BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 30th day of April 2012
Filed on : 30/03/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member
Smt. C.K. Lekhamma, Member
C.C. No. 185/2011
Between
Mr. Suneer K. H, : Complainant
S/o. J.K. Hussain, (By Adv. Naseer A.M., No.41/3792
Res. At H. No. 13/1373, C2, First Floor, Carmel Centre,
Chettupadam Nikarthil, First floor, Carmel Centre,
Kadebhagam, Palluruthy, Banerji road, Kochi-682 018)
Kochi-682 006.
And
1. M/s. Muthoot Motors (Kochi) : Opposite parties
Rep. by its Managing Partner,
Having office at the Grande
Near KSEB, Palarivattom,
Kochi-682 025.
2. M/s.Honda Motor Cycle (O.Ps.by Adv. K.C. Biju,
& Scooter India Pvt. Ltd., Kakkamveettil, Chottanikkara P.O.
Plot No.1, Sector 3,
IMT Manesar, Gargaon Dist.
Haryana-122 050.
3. The Manager,
Authorized Honda Two
Wheeler Service Centre,
M/s. Muthoot Motors Ltd.,
Jawaharlal Nehru Stadium,
Kaloor, Ernakulam-682 017.
4. The Manager, Authorized
Honda Two Wheeler
Service Centre, M/s.Muthoot
Motors Ltd., Thoppumpady
Fisheries Harbour,
Kochi-682 005.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 26-08-2010 the complainant purchased a motor cycle from the 1st opposite party which was manufactured by the 2nd opposite party at a price of Rs. 56,180/-. The 2nd opposite party has provided warranty for 24 months or until the vehicle has been driven for 30,000/- kms of run whichever event occurs first. On the very next day of purchase the complainant noticed unusual noise from the engine side of the motor cycle. The complainant immediately approached the 1st opposite party. The 1st opposite party directed the complainant to approach the 3rd opposite party. The 3rd opposite party agreed to notify the defect during the 1st service. On 16-09-2010 the vehicle was entrusted with the 3rd opposite party for service. Since the defect was repeated the complainant again approached the 3rd opposite party for its repairs. The 3rd opposite party purportedly replaced the gear shaft and flower parts. However the defect persisted and as per the direction of the 3rd opposite party, the complainant approached the 4th opposite party on 02-10-2010. After two weeks the 4th opposite party returned the vehicle claiming that the defects were rectified. But on 28-10-2010 he had to approach the 4th opposite party for the very same defect. The clutch box of the motor cycle was opened by the 4th opposite party without the permission of the complainant. So he did not take possession of the same. On 13-12-2010 the complainant caused to issue a lawyer notice to the opposite parties highlighting his grievances. The opposite parties sent a reply raising untenable contentions. Thus the complainant is before us seeking the following reliefs against the opposite parties.
i. To direct the opposite parties to exchange the motor cycle with a new one.
ii. To direct the opposite parties to replace the defective parts of the vehicle.
iii. To direct the opposite parties to pay interest @ 24% on the price of the vehicle .
iv. To direct the opposite parties to pay compensation and costs of the proceedings
2. The version of the 1st opposite party is as follows:
The 1st opposite party sold the vehicle to the complainant and the warranty being provided by the 2nd opposite party, the manufacturer. On 16-09-2010 the complainant entrusted the vehicle for its 1st service. The complainant reported some uneasiness while changing the gears and requested to check up the same. The service engineer of the 3rd opposite party examined the two wheeler and did not find any fault or defect and having found no such default returned the same. After two days the complainant approached the 3rd opposite party alleging the same problem, the technicians checked the vehicle but found no defect as alleged. On 28-10-2010 the complainant along with his friends approached the 4th opposite party and started shouting alleging manufacturing defect in the vehicle. To avoid an unpleasant situation the 4th opposite party accepted the vehicle for reinspection and the complainant was provided with a brand new stand by vehicle registered in the name of the 1st opposite party. In the meantime the 4th opposite party opened the clutch box of the vehicle with the consensus of the complainant and found that the same is free from any defect. Thereafter the complainant not only took back the vehicle nor returned the stand by vehicle. The complainant has approached this Forum with unclean hands by suppressing material facts. At the intervention of the Judicial First Class Magistrate Court Kochi and the Palluruthy Police the complainant returned the vehicle of the 4th opposite party on 30-03-2011, but he did not collect his vehicle from the opposite party instead he filed this complaint only to harass the opposite parties.
3. The other opposite parties as well filed their own versions separately coinciding with the contentions of the 1st opposite party.
4. The complainant was examined as PW1 and Exts. A1 to A7 were marked on his side. The witness for the opposite parties was examined as DW1 and Exts. B1 to B9 marked on their side. Heard the counsel for the parties.
5. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get the vehicle replaced with a new one or to get refund of its price or to get the defective parts replaced.
ii. Whether the opposite parties are liable to pay compensation and costs of the proceedings
6. Point No. i. According to the complainant time and again he had to approach the opposite parties to rectify the defects of the vehicle and the opposite parties failed to rectify the same. He pleads that the recurring defects of the vehicle was due to its inherent manufacturing defect. The learned counsel for the complainant relied on the decision rendered by the Hon’ble
Appex Court in Maruti Udyog Ltd. Vs. Sushel Kumar Gabgotra and Anr (2006) 4 SCC 644 and the Hon’ble National commission in Dr. George Thomas V Maruti Udyog Ltd. 2010 (4) CPR 64 (NC).
7. Per contra the learned counsel for the opposite parties vehemently and vigorously contended that the attempt of the complainant is only to harass the opposite parties. According to them, the vehicle is free from any manufacturing defects as alleged by the complainant and there is no evidence to substantiate the same. It is contended that the complainant has approached the Forum with unclean hands. The counsel relied on the following decisions rendered by the Hon’ble National Consumer Disputes Redressal commission in Mahipal Singh V. SDO, OP City S/Divn 2012 (1) CPR 44 (NC) and Smt. Omprabha Malviya Vs. Godrej Photo –Me Ltd & Ors 2011 (4) CPR 352 (NC).
8. Admittedly on 26-08-2010 the complainant purchased the motor bike from the 1st opposite party which was manufactured by the 2nd opposite party at a price of Rs. 51,507/- evidenced by Ext. A1 retail invoice. It is not in dispute that the 2nd opposite party has provided warranty for 24 months or 32,000/- kms of run which ever event occurs first evident from Ext. A4 warranty policy. The complainant approached the opposite parties with the following complaints on the respective dates.
Serial No. | Date | Exhibit | particulars |
1. | 16-09-2010 | B1 | Gear Shifting tight checkup |
2. | 21-09-2010 | B2 | “” |
3 | 28-10-2010 | B3 | Check side sound vehicle jercking |
9. Ext. B1 to B3 go to show that the complainant had to approach the opposite parties to get the defect of the gear rectified. The opposite parties contented that they could not find out any defect in spite of the opening of the gear box. In Smt. Omprabha Malviya Vs. Godrej Photo me Ltd. & others (Supra). The Hon’ble National Consumer Disputes Redressal Commission has held that manufacturing defect has to be proved by expert evidence. In this case that factor is absent, for the reasons no such prayer has been raised by the parties.
10. However the recurring defect of the gear alleged that too within the warranty period goes to show that the particular part of the vehicle seemingly and uncontrovertedly suffer from manufacturing defect. The findings of this Forum is uncontrovertedly upheld by the decision of the Hon’ble National Commission in Nachiket P Srigaonkar Vs. Pandit Automotive Ltd. And Another 2008 (2) CPR 369 (NC) which has been contented by the decision of the Appex Court of the land in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr (Supra). The findings of the Hon’ble Supreme Court is that the replacement of the defective part alone is sufficient to meet the ends of justice, which is applicable here also does not called for any further clarification but has only to be accepted.
11. The opposite parties raised a contention that on 28-10-2010 the complainant accepted a stand by vehicle from the 1st opposite party but failed to return the same in time despite repeated requests and so criminal proceedings is pending against the complainant before the Hon’ble Judicial First Class Magistrate Court, Kochi. The opposite parties are at liberty to proceed accordingly if so advised.
12. Point No. ii. The grievance of the complainant has adequately been met by the grant of a stand by vehicle whereby the goodwill of the opposite parties have been amply exhibited and accepted and agreed upon. So compensation and costs are not necessarily or even legally called for.
13. Taking into due consideration of the Supreme Authority in the case cited above we are only to hold that the opposite parties shall jointly and severally rectify the defect of the gear system as complained of by the complainant and if unrectifiable replace the same and deliver the vehicle free of complaint to the complainant.
Pronounced in the open Forum on this the 30th day of April 2012.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s Exhibits:
Ext. A1 : Copy of retail invoice dt. 26/08/2010
A2(a) : Receipt dt. 16-08-2010
A2(b) : Receipt dt. 27-08-2010
A3 : Certificate of registration
A4 : Owners manual
A5 : Bill particulars
A6 : Lawyer notice dt. 13-12-2010
A7 : Reply notice dt. 03-01-2011
Opposite party’s Exhibits:
Ext. B1 : Copy of job card16/09
B2 : Copy of job card dt.21/09
B3 : Copy of job card dt. 29/10
B4 : Copy of vehicle movement challan
B5 : Copy of letter dt. 18/01/2011
B6 : Copy of FIR dt. 09-03-2010
B7 : Copy of final report
B8 : Copy of protest complaint filed before Judicial
1st Class Magistrate Court, Kochi.
B9 : Copy of order dt. 23-07-2011
Depositions :
PW1 : K.H Suneer
DW1 : Sajish P.T.
