Andhra Pradesh

Chittoor-II at triputi

CC/10/2016

SK. Khadar Shareef, S/o. Shaik Babu, Lineman in Electricity Department - Complainant(s)

Versus

KUN Motor Cycles Pvt., Ltd., By its Dealer - Opp.Party(s)

G.Ramaiah Pillai

20 Dec 2016

ORDER

 

 

                                                                                                                                                             Filing Date:-03-02-2016                                                                                                                                                                                     Order Date:  20-12-2016

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. M.Ramakrishnaiah, President

                                                                                           Smt.T.Anitha, Member

                                     TUESDAY, THE TWENTIETH DAY OF DECEMBER, TWO THOUSAND AND SIXTEEN

C.C.No.10/2016

Between

Sk. Khadar Shareef,

S/o. Shaik Babu,

Muslim, aged 25 years,

Line Man in Electricity Department,

R/at: D.No.16-57, Dargamitta,

Srikalahasti-517 644,

Chittoor District.                                                                               … Complainant

 

And

1. KUN Motor Cycles Pvt., Ltd., by its Dealer,

D.No.16-257, Panagal Road,

Pangal,

Srikalahasti-517 640,

Chittoor District.

    

2. HONDA Motorcycles and Scooters India

Pvt.Ltd., by its Authorised Signatory,

Plot No.1, Sector-3, IMT MANESAR,

District Gurgaon,

Haryana State-122 050.

 

3. E.G.Umapathi,

Dealer Kun Motorcycles Pvt.Ltd.,

19-3-10/D1, Badri Nagar,

Renigunta Road,

Tirupati-517 501.                                                             … Opposite parties

 

           This complaint coming on before us for final hearing on 05.12.2016 and upon perusing the complaint, written arguments of the complainant and other relevant material papers on record and on hearing of Sri.G.Ramaiah Pillai, counsel for the complainant and Sri.V.G.Ganesh, counsel for the opposite party No.1 and 3 and opposite party No.2 is remained exparte having stood over till this day for consideration, the Forum made the following.

 

ORDER

DELIVERED BY SMT. T. ANITHA, MEMBER

ON BEHALF OF THE BENCH

         This complaint is filed under Section 12 of the Consumer Protection Act 1986, complaining the deficiency of service on part of the opposite parties and prayed this Forum to direct the opposite parties either to replace a new vehicle in the place of defective one or to refund the costs of the vehicle and also to pay Rs.10,000/- towards mental agony and for deficiency in service and to pay Rs.2,000/- towards legal expenses.

        2. The brief facts of the case are:  The complainant submits that the opposite party No.1 is the dealer of KUN motorcycle in Srikalahasti, opposite party No.3 is the dealer of Tirupati and the opposite party No.2 is the manufacturer of KUN motor cycles. The complainant submits that he purchased KUN motor cycle bearing model No.CB UNICORN 160 CBF 160 ID type bearing frame No.ME4K0201 BF for Rs.83,991/- under invoice No.14INO4042, dt: 27.03.2015 and the said bike is having warranty period of 24 months or until the vehicle covered 32,000 kilometers, whichever is earlier for replacement of the defective parts during the warranty period. The complainant submits that from the date of the purchase he noticed that the performance of the bike is trouble shooting and abnormal noise is coming when the bike was driven and engine becomes over heat. Hence he gave bike for repair to the opposite party No.1 on 31.03.2015, 12.06.2015, 31.08.2015, 28.10.2015 and 10.12.2015 to rectify the defects. Even after repairing, the problem could not be rectified and same problem was continuing even after changing some parts in the engine. Hence with no option, he seeks replacement of new bike or refund of the amount paid by him. Hence he caused a legal notice on 21.12.2015 calling upon the opposite parties 1 and 2 jointly and severally either to replace the defective bike with new one or to refund the costs of bike.

         3. After receipt of the notice, the opposite party No.3 sent a letter on 11.01.2016 stating that the engine noise is within the permissible limits of the manufacturer and further suggested to direct the complainant to visit their showroom at Tirupati for test drive of a new brand UNICORN motor bike from their stock to get himself convinced. After receipt of the letter from the opposite party No.3 the complainant came down from Srikalahasti to Tirupati on 17.01.2016 and found no technicians were available and again on 20.01.2016 he returned to srikalahasthi as the manager is said to be in the meeting . So frustrated the complainant issued a reply on 20.01.2016 to the opposite party No.3 stating that he will refer the dispute to District Forum for deficiency in service. But the opposite parties failed to rectify the defect or to replace the bike with new bike. Hence he filed the present complaint.

        4.  The opposite party No.2 called absent and set exparte.                                                                                                                                                                               

        5.  The opposite party No.3 came in to appearance and filed the written version and the same was adopted by the opposite party No.1. In the written version the opposite party No.3 admitted the sale of the motor bike to the complainant and rest of the allegations made in the complaint were denied and further stated that the 2^nd opposite party is having its branches all over India and it has been rendering its services to its customers with utmost care and caution and further they will release the vehicles in good condition after thorough check up from the vehicle experts to meet the competition in the market. As the complainant approached the 1^st opposite party to purchase the vehicle, since there was no stock in their branch, they arranged a vehicle from Tirupati branch. As per the job card and the service manual, the complainant has to surrender his vehicle within the prescribed time and period as detailed in the manual for getting the service of his vehicle.  Hence as usual practice the complainant also first surrendered his vehicle on 30.03.2015 for service and  he paid the charges and taken the delivery of the vehicle with utmost satisfaction by signing in the job card. The opposite parties further submits that on 11.06.2015 again the complainant brought the vehicle with a complaint of ‘engine noise’  and the vehicle running cut off, petrol tap open with other complaints and he has taken delivery with utmost satisfaction. Again on 23.10.2015 he surrendered the vehicle with complaint “vehicle not string problem and change fork oil seal”. Generally such complaints would be happened when the vehicle met with a road accident or fallen on the ground in high speed and it can be proved by examining the vehicle with an expert in motor mechanic. Hence it clearly shows that the complainant has not maintained the vehicle in a proper manner and he has not followed the manual and instructions given in the manual. Hence because of his negligence only, the vehicle got repaired and damaged. Hence there is no deficiency of service on part of them as they attended for service promptly and delivered the vehicle in good condition.

          6. The opposite parties further submits that, they offered for test drive of any new UNICORN byke from the stock, but the complainant herein turned down the offer stating that all the vehicles would be in the similar nature and he had a predetermined bad opinion on the products, though the opposite parties offered test drive, but he refused to drive which clearly shows the negligence on part of the complainant. The complainant with an intention to get new bike with a malafide intention by suppressing the real and material facts filed this present complaint. Hence there is no deficiency in service on their part. Hence the complaint is liable to be dismissed.

         7. The complainant one Shaik. Khadar Shareef, S/o. Shaik.Babu  filed his evidence on affidavit and Ex.A1to A10 were marked  on behalf of him. On behalf of the opposite party No.3 one E.G.Umapathi, S/o.E.Ganapathi, working as branch head in KUN Motor Service Pvt. Ltd., filed his evidence on affidavit and got marked Ex.B1 to B7. Both parties were filed their written arguments and oral arguments were heard.

        8.  Now the points for consideration are:                                                                            

              (i) Whether there is any deficiency of service on part of the opposite parties    

                     towards the complainant?            

             (ii)  Whether the complainant is entitled for the reliefs as prayed for? If so?         

             (iii)   To what Relief?

        9. Point No:-(i). There is no dispute regarding the purchase of the motor bike by the complainant for Rs.83,991/-  Model No. CB UNICORN 160 CBF 160 ID on 27.03.2015 from opposite party No.1 through opposite party No.3 and same was admitted by the opposite party No. 1 and 3 in order to prove invoice No.14INO4042 under Ex.A1 is filed. The main contention of the complainant is,  the said bike is having warranty period of 24 months or until the bike covers 32,000 kilometers whichever is earlier and the warranty covers for the replacement of the defective parts during the warranty period. The complainant submits that from the date of the purchase, the said bike is giving troubles such as abnormal sound and engine getting over heated and the performance of the vehicle is not up to the mark. Hence he approached the opposite party No.1 for rectification of the defects on 31.03.2015, 12.06.2015, 31.08.2015, 28.10.2015 and 10.12.2015 and in order to prove it he filed Ex:A1 to A6 job cards were filed. Despite attending to the defects by the opposite parties and changing some parts in the engine there is no improvement in its performance and the bike was frequently breakdown and overheated. Hence with no option he caused a legal notice on 21.12.2015 calling upon the opposite parties to replace the defective bike with new one or to refund the price of the bike. After receipt of the same the opposite party No.3 issued a reply letter dt: 11.01.2016(Ex:A8) in the reply letter  it is mentioned that the noise which is coming from bike is within the permissible limits of the manufacturer and suggested the complainant to visit their showroom at Tirupati for test drive of new brand UNICORN Motor bike from their stock and to get himself convinced. Hence the complainant visited showroom of the opposite party No.3 from Srikalahasti to Tirupati on 17.01.2016 and found no technicians were available in the showroom and was advised to come on 20.01.2016, even on that day the Manager said to be in meeting and enable to extend the service. Hence frustrated the complainant issued a notice i.e. under Ex:A9 that he will approached the Consumer Forum, accordingly he filed the present complaint.

       10.  The opposite party admitted the sale of the motor bike and the  3^rd opposite party contended that the 2^nd opposite party who is the manufacturer  is having its branches all over  India and it has been rendering the service to its customers with utmost care and caution and they  release the vehicles in the market in good condition after thorough check up by their experts. Hence as there was no stock in the first opposite party’s shop they arranged a vehicle from the opposite party No.3 branch and as per job card there are three free services and the complainant got the service to his bike on 30.03.2015 under Ex:B1 and he approached the opposite party No.1on 11.06.2015 with a complaint of “engine noise” and he was taken delivery of the bike on 12.06.2015 with satisfaction  on 12.06.2015 under Ex:B2. Again on 18.06.2015 i.e job card under Ex:B1 the complainant approached the opposite party No.1  with a problems of engine noise, vehicle running cut off, petrol tap open and with other complaints again the complainant on 20.06.2015 taken the delivery of the vehicle with utmost satisfaction and again on 23.10.2015 the complainant approached the opposite party No.1 with a problem of vehicle not string problem and change fork coil seals. Generally such complaints would be happen when the bike when met with an accident or fallen on the road in high speed and it can be proved by examining the bike with an expert motor mechanic. Hence due to the    negligence on part of the complainant as he is not maintained the vehicle in a proper manner and has not followed the instructions mentioned in the manual the above said problems were arise and also contended that the repairs were carried out as and when the complainant demanded and denied the manufacturing defect.

       11. It is admitted that in the chief affidavit of the opposite party the bike was brought to their service station on 30.03.2015 for general service and again on 11.06.2015 with a complaint of a engine noise and also on 18.06.2015 the complainant brought the bike with the complaints of engine noise, vehicle running cut off, petrol tap open and with other complaints and taken the delivery of the bike on 20.06.2015 with utmost satisfaction. The opposite parties further admitted that on 23.10.2015 the complainant brought the vehicle with a complaint of “vehicle not string problem and change foke oil seal” during the warranty period. In order to prove their contention the opposite parties got  marked Exs: B1 to B6 job cards issued at the time of servicing the bike. The opposite parties further stated that these problems would arise when the vehicle met with an accident, and also stated that it can be proved by examining an expert in motor mechanic. But, the opposite parties failed to file the petition for the appointment of the commissioner for examining the bike with an expert mechanic to prove their contention. The main allegation of the complainant that the vehicle is having persistent inherent defect and it is clear from the service records of the opposite parties, that the complainant  had taken for repair to the service station of opposite party No.1 and also under Ex:A8 the opposite party No.3 called the complainant to visit the show room of Tirupati for comparing the noise of new UNICORN 150 CC with the complainant’s bike because it is in permissible limits of the manufacturer. But, they failed to attend the complainant when he visited their show room on 17^th January and also on 20^th January and stated that on 17^th January being a Sunday is a holiday on 20^th January he met with their Manager and rejected to test drive of the vehicle. If at all there are any bonafides on part of the opposite parties they might have prove with examining the bike with expert mechanic. Because even after repair on 12.06.2015 and taken delivery of the bike,  again on 18.06.2015 the complainant surrendered the bike with certain complaints engine noise vehicle running cut off and petrol tap open and with other complaints shows the impropriety of the repair work carried by the opposite parties. Because after repairing on 11.06.2015 the complainant brought the bike for repair on 18.06.2015 within six days of the previous service. Hence the opposite parties failed to repair the bike in proper way that itself clearly shows that the above said bike is suffered with inherent defects within a week i.e. 11.06.2015  and 18.06.2015 which itself amounts to deficiency of service on part of the opposite parties .

        The opposite party No.2 who is the manufacturer failed to attend the Forum and contests the case and proved that the bike is free from manufacturing defect because, the above said defects arise within the warranty period. That itself clearly shows the attitude of the manufacturers that the interest shown at the time of promoting sales will not show at the time of any problem would arise to the products manufactured by them which is nothing but unfair trade practice and deficiency in service. Hence this point is answered  in favour of the complainant. 

         12. Point(ii):-   In view of our finding on point No.1 we are of the opinion that there is deficiency in service on part of the opposite parties. The complainant who is an electricity employee he is very much need of the two wheeler for his day to day work because of the inherent defects in the vehicle he has to depend upon the public transport and also several times he brought the vehicle to the opposite parties several times from the date of the purchase for carrying out of repair. Hence the complainant is entitled of Rs.5,000/- towards compensation for mental agony for deficiency in service. The defects were not removed by the opposite parties hence the complainant had been deprived of the continuous  use of the two wheeler because of in action of the opposite parties. Hence the complainant is entitled for the refund of the purchase price of the bike. Hence this point is answered accordingly.

       13.Point (iii):-   In view of our discussion on points 1 and 2, we are of the opinion that there is deficiency in service on part of the opposite parties, that the complainant being a genuine consumer is entitled to refund of the price of the bike of Rs.83,991/- paid by the complainant and directed the opposite parties to take back the defective motor bike from the complainant also he is entitled of Rs.5,000/- (rupees five thousand only) towards compensation for mental agony and deficiency in service and Rs.2,000/- (rupees two thousand only) towards litigation expenses and the complaint is allowed accordingly.

        In the result, the complaint is allowed in part directing the opposite parties 1 to 3 jointly and severally to refund the cost of the motor bike of Rs.83,991/- (Rupees eighty three thousand nine hundred and ninety one only) to the complainant and take back the defective motor bike from the complainant. The opposite parties are further directed to pay Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony and deficiency  in service and to pay Rs.2,000/- (Rupees two thousand only) towards costs of the litigation. The opposite parties are further directed to comply with the order within six (6) weeks from the date of receipt of copy of this order. Failing which, the above said compensation amount of Rs.5,000/- (Rupees five thousand only) shall carry interest @ 9% p.a. from the date of this order till realization.  

         Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 20^th day of December, 2016.

        Sd/-                                                                                                                            Sd/-

   Lady Member                                                                                                            President

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sk. Khadar Shareef (Chief Affidavit filed).                    

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: E.G. Umapathi (Chief Affidavit filed).  

 

             EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s            

 

Exhibits (Ex.A)	Description of Documents
	Retail Invoice for Rs. 83,991/- issued by the Opposite Party No.1 towards purchase of the vehicle.  Dt: 27.03.2015.
	Tax Invoice/Bill issued by the Opposite Party No.1 for services to the vehicle. Dt: 31.03.2015.
	Tax Invoice/Bill issued by the Opposite Party No.1 for services to the vehicle.           Dt: 12.06.2015.
	Tax Invoice/Bill issued by the Opposite Party No.1 for services to the vehicle.           Dt: 28.10.2015.
	Tax Invoice/Bill issued by the Opposite Party No.1 for services to the vehicle.           Dt: 31.08.2015.
	Tax Invoice/Bill issued by the Opposite Party No.1 for services to the vehicle.           Dt: 10.12.2015.
	Office copy of Legal Notice to Opposite Parties 1 and 2 with postal acknowledgement from Opposite Party No.1. Dt: 21.12.2015.
	Letter from Opposite Party No.3. Dt: 11.01.2016.
	Reply to the Opposite Party No.3 by the complainant with postal acknowledgement. Dt: 20.01.2016.
	Letter from Opposite Party No.3 received on 04.02.2016 after filing the complaint.  Dt: 03.02.2016.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Job Card Dt: 30.03.2015 vide Card No. 015185.
	Job Card Dt: 11.06.2015 vide Card No. 015990.
	Job Card Dt: 18.06.2015 vide Card No. 039504.
	Job Card Dt: 27.10.2015 vide Card No. 017484.
	Job Card Dt: 23.11.2015 vide Card No. 017777.
	Job Card Dt: 28.11.2015 vide Card No. 047442.
	Owner’s Manual Book Let of Honda Company.

 

 

                                                                                                                                           Sd/-

                                                                                                                                       President

//TRUE COPY//

// BY ORDER//

 

 

 

Head Clerk / Sheristadar

Dist. Consumer Forum-II, Tirupati

 

Copies to:  The Complainant.

                   The Opposite parties.