DATE OF FILING: 12.12.2012.
DATE OF DISPOSAL: 25.1.2016.
Miss S.L.Pattnaik, President:
Deficiency in service on the part of the Opposite Parties (In short O.Ps) failure to replace the defective vehicle on the ground of manufacturing defect which was purchased by the complainant from Opposite Parties is the allegation of the complainant.
2. Brief facts of the case are that, the complainant purchased a Honda Motor cycle (Black color) model CB shine bearing Registration No. OR 07-W- 6686, Engine No. JC36E2287476, Frame No. ME4JC36CBB819235 from O.P.No.3 i.e. the local authorized dealer on dt.17.3.2011 on payment of Rs.51,614/- (Rupees fifty one thousand six hundred fourteen) only in respect of which O.P.No.3 issued the purchase bill/invoice vide No.101N3060 dated 17.3.2011. The O.P.No.1 is the Manufacturing Company of the said vehicle, the O.P.No.2 is the zonal Manager of that company and O.P.No.4 is the company’s authorized service centre. The complainant has also purchased some necessary accessories from O.P.No.3 for Rs.1250/- invoice was issued vide No.101P07682 dt.17.3.2011 to the complainant. So the complainant paid all total of Rs.55,414/- to the O.P.No.3 for the total cost of the vehicle accessories, insurance, registration and tax and money receipt vide No.1468 dt.17.3.2011 was issued against that payment to the complainant.
3. Soon after its purchase, certain defects relating to discharges of the vehicle and heavy smoke exhausted through its silencer pipe during warranty period was noticed. On the very next day i.e. on 18.3.2011, the vehicle was taken to the O.P.No.3 who examined the said motor cycle and admitted the problem but cunningly gave consolation to the complainant that the said problem is self limiting and common with every Honda motor cycle. But when the said problem still continued after riding the vehicle for 200 KM, the complainant again approached the O.P.No.3 with the same problem but O.P.No.3 shifted the responsibility and advised the complainant to approach O.P.No.4. After approached to the O.P.No.4 the mechanic working under O.P.No.4 observed the manufacturing defect of the engine and advised the complainant to replace the engine but the O.P.No.4 ignored the advice of his own mechanic and advised the complainant to come on the due date of first servicing on dt.8.4.2011, the O.P.No.4 only change the engine oil without solving the principal problem of discharges of heavy smoke from the engine, but with a advise that such problem will be over after riding more than 1000 K.M. He again complained the matter before O.P.No.3 but both O.P.No.3& 4 ignored the principal problem even on the day of 2nd servicing which was due on 28.5.2011. Finding no other resort, the complainant informed to O.P.No.1 and 2 through e mail and also over telephone regarding the problem and non-cooperation of O.P.No.3 & 4 to him. On the advice of the O.P.No.2, the O.P.No.4 on dt.31.5.2011 only changed the seal valve orient inside the engine to which the complainant had to pay the cost of the item and repair charges on demand of the O.P.No.4 though the vehicle was under the coverage of warranty period. Again complainant approached O.P.No.1 & 2 and on the advised of the O.P.No.2 handed over the motor cycle to the O.P.No.4 on dated 23.4.2012 for thorough check up and repair. O.P. repair the motor cycle handed over to the complainant on dated 17.5.2012 with an assurance that the problem would not take place further. After few kilometer of riding, the old problem and defect started again to which the complainant again informed to O.P.No.1 to 4. The complainant got the motor cycle repaired again and again on dt.2.6.2012/13.6.2012 at the service centre of the O.P.No.4 but the problem still persisted. After several requests of the complainant to the O.P.No.1 & 2 one senior Service engineer from the Office of the O.P.No.2 visited the office of the O.P.No.4 on 11.7.2012, where he examined the problems of the motor cycle of the complainant and got it repaired and assured that the old problem would not continued further in future. But surprisingly still after riding of a few kilometers, the same problems continued to exists and when the complainant again informed the Opp. Parties regarding the problem, no one responded him. Still the complainant visited the office of the O.P.No.3 and 4 but they denied for any ser ice further and advised him to contact the O.P.No.1 & 2. The complainant telephoned the office of the O.P.No.1 & 2 did not respond to the complain of the complaint. Now the motor cycle is not even in a running condition. After spending a lot of money in repair, in extra engine oil and petrol and killing many valuable times of his precious study period, after visiting the O.P. No.3 and 4 for nearly 30 times within 16 months. The complainant issued pleader’s notice to the O.Ps on dt.1.9.2012. The O.P.Nos 1& 2 have received the said notices but remained silent and O.P.No.3 & 4 refused to receive the notices.
4. Therefore being aggrieved the complainant is constrained to file this case against the O.Ps praying to direct the O.P.Nos 1,2 & 3 to replace the motor cycle with a new one alongwith Rs.20,000/- towards expenditure on extra engine oil and petrol consumed by the defective motor cycle. Further the complainant prayed to direct the O.Ps to pay Rs.1,00,000/- towards loss of his valuable time, study and back paper in the examination and for harassment and mental agony alongwith Rs.50,000/- for deficiency in service and Rs.10,000/- towards litigation cost and other order as a deem fit and proper by the Forum.
Complainant in support of his case filed the followings documents.
(a) Receipt of booking advance vide Receipt No.5492 dt.17.1.2011.
(b)Receipts of purchase of vehicle vide Receipt No.6468 dt.17.3.2011.
© Retail invoice given by dealer Om Honda vide invoice No.101N03060 dt.17.3.2011.
(d) Purchase from Sasmita enterprises vide receipt No.1484 dt.17.3.2011.
(e) Certificate Corporate warranties Pvt. Ltd. Booking No. 432534 dt. 17.3.2011
(f) Money receipts of repair of vehicle (5 pages).
(g) Money receipt of repair of vehicle vide Invoice No. 101P07682 dt. 17.3.2011.
5. Notices were duly served upon the Opposite parties No. 1 to 4. They appeared on dt.21.1.2013 and submitted their written version jointly on dt.17.9.2013 denying all materials allegation. The O.Ps submitted that, the vehicle was purchased on dt.17.3.2011 alongwith usual terms and conditions. At that time the complainant received the vehicle with owner’s manual which contains the warranty policy also. Thereafter the O.Ps had provided regular services both free and paid services to the complainant. On each occasion the vehicle has been provided with regular check up as per the owner’s manual and the defects as and when pointed out by the complainant has been rectified/repaired to the utmost satisfaction of the complainant. On 10.1.2013 the job card bearing No.12JC10928 disclosed that, the complainant took the vehicle for servicing to Opposite Party No.4 with a specific complaint starting problem, which was repaired to the satisfaction of the customer and delivered to him. The job card dated 10.1.2013 discloses that the said vehicle had run 17,922 Kms as on that date. This proves that the earlier defects of heavy sound, discharge of heavy smoke and consumption of more engine oil and petrol were removed. So the allegations regarding recurrence of old problem/defects are concocted and fabricated one for filing this case only. Moreover, the job card dated 10.1.2013 discloses that the said vehicle had run 17,922 Kms as on that date. The purchased vehicle is covered by the terms and conditions of the warranty. At the time of purchase of vehicle, the complainant was supplied with the owner’s manual of Honda CB shine which contains warranty at page No. 86. It has been clearly stipulated under the warranty that, “HMSI undertake no liability in the matter of consequential loss or damage causes due to the failure of the parts. Delay, if any, at the repairing workshop in carrying out repair to vehicle shall not be a ground for extending the warranty period nor shall it give any right to the customer for claiming any compensation for damages. HMSI reserves the right either to repair or replace the defective part. Where a defective part can replaced by part/s of alternative brand/s, which are normally used by HMSI in the course of manufacturing, HMSI reserves the right to carry out the replacement by a part or parts of any such alternative brands. This warranty and any claim arising there from is subject to Gurgaon jurisdiction only”. The Opposite parties submitted that as per the terms and conditions of the warranty, the prayer of the complainant for take back the defective Honda motor cycle and provide a new Honda motor cycle to the complainant and to pay Rs.20,000/- to the complainant towards his expenditures for the repair of the said motor cycle as it covers the warranty period to pay Rs.20,000/- to the complainant towards his expenditure on extra engine oil and petrol consumed by the defective motor cycle in comparison with a standard motor cycle of the same group, to pay Rs.1,00,000/- to the complainant towards the loss of his valuable time, study and back in a paper in the examination during the period and for harassment and mental agony , to pay Rs.50,000/- for deficiency in providing proper service and to pay Rs.10,000/- towards the cost of the litigation, is neither feasible nor tenable in the eyes of law. In support of the aforesaid contention these opposite parties are relying upon a decision of the Supreme Court of India passed in Marugi Udyog Limited versus Susheel kumar Gobgotra and another as reported in 2007(1) CPR 64 (SC)and copy of the decision is enclosed herewith. Therefore prayed before this Forum to dismiss the complaint with exemplary costs.
6.In support of his case the O.Ps also filed the following documents:
(a) Copy of the job card dated 23.4.2012, 13.6.2012, 11.7.2012 and 10.1.2013.
(b)Copy of the warranty policy of Honda shine motor cycle.
7. We heard arguments from both parties and perused the complaint petition, written statement, written argument and documents submitted by the parties in respect of their case.
8. Admittedly the Hero Honda in question was purchased alongwith accessories on dated 17.3.2011 from the O.P.No.3 which proved from the copy of the invoice issued by the O.P.No.3 vide No.101P07682and copy of invoice vide No. 101NO3060. Further the complainant has paid a total sum of Rs.55,414/-to the O.P.No.3 for the total cost of the vehicle, accessories, insurance registration and tax proved from the copy of money receipt No.1468 dt.17.3.2011. So admitted facts need not be proved.
9. On perusal of the complaint petition and record it is found that the complainant has alleged that soon after its purchase on dated 17.3.2011 the hero Honda motor cycle started problem which is proved from the copy of job sheet filed by the complainant and Opposite parties and defect also arises within the warranty period as is further proved from the copy of warranty policy. Annexure it is clearly mentioned that the warranty for the vehicle shall be for a period of 24 months from the date of sale or until the vehicle has covered 32000 K.M. During the period of warranty the vehicle was taken to the O.Ps on several occasions. It is also clearly reveals from the job cards about some problems in the vehicle. The above said job card filed by the parties clearly proves that there were defects in the said vehicle for which the complainant brings the vehicle a number of times to the Opposite parties to remove the defect but the O.Ps did not able to remove the defect in the said vehicle for which the complainant was dissatisfied on the service of the O.Ps and send pleader notice requesting the O.Ps to replace the vehicle or rectify the defect but they remained silent. Since the said vehicle was defective from the date of purchase and undertake repairing number of times or paid basis within warranty period and the same defect could not be rectified by the Opposite Parties. So inference could be drawn from the manner and the times it was attended by the service centre that it is suffering from some defects which is liable for rectification/ repair of defects and also liable for deficiency in service.
10. On perusal of the record the Forum feels that the O.Ps have to assists to the purchaser to proceed with the process when grievance occurred on the whole because complainant has purchased the vehicle with some hope and aspiration which are not fulfilled in this case and the purchaser suffered from the transaction to a considerable higher amount constricting the whole purpose of transaction. It is the bounden duty of the dealer to attend every defect whenever a new vehicle is sold to a consumer there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or short coming in the quality and standard which is required to be maintained. It is the duty of the service provider to provide defect free service to his customer so that in future they will faithful on them of their service. But the Forum does not agree with the contention of the complainant that the said vehicle has manufacturing defect. Since the complainant has not produced any expert opinion to prove manufacturing defect.
11. On merit and as per the documents placed in the record, there is no doubt that the Honda Motorcycle, Model CB Shine bearing Registration No. OR 07W 6686 was taken to the service centre of the O.Ps by the complainant time and again for which he was put in problem. The documents (vehicle history) placed in the record shows that the complainant was forced to take the said motor cycle to the service centre of O.Ps on 8.4.2011, 28.5.2011, 31.5.2011, 206.2011, 12.7.2011, 13.9.2011, 11.10.2011, 30.10.2011, 24.2.2011, 23.24.2012, 7.5.2012, 2.6.2012, 13.6.2012, 11.7.2012 and 10.1.2013. On perusal of the above dates of services it is found that except on 31.5.2011, 13.6.2012, 11.7.2012 and 10.1.2013 respectively, all other services were either free services, warranty or others which did not compel the complainant to pay service charges. It is also revealed from the vehicle history that the Motor cycle on the above dates was taken to the service centre of O.Ps for different complaints/ purposes. It further reveals that the extended warranty of the Motorcycle commenced on 17.3.2013 and expires on 16.03.2016 and up to coverage of 72000 Kms. It is also found that even during the warranty extended period the vehicle was suffering from pretty complaints like starting problems which was lastly noted by the O.P. service centre on 10.1.2013. On the contrary, it is also came to our notice that the Motorcycle despite the above problem was running by the complainant regularly since as on dated 8.4.2011 the said Motorcycle covered only 750 Kms i.e. on the date of his first complaint while it was covered 17,922 Kms as on the last date of complaint i.e. on 1.1.2013. So, it can’t be inferred that the vehicle was defect in the engine or manufacturing defect thereof if any. However, on careful examination of the case record no prudent human being can say that the Motorcycle was not suffering from any problem. It is crystal clear from the documents submitted by the O.Ps that the Motorcycle was suffering from minor defects/ problems for which the complainant was forced to take his vehicle to the service centre of O.Ps. No person can redress his grievance before any service provider without having any genuine problem and in our considered view the complainant was forced to take the motorcycle to the service centre of O.Ps due to some bona fide problems. To substantiate our findings we would like to point out that the Motorcycle was remained in the custody of O.P. No.4 from 23.4.2012 to 7.5.2012 which is a quite long period, so this proves beyond doubt that the Motorcycle was suffering from some minor defect or problems for which the student complainant was put into trouble. However, on careful perusal of the documents filed by O.P. No.3 reveals that no major expenditure incurred in the Motorcycle for the repairing except on dated 10.1.2013. All other minor defects /problems were removed on the basis of warranty services / free services or others. In most of cases during repairing the complainant had to put up with meager expenses so we could not feel that there was major defect with the Motorcycle and there were huge expenses incurred in by the complainant. For the aforesaid reasons we are not inclined to accept the contention of the learned advocate for the complainant that the Motorcycle was suffering from manufacturing defect but at the same time we also can’t hold that the Motorcycle was free from all defects. There were minor problems for which the complainant had to visit the service centre of the O.Ps on different dates which roughly estimated not less than fifteen times. For this the O.Ps are bound to compensate the complainant since he is a student and his valuable time was killed unnecessarily due to the problem in the motorcycle during the warranty period. The learned advocate for the complainant as well as learned counsel for the O.Ps also cited some decisions of Hon’ble Supreme Court in support of their case respectively which are not applicable to this case so we are not inclined to accept those in the fact and circumstance of the case.
12. Further during argument the learned counsel for the Opposite parties have submitted that the complainant is a minor and he should be represented through his father. But the learned counsel for the complainant vehemently objected to it. On perusal of the case record we found that the complainant is a student of B.Tech. So the contention of O.P. that he is a minor is not sustainable. Regarding this allegation the O.Ps have also not produced any documentary evidence to prove that the complainant is a minor.
13. In view of above said discussion, the O.Ps have committed deficiency in service towards the complainant for which they are jointly and severally liable as claimed by the complainant and the complainant is further entitled to be compensated for the inconvenience and hardship he has suffered because the complainant was deprived of the use of the vehicle in question.
As far as the issue of compensation is concerned, we feel that a lump sum amount of Rs.5000/ - will be just and proper in the facts and circumstance of the present case to be paid by the O.Ps jointly as there is no evidence of huge expenses incurred in by the complainant for the repairing of the Motorcycle. Besides, simultaneously, we also allowed Rs.2,000/- towards cost of the litigation to be paid by the O.Ps to the complainant. Hence order.
ORDER
In the result, we partially allow the case of the complainant against all O.Ps and the O.Ps are jointly and severally liable to compensate the complainant for the problem he suffered. The O.Ps are directed to pay Rs.5,000/- towards compensation and Rs.2,000/- towards cost of the litigation to the complainant within a period of two months from the date of receipt of this order failing which the complainant is at liberty to recover the same as per the relevant provisions of Consumer Protection Act, 1986. The consumer dispute is disposed of accordingly.
Order is pronounced in the open Forum today on 25th January 2016.
Copies of the order be supplied to the parties free of cost.
