Karnataka

Chitradurga

CC/164/2018

Ragavendhra.J - Complainant(s)

Versus

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

Sri.P.S. Sathyanarayana Rao

01 Mar 2019

ORDER

COMPLAINT FILED ON:24/08/2018

DISPOSED      ON:01/03/2019

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

CC.NO:164/2018

 

DATED: 1^st MARCH 2019

PRESENT :-     SRI.T.N.SREENIVASAIAH :   PRESIDENT                                     B.A., LL.B.,

                        SMT. JYOTHI RADHESH JEMBAGI

BSc.,MBA., DHA.,                LADY MEMBER

 

……COMPLAINANT/S	Raghavendra J, S/o N. Jayanna, Major, Bus Booking Agent Baragere Beedi, Ist Cross Holalkere Road, Chitradurga.   (Rep by Sri.P.S. Sathyanarayana Rao, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Authorized Signatory, Mahesh Motors, R.T.O. Road, Mahendra Complex, Chitradurga.   2. The Authorized Signatory, Hero Moto Corp Limited, Registered Office, 34, Community Centre, Basant Lok, Vasanth Vihar, New Delhi-110057.   (Rep by Sri.H.T. Jagannath, Advocate)

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P. Act, 1986 for the relief to direct the OP No.1 to exchange the vehicle with new one or to refund the amount paid towards the same with nominal interest, OP No.1 and 2 to pay compensation of Rs.20,000/- incurred towards loss in business, repairs, replacement of parts etc with interest @ 18% p.a and Rs.10,000/- as damages towards mental agony, torture and cost.

2.      The brief facts of the case of the above complainant are that, he has purchased Splendor Ismart 110 Model Motor Cycle  bearing Registration No.KA-16 EH 0755 with chassis No.MBLJA06AXGHK19828 and engine No.JA06EPGHK20206 for Rs.54,580/- and by paying registration charges from OP No.1 by availing loan from Pavagada Souhardha Bank and from his friends and relatives and taken delivery of the vehicle.  At the time of delivering the vehicle, the OP No.1 has assured that, the vehicle will give better services.    It is further submitted that, from the date of purchase, the said vehicle was giving trouble and frequently coming for repairs like some engine problem etc and it cannot be able to maintain.  As such, the complainant left the vehicle to the authorized service centre i.e., OP No.1 for repairs so many times.  The complainant has incurred Rs.5,000/- towards repairs.  The OP No.1 assured to have the work done and rectify the problems found in the vehicle, but failed to rectify the said problem.  Again and again the same problems arise with the engine from the date of purchase.  The complainant orally requested the OP No.1 to exchange the vehicle with accurate and proper vehicle as per warranty.  In this behalf, OP No. 1 agreed for the same previously and finally the OP No.1 has refused to exchange the vehicle and all the efforts done by the complainant went in vain.  Due to this, the complainant has incurred heavy loss in his day to day activities and he has suffered mental agony and distress for having purchased this type of defective vehicle, which cannot be compensated in any terms.  It is further submitted that, very recently 7 days back i.e., 12.07.2018 the complainant left the vehicle with accessories like smoke, engine problem.  The complainant is very much afraid of these problems.  The OP No.1 has attended the repairs and replaced the head, even then, the same problems repeats.  For all these lapses like loss in attending his daily business, depreciation of vehicle value, interest on loan, loss of earnings, mental agony and depress, the OPs are jointly and severally liable to compensate the complainant.  The complainant has purchased the vehicle for his personal use by investing huge amount.  For every time of repairs, the vehicle will kept idle for 1-2 days, for that the complainant will loose his income and he has to pay the regular monthly loan installment.  The OP No.1 has given warranty for the vehicle for replacement of parts for 12 months period or 50000 KMs and not beyond.  Even though, the complainant’s vehicle has not expired the date nor the KMs and even though the free service is provided for 12 months, the OP No.1 has collected service charges from the complainant.  The OP No.1 is having the knowledge that the vehicle sold to the complainant is having mechanical defects.  In this regard, the complainant has got issued legal notice to the OPs on 18.07.2018, the OP No.1 has replied the same by denying all the averments made in the legal notice and not exchanged the vehicle or paid the compensation amount.  The cause of action arose for this complaint is on 18.07.2018, when the OP has received notice on 20.07.2018, which is within the jurisdiction of this Forum and prayed for allow the complaint.

 3.     On service of notice, OPs appeared through Sri. H.T. Jagannath, Advocate and filed version denying all the allegations made in the complaint. 

According to the version filed by the OPs that, the averments made para 1 are true, but however, the OPs are not privy to the financial arrangements of the complainant and hence, the complainant is put to strict proof of the same.  The averments made in para 2 are false the same is put to strict proof of the same.  It is submitted that, pursuant to purchase of the vehicle, the complainant has used the same for 11769 KMs without demur.  It is submitted that, on 02.03.2018 the vehicle was brought to OP No.1 with engine noise complaint, the OP No.1 has replaced cylinder head kit, under normal warranty scheme and delivered the vehicle to the satisfaction of the complainant on free of cost and no charges have been received from the complainant.  It is further submitted that, the vehicle once again brought to OP No.1 on 09.06.2018 after having run 14995 KMs with self starter noise complaint.  The OP No.1 identified the issue and spare parts like (1) Motor unit starter, (2) Gear Comp Starter Reduction, (3) Gear Comp Starter Driver were replaced under normal warranty on free of cost.  It is submitted that, on 03.07.2018 after running 16267 KMs, the subject vehicle was brought to the OP No.1 with engine noise, though there was no problem, the OP No.1 has serviced the vehicle to the satisfaction of the complainant.  The averments made in para 3 are vague, imaginary, self serving and false and the same is put to strict proof.  All the complaints raised regarding vehicle have been attended by the OP No.1 diligently and in timely manner and all the parts have been replaced by the OP No.1 in warranty scheme.  The averments made in para 4 are denied as the same are vague, imaginary, self serving and false and the same is put to strict proof.  It is submitted that, the complainant has not made out any ground to suffice his prayer.  It is true that, the complainant has caused a demand notice to OP No.1, the same has been duly replied.  The averments made in para 4 to 9 are denied as the same are vague, imaginary, self-serving and false and therefore, there is no cause of action arose to file this complaint and prayed for dismissal of the complaint.

4.      Complainant herself has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-7 were got marked and closed his side. On behalf of OPs, one Sri. Ashfaq Ahamed, the Manager, Customer Care of OP No.1 has examined as DW-1 by filing the affidavit evidence and Ex.B-1 & Ex.B-2 documents have been got marked and closed their side.  

 

5.      Arguments heard.

6.      Now the points that arise for our consideration for decision of above complaints are that;

(1)  Whether the complainant proves that the OPs have committed deficiency of service in selling the defective vehicle to him and entitled for the reliefs as prayed for in the above complaint?

              (3) What order?

         7.       Our findings on the above points are as follows:-

                    Point No.1:- In Negative. 

Point No.2:- As per final order.

REASONS

8.      Point No.1:- There is no dispute between the parties that, the complainant has purchased Splendor Ismart 110 Model Motor Cycle bearing Registration No.KA-16 EH 0755 with chassis No.MBLJA06AXGHK19828 and engine No.JA06EPGHK20206 for Rs.54,580/- and by paying registration charges from OP No.1 by availing loan from Pavagada Souhardha Bank and from his friends and relatives and taken delivery of the vehicle.  At the time of delivering the vehicle, the OP No.1 has assured that, the vehicle will give better services.  After using the said vehicle, the said vehicle was giving very much trouble to travel to anywhere.  The complainant approached the OP No.1 and informed about the defects in the vehicle.  The OP No.1 informed the complainant to deliver the vehicle to their service center.  The complainant delivered the vehicle to their service center and the service of the vehicle was done, but the same problem repeats.  It is argued by the complainant that, from the day one of purchase of the vehicle, the vehicle giving trouble to the complainant.  The complainant has left the vehicle for repairs with OP No.1, but the repair has not been attended.  Further it is argued that, the OP No.1 sold the defective vehicle to him.  No doubt the complainant has purchased the said vehicle from the No.1, manufactured by OP No.2.  It is argued by the OPs that, on 02.03.2018 the vehicle was brought to OP No.1 with engine noise complaint, the OP No.1 has replaced cylinder head kit, under normal warranty scheme and delivered the vehicle to the satisfaction of the complainant on free of cost and no charges have been received from the complainant.  The vehicle once again brought to OP No.1 on 09.06.2018 after having run 14995 KMs with self starter noise complaint.  The OP No.1 identified the issue and spare parts like (1) Motor unit starter, (2) Gear Comp Starter Reduction, (3) Gear Comp Starter Driver were replaced under normal warranty on free of cost.  It is submitted that, on 03.07.2018 after running 16267 KMs, the subject vehicle was brought to the OP No.1 with engine noise, though there was no problem, the OP No.1 has serviced the vehicle to the satisfaction of the complainant.  The OP No.1 says that, the complainant has not followed the terms and conditions of the manual supplied by the OPs.  The complainant has used the vehicle roughly without using the same smoothly and therefore, the complainant is not entitled for replacement of the vehicle or return of the amount and she is entitled only for replacement of the parts of the vehicle and accordingly, they have changed the parts.  The complainant has used the vehicle for more than 14995 KMs, which clearly shows that, the complainant has used the said vehicle roughly.  The Advocate for complainant argued that, the OP No.1 and 2 have intentionally supplied the defective vehicle and hence, they are entitled to replace the same or to refund the amount.  In support of the arguments, the complainant has furnished the judgment passed in F.A.No.269/2010 passed by the Hon’ble Maharashtra State Consumer Disputes Redressal Commission, Mumbai wherein it has been held as under:

“Adv. M.B. Kolpe submitted that complainant is unemployed youth and by availing finance from bank he had purchased jeep for earning his bread and butter.  It is found that since beginning of the purchase, vehicle was suffering from manufacturing defects.  Therefore complainant was to approach immediately to the appellant as vehicle was suffering from manufacturing defects therefore chassis was changed by the appellant.  It has also come on record that appellant issued letter to the complainant that engineer from the company will inspect the vehicle and try to repair the vehicle.  But said engineer also did not repair the vehicle up to mark.  Therefore complainant was many times required to get vehicle repaired.  Therefore District Consumer Forum rightly held that appellant is liable for replacing of jeep”.   

As per the judgment, if there is any manufacturing defects, under such circumstances, the manufacturer is liable for replacement of the vehicle or to return the entire amount.

9.      The OPs have relied on a decision reported in Civil Appeal No.3734/2000 of Hon’ble Supreme Court of India and Civil Appeal No.133/1994 and Revision Petition No.1652/2006 of Hon’ble National Consumer Disputes Redressal Commission, New Delhi.  The para 8 to 11 of Revision Petition No.1652/2006 reads thus:

“(8) The State Commission goes on further to state as under:

“however, even assuming for a moment that there is no “manufacturing defect but the fact remains that the car remained most of the time with the respondent No.4 in the workshop, right from the date of delivery.  It has come on record that only after running 1412 KM the car started giving further trouble continuously.  While coming from the workshop, the car stopped in the midway, as a result, the car had to be tugged and carried to the workshop of respondent No.4.  The consumer is not supposed to wait for long even after paying the entire price of the vehicle for the purpose of repair.  The fact as stated above, clearly shows that the car was sent to the workshop of the respondent No.4 times without number right from the following day of delivery but even then the car has not been made roadworthy, as a result, the appellant who is a professional has to suffer mentally, physically and financially.  Under the circumstances, we are of the view that the only way to compensate the complainant is to replace the car with new one or in alternate to pay the price of the car.”

(9)  The State Commission has failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect.  He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect.  There is no rebuttal to the allegation of accident.  Merely because the accessory was not supplied in the beginning and that the vehicle suffered from some minor defects, which, however, were attended to by the opposite party, the State Commission has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement.  In the case of Surendra Kumar Jain Vs. R.C. Bhargava andOrs. 2006 3 CPJ 382, even when the complainant had filed a report of one O.P. Singh stating that the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect.  The defects in this car, as rightly held by the District Forum, were minor in nature and cannot be said to be in the nature of manufacturing defects.  For the non-supply of the necessary kit, the complainant has been duly compensated by the District Forum. 

(10)  In fact the Hon’ble Supreme in the case of Maruti Udyog Ltd., Vs. Susheel Kumar Gabgotra and another, 2006 4 SCC 644 has held that where defects in various parts of a car are established, direction for replacement of defective parts only called for.  “The State Commission, therefore, has exceeded its jurisdiction in ordering replacement by a new car.

(11)  In view of the aforesaid discussion, the revision petition succeeds and is allowed.  We set aside the order of the State Commission but maintain the award of Rs.11,000/- for non-supply of kit with interest @ 12% since the date of delivery of the vehicle till the date of the payment.  However, under the facts and circumstances of the case, there shall be no order as to cost. 

 

10.    The Hon’ble National Commission comes to the conclusion that, if there is any defects found in the vehicle, under such circumstances, the dealer or manufacturer have to replace the parts of the said vehicle only and not entitled for replacement of the vehicle or return of the amount.  The decision produced by the complainant is of Hon’ble Maharashtra State Consumer Commission and the decision produced by the OPs is of Hon’ble Supreme Court of India and Hon’ble National Commission.  Under such circumstances, we are binding on the decision of the Hon’ble supreme Court of India and Hon’ble National Commission.  Moreover the OP No.1 and 3 have already replaced the parts of the said vehicle.  Such being the case, the OP No.1 and 3 have not committed any deficiency of service.                    

11.    We have gone through the entire documents filed by sides, affidavit and version.  No doubt the complainant has purchased the above said vehicle from OP No.1, the same has been manufactured by OP No.2.  The complainant has run the said vehicle nearly for 14995 KMs, it clearly shows that, the complainant has used the vehicle without any defects and the decision reported by the Hon’ble Supreme Court clearly says, the manufacturer or the dealer are entitled only for replacement of the parts of the vehicle. In this case also, the OPs have changed the spare parts which were defective and therefore, therefore, there is no deficiency of service as they have acted to the terms and conditions.  Accordingly, this Point No.1 is held as negative to the complainant.          

            12.     Point No.3:- As discussed on the above point and for the reasons stated therein we pass the following:-

ORDER

The complaint filed by the complainant U/s 12 of CP Act 1986 is hereby dismissed.  No order as to costs.

(This order is made with the consent of Member after the correction of the draft on 1/03/2019 and it is pronounced in the open Court after our signatures) 

                                     

MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  Sri.Ashfaq Ahamed, the Manager of OP No.1 by way of affidavit evidence. 

Documents marked on behalf of Complainant:

01	Ex-A-1:-	Invoice dated 09.08.2018
02	Ex-A-2:-	Registration Certificate
03	Ex-A-3:-	Insurance Policy
04	Ex-A-4:-	13 repair bills
05	Ex-A-5:-	Legal Notice dated 18.07.2018
06	Ex-A-6:-	Reply notice dated 31.07.2018
07	Ex.A-7:-	Postal receipt with acknowledgement

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Warranty terms and conditions and limitation of warranty
02	Ex.B-2:-	Customer satisfaction note

 

 

 

MEMBER                                                   PRESIDENT

Rhr**