District Consumer Disputes Redressal Forum
Civil Station, Palakkad – 678 001, Kerala
Dated this the 29th day of November, 2010
Present: Smt.Seena.H, President
Smt.Preetha.G.Nair, Member
Date of filing: 13/05/08
CC. No.63/2008
Mohammed Rafi.C
S/o.Chellappa.V
Akbar Manzil
2/470, Chengampotta
Kollengode.P.O, Palakkad- 678506 - Complainant
(By Adv.K.Dhananjayan)
Vs
1. Ansil Motors
Opp. Co-operative Urban Credit Society
Nenmara Road,
Kollengode
(By Adv.M.R.Manikantan)
2. Gayathri Motors
Viswam Arcade
N.H.47, Chandranagar
Palakkad
(By Adv.M.R.Manikantan)
3. The Manager
M/s.Hero Honda Motors Ltd.
Registered Office
34, Community Centre
Basanth Lok
Vasanth Vihar
New Delhi 110057. - Opposite parties
(Party in person)
O R D E R
By Smt. Preetha.G.Nair, Member
The complainant has purchased a new Hero Honda Passion plus petrol motor bike engine No.07D08M25027 and Chassis No.07D09C05687 on 14/05/2007 from the 1st opposite party. During the first journey from the showroom to house the complainant has felt riding difficulties in the smooth movement of the handle. On the same day itself the complainant informed the riding difficulties to the 1st opposite party. Then the 1st opposite party advised the complainant to wait till the 1st service and the problem can be solved. After the 1st service it was informed that the mistake has been corrected and smooth riding will be possible. During return trip again the complainant has felt the same trouble as earlier. Then the complainant informed to the 1st opposite party and advised to wait till the next service. The complainant has suffered pain on his shoulders and treatment was carried out. During the next service the 1st opposite party informed the complainant that the problem is due to manufacturing defects and they have informed the matter to the 2nd opposite party. Thereafter they informed the complainant that the Chief Engineer from Hero Honda will be visiting the show room during June 2008 and the dispute can be discussed. The complainant has not satisfied the explanations of 1st and 2nd opposite party. Hence the complainant prays
an order directing the opposite parties;
1. To replace the vehicle with a fresh one or the cost of the vehicle purchased or Rs.50,000/-,
2. To pay the treatment expenditure of Rs.4,700/- due to shoulder pain,
3. To pay Rs.25,000/- as compensation for mental tension and Rs.2,500/- for the cost of the proceedings.
Opposite parties filed version stating the following contentions. Opposite parties 1 and 2 stated that after the purchase of the vehicle, the complainant has came for his first service to the 1st opposite party and told the complaint of sound from the front side of the vehicle. The mechanic attached to the 1st opposite party checked the vehicle and found that no sound/mistake as pointed out by the complainant and the same was duly explained and demonstrated to him. Thereafter the vehicle was again taken for second service by the complainant and stated the same defect. The mechanic of 1st opposite party again checked the vehicle and found no complaint and the same was done in front of the complainant. Even then the complainant made some utterance against the 1st opposite party and their men and to avoid nuisance, the 1st opposite party replaced 1. Front fork assemble, 2. T stem, 3. Ball race and 4. Handle bar to the satisfaction of the complainant. Thereafter the opposite parties have not received any complaint from the complainant and the vehicle was subjected for the remaining service 3 to 6 with the 1st opposite party. The opposite parties 1 and 2 stated that they were no way liable for any kind of physical discomfortness of complainant. Therefore the 1st and 2nd opposite parties prayed for dismiss the complaint with cost.
The 3rd opposite party filed version stating the following contentions. The 3rd opposite party stated that they are the manufacturer of the vehicle and there is no privity of contact between them and complainant. Therefore the 3rd opposite party prayed dismissal of the complaint with compensatory cost.
Complainant and opposite parties filed Chief affidavit and documents. Exts.A1 to A7 marked on the side of complainant. Commission report was marked as Ext.C1. Commissioner was examined. Matter was heard.
Issues to be considered are;
1. Whether there is any deficiency in service on the part of opposite parties?
2. If so, what is the relief and cost entitled to the complainant?
Issues 1 & 2:
We perused relevant documents on record. Admittedly the complainant had purchased the vehicle from the 1st opposite party for Rs.42,850/- on 14/05/2007. The complainant stated that he felt riding difficulties in the smooth movement of the handle in his first journey from the show room to his house. To substantiate the contentions of the complainant an expert engineer commissioner had been appointed. Commissioner has inspected the motor cycle and filed report marked as Ext.C1. The commissioner in the report stated that the abnormal noise and the discomfort are due to the damages caused to the ball race is 1)due to normal wear and tear, 2) pitting in the ball cages and balls. Complainant and opposite parties have not filed objection to commissioner’s report. Later the 1st and 2nd opposite parties filed IA for examination of commissioner. IA was allowed. At the time of cross examination commissioner has stated that the defects noted by him are not because of the manufacturing defect. No explanation was given by the commissioner. The complainant stated that he felt riding difficulties in his first journey. According to Ext.A7, in the first service the vehicle has shown 714 km reading. The vehicle has purchased on 14/05/2007. As per Ext.A7 the first service was done on 14/06/2007. The 1st opposite party admitted that in the second service replaced 1) Front fork assembly, 2)T.stem, 3)Ball race and 4) Handle bar to the satisfaction of the complainant. As per Ext.C1 the commissioner has not stated the defects noted by him as manufacturing defect. Commissioner in his report stated that abnormal sound was heard from the fork assembly while pushing the fork cushion up and down. Further commissioner has stated that drive tests were taken and found that sound was heard from the fork ball race. As per Ext.C1 the commissioner has found damages in the vehicle. But the commissioner has not stated that abnormal noise and the discomfort are not happened due to the manufacturing defect. The commissioner stated that the odometer reading was noted and it is 11,236 km. No evidence was produced by opposite parties to show the vehicle has runs excess km within the warranty period. The complainant has serviced the vehicle within the period stated in Ext.A7. Also the 1st opposite party has replaced some part of the vehicle like front fork assembly, T stem, ball race and handle bar within the warranty period. No evidence was produced by the complainant to show Rs.4,700/- was expenditure for treatment of shoulder pain.
In the above discussions, we hold the view that there is deficiency in service on the part of opposite parties. As per Ext.A1 the year of manufacture of the vehicle is 2007. In the absence of any document regarding the present value of the vehicle we calculate 10% depreciation per year on the purchased value. The date of filing of the case is 13/05/2008. Depreciation is for one year. The present value is 42850 – 4285 (10% on 42850) 38565. Hence the complaint allowed to that extend.
We direct the opposite parties jointly and severally to pay the cost of the vehicle of Rs.38,565/- (Rupees Thirty eight thousand five hundred and sixty fifty only) and Rs.2,000/- (Rupees Two thousand only) as cost of the proceedings. Complainant is directed to return the vehicle to the opposite parties at the time of payment. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a. from the date of order till realization.
Pronounced in the open court on this the 29th day of November, 2010
Sd/-
Smt.Seena.H,
President
Sd/- Smt.Preetha.G.Nair,
Member
Appendix
Witnesses examined on the side of complainant
Nil
Witnesses examined on the side of opposite parties
Shri.P.Sugumaran
Exhibits marked on the side of complainant
Ext.A1 – Photocopy of registration certificate
Ext.A2 – Photocopy of tax licence
Ext.A3 – Photocopy of retail invoice No.7 dt.14/05/07
Ext.A4 – Photocopy of certificate of insurance
Ext.A5 – Retail invoice No.7 dt.14/05/07
Ext.A6 – Motor vehicle insurance cover note
Ext.A7 – Owner’s manual
Exhibits marked on the side of opposite parties
Nil
Cost (Allowed)
Rs.2,000/- (Rupees Two thousand only) allowed as cost of the proceedings
