Consumer Complaint No. 214 of 2015
Date of filing: 13.10.2015 Date of disposal: 09.9.2016
Complainant: Anup Kumar Pal, S/o. Ganesh Chandra Pal, resident of Gopalpur, PO: Noley, PS: Madhabdihi, District: Burdwan, PIN – 713 424.
-V E R S U S-
Opposite Party: 1. Honda Motorcycle & Scooter India Pvt. Ltd. (HMSI), represented through its Director, having its office at Plot No. 1, Sector 3, IMT Manesar, District: Gurgaon, Haryana, PIN – 122 050.
2. The Unique Automobiles, represented through its Manager, having its office at G. T. Road, Nababhat, PO: Rajbari, PS. & District: Burdwan, PIN – 713 104.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party 1 & 2: Ld. Advocate, Sougata Dey & Poulami Banerjee.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs did not take any step either to replace the defective two wheelers or refund the cost of the said vehicle to him before coming to this Ld. Forum.
The brief fact of the case of the Complainant is that he purchased one two wheelers namely Honda CB Trigger Motor Cycle bearing chassis no-ME4KC191KD8016239 and Engine no KC19E80022179 for a consideration amount of Rs. 80,579=00 on 10.10.2013 from the OP-2 manufactured by the OP-1. On payment of such consideration amount the OP-2 issued an invoice bearing no-UA/1/C/01434/13-14 in favour of the Complainant. After purchasing the same the Complainant registered the vehicle before Registering authority, Burdwan and the said Authority registered the vehicle vide Registration being no-WB-42-Z2696 on 18.12.2013. Since its purchase the Complainant had to face suffering from hydraulic problem and hardness of the both monoshok and front suspension, severe starting problem and many other problems. The Complainant has obtained four free servicing from the OP-2 and each and every time he intimated the OP-2 about the problems of the motor cycle orally, but the OP-2 could not able to solve the problems. Be it mentioned that at the time of purchasing of the motor cycle the OP provided warranty for 4 years. After getting the free services he went to the Sharma Hydraulic, at Birhata, Burdwan, Baba Hydraulic Repairing Shop, Katapukur, Burdwan, Nistarini Service Centre, Burdwan and many several workshops and repairing shops for solving the problems but in each and every event inspite of incurring of huge amount so solution came out. Moreover the mechanics of those repairing shops became unable to repair the vehicle of the Complainant as well as solve the problems. As such the Complainant sent written representation to the OP-1, as well as, to the OP-2 by requesting them to compensate him, but they neither pay any heed to his requests nor gave any reply of the letter. It is pertinent to mention that due to the hydraulic problem of the motorcycle the Complainant had to suffer back pain along with mental pain and agony and for this reason he consulted with Medical Consultant and till now he is on medicine. According to the Complainant the problems of the vehicle are inherent and cannot be removed. It is submitted by the Complainant the being a bonafide customer of the OPs he never done any act detrimental to the interest of the OPs. Inspite of that the OPs knowing fully well sold the vehicle with inherent defects. The OPs have neither paid any heed to his request nor took any step for replacement of the vehicle. The OPs sold the defective vehicle with a view to harass him along with obtain undue monetary gain. The conducts of the OPs are deficient and for such action they are liable to make payment of compensation as prayed for. As his grievance have not been redressed by the OPs having no alternative the Complainant had approached before this Ld. Forum by filing this complaint praying for direction upon the OPs either to replace the motor cycle with a new defect free one or to pay the cost of the vehicle to the tune of Rs.80, 579=00, to pay compensation for Rs.50, 000=00 due to mental agony, harassment and physical problem faced by him and litigation cost of Rs.50, 000=00 to him.
The petition of complaint have been contested by the OP-1 & 2 by filing conjoint written version contending that the Complainant has approached before this Ld. Forum by suppressing the material facts, so it is not maintainable. The Complaint is vague, baseless and with malafide intention it is filed alleging manufacturing defects in the vehicle without relying on any expert report from a recognised and notified laboratory under Section 13 (1) of the Consumer Protection Act, 1986 and made allegation of deficiency in service as well as unfair trade practice without any documentary evidence in support of such allegations. The Complainant purchased a well established product in the market and used the same over a period of years, not only that after being satisfied with the condition and performance of the same he purchased. Be it mentioned that the vehicles manufactured by the OP-1 after thorough checking the same are placed in the market for selling. Until and unless the vehicles are certified from the appropriate authority the product cannot be placed for marketing. The OPs have prayed for leave to file an affidavit from their service manager, being the expert to prove that the allegations of the Complainant are baseless and unjustified and as without any expert opinion the allegations cannot be established, hence, the complaint ought to be dismissed with cost. The OPs have mentioned that the Complainant came to the OP-2 for servicing of his vehicle on 09.11.2013 with some complaints and the same was repaired by the OP-2. Not only that the Complainant came to the OP-2 for free service of the vehicle on 28.02.2014, 25.03.2014, 21.05.2014, 05.07.2014 with general problems and on each and every occasions the complaints were repaired by the OP-2 and after being fully satisfied with the service and repair of the questioned vehicle the Complainant took delivery of the vehicle after putting signature which will be evident from the documents submitted by these OPs. Therefore the allegation of inherent defect in the vehicle is totally false. It is also a false allegation that the Complainant is suffering from spondolysis or back pain due to riding on the bike. The questioned vehicle was under the coverage of warranty for two years and extended warranty for another two years. As and when the vehicle was placed before the OP-2-service centre, it was repaired up to the satisfaction of the Complainant, so now the prayer for replacement of the vehicle or refund of the cost to the Complainant does not arise at all. The Complainant purchased the vehicle on 10.10.2013 and during his first reporting it was noted that within one month i.e. 09.11.2013 the vehicle plied 295 kilometres, which proves that the vehicle is not suffering from any manufacturing defect. According to the OPs the complaint being frivolous, vexatious and false one and the same is liable to be dismissed with exemplary cost u/S. 26 of the Consumer Protection Act, 1986.
We have carefully perused the record, several papers and documents as filed by the contesting parties in support of their respective contentions and the rulings as relied on by the complainant carefully. The ld. Counsel for the complainant has relied on the rulings i.e. (2015) 4 (CPR) NC (805) passed by the Hon’ble NCDRC in the case of Rajeeb Agrahari Vs. M/s. Society Motor Ltd. & Ors. decided on 05.11.15 & (2015) 4 (CPR) NC (408) passed by the Hon’ble NCDRC in the case of Maruti Suzuki India Ltd. Vs. Soma Shekar Sanganbasappa Khadabadi & Anr. decided on 08.10.2015 and 2015 (4) CPR (NC) 877 passed by the NCDRC in the case of Manager, Regional Office John Deere India Pvt. Ltd. Vs. Laxmi Narayan Patel & Anr. decided on 02.11.2015. It is seen by us that there are some admitted facts. The complainant purchased a two wheeler, namely, Honda CB Trigger motorcycle on 10.10.2013 from the Op-2 manufactured by the Op-1, the cost of the said vehicle was of Rs. 80,579=00. After purchasing the vehicle got registration from the appropriate authority. The said vehicle was under the warranty given by the manufacturer till 09.10.2015, from 10.10.2015 to 09.10.2017 the said vehicle is under the coverage of extended warranty for which the complainant had to pay extra money. After getting free services from the authorised service centre, the complainant went before Sharma Hydraulic at Birhata, Burdwan, Baba Bhairab Hydraulic Repairing Shop at Katapukur, Burdwan, Nistarini Service Centre, Burdwan and several workshops for repairing and solving the problems cropped up in the said vehicle, the complainant had to incur huge expenses but no solution came out. During free service obtained by the complainant from the Op-2 endorsement was put by the complainant but nowhere the complainant showed his dissatisfaction with the works and repairing of the said vehicle by the service centre. Being satisfied with the work, the complainant took delivery of the vehicle therefrom. An expert was appointed for examination of the questioned vehicle who filed an opinion stating that there is no hydraulic problem in the vehicle, as well as, the vehicle does not suffer from any manufacturing defect, the expert has opined that there is problem in the fuel meter of the questioned vehicle. The allegation of the complainant is that since its purchase he had to suffer hydraulic problem, hardness of both monoshok and front suspension, severe starting problem along with many other problems and for this reason he could not use the vehicle properly and due to such problem he is suffering from back pain along with spondolysis. As the defects could not be repaired and removed by the OP-2, hence by filing this complaint the complainant has prayed for either to replace the questioned vehicle with a new defect- free one or refund the actual cost of the said vehicle along with other reliefs.
The rebuttal case of the Ops is that though the vehicle is under the converge of warranty given by the manufacturer along with the extended warranty, inspite of knowing the same the complainant went before several repairing shops which are not at all authorised prior to lapse of the said extended warranty. As per warranty clause the complainant is under obligation to intimate the problem of the warranty covered vehicle only to the authorised service centre, not elsewhere. As the vehicle was checked and examined and opened by other several workshops, hence the Op-2 has no liability as prayed for in the complaint by him. Moreover, the expert opinion reveals that though the complainant has alleged that the vehicle is suffering from hydraulic problem, but there is no hydraulic problem, as well as, the vehicle is not suffering from any manufacturing defect. As the expert opinion shows that there is problem in the fuel meter, the Op-2 is always ready to repair the same as and when the questioned vehicle will be brought by the complainant at the authorised service centre.
Admittedly, as per requirement and prayer of the complainant an expert was appointed. One motor vehicle expert having qualification of Diploma in Automobile Engineering was appointed as an expert for examination of the vehicle and submission of report on the points as mentioned in the petition dated 26.5.2016 filed by the complainant. The petition dated 26.5.2016 reveals that the complainant put four questions before the ld. Expert i.e.
Q. no. 1. Whether any defects are there in respect of hydraulic of the above-mentioned vehicle or not?
Q. no. 2. If yes, whether the defects are manufacturing defects or not?
Q. no. 3. Whether the defects can be removed by repairing or not?
Q. no. 4. Any other defects come within the knowledge at the time of inspection of the vehicle.
During hearing the ld. Counsel for the complainant has submitted that though he put the above-mentioned questions before the ld. Expert but the ld. expert choose to reply only two questions and did not bother to reply the remaining questions. We have noticed from the expert report dated 20.6.2016 that the ld. expert has opined after examination of the disputed motorcycle in presence of the representative of the complainant and their respective Lawyers that there is no problem in the hydraulic system of the vehicle and hence there is no manufacturing defect. It is mentioned by the ld. expert that there is problem of the fuel meter in the vehicle. The ld. Counsel for the complainant submits that the ld. Expert did not bother to reply the question no. 2&3 as mentioned in the petition dated 13.10.2015 filed by him. But we do not get much substance in such submission of the complainant because the ld. Expert clubbing together two questions has replied the same in a single sentence and as the ld. Expert has opined that there is no manufacturing defect in the vehicle hence we do not find any reason to answer the question no. 3 because as there is no manufacturing defect in the vehicle hence, whether the same can be removed by repairing or not does not arise at all. It is seen by us that in the petition of complaint the complainant has mentioned several problems which he had to face in the vehicle since its purchase i.e. hydraulic problem, hardness of both monoshok and front suspension, severe starting problem and many other problems. But in the petition dated 13.10.2015, apart from the above-mentioned questions no question was put by the complainant before the ld. Expert about the other problems as mentioned in the complaint. Therefore, it is clear that the questioned vehicle does not have any inherent manufacturing defect, but there is some problem in the fuel meter which in our view, certainly the OP-2 is under obligation to repair or remove the said problem as the vehicle is still under the extended warranty period. The complainant has relied on some ruling as above-mentioned in support of his contention. The first ruling as mentioned earlier is not applicable in the case in hand because the facts of the said case is not identical with the instant complaint because in the said case the complainant did not go beyond the warranty clause and all time during the free service and/or paid service the vehicle was brought by him to the authorised service centre but in the instant complaint the complainant himself intentionally breached the condition of the warranty as he brought the questioned vehicle before several workshops and repairing shops apart from the authorised service centre. Therefore, as before the unauthorised workshops and the repairing shops the vehicle was repaired, examined and opened by the technicians and workmen of the said repairing shops, we cannot put liability for any fault of those repairing shops on the shoulder of the OP-2. The remaining rulings as relied on by the complainant are also not applicable in the case in hand because during either free services or paid services at the authorised service centre nowhere in the job card the complainant mentioned his dissatisfaction about the works and examination along with repairing of the OP-2. The copies of the job cards reveal that the complainant being satisfied with the service of the Op-2 took delivery of the questioned vehicle therefrom.
As it is proved that there is no manufacturing defect in the questioned vehicle, in our view the complainant is not entitled to get the replaced vehicle with a new and defect-free one and refund of the cost of the vehicle as prayed for. So as the complainant has failed to prove his allegations by adducing cogent evidence and documents, hence the complaint fails.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is dismissed on contest. However, considering the facts and circumstances of the case, there is no order as to costs.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
