| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER Friday the 25th day of August 2023 C.C.269/2013 Complainant Santhosh Kumar, S/o. Parameswaran, Cholampadam House, Kolathara Post, Cheruvannur, Kozhikode district. (By. Adv. Sri. Aboo Puthiyottil) Opposite Parties - KTC Motors,
YMCA Road, Kozhikode -673001 - Honda Motor cycle +Scooter India Pvt. Ltd,
Plot No.1, Sector-3, IMT Manesar, Gurgaon District, Haryana -122050 By Sri. P.C. PAULACHEN – PRESIDENT. This is a complaint filed under Section 12 of the Consumer Protection Act, 1986. - The case of the complainant, in brief, is as follows:
On 30/09/2012 the complainant purchased a new UNICORN motorcycle from the 1st opposite party. The 2nd opposite party is the manufacturer of the said motorcycle. But soon after the purchase, the motorcycle showed major complaints like gear changing down automatically while running, brake pedal releasing automatically while running, chain loosing continuously, headlight working without switch and petrol tank colour fading. These complaints were reported to the first opposite party on several occasions and undergone periodical services and extra services, but the complaints could not be rectified and they are still continuing. The opposite parties had delivered a defective motorcycle to him. There was unfair trade practice and deficiency of service on the part of the opposite parties. On 27/2/2013 a lawyer notice was issued to the opposite parties which evoke no response. Hence the complaint to direct the opposite parties to replace the defective motorcycle with a new one or in the alternative, refund the purchase price and to pay compensation of Rs.50,000/- for the mental agony and inconvenience caused to him. - The opposite parties resisted the complaint by filing written version jointly. According to the opposite parties, the complainant is not a consumer as defined under the Consumer Protection Act. The purchase of the motorcycle is admitted. On 19/10/2012 the motorcycle was brought for its first service to the opposite parties at 724 kms of run. It was a free service and the first opposite party had attended to the requirements made by the complainant at the time of the first service. Thereafter on 27/10/2012 the motorcycle was brought alleging complaint of gear slipping and loose contact of switch. On thorough inspection, it was found that there was no gear slipping as alleged. There was dust and water particles inside the switch assembly, but the same was functioning properly. The gear lever of Honda CB Unicorn is designed as a single shafted system which can be used only with toes. If the same is not operated properly the gear will not shift and the vehicle will get stuck. Heels cannot be used for shifting the gear of these model bikes. The complainant was appraised and convinced of the said fact and was given the tips regarding gear shift pattern.
- The second free service was on 22/11/2012 and at that time, the motorcycle had run 3000 kms. At that time also, the complainant informed that the gear shift pattern was very difficult for him and so the slipping of the gear was again observed. But when the opposite parties checked the same, there was no problems in shifting the gear. The third free service was done on 27/12/2012 and at that time it had run 6000 kms. The fourth free service was on 05/02/2013 and at that time the vehicle had run a distance of 8500 kms. Though the complainant alleged slipping of gears, on examination, there was no problem. But thereafter a lawyer notice was received by the first opposite party from the complainant alleging false and baseless allegations and claims.
- On 09/04/2013 the complainant had taken the vehicle to the first opposite party alleging gear slip, low brake, chain loose etc. and the said complaints were attended by the opposite parties though there was no substantial complaints were seen. The vehicle was in extensive use by the complainant. Again the vehicle was brought to the first opposite party on 24/04/2013 alleging oil leakage. The gasket was replaced free of cost under warranty and the vehicle was taken back by the complainant on the same day itself.
- As the complainant had been persistently alleging gear slip, his alleged complaint was informed to the second opposite party and the complainant was advised to bring the vehicle on 29/4/2013. On that day the opposite parties checked the vehicle in the presence of the complainant and test drive was done with the complainant as pillion rider. There were no complaints to the vehicle and this was convinced by the complainant. The complainant had availed free services several times and many other services were done free of cost.
- As advised by this Forum, at last, as a part of amicable settlement the vehicle had been thoroughly checked and rectified all the demands made by the complainant free of cost. In fact the vehicle had met with an accident on 02/12/2013 and serious damage was caused. There is no manufacturing defect in the vehicle. All the complaints were attended to by the opposite parties promptly. The vehicle was in extensive use of the complainant (an average of 3000 kms per month). There was no unfair trade practice or deficiency of service on the part of the opposite parties. None of the reliefs is allowable. With the above contentions, the opposite parties pray for dismissal of the complaint.
- The points that arise for determination in this complaint are:
- Whether the complainant is a consumer or not?
- Whether the vehicle in question is having any inherent manufacturing defect, as alleged?
- Whether there was any deficiency of service or unfair trade practice on the part of the opposite parties, as alleged?
- Reliefs and costs.
- Evidence consists of the oral evidence of PW1 and Exts A1 to A3 on the side of the complainant. RW1 was examined on the side of the opposite parties. Ext C1 was also marked.
- We heard both sides.
- Point No.1: The opposite parties have taken a contention in the written version that the complaint is not maintainable since the complainant is not a consumer as defined under the Consumer Protection Act and as such there is no consumer relationship between them. According the definition of Consumer in Section 2(1)(d) of the Consumer Protection Act, 1986, a person who buys any goods or hires or avails of any services for consideration is a consumer. Here the first opposite party is the authorised dealer and service centre and the second opposite party is the manufacturer of HONDA CB UNICORN Motorcycle. The complainant purchased the said motorcycle paying Rs.71,453/- as consideration from the first opposite party dealer. Since the complainant has purchased the vehicle paying consideration, he is definitely a consumer falling under Section 2(1)(d) of the Consumer Protection Act, 1986. The complainant alleges that a defective vehicle was sold to him and there was neglect on the part of the opposite parties to properly address his concerns over the vehicle. If the allegations are proved to be true, the same constitutes deficiency of service and unfair trade practice on the part of the opposite parties. So the grievance of the complainant will come under Section 2(1)(c), (g) and (r) of the Consumer Protection Act, 1986. The complaint is perfectly maintainable before this Commission.
- Points 2 and 3: These points can be considered together for the sake of convenience. The complainant has approached this Commission with a prayer to direct the opposite parties to replace the alleged defective motorcycle with a new one or in the alternative, refund the purchase price along with compensation. The allegation is that the CB UNICORN motorcycle sold to him was a defective one and there was neglect on the part of the opposite parties to address his grievances with regard to the vehicle.
- In order to substantiate his case, the complainant has got himself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim reiterating that the vehicle suffered from inherent manufacturing defect and immediately upon purchase it began to show problems and thereby the purpose of the motorcycle could not be materialised and he has suffered monetary loss as well as intense mental agony and hardship. Ext A1 is the copy of the Registration certificate, Ext A2 is the owners’ manual and Ext A3 is the copy of the lawyer notice dated 27/02/2013 with postal acknowledgement card.
- The case advanced by the opposite parties is that there is no defect much less any manufacturing defect in the vehicle and whenever complaints were reported the same were promptly and properly attended to by the opposite parties and after the filing of the complaint, as per the direction of this Forum, the vehicle was thoroughly checked again and rectified all demands made by the complainant about the motorcycle free of cost. The Service supervisor of the first opposite party was examined as RW1 and he has deposed supporting and reiterating the contentions in the version.
- The learned counsel for the complainant argued that the vehicle is having manufacturing defect and so the opposite parties are liable to replace the vehicle with a brand new one or refund the purchase price. It was submitted that immediately after the purchase, the vehicle started showing complaints like gear slipping, brake pedal releasing automatically, chain loosing, headlight working without switch, petrol tank colour fading etc. causing much mental agony and hardship to the complainant. On the other hand, the learned counsel for the opposite parties vehemently argued that there is no manufacturing defect in the vehicle and the complainant was in extensive use of the vehicle and the minor complaints were on account of improper usage. It was also submitted that all the services/repairs were promptly attended to by the opposite parties and during the pendency of the complaint the vehicle was thoroughly checked and attended all the demands made by the complainant free of cost and thus all the grievances were redressed and the complaint is only to be dismissed.
- On a careful consideration and scrutiny of the evidence in hand, it is seen that there is absolutely nothing to show that the vehicle is having any manufacturing defect. To establish the claim for the total replacement by a new vehicle or refund of the purchase price, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect (Sushil Automobiles P Limited Vs. Dr. Birendra Narain Prasad & Ors., (III (2010) CPJ 130 (NC)). In this context, it is worthwhile to have a glance at Ext C1. Ext C1 is prepared by a Lecturer in Automobile Engineering S.S.M Polytechnic College, Tirur after inspecting the vehicle on 17/10/2015. The learned expert has inspected the vehicle in static condition and also took test drive for about 4 kms in order to check the vehicle in running condition. In static condition, no damage was found and all the components like tyres, body, chassis, chains and accessories were in good condition. During test drive, an abnormal vibration was found and according to the learned expert, it can be due to defective clutch assembly or defective gear assembly or engine power output is not synchronised with timing gear. According to the learned expert, the defect can be rectified during breakdown maintenance by overhauling transmission system and engine assembly. If the defect continued even after overhauling and assembly, it may be due to serious defect of vehicle manufacturing. During inspection, the learned expert could not find any automatic gear changing in running without applying clutch and also there was no automatic brake application or chain loosening. It is reported that the vehicle performance is not good during the running period due to vibration.
- It may be noted that the learned expert inspected the vehicle on 17/10/2015 after three years of its purchase. All the complaints like gear slipping, automatic brake application and chain loosening etc. raised in the compliant are ruled out in Ext C1. The complaint of vibration while running is not raised by the complainant in the complaint. As already stated, the inspection was after three years of the purchase and the complaint of vibration might have occurred after the filing of the complaint. Going by Ext C1 it does not support the case of the complainant that the vehicle is having inherent manufacturing defect. No other expert/technical report is made available. The onus is on the complainant to prove the manufacturing defect. But the complainant could not prove that the vehicle suffered from any inherent manufacturing defect. It has come out in evidence that at the time of free service on 05/02/2013 the vehicle had run a distance 8500 kms. This would indicate that the complainant was in extensive use of the motorcycle from the date of its purchase on 30/09/2012. Had the suspected defect been serious, the complainant would not have been able to ride it to the extent of 8500 kms within a short span of time. Since no inherent manufacturing defect is established or proved, for replacement of the vehicle with a brand new one or refund of the purchase price is not allowable.
- It is in evidence that whenever complaints were reported, the same were promptly attended to by the opposite parties. It has also come out in evidence that during the pendency of the complaint, as per the direction of our learned predecessors-in-office, the vehicle was thoroughly examined by the opposite parties and all the deficiencies and defects pointed out by the complainant were rectified by the opposite parties. Ext C1 also rules out the existence of any such complaints at the time of inspection. So the grievance projected in the complaint regarding the defects and deficiencies had already been redressed and there is no scope for any further complaint in this regard.
- From the above discussion, what emerges is that there is no proof of any unfair trade practice or deficient service on the part of the opposite parties and consequently the complaint must fail.
- Point No.4: In view of the finding on the above points, the complainant is not entitled to claim and get any relief as prayed for.
In the result, the complaint is dismissed.However, no order as to costs. Pronounced in open Commission on this, the 25thday of August, 2023. Date of Filing: 11-06-2013. Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER APPENDIX Exhibit for the Complainant : Ext A1 - Copy of the Registration certificate. Ext A2 - Owners’ manual. Ext A3 - Copy of the lawyer notice dated 27/02/2013 with postal acknowledgement card Exhibits for the Opposite Parties: Nil Commission Exhibits Ext C1 - Report filed by Harish Koya.K.E, Lecturer in Automobile Engineering SSM Polytechnic College, Tirur. Witness for the Complainant PW1 – Sathosh Kumar (Complainant) Witnesses for the opposite parties RW1 – Saneesh.N Sd/- Sd/- Sd/- PRESIDENT MEMBER MEMBER True copy, Sd/- Assistant Registrar. | |
