Complaint filed on: 19.11.2016
Complaint Disposed on: 21.12.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.107/2016
DATED THIS THE 21st DAY OF DECEMBER 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT/S:
Smt Sumaya Bhanu,
W/o Nazeer, A/a 27 years,
Proprietor of KA-18-ED-7068,
Santhe Market Road,
A.K.Colony, Chikmagalur town.
(By Sri/Smt. Manjula Karlekar, Advocate)
V/s
OPPONENT/S:
1. M/s Nayana Hero,
Vehicle showroom,
Mallandur Road,
Chikmagalur.
Rep. by Proprietor.
2. Hero MotoCorp Ltd.,
Registered officer No.34,
Community centre,
Vasantha Loka,
Vasantha Vihara,
New Delhi-110057.
(OP - By Sri/Smt. H.P.Vishwanatha, Advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP 1 & 2 alleging unfair trade practice in selling a defective vehicle to the complainant. Hence, prays for direction against Op 1 and 2 to replace the said defective vehicle with a new one along with Rs.40,000/- spent for repairs and compensation for unfair trade practice in the interest of justice and equity.
2. The brief facts of the complaint is that:
The complainant had purchased Hero Duet VX two wheeler from Op 1 by paying Rs.47,405/- on 27.04.2016. The complainant had availed financial assistance from Hero FinCorp Limited for purchase of the said vehicle and also insured with National Insurance Company on the date of purchase of the vehicle. Afterwards she registered the said vehicle into her name vide registration No.KA-18-ED-9068.
Complainant after purchase of the said vehicle was regular in paying the installments and after purchase of the said vehicle complainant noticed that there is a manufacturing defect in the vehicle and vehicle is giving low mileage against the assured mileage given by Op 1 and 2. When she complained with respect to the low mileage, Op 1 assured that the mileage will be increased after first service. Even the complainant also informed the Op 1 with respect to the high sound from the engine during running. For which Op 1 assured that the said low mileage and high sound will be solved and rectified after first service. But even after first service also the said defects were not removed and complainant suffered in-convenience due to this manufacturing defects. On each service the complainant repeatedly complained with respect to the low mileage and high sound in the engine, but Op 1 has not at all rectified the defects found in the vehicle. The Op 1 has taken nearly 20 times for repair of the vehicle, but the problems persisted in the vehicle. Hence, Op 1 and 2 have sold a defective vehicle to the complainant.
Inspite of repeated complaints and requests made by complainant Op 1 and 2 failed to solve the problems found in the vehicle. Subsequently, complainant issued a legal notice and called upon the Op 1 and 2 to replace the said defective vehicle with a new one, even inspite of service of notice Op 1 and 2 have not complied, instead of that Op 1 replied untenably and avoid to replace the vehicle. Hence, Op 1 and 2 rendered unfair trade practice in selling defective vehicle to the complainant and prays for direction against Op 1 and 2 to replace the said defective vehicle along with refund of an amount of Rs.40,000/- which was paid towards repair of the vehicle and compensation for unfair trade practice as prayed above.
3. After service of notice Op 1 and 2 appeared through their counsel and filed version.
4. Op 1 in his version has contended that, they have sold the vehicle Hero Duet to the complainant on 27.04.2016 and complainant had paid an amount of Rs.47,405/- to this Op. But it is false to state that there is a manufacturing defect in the vehicle. During every service this Op have inspected the scooter through Service Engineer and duly serviced for its normal usage and noticed there is no any defects in the vehicle of the complainant. The complainant has taken nearly three services from this Op under normal course of usage and there is no complaint in the vehicle. In fact after receipt of the legal notice this Op called the complainant to bring the scooter for service/repair, but complainant did not brought the scooter for service.
The problem of low mileage may be due to improper usage and poor maintenance of the scooter. The complainant has not got the scooter regularly for service as per the recommended service. Anyhow, on 16.06.2016 the complainant brought the scooter for service, this Op has inspected the same and duly serviced the scooter for normal usage, on that day itself the complainant has endorsed that there is no any complaints in the scooter, she was satisfied with the service provided by them. Further on 29.06.2016 the scooter was again attended by this Op and that day the complainant has endorsed that she satisfied with the service provided by them. There is no any manufacturing defect found in the vehicle as alleged by complainant and there is no any unfair trade practice on the part of this Op. There is also no cause of auction arose in the complaint. Hence, prays for dismissal of the complaint.
5. Op 2 had re-iterated the version of the Op 1 and submits no unfair trade practice on the part of them and prays for dismissal of the complaint.
6. Complainant filed affidavit and marked documents as Ex.P.1 to Ex.P.5. Op 1 and 2 also filed affidavit and marked documents as Ex.R.1 to Ex.R.5.
7. Heard the arguments.
8. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is unfair trade practice on the part of OPs?
- Whether complainant entitled for any relief & what Order?
9. Our findings on the above points are as follows:-
- Point No.1: Negative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
10. On going through the pleadings, affidavits and documents produced by both complainant and Op 1 and 2, there is no dispute that complainant had purchased one Hero Duet VX two wheeler bearing registration No.KA-18-ED-9068 from Op 1 by paying an amount of Rs.47,405/-. There is also no dispute that the complainant had serviced the vehicle from Op 1 for nearly 3 to 4 times. The only allegation made by complainant is that the vehicle sold by Op 1 and 2 is giving low mileage and emitting high sound in the engine. Hence, alleges manufacturing defect in the vehicle and prays for replacement of the vehicle with a new one.
For which Op 1 and 2 have contended that they have provided regular service to the vehicle and there is no any manufacturing defect in the vehicle. The low mileage may be due to improper maintenance and usage of the vehicle on the part of complainant. Hence, submits they are not liable to replace the vehicle.
11. Complainant has produced copy of the R.C. marked as Ex.P.1, Office copy of the legal notice marked as Ex.P.2, Acknowledgment due marked as Ex.P.3, Reply noticed issued by Op 1 marked as Ex.P.4 and 2 photos of the vehicle bearing registration No.KA-18-ED-9608 in support of her claim.
Op 1 and 2 also filed list with documents and marked job card dated:03.06.2016 marked as Ex.R.2, Another job card dated:16.06.2016 marked as Ex.R.3, Job card dated:03.09.2016 marked as Ex.R.4, Customer satisfaction letter duly signed by complainant dated:24.06.2016 marked as Ex.R.5 in support of their defense.
12. On going through the documents produced by both complainant and Ops we noticed that, complainant had not produced any materials to show that the said vehicle has a manufacturing defect. The complainant in her affidavit has sworn that, the vehicle is giving low mileage, even after three services, but the said complaint is not a manufacturing defect of the vehicle. The mileage of the vehicle depends upon the fuel used and type of maintenance. Even the complainant has not made any effort to appoint to inspect the vehicle to notice whether there is a manufacturing defect in the vehicle. On the other hand, in the job cards produced by Op 1 that is Ex.R.2 to Ex.R.4. We noticed there is no complaint given by complainant with respect to the manufacturing defect of the vehicle. She has given a complaint only with respect to the low mileage and high sound in the engine. The said problems are not amounts to manufacturing defect. Hence, the complainant failed to establish there is a manufacturing defect in the vehicle sold by Op 1 and 2. Apart from that the documents produced by Op 1 and 2 clearly disclosed that there is no any manufacturing defect in the vehicle. Hence, they are not liable to pay any claim made by complainant and complaint is liable to be dismissed. As such for the above said reasons, we answer the above point no.1 and 2 in the Negative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is hereby dismissed. No order as to costs.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 21st day of December 2017).
(B.U.GEETHA) (H. MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the complainant/S:
Ex.P.1 - Copy of R.C..
Ex.P.2 - Office copy of legal notice.
Ex.P.3 - Postal Ack. due.
Ex.P.4 - Reply to legal notice.
Ex.P.5 - 2 photos of vehicle.
Documents produced on behalf of the OP/S:
Ex.R.1 - Authorization leter.
Ex.R.2 to 4 - 3 jobcards.
Ex.R.5 - Satisfaction letter.
Dated:21.12.2017 President
District Consumer Forum,
Chikmagalur.
RMA
