Karnataka

Chitradurga

CC/145/2018

P.T. Shobha D/o Thimmaiah, Major - Complainant(s)

Versus

M/s Mahesh Motors, Near Taluk Ofice Main road - Opp.Party(s)

Sri,D. Naveen

01 Mar 2019

ORDER

COMPLAINT FILED ON:30/07/2018

DISPOSED      ON:01/03/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:145/2018

 

DATED: 1^st MARCH 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	P.T. Shobha D/o Thimmaiah, Major. Owner of Here Motocorp Maestro Edge Vx Colour Model IS PSM Scooter, R/o Ward No. 19, Main road, Near Ambedkar School, C.M. Lay-out, Hiriyur Town.   (Rep by Sri.D.Naveen, Advocate)
V/S
…..OPPOSITE PARTIES	1. M/s Mahesh Motors, Near Taluk Ofice Main road, Hiriyur-577598, Rep by its Proprietor, Sri. Mallikarjunaswamy.   2. M/s Hero Fincorp Limited. HPA By its Manager, Near Taluk Office, Main road, Hiriyur-577 598.   3. The Authorized Signatory, Hero Motor Corp Limited, No. 294. 2nd floor, 6th Main Off: 100ft road Hal 2nd stage, Ingiranagar, Bangalore.560 038.   (Rep by Sri.H.T. Jagannath, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP No.1 and 3 to replace the vehicle with new one or to refund the amount paid towards the same with nominal interest, OP No.1 to pay compensation of Rs.1,00,000/- as damages towards mental agony, stress, los of valuable time and energy, Rs.10,000/- towards costs and Rs.20,000/- towards payment for repair charges.

2.      The brief facts of the case of the above complainant are that, she has purchased one Two wheeler Motor Cycle i.e., Hero Motocorp MAESTRO EDGE VX Colour of PSM model bearing Registration No.KA-16 EH 2947 with chassis No.MBLJFWO18H4B12955 and engine No.JF33ABH4B12725 from OP No.1 by availing loan from Hero Fincorp Ltd., i.e., OP No.2.  The OP No.2 has issued DD in favour of OP No.1 and the complainant has taken delivery of the above said vehicle from OP No.1.  It is further submitted that, the complainant has paid an advance amount of Rs.30,000/- instead of the value of the said vehicle is valued for Rs.68,000/- and the balance of Rs.38,000/- has been taken as loan from OP No.2.  At the time of sanctioning the loan, the OP No.2 has taken one blank cheque bearing No.114051 of Vijaya Bank, Hiriyur as security deposit from complainant.  After using the said vehicle, the said vehicle was giving very much trouble to travel to anywhere and in this regard, the complainant approached the OP No.1 for check up and informed about the defects in the vehicle.  The OP No.1 informed the complainant to deliver the vehicle to their service center and accordingly, the complainant has delivered the vehicle to their service center and the service of the vehicle was done, but the same problem repeats.  For that, the OP No.1 assured the complainant that, if the same problem repeats, they will make arrangements to give new vehicle to the complainant.  The complainant regularly servicing and checking up her vehicle at the OPs service centre and she is prompt in undertaking repairs at the spot only at OPs service centre.  It is further submitted that, from the day one of purchase of the vehicle, the complainant’s vehicle giving trouble to the complainant.  The complainant has left her vehicle for repairs with OP No.1 for 25 days, but the repair has not been attended.  In the early days, the OP No.1 has informed the complainant that, this vehicle has come to re-boring and accordingly they have replaced the bore.  Even then, the vehicle was started to give trouble in running with same problems and therefore, the opinion of the complainant is that, the OP No.1 in order to cheat the complainant with a malafide intention has given a defective vehicle.  The complainant complained about the defects found in the vehicle to the OP No.1, the OP No.1 assured to have the work done and rectify the problems, but OP No.1 has not rectified the above said problem and so many times, the complainant has left the vehicle for repairs and the OP No.1 gave an assurance that, the vehicle will not create any problem in future again and again, but the same problem continued from the date of purchase of the vehicle and finally the complainant requested the OP No.1 to exchange the vehicle with accurate and proper vehicle as per warranty and without any alternative, the complainant has left the vehicle at OP No.1 showroom/service centre.  In this behalf, OP No. 1 agreed for the same and finally the OP No.1 has refused to exchange the vehicle and all the efforts done by the complainant went in vain.  Due to this, the complainant has incurred heavy loss in her day to day work and she has suffered mental agony and distress for having purchased this type of defective vehicle, which cannot be compensated in any terms.  It is further submitted that, the OP No.1 has given warranty for the vehicle for replacement of parts for five years period or 50000 KMs and not beyond.  Even though, the complainant’s vehicle has not expired the date nor the KMs and even though the free service is provided for 12 months, the OP No.1 has collected service charges from the complainant.  Finally, the complainant left the vehicle before OP No.1 and requested to deliver the new vehicle and now the vehicle is under the custody of the OP No.1.  The OP No.1 is having the knowledge that the vehicle sold to the complainant is having mechanical defects.  In this regard, the complainant has got issued legal notice to the OPs on 02.06.2018, the OPs have replied the same by denying all the averments made in the legal notice and not exchanged the vehicle or paid the compensation amount.  The cause of action arose for this complaint is on 02.06.2018, when the OP has received notice, which is within the jurisdiction of this Forum and prayed for allow the complaint.

 3.     On service of notice, OP No.1 and 3 appeared through Sri. H.T. Jagannath, Advocate and filed version denying all the allegations made in the complaint.  In spite of service of notice, OP No.2 remained absent and hence, placed ex-parte.

According to the version filed by the OP No.1 and 3 that, the averments made para 1 and 2 are true.  The averments made in para 3 to 6 are not within their knowledge and the same is put to strict proof of the same.  It is submitted that, pursuant to purchase of the vehicle, the complainant has used the same for 10422 KMs without demur.  It is submitted that, on 31.03.2018 the vehicle was brought to OP No.1 with engine noise complaint, the OP No.1 has replaced valve kit and 6 Nos. Barings under normal warranty scheme and delivered the vehicle to the satisfaction of the complainant on free of cost and no charges have been received from the complainant.  It is further submitted that, the vehicle once again brought to OP No.1 on 04.05.2018 after having run 11428 KMs with similar complaints.  The OP No.1 identified the issue and ordered for replacement of certain parts which were currently not available with it and request was made to the authorized stockiest of spare parts and (1) crank shaft, (2) cylinder kit, (3) ring set piston, (4) Piston, (5) cock assy fuel and (6) plate ramp were replaced under normal warranty and informed the complainant on 15^th May 2018 to collect the subject vehicle and no charges were collected from the complainant.  The averments made in para 7 are denied as false as the same are vague, imaginary, self servicing and false.  It is submitted that, pursuant to rectifying the complaint in the vehicle on 15.05.2018, the OP No.1 has requested the complainant to collect the same on several occasions, but it went in vain and the vehicle is under the custody of OP No.1.  The complainant is at liberty to collect the vehicle at any time.  Despite several repeated reminders and requests, the complainant has unreasonably refused to collect the vehicle.  The averments made in para 9 are denied as false.  It is true that, the complainant has caused a demand notice to OP No.1 on 02.06.2018, the same has been duly replied through their counsel on 19.06.2018 wherein the complainant was expressly called upon to collect the subject vehicle, the complainant willfully refused to collect the vehicle from OP No.1 with a claim that she needs a brand new show room vehicle though the OPs have diligently rectified all the complaints raised by the complainant and therefore, there is no cause of action arose to file this complaint and prayed for dismissal of the complaint.

4.      Complainant herself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-7 were got marked and closed her side. On behalf of OP No.1 and 2, one Sri. Ashfaq Ahamed, the Manager, Customer Care of OP No.1 has examined as DW-1 by filing the affidavit evidence and Ex.B-1 to Ex.B-3 documents have been got marked and closed their side.  

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service in selling the defective vehicle to her and entitled for the reliefs as prayed for in the above complaint?

              (3) What order?

         7.       Our findings on the above points are as follows:-

                    Point No.1:- Partly in Affirmative. 

Point No.2:- As per final order.

REASONS

8.      Point No.1:- There is no dispute between the parties that, the complainant has purchased Two wheeler Motor Cycle i.e., Hero Motocorp MAESTRO EDGE VX Colour of PSM model bearing Registration No.KA-16 EH 2947 with chassis No.MBLJFWO18H4B12955 and engine No.JF33ABH4B12725 from OP No.1 by availing loan from Hero Fincorp Ltd., i.e., OP No.2.  The complainant has paid an advance amount of Rs.30,000/- and the remaining amount of Rs.38,000/- has been taken as loan from OP No.2.  The total value of the vehicle was Rs.68,000/-. After using the said vehicle, the said vehicle was giving very much trouble to travel to anywhere.  The complainant approached the OP No.1 for check up and informed about the defects in the vehicle.  The OP No.1 informed the complainant to deliver the vehicle to their service center.  The complainant delivered the vehicle to their service center and the service of the vehicle was done, but the same problem repeats.  The complainant regularly servicing and checking up her vehicle at the OPs service centre and she is prompt in undertaking repairs at the spot only at OPs service centre.  It is argued by the complainant that, from the day one of purchase of the vehicle, the vehicle giving trouble to the complainant.  The complainant has left the vehicle for repairs with OP No.1 nearly for 25 days, but the repair has not been attended.  The OP No.1 has informed the complainant that, the vehicle has come to re-boring and accordingly they have replaced the bore.  Further it is argued that, the OP No.1 and 3 have colluded with each other and sold the defective vehicle to her.  No doubt the complainant has purchased the said vehicle from the No.1, manufactured by OP No.3.  The OP No.1 and 3 says that, the complainant has not followed the terms and conditions of the manual supplied by the OPs.  The complainant has used the vehicle roughly without using the same smoothly and therefore, the complainant is not entitled for replacement of the vehicle or return of the amount and she is entitled only for replacement of the parts of the vehicle and accordingly, they have changed the parts.  The complainant has used the vehicle for more than 12000 KMs for one year, which clearly shows that, the complainant has used the said vehicle roughly.  The Advocate for complainant argued that, the OP No.1 and 3 have intentionally supplied the defective vehicle and hence, they are entitled to replace the same or to refund the amount.  In support of the arguments, the complainant has furnished the judgment passed in F.A.No.269/2010 passed by the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai wherein it has been held as under:

“Adv. M.B. Kolpe submitted that complainant is unemployed youth and by availing finance from bank he had purchased jeep for earning his bread and butter.  It is found that since beginning of the purchase, vehicle was suffering from manufacturing defects.  Therefore complainant was to approach immediately to the appellant as vehicle was suffering from manufacturing defects therefore chassis was changed by the appellant.  It has also come on record that appellant issued letter to the complainant that engineer from the company will inspect the vehicle and try to repair the vehicle.  But said engineer also did not repair the vehicle up to mark.  Therefore complainant was many times required to get vehicle repaired.  Therefore District Consumer Forum rightly held that appellant is liable for replacing of jeep”.   

As per the judgment, if there is any manufacturing defects, under such circumstances, the manufacturer is liable for replacement of the vehicle or to return the entire amount.

9.      The OPs have relied on a decision reported in Civil Appeal No.3734/2000 of Hon’ble Supreme Court of India and Civil Appeal No.133/1994 and Revision Petition No.1652/2006 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi.  The para 8 to 11 of Revision Petition No.1652/2006 reads thus:

“(8) The State Commission goes on further to state as under:

“however, even assuming for a moment that there is no “manufacturing defect but the fact remains that the car remained most of the time with the respondent No.4 in the workshop, right from the date of delivery.  It has come on record that only after running 1412 KM the car started giving further trouble continuously.  While coming from the workshop, the car stopped in the midway, as a result, the car had to be tugged and carried to the workshop of respondent No.4.  The consumer is not supposed to wait for long even after paying the entire price of the vehicle for the purpose of repair.  The fact as stated above, clearly shows that the car was sent to the workshop of the respondent No.4 times without number right from the following day of delivery but even then the car has not been made roadworthy, as a result, the appellant who is a professional has to suffer mentally, physically and financially.  Under the circumstances, we are of the view that the only way to compensate the complainant is to replace the car with new one or in alternate to pay the price of the car.”

(9)  The State Commission has failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect.  He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect.  There is no rebuttal to the allegation of accident.  Merely because the accessory was not supplied in the beginning and that the vehicle suffered from some minor defects, which, however, were attended to by the opposite party, the State Commission has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement.  In the case of Surendra Kumar Jain Vs. R.C. Bhargava andOrs. 2006 3 CPJ 382, even when the complainant had filed a report of one O.P. Singh stating that the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect.  The defects in this car, as rightly held by the District Forum, were minor in nature and cannot be said to be in the nature of manufacturing defects.  For the non-supply of the necessary kit, the complainant has been duly compensated by the District Forum. 

(10)  In fact the Hon’ble Supreme in the case of Maruti Udyog Ltd., Vs. Susheel Kumar Gabgotra and another, 2006 4 SCC 644 has held that where defects in various parts of a car are established, direction for replacement of defective parts only called for.  “The State Commission, therefore, has exceeded its jurisdiction in ordering replacement by a new car.

(11)  In view of the aforesaid discussion, the revision petition succeeds and is allowed.  We set aside the order of the State Commission but maintain the award of Rs.11,000/- for non-supply of kit with interest @ 12% since the date of delivery of the vehicle till the date of the payment.  However, under the facts and circumstances of the case, there shall be no order as to cost. 

10.    The Hon’ble National Commission comes to the conclusion that, if there is any defects found in the vehicle, under such circumstances, the dealer or manufacturer have to replace the parts of the said vehicle only and not entitled for replacement of the vehicle or return of the amount.  The decision produced by the complainant is of Hon’ble Maharashtra State Consumer Commission and the decision produced by the OPs is of Hon’ble Supreme Court of India and Hon’ble National Commission.  Under such circumstances, we are binding on the decision of the Hon’ble supreme Court of India and Hon’ble National Commission.  Moreover the OP No.1 and 3 have already replaced the parts of the said vehicle.  Such being the case, the OP No.1 and 3 have not committed any deficiency of service.                    

11.    We have gone through the entire documents filed by sides, affidavit and version.  No doubt the complainant has purchased the above said vehicle from OP No.1, the same has been manufactured by OP No.3.  Within one year, the complainant has run the said vehicle nearly for 12000 KMs, it clearly shows that, the complainant has used the vehicle roughly and the decision reported by the Hon’ble Supreme Court clearly says, the manufacturer or the dealer are entitled only for replacement of the parts of the vehicle. In this case also, the OPs are liable to fulfill the same.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.          

            12.     Point No.3:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that the OP No.1 is hereby directed to solve the defects found in the vehicle and to hand over the same to the complainant.  In turn the complainant is hereby directed to receive the vehicle from OP No.1.

Complaint filed as against OP No.2 and 3 is hereby dismissed.

(This order is made with the consent of Member after the correction of the draft on 1/03/2019 and it is pronounced in the open Court after our signatures) 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri.Ashfaq Ahamed, the Manager of OP No.1 by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Legal Notice dated 02.06.2018
02	Ex-A-2:-	Reply notice dated 19.06.2018
03	Ex-A-3:-	Letter dated 17.06.2017 to complainant by the Hero Fincorp
04	Ex-A-4:-	2 Tax invoice
05	Ex-A-5:-	Labour bill dated 01.03.2018
06	Ex-A-6:-	2 postal receipts
07	Ex.A-7:-	Certificate of registration

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Warranty terms and conditions
02	Ex.B-2:-	Limitations of warranty
03	Ex-B-3:-	4 tax invoices

 

 

MEMBER                                                   PRESIDENT

Rhr**