Tamil Nadu

North Chennai

CC/274/2018

K.Thiruvenkatanathan - Complainant(s)

Versus

Maansarovar Automobile - Opp.Party(s)

V.Yurendra kumar

30 Sep 2022

ORDER

                                                                   Complaint presented on  :19.01.2011

                                                                    Date of disposal             :29.09.2022

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

CHENNAI(NORTH)

2^nd  Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai-600 003.

PRESENT :  THIRU G. VINOBHA, M.A., B.L.,                                       : PRESIDENT

                       TMT. KAVITHA KANNAN, M.E.                         : MEMBER-I

                       THIRU V. RAMAMURTHY, B.A., B.L., PGDLA : MEMBER-II

 

C.C. No. 274/2018

 

DATED THIS THURSDAY THE 29^TH DAY OF SEPTEMBER 2022

 

K.Thiruvenkatanathan

#:1132 TNHB colony,

Velachery Chennai-42                                                             ….  Complainant

 

…Vs…

 

1. Manager,

Maansarovar Automobile,

#:105, 100 feet Velacher Bypas road,

Velachery Chennai-42.

 

2. Manager,

Honda Motorcycle & Scooter India Pvt Ltd.,

Plot #:1 Sector 3 IMT Manesar

District Gurgaon Haryana-50

                                                                                      …..Opposite parties

                                     

Counsel for Complainant                   : M/s.V.Yurendrakumar

 

Counsel for  opposite parties                : M/s.Nirmal Roy Sanjeevi & S.Bruno Cruz

 

 

 

 

 

 

ORDER

THIRU G. VINOBHA, M.A., B.L.,       : PRESIDENT

          This complaint is filed by the complainant against Opposite parties under section 12 of Consumer protection Act 1986 prays to direct the opposite parties to retain the defective Honda Activa DLX motorcycle bearing Regn.no.blank as per job card with engine :JC44E1054492 chasis/frame :ME4JC449MA8177789 and refund the cost Rs.53,161/- with interest @ 24% from 20.12.2010 till repayment and to pay Rs.20,000/- as compensation for the deficiency of service of the opposite parties in having sold a Honda Activa DLX motorcycle with inherent manufacturing defect and for the failure to refund its cost with interest till date and to pay Rs.20,000/- for the resultant mental agony and paid caused by such deficiency of service and to pay Rs.250/- per day with interest @24% from 22.12.2010 for using transport daily and to pay Rs.7500/- as cost of this complaint.

1.THE COMPLAINT IN BRIEF :

The complainant submitted that on 20.12.2010 he purchased a Honda Activa DLX Grey Motor cycle bearing Regn.no.blank as per job card with engine #:JC44E1054492 chasis/frame #:ME4JC449MA8177789 from 1^st opposite party dealer and manufactured by the 2^nd opposite party.  The complainant paid the cost of the motor cycle of Rs.53161/- dated 18.12.2010 besides other charges as per 1^st opposite party’s demand contrary to the proforma invoice give at time of booking. The vehicle was delivered on 20.12.2010. On 21.12.2010 when the complainant had driven the motorcycle fount to his great shock that this motorcycle stopped in the  middle of the road at kathipara junction. Immediately called the 1^st opposite party.  The 1^st opposite party mechanic inspected the motorcycle and while taking it remarked that he had okayed the vehicle to be taken only upto service centre. The complainant contacted the 2^nd opposite party who failed to answer his queries. Left with no alternative the complainant sought for a new motorcycle for the one sold to him was suffering from inherent manufacturing defects. The complainant sent a letter dated 04.01.2011 to the opposite parties but failed to reply.  The complainant came to know that the problem was acid as informed by 1^st opposite party. The complainant is yet to recover from the shocking acid problem having paid a huge sum for a branded vehicle.  On reaching the concerned dealers centre the batteries sent separately along with motorcycle without acid are filled up with acid from storage tanks then fixed in the new motorcycles. The complaint of acid problem as informed by 1^st opposite party is evident and done by 1^st opposite party. The 1^st opposite party refused replacement of damaged motorcycle. The 2^nd opposite party manufacturer the motorcycle sold through the 1^st opposite party which was defective  and manufacturing defects. The complainant prays to refund a sum of Rs.53161/- with interest and compensation.

2.WRITTEN VERSION OF  1^ST OPPOSITE PARTY IN BRIEF:

The opposite party deny each and every averments made by the complainant as false and put the complainant in to strict proof of the same. The complainant has purchased Activa Dx from this opposite party. The vehicle was delivered in good condition on 20.12.2010 and the complainant received after test drive. It was clearly mentioned in the delivery challan that ‘GOODS ONCE SOLD WILL NOT BE TAKEN BANCK OR EXCHANED’ and agreed the terms and conditions by the complainant. The vehicle registered as TN 07 BK 1819. This opposite party submitted that the complainant informed that the vehicle was not working. The opposite party sent their mechanic to examine the vehicle. The vehicle was taken to the service center and the required part was duly replaced by the opposite party.  The vehicle was ready for delivery and informed to the complainant.  The complainant has not taken back the vehicle instead he demand replacement with a new vehicle. The opposite party submitted that explained to the complainant about the procedure and given him a warranty of five years to the working condition of the vehicle. The opposite party submitted that they have sent a letter to the opposite party asking him to take back the vehicle.  The complainant have not come forward to take back the vehicle. The complainant who failed to take back the vehicle have rushed to this forum with false and frivolous allegations. Hence the complaint is not maintainable.

3.WRITTEN VERSION OF  2^nd  OPPOSITE PARTY IN BRIEF:

The  opposite parties deny each and every averments made by the complainant as false and put the complainant in to strict proof of the same. This opposite party submitted that the motorcycle which is being sold by the opposite party 1 on 20.12.2010.The very next day of taking delivery of the vehicle from the 1^st opposite party, while complainant was riding the vehicle, the vehicle was suddenly stopped in mid way. The 1^st opposite party had sent its technicians to check the vehicle. The technician found foreign substance such as impurity of acid in the fuel tank, resulting which the fuel pipe and fuel tank was damaged internally and engine had got seized. The 1^st opposite party removed the defects by replacing the affected parts and made the vehicle in good condition on free of cost, but the complainant had refused to take delivery the vehicle. The complainant was left with no alternative but to demand for the replacement of the vehicle with new one. The opposite party offered to the complainant an extended warranty of another 3 years by the opposite parties as a good will gesture. But the complainant was not willing to take delivery of the vehicle and replaced with a new one. Hence this complaint in frivolous has no basis and is liable to be dismissed.

4. POINTS FOR CONSIDERATION

1. Whether there is deficiency of service on part of the Opposite parties ?
2. Whether the Complainant is entitled to the reliefs as prayed in the complaint.  If so, to what extent?

The Proof Affidavit was filed by the Complainant as his evidence and the documents were marked as Ex. A1 to A8 and Written argument also filed by Complainant. Opposite party had filed proof affidavit and documents were marked as Ex.B1 to B5 on their side.

5. POINT NO. 1

The fact that the complainant purchased Honda Activa Two wheeler on 20.12.2010 from 1^st opposite party which was manufactured by the 2^nd opposite party by paying Rs.53161/- was not disputed by both the parties. According to the complainant when the complainant drove the new motor cycle on the next day ie 21.12.2010 to  his shock and surprise the vehicle is stopped on middle of the road in the heavy peak hour traffic and he called the 1^st opposite party immediately who sent a mechanic and inspected the vehicle and taken the vehicle to the service center and hence the complainant sent a letter on 04.01.2011 to the opposite parties and later the complainant known on enquiry that the new motor cycle came without a battery and only on reaching a concerned dealer battery was fixed and acid were filled up and hence the complainant vehicle stopped due to the acid problem and contended that the 1^st opposite party refused replacement of the motorcycle and the 2^nd opposite party who manufactured the vehicle sold it with inherernt manufacturing defect due to which the company was put to hardship and the vehicle is still with the 1^st opposite party and prayed for replacement of the vehicle and for compensation. 

6.  But the 1^st opposite party contended that in the delivery challan itself it has been stated that the goods one sold will not be taken back or exchanged and further stated that the vehicle was taken to service center and the required part was replaced immediately and though the vehicle was made ready and informed to the complainant, the complainant refused and demanded replacement of new vehicle and further stated that he was explained about five year warranty to the vehicle and the complainant is not entitled to get the replacement of new vehicle and it is enough if the manufacturer does repair or replace the particular defective  part and stated that there is no deficiency in service on its part.

7.  The 2^nd opposite party contended that the technician found impurity of acid in the fuel tank of the vehicle resulting in damage to the fuel pipe and tank internally and hence the engine got seized and therefore stated that due to complainant fault of using adulterate fuel the engine stop and he was assured and the defective part was replaced immediately and he was assured or warranty of free of cost but the complainant adamantly  refused to take the delivery of the vehicle inspite of notice sent to him and further stated that there is no manufacturing defect or deficiency in service.

8.  Ex.A1 to A3 are proformo invoice and delivery challan of the vehicle.  It is found from Ex.A4 in the job card there is no mentioned about the details of the vehicle and its defect or date of job card.  Ex.A6 is letter by the complainant to the 1^st opposite party regarding the incident which happened on 21.12.2010.  It is found from Ex.B2 that on 21.12.2010 the petrol tube and tank and tape was replaced by the 1^st opposite party and also the vehicle was repaired in road running condition and since the vehicle was not taken back by the complainant for more than a month by Ex.B3 letter the complainant was not informed to collect the vehicle and further he was assured the said letter that the vehicle have five year warranty from the date of purchase and they are ready to provide any assistance from their side. But the said letter was returned as found in Ex.B4 as no such person. 

9.  It is found from the document filed by both the parties except the fact that the vehicle all of a sudden stopped in the middle of the road on the next day of taking delivery of the new vehicle which according to the complainant is due to manufacturing defect and because of acid problem in the battery but which according to the 1^st opposite party is due to the fault of the complainant in using adulterated fuel there is no other document or material evidence given by the complainant to substantiate that the vehicle had inherently manufacturing defect and there is no other proof to show that  the vehicle required continues repairs frequently due to defects in the vehicle.  In the absence of proving manufacturing defect with the help of expert evidence because the repair of the vehicle on a single occasion the complainant cannot seek replacement of vehicle or the cost vehicle especially when the opposite parties replaced the defective part and made ready the vehicle for delivery.  The opposite parties are even ready to avail service free of cost since the vehicle is having warranty for five years but for which also the complainant is not willing.  The complainant has failed to prove the deficiency in service on the part of the opposite parties by adducing material evidence further the complainant failed to prove that due to non use of the vehicle, he was made to spent Rs.250/- per day towards transportation for which there is no proof. The citation relied upon by the opposite party in R.P.No.3140/2007 of NCDRC dated 10.05.2007 and contended that unless the manufacturing defect is proved by the complainant by expert evidence the complainant is not entitled for replacement of the vehicle.  In view of the above said findings it is found that the complainant failed to prove on the part of opposite parties as alleged in the complaint. Point no.1 answered accordingly.

10. POINT NO.2

Based on finding given Point no.1 there is no deficiency of service on part of opposite party by the opposite parties. But at the same time admittedly from 21.12.2010 the vehicle is in the service center of 1^st opposite party which was not taken back by the complainant event after repair and replacement of defective parts. The complainant has not taken back the vehicle inspite of notice and information given by the 1^st opposite party. In view of findings given in point No.1 the complainant is not entitled either for replacement of vehicle or refund of the value of the vehicle. But if the vehicle is allowed to be retained with the 1^st opposite party it will be a loss to the complainant and unlawful enrichment to the 1^st opposite party which is against natural justice. Hence the 1^st opposite party is directed to return the  Honda Activa Motor cycle in a fit and road worthy condition to the complainant along with the necessary documents of the vehicle within one month from the date of receipt of this order. Point No.2 is answered accordingly.

                     

                        In the result the 1^st opposite party is directed to return the Honda Activa Motor Cycle  referred in the complaint in a fit and road worthy running condition to the complainant along with necessary documents of the vehicle within one month from the date of receipt of this order copy and the complaint is  disposed off accordingly. There is no order as to cost considering the facts of the case.  

Dictated by the President to the Steno-Typist taken down, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 29^th  day of September 2022.

 

MEMBER I                           MEMBER II                     PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT

Ex. A1		Proforma invoice.
Ex. A2	18.12.2010	Invoice no.101N04410
Ex. A3	20.12.2010	Delivery challan.
Ex.A4		Job card.
Ex.A5		Receipts.
Ex.A6	04.01.2011	Complainant’s letter.
Ex.A7	05.01.2011	Ack due.
Ex.A8	18.12.2010	Policy of Insurance.

LIST OF DOCUMENTS FILED BY THE 1^ST OPPOSITE PARTY.

Ex. B1	21.12.2010	Certificate of Registration.
Ex.B2	21.12.2010	Job card.
Ex.B3	21.01.2011	Letter to complainant by opposite party 1.
Ex.B4		Returned cover.
Ex.B5		Warranty policy.

 

MEMBER I                           MEMBER II                     PRESIDENT