IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 30^thday of March, 2021

Present:  Sri. Manulal V.S. President

Smt.  Bindhu R,  Member

C C No. 257/2018 (filed on 01/12/2018)

Petitioner                                            :         Bibin Baby,

                                                                   Thadathil House,

                                                                   Mannanam P.O.

                                                                   Kottayam – 686561.

                                                                             Vs.                            

Opposite Parties                                 :   1)  Jubily Hero,

                                                                   Pukadiyil Building,

                                                                   S.H. 1, Nagampadam,

                                                                   Kottayam – 686 006.

                                                               2) Hero Moto Corp Limited,

                                                                   34, Community Centre,

                                                                   BasantLok, VasantVikar,

                                                                   New Delhi – 110057.

                                                          (For Op1 and 2, adv. Manu J. Varappally

and Adv. K.S. Arundas)

                                                          O  R  D  E  R

Smt.  Bindhu R,  Member

          The complaint filed under Section 12 of the Consumer Protection Act, 1986.

          The complainant purchased Glamour with Gear BSIV bike on 20-02-2018 from Mariya Motors, Ettumanoor with registration no.KL-05-AR-6691.  From the 6^th day of the purchase onward, the bike started to stop on the way.  As this was happening continuously the complainant entrusted the vehicle with the 1^stopposite party.  They informed him that this happened because of the cover above the petrol tank.  So the complainant removed the cover but the complaint of the vehicle continued.  Thereafter again, the complainant approached the 1^stoppositeparty and kept the vehicle with them for 3 days.  After that no complaint was seen for one month.  Thereafter for one month the complainant did not use the vehicle. When the complainant started to use the vehicle again in the month of July regularly, the vehicle started showing the problem.   He took the vehicle to the Hero Motors, Kolancherry and they replaced a filter of the bike. Thereafter also the complaint persisted and for 18 times, the complainant gave the bike for service to different service centres of Hero.  On 30^th of September, the complainant registered a complaint with the 2^nd opposite party as Reg. No. 111590918263.  Accordingly the complainant got a call from the 1^st opposite party and the bike was entrusted with them.After 5 days, the complainant took the vehicle back but the complaint was not rectified.  Again on October 2012 the complainant registered 2^nd complaint with register No. 111590918268 with the 2^ndopposite party.  On 23^rd October, the service Area Manager called and asked the complainant to bring the vehicle again, the vehicle was given to the 1^stoppositeparty.  A 3^rd complaint was registered on 2^ndNovember with register No.11159-1118-279 before and after the said complaint, the 1^stopposite party sends letters assuring that they would repair the vehicle but they are not even ready to examine the vehicle whenever the complainant took the bike to the 1^st opposite party, they were not ready to register for service.  On November 26, the complainant again registered 4^thcompliant with the 2^ndoppositeparty but no one has contacted the complainant yet.  The vehicle is in an unusable condition. This is clear deficiency of service and unfair trade practice from the side of the opposite party and complaint is filed for compensation and replacement.

          Upon notice, the opposite parties appeared and filed version.

          The oppositeparties raised contentions against the allegations of the complainant that the complainant had purchased a motor bike after fully satisfying himself regarding the description, functions and sale price.  The 1^st opposite party had advised the complainant about the features, operating methods, periodic maintenance and service at the time of delivery.  Usually motor vehicles required periodic maintenance and service.  The opposite parties had offered 5 year warranty subject to terms and conditions.  The same was accepted by the complainant.  The gist of the warranty was that the bike would be free from any manufacturing defect for a period of 5 years from the date of purchase.  In order to prevent defects, the opposite parties offered 5 free of cost periodic service and maintenance.  As per the above schedule the complainant must avail 1^st servicewithin 60 days or 750 kms at the time no complaint was raised.  Thereafter the complainant ought to have availed periodic service on or before 17-06-2018 or before 3500 kms.  But the complainant availed the service on 27-06-2018 when the bike covered 4248 kms.  Hence as per the terms and conditions, the warranty offered by the opposite parties becomes void.  Thereafter the 3^rd service ought to have been availed on or before 17-09-2018 or before 1500 km.  The complainant serviced his bike only after 8323 kms.  The 4^th service must be done within 9500 km but the complainant serviced his bike only on 10115 km.  There is every chance that the bike became defective due to wear and tear if any of the periodic service was skipped.  Hence the complaint is not maintainable.  As the complainant alleges manufacturing defect there should be a proper analysis to confirm the same.  The complainant has failed to prove the alleged manufacturing defect by placing any evidence.  The interest of the opposite party as a company is to service its customers and providing goodswith utmost competitive price along with most impeccable after sale service and there is no intent whatsoever to deny the same under any circumstances.  In the case of the complainant after sales service / quality isbrought to the notice of the opposite parties / agent as a matter of policy, the same was immediately corrected with priority.  The complainant’s main allegation is that the engine stall while riding / misfiring the 1^st opposite party inspected the vehicle and nothing found defective.  The reports of the eminent automobile experts point out that the main reason for engine stall / misfiring is due to the use of inferior quality fuel, fuel adulteration, lapse of proper services, maintenance etc.  On 23-10-2018, the complainant entrusted the motor bike for regular service and after service the complainant issued a satisfaction letter.  Thereafter, the complainant contacted the 2^ndopposite party over phone and intimated that there was defect with motor bike.  The same was communicated to the 1^stoppositeparty and 1^stopposite party issued a letter to the complainant requesting him to bring the bike for service.  The allegation that the opposite party denied the service is false.  Instead of approaching any authorized service centre the complainant used to contact the Delhi office of the 2^ndopposite party and did not act upon their suggestion to entrust the bike with any authorized service centre. So it is the complainant, who is not willing to submit his vehicle for inspection and repair.  Here the complainant in order to substantiate his claim with regard to the defects in the machine purchased by him has to produce some evidence.  The oppositeparties sell the vehicle only after a number of quality checks and road tests.  If any defect detected, the vehicle would not be delivered to the customers.  There is no deficiency in service or unfair trade practice from the part of the opposite parties and the complaint is liable to be dismissed and there is no merit in the complaint. 

          Complainant filed proof affidavit and Ext.A1 to A12 were marked.  Opposite party also filed Ext.B1 and B2 along with proof affidavit.

On perusal of the facts and evidence on record, we consider the following

point.

1) Whether the complainant succeeded in establishing the deficiency of

service and unfair trade practice and if so what are the reliefs he is entitled

for?

          The complainant alleges that the bike purchased from the 1^stopposite partymanufactured by the 2^ndopposite party with registration number KL-05-AR-6691 on20.02.18 started showing defect of regular intermittent stopping while on adrive. He alleges that the 1^stopposite party  though rectified it several times, the defectcould not be cured. Even after intimating the 2^nd opposite party, he did not get properservice. Whereas the Opposite parties in the version contend that thecomplaint to the bike of the complainant occurred only because of theabsence of proper service and maintenance along with the use of inferiorquality fuel. The complainant did not adhere to the service norms of theopposite party and if proper service is not taken in prescribed period, theengine function will be affected.According to the opposite parties the complainant ought to have availed 2^ndservice on 17-06-18 on or before 3500 km. But the complainant availed theservice on 27-06-18 only at 4282 km.The 4^thservice also was done only on 10115 whereas it should have been doneat 9500 km.

We have examined the documents produced by the complainant and the

opposite parties in detail.The main allegation of the opposite parties is that the

complainant had not done proper service as stipulated by the warrantyconditions of the vehicle. They have produced Ext.B2, a vehicle history card whichwas part of some document and seems to be a computer print out.Thecomplainant has produced the copy of the service book and service recordsheet which were not marked. Even then as the document is having the sealof 1^st opposite party, we are constrained to mention the said document. There are receiptsof the first 4 services produced as 1^stfree service dated17-3-18 on 735km,2^ndfree service on 7.5.18 at 2986 km,3 rd free service on 24-7-8 at 6530km,4^thfreeserviceon12.09.18 on 9203km and 5^thfree service on 5.12.18 at12380km.a Service record sheet to be filled in by supervisor also is produced

which corroborates the above. From these receipts we can see that thevehicle has availed all the 5 services within dates and within the kilometer limits. Moreover, Exhibits A5 and A8 are the letters given by the 2^ndopposite party in

reply to the complaint submitted by the complainant in which they admit the

defect and assure to cure it. Exhibit A12 is the printout of the text messages

sent by the 2^nd opposite party to the complainant regarding service bookings anddelivery. So from these documents it is clear and evident that the vehicle hadsome serious defect and the complainant had to take it for repair on severaltimes. One purchases a vehicle only upon a dire need of it and if the vehicle isunable to be used smoothly, it would cause mental, financial and other stress tothe purchaser. It is the duty of the manufacturer to assure the quality ofmanufacture of a product purchased and the dealer also has a duty to sell qualityproducts and assure customer satisfaction upon the event of the goods becomedefective.Here the complainant has not taken any steps to appoint an expertcommissioner to examine the vehicle and hence the manufacturing defect isnot proved beyond doubt. There is a catena of judgements of apex courts thatto prove a manufacturing defect it is important to get an opinion of an expert inthe field. However, Exhibits A1 to A12 in which A5 and A8 are the apologyletters given to the complainant by the 2^nd opposite party proves that there was a defect tothe vehicle of the complainant which had to be rectified by the opposite partieson time. The vehicle had been taken to for repair continuously with shortintervals. This itself is a proof that the vehicle was defective. Hence we find thatthe opposite parties are legally bound to rectify the defects of the vehicle forthe uninterrupted use of the vehicle by the consumer where as the non rectification itselfis a deficiency in service on the part of the opposite parties.

Hence the complaint is allowed in part and the opposite parties are directed to givethe vehicle defect free to the complainant within 30 days from the date oforder in default of which pay the complainant Rs.75,000/- as compensationwith an interest at the rate of 6% per annum till the date of payment.

The opposite parties are directed to pay Rs.2000/- as compensation.

No cost is ordered.

          Order shall be complied with within a period of 30 days from the date of receipt of Order.

          Pronounced in the Open Commission on this the 30^thday of March, 2020

Smt.  Bindhu R,  Member                Sd/-

Sri. Manulal V.S. President             Sd/-

Appendix

Exhibits marked from the side of complainant

A1 :Receipt dtd.24-02-18

A2  :  Delivery recipt dtd.01-09-18

A3  :Bill No.F268 dtd.12-09-18 issued by Kolenchery motors

A4  :  Delivery receipt dtd.02-10-18

A5  :  Letter dtd.13-10-18 issued by Jubily Automobiles to petitioner

A6 :  Bill No.P971 td.16-10-18 issued by Kolenchery Motors

A7  :  invoice dtd.14-10-19 by Kolencehry Motors

A8  :  Letter dtd.17-10-18 by Jubily Automobiles to petitioner

A9  :  Invoice No.P-696 dtd.02-12-19 by Kolencherry Motors

A10  :  Job card No.614 by Kolencherry Motors

A11 :  Job card No.696 by Kolencherry Motors

A12  : Copy of  telephonic communication with complaint registration (4 pages)

Exhibits marked from the side of opposite party

B1  :  Copy of service and maintenance schedule

B2  :  Copy of vehicle history card

                                                                                                By Order

                                                                              Senior Superintendent