RESERVED

State Consumer Disputes Redressal Commission

U.P., Lucknow.

Appeal No. 1888 of 2004

1-  M/s Hero Honda Motors Limited,

     34-Community Centre, Vasant Lok,

     Vasant Vihar, New Delhi-110057.

2- M/s M.B. Motors, Medical College Road,

    Gorakhpur.                                               ….Appellants. 

Versus

Ram Nagina Yadav s/o Late Sri Narain Yadav,

R/o Humayunpur North, Digvijai Nagar,

Colony, Lane-1, Gorakhnath,

Gorakhpur (U.P.)                                          ...Respondent.

Present:-

1- Hon’ble Sri A.K. Bose, Presiding Member.

2- Hon’ble Sri Govardhan Yadav, Member.

Sri R.N. Singh for the appellants.

Sri Vishal Chaudhary for the respondent.

Date  4.11.2016

JUDGMENT

Sri A.K. Bose,  Member- Aggrieved by the judgment and order dated 27.8.2004, passed by the Ld. DCDRF, Gorakhpur in complaint case No.157 of 2003, the appellants M/s Hero Honda Motors Ltd. and M/s M.B. Motors have preferred the instant appeal under Section 15 of the Consumer Protection Act, 1986 (Act 68 of 1986) on the ground that the impugned order is arbitrary, perverse and is bad in the eye of law. It was delivered without proper appreciation of law and/or application of mind, on the basis of surmises and conjectures and therefore, it has been prayed that the same be set aside in the interest of justice, otherwise the appellants will suffer irreparable financial loss.

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From perusal of the records, it transpires that the respondent/complainant Shri Ram Nagina Yadav s/o Late Sri Narain Yadav purchased a Hero Honda Splender Motorcycle bearing Engine No.01-M-18M-10157, Chassis No.01-M-20C-12293 and Registration No.UP 53 P 1413 on 15.1.2002  from M/s M.B. Motors, Gorakhpur for a sum of Rs.37,282.00. M/s M.B. Motors, Gorakhpur was the authorized dealer of the appellant no.1 Hero Honda Motors Ltd., New Delhi. The Motorcycle carried 6 Free Services and a Warranty of 2 years or run of 30000 Kms, whichever was earlier.

It has been alleged that the motorcycle was having some inherent manufacturing defects in the engine, as a result of which, it was emitting excessive smoke. Consequently, the same was taken to the authorized dealer and the dealer vide job card no.2293 performed first free servicing on 2.2.2002. The photocopy of the job card shows that till then the motorcycle had given a run of 495 Kms and there was no complaint regarding its performance. It was taken to the Service Station for routine check up and replacement of engine-oil. The second servicing was done on 21.4.2002 vide job card no.9125 and the respondent/complainant took the delivery of the motorcycle after recording satisfaction. Till then the motorcycle had given a run of 2405 Kms. The third free servicing was done on 12.6.2002 vide job-card no.4053 and he took back the vehicle after recording his satisfaction. Till then it had given a run of 5228 Kms. During fourth service on 30.4.2002 vide job-card no.9991,

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the respondent  complained about slow pick-up. Necessary servicing was done free of cost and the vehicle was received back by the customer. Till then it had given a run of 7050 Kms. The motorcycle was brought back on 24.10.2002 for fifth free servicing with a complaint of high consumption of Mobil Oil and unsatisfactory pick-up. The problems were removed vide job-card no.12007 and the customer took back the motorcycle after making an endorsement of satisfaction. The Motorcycle was taken to the authorized dealer on 14.11.2002 for sixth servicing and oil change. At that time a complaint of noise from the Tepid was also made. The problem was removed vide job-card no.12820 and the vehicle was taken back by the customer. Till then it had given a run of 9760  Kms. Finally the vehicle was again taken to the dealer on 30.12.2002 for engine tuning, oil change and inspection of brakes. The complaints were attended vide job-card no.14730 and the vehicle was handed over to the customer. He recorded his satisfaction at the time of delivery. Till then, the vehicle had given a run of 11752 Kms.

It has been alleged at para 5 of the complaint that the appellant no.2 changed a valve of the motorcycle on 12.6.2002 at the time of third free service. Admittedly, it was done free of cost.  A valve in the motorcycle provides power to the vehicle. Thus, the complaint regarding slow pick-up was rectified. It has further been alleged in the complaint that the Cylinder Kit, Timing-Chain, Crankshaft

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and Clutch Plates were replaced at the time of fifth free servicing yet the defects relating to pick-up and emission of smoke could not be rectified.

Aggrieved by this deficiency in service, arising out of poor performance of the motorcycle, complaint case no.157 of 2003 was filed before the ld. DCDRF, Gorakhpur on ground of manufacturing defects. After hearing the parties, the Forum below allowed the complaint on 27.8.2004 and directed the appellants to take back the motorcycle in question and return him a sum of Rs.30,000.00. Aggrieved by this judgment and order, the instant appeal has been preferred.

          We have heard the parties and have gone through the evidence on record.

          It has been alleged that the complaint was based on surmises and conjectures. The respondent/complainant failed to notify or identify any fundamental defects in the engine. The complaint was filed on the provocation of a unqualified road side mechanic and the ld. Forum below, without giving a finding on the nature of manufacturing defect, delivered the judgment on the basis of conjectures. The main ground relating to manufacturing defect was high consumption of Mobil Oil, emission of smoke in excess and noise in the Tepid. The level of emission of smoke or noise has not been mentioned. The amount of consumption of mobil oil has not been disclosed. There may be numerous causes for smoky vehicles but no finding has been recorded by the ld. Forum below in this context. The Forum below has also failed to take into

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consideration the fact that the motorcycle had given a run of more than 11750 Kms. before it was taken for the seventh servicing. He recorded his satisfaction every time, he took delivery of the motorcycle after servicing. It was also alleged that the manufacturing defect can be recorded only after technical examination of the vehicle by an expert as provided under Section 13(1)(c) of the Act 68 of 1986 but no such expert opinion was obtained by the Forum below before recording the factum of manufacturing defect. In support of their contentions, the appellants cited rulings laid down by the Hon'ble National Commission in Classic Automobiles vs. Lila Nand Mishra & Anr., I(2010) CPJ 235 (NC) in which it has been held that the onus to prove manufacturing defect lies on the complainant. It was also argued that the alleged defects in the motorcycle could not be termed as manufacturing defects in the absence of any Expert Opinion. The ld. counsel for the appellants  cited the ruling laid down by the Hon'ble Apex Court in Civil Appeal no.3734 of 2000, Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra & Anr. (DOJ 29.3.2006) in which it has been held that:-

"In Corpus Juris Secundrum the observations to which reference was made by the high court read as follows:

"On a sale of a motor vehicle by a manufacturer to dealer there  may be an implied warranty that if is reasonably fit for, or adapted to, the uses for which    if is made and sold; and such a warranty is not excluded by the silence of the contract of sake as to warranties. "

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          The principles stated above can never be doubted. But what is relevant in the case at hand is that the warranty conditions were specially stated. This is not a case of silence of a contract of sale as to warranty. Therefore, the High court was not justified in directing replacement of the vehicle."  

On the other hand, it was argued by the ld. counsel for the respondent/complainant that the motorcycle had an inherent manufacturing defect and the authorized dealer of the Company failed to remove the same and therefore, there was no irregularity or illegality in the judgment. It was also argued that the Cylinder Kit, Timing Chain, Crankshaft, Clutch Plates and Steam Valves were replaced on 30.8.2002 which prima-facie prove that the engine was defective in nature. In support of his contention, he cited a ruling laid down in  Tata Motors Limited vs. Navin Nishchal & Anr., III(2012) CPJ 718 (NC). We have gone through the rulings and have perused the evidence on record in the light of the same.  

 Before we proceed further, it is necessary to keep in mind the concept of manufacturing defect. The Act 68 of 1986 has not defined the term Manufacturing Defect  specifically but under Section 2(1)(f), a Defect means "any fault, imperfection or shortcoming in the quality, quantity, potency, Purity or standard which is required to be maintained by or under any law for the time being in forced or (under any contract, expressed or implied, or) as is claimed by the trader in any manner whatsoever in relation to any goods." Thus, it appears, a manufacturing defect is a defect that becomes part of the product when it is made. The common causes of manufacturing defects are

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faulty or poor-quality materials and carelessness in putting the product together or shoddy workmanship. A manufacturing defect is one that could be made less dangerous or got rid of altogether, if product was made with better quality materials or was made by a more careful and experienced worker. Manufacturing defects are usually analyzed under rule of Strict Product Liability or Design Defect. In a strict liability case, the manufacturer is liable for the injuries which the product causes, even if the manufacturer was careful in making the  product. Under the law of strict product liability, a manufacturing defect is a defect in the product which was not intended to be manufactured. This kind of defect occurs when a product departs from its intended design and is more dangerous than the consumer expects the product to be.

In the background of the above, the point for determination, therefore is: whether the Hero Honda Splendor motorcycle bearing Registration no. UP 53 P 1413 was having a manufacturing defect or not ?

The motorcycle was sold on 15.1.2002. The first  job card no.2293 dated 2.2.2002 at Kilometer reading 495 shows that there was no complaint regarding the performance of the motorcycle at that time. Had there been any manufacturing defect, it would have surfaced at the very initial stage. Similarly, the  job card no.9125 dated 21.4.2002 at Kilometer reading 2405 and job-card no.4053 dated 12.6.2002 for third free servicing at Kilometer reading 2558 do not indicate any complaint

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regarding any problem in the engine. The vehicle was received by the customer every time after recording satisfaction. A complaint regarding pickup was made at the time of fourth free servicing vide job card no.9991 dated 30.8.2002 at Kilometers reading 7050. The defects were removed and the motorcycle was received back with satisfaction. The job-card of Vth Free Servicing bearing no.12007 dated 24.10.2002 shows that there was unpleasant sound in the Timing Chain. It was also alleged that the motorcycle  was consuming excess Mobil Oil and was emitting excess smoke. The pickup was also not satisfactory. The defects were removed and the consumer received back to motorcycle after recording satisfaction. These defects do no fall under the category of manufacturing defects; and were mechanical in nature arising prima-facie out of wear and tear in vehicle on road.  The sixth service through job-card no.12820 dated 14.11.2002 at Kilometer reading  9760  indicates that the motorcycle was not having any specific problem. It was brought for routine servicing and change of Oil. There was a complaint relating to Tepid.  The problem in tepid indicates lack of force. This defect was removed and the customer/respondent received back the motorcycle with endorsement of satisfaction. The   job-card no.14730 dated 30.12.2002 indicates that there was no problem in the motorcycle at that time and it was brought for paid servicing only. At that time, the Kilometer reading was 11752. Thereafter, the complaint case was filed for replacement of the motorcycle or refund of the entire price

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of the same i.e. Rs.37,282.00. Apart from this compensation and cost of litigation were also claimed. A scrutiny of the job-cards would show that the customer had no problem at the time of first servicing through job-card no.2293 dated 2.2.2002 or at the time of the seventh servicing through job-card no.14730 dated 30.12.2002 at Kilometer reading 11752. In between, all indicated problems were removed by the dealer. From the perusal of the job-cards, it transpires that all complaints relating to slow pickup, excess consumption of Mobil-Oil and excess emission level of smoke were rectified. The consumption of Mobil-Oil or emission of excess level of smoke or poor pickup take place when the engine is not properly tuned or the equipments on the vehicle, designed to control the level of pollutant emission do not function properly. It may happen due to faulty Air Cleaner, poor carburetter adjustment, chocked butterfly, incorrect grade of oil in Dashpot, incorrectly adjusted automatic chokes, deposit of dust in the air cleaner, loose jets or needles, faulty engine management system, Oxygen sensor or fuel injector. All these problems can be removed in order to control the excess emission of smoke or for removal of pickup problem. These problems do not fall in the category of manufacturing defects. The job-card bearing no.14730 dated 30.12.2002 indicates that the vehicle was taken to the dealer for paid servicing without any specific problem. At that time Kilometer reading was 11752 and the customer/respondent was not having any problem. Had there been any manufacturing defect in the motorcycle, it

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would not have been possible for the customer/respondent to ply the motorcycle over a 11000 Kilometers. Wear and tear in any vehicle on read is a natural phenomenon and therefore, it would not be appropriate to term every problem as manufacturing defect. There is no cogent evidence of any inherent defect in the motorcycle. The respondent/complainant has not adduced any expert opinion in support of his contentions. The evidence of a road side mechanic can not be treated as authentic for the purpose of holding manufacturing defect. Admittedly, the motorcycle is still on road and there has been no complaint regarding any defect or replacement of parts after the seventh servicing. Hence, it can not be presumed that the motorcycle had inherent manufacturing defects. The Forum below failed to consider all these aspects of the matter and delivered the judgment in a mechanical manner. The judgment suffers from material irregularity and illegality, as such, it can not be allowed to sustain. Consequently, the appeal deserves to be allowed.  

ORDER

The appeal is allowed. The judgment and order dated

27.8.2004, passed by the Ld. DCDRF, Gorakhpur in complaint case No.157 of 2003 is set aside.

No order as to costs. Certified copy of the judgment be provided to the parties in accordance with rules.

         (A.K. Bose)                            (Govardhan Yadav)

    Presiding Member                             Member

Jafri PA II

Court No.3