Kerala

Idukki

CC/52/2019

Arjun s - Complainant(s)

Versus

Muthoot Honda - Opp.Party(s)

22 Feb 2023

ORDER

DATE OF FILING : 6.3.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  22^nd  day of February,  2023

Present :

SRI. C. SURESHKUMAR                   PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.52/2019

Between

Complainant                                            :    Arjun S.,

                                                                   Alappattu House,

                                                                   Olamattam, Thodupuzha P.O.

         (By Adv: K.M. Sanu)

And

Opposite Parties                                     : 1. The Manager,

                                                                   Muthoot Honda,

                                                                   Vengalloor P.O., Thodupuzha.

                                                                 2. The Manager,

           Muthoot Motors,

          35/177A, near KSEB Office,

          Palarivattam P.O.,

          Kochi – 682 025.

      3. The Manager,

                                                                    Muthoot Honda,

                                                                   Jawaharlal Nehru Stadium,

                                                                   Kaloor, Ernakulam.

 (All by Adv: Gem Korason)

                                                                 4. The Managing Director,

                                                                   Honda Motor Cycle & Scooter India Ltd.,

                                                                   Commercial Complex II Sector 49250,

                                                                   Golf Course Extension Road,

                                                                   Gurgaon, Hariyana – 122 018.

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1.  This is a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Complaint averments are briefly discussed hereunder :

 

          Complainant had purchased a Honda CVR 250 Motorcycle bearing Reg. No.KL-38G-8553, on 19.10.2018, after paying Rs.1,97,320/- towards its price, inclusive of insurance and tax, from 1^st opposite party, namely, manager of  Thodupuzha branch of Muthoot Honda.  2^nd opposite party is manager of Palarivattam branch of M/s Muthoot                                                                                                        (cont....2)

• 2  -

Motors. 3^rd opposite party is manager of Kaloor branch of Muthoot Honda and 4^thopposite party is Managing Director of Honda Motorcycle and Scooters India Ltd. company.  Complainant was made to believe that the motorcycle was good for long distance riding and of good quality. That it had a mileage of 35 km / litre  and comes with a warranty of 32000 km or 2 years.  Vehicle had presently run 8100 km and is being serviced by opposite parties.  However, motorcycle has shown signs of defect in manufacture from the date of purchase itself.  Its engine had stalled when the complainant had taken the motorcycle after delivery, while applying clutch and also while shifting from 3^rd to 2^nd gear. This had happened repeatedly and on all occasions, opposite parties had kept the motorcycle with them for 3 and 4 days and returned after assuring the complainant that the problem will not re-occur.  However, this problem is still persisting and could not be solved by opposite parties.  Apart from this, vehicle comes with factory fitted alloys.  It was first bent/damaged on 25.11.2018, while traversing a small gutter near to Hill Palace in Thiruvankulam – Thripunithura public road.  Opposite parties had replaced the same with a new one after charging Rs.5256/-.  Within one month, again the front alloy wheel was damaged and this time it was replaced upon payment of Rs.4962/-.  The fact that alloy wheel gets bent even while traversing a small depression shows that it has manufacturing defects.  Opposite parties were bound to replace the same without costs as the damage was caused during  warranty period.  However, upon instructions by opposite parties, complainant had made a claim for replacement of alloy wheels for insurance amount.  Due to this, he had lost the privilege of no accident claim and has to pay higher premium during successive years upon renewal.  Complainant is facing difficulties while riding the motorcycle through busy roads as engine used to stall as mentioned earlier.  Similarly, he cannot ride the motorcycle confidently in fear of breaking or bending alloy wheels through public roads, which are having small depressions or gutters.  On all occasions  vehicle was taken to workshop of opposite parties in pick-up vehicles.  Complainant alleges that motorcycle is of inferior quality.  It has manufacturing defects.  Sale of a defective vehicle after concealing its defects amounts to deficiency in service and unfair trade practice.  Complainant therefore prays for a direction against opposite parties to replace the motorcycle with a new one, in the alternate to reimburse the price of motorcycle to him.  He also seeks  compensation of Rs.50,000/- and litigation costs of Rs.10,000/-.

 

          2.  Notice to opposite parties 1 to 4 were served. OP 4 was set exparte. Opposite parties 1 to 3 have filed a joint written version.  Their contentions are briefly discussed hereunder :

 

          According to opposite parties 1 to 3, complaint is not maintainable in law or upon facts.  It is true that complainant had purchased a motorcycle from 1^st opposite party and it is also true that the vehicle is having 2 years or 32000 km whichever is earlier, warranty.  It is incorrect to say that the motorcycle was not promptly serviced.  It is also incorrect to say that the motorcycle is of inferior quality and has manufacturing defects.                                                                                                    (cont....3)

• 3  -

As per the terms and conditions of warranty, no warranty will be provided for items damaged in accident.  It is incorrect to say that the vehicle was damaged in an alleged accident on 25.11.2018. Contentions that opposite parties are liable to repair the alloy wheels free of cost as the accident took place while warranty was in force is also not substantive.  No warranty is provided for damages arising out of accidents.  In case of accident, opposite parties advise customers to claim insurance as it is in their best interests.  This is a normal procedure and there is no irregularity in advising complainant to claim insurance for the damages occasioned in the accident.  Further contentions that the vehicle used to stall while plying through town area and that this caused inconvenience to complainant are false and denied.  Motorcycle has no such complaint.  It may be that the complainant may not have properly learnt the manner in which the motorcycle is to be plied through busy or town area.  Opposite parties are providing best service for customers and contentions to the contrary are false.  All the details of motorcycle are mentioned in its brochure.  Those were also informed to complainant at the time of purchase.  After fully satisfying himself with regard to the components and quality of motorcycle, complainant had purchased it.  This motorcycle is a successive product of Honda Company.  Its performance is better than what is claimed by company.  Averments to the contra are baseless.  There is no deficiency in service or unfair trade practice.  Complaint is filed only to make unlawful gains.  There is no cause of action against opposite parties. Complainant is not entitled for the reliefs prayed for.  Complaint is to be dismissed with costs.

 

          3.  In the course of proceedings, upon application by complainant, Assistant Motor Vehicle Inspector of Sub RTO, Thodupuzha was appointed as expert to examine the motorcycle and to report about its built quality and roadworthiness.  Expert had, after carrying out inspection in the presence of complainant and opposite parties on 27.3.2019, filed a report, which is admitted as Ext.C1(a).  Thereafter case was posted for evidence.  On the side of complainant, no oral evidence was tendered.  Exts.P1 to P5 and Ext.C1(a) were marked.  On the side of opposite parties, Assistant Service Manager of Honda company was examined as RW1.  After examination of RW1, service history of vehicle was produced by opposite parties.  It was marked as Ext.R1.  However, there was no application from the side of complainant to re-open evidence and to cross examine RW1, on the basis of Ext.R1.  Evidence was  closed and both sides were heard.  Now the point which arise for consideration are :

1)  Whether the motorcycle  has any manufacturing defect ?

2)  Whether there was any deficiency in service on the part of opposite parties ?

3)  Whether opposite parties have resorted to unfair trade practice ?

4)  Whether complainant is entitled for any of the reliefs claimed in the complaint ?

5)  Final order and costs ?

 

                                                                                                          (cont....4)

 

 

- 4  -

4.  Point Nos.1 to 4 are considered together :

 

          Learned counsel appearing for complainant would contend that Exts.P3, P4 and P5 are sufficient evidence of the fact that the vehicle has manufacturing defects.  Ext.P3 would go to show that 2 job cards were created with regard to complaint of engine stalling.  This problem had not yet been resolved.  Ext.P4 are 2 bills with regard to replacement of damaged alloy wheels.  Complainant has pleaded that alloy wheels were damaged while negotiating road with small depressions  and this pleading is supported by Ext.P4 and further from the evidence of RW1 himself.  Admittedly, alloy wheels were changed twice.  Both incident had transpired  while the warranty was live.  That being so, opposite parties were bound to replace alloy wheels on both occasions under cover of warranty, free of cost.  Instead they had insisted that the complainant should claim insurance for the wheels.  Acting upon their instructions, complainant had preferred insurance claim, owing to which he had lost no claim bonus and had to pay higher rate of premium during annual renewal.  These acts would constitute deficiency in service as mentioned above  and would also prove that vehicle has manufacturing defects.

 

          Learned counsel appearing for opposite parties 1 to 3 would contend that in Ext.C1(a), there is specific observation that the vehicle had no problem of engine stalling while it was testridden by  expert.  As far as replacement of alloy wheels are concerned, warranty does not cover damages arising out of accidents.  Though opposite parties have advised the complainant to claim insurance for damages arising out of accident, they have not forced the complainant to make insurance claim for the same.  This was done purely upon free will and volition of complainant.  During cross examination RW1 has given evidence that the vehicle  had run 50000 km presently.  Hence it cannot be said that complainant had succeeded in proving that vehicle has manufacturing defects.  Moreover, pleadings of complainant himself is to the effect that  alleged instances of engine stalling vehicle were attended to by service personnel of 1^st opposite party.  He has no case that the vehicle was not serviced as such.  Therefore, there is no deficiency in service either.  Complainant, hence, is not entitled for any of the reliefs claimed against opposite party.

 

          Thus, these are the rival contentions.  We have gone through the pleadings and evidence on record.  As rightly pointed out by learned counsel for opposite parties in Ext.C1(a) report, expert has stated that at the time of inspection, odometer reading of the vehicle was 9086 km.  That the expert has conducted test drive of the vehicle for 10 km.  He has not noticed any instances of engine misfiring or malfunctioning, while gears were shifted to 2^nd and 3^rd positions.  That being so, we are of the view that initial 2 instances specifically mentioned in the complaint could be also due to human factor or petty troubles which surface during run-in-period of the vehicle.  We notice that complainant has not entered  the box to give evidence in this case.  There are no                                                                                                                   (cont.....5)

• 5  -

pleadings in the complaint to the effect that complainant had used  motorcycle of the same make and quality at any point of time before purchasing the bike in question.  In other words, he has no case that he was familiar with plying motorcycles of the same make from the same manufacturer.  That being so, there is possibility of the complainant making mistakes in riding motorcycle while shifting gears.  Engine stalling therefore can be also due to human error owing to lack of familiarity.  It could be also for the reason that the vehicle was in run-in-period.  It takes a while for the engine to get smooth by consistent and proper riding.  As pointed out by the learned counsel for opposite parties 1 to 3, complainant has brought out during cross examination of RW1 that the vehicle has run 50000 km.  Hence we do not think that  engine stalling, if any,  experienced by complainant is due to manufacturing defect as such. It was also brought out that bike was being serviced and attended to on all occasions it was brought for repairs or servicing.  Though the complainant claims that the problem still persists, specific instances with regard to the same are only the two  instances mentioned in the complaint. Our discussions regarding those instances are given above. Hence the case projected that there is still problem of engine stalling is not at all convincing.  More so, when  expert has reported that he has not noticed any such instances after test riding it for 10 km.

 

          Coming to the question of alloy wheels, admittedly, damage was occasioned even according to complainant when he had to traversed to a small depression in the road.  He has specifically mentioned 2 instances, one was on 25.11.2018.  He would say within 1 month, the same wheel was damaged again.  However, he does not say or gives details of the 2^nd incident.  On both occasions, complainant was charged for replacement.  These 2 instances of replacement are admitted by RW1.  These are borne out from Ext.P4 series of bills and Ext.R1.  However, complainant has made insurance claims with regard to both instances.  Insurance claim will be honoured only if the damage was occasioned in an accident and not due to any mechanical defect or normal wear and tear.  Complainant has not produced details regarding  the two claims made to insurance company.  He has not entered the box also. Preferring  insurance on both occasions, and honouring of both claims, probablies  that both instances were of accident.  Therefore, we do not think that the complainant can claim replacement free of cost as accidental damage is not covered by  warranty. 

 

          As rightly pointed out by learned counsel for opposite parties 1 to 3 and as borne out from evidence tendered during cross examination, complaints raised by complainant with regard to repairs and replacement were attended to by service personnel of opposite parties.  Therefore, we do not notice any deficiency in service on that count either.  To sum up, complainant has not succeeded in proving that there was deficiency in service or unfair trade practice from the side of opposite parties.  He has also not succeeded in proving that the vehicle was having any manufacturing defect.  Therefore, we find that complainant is not entitled for reliefs claimed in the complaint.  Point Nos.1 to 4 are answered accordingly.                                                                 (cont....6)                  

- 6  -

5.  Point No.5 :

 

          In view of our discussions held in foregoing paragraphs, we find  that  this complaint is only to be dismissed. Accordingly, complaint is dismissed, under the circumstances, without costs.

 

                    Pronounced by this Commission on this the   22^nd  day of February, 2023

 

                                                                                      Sd/-

SRI. C. SURESHKUMAR, PRESIDENT

                             Sd/-

SMT. ASAMOL P., MEMBER

                        Sd/-

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

 

Depositions :

On the side of the Complainant :

Nil.

On the side of the Opposite Party :

DW1      -  Savyasachi Prathap

Exhibits :

On the side of the Complainant :

Ext.P1    -   Copy of RC Book.

Ext.P2    -   Copy of warranty policy.

Ext.P3    -   Customer’s copy of gate pass of Muthoot Honda, Kaloor, Ernakulam.

Ext.P4    -   Copy of tax invoice dated 28.11.2018.

Ext.P5    -  Copy of e-mail communication by complainant to opposite party.

Ext.C1(a)  -  Commission report dated 2.4.2019

On the side of the Opposite Party :

Ext.R1    -  Copy of vehicle service history.

 

 

                                                                             Forwarded by Order,

 

 

 

                                                                        ASSISTANT REGISTRAR