BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.62/2011

Dated this the 19^th day of  June 2015.

M. Devendiran, S/o.Munusamy

Government Employee

No.78, 4^th Cross, Annai Nagar

Reddiarpalayam, Puducherry                                                        ….       Complainant

Vs.

1.Honda Motorcycle & Scooter India (Pvt.) Ltd.,

   Rep. by its Managing director,

   Manufacturer of Honda Dio Motor Cycle

   No.1, Sector-3, IMT Manesar,

   District Gurgaon-122 050, Haryana

2. Hasan Associates Private Limited,

    Rep. by its Managing director

    Dealer of 1^st Opposite party,

    Plot No.38, 100 Feet Road, Mudaliarpet,

    (Opp. To RTO), Puducherry-605 004.                                      ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT                      :  Thiru,S. Vimal, Advocate.

FOR THE OPPOSITE PARTY                  : Thiru. G.K.Govindasamy, Advocate

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to:

1. Direct the opposite parties to return a sum of Rs.46,754/- (towards the price of the vehicle Rs.39,051/- and interest thereon at the rate of 18 p.a. thereon from 30.08.2010 the date of purchase of the vehicle till the date of complaint i.e. 10.10.2011) and subsequent interest at the rate of 18% per annum thereon the principal amount from the next day of the complaint till payment and discharge under section 14(c) of the Consumer Protection Act.
2. Direct the opposite parties to pay the complainant compensation of Rs.2,00,000/- for the physical hardship and suffering, mental agony caused to him due to opposite parties' supply of a defective product and deficiency in service under section 14(d) of the Consumer Protection Act,
3. Direct the opposite parties to pay the complainant a sum of Rs.7000/- towards litigation expenditure and cost of the complaint.

2.  The case of the complainant is as follows:

            The complainant has purchased one "Honda Dio" model motorcycle from the second opposite party, who is the authorised dealer of the first opposite party for Rs.39,051/- vide invoice no.10IN02749 dated 30.08.2010.  The first opposite party is the manufacturer of the above said vehicle.   The second opposite party also gave a owner's manual alongwith Warranty Registration Card.  The very next month of complainant's purchase the vehicle stopped midway upon giving noise in the engine and the complainant had to push the vehicle home manually for about 2Kilometers.   The problem was reported to the second opposite party.   After rectification, the second opposite party assured that this problem will not re-occur. Once again on 31.10.2010, the vehicle sopped midway while complainant was driving.  The complainant had to manually push the vehicle 4 Kilometer to return home.  Being dissatisfied with the performance of the vehicle, the complainant wrote a letter dated 02.11.2010 to the second opposite party demanding replacement of the vehicle. As there was no response from the second opposite party, he was constrained to send a registered letter dated 02.12.2010 to the first opposite party/manufacturer stating the manufacturing defect in the vehicle.  However, the first opposite party/manufacturer neither denied nor gave any reply to the facts stating in the complainant's letter.  Once again he has sent a letter dated 04.12.2010 to the second opposite party for their inaction and insensitivity shown to his said complaint.

3.         It is further submitted by the complainant that after a lapse of one month and an additional reminder on 04.12.2010, on 07.12.2010 the second opposite party replied to complainant's letter, falsely denying that there were defects in the vehicle and that if at all there was any defects in the vehicle directed him to produce the same at their workshop.   On receipt of said letter dated 07.12.2010, the complainant promptly replied thereto on 14.12.2010 vide his letter dated 13.12.2010 denying all the allegations therein.  Complainant thereafter also submitted his vehicle to the second opposite party on 04.02.2011 for the repair and rectification.  The vehicle had run only about 707 kilometers.  As demanded by the complainant the second opposite party returned the rectified vehicle alongwith letter dt.26.02.2011 stating that there will not be any problem in the vehicle in the future.  Unfortunately, the vehicle did not run or perform as promised by the second opposite parties.  It was less than a month on 21.03.2011 to the shock of the complainant, the vehicle encountered the same problem.  On the very next day, the complainant narrated all the instances concerning the vehicle and also handed over the defective vehicle to the second opposite party.  The second opposite party acknowledged the receipt of vehicle and issued a Gate Pass for the same.  Thereafter the second opposite party failed to rectify the defect or replace the defective vehicle with a new one free from any defect, hence the complainant was forced to cause lawyer's notice dated 15.04.2011 to both the opposite parties.   Though the opposite parties acknowledged the receipt of advocate notice, they have neither chosen to reply nor to replace the defective vehicle with that of new one.  Hence this complaint.  

4.         The following are the averments narrated in the reply version filed by the second opposite party being adopted by the first opposite party:

            The opposite parties denied all the averments narrated in the complaint except those that are specifically admitted in the reply version.  The complaint is not maintainable either in law or on facts.  It is not true that the defective vehicle was supplied to the complainant.  There is no any manufacturing defect in the vehicle and there is no deficiency in service attributed by the opposite parties. In order to get new vehicle this false complaint was filed by the complainant.  After rectifying the defect, second opposite party informed the complainant to take back the vehicle. Instead of taking back the vehicle, the complainant issued legal notice to opposite parties.  Again the second opposite party approached the complainant to get vehicle at free of cost and offered to extend the warranty period for one year.  But the complainant refused to accept such officer and filed this vexatious complaint against the opposite parties.  As there is no manufacturing defect in the vehicle, this opposite parties are not liable to pay compensation or interest as alleged by the complainant.  The vehicle ready with good conditions and the complainant may get the same.  Hence prays to dismiss the complaint.

5.         On the side of the complainant,  he has chose to examine himself as CW.1 and marked Exs.C1 to C12.  On the side of the opposite parties,  Thiru.Nethaji Subash Chandra Bose, Service Engineer has been examined as RW.1 and no documents were marked on their side.

6.         Points for determination are:

1. Whether the complainant is the Consumer?
2. Whether the opposite parties attributed any deficiency in service?
3. To what relief the complainant is entitled for?

7.         Pont No.1:

            The complainant has purchased a new vehicle DIO (SCV100FA) for valid consideration of Rs.39,051/- on 30.08.2010 from the second opposite party, the dealer of the first opposite party, the manufacturer, vide Ex.C1.  Hence the complainant is the consumer.

8.         Point No.2:

            We have perused the pleadings, exhibits, evidence of complainant and the reply version, evidence of the second opposite party and adopted by the first opposite party.  There is no dispute in respect of the sale and purchase of the vehicle. The allegation of the complainant is that immediately after purchase of the vehicle within a month the said vehicle developed noise and unable to ride the vehicle.  The complainant's allegation is that he had pushed manually the vehicle about 2Km.  The complainant stated that he has reported to the second opposite party and the said problem was attended.  The complainant further alleged that on 31.10.2010 again the said vehicle was unable to move and ride and the complainant has moved the vehicle by pushing manually for 4Kms to reach home.

9.         The complainant sent a letter Ex.C4 dated 02.11.2010 to the second opposite party and Ex.C5 dated 02.12.2010 to the first opposite party demanding for replacement of vehicle.  The complainant never received any reply from the opposite parties 1 and 2.  The complainant sent letters to the second opposite party Ex.C6 on 04.12.2010, Ex.C8, dated 03.12.2010.  The second opposite party has sent Ex.C7 dated 07.12.2010 to the complainant requesting him to hand over the vehicle to the workshop.  The complainant handed over the vehicle to the second opposite party only on 04.02.2011 for the repair and rectification.  The second opposite party handed over the rectified vehicle alongwith Ex.C9 on 26.02.2011.  The complainant further submits that within a month the same problem occurred in the said vehicle and sent the Ex.C10 dated 21.03.2011 to the second opposite party and handed over the vehicle with gate pass Ex.C11 dated 21.03.2011.  The complainant further alleged that the second opposite party failed to rectify the defects or replace the defective vehicle with a new one free from any defects. The complainant sent legal notice Ex.C12 to the first and second opposite parties on 15.04.2011 to replace the defective vehicle with that a new one.  The opposite parties acknowledged the Ex.C12 and not sent any reply.

10.       The second opposite party denied all the allegations and stated that the said vehicle is not having any manufacturing defect and no deficiency in service attributed by them.  In order to get new vehicle the complainant filed this false case.  After rectifying the defects the second opposite party informed the complainant to take delivery of the said vehicle.  The second opposite party further stated that they offered for free service and extension of warranty for the said vehicle. The opposite parties stated that they are not liable to pay compensation or interest and pray for dismiss the complaint.

11.       From the above facts and evidence it is clear that the said vehicle persist some problem and the second opposite party stated in Ex.C9 that the vehicle had starting trouble and they changed the cylinder block assembly to the satisfaction of the complainant.  The complainant has not used the vehicle from the date of purchase.  Most of the time it was kept idle and most of the time it was with the second opposite party.  Even now the said vehicle is in the possession of the second opposite party.  The purpose for which the vehicle purchased by the complainant is not served. The complainant suffered loss and injury after purchase of the said vehicle.  Eventhough the complainant did not prove that the said vehicle is having manufacturing defect and the second opposite party has not established that the vehicle is free from defects, this Forum relied the chief examination filed by the second opposite party stating that in the interest and to the satisfaction of the customer/complainant they are ready to deliver the new vehicle or refund the cost of the vehicle.  To meet the ends of justice, this Forum is inclined to pass an order to refund the cost of the vehicle and to pay compensation by the opposite parties to the complanant in the interest of justice.  Hence the opposite parties are jointly and severally liable.

12.       Point No.3:

            In view of the decision arrived in point no.2, this complaint is hereby allowed and the opposite parties are jointly and severally directed

1. To pay the cost of the vehicle Rs.39,051/- to the complainant.
2. To pay a sum of Rs.10,000/- as compensation. No interest is awarded since the compensation awarded as per decision arrived in Sh.Ramanayak Tiwari Vs. Regional Provident Fund Commissioner (North) and another  reported in 2014(3) CPR 823 NC.  
3. To pay a sum of Rs.5000/- towards the cost of the proceedings.
4. The complainant is hereby directed to co-operate with the opposite parties to transfer the ownership of the said vehicle to the opposite parties name after compliance of this order.

Dated this the 19^th day of June 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1              14.05.2014                M.Devendiran

OPPOSITE PARTY'S WITNESS: 

RW.1              10.03.2015                Nethaji Subash Chandra Bose.

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER