Karnataka

Chitradurga

CC/134/2022

R.Umesh s/o Rangappa - Complainant(s)

Versus

The Authorised Signatory,Gajendra Motors. - Opp.Party(s)

Sri.P.S.Sathyanarayanarao

26 Jun 2023

ORDER

                                                                                     COMPLAINT FILED ON 13/09/2022

                                                                        DISPOSED ON: 26/06/2023

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, CHITRADURGA.

CC.NO:134/2022

DATED: 26^th June 2023

PRESENT: Kum. H.N. MEENA, B.A., LL.B., PRESIDENT                                   Sri. H.JANARDHAN, B.A.L., LL.B., MEMBER       

 

COMPLAINANT/S	Sri Umesh S/o Rangappa, Aged about 43 years, R/o Sri Ranganatha Swamy Nilaya, Bank Colony,   Cell No.7019951332.   (Rep. by Advocate Sri P.S. Sathyanarayana Rao)
V/S
OPPOSITE PARTY/S	The Authorised Signatory, Gajendra Motors, Beside RTO Office, Turuvanur Road,   (Rep by Advocate Sri  R.N.Parthalinga)   The Authorised Signatory, Honda Motorcycle & Scooter India Pvt. Ltd., Plot No.1, Sector-03, IMT Manesar, District, Gurugram,   (Rep by Advocate Sri  B.M. Ravichandra)

 

:JUDGEMENT:

 

Order Delivered by Hon’ble President, Kum. H.N. MEENA.

 

The complainant filed a complaint under section 35 of the Consumer Protection Act, 2019 against the Opponent to direct the replace the vehicle with new one same model or make arrangements to refund the amount of the vehicle. To pay the damages by way of compensation to a tune of Rs.30,000/- and Rs.10,000/- towards the mental agony and towards the cost of legal proceedings and such other reliefs relief as the Hon’ble Commission deems fit to grant under the circumstances of the case, as it is very necessary in the interest of  justice equity.

 

2. BRIEF FACTS OF THE CASE:

    The facts of the case are that, the OP No.1 is the authorized dealer and OP No.2 is the manufacturers of Honda motorcycles. On 24-06-2022 the complainant has purchased Honda Shine Drum Motorcycle Reg. No. KA-16/ET-7180, Engine No. JC8SED2181899 by paying a sum of Rs.85,418/-, from the OP No.1. From the date of its purchase, the said bike having noise while applying brake, side stand was broken and within 1 month the colour of the vehicle has been changed (Dim).  The complainant has complained the same to the OP No.1, but the same noise in brake system problem continue and colour also dim. On 16-08-2022 he requested the OP No.1 to exchange the vehicle with new one as per warranty and OP No.1 agreed for the same to exchange the vehicle.  Finally the OP No.1 has refused to exchange the vehicle. Further while moving the vehicle, all of a sudden the vehicle will be off and standing in the signal by switch off the vehicle, the vehicle will not be start.  Finally, he demanded the OPs for replacement or refund of the motorcycle amount, but Ops neither replaced the motorcycle nor refund the amount, which amounts to deficiency in service on the part of the OPs.  Hence, he filed the present complaint and prayed to direct the Ops to refund the motorcycle amount or exchange of motorcycle, Rs.30,000/- towards damages and Rs.10,000/- towards mental agony and cost of the litigation

3. The OP No.2 has not filed the written version in spite of sufficient time granted.

The OP No.1 has filed his written version contending that on 23-06-2022 the complainant has purchased Honda Shine Drum Motor Cycle Reg. No.KA-16/ET-7180 from the OP No.1 by paying entire cash amount, under Tax Invoice dated: 24-06-2022 and also handed over the vehicle along with warranty, registration card, insurance and service manual.  As per the Honda Motor Cycle and Scooter India Pvt. Ltd., service circular which has been issued through owner's manual and as per the said service circular the conditions which reads as under;

Conditions No.2:- Normal wear and tear parts and consumables not covered under warranty.

 

Conditions No.3:- Painting defects and rusting in painted parts in all such cases HSMI will reimburse the repair and painting cost.  Please do not replace the full parts in all such cases unless specified by HSMI in written.

 

Conditions No.4:- Other painted/plated parts rusting/for all such parts, HSMI will give warranty for 12 months. In some cases HSMI has received claims, where, many parts of one vehicle have got rusted.  This type of failure is purely due to external factors and for all such cases warrant is not applicable.

 

4. On 16-07-2022 the complainant has come to OP No. 1 for 1^st  free service and at the time of 1^st  service the vehicle was run about 977 kms., and the OP No.1 has given free service and he has obtained Tax Invoice for Rs.609/-towards O-ring, replacement of Engine oil, washer and the same was chargeable for the above said items Again on 25-08-2022 the complainant came to OP No.1 for replacement of side stand, the OP No.1 has changed the side stand and he has paid an amount of Rs.201/-, the vehicle was run about 2950 kms. The instructions given as mentioned below;

1^st service 750 to 1000 kms or 15 to 30 days whichever is earlier.

2^nd service-5500 to 6000 kms. or 165 to 180 days whichever is earlier.

3^rd service-11500 to 12000 kms. or 350 to 365 days whichever is earlier.

 

But in this case, the complainant has never came for 2 service, but directly he come 3^rd service on 20-10-2022 wherein the vehicle was run about 10000 kms, and the complainant has obtained tax invoice for Rs.418/- towards o-ring replacement of engine oil, washer and consumable, the same was chargeable and OP has charged Rs.418/- for the above said items.  Again the complainant has came to the OP No.1 on 25-08-2020 and he replaced the side stand which was caused due to physical damage of side stand, as per the inspection made by the service Manager of OP No.1.  The complainant has not at all given any such a complaint regarding the vehicle giving trouble in making noise while applying break and also the colour was became dull and he was not at all been intimated it at the time of general repair or at the time of 3^rd free service dated:20-10-2022. Therefore, there is no deficiency in service on the part of the OPs. Hence, the OPs have prayed for dismissal of the complaint with costs.

5. The complainant to prove his case filed his affidavit evidence as P.W-1 and got marked 08 documents as Ex. A-1 to 8. The OP No.1 has filed his affidavit evidence as R.W-1 and got marked 04 documents as Ex.B-1 to 4.

6. The written arguments are filed by the complainant as well as OP No.1 and heard the oral arguments on both side.

7. The points that arise for our consideration are:

1. Whether the complainant has proved deficiency in service on the part of the OPs, as alleged in the complaint?

2. Whether the complainant is entitled for the reliefs prayed for in the complaint?

3. What order?

 

8. The findings on the above points are as under.

1. Point No.1: In the Affirmative.
2. Point No.2: Partly in the Affirmative.
3. Point No.3: As per the final order.

 

:REASONS:

9. Point No.1:- There is no dispute between the parties regarding the complainant has purchased the Honda Shine Drum Motorcycle Reg. No.KA-16/ET- 7180, from the OP No.1. Annexure A-1 and 2 cash receipt and tax invoice proves the same.

10. The case of the complainant is that inspite of repeated repairs made to his motorcycle by the OPs the problems till continue i.e, nose while applying break and side stand was broken, vehicle all of sudden off while moving as well as the color of the motorcycle was dim and as such he demanded the OPs to replace the vehicle with new one or to refund of its cost, however, the OPs failed to comply with the request made by him.

11. Per contra the OPs have contended that on 16-07-2022 the complainant has come to OP No.1 for 1^st free service and at the time of 1^st service the vehicle was run about 977 kms., and the OP No.1 has given free service, again on 25-08-2022 he came to OP No.1 for replacement of side stand, the OP No.1 has changed the side stand and he has paid amount of Rs 201/- and at that time the vehicle was run about 2950 kms.  But in this case, the complainant has never came for 2^nd service, but directly he came 3^rd service on 20-10-2022 wherein the vehicle was run about 10000 kms., and the complainant has obtained tax invoice for Rs.418/- towards o-ring replacement of engine oil, washer and consumable, the same was chargeable and OP has charged Rs.418/- for the above said items and therefore, the complainant has never complained regarding noise while applying break and hence they prayed to dismiss the complaint.

     12. To prove their case the OPs have produced Job Card Ex.B-1, Tax Invoice Ex.B-2, Ex.B-3 is the HMSI Service Circular and Ex.B-4 is the warranty policy.

     13. As per Ex.B-1, the complainant given the vehicle for service on 20-10-2022 and the problem mentioned as Job Card Oil change, clutch, washer, O-ring etc.  However, the OPs have not produced Job Card dated:16-07-2020 1^st free service as contended in their written version.

     14. The OPs have contended that the complainant has never come forward for 2^nd service, but directly he came for 3^rd service on 20-10-2022.  But the OPs have themselves admitted in their written version at page No.2 that the complainant again on 25-08-2022 came to the OP No.1 for replacement for general repairs and he paid Rs.201/- and at that time the vehicle was run 2950 kms.  Therefore, the contention of the OPs that the complainant has never come forward for 2^nd service, is not accepted.

     15. Further, the OPs have contended in their written version that, as per the service manual the complainant has to make service of his vehicle and the instruction given in the service manual as under;

 1^st service 750 to 1000 kms or 15 to 30 days whichever is earlier.

2^nd service-5500 to 6000 kms. or 165 to 180 days whichever is earlier.

 3^rd service-11500 to 12000 kms. or 350 to 365 days whichever is earlier.

 

 

16. On perusal of the said instructions the complainant ought to have got the 1^st service between 750-1000 kms. Or 15 to 30 days whichever is earlier.  However, as per the OPs themselves the complainant came to the 1^st service on 16-07-2022 and at that time the vehicle was run about 977 kms.  It means the complainant get the 1^st service as per the said Instruction.  Again the OPs have stated that on 25-08-2022 the complainant came to the OP No.1 for general repairs and at that time the vehicle was run about 2950 kms., It seems that the complainant got the 2^nd service as per the said instructions.  The OPs have also stated that on 20-10-2022 the complainant come to 3^rd service and at that time the vehicle was run about 10000 kms.  The complainant has also got the 3^rd  service as per the instruction given above.

 

     17. Therefore, as per the instructions given in the written version the complainant got the free service within the stipulated time and he complained the problems found in his motorcycle to the OPs. The OPs have failed to produce Job Card before this Commission pertains to the above said dates.

18. The OPs have also produced the warranty policy Ex.B-4 and the warranty policy mentioned it reads thus;

HMSI would repair or replace at its discretion, those part(s) found to have manufacturing defects during examination.  This repair or replacement of pant(s) would be done free of charge at their authorized workshop, within a warranty period of 36 months from the date of sale or until the vehicle has covered 42000 kms, whichever comes first.

 

      19. As per the invoice Ex.A-2, the complainant purchased the motorcycle on 24-06-2022.  However, the OPs have admitted in their written version that, painting defect and rusting in painted parts in all such cases HSMI will reimburse the repair and painting cost.  As per the complaint, the complainant found some defects in motorcycle within the warranty period including the colour of the motorcycle was dim and the OPs have also admitted in their written version that they have attended the problems of the motorcycle.

       20. On perusal of the complaint, written version, affidavit evidence and documents produced by both parties, it is found that the complainant complained some defects in the motorcycle within the warranty period and at the same time the OPs have also attended the defects as stated by the complainant.  Even after also as per the complainant the same defects continue in the motorcycle.

21. If the defects found in the goods within the warranty period it is the responsibility of the dealer and manufacturer to rectify the same permanently and to maintain cordial relationship between the service provider and consumers. However, in the present case, though the complainant approached the Ops with regard to defects in his motorcycle within the warranty period of 36 months as stated above, but the OP have failed to rectify the defect in the motorcycle of the complainant

     22. In this regard we have relied on the following decisions cited by the counsel for the complainant;

(1) 2021 (2) CPR 64 (NC) (Brij Mohan Sharma Vs. Vikas

     Automobiles and Anr).

 

(2) 2023 C 16 (NC) (Jayant Kumar Agarwal Vs. Manager. M/s

      Khokan Auto Distributer Pvt Ltd and Another.

 

(3) 2021 (1) CPR 140 (NC) (Maruti Suzuki India Ltd., Vs. Adv.

     Shiji Joseph & 2 Ors.

 

In the said decisions it has been observed that the vehicle developed defects on and off and the defects in the engine count not be removed, even there is no evidence on record in support of this contention but the complainant filed his affidavit evidence wherein he has stated on oath all these facts. When the new vehicle needed to be repaired frequently which is indicative of a manufacturing defect. If a component of vehicle is defective then some needs to be changed under warranty and whole vehicle is not required to be changed.

 23. In the present case also the complainant has not produced any expert evidence, but he stated all the facts on oath. The complainant has requested the Ops to rectify the defects in his motorcycle, but the Ops failed to do so. Therefore, the facts of the said decisions and the facts of the present case are similar as such the said decisions are applicable to the present case.

24. As per Ex.B-4 warranty policy, the OPs shall repair or replace the parts found to have manufacturing defects within warranty period of 36 months or 42000 kms, whichever comes first. As per the written version of OPs the vehicle of the complainant was run about 10000 kms, as on 3^rd  service dt.20-10-2022 whereas the complainant purchased the vehicle on 24-06-2022 It means the complainant found the defects in the said vehicle within the said warranty period. Hence, in view of the principles laid down in the above decisions and as per Ex.B-4 warranty policy, the OP's are bound to replace the defects parts of the motorcycle of the complainant at free of cost within the warranty period.

25. During the trial of proceedings, the case was referred before Lok- Adalath at twice. The complainant made a request before the Ops atleast to replace the defective parts of the motorcycle at free of cost. However, the OP's have not appeared before Lok Adalath and they have not made any efforts at least to settle the dispute between them. This shows that prima facie the OPs have not maintained cordial relationship between Consumers and Service provider.

26. Therefore, the complainant has proved a case of deficiency in service on the part of the OP's Hence, we answer the Point No.1 in the Affirmative.

27. Point No.2: The complainant found the defects in the motorcycle within the warranty period, which is not disputed by the OP's. Considering the facts and circumstances of the case and as per the conditions mentioned in the warranty policy at owner's manual, it is just and proper to direct the OPs to rectify the defect found in the motorcycle by replacement of necessary parts at free of cost including painting and to get satisfaction letter from the complainant, as per the warranty policy. Or if it is not possible to repair the vehicle, the OPS shall pay the global compensation towards the same. Beside this, the complainant is entitled for compensation towards deficiency in service and mental agony as well as cost of the proceedings which shall be as per final order. Accordingly, we answer the Point No. 2 partly in the Affirmative.

28. Point No.3:  Hence, in the light of above discussion we proceed to pass the following.

 

•  

   The complaint filed by the complainant is partly allowed.

   It is hereby directed the OPs to rectify the defect found in the motorcycle of the complainant by replacement of necessary parts at free of cost including painting and to get satisfaction letter from the complainant, as per the warranty policy, within 15 days after the complainant bring the motorcycle to their showroom. Or,

   If is not possible to repair the motorcycle of the complainant at free of cost the OPs shall pay global compensation of Rs.30,000/- (Thirty Thousand only) to the complainant.

   The OPs shall pay Rs.10,000/- towards compensation for deficiency in service and mental agony and Rs.5,000/- towards cost of the proceedings to the complainant.

   The OPs are jointly and severally liable to pay the above said amounts to the complainant within 45 days from the date of order, failing which the OPs are liable to pay the interest @ 6% p.a., on Rs.30,000/- from the date of complaint till its realization.

   If the OPs violate this order, the complainant may execute Criminal Proceedings against the OPs as per the Sec 72 of C.P. Act 2019.

Communicate the order to both the parties.

(Typed directly on the computer to the dictation given to stenographer, the transcript corrected, revised and then pronounced by us on 26^th June 2023.)

 

 

                   Sd/-                                                  Sd/-

             MEMBER                                          PRESIDENT

 

-:ANNEXURES:-

Witness examined on behalf of Complainant:

PW-1: Sri Umesh S/o Rangappa, by way of affidavit evidence.

 

 

Witness examined on behalf of opponent:

DW-1: Sri M.V. Vishwanath S/o Late M.V. Thippeswamy, by way of affidavit evidence.

 

Documents marked on behalf of Complainant:

 

01	Ex.A-1:-	Notarised copy of Receipt (Sales) dated 23/06/2022
02	Ex.A-2:-	Notarised copy of the Tax Invoice dated 24/06/2019
03	Ex.A-3:-	Notarised copy of Warranty Card
04	Ex.A-4:-	Notarised copy of Tax Invoice dated 25/08/2022
05	Ex.A-5:-	Notarised copy of Chola MS General Insurance Policy.
06	Ex.A-6:-	Copy of Legal Notice dated 25/08/2022
07	Ex.A-7 & 8:-	Postal Receipts and Acknowledgement card

 

 

Documents marked on behalf of opponent:

 

01	Ex.B-1:-	Original JOB card No.2389
02	Ex.B-2:-	Copy of Tax Invoice dated 20/10/2022
03	Ex.B-3:-	Copy of  HMSI Service circular

 

 

              Sd/-                                                      Sd/-

        MEMBER                                          PRESIDENT

 

**GM