Date of filing: 11.09.2018
Judgment date: 29.12.2022
Mrs. Sashi Kala Basu, Hon’ble President
This complaint is filed by the complainant Sri Sandip Das under section 12 of the Consumer Protection Act 1986 against opposite parties (referred as O.P.s hereinafter) namely M/s. Hero Moto Corp Ltd. and Hitech Motor, alleging deficiency in service on the part of the opposite parties.
Case of the complainant in short is that he purchased a two wheeler bearing Model ismart 110 from the showroom of O.P. No. 2 at a price of Rs. 64,000/- and it was delivered to the complainant on 29.07.2016. After purchase of the two wheeler complainant observed that there was heavy noise at the time of plying of the two wheeler on road. So complainant went to the service centre of the O.P. No. 1 on 09.09.2016 who tried to solve the problem of said heavy noise but the said problem resumed within a month. Again complainant visited the service centre on 23.10.2016 to get rid of the said problems in newly purchased vehicle. So called service was provided by the service centre with an assurance to the complainant that the said problem of heavy noise will not resume again but unfortunately defect still remained and it was realized by the complainant that there was some manufacturing defect in the said two wheeler. Thereafter complainant again visited the service centre on three or four occasions but of no result. So ultimately complainant sent a notice to the O.P.s through his Ld. Advocate on 15.01.2018 seeking replacement of the newly purchased two wheeler but in reply dated 22.03.2018 O.P. No. 1 denied to replace the two wheeler with a new one wrongly taking a stand that necessary spare parts were replaced for the satisfaction of the complainant. So the present complaint is filed by the complainant praying for directing the opposite parties to replace the two wheeler with a new one, to pay compensation of Rs. 1,00,000/- and litigation cost of Rs. 20,000/-.
O.P. No. 1 is contesting the case by filing the written version denying and disputing the allegations contending inter-alia that at the time of purchase and before taking delivery of the subject two wheeler, it was duly inspected by the complainant and tested by test-drive. Allegation of heavy noise is absolutely false. The “Service History Records” of different dates clearly exhibits the parts changed in course of respective dates. It is further contended that the vehicles manufactured by the O.P. No. 1 maintain the highest standard of quality assurance and safety measures, vehicles are especially quality checked, certified before sending for sale. Subject vehicle has no ‘manufacturing defect’ warranting replacement as claimed by the complainant. So the O.P. 1 has prayed to dismiss the case.
O.P. No. 2 inspite of service of notice did not take any step and as such the case has been heard exparte against O.P. No. 2.
During the course of trial both parties filed their respective examination-in-chief on affidavits followed by filing of questionnaire and reply thereto and ultimately both parties also filed brief notes of arguments and also have advanced arguments.
Complainant has also filed the documents i.e. purchase invoice, legal notice dated 15.01.2018 sent by the complainant through his Ld. Advocate and copy of reply dated 22.03.2018 sent by the O.P. O.P. No. 1 has also filed job cards or service history records of the subject vehicle on different dates.
So the following points required to be determined:-
- Whether there has been deficiency in rendering service on the part of the opposite parties?
- Whether the complainant is entitled to the reliefs as prayed for?
DECISION WITH REASONS
Both the points are taken up for a comprehensive discussion. Complainant has filed the purchase invoice wherefrom it appears that he purchased the subject two wheeler at a price of Rs. 64,000/- on 29.07.2016 from the showroom of O.P. No. 2. Admittedly complainant had taken the vehicle for service / repair to the authorized service centre of O.P. No. 1 on different dates. Complainant though has not filed any document of the service / repairs done by the service centre on different dates, however same is filed by the O.P. No. 1.
On perusal of the ‘vehicle history card’ filed by the O.P. No. 1, it appears on following dates vehicle in questions was taken by the complainant in the service centre with the problem stated therein and for its service / repair i.e. on 01.09.2016, 03.09.2016, 23.10.2016, 08.12.2016, 20.01.2017, 06.03.2017, 07.05.2017, 22.05.2017, 09.06.2017, 19.07.2017, 06.09.2017, 06.12.2017, 14.12.207, 15.02.2018 and 17.06.2018. It is evident that almost on each occasion complainant has complained of noise. On 03.09.2016 i.e. immediately after one month of the purchase of two wheeler, vehicle history card, reveals that complainant has complained ‘knocking in speed’. On 23.10.2016 again it is stated about “complain of noise”. Similarly again on 08.12.2016, complainant took the vehicle to the service centre with “complain of noise” at starting time. On 05.03.2017 again there was complain of “engine noise”. On each occasion service or the repairing appears to have been done by the service centre but the question arises, if the necessary repairing was already done than why the problem of noise or engine noise persisted continuously. The subject two wheeler was purchased on 29.07.2016 but it is apparent from the dates mentioned above of visiting the service centre that immediately after one month of purchase, problem had started. O.P. No. 1 has not explained anywhere the reason for such noise or engine noise in a newly purchased vehicle. A customer buyes the vehicle believing it to be free from any defect but the complainant had to go to service centre almost on each and every month after purchase of the vehicle. In its written version, O.P. No. 1 sought to suggest that “there was usual mechanical sound which does not amount to and / or does not essentially mean a ‘problem’ unless qualifies mechanical and technical test by the appropriate person”. But O.P. No. 1 has also not filed any document in order to substantiate that it was simply a mechanical sound and there was no defect or problem. Moreover if according to the O.P. No. 1 there was no problem in the two wheeler than on each and every occasion when the vehicle was taken to the service centre why certain repairs were carried out? So onus is also upon O.P. No. 1 to establish that there was no such defect in the subject vehicle. O.P. did not file any expert’s opinion nor took any step to call for any expert’s opinion. It is not the contention of the O.P. No. 1 that such noise occurred due to complainant’s misusing the vehicle or the vehicle ran more than normal mileage. It is evident from ‘service history card of the vehicle that on each date i.e. 03.09.2016, 23.10.2016, 08.12.2016 continuously engine oil was changed which indicates and supports the claim of the complainant about heavy noise at the time of plying of the two wheeler on road. In this case frequency of changing the engine oil is almost in each month, which is not normal and thus in such a situation, O.P. has to explain if there was no defect than why engine oil was changed in such a frequency of a newly purchased vehicle. So the claim of the complainant that the two wheeler in question had defect cannot be discarded. However since complainant filed the complaint after two years of purchase and now it is almost more than six years, we do not find it justified to direct O.P. to replace the vehicle. But for harassment and mental agony suffered by the complainant, he is entitled to be compensated and as such both the O.P.s are liable to pay such compensation to the complainant.
Before parting, it will not be out of place to mention here that decision cited by O.P. in case of Honda Cars India Ltd. Vs Sudesh Berry & Others, has no application in the given facts and situation of this case. In the said case, complainants had used the car for more than 10 years where after it suffered an accident. Hon’ble Apex Court found that there was no material that accident occurred due to any manufacturing defect. But in the case in hand situation is entirely different as this case relates to a newly purchased vehicle, suffering from noise as discussed above.
Hence
ORDERED
CC/549/2018 is allowed on contest against O.P. No. 1 and exparte against O.P. No. 2. Opposite parties are directed to pay jointly and severally Rs. 50,000/- as compensation to the complainant and Rs. 15,000/- as litigation cost within two months from this date. In default of payment, entire amount shall carry interest @ 8% till its realization.
