BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 16th day of February 2017
Filed on : 03-12-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.837/2013
Between
Nibeesh,, : Complainant
S/o. Mohanan, Irukadu house, (party-in-person)
Palliport P.O.,
Kovilakathumkadavu,
Ernakulam-683 515.
And
1. Honda Motorcycle and Scooter: :Opposite parties
India (Pvt) Ltd., Plot No. 1,
Sector3, IMT Manesar, (By Adv. T.R. Rajan, )
District Gurgaon,
Haryana -122 050.
2. Arya Bhangy Motors,
Bye Pass road,
Alwaye-683 101.
3. Arya Bhangy Motors,
Paravoor Branch,
Branch & Authorized Service
Centre, Near Peruvaram temple,
N Paravoor-683 513.
O R D E R
Sheen Jose, Member
The case of the complainant is as follows:
The complainant had purchased CB SHINE CBF 125 MCC BS iii motor cycle from the 2nd opposite party on 17-01-2013 at a price of Rs. 51,182/- which was manufactured by the 1st opposite party. The complainant had used the vehicle as per the instructions of the owners manual. On 10-04-2013 the above said vehicle had shown some defects when starting vigorously vibrating at 40 Km/hours and above speed and a humming sound in the engine side. The complainant sent an mail to the 3rd opposite party, who is the authorized service centre of the 1st opposite party dated on 11-04-2013 . But they could not identify the complaint. Again the complainant had sent mail to 1st opposite party on 16-05-2013. The service manager of the 1st opposite party responded through the phone and he checked the vehicle and informed the complainant that there is no problem. The 3rd opposite party also informed that they are not in a position to identify the complaint. The complainant had sent a letter to the 2nd opposite party on 21-09-2013 and they also could not identify the complaint. The complainant sent a lawyer notice to the opposite parties and informed them about the complaints and manufacturing defects of the vehicle. But neither the opposite parties replied nor turned up so far and thus shown the negligence attitude. The opposite parties are liable to rectify the defects since the vehicle is during the warranty period. By selling a product having manufacturing defects opposite parties committing unfair trade practice. The complainant is not in a position to use the vehicle therefore he has the right of refund the price of the vehicle from the opposite parties. The complainant had suffered a lot of inconvenience hardships, mental agony, financial loss etc. due to the negligent attitude, deficiendy in service and unfair trade practice on the part of the opposite parties. Thus the complainants is before us seeking directions against the opposite parties to replace the disputed vehicle with a new one or refund its price and also he seeking compensation and costs of the proceedings. Hence this complaint.
2. Version of the opposite parties 2 and 3 are as follows:
The above complaint is not maintainable either in law or on facts. The statement that the complainant had used the vehicle as per the instructions in the owner’s manual is not admitted. He was always using more air pressure in the tyres. The complainant alleging vibration on running the vehicle. The 3rd opposite party had checked the vehicle and found that the air pressure in the tyres were more than the required pressure. After adjusting the air pressure in the tyres, the vehicle was road tested. Then no vibration was found on the vehicle. After the 2nd free service the complainant had again alleging vibration on running the vehicle. On that day also the vehicle was checked and found that the air pressure in the tyres were more after adjusting the air pressure the road test was conducted and then also the vibration was found on the vehicle. Later he has sent a mail to the Honda Service Manager complaining vibration of the vehicle on running. The service manager checked the vehicle and he has also not found any vibration on road running of the vehicle. The 3rd opposite party and one other authorized service centre EVM Honda also checked the vehicle and nobody can found any defects or vibration on the vehicle on road running. The complainant again and again sent mails complaining to the opposite parties regarding the vibration on the vehicle on road running. The opposite parties checked the vehicle but could not find any defects. The statement that the complainant could not used the vehicle from 03-06-2013 because of the above said complaint is incorrect and denied. The falsity in the said statement will be clear from the kilometer running of the vehicle on 18-04-2013 and 16-08-2013. They were 4474 KM and 10499 KM respectively. It is submitted that the complainant is even now using the vehicle and the statement otherwise is only to mislead this Hon’ble Forum. It is submitted that after 16-08-2013 the complainant has not brought the vehicle for any checking or service. The opposite parties are not received the lawyer notice allegedly to be sent by the complainant. Hence the question of sending any reply did not arise. The vehicle was seen in good condition at the time of selling the same to the complainant and also the dates on which the vehicle was checked by the 3rd opposite party. But none of them found any complaint on the vehicle as alleged by the complainant. The complainant alleged that opposite parties sold a defective vehicle to the complainant. The above said contention is not true, the opposite parties never sold the vehicle suffering from manufacturing defects to the complainant. As stated above no defects as alleged by the complainant was found on the vehicle on its checking and the complainant has taken delivery of the vehicle satisfying the good condition of it. The complainant has also not suffered any loss in money or time in using the vehicle. The complaint is still using the vehicle and the statement otherwise is only to mislead the Hon’ble Forum. It is submitted that there is no deficiency in service on the part of the opposite parties and the opposite parties have also not done any unfair trade practice. The complainant is not entitled to any of the reliefs claimed in the complaint. For the reasons stated above the complaint is liable to be dismissed with costs to the opposite parties.
3. Despite service of notice from this Forum, the 1st opposite party opted not to contest the matter for their own reasons. Proof affidavit has been filed by the complainant and he was examined as PW1. Exbts. A1 to A11 were marked on his side. Expert commissioner was examined as PW2 and his report was marked as Exbt. C1. Witness of opposite parties 2 and 3 were examined as DW1 and Exbts. B1 to B6 were marked on their side. Heard the complainant who appeared in person and counsels for the 2nd and 3rd opposite parties.
4. Issues came up for consideration are as follows:
Whether the complainant is entitled to get replacement of the disputed Honda Motor cycle with new one or refund of its price from the opposite parties?
Whether the opposite parties are liable to pay compensation for an amount of Rs. 50,000/- and costs of Rs. 10,000/- to the complainant?
5. Issue No. i. The complainant had purchased a motor cycle from the 2nd opposite party and it was manufactured by the 1st opposite party. According to the complainant the above said vehicle shows some defects within a short period from the date of purchase. He alleged that the vehicle had vibration on road running. He approached the opposite parties for cure the above said defect of the vehicle. But the opposite parties did not care the genuine complaint of the complainant and also he contended that the vehicle have some manufacturing defects and the opposite parties unethically selling the same to the complainant. The act of the opposite parties are amounts to deficiency in service and unfair trade practice also. The opposite parties 2 and 3 contended that the vehicle has not suffer any manufacturing or service defects. The opposite parties 2 and 3 alleged that the complainant was always using the more air pressure in the tyres. The vibration is happening due to the air pressure in the tyres where more than the required pressure. At the time of selling the vehicle was in good condition and free from any defects.
6. Exbt. A1, retail invoice dated 17-01-2013 goes to show that the complainant had purchased C.B. SHINE CBF 125MCC BS iii Motor cycle from the 2nd opposite party at a price of Rs. 58,092/- which was manufactured by the 1st opposite party. Exbt. A2, insurance policy details shows that complainant insured above said motor cycle through Oriental insurance company from 17-01-2013 to 16-01-2014. Exbt. A3, retail invoice issued by the 2nd opposite party dated 17-01-2013 goes to show that the complainant paid an additional amount of Rs. 1,860/- to the 2nd opposite party for extra fittings. Exbt. A4 shows that Teflon coating was applied on the disputed motor cycle by paying an additional amount of Rs. 550/-. The complainant availed an extended warranty facility from the opposite parties by paying an amount of Rs. 900/- as evident from Exbt A5. Exbt. A6 to A9 e-mail communications between the complainant and the opposites parties were shown that the complainant had contended that disputed vehicle have some manufacturing defects and it is vibrating on the road running above 40 kms/Hr. He also stated in his e-mail that poor service and unfair trade practice on the part of the opposite parties. Also he demanded either replace the vehicle with new one or refund its price. Exbt. A10 and A11 goes to show that the complainant had sent notice to the 1st and 2nd opposite parties dated on 21-09-2013. He also produced postal A.D. card of the same. On go through the Exbts. A10 and A11 the complainant sent detailed complaints regarding the deficiency in service and unfair tread practice on the part of the opposite parties and also stated that the disputed vehicle became useless due to the manufacturing defect. The postal A.D. cards shows that the opposite parties 1and 2 received the above said notice from the complainant. Exbt. B1 to B5 job cards show that the complainant had entrusted his vehicle to the 3rd opposite party and EVM Automobiles for servicing. On a perusal of Exbts. B1 to B5 job cards, we could understand that the complainant filled up in the customer request column that his vehicle vibrating on road running at the time of above 40 kms speed. In Exbt. B5 and B6 opposite parties replied on inspection and road tests that they have not found any type of vibration on this vehicle. PW2, the commissioner had mounted in the box and deposed that he had ride the disputed two wheeler with opposite parties. He clearly says that vehicle has vibration on running when speed increase above 40kms/hr. As per Exbt. C1 commission report, page 2 point No. 1 and 3 are as follows:
1.Vibration of vehicle as a whole was present above 40 kmph and the accelerator assembly was also in a vibrant stage. A sporty resonential vibration was in existence with the vehicle as the speed increased to 40-70 kmph (Four Way-Lane)
3. It is open to note that the said vehicle was attended at various authorized workshops owing to the same vibration complaint and nobody has turned up to raise the doubt before the Manufacturer and the tabulated attendance of vehicle produced at various workshops in detail is furnished below. It is clear that this is a defect caused to this vehicle at the time of manufacture.
7. From the above findings of the commissioner we could understand that the allegation of the complainant that vibration on running the vehicle is true and it is happened due to its inherent manufacturing defects. We have no reason to disbelieve Exbt. C1 report. On the basis of the commission report we deny all the contentions raised by the 2nd and 3rd opposite parties. In short we partly allow the complaint and we find that the opposite parties liable to cure the complaint regarding vibration of the vehicle when run above 40kms/hr and they shall rectify the defects free of costs.
8. Issue No. ii. On go through the complaint and available evidence we find that the complainant had suffered lot of inconvenience, hardships, mental agony, financial loss etc. due to the unfair trade practice and deficiency in service on the part of the opposite parties. The above said irresponsible attitude and act of opposite parties calls for compensation and costs of the proceedings. We fix it at Rs. 10,000/- towards compensation and Rs. 5,000/- towards costs of the proceedings.
9. In the result, we partly allow the complaint and direct as follows:
The opposite parties 1 to 3 are directed to cure the complaint regarding vibration of the vehicle when run above 40 kmtrs/hr shall rectify free of costs and make it in a road worthy condition.
The opposite parties shall pay an amount of Rs. 10,000/- to the complainant towards compensation for the inconvenience and mental agony suffered by the complainant.
The opposite parties shall also pay an amount of Rs. 5,000/- towards costs to the complainant.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open forum on this the 16th day of February 2017
Sd/-
Sheen Jose, Member.
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
APPENDIX
Complainants Exhibits
Exbt. A1 : Retail invoice dt. 01-01-2003
A2 : Copy of cover note No. 721132
A3 : Copy of retail invoice
dt. 17-01-2013
A4 : Copy of invoice dt. 17-01-2013
A5 : Copy of invoice dt. 17-01-2013
A6 : Copy of letter dt. 12-04-2013
A7 : Copy of letter dt. 04-06-2013
A8 : Copy of letter dt. 15-06-2013
A9 : Copy of email dt. 17-06-2013
A10 : Copy of letter dt. 21-09-2013
A11 : Copy of letter dt. 21-09-2013
C1 : Commission report
Opposite party's Exhibits:
Exbt. B1 : Job card
B2 : Job card dt. 08-03-2013
A3 : Job card dt. 09-04-2013
A4 : Job card dt. 10-04-2013
A5 : Job card dt. 21-05-2013
A6 : Job card dt. 16-08-2013
Depositions:
PW1 : Nibeesh E.M.
PW2 : Manoj K
DW1 : Sinoj Mathew T.M.
Copy of order despatched on : By Post: By Hand:
