Andhra Pradesh

Chittoor-II at triputi

CC/16/2018

Amuri Kavitha, W/o Amuri Krishna Murthy - Complainant(s)

Versus

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

M.Vinod Kumar

14 Aug 2019

ORDER

Filing Date: 07.03.2018

Order Date:14.08.2019

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

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

               Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE FOURTEENTH DAY OF AUGUST, TWO THOUSAND AND NINTEEN

 

 

 

C.C.No.16/2018

 

 

Between

 

 

1.         Amuri Kavitha,

            W/o. Amuri Krishna Murthy,

            Hindu, aged about 40 years,

 

2.         Amuri Krishna Murthy,

            S/o. late Amuri Narayana,

            Hindu, aged about 46 years,

 

Both are residing at:

D.No.19-12-423, 1^st Floor, Bairagipatteda,

Tirupati.                                                                                 … Complainants.

 

And

 

 

1.         Hero Motor Corp. Ltd.,

            Rep. by its Managing Director,

            34, Community Centre,

            Basant Lok,

            Vasant Vihar,

            New Delhi – 110 057.

 

2.         The Managing Director,

            Sri Gopal Automobiles,

            Authorised Dealer of Hero Motor Corp. Ltd.,

D.No.19-32-13(M), Renigunta Road,

Near Entrance Arch,

Tirupati.                                                                                 …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 01.08.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.S.Naveen Kumar and Sri.M.Vinod, counsel for complainant, and opposite party No.1 remained exparte, 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 Sections –12 and 14 of C.P.Act 1986, alleging deficiency of service on the part of opposite parties 1 and 2, and praying for direction to replace the two wheeler Splendor I Smart BSIII  bearing registration No.AP-03-BZ-2497 (herein after called as vehicle) with a new one or to pay its value, and further to pay damages to a tune of Rs.50,000/- for causing mental agony due to deficiency in service and also to pay Rs.1,000/- towards legal expenses.  

            2.  The brief facts of the complaint are as follows:- The complainants are wife and husband. Opposite party No.1 is manufacturing company. Opposite party No.2 is authorized dealer of opposite party No.1. The complainants purchased the vehicle from opposite party No.2, in the name of complainant No.1, by paying advance on 30.09.2016 and the vehicle was delivered to them on 06.10.2016. Warranty of the vehicle is for 5 years from the date of purchase. Complainant No.2 has been using the vehicle. They got 6 free services done in the opposite party No.2 showroom from 21.11.2016 to 25.07.2017 from time to time, as per the job card filed in the Forum. Even prior to 1^st service, the vehicle performance was not up to the standards as promised by opposite party No.2 showroom. The two wheeler engine is suddenly shutting down while running in traffic and the said problem was informed to opposite party No.2 employees in the service centre, and they tried to rectify the defect, but the problem is not rectified. Not rectifying the vehicle problem by opposite party No.2, amounts to deficiency in service. The complainant is suffering a lot due to sudden stoppage of the vehicle in traffic. Further, due to mechanical defect he is unable to sell away the vehicle also. The said mechanical defect was not rectified by opposite parties 1 and 2. The 2^nd complainant is practicing advocate and could not drive the vehicle even at minimum speed to go to Court daily, due to the above said problem of the vehicle. Further, the vehicle is emitting smoke, as a result of which, complainant is not in a position to utilize the vehicle regularly. As the vehicle engine is shutting down suddenly in traffic, there is possibility of meeting with road accidents, and if any untoward incident happened, opposite parties will have to be held responsible for the same and are liable to compensate to him. The complainant got issued legal notice dt:27.05.2017 to 2^nd opposite party, having acknowledged the same, did not give reply to the notice. The opposite parties are bound to replace the vehicle or to rectify the vehicle, which is having manufacturing defect. Hence, the complainant filed this complaint seeking replacement of the vehicle or payment of value of the vehicle, and for damages to a tune of Rs.50,000/- and Rs.1,000/- towards litigation expenses.

            3.  Written versions filed by opposite parties 1 and 2. Opposite party No.1 contended as follows – it is admitted that complainant purchased Splender I Smart BSIII vehicle in the name of complainant No.1, and took delivery of the vehicle on 06.10.2016, and the vehicle is covered by warranty period of 5 years. It is denied that vehicle is defective from the date of purchase and the defect was not rectified even after six free services. The vehicles manufactured in opposite party No.1 Company shall pass through various tests with regard to quality of components, engine alignment and engine function etc. Opposite party No.1 furnishes owners User Manual to the purchasers at the time of sale of the vehicle and it contains vehicle model, riding tips, maintenance instructions, warranty and services, technical specifications of the vehicle, general information etc. These services are provided through service centers / dealers, who have infrastructure and competent to attend service requests. The motorcycles are made ready for dispatch to the dealers only after completion of quality control test with regard to the efficiency of the engine and its performance etc. At the time of selling the vehicle, they will explain all the features of the motorcycle and user instructions and the services offered by the service centers to the purchasers before delivering the vehicle. Further a pre-deliver inspection will also be done at the dealer’s place, so as to ensure that the vehicle is delivered in good condition. The dealer also offer free test ride of the vehicle to the respective purchaser before purchasing the vehicle. After due satisfaction of the purchaser only, they will receive the full price of the vehicle and deliver it to the purchaser. The vehicle was delivered to the complainants on 06.10.2016 in such manner and it is the responsibility of the complainants to get the services done from the service centre from time to time, as stipulated in the service coupons. As per the warranty conditions, the complainants are not entitled for replacement of the vehicle or refund of purchase price. But, if any component is found to be defective, then the opposite parties will replace the defective component only, but not the vehicle. Replacement of the component will be done only when the company satisfies that there is manufacturing defect in the component and will be replaced free of charge. In the present case, absolutely there is no refusal by opposite party to attend the warranty and paid services due to the complainant. The opposite parties perfectly attended the minor problems raised by the complainant to his satisfaction and also obtained his signatures on the job cards maintained by them. The complainants falsely alleging that the vehicle purchased by them is giving trouble from the date of its purchase. The complainants did not maintain the vehicle properly and failed to avail the services. Absolutely, there is no evidence to show that the vehicle is defective as alleged by the complainants. Therefore, the complainants cannot seek remedy under the C.P.Act. It is the duty of the complainant to drive the vehicle with good fuel and if the fuel is not good, every vehicle will give the same problem. The complainants falsely alleging that the engine of the vehicle is shutting down in the traffic and therefore there is possibility of meeting with road accidents is false. The complainant with malafide intention filed this complaint to gain wrongfully. The complainants are not entitled for replacement of the vehicle or refund of purchase price. The warranty conditions are explicitly and expressly stated in the owner’s manual, which is provided along with every vehicle manufactured by the opposite party. No mental agony or financial loss caused to the complainants due to deficiency in service. Hence, it is prayed to dismiss the complaint with costs.

            4.  Opposite party No.2 filed the written version contending as follows – While admitting that the complainant purchased the vehicle from them, in the name of complainant No.1, by paying advance on 30.09.2016,  and took delivery of the same on 06.10.2016, and the warranty period for the vehicle is for 5 years from the date of purchase, it is denied that there is deficiency in service on the part of opposite party No.2, with regard to mechanical defect of the vehicle. It is admitted that complainant has got 6 free services done in the opposite party showroom from 21.11.2016 to 25.07.2017 from time to time as per job card. It is denied that even prior to starting of 1^st service, vehicle performance was not up to the standards, as promised by opposite party No.2, at the time of purchase of two wheeler, engine suddenly shutting down while running in traffic and the said problem was intimated to opposite party No.2 employees in service centre, but they failed to rectify the defect and the problem is still persisting. It is denied that non-rectifying the trouble of the vehicle by opposite party No.2 amounts to deficiency in service. It is denied that for the reasons best known to opposite party, the two wheeler problem was not rectified effectively and the problem is recurring and it is growing rapidly, and as a result of which complainant No.2 being a practicing advocate could not drive the vehicle even at minimum speed to attend the Court regularly. It is also denied that apart from major defect in the two wheeler, it is emitting smoke, and as a result of the same, complainant No.2 is not in a position to use the vehicle for his day to day necessities. Infact complainant No.2 is using the vehicle regularly even today without any problem and on this ground alone the complaint is liable to be dismissed. The allegation that, as the two wheeler engine is shutting suddenly in traffic, there is possibility of meeting with road accidents and if any thing happens, opposite parties will have to bear the responsibility for the same is false. It is false to say that after receipt of legal notice dt:27.05.2017, opposite parties did not give reply. Infact the Service Manager of opposite party No.2, by name Venkatrami Reddy, approached the complainant after receipt of the legal notice and checked the vehicle by conducting test drive and found that the vehicle is in perfect condition. In all the vehicle documents, terms and conditions are stipulated and the job cards 1 to 6 discloses that oil was changed and some parts not covered by warranty period were changed and the vehicle underwent general services at the request of the customer. If at all there were any defects in the vehicle, the same would have been mentioned in the job card, but as seen from the job card, no such mechanical defects are mentioned, as alleged by the complainant. The complainant averred that there is manufacturing defect due to which engine of the vehicle was suddenly shutting down, but no document is filed supporting this contention. If manufacturing defect exists, the vehicle may not run, but in this case, the complainant is using the vehicle even till today, and it shows that there is no manufacturing defect in the vehicle. Hence, question of deficiency in service does not arise in this complaint and hence complaint is not maintainable. There may be several reasons for engine suddenly shutting down in running. It may be due to filling of spurious petrol or improper handling of the vehicle. Hence, it is prayed to dismiss the complaint.

            5.  Complainants filed the chief affidavits as P.W.1 and P.W.2 and got marked Exs.A1 to A11. On behalf of opposite party No.2, R.W.1 filed the chief affidavit and marked Ex.B1. Opposite party No.1 though filed the written version, subsequently failed to file chief evidence affidavit and as such set exparte on 04.07.2018.

            6.  The point for consideration is whether there is deficiency in service on the part of opposite parties? If so, to what extent the complainant is entitled for the reliefs sought?

            7.  Point:-  In the written arguments filed by the complainants, it is contended that soon after taking delivery of the subject vehicle on 06.10.2016, which was covered by 5 years warranty period, they have taken the vehicle to opposite party showroom during the period from 21.11.2016 to 25.07.2017 from time to time for service as per the job cards, and even prior to start of 1^st service the vehicle performance was not up to the standards, as promised by opposite party No.2 showroom at the time of purchase, and the two wheeler engine used to shut down suddenly while running in traffic and the said problem was not rectified by opposite parties 1 and 2, and as such there is manufacturing  defect in the vehicle and so the complainants sought for replacement of the vehicle or in the alternative to pay the cost of the vehicle.

            8.  On the other hand, opposite party in their written arguments submitted that the complainants, having been satisfied with the performance of the vehicle during the test ride, purchased the vehicle, and subsequently they complained that there is manufacturing defect in the vehicle. It is further argued that Ex.B1 shows that there is no mechanical defect in the vehicle, as alleged by the complainants and that certain small problems were rectified by service centre to the satisfaction of the complainant and signatures were obtained in the job cards, and as such question of replacement of the vehicle or paying the cost of the vehicle does not arise in this case, since the complaint was filed with malafide intention to gain wrongfully. Opposite party No.2 in their written arguments argued that alleged defects pointed out by complainant are not at all mentioned in the job cards and as such the allegations made by the complainant against opposite parties 1 and 2 are false. When there is no defect in the vehicle, question of deficiency in service does not arise.

            9.  There is no dispute about Exs.A1 and A2, which are retail invoice of the two wheeler Splendor I Smart and owner’s manual. Ex.A3 is invoice dt:21.11.2016 issued by opposite party No.2. Ex.A4 is also invoice dt:26.02.2017. Exs.A3 to A8 are the invoice / job cards with regard to services, issued by opposite party No.2. There is no dispute with regard to these documents. Ex.A9 is legal notice dt:27.05.2017, and the acknowledgement card is marked as Ex.A10. Ex.A11 is certificate issued by the mechanic.

            10.  It is well settled principle of law that, it is for the complainant to prove that there is mechanical defect in the vehicle and that the same was not rectified by the manufacturer or service centre. On the other hand Ex.B1, which is vehicle history card, shows the nature of problem of the vehicle as per visit summary. The dates of the visit tallies with Exs.A3 to A8, and the engine problem mentioned in Exs.A3 to A8 is also tallies with Ex.B1. But there is no mention about sudden shutting down of engine and exact problem of the engine of the vehicle either in Ex.B1 or in Exs.A3 to A8. As rightly pointed out by the counsel for opposite party No.2, if really there is mechanical defect in the vehicle, as alleged by the complainant, the same would have been mentioned in Ex.B1 or in Exs.A3 to A8. As seen from Exs.A3 to A8 and Ex.B1, whenever the vehicle had taken to the service centre (opposite party No.2), they used to rectify the defects and handover the same to the complainant. Further, it is an admitted fact that complainant has been using the vehicle even now. There is no evidence to prove that there is mechanical defect in the vehicle. Of-course Ex.A11 which is certificate issued by mechanic A.Muni Reddy of Sri Venkata Sai Auto Works is filed, but no evidence affidavit of the mechanic is filed supporting the case of the complainant. It is not known whether the said mechanic is a qualified person or not, to give certificate about the defects of the vehicle. In 390 (July) 2019 CPJ (CN) 2B – Uttarakhand S.C.D.R.C. between Asha Giri vs. Sant’s Hyundai, it is held “That no manufacturing defect has been pointed out in specific terms, nor complainant furnished expert evidence in order to substantiate alleged pleadings. For want of evidence on point of manufacturing defect, case for replacement of vehicle or for refund of money, is not made out. Satisfaction note, duly signed by complainant is on record. Document as to insurance claim, was also signed by complainant in full and final settlement of claim. All these facts prove bonafides on the part of respondent. Impugned order upheld”. In the instant case also expert opinion is lacking. Further, the documents did not substantiate the allegation of complainant that there is manufacturing defect in the vehicle. Hence, we are of the opinion that the complainant is not entitled for any relief. Hence, we hold that complaint is to be dismissed.

            11.  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 14^th day of August, 2019.

 

 

       Sd/-                                                                                                                      Sd/-

Lady Member                                                                                               President (FAC)

 

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Smt. Amuri Kavitha (Chief affidavit filed).

PW-2: Sri. A. Muni Reddy    (Chief affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Sri. D. Gopal (Chief affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Photo copy of RETAIL INVOICE of Two Wheeler ‘Model : HERO SPLENDOR Ismart DRS CAST BOON SILVER’ issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 06.10.2016.
	Original copy of Warranty Book (Owner’s Manual).
	Original copy of Job Card/Invoice (1st Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 21.11.2016.
	Original copy of Job Card/Invoice (2nd Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 26.02.2017.
	Photo copy of Job Card (3rd Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 05.06.2017.
	Original copy of Job Card/Invoice (4th Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 08.06.2017.
	Photo copy of Job Card/Invoice (5th Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 24.06.2017.
	Photo copy of Job Card (6th Service) issued by Sri Gopal Automobiles, Renigunta Road, Tirupati. Dt: 25.07.2017.
	Office copy of Legal Notice along with original copy of Postal Receipts (2).  Dt: 27.05.2017.
	Acknowledgement Card in Original.
	Original copy of CERTIFICATE issued by Mechanic, A. Muni Reddy, Sri Venkata Sai Auto Works,#19-8-182, AIR Bypass Road, Opp. Eega Wines, Tirupati- 517 501.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Photo copy of VEHICLE HISTORY CARD 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 complainants.

                        2.  The opposite parties.