Date of Filing:       03.12.2018

                                                                                                                       Date of Disposal:  20.11.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

PRESENT: THIRU.   J. JUSTIN DAVID., M.A., M.L.,                                .…. PRESIDENT

                   TMT.      K. PRAMEELA. , M.Com.,                                         ….. MEMBER-I

                   THIRU.  D.BABU VARADHARAJAN, B.Sc., B.L.,                   ……MEMBER-II

CC No.57/2018

THIS WEDNESDAY THE 20^th  DAY OF NOVEMBER 2019

M.Suresh,

No.26, Mosque Street,

Poonamallee, Chennai - 600 056.                                                        ….. Complainant. 

                                                                        //Vs//

1.M/s.Surya Motors,

   173, Mount Poonamallee Road,

   Kattupakkam, Poonamallee,

   Chennai - 600 056, Tamil Nadu.

2.M/s. Honda Motor Cycles & Scooter,

    India (Private) Limited,

    Rep. by its Manager,

    Commercial Complex II-sector,

    49-50, Golf course Extension Road,

    Gurgaon, Harayana - 122 018,  India.                                     …Opposite parties.

This Complaint is coming upon for final hearing before us on 08.11.2019 in the presence of Mr.P.Raja, counsel for the complainant and M/s.R.Mathiyalagan, counsel for the opposite parties and perusal of the both side documents and hearing the arguments on both side, this Forum passed the following:-

ORDER

PRONOUNCED BY THIRU.J.JUSTIN DAVID, PRESIDENT

This complaint has been preferred by the complainant Under Section 12 of the consumer protection Act, 1986 against the opposite parties for seeking direction to replace the new bike instead of the bike with manufacturing defect and pay a sum of Rs.8,00,000/- towards compensation for causing mental agony due to the deficiency and unfair trade practice on the part of the opposite parties to the complainant.

2.The brief averment in the complaint is as follows:-

The complainant purchased a unicorn 150 CC model bike bearing No.TN 12 4889 from the 1^st opposite party on 02.08.2018 and the bike was not functioned satisfactorily.  Therefore the complainant lodged complaints to the 1^st opposite party for several times and for which the 1^st opposite party replied that all the errors in the bike would be rectified at the instance of 1^st service.  Whereas the complainant asked for replacement new one due to manufacturing defect but the 1^st opposite party replied that it is not possible despite manufacturing defect.  The complainant again called them to replace those spare parts which have caused scratches on the time of repairs.  On checking the opposite party admitted their mistake of poor service, performance, offered to replace the rusted part.  The complainant on the way to home from the show room the fault was still persisting.  The complainant had approached the nearby mechanic for an emergency who revealed the fault in the bike namely (1) Fork Bend, (2) Gear Jamming, (3) Noise from engine etc.  The complainant once again went to the 1^st opposite party’s showroom, this time another service man checked the bike, whereas if the complainant has not satisfied they asked the complainant to file written complaint.  The complainant met the Branch Manager Gupta as he assured for road test and performed the same and admitted there was problem occurring at the time of running on road. The opposite party never offered for replacement even though there was a manufacturing defect.  The complainant asked for replacement of bike but the 1^st opposite party did not accepted for the same and the regional office also rejected all calls. The complainant reported them with inconvenience and asked for a replacement of Honda Unicorn 150 CC bike and there was no response.  But the area Manager and regional manager asked the complainant to pay a sum of Rs.20,000/- and certainly would replace a new bike.  But the complainant has refused to pay the additional payment to replace a new bike. The complainant aggrieved by the opposite parties poor service, performance even the complainant brought the bike with full payment of cash. they play fun on him, improperly replied when the complainant lodged his complaint for a replacement they failed to do as per requirement of the complainant is dereliction of duties, deficiency in service, no with proper redresses for the customer with in time of needy all that caused the complainant waste of time, waste of spending such a huge money for buying the bike, unwontedly pulling here and there resulting with stress and strain, mental agony due to their poor service performance to a customer.  Hence the complaint is lodged before this forum for an appropriate redressed to the complainant and to punish the erring opposite parties.

2. The contention of written version of the 1^st opposite party and adopted by the 2^nd opposite party is as follows:-

The opposite parties admitted that the complainant purchased Unicorn (CBF 150 MH) model bike bearing registration No.TN -12 489 from the 1^st opposite party on 31.07.2018 but certainly not on 02.08.2018. The opposite parties admit  that the complainant’s complaint to the 1^st opposite party about the problems in the vehicle for which the 1^st opposite party replied that the errors will be rectified at the time of 1^st service when it is brought to the service center.  But the 1^st opposite party denied that he was not committed to the complainant that the vehicle is having manufacturing defect. The complainant brought the vehicle to the 1^st opposite party on 31.08.2018 at 2.00 pm for 1^st service, Tax invoice also issued to the complainant, invoice No.CRN”CR02-18-148653680114. The 1^st opposite party inspected the vehicle and found only minor defects, service done on the same day and it is a free service.  Job card closed on 01.09.2018 5.58 pm, then the vehicle was taken back by the complainant.  When the vehicle was brought to service, the vehicle was run by 956 km and therefore it is proved that the vehicle was running condition and not having manufacturing defects.  If at all the complainant would have been serviced the vehicle with private mechanic during warranty period anything goes wrong the opposite party is not liable and the complainant alone is responsible for that.  The complainant brought the vehicle to the 1^st opposite party for 2^nd service on 27.09.2018 at 12.05 pm, tax invoice No.CRN CRO2-18-14865380114, Job Card No.JC-TNM00012-021810-009918, service done, job card closed on the same day 27.09.2018 at 07.13.56 pm. After service has done by the 1^st opposite party the complainant taken back his vehicle, at the time of 2^nd service the vehicle was run about 1341 km as per speedometer reading which proved that the vehicle is in running condition.  Therefore there is no question of replacing vehicle and the opposite parties not committed any deficiency of service and unfair trade practice by selling the vehicle to the complainant.  Hence this complaint may be dismissed with heavy costs.

4. In order to prove the case, on the side of the complainant, proof affidavit filed as his evidence and Ex.A1 to Ex.A9 were marked.  While so, on the side of the opposite parties proof affidavit filed as their evidence but no documents was filed and also adduced oral argument on both sides.

5. At this juncture, the point for consideration before this forum is:-

(1) Whether there is any deficiency in service on the part of the opposite parties?

(2) Whether the opposite parties are liable to replace a new bike instead of old bike purchased by the complainant?

(3) Whether the complainant is entitled for compensation and costs?

(4) To what other reliefs, the complainant is entitled to?

6. Point No.1 & 3:-

The case of the complainant is that the complainant purchased a unicorn 150 CC model bike bearing Registration No.TN 12 -Z- 4889 from the 1^st opposite party on 02.08.2018 and the bike was not functioning from the date of delivery.  Therefore the complainant lodged complaint to the 1^st opposite party. In turn the 1^st opposite party replied that all the defects will be rectified at the 1^st service. Though the complainant approached the 1^st opposite party to rectify the defects for several times and the 1^st opposite party has not rectified the defect in the vehicle and therefore as there is manufacturing defects in the bike.  The opposite parties have sold a defective bike to the complainant and committed deficiency in service and unfair trade practice to the complainant.

7. The opposite parties contended that the complainant purchased a bike bearing Registration No.TN-12-4889 from the 1^st opposite party on 31.07.2018 and not certainly 02.08.2018.  The complainant brought the vehicle to the 1^st opposite party on 31.08.2018 at 2.00 pm for 1^st service and the 1^st opposite party inspected the vehicle and found only minor defects and the same was done by the 1^st opposite party on the same day, that the vehicle was run by 956km at the time of 1^st service.  The complainant brought his vehicle to the 1^st opposite party for 2^nd service on 27.09.2018 and after service the complainant taken back his vehicle on the same day.  At the time of 2^nd service the vehicle was run about 1341 km and therefore there is no manufacturing defect and there is no unfair trade practice on the part of the opposite parties.

8. The complainant purchased a unicorn 150 CC model bike bearing Registration No.TN 12 4889 from the 1^st opposite party for Rs.84,500/-.  Ex.A1 series are the copy of receipt issued by the 1^st opposite party in favor of the complainant.  The complainant paid a sum of Rs.84,500/- on 28.07.2018 to the 1^st opposite party towards purchase of Hero motor cycle. Ex.A1 is the receipt and the tax invoice issued by the 1^st opposite party in favor of the complainant.  The 1^st opposite party issued tax invoice for Rs.74,230/- on 31.07.2018.  Ex.A7 is the copy of certificate of registration regarding motor cycle bearing registration No.TN-12-Z-4889 in which the date of registration of the vehicle is stated as 03.08.2018 and the purchased dated mentioned in the registration certificate is as 02.08.2018.  But the opposite party contended that the complainant purchased the vehicle on 31.07.2018.  Hence it is clear that the complainant purchased the Honda motor cycle bearing registration No.TN-12-Z-4889 from the opposite party on 02.08.2018 and the same was registered in the name of complainant on 03.08.2018.  Therefore the complainant is the owner of the Honda motor cycle bearing registration No.TN-12-Z-4889.

9. The complainant alleged that the vehicle was not functioning satisfactorily from the date of delivery and the same was informed to the 1^st opposite party and he replied that the defect will be rectified at the 1^st service. Therefore the complainant handed over the bike to the 1^st opposite party on 01.09.2018 and for which the 1^st opposite party issued tax invoice in the name of complainant on 01.09.2018.  In Ex.A1 also contains the tax invoice issued by the 1^st opposite party in favor of the complainant and the above said tax invoice contains job card number.  But the 1^st opposite party failed to produce the job card to disprove the allegation of the complainant regarding the defects.  Further Ex.A1 also contains tax invoice date 27.09.2018 in which it is stated that the service type “MINOR REPAIRS” to prove the same  the opposite party failed to produce job card to know what are the minor repairs rectified by the opposite party.  On the other hand, the complainant proved that on 01.09.2018 and 27.09.2018 he has handed over his vehicle for rectifying the defects in the vehicle to the 1^st opposite party.  Therefore the problem in the vehicle arises within one month from the date of purchase.  The 1^st opposite party also admitted in the written version that the problems will be rectified at the time of 1^st service when it is brought to the service center. Therefore it is clear from the above averment that the complainant informed the 1^st opposite party about Fork Bend, Gear Jamming and Noise from engine defect in the bike before 1^st service. The complainant informed the said defect to the 1^st opposite party and requested the opposite party to replace a new vehicle.  But the 1^st opposite party refused to replace a new vehicle and therefore the complainant written a letter to the 1^st opposite party on 11.10.2018 to replace the bike or to pay Rs.84,500/-.  In which the complainant has written as follows:-

kPz;Lk; ,tu;fis ek;gp thfdj;ij xg;gilj;J xU ehs; KOtJk; mtu;fs; nra;Ak; Ntiyapid ftdpj;Njd;.  ehd; $wpa gOJfs; midj;Jk; ,Ue;jjhf ru;tPru; xg;Gf;nfhz;lhu;.  gOjhd gFjpfs; midj;ijAk; khw;wpj;jug;gl;lJ.  kPz;Lk; NuhL nl];l; vLj;jdu;. 100M.L ngl;NuhYf;F 3.5 fp.kP kl;LNk ikNyI; nfhLf;fpwJ vd;W ru;tPru; $wpdhu;.  gpd;G Vupah NkNdIu; mtu;fSk; thfdj;ij Xl;bg;ghu;jJ kpfTk; ed;whf cs;sJ vd;W nrhd;dhu;.  mij ehDk; ek;gptpl;Nld;.  Mdhy; md;Nw thfdj;ij ,af;fpaNghJ Kd;gpUe;j gOJfs; ,Ue;jd.  vdNt kPz;Lk; fhy; nra;Njd;.  mjw;F mtu;fs; cq;fSf;F mg;gbj;jhd; njupAk; vd;W myl;rpakhf $wpa fhuzj;jhy; kPz;Lk; epGzu;fsplk; nfhz;L Nrhjpj;Njd;.  mtu;fs; gioa gOJfs; ,Ug;gjhf njuptpj;jdu;.  gpd;G ,uz;L ehl;fs; fopj;J &gha; 20,000/- j;ij je;jhy; thfdj;ij khw;wpj; jUtjhf Vupah NkNdIu; jpU.kD kw;Wk; jpU fe;jd; mtu;fs; fhd;gpud;]; fhy; Kyk; Ngrpdhu;fs;.  mjw;F vd;dhy; gzk; ju ,ayhJ vd;Wk; GJ thfdk; vd;gjhYk; ehd; kWj;J tpl;Nld;.  Nkw;gb $wpa gzj;ij jutpy;iynad;why; thfdj;ij khw;wpj;ju KbahJ vd;Wk; fz;bg;Gld; ,UtUk; $wpdhu;fs;. The 1^st opposite party received the said letter, even after receipt of the letter the 1^st opposite party neither issued any reply nor rectified the defect.  Therefore the complainant filed this complaint before this forum.

10. The complainant purchased the vehicle from the 1^st opposite party on 02.08.2018 by paying a total sum of Rs.84,500/- and the bike was not functioning satisfactorily from the date of delivery and the 1^st opposite party was also unable to rectify the same.  The 1^st opposite party also agreed to provide a new vehicle on payment of additional amount of Rs.20,000/-.  But the complainant refused to pay the additional amount.  Further the opposite parties also admitted that there are some defect arises in the vehicle before 1^st service.  Hence the problem in the vehicle started within the warranty period.  But the opposite parties failed to rectify the defects.  There is deficiency in service on the part of the opposite parties, the 2^nd opposite party is the manufacturer of the vehicle and the 1^st opposite party is the dealer of the vehicle.  Hence the 1^st and 2^nd opposite parties are jointly and severally liable to pay compensation and costs to the complainant. Thus the point No.1 & 2 are answered accordingly.

11. Point No.3:-

The complainant prays for an order to replace with a new bike instead of old bike.  The complainant failed to prove that there is manufacturing defect in the vehicle and the complainant has not taken any steps to appoint an expert to inspect the vehicle and to prove that there is manufacturing defect in the vehicle.  It is duty of the complainant to prove the manufacturing defect in the vehicle, but here in this complaint the complainant neither take any steps to get expert opinion regarding manufacturing defects nor filed any expert opinion regarding manufacturing defects.  Therefore the complainant is not entitled for replacement of new bike.  On the other hand, the problem arises within the warranty period and therefore the opposite parties jointly and severally are liable to rectify all the defects in the vehicle on free of cost and return the same on running conditions to the complainant.  Thus the point No.3 is answered accordingly.

12. Point.No.4:-

In the result, this complaint is allowed in part.  Accordingly the 1^st and 2^nd opposite parties are jointly and severally hereby directed to rectify all the defects in the Unicorn (CBF 150MH) Model bike bearing Registration No.TN-12 Z 4889 purchased by the complainant on free of cost within two months from the receipt of the copy of this order.  The 1^st and 2^nd opposite parties further hereby directed to pay a sum of Rs.30,000/- (Rupees thirty thousand only) towards compensation for causing mental agony and financial loss to the complainant due to the deficiency in service on the part of the 1^st and 2^nd opposite parties and also to pay a sum of Rs.5,000/-(Rupees five thousand only) towards cost of litigation to the complainant. 

The above said amount shall be  payable by the 1^st and 2^nd  opposite parties  within two months from the date of receipt of the copy of this order failing which this said amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 20^th November 2019.

      -Sd-                                                -Sd-                                                                  -Sd-

MEMBER-II                                  MEMBER-I                                                     PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite parties:-

-No documents-

      -Sd-                                                -Sd-                                                                  -Sd-

MEMBER-II                                  MEMBER-I                                                     PRESIDENT