BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 21^st day of April 2018

Filed on : 06-09-2016

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.519/2016

Between

Reji Tense, : Complainant

Pullettil house, (By Adv. Tom Joseph, Court road,

Madakkathanam P.O., Muvattupuzha)

Muvattupuzha-686 670.

And

1. M/s. Hero Motor Corp Ltd., : Opposite parties

6-A DD Trade Tower, (By Adv. K.S. Arundas, KHCAA

6^th floor, Kaloor-Kadavanthra Chamber No. 450, Near High

Road, Kalloor, Kochi-17, Court of Kerala, Ernakulam,

rep. by its Managing Director. Cochin-31)

2. M/s. Top Gear Hero,

Khan Bazar Building,

Thodupuzha-685 583,

rep. by its Managing Director.

3. M/s. Manas Motors, (3^rd o.p.by Adv. Suresh M. Kumar

Vazhakulam P.O., Muvattupuzha)

Muvattupuzha-686 670,

rep. by its Managing Director.

O R D E R

Sheen Jose, Member

1. The case of the complainant is as follows:

The complainant is an Anganawadi teacher by profession. She had purchased Duet Scooter from the 3^rd opposite party on 14-12-2015, which was manufactured and marketed by the 1^st opposite party. The complainant had paid Rs. 22,500/- towards advance and the 3^rd opposite party had arranged a loan from M/s. Indus Ind bank to the tune of Rs. 46,500/-. Altogether opposite parties had collected Rs. 69,000 /- towards the price of the scooter as against the actual price of Rs. 52,650/-. The complainant regularly paying Rs. 1,775/- towards the loan EMI. The scooter was registered by RTO, Muvattupuzha with Reg. No. KL17N7417. While so, the scooter started showing several complaints right from the beginning including abrupt switch off while travelling non-working of self motor, engine off while applying brake. The above said problems were noticed after 50 days from the date of purchase. It was repaired on 03-02-2016. The starting problem repeated after 1^st service. It was repaired on several occasions but the opposite parties had failed to rectify the defects in spite of their repeated efforts. Major components including horn and odometer were replaced. The scooter became dead ever since August 2016. Though, the matter was brought to the notice of the opposite parties on several occasions, no action was taken by them to rectify the defects of the scooter. The recurring complaints of the scooter and the consequent total failure are due to its manufacturing defects. The 3^rd opposite party had collected Rs. 16,350/- more than the actual price making false representations. Their acts amounts to unfair trade practice. Hence the complainant is before us seeking directions against the opposite parties to refund the price of the scooter Rs. 69,000/- along with interest at the rate of 12% p.a. and she also sought for compensation and the costs of the proceedings from the opposite parties. Hence this complaint.

2. Notices were issued by the Forum to all opposite parties and they were appeared and 1^st opposite party filed their version.

3. Version of the 1^st opposite party

The complainant purchased the scooter having model Hero Duet VX from the 3^rd opposite party after fully satisfying himself regarding the description, functions and the sale price. The complainant had entrusted the scooter for free regular service in different dates. On 03-02-2016, the complainant entrusted the scooter for regular service with complaint of horn and odometer was not working properly. The same was covered under the warranty, the 3^rd opposite party replaced the same free of cost. Thereafter, the complainant approached again the 3^rd opposite party with complaint of starting problem with the scooter. The 3^rd opposite party inspected the scooter and nothing was found defective. The complainant has not produced any material evidence to prove that the scooter is having manufacturing defects. The vehicle has no manufacturing defects and the allegation of the complainant is baseless and vexatious. Under standard warranty terms and conditions , it is clearly mentioned that the obligations of the opposite parties shall be limited to repairing or providing replacement of parts only. The 1^st opposite party offers 5 years warranty for the vehicles manufactured by them and the warranty offered by them does not extend to the defects arising out of abnormal usage and wear and tear of the parts. Therefore the 1^st opposite party is not liable to the defects alleged in the complaint. The allegations of manufacturing defects and deficiency in service are categorically denied as being untrue and false. The 1^{s t} opposite party is not at all responsible for the monetary loss and awarements contended in the complaint. As there is no deficiency in service The cost and compensation claimed in the complaint are without any reason. The complainant is not entitled to get any relief as prayed for, as there is no deficiency in service on the part of the 1^st opposite party. The complainant has no cause of action to prefer this complaint against the 1^st opposite party. there is no merit in the above case and the same was dismissed with costs.

4. The evidence in this case consists of Exbts. A1 to A6 documents were marked and no oral evidence on the side of the complainant . No oral or documentary evidence adduced by the opposite parties.

5. Heard the counsel for both complainant and 1^st opposite party. Argument note was filed by the 1^st opposite party.

6. Issues came up for consideration are as follows:

1. Whether the complainant has proved any deficiency in service or unfair trade practice on the side of the opposite parties?

2. Whether the complainant is entitled to get refund of an amount of Rs. 69,000/- being the price of the scooter along with interest @ 12% p.a. from the opposite parties?

3. Reliefs and costs.

7. Issue No. i&ii. The complainant had purchased a Duet VX scooter from the 3^rd opposite party on 14-12-2015. The complainant alleged in this complaint that the vehicle had shown some defects due to manufacturing defects. She approached the1st and 2^nd opposite parties for curing the defects, but they failed either rectify the defects or to find out the reason for the defects. Moreover, 3^rd opposite party had collected Rs. 69,000/- towards the price of the scooter as against the actual price of Rs. 52,650/-. The 3^rd opposite party had collected Rs. 16,350/-, more than the actual price from the complainant, making false representations. The above said acts of the opposite parties are not only amount to serious deficiency in service but also unfair trade practice. The 1^st opposite party had stated in their version and argued that no deficiency in service or unfair trade practice happened on their part. Most of the time, the complainant entrusted the scooter to the opposite party for free regular service. On 30-02-2016 the complainant entrusted the scooter for regular free service and stated that horn and odometer was not working properly, the 3^rd opposite party replaced the same under warranty, free of cost. Thereafter, the complainant approached the 3^rd opposite party stating that there is a starting problem with the scooter. The 3^rd opposite party inspected the scooter and nothing found defective with the scooter. The starting problem of the vehicle was due to abnormal handling or usage of scooter. Exbt. A3 evidence that the scooter repainted on 03-02-2016. There was no serious manufacturing defects to the disputed scooter. Exbt. A1, receipt dt. 14-12-2015 issued by the 3^rd opposite party shows that the complainant had paid an amount of Rs. 22,500/- as advance for booking the disputed scooter. Exbt. A2 registration certificate shows that the scooter was registered before the RTO office on 01-01-2016 with Reg. No. KL-17N 7417. Exbt. A4 is vehicle sales bill dt. 15-12-2015 issued by the 2^nd opposite party shows that an amount of Rs. 52,650/- was paid for purchasing the vehicle. Exbt. A6 E-mail communication shows that the complainant had sent an e-mail to the 1^st opposite party and stated that the vehicle was suffering from lot of manufacturing defects. Due to this, he had suffered mental agony and financial loss. Further he demanded either to replace the vehicle or to refund its price from the 3^rd opposite party.

8. In this case, we carefully gone through the evidence produced by the complainant, we could not find any manufacturing defects to the vehicle as alleged in the complaint. The complainant did not produce any job cards or service history of the vehicle. Moreover, he had not take any steps to appoint an expert commission or produce any valid expert’s opinion before this Forum. The complainant miserably failed to prove his allegations with substantial evidence. The complainant stated that the opposite party had collected Rs. 69,000/- towards the price of the scooter as against the actual price of Rs. 52,650/- . The counsel for the opposite party submitted that the above statement of the complainant is false and frivolous. The 'excess' amount collected from the complainant related to registration fee and Insurance premium for the vehicle. In the above facts and circumstances we could not find any deficiency in service or unfair trade practice on the part of the opposite parties. The complainant failed to prove his case with substantial evidence. In the absence of evidence, we are of the opinion that the complainant is not entitled to get any of the reliefs sought for in this complaint.

9. Issue No. iii. Having found issue Nos. i&ii against the complainant, we find that the complaint is liable to be dismissed, and is accordingly dismissed. No costs.

Pronounced in the open Forum on this the 21^st day of April 2018

Sd/-

Sheen Jose, Member.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : Copy of receipt dt. 14-12-2015

A2 : Copy of certificate of registration

A3 : Copy of statement dt. 03-02-2016

A4 : True copy of vehicle sales bill

dt. 15-12-2015

A5 : True copy of statement of

account dt. 04-08-2014

A6 : Copy of complaint dt. 24-07

Opposite party's exhibits: : Nil

Copy of order despatched on:

By Post : By Hand: