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

Tuesday 31^st day of October 2023

CC.177/2017

Complainant

                 Libitha,

W/o Rajesh,

Kalayam Kulath House,

Keezhariyur (PO), Koyilandy Taluk,

Kozhikode district -673307

(By Adv. Nancy.E.S)

Opposite Party

1.         Managing Director,

      Honda Motor Cycle and Scooter Pvt Ltd,

      Plot No.1, Sector 3, IMT Manasar,

      Gurgaon, Haryana -122050.

2.         The Manger,

KTC Motors, Diya Building,

Kollam PO, Koyilandy,

Kozhikode district,

PIN – 673 306

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT.

            This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:

On 20/06/2015 the complainant purchased a Honda Activa 3G scooter manufactured by the first opposite party, from the second opposite party, paying Rs. 59,840/- as consideration. While riding the vehicle, the complainant came to know that it has some mechanical defects. While moving on the road the vehicle was automatically raising and running uncontrollably.On 6/6/2016 while riding, the speed of the scooter automatically went up and moved uncontrollably, as a result of which, complainant fell down and sustained injuries. The complainant took the vehicle to the garage of the second opposite party and explained the things happened. The second opposite party, after carrying out some repairs, delivered back the vehicle to the complainant stating that the complaint would not be repeated. But after a few days, the husband of the complainant, while riding the scooter, met with an accident for the very same complaint. On 30/08/2016 while the complainant was riding the scooter, it jumped with high speed and she was thrown off and sustained injures and undergone treatment.

3. Thereupon the complainant took the vehicle to the garage of the second opposite party   on 30/08/2016. But the second opposite party was not able to explain as to what was the defect and how to rectify it. The complainant stated that without getting a written assurance that the complaint would not be repeated, she was not ready to take the vehicle back. But the second opposite party was not ready to give any such assurance and the vehicle is still in the garage. Though the complainant lodged a complaint before the service manager of the first opposite party, there was no reply.
4. The vehicle has been in the custody of the second opposite party for more than six months. It is clear that the scooter is having some un-repairable mechanical defect.  A highly defective vehicle was sold by the opposite parties to the complainant after having received consideration. The complainant is entitled to get a brand new defect free scooter and compensation for her sufferings to the tune of Rs. 50,000/-. Hence the complaint.
5. The first opposite party was set ex-parte. The second opposite party has filed written version.
6. The contentions of the second opposite party, in brief, are as follows; The second opposite party is the authorised dealer and service centre of Honda Motor Cycles and Scooters Pvt. Ltd. The purchase of the Honda Activa 3G scooter by the complainant on 20/06/2015 is admitted. The scooter delivered to the complainant was a defect free one. The complainant had conducted test drive and was satisfied about the quality  and standard of performance. No complaint was raised at the time of free service also. On 6/06/2016, the complainant reported that she had fallen down from the scooter and sustained injuries due to the automatic acceleration of the vehicle and the consequent inability to control the vehicle. Their service personnel conducted a detailed inspection including multiple test drives and since  no complaint could be found,  the vehicle was delivered back to the complainant to her satisfaction. On 30/08/2016 the complainant came to them alleging that she had fallen down from the scooter and sustained serious injuries due to the problem of automatic acceleration and inability to control the vehicle. The vehicle was then taken to their head office for detailed inspection and on such inspection it was noted that the scooter was being used rarely.  No patent or latent defects were found on such inspection. However, as a  gesture of goodwill and as a part of customer retention policy, the accelerator cable, carburettor  and   chalk cable were replaced with new parts free of cost under the warranty. But the complainant was not ready to take the vehicle back   insisting for replacement of the vehicle with a new one.  They could not meet the unjust demand of replacement and thereafter the vehicle was kept at the service centre. After much persuasion, the complainant agreed to take delivery of the vehicle only after receiving the written assurance that the vehicle was in proper working condition and that the complainant would not sustain any injuries in future.  Since it was not possible to give any such assurance, the second opposite party refused to give any such written assurance.
7. After filing the complaint on 30/01/2018 during adalath, the second opposite party was directed to deliver the scooter to one Sri. Bhagyaraj, who had represented himself to be the person authorised to take delivery of the vehicle on behalf of the complainant. The vehicle was delivered on 3/02/2018 to Sri. Bhagyaraj up on undertaking that he would use the vehicle for 15 days and report to the Forum in case of any complaint. No complaints were reported by Sri. Bhagyaraj. On 7/4/2018 the complainant filed a petition to appoint a commissioner, pursuant to which, the Forum appointed the Assistant Motor Vehicles Inspector, Sub Regional Transport Office, Koyilandy, as an expert   commissioner. The expert has filed a report, against which, they have filed detailed objection. There is no patent or latent defects mechanical or otherwise in the vehicle as alleged by the complainant. Neither the prayer for replacement of the vehicle nor the claim for compensation is allowable. It is, therefore,  prayed  to dismiss the complaint with costs.
8. The points that arise for determination in this complaint are;

              (1).  Whether the scooter sold to the complainant was a defective  one ?  

              (2). Whether there was any unfair trade practice or deficiency of service on the part of the opposite parties, as alleged?

              (3). Whether the prayer for replacement of the vehicle with a brand new one is allowable?

              (4). Whether the claim for compensation is allowable?

              (5). Reliefs and costs.

9. Evidence consists of the oral evidence of PW1 and Exts A1 to A11 on the side of the complainant. RW1 was examined and Exts B1   was  marked on the side of the second opposite party. The report of the expert was marked as Ext C1.  
10. We heard both sides.  
11. Points 1 to 4:  These points can be considered together for the sake of convenience. The first opposite party is the manufacturer of Honda Activa 3G Scooter. The second opposite party is the authorised dealer and service centre of the first opposite party. It is not disputed that on 20/06/2015 the complainant purchased a Honda Activa 3G  (Black) scooter from the first opposite party paying consideration. The grievance of the complainant is that a defective vehicle was sold to her for a huge consideration. The prayer in the complaint is to get a brand new  scooter instead of the alleged defective one, along with compensation of Rs. 50,000/- for the pain and suffering and mental agony suffered by the complainant on account of the unfair trade practice indulged by the opposite parties and also on account of deficiency of service on their part.
12. In order to substantiate her case, the complainant got herself examined as PW1, who has filed proof affidavit and deposed in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the vehicle booking form dated 20/06/2015, Ext A2 is the copy of the advance receipt dated 20/06/2015, Ext A3 is the copy of the registration certificate, Ext A4 is the copy of the insurance certificate, Ext A5 is the copy of tax licence, Ext A6 is the copy of the medical certificate dated 7/10/2016, Ext A7 is the copy of the receipt dated 30/08/2016 issued by the second opposite party, Ext A8 to A10 are the computer printout of e-mail communication and Ext A11 is the copy of the lawyer notice dated 18/10/2016 and the postal receipt.
13. The second opposite party alone filed written version and contested the matter. The first opposite party did not turn up to file version. According to the contesting second opposite party, there is no patent or latent defects mechanical or otherwise to the vehicle as alleged by the complainant and there was no unfair trade practice or deficiency of service on their part. The technician of the second opposite party was examined as RW1 and he has deposed supporting and reiterating the contentions in the written version. Ext B1 is the undertaking signed by Sri. Bhagyaraj and the second opposite party.
14. The complainant has argued that the vehicle remained to be a defective one even after replacement of the accelerator controlling system by the second opposite party during the pendency  of this complaint as  per the direction of our learned predecessors-in-office and that she is entitled to get a brand new vehicle  and also compensation as prayed for. On the other hand, the learned counsel for the second opposite party argued that the vehicle sold to the complainant was defect free and there is no patent or latent defect, mechanical or other wise to the vehicle and even then they have replaced the accelerator controlling system after Ext C1 report, pursuant to the direction of our learned predecessors-in-office and thus the entire grievance of the complainant had been redressed and the complaint has become infructuous.
15. The vehicle was remaining in the custody of the second opposite party as the complainant insisted for a written assurance that the vehicle was in proper working condition and that the complaint would not be repeated. The records show that during the pendency of this complaint, as per the direction in the Adalath, the second opposite party delivered the vehicle to one Bhagyaraj, the person authorised to take delivery of the vehicle on behalf of the complainant. Ext C1 report was filed by the Assistant Motor Vehicles Inspector, Koyilandy, who was appointed as an expert Commissioner to inspect the vehicle. The learned expert has reported that the accelerator controlling system of the vehicle is having defects and it is malfunctioning.  It is seen that after the filing of Ext C1, the accelerator system was replaced by the second opposite party free of cost. This is admitted by PW1 in the cross examination. Ext C1 shows that there was defect in the vehicle since the accelerator controlling system was malfunctioning. It is reported by the learned expert that the accidents might have occurred due to the malfunctioning of the accelerator controlling system. However, the defect has been rectified by the second opposite party during the pendency of the complaint by replacing the malfunctioning accelerator controlling system and now the vehicle has been in the possession of the complainant. At the time of hearing, the complainant has submitted before this Commission that even after the replacement of the accelerator system, the problem persists. But there is absolutely no evidence that the problem is still persisting. The present allegation is not supported by any evidence. The report of the learned expert shows that the problem was with the accelerator system and it is repairable. The problem was properly addressed by the second opposite party by replacing the accelerator system free of cost and that being the position, the claim for replacement of the vehicle with a brand new one is not allowable.
16. The learned counsel for the second opposite party submitted that the grievance projected in the complaint has been redressed and the complaint is only to be dismissed. But we cannot agree with the submission. It may be noted that the complainant was put to mental and physical agony due to the defect in the vehicle and the unfair trade practice and deficient service on the part of the opposite parties. She had met with accidents while riding the vehicle due to the defect pointed out above. This is evidenced by Ext A6 certificate issued by the Medical Officer, Primary Health Centre, Keezhariyoor. Besides she was not able to use the vehicle for the purpose of her journey for a long time. According to us, the complainant deserves to be compensated adequately for the hardship and inconvenience suffered, though she is not entitled to get a brand new vehicle. Considering the entire facts and circumstances, we are of the view that a sum of Rs 15,000/- will be reasonable compensation in this case. The complainant is also entitled to get Rs. 5,000/- as cost of the proceedings.  The opposite parties are jointly and severally liable.
17. Point No. 5:- In the light of the finding on the above points, the complaint is disposed of as follows;

                  a)  CC.177/2017 is allowed in part.

b) The opposite parties are hereby directed to pay a sum of Rs. 15,000/- (Rupees fifteen thousand only) as compensation to the complainant for the hardship and inconvenience suffered.

c) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees Five Thousand only) as cost of the proceedings to the complainant.

 d) The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 15,000/- shall carry an  interest of  6% per annum from the date of this order till actual payment.

Pronounced in open Commission on this, the 31^st day of  October, 2023.

Date of Filing: 04/05/2017

                                Sd/-                                                             Sd/-                                                        Sd/-

                       PRESIDENT                                                MEMBER                                              MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 -  Copy of the vehicle booking form dated 20/06/2015

Ext A2 -  Copy of the advance receipt dated 20/06/2015,

Ext A3 -  Copy of the registration certificate,

Ext A4  -  Copy of the insurance certificate,

Ext A5 -   Copy of tax licence,

Ext A6 -  Copy of the medical certificate dated 7/10/2016,

Ext A7- Copy of the receipt dated 30/08/2016 issued by the second opposite party,

Ext A8  - Computer printout of e-mail communication

Ext A9 -  Computer printout of e-mail communication

Ext A10 -  Computer printout of e-mail communication

Ext A11 - Copy of the lawyer notice dated 18/10/2016 and the postal receipt.

Exhibits for the Opposite Parties :

Ext B1 - Undertaking signed by Sri. Bhagyaraj and the second opposite party

Commission Exhibits

Ext.C1-  Commission Report

Witnesses for the Complainant

PW1 -  Libitha (Complainant)

Witnesses for the opposite parties 

RW1 – Yedhukrishna   

                                      Sd/-                                                                   Sd/-                                              Sd/-

                             PRESIDENT                                                       MEMBER                                   MEMBER

True Copy,

Sd/-

                                      Assistant Registrar.