BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 3rd day of February 2017
Filed on : 23-04-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.313/2014
Between
Eldho Johny, : Complainant
Puthenparambil house, (By Adv. Tom Joseph, Court
Pattimattom P.O., Road, Muvattupuzha)
Choorakkode,
Perumbavoor-683 562.
Vs
1. Manager, : Opposite parties
M/s. Hero Motor Corp Ltd., (1st& 3rd O.P. By Adv. V. Krishna
Branch Office, No. 36-2, Menon, Surya J, Menon & Menon,
3rd floor, Saniya Plaza, Kumaran Arcade, 1st floor,
Mahakavi Bharathiyar Road, Power House road, Kochi-18)
Near KSRTC Bus stand,
Kochi-682 011.
2. Proprietor, Standard Motors,
Pathipalam, P.P Road,
Perumbavoor-683 542.
3. M/s. Focuz biwheelers,
28/285 A, S.A Road,
Panambilly nagar,
Kochi-682 036.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant purchased a Hero xtream Motor cycle from the 2nd opposite party on 30-07-2013 on payment of Rs. 77,200/- and it was registered as KL40J 278 . The complainant noticed that there was collision with axle and silencer while running the motor cycle on the 1st day itself. Consequently, pillion driving was not possible. The defect was rectified by the 2nd opposite party immediately but the same defect recurred after a week. During the 2nd service, there was a rattling sound from the engine, which was not rectified. The mileage of the motor cycle was reduced to 36 from 56. Km/ltr. Again it was reduced 28.km/ltr. per litre. There was slow speed, oil leak, engine choking, engine vibration and missing of the engine. On several occasions the 2nd and 3rd opposite parties repaired the vehicle but the problems remained unresolved. The recurring defect of the motor cycle is due to the manufacturing defect, supplied by the opposite parties. The complainant is entitled to get back cost of the motor cycle with compensation of Rs. 50,000/- and costs of the proceedings.
2. Notices were issued to the opposite parties. Opposite parties appeared and resisted the complaint by filing versions contending inter-alia as follows:
- The version of the 1st opposite party.
The 1st opposite party M/s. Hero Motor Corp is the manufacturers of the motor cycle. The complainant is not a consumer . There was no major complaint with the motor cycle and all minor repairs brought to the notice of the opposite parties were rectified and the complainant had expressed his satisfaction. When the opposite party examined the vehicle the mileage of the motor cycle was normal. There was no manufacturing defects on the vehicle. There is no deficiency in service or unfair trade practice. The complaint is a vexatious complaint and is liable to be dismissed.
4. The 3rd opposite party is the service provider also resisted the complaint on the very same grounds taken by the 1st opposite party.
5. The 2nd opposite party, dealer M/s. Standard Motors, Pathadipalam did not appear to contest the matter.
6. On the above pleadings the Following issues were settled for consideration.
i. Whether the complainant had proved that there was any
deficiency in service on the part of the opposite parties?
ii. Reliefs and costs
7. Evidence in this case consists of the oral evidence of PW1 and 2 and Exbts. A1 to A6 on the side of the complainant, Exbt. C1 commission report was also marked. The opposite parties did not adduce any evidence.
8. Issue No. i. The complainant produced Exbt. A1 credit of account acknowledgment for having received an amount of Rs. 77,200/- towards the cost of the motor cycle on 30-07-2013. Exbt. A2 is the ownership record data produced by the complainant. Exbt. A3(a) dated 22-08-2013 shows that the complainant had purchased for 4 litres of oil on 22-08-2013 and on 23-11-2013 as per Exbt. A3, bill the engine oil was topped up . Exbt. A4 invoice would prove that the motor cycle was serviced at 3,999 kms on 21-12-2013 under warranty. No specific defect was noticed for the vehicle as per Exbt. A4 invoice. Only routine checkup was seen made on 14-02-2014 the gasket cover and spark club were removed. On a total cost of Rs. 148/-. On 06-03-2014 as per Ext. A4 (c) also only the normal service repair is seen done. As per Exbt. A5, the complainant is seen to have brought to the notice of the 1st opposite party that the vehicle purchased by him had mileage problem and seeking intervention of the manufacturer. The allegation of abnormal vibration and sound variation were also checked by the opposite parties. Thereafter, on January 30th the complainant had raised an allegation that the mileage had come down to 32 kms . The complainant had taken out a commission through one Mr. James, he was examined as PW2 . On going through the evidence of PW2 it is seen that the expert commissioner did not ride the vehicle to find out the defects. The engine was not dismantled and checked, still the expert commissioner had opined that the engine need replacement. We find that the report of the expert commissioner is not substantiated by the proper reason. The complainant did not procure any job card to show that the motor cycle purchased by him had any latent manufacturing defects until the 2nd service, the complainant did not have any complaint regarding the vehicle. On going through the documents produced by the complainant and on going through the oral evidence adduced by the complainant, we find no service deficiency on the part of the opposite parties . The complainant did not produce any authentic report in order to prove any manufacturing defects. The opinion of PW2, the so-called expert , who did not even ride the vehicle cannot be based upon for a finding of manufacturing defects in the vehicle. The issue is therefore found against the complainant.
9. Issue No. ii. Having found issue no. i against the complainant, the complaint stands dismissed.
Pronounced in the open Forum on this the 3rd day of February 2017
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : True copy of receipt
dt. 30-07-2013
A2 : True copy of ownership record
and data
A3(a) : True copy of invoice
dt. 22-08-2013
A3(b) : True copy of job card
dt. 23-11-2013
A4 : True copy of invoice
dt. 21-12-2013
A4(a) : True copy of invoice
dt. 24-01-2014
A4(b) : True copy of invoice
dt.. 14-02-2014
A4 (c) : True copy of invoice
dt. 06-03-2014
A5 series : True copies of G-mails
A6 : Receipt
C1 : Commission Report
dt. 08-06-2015
Opposite party's exhibits: : Nil
Depositions:
PW1 : Eldo Johny
PW2 : P.J. James
Copy of order despatched on :
By Post: By Hand:
