Tamil Nadu

South Chennai

CC/396/2015

M/s.Dinesh Babu - Complainant(s)

Versus

M/s.Honada Motors Cycle and Scooter India P ltd - Opp.Party(s)

K.Surendar

05 Jan 2017

ORDER

                                                                        Date of Filing :   16.09.2015

                                                                        Date of Order :   05.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT             

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

C.C.NO.396/2015

THURSDAY THIS  5^TH  DAY OF JANUARY  2017

 

N. Dinesh Babu,

S/o. Mr. Natarajan,

Old No.817, New No.115,

Mullai Nagar,

LIC Colony, TNHB,

West Tambaram,

Chennai 600 045.                                          ..Complainant

 

                                              ..Vs..

1.  M/s. Honda Motorcycle and Scooter India

Private Limited,

Rep. by its Managing Director,

3^rd and 4^th Floor,

No.10, GJ Complex,

First Main Road,

CIT Nagar, Chennai 600 035.    

 

2. M/s. Vijaya Automobiles Private Limited,

Rep. by its Managing Director,

Vijaya Honda,

S.F.No.1373/2A3BIG,

Kelambakkam OMR Salai,

Chennai 603 103.

 

3. M/s. Lodha Motors,

Rep. by its Managing Director,

No.784, GST Road,

Kadaperi, Tambaram,

Chennai 600 045.                                        ..Opposite parties

 

For the Complainant                   :    M/s. K.Surendar    

For the opposite parties               :    Exparte.

 

ORDER

THIRUMATHI.K.AMALA,   ::    MEMBER-I

 This complaint is filed by the complainant against the opposite parties under section 12 of Consumer Protection Act to seek direction  to refund a sum of Rs.66,210/- and also to pay a sum of Rs.10,00,000/- as compensation for damages and also to pay cost of the complaint.

1. The averment of the complaint are brief as follows:

         The complainant contended that the 1^st opposite party is a leading manufacturer of two wheelers in India and the 2^nd and 3^rd opposite parties are the agents of the 1^st opposite party engaged in sales and services of the products manufactured by the 1^st opposite party.   He came across wide publicity given by the 1^st opposite party about the Motor cycle namely Honda CB shine through various forms of media and was lured by the portrayal of the said vehicle and approached the 2^nd opposite party on 23^rd January 2015 and booked the Honda CB Shine two wheeler by paying a total sum of Rs.66,210/- in favour of the 2^nd opposite party.   He was also informed that the vehicle bears a manufacturing warranty for a period of three years from the date of purchase and also offered extended warranty for further period of three years on payment of a sum of Rs.635/-.  He had also availed the extended warranty vide registration No.HMMN 5241842 from the 2^nd opposite party and thus was provided a manufacturing warranty covered for the period of 6 years from the date of purchase i.e. till 23^rd January 2020.   The said vehicle was also allotted chassis No. and engine no. and the same was registered in the name of the complainant vide registration No.TN 11 L0151 and the vehicle was delivered to the complainant on 29^th January 2015 affixing the few accessories.   

2.     On 3^rd February 2015 when the complainant was riding the said two wheeler in G.S.T. Road Tambaram he heard some rattling sound from the vehicle at the time of changing gears and the engine stopped suddenly the middle of the road, he was put to tremendous shock and was subjected to grave threat to his personal safety.   He also noticed that there was a leakage of oil from the engine.  Hence the complainant immediately took the vehicle to the 3^rd opposite party where the service engineer inspected the vehicle and assured to do complete checkup during the first schedule free service.  On delivery of the vehicle he issued job card No.17345 and assured to rectify the problem.    On 27^th February 2015 the said service engineer informed the complainant that there was  a defect in the clutch lever and clutch bell of the vehicle which had lead to the problem and the same has been rectified.   The complainant was  also informed that the engine oil has been replaced for which he paid a sum of Rs.470/-.  Despite the service done by the 3^rd opposite party during the last week of March 2015 the complainant had encountered the same problem and the vehicle stopped suddenly in the road while he was riding.  He immediately took the vehicle to the 2^nd opposite party and left with them for service.    The 2^nd opposite party failed to complete the service within the reasonable time and made the complainant run from pillar to post to take back his vehicle.    After one week he was informed to take delivery of the vehicle.  But the 2^nd opposite party failed to furnish the job sheet.    Subsequently during the 2^nd week April 2015 i.e. just two days after the so called service done by the 2^nd opposite party the complainant faced the very same problem and approached the 2^nd opposite party and met the senior Service Manager namely Mr.Suresh who registered his complaint and promised to rectify the defect and retained the vehicle for one week under the protest of service and delivered the vehicle to the complainant and failed to issue the job card.   But the complainant noted the job card No. which is 2464.   Within four days after delivery the complainant faced the same problem of a loud noise from the silencer and was subjected to tremendous trauma in the middle of the road.    Left with no other option he contacted the Senior Service Engineer of the 2^nd opposite party who had asked to leave the vehicle for service  done by the engineer of the 1^st opposite party as such he left the vehicle with them.    After one week the 2^nd opposite party delivered the vehicle to the complainant after the service done vide job card No.2890.  Again after two weeks he faced the same problem without any end.   Again he contacted service engineer of the 2^nd opposite party and reported the problem.  When the 2^nd opposite party asked to leave the vehicle for service the complainant demanded a new vehicle in exchange of the defective one sold to him..   The 2^nd opposite party also assured to take up the matter with the 1^st opposite party.     However he did not receive any response from the opposite parties.    Fearing for life and personal safety the complainant has refrained from using the defective vehicle and issued a legal notice to the opposite parties dated 23^rd June 2015 to refund a sum of Rs.66,210/- paid towards cost of the vehicle.    Inspite of receipt of legal notice the opposite parties did not send any reply.    On the other hand the representative contacted the complainant over phone on 15^th July 2015 and asked the complainant to give the vehicle for one more service.  The complainant had recorded the said telephonic conversation.

3.     Thus the complainant had sold a defective vehicle and he has been put to enormous misery and agony.     The 2^nd and 3^rd opposite parties ought to have disclosed the manufacturing defect in the beginning itself.  But they caused injury to him and as such they are liable for the grave deficiency in service and unfair trade practice.   Besides financial loss suffered in purchasing the defective vehicle he also suffered mental torture  and pain.   Despite having given sufficient opportunity to rectify the defects none of the opposite parties attempted to do so.   Hence the opposite parties are liable to compensate the complainant for having sold the defective vehicle and also for the mental agony caused to him.   Hence the complaint is filed.    

4.     Inspite of receipt of notice the opposite parties did not appear before this forum and therefore they were set exparte.

5.     Though the opposite parties remained expate this  Forum wants to dispose this compliant fully on merits with available materials before this forum. 

6.     In such circumstances,  in order to prove the allegation made in the complaint the proof affidavit is filed by the complainant as his evidence, and also Ex.A1 to Ex.A9  are marked. 

7.      At this juncture the point for consideration before this Forum is:

1. Whether there is any deficiency of service on the part of the opposite     parties as alleged in the complaint?.

 

2. Whether the complainant is entitled for refund of the cost of the vehicle?

 

3. To what other reliefs, the complainant is entitled for?

8.      POINTS :1 & 2   

           The facts of the case reveals that the complainant had purchased a Two wheeler Hero Honda Motor cycle manufactured by the 1^st opposite party from the 2^nd opposite party after paying a sum of Rs.66,210/- for which the complainant has filed the booking receipts issued by the 2^nd opposite party which is marked as Ex.A1 and Ex.A2 and the vehicle was delivered to him on 29^th January 2015.  He was also provided manufacturing warranty  for a period  of six years from the date of purchase on payment of Rs.635/- which is marked as Ex.A3.  

9.     The grievance of the complainant is that on 3^rd February 2015 when he was riding the said two wheeler in G.S.T. Tambaram he heard some rattling sound from the vehicle at the time of changing gears and engine stopped suddenly in the middle of the road and he was put to tremendous and threat to his personal safety and he also noticed leakage of oil from the engine.   The complainant immediately taken the vehicle to the 3^rd opposite party who is an agent of the 1^st opposite party who took the vehicle for service and later informed that there was a defect in the clutch lever and clutch bell of the vehicle which lead to the problem  and same has been rectified.    

10.    Despite the service again during the last week of March 2015 the complainant faced the same problem and taken the vehicle to the 2^nd opposite party who failed to complete the service within the reasonable time and made the complainant to run from pillar to post, after one week he informed to take delivery of the vehicle but failed to issue the job sheet.  Again during the 2^nd week of April 2015 just two days after the service done by the 2^nd opposite party the complainant faced the same problem and again he met the service engineer of the 2^nd opposite party who once again retained the vehicle for one week and delivered to him but again failed to issue the job sheet.   Thereafter within few days of taking delivery of the vehicle the complainant again faced the same problem.   Therefore again he approached the 2^nd opposite party  who informed to leave  the vehicle for four days for being checked up by the Service Engineer of the 1^st opposite party. 

11.    After a period of one week, the 2^nd opposite party delivered the vehicle after service vide job cord No.2890.   Again after two weeks the same problem continued without an end for which the 2^nd opposite party informed to leave the vehicle for service.    The complainant was shocked and demanded a new vehicle in exchange of defective one sold to him but there was no response even after receipt of legal notice issued to the opposite parties which are marked as Ex.A6 to Ex.A9.    Hence the complainant attributed allegations against the opposite parties for having sold the defective vehicle and for deficiency in service and claimed for  refund of the cost of the vehicle with compensation.

12.    In order to prove the allegations attributed against the opposite parties the complainant had evidenced in his proof affidavit.    From the evidence of the complainant it reveals that  within three days after taken delivery of the vehicle, the vehicle stopped suddenly in the middle of the road with heavy noise with leakage of oil and when the complainant left the vehicle for service with the 3^rd opposite party he informed that there is defect in clutch lever and clutch bell which lead to the said problem.      It is also found that immediately after that nearly four times he faced the same problem and every time he left the vehicle for service with the 2^nd and 3^rd opposite parties but the problem was not rectified and continued to exist.  As such on the face of it, it reveals that there is possibility of some mechanical problem in the said vehicle which could not be rectified.   It is also seen that within a short period of purchase, the vehicle had undergone several times service still the problem was not rectified.  Moreover, Ex.A3 also reveals that there is warranty upto 23^rd January 2020.   As such the contention of the complainant that the 2^nd opposite party sold defective vehicle is also proved through the evidence of the complainant.    

13.    Furthermore, it is seen that the complainant had sent legal notice expressing his grievance for refund of the cost of the vehicle whereas the opposite parties despite of receipt of the notice failed to comply his grievance nor sent any reply.   Further it also appears that the 2^nd and 3^rd opposite parties failed to rectify the defect in the vehicle even after repeated service for a brand new bike.   As such the contention of the complainant that the 2^nd and 3^rd opposite parties have committed deficiency of service is also acceptable.     

14.    Whereas the opposite parties had not chosen to appear before this forum to rebut  the said contentions of the complainant and given any contra evidence but remained exparte.   Therefore this forum can draw adverse inference.

15.    Therefore, considering the facts and circumstances of the case, this forum, opined that repeatedly sending a new vehicle for continuous service clearly reveals that there is some mechanical fault in the  alledged vehicle.  Though the complaint mentioned vehicle has been sent to 2^nd and 3^rd opposite parties service station several times, the problem in the vehicle was not rectified and it is clear that there is possibility of some mechanic defect in the vehicle and therefore the opposite parties had sold a defective vehicle to the complainant and thereby committed deficiency in service.   It also appears that even after demand made by the complainant to replace the vehicle the 1^st opposite party never made any effort to comply his grievance.   Keeping in view all the facts and circumstances it is quite clear that the complainant did not enjoy the benefit of the vehicle.   Hence the complainant is entitled for refund of cost of the vehicle.  As such the opposite parties 1 & 2  are liable to refund a sum of Rs.66,210/- being the cost of the vehicle to the complainant on surrendering the said vehicle.     As such points No.1 & 2 are answered accordingly.           

16.    POINT No.3:-

          Further the contention of the complainant that due to the defect in the vehicle he was unable to use the vehicle and refrained from using the vehicle due to personal safety and also put to mental strain and monetary loss by approaching the 2^nd and 3^rd opposite parties several times to rectify the defect in the vehicle is also acceptable.    Hence we are of the considered view that  the opposite parties 1 to 3 are jointly and severally liable to compensate the complainant for causing mental agony and hardship for which they are liable to pay a sum of Rs.10,000/- as compensation with cost of Rs.5,000/- to the complainant.   However the compensation claimed by the complainant is exorbitant and he is entitled only for just and reasonable compensation.    Thus the point No.3 is answered accordingly. 

In the result the complaint is allowed in part.  Accordingly the opposite parties 1 & 2 are jointly and severally   directed    to refund a sum of Rs.66,210/- (Rupees Sixty six thousand     two   hundred   and   ten only)   towards  cost  of  the  complaint mentioned  vehicle  bearing   No.TN 11 L 0151 on surrendering the said vehicle by the complainant.  The opposite parties 1 to 3 are also jointly and severally directed to pay a sum of Rs.10,000/-  (Rupees ten thousand only) as compensation towards mental agony and hardship due to deficiency in service on their part and also to pay a sum of Rs.5,000/- (Rupees Five thousand only) towards the cost of the complaint to the complainant.

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

              Dictated by the Member-I to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-I and pronounced by us in the open Forum on this the  5^th  day  of  January  2017.

 

MEMBER-I                                                                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 23.1.2015  - Copy of vehicle booking receipt issued by the 2^nd opposite

                             Party.

Ex.A2- 23.1.2015  - Copy of vehicle booking receipt issued by the 2^nd opposite

                             Party.

Ex.A3- 29.1.2015  - Copy of Extended warranty registration form.

Ex.A4- 2.2.2015    - Copy of Form of certificate of registration.

Ex.A5- 27.2.2015  - Copy of receipt issued by the 3^rd opposite party.

Ex.A6- 23.6.2015  - Copy of legal notice issued by the complainant.

Ex.A7- 25.6.2015  - Copy of Acknowledgment card of the 1^st opposite party.

Ex.A8-         -       - Copy of Ack. card of the 2^nd opposite party.

Ex.A9- 25.6.2015  - Copy of Ack. card of the 3^rd opposite party.

 

 

Opposite parties’ side documents:   .. Nil.

 

MEMBER-I                                                                   PRESIDENT.