Andhra Pradesh

Visakhapatnam-II

CC/12/2012

P.V. Satyanarayana - Complainant(s)

Versus

Jupiter Automobiles - Opp.Party(s)

V.S. Pavan

25 Feb 2015

ORDER

Reg.of the Complaint:06-01-2012

                                                                                                                                    Date of Order:25-02-2015 BEFORE THE DISTRICT CONSUMERS FORUM-II

AT VISAKHAPATNAM

                   Present:

1.Sri H.ANANDHA RAO, M.A., L.L.B.,

       President

2.Sri C.V.N. RAO, M.A., B.L.,

                                             Male Member

3.Smt.K.SAROJA, M.A., B.L.,

       Lady Member

                                            

 

WEDNESDAY, THE 25^TH DAY OF FEBRUARY, 2015

CONSUMER CASE NO.12/2012

 

BETWEEN:

P.V.SATYANARAYANA S/O P.PYDIKONDA, ADVOCATE,

HINDU, AGED 37 YEARS , R/A D.NO.49-44-7,

HEMA RESIDENCY-II, SANKUVANIPALEM,

AKKAYYAPALEM, VISAKHAPATNAM-16.

                                                                                             …COMPLAINANT

A N D:

1.JUPITER AUTOMOBILES REP. BY ITS

PROPRIETOR, OPP:AMBEDKAR STATUE,

DABAGARDENS, VISAKHAPATNAM.

2.HONDA MOTOR CYCLES & SCOOTER INDIA PVT. LTD.,

REP. BY ITS MANAGING DIRECTOR, PLOT NO.1 & 2,

SECTOR-3, IMT MANESAR, GURGAON-12205Q,  HARYANA, INDIA.

                                                                                      …OPPOSITE PARTIES

 

This case coming on 07-01-2015 for final hearing before this Forum in the presence of Sri.V.S.PAVAN, Advocate for the Complainant and of  Sri K.PYDI RAO, Advocate for the Opposite Parties, and having stood over till this day for consideration, the Forum made the following:

 

O  R  D  E  R

(As per the Honourable President on behalf of the Bench)

1.       The Complainant filed the present complaint against the Opposite Parties, directing the OPs to replace the old vehicle with new vehicle properly manufactured or to pay an amount of Rs.51,338/- being the price of the vehicle, Rs.25,000/- towards compensation and Rs.10,000/- towards costs.

2.       The case of the complainant in brief is that the 1^st OP is the Dealer and Supplier and the 2^nd OP is the manufacturer of Honda Motor Cycles and Scooters and he purchased a Scooter styled as Honda Activa from the OPs on 25-10-2010 by paying an amount of Rs.50,349/- and OPs issued a warranty book let wherein warranty for the vehicle was given as 24 months or from the date of purchase of the vehicle or of completion of running of vehicle for 24,000kms whichever is earlier and the complainant regularly using the vehicle in the normal course by following the guidelines under the manual, suddenly on 12-09-2011 the vehicle running was stalled and it was notice that crank rapair in the engine of the vehicle was defective and the OPs received the vehicle for repairs and after complaint of 15 days, they have been returned the vehicle to him by saying that the vehicle will not get any such repair however once again on 11-11-2011,  the vehicle was stalled due to very same defect and when he questioned the OPs about the warrantee and conditions of  the vehicle then they replied that they will only repair vehicle,  they will not do anything, if there is any manufacturing defect and he many a time requested for change of the vehicle as its engine  was properly manufactured but upon the failure on their part, he filed the present complaint.

3.       The 1^st OP filed counter and the same was adopted by the 2^nd OP,  denying the material averments made in the complaint contended that the complainant does not fall under definition of Consumer as defined U/s 2 (g) of Consumer Protection Act  and there is no manufacturing defect in the vehicle sold by them and the complainant filed the present complaint to harass them to defame their reputation and to decline their business and thereby grab monetary benefit and they further contended that they are ready to rectify the defect at the cost of the complainant.  It is also contended that the complaint filed in O.S.1515/2012 on the file OF VI Additional Senior Civil Judge at Visakhapatnam for seeking damages from them and the same is pending and warranty is not applicable to any active scooter on which any free and paid services has not been carried out as per schedule given in owner’s manual and finally contended that they did not commit any act of deficiency of service. For these reasons, the complaint is liable to be dismissed.

4.       To prove the case on behalf of the complainant, he filed his evidence affidavit and filed two more affidavits of Private Mechanics and got marked Exhibits A1 to A14 on behalf of the Complainant and on the other hand, on behalf of the OPs, they filed their affidavits and no documents were marked on their behalf.   

5.       Exhibit A1 is the Receipt dated 05-08-2010, Exhibit A2 is the Receipt dated 25-10-2010, Exhibit A3 is the Invoice dated 25-10-2010, Exhibit A4 is the Sale Certificate dated 25-10-2010, Exhibit A5 is the Owner’s manual, Exhibit A6 is the Certificate of Registration, Exhibit A7 is the Customer copy dated 13-09-2011, Exhibit A8 is the cash bill dated 26-09-2011, Exhibit A9 is the letter issued by the complainant to both OPs, dated 16-11-2011, Exhibit A10 is the Postal receipts, dated 16-11-2011, Exhibit A11 is the acknowledgements, Exhibit A12 is the Lawyer’s Notice dated 01-12-2011, Exhibit A13 is the Postal Receipts dated 01-12-2011 and Exhibit A14 is the Acknowledgments.

6.       Both parties filed their respective written arguments.

7.       Heard oral arguments of both sides.

8        Now the point for determination to be determined in this case is;

Whether there is any deficiency of service on the part of the OPs and the Complainant is entitled to any reliefs asked for?

9.       It is to be noted from the case set out by the OPs in the counter that they have not denied the purchase of the vehicle by the complainant on 25-10-2010 and the vehicle was given the warranty for a period of 24 months from the date of purchase or of completion of running of vehicle for 24,000 kilometemrs whichever is earlier and the vehicle was stalled its running on 12-09-2011 i.e., prior to completion of 24 months and by the time the vehicle was run only 8000 kilometers and the starting of vehicle was occurred due to the chronic repair in the engine and after taking adequate time by the OPs to repair the vehicle and they have been delivered the vehicle on 26-09-2011 by stating that the vehicle does not repeat the same defect in future once again. As on 11-11-2011, the vehicle was not even completed running of 9000 kilometers within 24 months period, but the very same problem has been occurred and the vehicle was totally stalled its running.  From the above, it is very clear that the facts that were pleaded in the complaint and also in the evidence affidavit were not specifically denied  by the OP and their only objection which can be seen from the recitals of the counter is that the complaint is not a Consumer as per the definition under Section  24 of the act.  

10.     Now it is to be seen whether the complainant comes under the purview of Consumer.

11.     As per section 2 (d) of the Act, the person who buys any goods for a consideration is a Consumer and the Complainant herein admittedly purchased the vehicle by paying consideration of Rs.60,000/- and as such, he is a consumer and so far as the deficiency as defined under Section 2(g) of the act is concerned,  the fault, imperfection, short coming or inadequacy in the quality, nature  and manner of performance  which is reputed to be maintained by or under any law for the time being in force in terms of the contract or otherwise, in relation to any service.

12.     Admittedly, the complainant purchased the vehicle by paying the consideration. Therefore, it is the duty of the OPs who are manufacturer and the dealer of the vehicle to maintain the quality of the vehicle in such a manner that it should not cause any fault imperfection or inadequacy in manufacturing the vehicle. Admittedly, the vehicle was manufactured to suit a situation that it will not cause any problem, defect and damage to the vehicle within the stipulated time of 24 months from the date of purchase or completion of running of vehicle in 24000 kilometers but even without completion of 11 months and without running 8000 kilometers, the vehicle’s crank damage and the same was initially shown to the OPs and they have taken a fortnight time in repairing the vehicle and it was stated by them  though the vehicle does not repeat the same defect but their statement remained as a statement without completing 2 months from the date of repair, the vehicle got the very same defect and when the complainant insisted for change the vehicle, it appears the OP refused his request and the complainant chooses to use the very same vehicle and the OPs did not hear the appraises and they only stated that they will repair the vehicle by receiving the costs from the complainant.

13.     From the above, it appears that the vehicle that was sold to the complainant by the OP was not properly manufactured and there was a fault not only in the quality of the vehicle but also its manner of performance i.e., running of the vehicle on road and i.e., the reason why, the vehicle got damaged in the short time of its purchase. Therefore, it can be held that there is no a clear deficiency of service on the part of the OPs as defined under section 3(g) of the Consumer Protection Act and the present dispute does not fall under Section 24 as contended by the learned counsel for the OP, has no legs to stand.

14.     The second objection that was taken by the OP is that there is no manufacturing defect in the vehicle that was sold to the complainant. In this regard, the complainant draws our attention to the terms and conditions of the warranty marked as Exhibit A5 that was supplied to the complainant in the form of book and also in the counter of OP, it was clearly and categorically recited that the vehicle will not cause any defect within completion of 24 months or 24000 kilometers whichever is earlier and admittedly, the vehicle was stalled before completion of 11 months and 8000 kilometers  and then also the complainant is not admitting the fact that there is a manufacturing defect in the vehicle and further after making repair by the OP for a period of 15 days, once again the very same defect was caused to the vehicle and upon refusal of the OP to change the vehicle, the complainant was forced to get the vehicle repaired with the mechanic personnel who are having about 20 years of experience in repairing the vehicle and gave their affidavits as PWs 2 and 3 that they have identified the vehicle and found that the vehicle that was sold to the consumer is having a manufacturing defect and  such a vehicle will come once in a thousand vehicles and the defects can not be rectified by making any such repairs, the only solution is to change the engine entirely and without changing the engine the vehicle will not run for its life.

15.     From the above it is clear that the vehicle was got the chronic repair within 11 months and Rs.8,000/- and after its repair also once again, the very same defect was occurred and the technical persons i.e., PW2 and PW3 also opined that the vehicle is having manufacturing defect and to controvert their evidence, the OP even did not whisper in their counter that they have verified the entire engine by opening it and then, they came to know that there is no manufacturing defect. Further, the OPs even did not care for the agony of the complainant in verifying the engine of the vehicle even to know that there is a manufacturing defect or not. Therefore, it is held that the objection of the OPs that there is no manufacturing defect is totally wrong and taken only with a view to avoid the changing of the vehicle; therefore, the second objection raised by OPs also does not hold any water.

16.     The last objection of the OPs is that they are ready to repair the vehicle at the cost of the complainant.  It is a fact that the seller and manufacturer of the vehicle have taken up entire money from the complainant by promising that the vehicle will not sustain any defect within the warranty period and it is their obligation that they will repair the vehicle at free of cost by changing the defective engine vide Exhibit A5 but when the situation demands for changing of                                                                              the vehicle as it was not properly functioning,  the OPs have taken u turn and contending that there is no manufacturing defect and they will repair the vehicle at his cost. It is the bounded duty of the OPs to repair the vehicle at free of cost as it was damaged within the warranty period and that according to their promises, they have to change the defective items in this case, it appears the defective item is the Engine, which could not be changed unilaterally without changing the vehicle and as such, the vehicle needs to be changed as per the request of the complainant and the failure on the part of the OPs is nothing but giving a go bye to their promises. Therefore, the OPs are liable to pay the cost of the vehicle as per the demand of the complainant.

17.     The record clearly goes to show by filing evidence affidavits not only by the complainant but also the technical personnel and the Exhibits Particularly the  Warranty Booklet i.e., Exhibit A5 clearly shows that the OPs action is not only contrary to their promise but also against to the accepted principles of law. The OPs except by filing their evidence affidavit, did not even chose to file the affidavit of any technical person who attended the vehicle at the time of its chronic repair between 12-09-2011 to 26-09-2011 even to say or to show that the vehicle engine was damaged or not. For all these reasons, it can be held that the complainant is entitled for refund of the amount paid to the vehicle from the OPs.

18.     Whether the Complainant is entitled for compensation of Rs.25,000/- is to be considered.   The complainant is a practicing Advocate and took the vehicle for his profession but unfortunately it was not functioned properly which may cause mental agony. It appears as seen from the evidence of Complainant that the Complainant was compelled to approach the Opposite Parties and therefore experienced a lot of physical strain besides mental agony and financial loss. It is an un-disputed fact that the Opposite Parties did not refund the advance amount paid by the Complainant.   Naturally, that might have put the Complainant to suffer some mental agony besides physical stress and strain.   In this view of the matter, we sincerely feel that it is a fit case to award compensation.   Having regard to all these facts and circumstances, we are of the considered opinion, award of compensation of 25,000/- would serve the ends of justice.   We therefore, proposed to award compensation of Rs.25,000 /-,  in the circumstances of the case on hand. Accordingly this point is answered.

19.     Before parting our discussion, it is incumbent and imperative on our part to consider the costs of litigation.    The Complainants ought not have to approach this Forum had his claim for refund of the amount of Rs.51,338/- being the price of the vehicle or reliefs sought for have been honored by the Opposite Parties within a reasonable time and in view of the matter, the Complainant’s claim for costs deserves to be allowed.   In our considered and unanimous opinion awarding a sum of Rs.2,500/- as costs would appropriate and reasonable.   Accordingly costs are awarded.

20.     In the light of our discussion, referred supra, the complainant is entitled to receive the sum of Rs.51,338/- being the price of the vehicle, a compensation of Rs.25,000/- and also costs of Rs.2,500/- to the Complainant.

21.     In the result, this complaint is allowed in part, directing the Opposite Parties to pay an amount of Rs. 51,338/- (Rupees fifty one thousand, three hundred and thirty eight only), being the price of the vehicle, a compensation of Rs.25,000/- (Rupees Twenty five thousand only) and costs of Rs.2,500/- (Rupees two thousand five hundred only) to the Complainant.  Time for Compliance, one month from the date of this order.

Dictated to the Stenographer, transcribed by him, corrected and pronounced by us in the open Forum, on this the 25^th day of February, 2015.

 

       Sd/-                                           Sd/-                                     Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT        

 

APPENDIX OF EVIDENCE

  For the Complainant:-

Exhibits	Date	Description	Remarks
A 1	05-08-2010	Receipt	Original
A2	25-10-2010	Receipt	Original
A3	25-10-2010	Invoice	Original
A4	25-10-2010	Sale certificate	Original
A5		Owner’s Manual	Original
A6		Certificate of Registration	Photocopy
A7	13-09-2011	Customer copy	Photocopy
A8	26-09-2011	Cash Bill	Original
A9	16-11-2011	Letter issued by the complainant to both OPs	Original
A10	16-11-2011	Postal receipts	Original
A11		Acknowledgements	Original
A12	01-12-2011	Laywer’s Notice	Original
A13	01-12-2011	Postal Receipts	Original
A14		Acknowledgements	Original

For the Opposite Parties:- -nil-

 

     Sd/-                                             Sd/-                                     Sd/-

LADY MEMBER                       MALE MEMBER                       PRESIDENT