BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  : MEMBER

C.C. No. 206/2012 Filed on 05.07.2012

ORDER DATED: 31.08.2017

Complainant:

Praveen P.V, S/o Prabhakaran Nair, Archana, Mundanadu, Dalummugham P.O, Thiruvananthapuram-695 125.

                               (Party in person)

Opposite parties:

1. Hero Motorcorp Ltd., 34, Community Centre, Basant Lok, Vasanth Vihar, New Delhi-110 057.

(By Adv. Narayan. R)

2. Diya Motors, Near Town Limit, Kadappakada, Kollam – 691 008.

3. Sanjo Motors, N.H Road, Kurumkutty, Parassala-695 502.

                                    (By Adv. S.R. Presith for 3^rd O.P)

This C.C having been heard on 31.07.2017, the Forum on 31.08.2017 delivered the following:

ORDER

SMT. R. SATHI:  MEMBER

The case of the complainant is that he purchased a PBK Colour Hunk Bike of hero Honda now known as Hero Motorcorp Ltd. on 22.01.2011 for Rs. 61,158/-.  The vehicle has accelerator problem and loud noise from the engine part on the first use itself.  So the complainant complained the same to the 2^nd opposite party at the time of delivery.  The 2^nd opposite party cleared the accelerator problem but the noise was still there.  The complainant produced the bike for first service on 05.02.2011 and pointed out the problem to Diya Motors.  After first service there was no change in the condition of the vehicle.  The opposite party informed the complainant that it was due to the problem of rok/roker arm.  The part was not available at the time and they promised him that they will inform him when it is available.  The opposite party called the complainant on 10.02.2011 and the complainant gave the vehicle to the opposite party on 11.02.2011.  The opposite party opened the engine and changed the part, but the sound is still being produced.  The problem was not solved in the second service on 09.03.2011.  The complainant again approached the opposite party on 16.03.2011 with same complaint and the opposite party again opened the engine of the vehicle, but then also the problem was not solved.  Even after the third service on 04.06.2011 the problem was not solved.  The complainant registered complaint through online and the 3^rd opposite party called him.  He entrusted the vehicle to 3^rd opposite party and they opened the engine of the vehicle and changed several parts, but the noise is still being produced at an increased volume.  The fourth, fifth and sixth services on 15.07.2011, 16.09.2011 and 09.11.2011 was also done by the 3^rd opposite party.  But the condition of the vehicle was not changed.  3^rd opposite party informed him that the service engineers from the regional office will come and identify the problem.  The complainant again produced the bike for service and the engine remained open for 27 days.  Thus the battery was damaged and the complainant approached 3^rd opposite party with battery as damage caused to battery was within the warranty period.  The 3^rd opposite party promised to return the battery within 15 days, but it was not returned even after four months.  Now the vehicle is having mileage problem and the vehicle automatically stops while running.  Even after engine repairs the problem with the vehicle was not solved.  Hence the complainant approached this Forum for replacement of the vehicle/engine with one similar description which shall be free from any defect or refund of the price of the vehicle or charge paid by the complainant to opposite party along with compensation of Rs. 1,00,000/-. 

Opposite parties accepted notice and opposite parties 1 and 3 filed version.  2^nd opposite party failed to appear and set exparte. 

1^st opposite party filed version stating that 1^st opposite party is a stranger to whole proceedings and there is no privity of contract between 1^st opposite party and the complainant.  It is submitted that it can be seen from the job cards of the 3^rd opposite party that the vehicle is in a running condition and that the same has been put to extensive use by the complainant.  The vehicle which had been purchased on 22.01.2011 had run 7262 km when it was shown to the 3^rd opposite party on 15.07.2011.  By 16.09.2011 it had run for 9442 k,, by 19.11.2011 it had run for 11049 km and by 11.04.2012 the vehicle had run for 15701 km.  The complaint was only with regard to the clutch cable and for regular service done by the 3^rd opposite party.  The complainant had given the bike for repairs at other unauthorized workshops during the warranty period.  The same was against the warranty condition and this opposite party is not answerable for the defective services which might have affected the conditions of the vehicle. The online complaints made by the complainant were duly attended by this opposite party and it is evident from the job cards.  The allegation of the loss of mileage is only an afterthought and the same had never been raised by the complainant when it had been brought for service.  The battery is not manufactured by the 1^st opposite party and the manufacturer of the battery was not made party to complaint.  Though the complainant had violated the terms and conditions of warranty the opposite parties had replaced the armcomp valve rocker absolutely free of cost to the complainant.  The gasket head cover also was replaced.  The vehicle is having no manufacturing defects and the complainant has also violated the terms and conditions of warranty by giving the vehicle for service at unauthorized service centre.  The complaint is only to be dismissed. 

3^rd opposite party filed version stating that this opposite party never called the complainant for entrusting his bike to them for providing warranty services.  This opposite party so far never opened the engine.  At the time of producing the bike for fourth free service the bike was not in a good condition because of its rash and rough use and without proper maintenance.  Before producing the bike before this opposite party it was repaired or serviced by unauthorized workshops and it is revealed from service record sheet produced by the complainant.  This opposite party never opened the engine of the bike and also no necessity for opening the engine.  This opposite party never told that the service engineers will come from Ernakulam for identifying the problem.  Moreover at the time of all those services there was no sound or roker arm problem in the bike as alleged.  The bike was produced before 3^rd opposite party for availing 3 free services and not for engine problem.  The bike entrusted before this opposite party on 22.05.2012 for some minor maintenance.  The changing of timing chain is not come under warranty.  The complainant had done some services and maintenance from unauthorized workshop or by the unauthorized mechanics, so he will never get the warranty benefits.  Hence complaint may be dismissed. 

Complainant filed affidavit in lieu of chief and marked Exts. P1 to P10 marked.  Complainant was examined as PW1.  The 1^st opposite party Senior Area Service manager filed affidavit in lieu of chief and marked Ext. D1 and examined as DW1.  The expert commissioner filed commission report and marked as Ext. C1.  

Issues:

1. Whether there is any deficiency of service or unfair trade practice on the side of opposite party?
2. Whether the complainant is eligible for any reliefs sought for?

Issues (i) & (ii):- The complainant purchased a Heron Honda bike on 22.01.2011 from the 2^nd opposite party for Rs. 61,158/- as per Ext. P1.  There was accelerator problem and loud noise on the first use itself and he complained about it to the 2^nd opposite party.  The 2^nd opposite party cleared the accelerator problem but the loud noise was there even after the first service.  It was informed by the opposite party that the problem was with roker arm.  The part was changed and even after 3 services the problem was not solved.  The 3^rd opposite party conducted third and fourth service and engine was opened but the problem was not solved.  The battery of the vehicle was damaged and mileage was also reduced.  Now the vehicle automatically stops while running and hence the complainant approached this Forum to replace the vehicle along with compensation of Rs. 1,00,000/- and cost.  The 1^st opposite party stated that 1^st opposite party is a stranger to these proceedings.  The vehicle is not having any manufacturing defects.  The reason stated for this is that the impugned bike is still in use by the complainant, it has run for 34000 km.   The bike has a mileage of 51.5 km/ liter.  The bike was given for service to unauthorized service centre.  The 3^rd opposite party filed version denying the allegations of the complainant.  The complainant filed application for expert commission and an expert was appointed.  The commissioner filed report and it was marked as Ext. C1 on 15.03.2014.  The 1^st opposite party filed objection to commission report stating that the commission report is totally biased and not even a single point mentioned by the opposite party finds mention in the report and so on.  The 1^st opposite party had taken steps to examine the commissioner, but even after accepting the summons.  But the commission report already marked on 15.03.2014 became part of record.  The commissioner in his report stated that it is suspected that the engine was having some inherent problems at the time of delivery of the vehicle.  But we cannot assume anything as the commissioner suspected the inherent problem.  Any way commissioner states that engine condition of the vehicle is very weak at the time of inspection and it requires complete engine overhauling at the earliest.  Moreover the commissioner found that the result of pollution test was found below the required level.  Opposite parties took the contention that the complainant gave the vehicle for repairs to unauthorized service centre.  The vehicle was purchased on 22.01.2011 and Ext. P4 cash bill dated 05.02.2011, Ext. P5 dated 10.03.2011, Ext. P6 dated 09.11.2011 shows that the complainant approached the 2^nd and 3^rd opposite party from the next month of purchase onwards.  The Exts. P4 and P6 shows that some parts are brought by the complainant.  The complainant himself admits that he is using the vehicle and the vehicle was inspected after 2 years and 8 months of purchase.  The allegation of manufacturing defect was not proved but at the same time it is proved that the vehicle is having defects from the very beginning and the complainant approached the opposite parties for repair.  Complainant deposed that he approached 3^rd opposite party for repairs, but no other allegation against 3^rd opposite party.  It is clear that the vehicle of the complainant is having defects and 1^st opposite party is liable to compensate for that.  Therefore complaint is partly allowed by directing the 1^st opposite party to pay Rs. 25,000/- towards compensation and Rs. 5,000/- towards costs.

In the result, complaint is partly allowed directing the 1^st opposite party to pay Rs. 25,000/- towards compensation and Rs. 5,000/- towards costs within one month from the date of receipt of this order failing which the amount of Rs. 25,000/-  shall carry interest @ 12% from the date of default till payment. 

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

 Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31^st day of August 2017.  

     Sd/-

R. SATHI                               : MEMBER

      Sd/-

P. SUDHIR                            : PRESIDENT

      Sd/-

                                                                        LIJU B. NAIR                        : MEMBER

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C.C. No. 206/2012

APPENDIX

  I      COMPLAINANT’S WITNESS:

          PW1  - P.V. Praveen     

 II      COMPLAINANT’S DOCUMENTS:

P1     - Retail invoice dated 22.01.2011

P2     - Receipt dated 22.01.2011 for Rs. 66,416/-

P3     - Retail invoice dated 22.01.2011

P4     - Cash bill

P5     - Job card

P6     - Service Retail Invoice

P7     - Bill dated 22.05.2012

P8     - Cash Bill dated 09.07.2012

P9     - Cash Bill dated 10.07.2012

P10   - Owner’s manual

III      OPPOSITE PARTY’S WITNESS:

          DW1 - Senthil Kumar   

 IV     OPPOSITE PARTY’S DOCUMENTS:

D1     - Copy of details of outlets

  V     COURT EXHIBIT

          C1     - Commission Report 

                                                                                                      Sd/-

PRESIDENT

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