BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 569/1998 Filed on 17.06.1998 Dated : 30.01.2009 Complainant:
Anil Kumar. A.P, U.P. VI/898, Parottukonam, Bhasi Nagar, Kochulloor, Medical College, Thiruvananthapuram.
(By adv. R. Sathi)
Opposite parties:
M/s Hero Honda Motors Ltd., 34 Community Centre, Basant Lok, Vasantha Vihar, New Delhi – 110 057. M/s Cheran Automobiles Ltd., Thakarapparambu, M.G. Road, Thiruvananthapuram.
(By adv. N. Krishnankutty)
This O.P having been heard on 15.12.2008, the Forum on 30.01.2009 delivered the following: ORDER SRI. G. SIVAPRASAD: PRESIDENT The facts leading to the filing of the complaint are that complainant purchased a “Hero Honda CD 100 SS” motor cycle from the 2nd opposite party on 29.09.1997. The 1st opposite party is the manufacturer of the said vehicle. There was oil leak from the cylinder head bolt of the engine and a hairline crack on the head light during the time of delivery. The back wheel of the vehicle was seen corroded. The complainant noticed all these defects and showed all of them to the 2nd opposite party on the day itself. 2nd opposite party assured that the defects would be rectified easily during free services assured by the company. The complainant received the vehicle bearing Engine No. 97 J 10 E 09164 and Chasis No. 97 J 12 F 03899-1997 with protest regarding defects and assurance to rectify them during the service by the 2nd opposite party. Even after the services were done the leakage ratio increased day by day during warranty period. Hence complained to the Manager of the 2nd opposite party and they dismantled the engine. After the process of rectification of the defect by dismantling the engine it became excessive heat during riding together with oil leakage. Even after repeated attempts by the technician of the 2nd opposite party to rectify the defect, the engine complaint became more and more troublesome and they were hesitant even to attend the vehicle. The stud could not be fixed in the sleeve of the cylinder head is the defect according to the 2nd opposite party. It is not rectifiable because it is a manufacturing defect. The said defect occurred during the casting process of the metal part of the engine. After the casting process the tapping process was not done. This defect is rectified only by the replacement of the engine. That is, the vehicle is to be replaced with a new one. Complainant sent notices to the opposite party and both of them received and 2nd opposite party sent evasive reply and the 1st opposite party did not respond. Hence this complaint claiming replacement of the vehicle or refund of the value of the vehicle and compensation of Rs. 25000/- and Rs. 5000/- towards costs. Opposite parties entered appearance and filed version contending that the complainant had purchased the said vehicle by testing and satisfying himself with the quality and condition of the motor cycle. Complainant never raised any complaint about the vehicle at the time of taking delivery of the vehicle. Opposite party never assured the complainant that the defects would be rectified during the free service and there was no occasion to give such an assurance. The allegation that complainant has received the vehicle with protest is denied. Opposite party had conducted service properly and there was no defects in the vehicle purchased by the complainant. The allegation of leakage ratio increased, dismantling of the engine, excessive heat etc. are denied. The allegation is vague, baseless and an afterthought. The allegation that 'the stud could not be fixed in the sleeve of the cylinder is the defect according to the 2nd opposite party' is only an afterthought. Complainant had sent suit notice to the 2nd opposite party and the 2nd opposite party sent reply to the same. Even though the 2nd opposite party requested the complainant to bring the vehicle for inspection during the visit of the service engineer of the company, the complainant had not turned up. Complainant alone will be responsible for the defects. Opposite parties are not liable to replace the vehicle or pay damages or costs to the complainant. Hence opposite parties prayed for dismissal of the complaint. The points that arise for consideration are:- Whether the “Hero Honda CD 100 SS” motor cycle is having manufacturing defect? Whether the complainant is entitled to replacement or refund of the value of the vehicle? Whether the complainant is entitled to any compensation and costs?
In support of the complaint, complainant has been examined as PW1 and marked Exts. P1 to P8 and first commissioner has been examined as CW1 and marked commission report Ext. C1. The second commissioner has been examined as CW2 and marked commission report as Ext. C2. In rebuttal, opposite parties did not adduce oral evidence, but 3 documents were marked as Exts. D1 to D3. Points (i) to (iii):- As manufacturing defect was alleged in the complaint, complainant moved an application for appointment of an expert commissioner to inspect the vehicle involved and that application was allowed by the previous Forum and appointed CW1 as commissioner and commissioner prepared C1 report. On appreciation of facts, evidence and circumstances of the case, the previous Forum allowed the complaint, thereupon, opposite parties preferred appeal (Appeal No. 478/2001) before the Hon'ble State Commission and State Commission vide its order allowed the appeal setting aside the order of the previous Forum and remanded the matter for fresh disposal after allowing the complainant to take out a fresh commission to inspect the vehicle involved. In the light of the order of the Hon'ble State Commission the previous Forum appointed CW2 as commissioner and commissioner prepared Ext. C2 report. Opposite parties filed objection to Ext. C2 report and CW2 has been examined by the complainant and cross examined by the opposite parties. This Forum need to rely on C2 report. First point requiring consideration is whether the “Hero Honda CD 100 SS” motor cycle is having manufacturing defect. It is alleged in the complaint that the said vehicle was showing oil leak from the cylinder head bolt(stud) of the engine and hairline crack on the head light during time of delivery, that back wheel of the vehicle was seen corroded, that on noticing these defects on the date of delivery itself, 2nd opposite party assured the complainant that the said defects would be rectified during free service and that complainant received the said vehicle under protest regarding defects and assurance to rectify them. It has also been the case of the complainant that even after the timely service, the leakage ratio increased day by day during warranty period itself, that after the process of rectification of the defect by dismantling the engine, it became excessive heat during riding together with oil leakage and that the stud could not be fixed in the sleeve of the cylinder head. Complainant has been examined as PW1 and cross examined by the opposite parties. Ext. P1 is the true copy of vehicle sale invoice issued by 2nd opposite party. As per Ext. P1 the price of the vehicle is Rs. 38343.03, and the date of purchase is 29.09.1997. Ext. P2 is the warranty certificate free service coupons. As per Ext. P2 warranty is for 6 months or 7500 KM whichever is earlier. It is stated in Ext. P2 that “If a defect is observed in any Hero Honda motor cycle, Hero Honda's only obligation/liability is to repair or replace those part/parts which is/are considered to be the cause of malfunction, free of charge of both of labour and materials, wherein Hero Honda acknowledges that such malfunction has not come out of misuse/improper handling etc. Such defective motor cycle should be brought to the nearest Hero Honda dealers/Authorized Service Centre by the owner for necessary inspection in subsequent repairs”. Complainant submitted that he received the said vehicle under protest as there were defects to the vehicle at the time of taking delivery, that opposite parties assured him rectification of defects during service period. In cross examination complainant (PW1) deposed that “ഞാന് നേരിട്ട് പോയാണ് വണ്ടി വാങ്ങിയത്. വണ്ടി നോക്കി ബോദ്ധ്യപ്പെട്ടാണ് വാങ്ങിയത്”. This evidence would contradict the statement that he received the vehicle under protest. No prudent and reasonable man would take delivery of a defective vehicle if the defects are known to him at the time of taking delivery. There is no material on record showing written protest. Regarding the defects to the vehicle alleged in the complaint and to ascertain the same an expert commission was appointed. Ext. C2 is the commission report and expert commissioner has been examined as C2 and cross examined by the opposite parties. As per Ext. C2, at the time of inspection on 19.11.2005 of the vehicle involved the odometer reading was 6215 km. As per Ext. P2 warranty certificate, warranty period is for 6 months or 7500 km whichever is earlier. The vehicle is seen purchased on 25.09.1997 as per Ext. P1. As per Ext. P2, the first free service was done on 23.10.1997, while the vehicle covered a distance of 423 km, second free service on 27.12.1997 at 1200 km and third free service on 27.03.1998 at 4521 km. As per Ext. C2 commission report the three free services were availed of in time as per the warranty conditions. Honda's obligation/liability is to repair or replace the parts considered to be the cause of malfunction. CW2 in his Ext. C2 report stated that the defects mentioned above were not attended or rectified in any of the free services. Submission urged by the complainant is that complainant explained the said defects to the service centre authorities, but they neglected to attend the faults. No documentary evidence has been produced to show that the said defects of the vehicle were brought to the notice of opposite parties prior to the lawyer notice dated 12.05.1998. It is pertinent to note that the expert commissioner had inspected the vehicle in the presence of J.Y. Aju, Service Manager, Jayakumar, mechanic of M/s Cheran Automobiles and A.O, Anil Kumar, complainant. When asked the service manager about the defects alleged, it was reported by the commission that the service manager was not aware of this as he had joined the firm only some two years back. In Ext. C2, it has been stated by the commissioner that “the vehicle was identified with particulars noted in the R.C. Book. Then the bike was started and was run for a short distance by Jaya Kumar and Anilkumar. During their drive there was oil leak through the mounting bolts, oil seen splashed over the engine cover and excess heat seen evolved. After a while the vehicle was run in idle condition for about 2 minutes and then abnormal heat was generated in the engine and oil was splashing through the bolt. This phenomenon was witnessed and acknowledged by the representatives of Cheran Automobiles. Also the head light cover is cracked and chain cover corroded. As per Ext. C2, “The performance of the engine will be destroyed and trouble shoots and omission of excess heat evolves, if any part/components such as piston, bearing, timing etc. are defective/not provided in order. If the internal threads provided on the engine cover is defective, the mounting bolts will not be tight and there will clearance between the mounting bolt and internal threads of the engine cover. When the engine runs, the lubricating oil inside the engine circulates through the engine parts leaks through the clearance between the mounting bolt threads and internal threads of engine cover. In this case seven leaks is seen through one bolt”. The expert commissioner (CW2) has been vehemently cross examined by the opposite parties. In his cross examination CW2 has deposed that the conclusion drawn by CW1 in his Ext. C1 report and conclusion drawn in Ext. C2 report are one and the same. CW2 has deposed that Ext. C1 report was vague and no remedial measures were mentioned therein. When asked the CW2 about the date from which the defects started in the vehicle involved, CW2 replied that he could not say the exact starting date of defects, but could say as per records that the troubles developed from 1997 onwards. CW2 further deposed that a vehicle purchased in the year 1997 could not be used till date and even during three free services, the authorized agents could not rectify the defects alleged in the vehicle. The findings and conclusion stated in Ext. C2 report are reproduced here “On inspection of the vehicle, hearing both parties, and perusal of various documents, it is found that the vehicle is having manufacturing defects and no effective steps were taken by the opposite parties to rectify the defects in time as per the warranty condition”. In last paragraph of Ext. C2 report, commissioner has pointed out the discrepancy in the Engine No. In the ownership record and data of the Hero Honda Motors Ltd. issued on 29.09.1997, the Engine No. is shown as 97 J 10 E 03899 and Chasis No. as 97 J 12 F 03899. In the R.C Book and on physical verification of the vehicle KL-01 L 3630 the Chasis No. is 97 J 12 F 03899 and the Engine No. is 97 J 10 E 09164. Opposite parties in their objection to Ext.C2 report submitted that it is only a mistake in the number portion the clerk has written the chasis itself as the engine number. Though opposite parties had vehemently cross examined the expert commissioner, nothing was made out from the commissioner to shake the findings and conclusions stated in Ext.C2 report. Hence we accept Ext. C2 commission report and find the vehicle is having manufacturing defect. At this juncture, it should be mentioned that a person purchases a new vehicle for his convenience and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the use of the vehicle due to such snags. In this case even during the free services, opposite party's service agents could not rectify the defects, the defects continued from the date of purchase (1997) to the date of inspection of the vehicle by the expert commission in 2005. The vehicle had run only 6500 km though warranty was for 7500 km. It remained idle for more than 10 years. No purpose will be served if opposite party is directed to replace the vehicle after a long lapse of 10 years. Justice will be well met if complainant is allowed to receive the net value of the vehicle after deduction of the value of depreciation. Since the vehicle had run around 6500 km, we fix the value of depreciation of the vehicle to the tune of Rs. 5000/-. After deduction of depreciation of Rs. 5000/- from the gross value of Rs. 38,343.03 the net value would come to Rs. 33,343.03. In the result, complaint is allowed. Opposite parties shall jointly and severally refund Rs. 33,343.03 towards the net value of the vehicle to the complainant. Opposite parties shall also pay a compensation of Rs. 5,000/- and Rs. 4,000/- as cost. On receipt of the said amounts from the opposite parties, complainant shall return the vehicle to opposite parties. The said amounts shall carry interest at the rate of 18% if not remitted within two months from the date of receipt of this order.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30th January 2009.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 569/1998 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Anil Kumar II COMPLAINANT'S DOCUMENTS : P1 - Copy of vehicle sales invoice dated 29.09.1997. P2 - Original warranty certificate free service coupons. P3 - Acknowledgement card addressed to 1st opposite party. P3(a) - Acknowledgement card addressed to 2nd opposite party. P4 - Copy of reply notice dated 22.05.1998. P5 - Copy of letter dated 03.06.1998 issued by complainant. P6 - Original postal receipt dated 03.06.1998. P6(a) - Original acknowledgement card addressed to 2nd O.P. P7 - Bill No. 00838/98-99 dated 11.11.1998 of Deedi Automobiles. P8 - Copy of registration certificate dated 13.11.1998 issued to the complainant. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Copy of advocate notice dated 17.07.1999. D2 - Reply letter dated 22.07.1999 from CW1. D3 - Reply notice dated 22.07.1999.
V COURT EXHIBIT:
CW1 - M.S. Gopakumar CW2 - K. Parameswaran C1 - Commission Report dated 09.09.1999. C2 - Commission Report dated 25.11.2005.
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
