- Copy of invoice dated 10.01.2017 issued by M.S & S(Motors) P.Ltd.
A5- Copy of invoice cash dated 02.03.2017 from M.S & S(Motors) P.Ltd
A6- Copy of invoice cash dated 30.03.2017 from M.S & S (Motors) P.Ltd.
A7- Copy of delivery received slip dated 17/05/2017.
A8- Copy of two wheeler certificate cum-policy schedule issued National Insurance Company Ltd.
A9- Copy of tax licence dated 27.07.2016 issued by Motor Vehicles Department.
A10- Copy of Registration of vehicle no.KL-36-F-864.
A11- Copy of lawyers notice dated 17/05/2017.
A12- Original postal receipt dated 17.05.2017.
A13- Original acknowledgment card dated 19.05.2017
Commission report
C1- Inspection report signed by Sri.Tisson George Michael
By Order
sd/-
Assistant Registrar
