Andhra Pradesh

Chittoor-II at triputi

CC/46/2017

Nara Sathish Kumar, S/o N.Subramanyam Naidu - Complainant(s)

Versus

Hero Motocorp. Ltd., Rep. by the Managing Director, - Opp.Party(s)

L.Venkata Ramana, V.Bhargavi

12 Sep 2018

ORDER

Filing Date: 31.08.2017

Order Date:12.09.2018

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE TWELFTH DAY OF SEPTEMBER, TWO THOUSAND AND EIGHTEEN

 

 

 

C.C.No.46/2017

 

 

Between

 

 

Nara Sathish Kumar,

S/o. N.Subramanyam Naidu,

D.No.1-4-380, Kummara Thopu,

Tirupati,

Chittoor District.                                                                              … Complainant.

 

And

 

 

1.         Hero Motocorp Ltd.,

            Rep. by The Managing Director,

            Its registered office:

            34, Community Centre, Vasant Vihar,

            New Delhi – 110 057,

            India.

 

2.         Sri Gopal Automobiles,

            Rep. by its Managing Director,

            House of Heros,

            D.No.19-3-13(M), Renigunta Road,

            Tirupati,

            Chittoor District,

            Andhra Pradesh.                                                                   …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 29.08.18 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.L.V.Ramana, Kum.V.Bhargavi Yadav, counsel for complainant, and Sri.K.Prem Kumar, counsel for opposite party No.1, and Sri.S.Zakeer Hussain, counsel for opposite party No.2,  and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, by the complainant with the following allegations:

2.  On 28.03.2016 complainant purchased Hero Passion Pro Drs cast black heavy grey vehicle bearing Engine No.HA10EVGHC24718, Chassis No.MBLHA10BSGHC24473 from opposite party No.2, who is the authorized dealer of opposite party No.1 (Manufacturer) for cost of Rs.52,400/- and the same was registered with registration No.AP-03-BV-0259, which was financed with Shri Ram City Union Finance Ltd., Tirupati. The vehicle started giving trouble from the day one of its purchase. There were mileage, pickup, engine heat and sound issues with regard to the said vehicle. Opposite party No.2 gave assurance to the complainant to check and rectify the defect, but even after rectifying the defects, the issues are not resolved. Hence, the complainant handed-over the vehicle to opposite party No.2. Despite opposite party No.2’s assurance to rectify the defects, the issues remained unresolved. The complainant gave complaint to opposite party No.1 through their website. They issued reply to complainant “plz visit” the opposite party No.2 and they will rectify the defects. Whenever the complainant approached opposite party No.2 regarding vehicle defects, the employees of opposite party No.2 behaved in rude manner with the complainant. Opposite party No.2 issued job cards, which discloses that vehicle is running with manufacturing defect, due to which it is giving trouble. After several services to the vehicle, the problem could not be solved. The same was intimated to the service centre of opposite party No.2 several times, but they are unable to rectify the defects in the vehicle. Intimation was given to opposite party No.1 and opposite party No.2 through phone calls and emails. The complainant is a research scholar in S.V.University. He suffered mentally as being a student he is unable to use the vehicle due to mechanical defects. Sometimes the vehicle is used to stop in the middle of the road on the way to University. Opposite party No.1 being the manufacturer of the vehicle and opposite party No.2 being the dealer are jointly and severally liable to pay compensation to him. The complainant caused legal notice on 06.07.2017 calling upon the opposite parties to deliver new vehicle in the place of present vehicle. It is therefore prayed to issue directions to opposite parties to deliver new Hero two wheeler or in the alternative to refund the cost of the vehicle Rs.52,400/- with interest at 24% p.a. and to direct to pay Rs.3,00,000/- towards damages for deficiency in service and costs of the litigation.

3.  Opposite parties 1 and 2 filed separate written versions putting forth their contentions.

4.  Opposite party No.1 in its written version contended that the complainant purchased Hero Passion Pro DRS cast back heavy grey vehicle bearing engine No.HA10EVGHC24718, chassis No.MBLHA10BSGHC24473 from opposite party No.2. Opposite party No.1 is the manufacturer of the said vehicle. The vehicles manufactured by opposite party No.1 shall pass through various tests with regard to quality of components, engine alignment, engine function and its components and component assemblies, electro mechanical parts, checks, ride-test etc. Opposite party No.1 furnish user manual to the purchaser at the time of purchasing the vehicle. The user manual contains various information such as features in the vehicle, model, riding tips, maintenance instructions, warranty and services, technical specification of the vehicle, general information etc., free service to the vehicle as well as paid services are provided to the owner of the vehicle. At the time of selling the vehicle, they will inform all the features of the motorcycle and user instructions and the services offered by the service centre etc. before delivering the vehicle to the purchaser. A pre-deliver inspection is done at the dealer’s place, so as to ensure the vehicle is delivered in good condition. The dealer also offer free test ride of the vehicle for the respective purchaser before purchasing the vehicle. After due satisfaction of the purchaser only, they will receive full price of the vehicle and deliver the same to the purchaser. The opposite party furnishes invoice owner’s manual, vehicle key and remind the “Rider Instructions” vice versa to the purchaser. It is the responsibility of the complainant to get the services from time to time as  stipulated in the service coupons. As per the warranty conditions, the complainant is not entitled for replacement of the vehicle or refund of purchase price. If any component is found to be defective, then only the opposite parties shall replace the defective component, but not the vehicle. The replacement / repair of the parts of the vehicle is subject to the conditions that only those parts which prove to the satisfaction of the company to have the manufacturing defect will be repaired or replaced free of charge. In the present case, there is no manufacturing defect or refusal by opposite party No.1 to attend the warranty as well as paid services. It is clearly mentioned in the free service coupon enclosed in the service manual that replacement or change of oil will be at customer expenses. The complainant availed free services  several times from time to time and the opposite party No.2 rendered proper services to the satisfaction of the complainant. It is denied that the vehicle started giving trouble to the complainant from day one of the purchase. The issues such as mileage problem, pickup problem, engine heat and sound problem as alleged by the complainant is false. It is also denied that even after rectifying the defects, the problems remained. The issues could not be solved due to improper maintenance of the vehicle and improper usage of fuel of the vehicle only. It is learnt that vehicle of the complainant met with an accident and thereby vehicle is not running in smooth manner. Opposite party No.2 also sent technicians to rectify the problem when the vehicle was stopped all of a sudden in the middle of the road. The entire defect lies with the complainant and there is no deficiency in service on the part of opposite party No.2. The contents of legal notice issued by the complainant on 06.07.2017 is false and for that proper reply dt:16.07.2017 was given by them. It is denied that there was heavy sound in the engine as alleged by the complainant. Opposite party No.2 observed that due to improper maintenance of the vehicle and due to filling of spurious fuel only, the problems were arose and they advised him to take proper care at the time of driving the vehicle, and further opposite party No.2 informed the complainant that they are ready to render proper service at any time and it is for the complainant to avail services of any other authorized service centre of Hero Moto Corp. Ltd. The complaint is filed with malafide intention to claim new vehicle having used the present vehicle for considerable time. There is no question of deficiency in service on the part of opposite parties and the complainant never suffered any mental agony. The claim is false and therefore prayed to dismiss the complaint.

5.  The opposite party No.2 contended that in respect of para.4 of the complaint the contents are totally denied, so also in respect of the averments in paras.5, 6,7,8 and 9 of the complaint. It is admitted that complainant had purchased the vehicle in question from opposite party No.2. The documents filed by the complainant in the form of invoice and vehicle history card discloses that oil as well as un-warranty parts were changed. The vehicle had undergone 5 free services. The defects as stated by the complainant are not noted in the said vehicle history card. The bills merely discloses regular services are done at free of cost for the said vehicle. Throughout the complaint, the complainant’s allegation is that there is manufacturing defect in the vehicle. No evidence is placed supporting the said averment by the complainant. The complaint averments are denied. If at all, any manufacturing defect exists, the vehicle will not run, but surprisingly in between the free services done within a period of        4 months gap, the vehicle was running and it shows that the complaint allegations are false. It is therefore stated that there is no manufacturing defect in the vehicle as alleged by the complainant and therefore question of deficiency in service on their part does not arise and complaint is not maintainable. It is therefore prayed to dismiss the complaint.

6.  The complainant filed chief affidavit in support of his contentions raised in the complaint and got marked Exs.A1 to A7. One Sri.Gopalan, Territory Manager (Service) has filed chief affidavit as R.W.1. and Ex.B1 was marked. Both parties filed the written arguments.

7.  The point for consideration is whether there is deficiency in service on the part of the opposite parties 1 and 2 as alleged by the complainant? If so, to what extent the complainant is entitled for the reliefs sought for in the complaint?

8. Point:- The gist of the written arguments shows that the vehicle bearing No.AP-03-BV-0259 purchased by the complainant was giving trouble with regard to mileage, pickup besides engine heat and sound problem, and that the said issues were not solved despite the complainant approaching opposite parties 1 and 2 several times.

9.  There is no dispute that the vehicle bearing No. AP-03-BV-0259 was purchased by the complainant from opposite party No.2 vide Ex.A1 retail invoice dt:28.03.2016 for Rs.52,400/-. Hence, the complainant comes within the meaning of Section-2(1)(d) of C.P.Act. Ex.A2 is invoice in respect of job card No.10171-03-RJC-0416-1022, which shows that he paid certain amounts for various services like drain cock packing, lubrication, engine oil etc. Ex.A3 is vehicle history card showing the description of service done by servicing centre in respect of the vehicle purchased by the complainant. The visit dates are also mentioned in the said visit summary. Ex.A4 is registration certificate of the vehicle bearing No.AP03BV0259. Ex.A5 is legal notice dt:06.07.2017 issued by complainant’s counsel to both opposite parties 1 and 2 alleging deficiency in service on their part in rectifying the manufacturing defect of the vehicle. It is merely contended that mileage of the vehicle was not reached and vehicle is troubling often despite approaching opposite parties 1 and 2 for getting the defects rectified. Ex.A6 is the acknowledgement of Ex.A5. Ex.A7 is reply notice given by opposite party counsel to complainant counsel, wherein it is mentioned that the complainant conducted test ride, and having satisfied with the condition of the vehicle, purchased the same, and the vehicle underwent all free services as per the terms of the warranty. It is specifically contended by the opposite parties that the problems referred by the complainant might have caused due to improper handling of the vehicle and due to using of spurious fuel in the vehicle.

10.  The complainant placed reliance on the following decisions,  III(2012) CPJ 87 rendered by Rajasthan SCDRC, Jaipur, wherein it is held that “District Forum rightly held that as per job card itself there had been major defect in vehicle and replacement of parts were made not once but thrice within seven months of purchase of vehicle and no evidence on record to substantiate allegation that vehicle was not handled properly by complainant and as such inherent mechanical defect in vehicle proved”. In III (2015) CPJ 515 (NC) rendered by NCDRC, Delhi, it is held that “despite change of the engine of the vehicle the problem continued and caused mental agony and harassment to the complainant and that complainant could not ply the vehicle even after change of engine and as such it is proved that there is deficiency in service since the vehicle can cross a flyover but cannot go up to considerable height”. In another decision reported in II (2016) CPJ 381 (NC) rendered by NCDRC, Delhi, it is held that “when the car detained in workshop for 5 days for rectification of defects but still defect in the vehicle could not be cured and mere fact that a newly purchased vehicle had to be taken to workshop on number of occasions  per se tantamount to deficiency in service”. On the basis of above citations, it is very clear that the vehicle in question had mechanical defect and the same was not rectified by the opposite parties, which amounts to deficiency in service on their part, and as such the relief sought by the complainant may be granted.

11.  We have come across a decision reported in I (2018) CPJ 425 (NC) between Pawan Kumar Vs. Nissan Motors India Pvt. Ltd., wherein it is held that “when complainant failed to place on record any job cards regarding free service given to him for getting vehicle repaired and further failed to place on record any expert opinion regarding alleged manufacturing defect in his vehicle, it is to be held that deficiency not proved”. In II (2018) CPJ 533 (NC) between Sanjay Singh Vs. Dabloo Bhagat, it is held that “complainant failed to place on record any technical / expert report to support his allegation that tractor was defective and on perusal of consumer complaint also it indicates that not even a single document placed on record in support of contention that there was any defect in engine of vehicle. Further it is stated in the complaint that he had got vehicle inspected from an experienced mechanic from whom he came to know that engine was old and defective but neither name of said mechanic has been disclosed nor any report has been placed on record and as such the impugned order passed by the State Commission in allowing the appeal is upheld”.

12.  Coming to the facts of the present case on hand, there is no documentary evidence to show that there are mechanical defects in the vehicle as alleged by the complainant. No doubt vehicle history card is filed, which is marked as Ex.A3 and it shows that at the request of the customer general repairs were done including change of engine oil etc. but there is no mention of any mechanical defects in the vehicle under Ex.A3. Further the complainant failed to file any expert report stating that the vehicle is having mechanical defects. Further the complainant is not disputing the fact that the vehicle is in running condition. We are of the view that the complaint allegations are vague in respect of alleged mechanical defects and further it seen from Ex.A3 that the vehicle was taken for service and same was done and general repairs were also effected by the opposite parties. The job card would have revealed the nature of repairs / defects if any, but the same is not filed by the complainant. Hence, we are of the view that the above referred decisions in para.11 are applicable to the facts of the present case on hand and as such complainant failed to prove that there is deficiency in service on the part of opposite parties. Accordingly this point is answered.

13.  In the result, complaint is dismissed. No costs.                            

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 12^th day of September, 2018.

 

       Sd/-                                                                                                                      Sd/-                                        

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Nara Sathish Kumar (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: D. Gopal (Chief Affidavit filed).

 

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of Retail Invoice issued by Opposite Party No.2. Dt: 28.03.2016.
	True copies of Invoice of Job Cards 3 in number issued by the Opposite Party No.2. Dt: 14.04.2016, 03.05.2017 and 25.11.2016.
	Photo copy of vehicle history card issued by the opposite party No.2. D.O.S: 28.03.2016.
	Memo filed by the Complainant along with Certificate of Registration(R.C) of the Vehicle Bearing No.AP03BV0259 in Original.
	Office copy of Legal Notice with Postal Receipts. Dt: 06.07.2017.
	Acknowledgement Card in Original. Dt: 10.07.2017.
	Reply Notice issued by Opposite Party No.2. Dt: 16.07.2017.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Original book Let of Passion PRO Owner’s Manual filed by the 2nd Opposite Party.

 

 

                                                                                                                        Sd/- 

                                                                                                                President (FAC)

     

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

           

    

   Copies to:- 1.  The complainant.

                        2.  The opposite parties.