Complaint filed on: 29.12.2016
Complaint Disposed on:30.11.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.119/2016
DATED THIS THE 30th DAY OF NOVEMBER 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
Smt Salma Begum,
W/o Syed Imran,
Aged about 32 years,
Women police constable,
MESCOM vigilance police
Station, Opp. MESCOM,
Chikmagalur.
(By Sri/Smt. L.P.Sathish., Advocate)
V/s
OPPONENT/S:
1. Honda Motor Cycle &
Scooter India Pvt. Limited,
Commercial complex II,
Sector 49-50, golf course
Extension road, gurgoan,
Hariyana-122018.
2. Vaishnavi Honda,
Authorized Honda Sales &
Service, Belur Road,
Chikmagalur-577101.
(Op 1 & 2 -By Sri.H.T.Sunil Kumar, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against Op 1 and 2 alleging unfair trade practice in selling defective motor bike (Scooter). Hence, prays for direction against Op 1 and 2 to replace the defective motor bike (Scooter) or in alternative to refund an amount of Rs.63,330/-along with compensation of Rs.25,000/- for unfair trade practice and deficiency in service.
2. The brief facts of the complaint is that:
The complainant has purchased Honda Dio bearing chassis no.MEA4JF397MF7042392 and engine no.JE39E71137794 manufactured by Op 1 vide tax invoice no.VK3199 dated 23.01.2016. Op 2 is the authorized dealer of Op 1, who had issued said invoice. The complainant had paid Rs.50,269/- along with RTO charges and insurance charges of Rs.9146/- and accessories charges of Rs.3,912/- to Op 2. After purchase of the said vehicle the complainant went for test drive, where she noticed there is a problem of tight handle, wobbling in the front portion, stem sound, front shock observer hard, starting problem, rough sound in engine, body sound, problem in riding and immediately she complained with respect to the said problem. For which the salesman attached to the Op 2 told that since it is new vehicle and the said problem will be rectified after first service. Believing the words of the said salesman of Op 2 the complainant took the delivery of the vehicle. At the first service the complainant informed with respect to the problems noticed at the time of delivery, but Op 2 after service have not rectified the defects noticed in the vehicle. Even after first service the said problems were found in the vehicle and complainant was unable to ride the vehicle smoothly. There afterwards the husband of the complainant received a phone call from company manager and accordingly the vehicle was taken by Op 2, where they have replaced the tyre which was wobbling. Even after replacement of the tyre also the said problems were not rectified. For which the Op 2 assured to rectify the problems at the time of second service. On 24.05.2016 the husband of the complainant approached the Op 2 for second service and to rectify the problems, but Op 2 refused to do the second free service. There afterwards the vehicle was taken for second service after 2 days.
The complainant’s husband again approached the Op 2 for third service and complained with respect to the problems which were noticed at the time of delivery of the vehicle. He also given a complaint with respect to the poor mileage, stem sound, rough sound from the engine and hard in the shock observer, but the technicians, who attended the vehicle have not solved these problems, inspite of that they have provided only regular service.
The complainant further alleges that, the Op 2 had insisted the complainant to take extended warranty of 2 years, even inspite of warranty the Op 2 refused to give solution to the problems found in the vehicle. Hence, the Op 1 and 2 rendered unfair trade practice in not rectifying the problems. From the above all problems the complainant came to know that the said vehicle is having manufacturing defect manufactured by Op1. Hence, Op 1 and 2 are liable to replace the said defective vehicle to the complainant or in alternative to refund an amount paid towards vehicle. The complainant also issued legal notice dated 08.12.2016 and called upon the Op 1 and 2 to replace the defective vehicle or to refund the consideration amount paid towards the vehicle. Inspite of service of the notice also Op 1 and 2 failed to comply the notice. Instead of that Op 2 has issued untenable reply. Hence, complainant filed this complaint alleging unfair trade practice in selling defective vehicle to the complainant along with compensation for unfair trade practice/deficiency in service in the interest of justice and equity as prayed above.
3. After service of notice Op 1 and 2 appeared through their counsel and Op 2 filed version and Op 1 adopt the same.
4. Op 2 in his version has contended that, it is false to say that immediately after purchase of the vehicle complainant went for test drive and complained with respect to the tight handle, wobbling in the front portion, stem sound, front shock observer hard, starting problem, rough sound in engine, body sound, problem in riding. Anyhow it is true that on the advice of the Company Manager, Hariyana over telephone to the complainant’s husband the vehicle was taken to Op 2 and front tyre was changed for wobbling problem. But it is false that the said problem was persisted and it is also false that they have refused to provide second service to the complainant. There is no any manufacturing defect found in the vehicle and they have not practiced any unfair trade practice or deficiency in service. The notice issued by complainant was suitably replied.
Op 2 further contended that the complainant left the vehicle in the showroom of this Op for the first service with the said problems and after first service the complainant and her husband took the vehicle and informed the said complaints were rectified and resolved. Further this Op has provided third service to the complainant’s vehicle and at the time of leaving the said vehicle, the complainant did not complain anything regarding the problems and the third service was done by this Op as per the terms and conditions of the company warranty and this Op further is ready and willing to resolve the problems if any in the vehicle during the time of warranty as per the norms and conditions of the company. Hence, there is no any unfair trade practice on the part of this Op.
There is no cause of action arose in the complaint and complainant has filed this false complaint in order to gain wrongfully and she is not entitled to get any relief as claimed in the complaint. Hence, prays for dismissal of the complaint.
5. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.6 and also filed memo with one endorsement given by R.T.O., Chikmagalur in support of her claim. Op 2 also filed affidavit and marked documents as Ex.R.1 and Ex.R.2. Op 1 not filed affidavit.
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is a Unfair trade practice on the part of Ops?
- Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. On going through the pleadings, affidavits and documents produced by both complainant and Op 2, there is no dispute that the complainant has purchased one scooty called Honda Dio from Op 2 by paying Rs.65,719/-, which include accessories of the vehicle and registration charges. The said vehicle was manufactured by Op 1. There is also no dispute that the front tyre was replaced by Op 2 after advice made by Company Manager from Hariyana i.e., from Op 1. The only dispute raised by complainant is that, even after replacement of the tyre the wobbling problem was not rectified, even she noticed a problem in handle sound, rough sound in the engine, hardness in the front shock observer and etc., Even after 3 services also Op 2 have not rectified the problems. Hence, she notice that the said vehicle sold by Op 1 and 2 has a manufacturing defect. Hence she issued a legal noticed and demanded for replacement of the vehicle or in alternative to refund an amount paid towards purchase of the vehicle and subsequently filed this complaint.
9. On contrary Op 2 has taken a contention that, they have provided 3 free services to the complainant and at the time of first service they have replaced the front tyre as per the advice given by Op1. There afterwards, there is no problem in the vehicle. Further they have undertaken to repair the vehicle whenever there is a complaint within warranty period and submits no unfair trade practice on their part.
10. Complainant has produced legal notice marked as Ex.P.1, Reply to the legal notice marked as Ex.P.2, Invoice towards purchase of the vehicle marked as Ex.P.3 and Quotation given by Op 2 marked as Ex.P.4, Another receipt issued by Op 2 for Rs.3,165/- marked as Ex.P.5 and Receipt for Rs.750/- marked as Ex.P.6. Further she produced 2 xerox copies of the job card to show she has given complaint with respect to the vehicle in support of her case. Further during course of trial she produced one information given by R.T.O. Office, Chikmagalur dated:03.02.2017 towards application filed by complainant under RTI Act in support of her claim.
11. The learned advocate for complainant had vehemently argued that at the time of delivery of the vehicle she noticed wobbling in the front tyre and during first service they have replaced the tyre this itself, goes to show that there is a manufacturing defect in the vehicle, but even after replacement of the tyre it was not rectified, even after second and third service. The problems noticed at the time of delivery were not rectified. For which complainant repeatedly complained, but either Op 1 and Op 2 have not cared to rectify the problems. Further Op 2 had collected the excess amount towards road tax payable by complainant as per Ex.P.4. The learned advocate for complainant argued that as per the information given by R.T.O. the road tax is Rs.6,033/- plus cess of Rs.664/- in total Rs.6,697/- and the smartcard of Rs.200/-, registration fee of Rs.300/-. Whereas the Op 2 had received Rs.8,356/- towards registration fee. Hence, in this connection also Op 2 rendered unfair trade practice. Hence, prays for direction for replacement of the vehicle.
Op 2 also filed affidavit and produced documents such as Authorization letter marked as Ex.R.1 and Job card dated:02.05.2016 marked as Ex.R.2, except these Op 2 had not produced any documents in support of their defence. On going through the said job card it is noticed that complainant has given clear complaint with respect to the rear wheel wobbling, petrol leakage, but the Op 2 had not produced any documents to show that the said problems were rectified. The learned advocate for Op 2 had argued that, the complainant was informed that the said problems repaired and received the vehicle with full satisfaction by endorsing in this job card Ex.R.2 that the said complaints are rectified and resolved and submits no unfair trade practice. We compared the said Ex.R.2 with xerox copy of the same produced by complainant, wherein we noticed there is no endorsement given by complainant. We are of the opinion that the said job card was fabricated. Further we are of the opinion that the vehicle has a manufacturing defect, even after 3 services provided by Op 2. The complainant has given complaint categorically with respect to the defects found in the vehicle, but Op 2 being the seller and service provider of the Op 1 has not rectified the problems. In their affidavit they have under taken to repair the vehicle as and when complainant given a complaint, but they have not sworn that, the problems were rectified. Hence, it is clear case of unfair trade practice on the part of Op 1 and 2 in selling defective vehicle to the complainant. Therefore, the Op 1 and 2 are liable to replace the said vehicle to the complainant with a new one having no defects. If they fail to replace the said vehicle within stipulated time of one month Op 1 and 2 are liable to refund the entire amount paid towards purchase of the vehicle. The Op 1 and 2 are also liable to pay compensation of Rs.5,000/- for unfair trade practice in selling defective vehicle along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above Point No.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- Op 1 and 2 are directed to replace the vehicle to the complainant with a new one having no defects. If they fail to replace the said vehicle within stipulated time of one month Op 1 and 2 are directed to refund the entire amount paid towards purchase of the vehicle along with compensation of Rs.5,000/- (Five Thousand Rupees) for unfair trade practice and litigation expenses of Rs.1,000/- (One Thousand Rupees) to the complainant within one month from the date of receipt of this order, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 30th day of November 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Office copy of legal notice.
Ex.P.2 - Reply to legal notice.
Ex. P.3 - Invoice.
Ex. P.4 - Quotation.
Ex. P.5 & 6 - 2 Receipts issued by Op 2.
Documents produced on behalf of the OP/S:
Ex.R.1 - Authorization letter.
Ex.R.2 - Job card.
Dated:30.11.2017 President
District Consumer Forum,
Chikmagalur.
RMA
