Tamil Nadu
South Chennai
CC/23/2017
Malathi.B - Complainant(s)
Versus
P.Venkatesh, M/s.Kun Motor Cycles Pvt Ltd - Opp.Party(s)
Venkatraman
29 Aug 2022
ORDER
Date of Complaint Filed : 05.01.2017
Date of Reservation : 29.07.2022
Date of Order : 29.08.2022
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
CHENNAI (SOUTH), CHENNAI-3.
PRESENT: TMT. B. JIJAA, M.L., : PRESIDENT
THIRU. T.R. SIVAKUMHAR, B.A., B.L., : MEMBER I
THIRU. S. NANDAGOPALAN., B.Sc., MBA., : MEMBER II
CONSUMER COMPLAINT No. 23/2017
MONDAY, THE 29th DAY OF AUGUST 2022
Malathi, B,
W/o.Balasubramanian, K,
No.58/1, P.N.K. Garden,
5th Street, Mylapore,
Chennai 600 004.
Presently residing at:
Block No.C-5, Flat No.97,
Todhunter Nagar,
Saidapet,
Chennai 600 015. ... Complainant
..Vs..
1. Thiru P.Venkatesh,
Manager-Sales,
KUN Motor Cycles Pvt Ltd.
No. 33, 1st Main Road,
Kasturiba Nagar,
Adyar,
Chennai 600 020.
2.The Authorised Signatory,
M/s. KUN Motor Cycles Pvt Ltd.
No. 33, 1st Main Road,
Kasturiba Nagar,
Adyar, Chennai 600 020
3.The Authorised Signatory,
M/s.Honda Motorcycle & Scooter India Pvt. Ltd.
Commercial Complex II, Sector: 49-50,
Golf Course Extension Road,
Gurgaon, Haryana (122018) India.
(Customerare@honda2wheelersindia.com)
4.M/s.Shriram City Finance,
Shriram City Union Finance Ltd.,
No.221, Royapettah High Road,
Chennai. ... Opposite Parties
******
Counsel for the Complainant : M/s. Shaji Paul
Counsel for the 1 to 3 Opposite Parties : M/s. C.T. Prabhakar
Counsel for the 4th Opposite Party : Exparte
On perusal of records and on endorsement made by the Complainant and the Opposite Parties 1 and 2 to treat the written arguments as oral arguments, we delivered the following:
ORDER
Pronounced by Member-I, Thiru. T.R. Sivakumhar, B.A., B.L.,
1. The Complainant has filed this complaint as against the Opposite Party under section 12 of the Consumer Protection Act, 1986 and prays to refund the amount paid by the Complainant a sum of Rs.26,261/- being the amount paid by the Complainant and directing the Opposite Party No.4 to refund the amount so far recovered by way of EMIs and to cancel the agreement entered into by the Complainant and to pay a sum of Rs.5,00,000/- towards compensation for loss and mental agony along with costs.
2. The averments of Complaint in brief are as follows:-
The Complainant had purchased a two-wheeler, viz., Honda Activa (110 cc-3G) from the 2nd Opposite Party. She booked the vehicle on 15.10.2016 and paid a sum of Rs.23,003/- being the initial payment and agreed to pay the balance amount in installments by availing the finance offered by the 4th Opposite Party. She was not permitted to take the assistance of a Mechanic to select the vehicle and the vehicle was supplied at the choice of the Opposite Parties. She took delivery of the vehicle [TN-06-5-3178] on 21.10.2016. On that day itself, on her way home, the vehicle gave trouble and it suddenly went off. Then, she took the vehicle to the showroom, the 2nd Opposite Party where she contacted the Sales Manager, the 1st Opposite Party who gave evasive reply. But, somehow she managed to get the vehicle ready and took it home. On the next day, when she was going to drop her children at school, the vehicle gave problem and it again suddenly went off. It caused inconvenience to her apart from tension and mental agony, as she had to drop the children at school on time. Then, along with her husband Mr.Balasubramanian, she visited the showroom and again contacted the Sales Manager, the 1st Opposite Party who was reluctant to attend her case. However, with the help of other persons available in the showroom, she managed to get the vehicle set right. The problem persisted and the vehicle went off often on several days, when she was on urgent work causing the Complainant great hardship. The Service Engineer attached to the 2nd Opposite Party showroom, inspected the vehicle and went on test-drive who did also find that the vehicle was not properly running and it went off often, due to some latent manufacturing and mechanical defects. She requested the 1st Opposite Party to reply and in replace the vehicle as it appears that the vehicle is suffering from later manufacturing and mechanical defects. For that, the 1st Opposite Party did give no responsive reply, and on the other hand, the 1st Opposite Party gave evasive reply and went to the level of blaming the petrol bunk stating that the petrol in the vehicle got mixed up with water. But, the vehicle was giving trouble from the day one, when the vehicle was running with the petrol provided by the Opposite Party Showroom and hence, the reply made by the 1st Opposite Party that the petrol got mixed up with water is baseless. Thereafter, she handed over the vehicle to the showroom to get it ready and at that time, she was given a spare vehicle to use the same in the meantime, which the Complainant returned after using it for one day. The vehicle purchased by her is still in the showroom and she has have not taken it back. She apprehends that the vehicle will not run in the normal road condition and hence, she has no alternative, but to seek replacement of the vehicle. She was fed up as the vehicle was giving troubles at crucial times causing tension, mental agony and hardship. When approached, the Opposite Parties did not give responsible reply and in fact, they did not consider the Complainant as a consumer. The way in which the 1st Opposite Party behaved with the Complainant is unprofessional and unethical. The way in which the Opposite Parties dealt with the matter would amount to "deficiency of service" and "unfair trade practice". She has approached the 4th Opposite Party, Shriram City Finance, with a request to stop to recover EMIS from her salary, as she is not able to get the vehicle for which the loan has been extended. But, the 4th Opposite Party has started recovering the loan amount by way of debiting EMIS from her bank account. She is also suffering monetary loss, apart from mental agony and hardship as she is paying the EMIs without getting the vehicle for which the loan has been obtained. Even though the 4th Opposite Party has nothing to do with the replacement of the vehicle, since the vehicle has been bought by availing loan and the 4th Opposite Party has started recovery of the loan amount, it is shown as 4th Opposite Party. The Complainant further states that the Opposite Parties have received a sum of Rs.63,192/- towards the total cost of the vehicle. Out of the said amount, the Complainant has paid initial payment of Rs.23,003/- (Rs.20000/- on 15.10.2016, Rs.2303/- on 18.10.2016 and Rs.700/- on 21.10.2016). The balance amount was paid by Shriram Finance. Apart from that, the Complainant has paid fittings charges of Rs.1908/- and RTO charges of Rs.1350/-. Thus, the Opposite Party Nos.1 to 3 have received the entire vehicle cost, but however, made the Complainant to pay EMIS, which is inclusive of interest, for the loan availed for the purchase of the vehicle and made her to pay interest for no fault of her. She and her husband visited the office of the Opposite Parties several times either for replacement of the vehicle or for retum or the amount paid. They were assured by the Opposite Parties that they would settle the issue amicably and they dragged on the matter and finally the Opposite Parties said last week that the Complainant should take back the vehicle "as is where is" condition and they would not refund the money paid or replace the vehicle. The action on the part of the Opposite Parties would cause mental agony and hardship, apart from monetary loss. The Complainant therefore caused notice on 04-11-2016 calling upon the Opposite Parties to (1) replace the vehicle (Honda Active 110 cc 3G) as it suffers from manufacturing defects from the date of purchase itself as explained above (or) return the price/charges paid by cancelling the agreement with M/s.Shriram City Finance and (2) to pay a sum of Rs.2,00,000/- towards compensation for the hardship, tension and mental agony suffered by the Complainant. For that, the Opposite Parties have not sent any reply. Further, the 2nd Opposite Party Manager sent a letter dated 1.12.2016 (received on 29.12.2016) stating that there is no problem in the vehicle and requesting me to take delivery of the vehicle. But, the Complainant apprehends that the vehicle will not run properly as it suffers from mechanical and manufacturing defects and even after several attempts of repairs made by the Service Engineers attached to the 2nd Opposite Party, the problem persists. There is a deficiency of service in the manner of performance by the Opposite Parties and that unfair trade practice is adopted by the Opposite Parties and as such there is a consumer dispute between the Complainant and the Opposite Parties. Hence the complaint.
3. Written Version filed by the 2nd Opposite Party and adopted by the 1st Opposite Party in brief is as follows:-
The Complainant purchased a Scooter bearing Registration No. TN-06-S-3178 on 21.10.2016, by paying the initial payment of Rs.23,003/- and availed vehicle loan from the 4th opposite party and paid the balance and bought the vehicle and registered in her name on 21.10.2016. The Service Engineer attached to the show room found nothing wrong with the vehicle when the Complainant reported that the vehicle is "going off" often. They presumed based on the manner in which the Complainant Mrs.Malathi B. was riding the vehicle, that she is not well versed in operating the 110 CC Honda Activa. They also know that the reason for the vehicle switching off while driving in certain cases is due to the probably adulterated petrol or mixing of water particles in the petrol that is filled in the vehicle along with the petrol. When they requested the Complainant to allow them to remove the probable adulterated or mixed up petrol from the vehicle, she did not accept and took the vehicle with her and again when she turned up with the same complaint the vehicle was took for check up by the 2nd Opposite Party and the spare vehicle was also given to her. Thereafter the vehicle was checked and when no defect was on, serviced and the Complainant was called upon to take the vehicle. Though she saw the vehicle and tested the vehicle in good condition did not take back the vehicle for the reasons best known to her and not revealed to the 2nd Opposite Party. The Complainant was made known that even the Honda Motor Cycle company by its Special Service Person who came down and checked the vehicle gave a finding that the Complainant's vehicle is in good condition. Despite all the efforts taken by them, she adamantly did not accept the vehicle which is not having any defect as alleged by her. The Complainant had left the vehicle to the Opposite Party which is being in the Opposite parties premises for which the Complainant is liable to pay the parking charges as per the opposite parties rules and conventions. Periodically they have been writing letters to the Complainant to come and take back the vehicle for which there is no response from the Complainant. The husband of the Complainant only was dealing and in the letter dated 11.11.2016 sent to the Complainant it was categorically stated that the vehicle was tested by Honda Technical Team and it was also mentioned in said letter that one Mr.Rajan, Service Manager, had spoken to Mr.Balasubramanian, husband of Complainant and requires him to take delivery of the vehicle. Though the husband of the Complainant promised to revert back after having a word with Complainant did not show any response thereafter, therefore the 2 Opposite Party requested the Complainant to take delivery of the vehicle without any delay. Thereafter in December 2016, the 1st Opposite Party wrote a letter to the Complainant stating that she is liable to pay parking charges at the rate of Rs.25/- per day. Thereafter in March 2017 the 2nd Opposite Party wrote a letter to the Complainant stating that she has to pay a sum of Rs.50/- per day as parking charges from March 2017 till taking delivery. Since the complaint has not taken delivery and paid the charges, the 2nd Opposite Party reserves the right to claim the charges separately by legal procedure. Hence the complaint is to be dismissed.
4. Written Version filed by the 3rd Opposite Party in brief is as follows:-
That the Opposite Party No.3 is a wholly owned subsidiary of Honda Motor Co. Ltd Japan and is interalia manufacturing "Active 3G" a scooter and the Opposite Party No.1 is the authorized dealer of the Opposite Party No. 3 for sale of the products manufactured by Opposite Party No. 3 and giving after-sales services. The two-wheelers being manufactured by Opposite Party No. 3 are world-class two-wheelers and are being manufactured with 100% technological support from Honda Motor Co. Ltd. Japan. Honda has its operations globally with a very strong brand image and high level of quality and efficiency. Thus the products of the Opposite Party No3 are of world-class quality with a very effective and efficient after-sales service backup spread throughout the country. The authorized service centres of the Opposite Party No.3 have to meet the quality of the service standards prescribed by Opposite Party No.3 from time to time. Thus the opposite parties are always very conscious about its overall brand image and quality standards of its products. That the vehicle in question is a scooter which is being sold by the Opposite Party No.3 under the brand name "Active 3G". That the Complainant is alleging that immediately after purchase, the subject vehicle started giving trouble and the same had stopped abruptly. Matter was reported to the Opposite Party No1 but no effective action was taken to resolve the issue and problem continued till several days that caused tension, mental agony and hardship to the Complainant. Further the Complainant has also alleged that they had approached the Opposite parties several times either for replacement of the vehicle or to refund the cost price of the same but no avail. Before proceeding further it is pertinent to mention here that the allegations leveled against the answering Opposite Party No. 3 are false, frivolous and baseless inasmuch as Complainant has failed to produce any evidence in support of such allegations and has also failed to provide any expert's opinion in this regards. The allegations in the complaint are imaginary baseless and mere perceptions of the Complainant which are not supported with proper reasoning or documents. The allegations on face of it are farce, misconceived and do not call for any consideration. All allegations are based on surmises and conjectures and on concocted facts which deserves outright dismissal at the threshold by this Hon'ble forum. The Complainant has raised frivolous issues which are unwarranted and not maintainable in the eyes of law. The Complainant must be called upon to the strict proof of all allegation alleged by him with supporting evidence to that effect.
5. The Complainant submitted his Proof Affidavit and Written Arguments. On the side of the Complainant, documents Ex.A-1 to Ex.A-9 were marked. The Opposite Parties 1 to 3 submitted his Proof Affidavit and Written Arguments. On the side of the 1st and 2nd Opposite Parties documents Ex.B-1 to Ex.B-4 were marked. On the side of the 3rd Opposite Party no documents was marked.
6. The 4th Opposite Party did not appear before this Commission even after sufficient notice served on them called absent and set exparte.
Points for Consideration
1. Whether there is deficiency in service on the part of the Opposite Party?
2. Whether the Complainant is entitled for reliefs claimed?
3. To what other reliefs the Complainant is entitled to?
Point No.1:-
It is an undisputed fact the Complainant had booked Honda Activa(110CC-3G) on 15.10.2016 with the 2nd Opposite Party and taken delivery of the said vehicle on 21.10.2016 after registration bearing No.TN-06-S-3178 from the 2nd Opposite Party.
The disputed fact is that on the same day i.e., on 21.10.2016 when the Complainant took delivery, she drove the said vehicle on her way home, the vehicle gave trouble and suddenly went off, when she contacted the 1st Opposite Party being Sales Manager of 1st Opposite Party, he gave evasive reply and hence she managed to get the vehicle ready. On the next day when she took the vehicle to drop her children to school, it gave trouble and went off suddenly. Thereafter she along with her husband visited the 1st Opposite Party showroom, where the 1st Opposite Party had not responded and with the help other persons the vehicle got set right. Even on the next day the same problem persist. The service Engineer attached to the 2nd Opposite Party inspected on the test drive the vehicle was found with sme issue and the same would be of latent manufacturing and mechanical defects, hence she requested to reply to her issue or for replacement of the said vehicle. The 1st Opposite Party did not replied responsively but blamed about the petrol bunk mixing Petrol with water. Hence she handed over the said vehicle to get it ready and a spare vehicle was provided to her, which she returned after a day. The said vehicle was with the 2nd Opposite Party, she apprehends the vehicle will not run in the normal road condition and hence the only alternate is to seek replacement of the said vehicle.
The contention of the Complainant is that the said vehicle she purchased suffers with manufacturing defects which the 1st to 3rd Opposite Parties has to replace the same and the said vehicle is still lying with the 2nd Opposite Party showroom, who had not responded inspite of her repeated demands and requests, in this regard she had sent a notice dated 04.11.2016 to 1st to 3rd Opposite Parties, which was received by the 1st and 2nd Opposite Parties, the same were marked as Exs.A-6 and Ex.A-7. Further contended that the said vehicle was purchased under Finance with the 4th Opposite Party, who deducts the EMI’s, inspite of vehicle is not being used and lying with the 2nd Opposite Party’s showroom, which constrained to cause a notice to the 4th Opposite Party and the same was marked as Ex.A-8. Further contended that the 2nd Opposite Party had replied to her letter dated 04.11.2016 (Ex.A-6) on 01.12.2016.
The contention of the 1st and 2nd Opposite Parties are that when the subject vehicle was brought for issue of getting off suddenly during driving, by the Complainant and the same was inspected by their service Engineer and found normal and nothing wrong in her vehicle. Further contended the manner of driving the vehicle by the Complainant would be the cause and the reason of vehicle getting off while driving in certain cases would be of adulterated Petrol. Further contended that when they requested to allow them to remove probable adulterated petrol or mixed up petrol from the vehicle, the Complainant did not allow them to do so and took back the vehicle and turned back with same issue, for which they have taken the vehicle and provided a spare vehicle to her. Thereafter the vehicle was checked and no defects was found, though the Complainant saw and tested the vehicle in good condition, did not take the vehicle for the reasons best known to her. Further contended that they had informed the husband of the Complainant, who is dealing with the issue, that the vehicle was tested and to take delivery of the vehicle, who promised to revert back after having a word with the Complainant, had not responded. Further contended that they sent a letter to the Complainant in December 2016 and also in March 2017, to take delivery of the vehicle apart from informing that she is liable for parking charges but no response. Further contended that as a normal practice the 3rd Opposite Party mechanics are not allowed to chose the vehicles. Further contended that only on apprehension and presumption the complaint was filed and without any technical reasons attached as pertaining to it. Hence there is no deficiency of service could be alleged on their part. The 3rd Opposite Party had filed their written version alone and has not come forward to proceed with the case.
On discussion made above and considering the facts and circumstances of the case, it is clear that the Complainant had failed to establish that her vehicle purchased from the 2nd Opposite Party suffers from manufacturing defects, as it is a settled law that when a person alleges deficiency of service against anyone, has to prove the same, further it is also a settled law that in case of alleging manufacturing defects, the same has to be proved by expert opinion. In the instant case, the problem that arose in the subject vehicle found to be rectifiable and the same was found to be rectified by the 2nd Opposite Party, on rectification the 2nd Opposite Party had intimated the Complainant by Ex.B-2, the letter dated 01.12.2016 sent to the Complainant, along with two postal receipts, one dispatched on 02.02.2016 and another on 27.02.2016, wherein it is clearly mentioned that “there is neither any communication from you nor you have taken the delivery of the vehicle. You are once again requested to take delivery of the vehicle within 7 days from the date of receipt of this letter. We shall be levying parking charges @Rs.25/- per day. There is absolutely no problem in the vehicle and it has been verified by Honda Officials. You are therefore once again requested to take delivery of the vehicle immediately’. From Ex.B-4, the letter dated 09.03.2017 along with postal receipt, sent to the Complainant, whih is after filing of the complaint, wherein the Complainant was requested to take delivery of the vehicle, failing parking charges @Rs.50 per day, would be leived.
Though the Complainant had mentioned in the list of documents / typed set filed by her that the letter dated 01.12.2016 (Ex.B-2) was dispatched on 27.12.2016 and received by her on 29.12.2016, she had not taken any steps to take the delivery of the vehicle, inspite of the same been reported by the 2nd Opposite Party as no problem exist in the vehicle and the same was verified by Honda Officials, or had responded to the said letter, clearly shows that if the vehicle would be tested, shall not reveal any manufacturing defects as alleged by the Complainant, as discussed earlier, the Complainant has not chosen to produce any expert opinion to prove her claim that only because of manufacturing defects her vehicle often getting off. Hence, we hold that the 1st to 3rd Opposite Parties had not acted negligently as alleged by the Complainant. Therefore, we are of the considered view that the 1st to 3rd Opposite Parties had not committed any deficiency of service and no order could be passed against the 4th Opposite Party, being the Financier of the subject vehicle of the Complainant. Accordingly, Point No.1 is answered.
Point No.2 and 3:-
As discussed and decided Point No.1 against the Complainant, the Complainant is not entitled for the reliefs claimed in the complaint and also not entitled for any other relief/s. Accordingly, Point Nos. 2 and 3 are answered.
In the result the complaint is dismissed. No costs.
Dictated to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 29th of August 2022.
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
List of documents filed on the side of the Complainant:-
Ex.A1 | 15.10.2016 | Receipt issued by Opposite Parties for payment of Rs.20,000,/- by the Complainant |
Ex.A2 | 18.10.2016 | Receipt issued by Opposite Parties for payment of Rs.2303/- by the Complainant |
Ex.A3 | 20.10.2016
| Retail invoice issued by the Opposite Parties |
Ex.A4 | - | Booking form issued by the Opposite Parties |
Ex.A5 | 21.10.2016 | Receipt issued by Opposite Parties for payment of Rs.700/- by the Complainant` |
Ex.A6 | 04.11.2016 | Notice issued by the Complainant |
Ex.A7 | - | Postal acknowledgements |
Ex.A8 | 29.11.2016 | Letter issued by the Complainant to the Opposite Party No.4 |
Ex.A9 | 01.12.2016 | Letter issued by Opposite Party No.2 to the Complainant (Despatched on 27.12.2016 and received by Complainant on 29.12.206) |
List of documents filed on the side of the 1st and 2nd Opposite Parties :-
Ex.B1 | 11.11.2016 | Reply letter sent to the Complainant |
Ex.B2 | 01.12.2016 | Reply with 2 Postal receipts |
Ex.B3 | 10.12.2016 | Letter sent to the Complainant |
Ex.B4 | 09.03.2017 | Letter with Postal Receipt |
List of documents filed on the side of the 3rd and 4th Opposite Parties :-
NIL
S. NANDAGOPALAN T.R. SIVAKUMHAR B.JIJAA
MEMBER II MEMBER I PRESIDENT
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