Coram :1. Hon’ble President, Smt. Madhuri R. Chiddarwar.
/span>2. Hon’ble Member, Smt. Yojana S. Tambe.
/span>3. Hon’ble Member, Shri Naresh V. Bansod.
Presence:Shri A.P. Dhande, Adv. for the Complainant.
/span>Shri N.K. Nimgade, Adv. for the O.p’s.
(As per Hon’ble Member, Shri Naresh Bansod)
O R D E R
(Passed on 10.05.2007)
/span>Complainant has filed this complaint in affidavit on 12.01.2007, U/s 12 of Consumer Protection Act 1986 against O.p.No.1,2,3 (M/s Adity Auto Agencies, Nagpur, Dehankar Automobiles, Katol, M/s Hero Honda Motors Ltd., New Delhi), praying direction to O.p. to return amount of Rs.43,395/- + Rs.5,000/- alongwith interest @ 24% p.a. from the date of receipt, to pay Rs.20,000/- towards compensation and Rs.20,000/- towards mental harassment and Rs.10,000/- towards proceeding charges.
/span>The brief facts in the complaint are as under...
1. Complainant purchased new Hero Honda Splendour from O.p.No.2 (Dealer at Katol) manufactured by O.p.No.3 on 10.11.2005 bearing No.MH-40,D-9647, CC No.6941 at the cost of Rs.43,395/-. It is alleged that, the said vehicle started giving trouble from the 1st day of purchase, when complainant took ride of the vehicle after delivery, he noticed that the pick up of the vehicle was not proper which he brought to the notice of O.P.No.2. O.P.No.2 advised him that it will automatically vanish after few days of driving, but the said fault continued even after one month.
2.Complainant alleged that above fact was brought to the notice of O.p.No.2 at the time of 1st service, but O.p. did not cared to pay any attention and the fault continued during 2nd Service without cure. O.p. did not give any heed to the complaints of the complainant. On suggestion of O.p.No.2 vehicle was shown in workshop of O.p.No.1 at Nagpur.
3. Complainant stated that he kept the vehicle in workshop at Nagpur for 2 days to eliminate the faults, but vehicle continued giving trouble while driving and complainant has incurred an expenditure of around Rs.5,000/- still vehicle is not running smoothly and properly. complainant submitted that he wrote letters on 22.02.2006, 28.03.2006, 18.04.2006, 24.04.2006, 18.05.2006 to O.p.No.1 & 2, O.p.No.1 & 2 replaced various part of the vehicle i.e. clutch plate, lapting head, pump valve, chain etc. still trouble continued, which proved that, the vehicle is having manufacturing defect which cannot be cured by changing spare parts and there is deficiency in service by O.p’s in not providing a proper vehicle to the complainant.
4. Complainant vide legal notice dated 06.11.2006 requested O.p. to take back faulty vehicle and refund cost of vehicle with interest but after receipt of notice, O.p.No.2 asked complainant to visit their office alongwith vehicle for servicing and accordingly O.p.No.2 on 22.11.2006 tried his level best to remove faults but O.p.No.2 miserably failed to remove the same. On request of O.p.No.2, complainant took the vehicle to O.p. No.1 on 23.11.2006 till the fault continued and complainant incurred expenditure of Rs.213/- in spite of spending Rs.5,000/- on brand new vehicle and cause of action is continuous since it 1st arose on 10.11.2005 and complaint is within territorial Jurisdiction of this Forum as per O.p.No.2 is having workshop at Katol Dist. Nagpur. Complainant filed 12 documents i.e. copy of credit Memo dated 10.11.2005, copy of bill dated 28.03.2006, copy of the service cards, letter of complainant to O.p.No.1 dated 18.05.2006 and to O.p.No.2 dated 26.05.2006, letter dated 21.06.2006 and 27.06.2006 sent to O.p.No.1 & 2 other letter, copies of service card of O.p.No.1 dated 18.04.2006 & 18.05.2006, copy of legal notice dated 06.11.2006, letter of O.p.No.1 dated 11.11.2006, copies of service card and s pare bill dated 23.11.2006. (Doc.s at Sr.page No.6 to 22).
Complaint was registered by Forum and on receipt of notice of the Forum, O.p.No.1 to 3 replied as under...
5. O.p. admitted the purchase of the vehicle but denied allegation of trouble in the vehicle from the 1st day of purchase and also denied that the pick-up was not proper and denied allegations of trouble will automatically vanish, as well as fault continued even after one month causing mental and physical torture. O.p. denied para 2 of the complaint, but admitted that complainant took the vehicle to the workshop of O.p.No.1 at Nagpur and denied any expenditure of Rs.5,000/-.
6. O.p. stated that on 23.02.2006 the vehicle was checked to the satisfaction of the complainant and delivered to him, but refused to sign CSN and took the delivery of the vehicle. O.p. submitted that on 27.03.2006 /span>the vehicle was checked as per complainant’s complaint as per Job Card No.16157 thoroughly and the oil was checked, but as per warranty card there is no warranty of oil during warranty period, which was signed by the complainant of having received the vehicle duly repaired to his satisfaction On 18.04.2006, the vehicle was checked at Nagpur workshop and parts of the vehicle was changed only for the sake of customer’s satisfaction though O.p. did not find any problem in the vehicle andhe refused to sign CSN.
7. on 22.05.2006, the vehicle was repaired and delivered to complainant who signed CSN for having received the vehicle to his entire satisfaction and again on 25.08.2006, the vehicle was checked and it was done OK vide Job Card No.147. On 12.07.2006, vehicle was brought to Nagpur by complainant by running vehicle for 65 kms but no fault was noticed and Job Card No.10206 was signed by complainant as vehicle duly repaired to his satisfaction and again on 22.11.2006 vehicle was checked at Nagpur and trial was taken for 5 to 6 kms, but vehicle was found perfectly OK and complainant took the vehicle but refused to sign CSN.
8. O.p. denied the allegations of any manufacturing defect in the vehicle as well as there is any deficiency in service render by O.p. in repairing the vehicle promptly during warranty period and O.p. also denied the claim of the complainant.
9. O.p. submitted that every vehicle manufactured by O.p.No.3 is fully checked for its quality and performance before it is sent to the dealer and vehicle covered the distance of 5407 kms within 2 months and on 22.05.2006, 23.11.2006 vehicle covered the distance of 12366 kms., 16590 respectively i.e. about50 kms per day on dusty village roads as complaint is a contractor of boring machine and vehicle needs frequent servicing. As per warranty card the complainant is only entitled for necessary repairs of the vehicle during warranty period and there cannot be replacement of the vehicle and there is no deficiency in service in repairing the vehicle and replacing the parts and the complainant is not entitled to any claim and complaint may be dismissed. O.p. filed job cards dated 23.02.2006, 27.03.2006, 18.04.2006, 22.05.200612.07.2006, 25.08.2006, 22.11.2006, 23.11.2006. Reply dated 28.06.2006, 01.07.2006, 07.07.2006 at Sr.page No.34 to 45.
/span>OBSERVATIONS
/span>We have heard the arguments of the counsels of both the parties in detail and perused all the papers on record.
10. It is an admitted position fact that the complainant purchased the "Hero Honda Splendour ", bearing Registration No.MH-40 - D-9647 on 10.11.2005 from O.p.No.2 sub-dealer at the cost of Rs.43,395/- manufactured by O.p.No.3. O.p.No.1 is District Dealer and service provider also. Hence, complainant is the consumer of O.p.No.1,2 &3 as per section 2(1)(d)(i) of C.P. Act 1986.
11.Complainants main allegation is that there was no proper pickup in the vehicle and O.p. assured that the said fault will be cured within 1 month after running of the vehicle but fault persisted even after various servicing and replacement of parts on payments and he incurred the expenses of Rs.5,000/- as well as Rs.213/- on 23.11.2006 andfaults persisted due to manufacturing defect in vehicle and allegations of the complainant are denied by the O.p.. O.p. stated that time to time servicing was done to the satisfaction of the customer and for the satisfaction of the customer spare parts were replaced even though it was not necessary. O.p. submitted that as per warranty. Complainant is only entitled for necessary servicing or repairs of the vehicle, replacement of parts if any but not replacement of the vehicle.
12.On perusal documents at page 8 to 17 reveals that on 28.03.2006 Gasket cylinder etc. costing Rs.22/- oil costing Rs.120/- was changed at reading 9180 kms and oil was changed periodically, but there is no evidence as to allegations of non proper pickup till letter dated 18.05.2006 sent to O.p.No.1 excepting during regular servicing and letter dated 20.05.2006 sent to O.p.No.2 and vide letter dated 26.05.2006, complainant intimated to O.p.No.1,2 about the problem. Vide letter dtd. nil at page 16 demanded replacement of vehicle and it is not observed that any major part of vehicle was replaced by complainant at his cost because alleged manufacturing defect in the vehicle or any break down. It is also not the allegation of the complainant that due to poor pickup the vehicle consumed more petrol and there were brake down of the vehicle on ride, etc.
13.On perusal of Doc’s at 35 to 45 reveals as under:-
A)On 23.02.2006 kms. reading 5460 complaint value kit change,low pickup and parts replaced by O.p. itself costing Rs.290/- vehicle was OK.
/span>B)On 27.03.2006 kms reading 9180 complainants of pickup vehicle running Jam, oil check and change, Gear Drum plate bolt loose, setting and complainant signed the Certificate of Satisfaction and replacement of parts.
/span>C)On 18.04.2006 Kms. reading 10276 - Tappet setting-parts changed only for the sake of customer’s satisfaction though we did not found any problem in the vehicle.
/span>D)On 22.05.2006 kms.12366 - Engine oil check and Tappet set, satisfaction certificate signed by complainant.
/span>E) On 12.07.2006 13332 kms. Complaint of pick up problem, Abnormal sound, Knocking - we go to Katol and bring back the vehicle from Katol to Nagpur with customer which is around 65 kms and not found any problem and technically it is perfectly OK which was denied by complainant but signed the satisfaction note.
/span>F) On 25.08.2006 13517 - servicing speed meter check, Tappet Check, Low pickup, Gear noise and it was made OK.
/span>G)On 22.11.2006 kms.16537 - check pickup and noise taken trial of vehicle around 5-6 kms vehicle found OK and vehicle delivered without gate pass.
H)On 23.11.2006 kms. 16590 -pickup problem abnormal sound complained - replacing Block-kit on goodwill basis - Block checking - No defect observed - pencil test found OK. No scratches observed on block piston ring end gap found 0.5 mm with tolerance and satisfaction and replacement of parts satisfaction note not singed by the complainant.
14. Vide letter dated 28.06.2006, 01.07.2006, 07.07.2006 o.p. informed the satisfactory working of the vehicle with assurance to render further services if any required to the complainant.
15. In view of the above observations, it is fact that the vehicle had run 16590 kms. from 10.11.2005 till 23.11.2006 with no allegations or any history of any brake down in the vehicle on drive nor there is any report of competent garage or engineer stating the cause of problem if any is due to manufacturing defect or the nature of repairs and replacements of parts cost Rs.5,000/- were carried outby the complainant nor there is complaint of poor average due to low pickup or high consumption of fuel.
16. It is observed from the documents that O.p. rendered the services of repairs of the vehicle and replacement of necessary parts till last occasion on 23.11.2006 even after serving legal notice (Doc. at Sr. page 42) and entire satisfaction note was signed by the complainant.
17. It is also observed that complainant failed to adopt the recourse of section 13 (i) (c) of the C. P. Act 1986 to refer the vehicle to expert or appropriate laboratory after denial of the allegations by the O.p.
18.The allegations made by the complainant as to manufacturing defect in the vehicle failed in the absence of cogent evidence as no case or complaint is made out by the complaint. Hence, reliance of the complainant on the Judgment of National Commission, New Delhi - in case of Krishankumar -v/s- Raheja Automobiles reported in 2002 (1) CPR 214 (NC) cannot be made applicable in this complaint.
19.In view of the above facts, we did not find any ground to hold the contention of the complainant that vehicle is having manufacturing defect or any deficiency in service so as to award replacement after a period of one year after running the vehicle up to 16590 kms. When yet it /span>is used by the complainant without allegation that, vehicle is not in working condition or vehicle lying in an idle condition as well as to award any compensation claimed by the complainant thus complaint deserves to be dismissed.
Hence, this order.
ORDER
Complaint is dismissed and both the parties to bear their own legal expenses.
