D.O.F. 22.08.2010

                                        D.O.O.27.03 .2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

       Present:   Sri. K.Gopalan                 :    President

             Smt. K.P.Preethakumari  :     Member

             Smt. M.D.Jessy                :     Member

Dated this the 27^th   day of March   2012

C.C.No.268/2010

P.V.Sivadasan,

Kottukulathil House,

P.O.Mundakutti,

(Via)Mananthavadi.

Now residing at Puthanveetil,

P.O.Ummanchira,

Thalassery 670 649.                                                   Complainant

(Rep. by  Adv.V.R.Nasar) 

 1. Manager, Fortune Motors,

     Gopal Peta, Thalassery.

     (Rep.by Adv.V.V.Muthukrishnan)

 2. Koyenco Mobikes,

     Koyenco Square,

     Chakorathuykulam,

     Nadakkavu Road,

     Kozhikode 11.

     (Rep. by Adv.M.Kishore Kumar)

 3. Hero Honda Motos Ltd

     Head office, 34, Community Centre,

     Basant Lok, Vasanth Vihar, New Delhi.

     (Rep.by Adv.Mathaka sine)                                   Opposite parties

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to pay `25,000 as compensation together with cost of this litigation.

          The brief facts of the complainant’s case are as follows: The complainant purchased one hero Honda splendor motor bike from the opposite party. The registration number of the vehicle is KL.58C2749. At the time of purchase he was made believe that there would be 2 years warranty from the date of purchase. At the time of delivery of the vehicle the sticker which was affixed on the tank of the motor bike  was found to be damaged and the same was  endorsed in the owner’s manual and agreed to provide a new sticker at the earliest. But at the time of delivery of the vehicle opposite parties failed to provide new sticker. Complainant entrusted the bike to the 1^st opposite party for service and specifically instructed to repair or replace the chain cover which was found to be damaged. 1^st opposite party being the authorized service centre of 3^rd opposite party was   legally bound to  take care of the complainant, but they did not do anything to rectify the defect,  pointed out to them. When the complainant expressed his dissatisfaction and reluctant to sign in the papers required, they agreed to communicate the matter to 3^rd opposite party and to provide necessary replacement after obtaining parts from the company. 1^st opposite party asked the complainant to contact after 2 weeks. Though complainant contacted opposite parties 1 and 2    several occasions to get proper service, they were intentionally evaded from doing required service and thereby complainant was compelled to approach another work shop for rectifying the defect. Due to the negligence on the part of opposite parties to attend the legitimate complaints, the complainant has suffered great mental agony and monetary loss. Complainant sent lawyer notice claiming compensation for the loss. Though opposite party sent reply agreeing to resolve the complaints, they did not do anything to rectify the defects,  hence constrained to file this complaint.

Pursuant to the notice opposite parties 1 to 3 entered appearance and filed version denying the dispute.

The contentions raised by 1^st opposite party in brief   are as follows:

The allegation that the chain cover was damaged and the same was endorsed in the manual at the time of delivery of the bike is not correct. There was no assurance to provide new sticker to the motor bike of the complainant. Complainant purposefully suppressed the material facts. On 23.10.2010 complainant entrusted the vehicle to 1^st opposite party for replacing the horn and the same was replaced. Again on 11.11.09, 16.2.10 and 25.5.10 the complainant entrusted the vehicle to the 1^st opposite party but all these occasions this opposite party had affected his service without any fault and dissatisfaction. There was no grievance or complaint on the part of complainant at the time of delivery of the vehicle. It is false to say that the opposite party agreed to communicate the matter to 3^rd opposite party. This opposite party never evaded the service work to the complainant. When the legal notice of the complainant was received this opposite party intimated the complainant by registered post to visit the office of  1^st opposite party for the inspection of the vehicle in order to rectify the defect. The complainant received the notice but he did not turned up. The allegations that this opposite party insulted the complainant etc. are false. The complainant was not even ready to keep the vehicle at the service centre at least for one hour. In order to find out and rectify the complaint this opposite party used to insist every customers to keep the vehicle in the service centre for sometimes. But the complainant was not amenable for the same. This complaint is filed only for unjust  enrichment. Hence to dismiss the complaint.

The contention that has been taken by 2^nd opposite party in brief are as follows:  This opposite party in no way connected with alleged complaint as well as deficiency of service attributed by the complainant. After the sale of the vehicle this opposite party has no occasion to attend the vehicle. It is true that this opposite party endorsed in the Owner’s manual regarding the damage caused to the sticker which was affixed on the tank of the motor bike. This opposite party assured the replacement of the sticker of a new one. Since the sticker has to come from the manufacturer this opposite party could not replace the same with a new one. After receiving the  sticker  from the manufacturer complainant was informed the  fact, but he did not approach this opposite party for replacement.  This opposite party is always ready and willing to replace the same with a new one. Instead of approaching this opposite party for replacement of sticker the complainant caused to issue legal notice alleging untrue and untenable contentions. In fact, this opposite party is unnecessary party. Immediately when the legal notice was received complainant was contacted over telephone and informed him about the continued readiness and willingness to replace the sticker with a new one. But complainant was not willing to contact this opposite party but filed this complaint. The complainant impleaded this opposite party knowing well that this opposite party is no way connected with any of this allegation. Hence to dismiss the complaint against this opposite party.

The brief facts of the contention of 3^rd opposite party are as follows: On enquiry it is understood that  after the purchase of the vehicle the same was brought in  various service at 591 kms on 11.11.09,on 16.2.10 at 2456 kms, on 22.5.10 at 4745 kms, on 6.8.10 at 6090 kms, at 7589 kms and on 25.1.11 at 9270 kms. In fact the later 3 services were done at M/s. Arjun Associates, the authorized service centre of this opposite party.  On all the above occasions only routine service like preventive maintenance replacement of engine oil, minor routine complaints etc. was raised. In this context the complainant had raised a complaint with respect to chain sound during the 2^nd free service dt. 16.2.10 and the same have satisfactorily attended. It is evident from the service records that the complainant has not raised any complaint with respect to the chain sound or any other complaints repeatedly there after. In fact the complaints raised by the complainant are extremely minor in nature. It was intimated to the complainant by this opposite party to bring his vehicle to the service station for inspection and for effecting necessary repairs if any. The request was made with the letter dt/3/9/10 and further a reminder letter was also issued on 2.12.10.  But complainant did not respond. The present complaint is filed without disclosing those facts. As a matter of fact  1^st opposite party offered warranty  for a period of 3 years  from the date of purchase  or 4000 kms whichever is earlier. The contention of complainant that the sticker affixed in the tank of the motor bike is found to be damaged when taking delivery of the vehicle is to be put to strict proof. This opposite party is ready and willing to take appropriate steps to provide a new sticker for the vehicle of the complainant if his complaint is genuine. The complaint that has been   alleged in the present case do not happened due to any sort of manufacturing defect. In fact any sort of complaint has  been reported at the time of delivery of the vehicle and further the above alleged complaint is not reported during any of the service carried out by the complainant with the authorized service centers of this opposite party. The complainant did not given specific details about the dates and instances when the 1^st opposite party showed negligent and careless attitude. There is absolutely no cause for the complainant to raise the present complaint.  The relief sought by the complainant claiming compensation is absolutely meritless and is liable to be rejected. Hence to dismiss the complaint.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite

     Parties?

2. Whether the complainant is entitled for the remedy as

    prayed in the complaint?

3. Relief and cost.

The evidence consists of the oral testimony of PW1 and Exts.A1 to A8 on the side of complainant. Though PW1 was cross examined for opposite parties 1 to 3 the opposite parties did not adduce any oral evidence to substantiate their contention.Exts.B1 to B7 marked on the side of opposite parties

Issue Nos.1 to 3

          Admittedly complainant purchased Hero Honda splendor Motor Bike from 2^nd opposite party. The case of the complainant is that at the time of delivery of vehicle the sticker which was affixed on the tank of the Motor Bike was found to be damaged and the same was endorsed in the owners manual and agreed to provide a new sticker at the earliest. But opposite party failed to provide new sticker. Complainant entrusted the Bike to 1^st opposite party for service and specifically to repair or replace the chair cover which was found to be damaged. But it was not rectified. When protested they agreed to communicate the matter to 3^rd opposite party and to provide necessary replacement. As per direction, complainant contacted opposite parties 1 and 2 several times to get proper services. But they did not carried out the rectification work. Even after replying to legal notice sent by complainant opposite party did not do anything to rectify the defects.

          2^nd opposite party admitted in their version that opposite party has endorsed in the owners manual regarding the damage caused to the sticker which was affixed on the tank of the motor bike. This opposite party assured the replacement of the sticker with a new one. 2^nd opposite party could not replace the sticker since the same has to come from manufacturer. After receiving it from manufacturer complainant was informed but he did not turned up. Thus opposite party is ready and willing to replace the same.

          3^rd opposite party contended that the services were done by authorized service centre/M/s. Arjun Associates. It is evident from the service records that the complainant has not raised any complaint. This opposite party intimated the complainant on 3.9.2010 to bring his vehicle to the service station for inspection and repair. A reminder letter dated 2.12.2010 also sent. But complainant did not respond. The opposite party has not made any assurance to give a new sticker as claimed by the complainant. However opposite party is ready and willing to provide new sticker.

          Opposite parties though raised contention by filing version none of them produced any evidence in support of those contentions. But PW1 was cross examined by opposite parties. In the cross examination for opposite parties 1 and 3 complainant/PW1 deposed that the vehicle purchased on 22.9.09 and his complaint is with respect to the scratches on the sticker on the tank. He has stated thus: “Cu hml-\T 22.9.09-mT Xob-Xn-bmWv hm§n-bXv. h­n-bpsS  tanksâ apI-fn ]Xn-ªn-cn-¡p¶ sticker\p scratches h¶-XmWv Fsâ ]cmXn . PW1 further deposed as follows: The vehicle was given for first free service on November 2009. The complaint of sticker was reported then. But it was not rectified or replaced. Chain cover damage was his other complaint. He understood chain cover damage after one week of the first service. That was repaired by one Mechanic Prejith. After that vehicle was given for service twice.

                    PW1 was cross examined for 2^nd  opposite party also. PW1 deposed in cross examination of 2^nd opposite party that the scratch damage was on the left side sticker of the tank.

          The evidence goes to show that the main complaint of the complainant is with respect to the damage of the sticker on the tank. Ext.B1 to B6 marked on the side of the opposite parties. Exts.B1 to B5 is job cards and Ext.B6 is the letter sent to complainant. No witness examined to prove these documents. On going through these documents it can be seen that none of these documents gives answer to the issue regarding sticker, the main allegation of the complainant.

The 2^nd opposite party in his version admitted that he has endorsed in the owner’s manual regarding the damage caused to the sticker. Since it is admitted by 2^nd opposite party there is no need to go further to prove that the sticker was damaged when the vehicle was delivered. Moreover, the very entry of the damage in the owner’s book at the time of delivery indicates clearly that opposite party undertakes to replace the same. The available evidence on record and the version of opposite parties makes it clear that the sticker was not replaced. The contention taken that the complainant did not approach opposite party for the replacement of sticker does not hold good since there is ample evidence to show that complainant’s vehicle has undergone free services from the authorized service centre.  Moreover, complainant also sent legal notice. 3^rd opposite party has contended that 2 letters were sent to complainant to bring his vehicle to authorized  service centre for the purpose of rectification or replacement has not been proved by producing the copy of letter together with acknowledgement card. At least they could have produced office copy of the letter. Hence it is a baseless contention that opposite parties were ready and willing to replace and repair the vehicle. There is no single piece of paper before the Forum to come into conclusion that the opposite parties were ready and willing to replace the sticker and repair the vehicle. Hence we have no doubt that there is clear deficiency on the part of opposite parties.

          Complainant has the case that he has suffered economic loss and mental pain. But he has not produced any evidence with respect to his actual loss. He has deposed in cross examination that “ stickersâ hne  F\n-¡-dn-bnÔ. The main compliant of the complainant starts with the damage of the sticker on the tank. That itself shows complainant had taken little care to place before the Forum  the evidence of the actual  damage that he has suffered. Consumer Fora is not expected to go beyond the extent ignoring the spirit of accountability. Hence we are of opinion that an amount of `5000 towards compensation including cost of this litigation, will meet the end of justice. Thus the issues 1 to 3 are found partly in favour of complainant.

          In the result, the complaint is allowed partly directing the opposite parties to pay a sum of   `5,000 (Rupees five Thousand only)   as compensation together with `1000 (Rupees One thousand only) as cost of this litigation to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection Act.

                         Sd/-                     Sd/-                    Sd/-                                            

President              Member                Member

APPENDIX

Exhibits for the Complainant

A1.Copy of the lawyer notice sent to OPs

A2.Postal receipts

A3. Postad AD cards

 A4.Tax invoice  dt.22.9.09 issued by OP

A5.Insurnace policy

A6.Copy of the ownership record

A7. Cash receipt issued by OP2.

A8. ‘Privilege offer’ chit

Exhibits for the opposite party:

B1to B3.Free service job cards issued by  1^st OP to complainant

B4& B5.free service job card issue by Arjun Associates to complainant

B6. Copy of the notice sent to complaint by 1^st  OP

B7. Postal AD

Witness examined for the complainant

PW1.Complainant

 Witness examined for the opposite parties: Nil

        / forwarded by order/

                                                                                      Senior Superintendent