DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD

Dated this the 21^th day of October 2019 

Present  : Smt.Shiny.P.R,  President

            : Sri. V.P.Anantha Narayanan, Member                    Date of Filing : 29/11/2016        

CC/186/2016

P.C.Nandakumar,                                                                                

S/o.Parameswaran Nair,

Parameswara Nilayam,                                                                                  

P.O.Pattambi, Palakkad

(By Adv.T.V.Pradeesh)

Vs     

1.  The Manager,

Runway Mobikes,                                                                        

Perinthalmanna Road,

Pattambi, Palakkad-679 303,

Palakkad, Kerala.

Hero Motorcorp Ltd. 6-A,

D.D.Trade Tower,

Kadavanthara Road, Kaloor,

Kochi, Ernakulam, Kerala.

(By Opp.parties 1 & 2 Adv.K.S.Arundas)

                                                      O R D E R

By Sri.V.P.Anantha Narayanan, Member  

Brief facts of the complaint are narrated below.

          The complainant had purchased a Hero Moto Corp Splendor iSmart Motor Cycle with product name Splendor Pro Cast Silver Black with chassis No. MBLHA12AC7HE13843 and engine No.HA12EM7HE14156 from the 1^st opposite party on 10/06/2015 paying a sum of Rs.60,500/- (Rupees sixty thousand five hundred only) vide receipt No.943.  According to the complainant this motor cycle had been serviced at the authorized service centre on six occasions.  For the aforesaid vehicle wide publicity was given and advertisements were also given in the print and visual media which guaranteed that the above said vehicle would give a mileage of 102.5 kilo meters per liter of petrol.  The complainant was clearly led to believe the assurances made by the advertisements.  Further the opposite parties also assured at the time of purchase that the motor cycle would give a mileage of 102.5 kilo meter per liter of petrol.  After the purchase of the vehicle, according to the complainant, the said vehicle is only giving a maximum of fifty kilo meters per liter of petrol despite the complainant using it as per the guidelines issued in the owner’s manual.  The complainant has at all times serviced the vehicle at its authorized service centre.  When the complainant had told the service centre about the above problem, the service persons it was revealed by the service persons that there is a manufacturing defect in the said vehicle and many parts require replacement.  The complainant had contacted the opposite parties regarding the said defect but no satisfactory reply was forthcoming.  The 2^nd opposite party had initially intimated the complainant that a service engineer would be deputed to see and cure the defect but no one has turned up to inspect the vehicle, the opposite parties have not responded to the queries of the complainant. The said attitude of the opposite parties would only show that there is no intention to redress the grievances of the complainant, the said defects have occurred within the warranty period.  The failure to rectify the same and ignoring the pleas of the complainant is clearly deficiency of service and unfair trade practice.  The complainant was clearly made to run from pillar to post seeking remedy to his genuine claim which has been overlooked by the opposite parties resulting in much mental torture and agony to the complainant.  It is the failure to cure the defects of the vehicle that has clearly resulted in the inability to achieve maximum mileage.  All assurances made initially have been misleading and no steps were taken by the opposite parties to help the complainant to secure the maximum mileage.  According to the complainant the said acts on the part of the opposite parties constitute gross negligence and deficiency of service and unfair trade practice.  The complainant caused to issue a lawyer notice to the opposite parties on 07/10/2016 and though the opposite parties have received the same, they have not cared to cure the defects nor to send a reply.  The complainant has faced huge mental tension and agony due to the acts of omission and commission on the part of the opposite parties.  The complainant falls within the definition of consumer under the Consumer Protection Act 1986.  The complainant had undergone much mental pain and financial loss and has to be compensated reasonably, as pleaded by the complainant.

          Complainant most respectfully prays to this Hon’ble Forum to (1) direct the opposite parties to replace the above hero Honda Moto Corp splendor iSmart motor cycle with a new one without defect or return the amount of Rs.60,500/- paid by the complainant for purchasing the same (2) to direct the opposite party to grant Rs.50,000/- as compensation for the mental agony and suffering undergone by the complainant (3) to order the opposite party to pay the cost of this complaint to the tune of Rs.10,000/- and (4) any other reliefs.

          The complaint was admitted and notices were sent to the opposite parties to enter their appearance and file their version.  In the version jointly filed by the opposite parties 1 and 2, it is contended that all the averments and allegations contained in the complaint except those that are specifically admitted here under are denied by these opposite parties. The complaint is not maintainable either by law or on facts and is misjoinder and nonjoinder of necessary parties.  The opposite party No.2 is the world’s largest manufacturer of two wheelers based out of India and 1^st opposite party is the authorized dealer of the 2^nd opposite party.  The above complaint is filed with a least good faith and as an experimental litigation. The complaint reflects that the complainant has consciously and with positive knowledge about the falsity of claims or contentions.  The complainant has wilfully, intentionally and deliberately misstated and misrepresented the true and correct facts with the sole objective of harassing these opposite parties without any cause, grievance or justification.  Hence the above complaint is to be dismissed in limeline.  The complainant may be put to strict proof regarding the averments contained in complaint.  It is true that the complainant herein purchased a motor bike having model ‘Splendor iSmart’-VIN No.MBLHA12ACFHE13843 from 1^st opposite party after fully satisfying himself regarding the description, functions and the sale price.  The averments contained in paragraph No.2 of the complaint are not fully correct, hence denied.  The allegation of manufacturing defect is utterly false and the same has to be proved by the complainant. The opposite party No.1, being a responsible market leader in automobile industry issued brouchers, advertisements through print and visual media highlighting the product qualities of the motor bike.  One among the quality of the motor bike is its mileage.  The figure shown in the various advertisements of the motor bike is based on the “fuel efficiency data March 2015” prepared by the S.I.A.M, a reputed institution by following testing norms pointed out in the Central Motor Vehicles Rules 1989.  This opposite party extended full support and assistance to the complainant.  But it seems to be an apparent attempt on the part of the complainant to extort illegal and unjustified gains by unnecessarily harassing these opposite parties without any just or cogent reasons for other obvious reasons and vested ulterior motives.  It is pertinent to note that the cause of action for the complaint is only an anticipation or apprehension of any defect caused in future.  The allegations contained in the paragraph No.3 of the complaint is not fully correct, hence denied.  At the time of entrusting the motor bike of the complainant for regular service, the complainant pointed out that there is mileage short. The 1^st opposite party conducted a detailed inspection and there was no defect with the motor bike.  The alleged problem of the motor bike of the complainant may be due to abnormal handling or usage. These opposite parties never informed the complainant that there is a manufacturing defect with the motor bike. Under standard warranty terms and condition, it is clearly mentioned that the obligation of the opposite parties shall be limited to repairing or providing replacement of parts only as per warranty terms and conditions.  The opposite party No.2 offers 5 year warranty for vehicles manufactured by it and the warranty offered by the opposite party No.2 does not extend to the defects arising out of abnormal usage or wear and tear of the parts.  Therefore, opposite parties are not liable for the defects alleged.  The averments and allegations contained in the 4^th paragraph of the complaint are not correct hence denied.  The complainant may be put to strict proof regarding the allegations leveled with regard to manufacturing defect.  The motor bike was inspected by the 1^st opposite party at the time of regular service and found that the same is in a perfect working condition.  The allegation of manufacturing defect and deficiency in service are categorically denied as being untrue and false.  The opposite parties also contend that, while purchasing the bike in issue, the complainant unequivocally accepted the warranty terms as provided by the manufacturer without any demur or protest which clearly goes to show that the complainant is bound by the warranty terms in the same way as the manufacturer. All the averments, accusations and allegations labeled in the complaint are non-existent, unfounded and untenable in law as being an afterthought and unlawfully indulging into dubious, unethical and illegal arm twisting tactics to cause serious and grave prejudice to the opposite parties without any justifications.  These opposite parties are not at all responsible for the monetary loss and averments contained in the complaint.  These opposite parties are not at all liable or responsible for the alleged monetary loss sustained by the complainant.  The cost and compensation claimed in the complaint are without any basis.  The complainant is not entitled to get the relief as prayed for.  As there is no deficiency in service or unfair trade practice from the side of these opposite parties, the complainant has no cause of action to prefer this complaint against the opposite parties.  There is no merit in this case and the same may be dismissed with cost. 

          Complainant and opposite parties filed chief affidavits.  2^nd Opposite Party did not file Vakalath, hence 2^nd opposite party was called absent and set ex-parte.                2^nd opposite party filed IA/23/17 to set aside the ex-parte order and also filed version.  Complainant filed IA/73/17 to appoint an expert commission, since opposite parties submitted no objection the IA was allowed and Mr.M.T.Davis, Joint RTO was appointed as an expert commissioner to inspect the disputed vehicle and file a detailed report.  Commission Report was filed and opposite parties filed objections to commission report.  They also filed IA/377/17 to set aside the commission report.  Commission report was marked as Ext.C1 and the expert commissioner was examined as CW1.  IA No.377/17 was partly allowed and commission report was remitted to the same commission for filing a detailed report and no steps were taken by the opposite parties for helping the expert commissioner to file a detailed expert commission report.  Complainant was cross examined as PW1 and Exts. A1 to A3 series were marked from the side of the complainant.  1^st opposite party was cross examined as DW1.  Both parties were heard.

The following issues arise in this case to be considered by this Forum.

1. Whether there is any deficiency in service and unfair trade practice committed by the opposite parties?
2. If so, the relief and cost available to the complainant?

Issues 1 and 2 in detail

          Exts.A1 to A3 series were filed by the complainant before this Forum to prove his pleadings. Ext.A1 is cheque/DD receipt No.943 dated 10/06/2015 issued by the 1^st opposite party to the complainant which evidences payment of Rs.60,500/- by the complainant to the 1^st opposite party for purchasing the disputed motor bike.  Ext.A2 is Form 8 B retail invoice No.713 dated 10/06/2015 which shows the details of the disputed motor bike purchased by the complainant such as product name, its chassis number, its engine no. colour etc.  Ext.A3 series is copy of lawyer notice along with acknowledgment cards and postal receipts, dated 07/10/2016 issued to the opposite parties by the complainant’s counsel instructing them to cure all defects of the disputed vehicle and give the said vehicle the assured mileage.  Ext.C1 is the expert commission report filed before this Forum.  As per the expert commission report “the complainant produced the motor cycle bearing registration number KL-52 H 7599 Hero make, Splendor iSmart motor cycle on 28/09/2017 and expert commissioner has inspected and conducted the road test, in his inspection the vehicle is found maintained in good condition and during the road test the motor cycle has obtained 52 km/ltr. in driving in normal road condition.

          We have perused the affidavits and documentary evidences of both parties and understood that induced by the guarantee of 102.5 km. per liter of petrol for the disputed motor bike as per the advertisements given in printed and visual media by the opposite parties, it is observed that complainant has purchased this disputed motor bike.  Even after servicing the vehicle by the opposite parties it is observed that the complainant is seen not getting the guaranteed mileage of 102.5km per liter of petrol.  The expert commission report also clearly shows that although the said vehicle is maintained in good condition, during the road testing conducted by the expert commissioner, the disputed motor cycle has obtained only 52 km./ltr. in driving in normal condition.  Further as per his deposition before this Forum as CW1 the expert commissioner has stated “Rm³ departmentse technical wing DÅ BfmWv.  Fsâ trade auto mobile engineering BWv.  Cu report ]dªncn¡p¶ Imcy§Ä BWv Rm³ test sNbvXXv.   meter test, mileage test F¶nh Rm³ \S¯nbncp¶p.  hml\w good condition BWv F¶v ]dªm AXn CXv FÃmw DÄs¸Spw.  Rm³ road test \S¯n.  Tank full to full method BWv Rm³ D]tbmKn¨Xv.  Rm³ Cu hml\w HmSn¨n«p­v.  h­n Rm³ ]cntim[n¨t¸mÄ good condition Bbncp¶p.  hml\w Cu case DÄs¸«XmWv F¶pÅXv Rm³ personally verify sNbvXn«pÅXmWv.  Rm³ ]cntim[n¨t¸mÄ h­nbpsS mileage 52km/ltr. BWv.  Rm³ ]cntim[n¨ vehicle \v 100 mileage  In«m\pÅ Hcp km[yXbpw CÃ"". 

          We also observe that all the opposite parties have raised objections to expert commission report(Ext.C1) but they are seen to have taken no steps to get the disputed vehicle examined in detail again by the expert commissioner and to ensure filing of a very detailed expert commission report by the expert commissioner. 

Thus   it has become quite clear that opposite parties have committed unfair trade practice by misselling the disputed two wheeler by misrepresenting its mileage as 102.5km./ltr. of petrol in printed and visual media and deficiency in service by not taking necessary steps and servicing properly the disputed vehicle to ensure that complainant is getting the promised mileage of 102.5km/liter, inspite of his complaint to the opposite party of not getting the promised mileage of 102.5 km/liter of petrol.  We also view that the expert commissioner has categorically stated in his deposition as CW1 that the disputed vehicle has got no chance to get 100 kms. mileage. 

          Hence we decide to allow the complaint.

          We also order jointly and severally the 1^st & 2^nd opposite parties to pay  Rs.10,000/- (Rupees ten thousand only) as compensation for selling the defective bike, which is not getting the promised mileage of 102.5 kilo meters per liter of petrol even after complainant getting it serviced by the 1^st opposite party, which is also confirmed by the expert commissioner.  We also order 1^st and 2^nd opposite party to pay Rs. Rs.10,000/- (Rupees ten thousand only) as compensation for mental agony suffered by the complainant together with cost of this proceedings incurred by him. 

This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to receive interest @ 9% p.a on the total amount due to him from the date of this order till realization.

Pronounced in the open court on this the 21^th day of October 2019 .

                                                                                               Sd/-

                                                              Shiny.P.R                                                                                

                                 President

                                      Sd/-

                 V.P.Anantha Narayanan

                                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 - cheque/DD receipt No.943 dated 10/06/2015 issued by the 1^st opposite party to

            the complainant

Ext.A2          -  Form 8 B retail invoice No.713 dated 10/06/2015 which shows the details of

             the disputed motor bike purchased by the complainant such as product name,

             its chassis number, engine no. colour etc

Ext.A3 series          -  copy of lawyer notice along with acknowledgement cards and postal

                       receipts dated 07/10/2016 issued to the opposite parties by the

                      complainant’s counsel

Commission report   

Ext.C1 -  Commission report dated.04.10.2017

CW1   -  Davis.M.T

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

PW1    -  Nandakumar

Witness examined on the side of opposite parties

DW1   -  Fahad Bin Muhammed

Cost & compensation for mental agony  - Rs.10,000/-