DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION PALAKKAD
Dated this the 05th day of May, 2022
Present : Sri.Vinay Menon V., President
: Smt.Vidya.A., Member
: Sri. Krishnankutty.N.K.,Member
Date of filing: 13/03/2018
CC/41/2018
Riyas.T.H - Complainant
S/o Haneefa,Thamaram Kunnath House,
Akalur Post,
Ottapalam Taluk,Palakkad.
(By Adv.Subramanian.P)
Vs
1. M/s Middle East Motors,
Palakkad Road, Pathiripala,Palakkad Dist. - Opposite Parties
2. M/s Adithya Auto Sales,
18/734, Yakara Road,
Palakkad.
3. M/s Hero Honda,
34, Community Centre, Basant Lok,
Vasant Vihar,New Delhi 110 057.
( Opposite parties By Adv. Vince M.J & K.S. Arun Das)
O R D E R
By Smt.Vidya.A., Member
Brief facts of the complaint
1. The Complainant purchased a 2016 Model Hero Motocorp Glamour Bike bearing Reg No KL-51/H-721 from the 2nd opposite party on 18/11/2016. The complainant noticed gear tightness while applying the second gear during driving and took the vehicle to the 1st opposite party. They told him that there may be some stiffness while applying gear in this type of vehicle and it will be alright during 2nd or 3rd service and asked him to maintain limited speed till third service. During the 2nd service also, the same problem persisted and the 1st opposite party informed the complainant that it is not a defect and when the vehicle covers more distance, it will run smoothy.
When the same problem continued even after 3rd service, he approached the 2nd opposite party for a thorough check up of the vehicle. The 2nd opposite party informed him that it was due to damage of gear shifting drum and is a manufacturing defect which ought to have been detected during 1st service. He took the vehicle after repair but later on found problems in the gear box and in the use of accelerator. Again the defect in the vehicle occurred frequently and the complainant was unable to use it even though he spent huge amounts for repair. The opposite party sold the vehicle with manufacturing defects and the complainant was totally misguided by the opposite parties.
The complainant who is a distributor of electric items has to meet many customers daily and because of the defects in the vehicle, he was unable to use it and suffered huge loss in his business.
The complainant contacted the 3rd opposite party many times for redressing his grievance, but they did not do anything. This amounts to clear Deficiency in service/Unfair Trade Practice on their part.
So this complaint is filed for directing the opposite parties to replace the vehicle with a new one or to refund its value of Rs. 59,555/- and to pay Rs.10,000/- for repair charges, Rs.25,000/- for mental agony and Rs.25,000/- for the loss suffered by him.
2. Complaint was admitted and notice issued to the opposite parties. Opposite parties entered appearance and filed their version. Even though opposite party 3 had put in appearanace , they were mistakenly stated to be exparte inspite of them contesting the matter all throughout.
3. The opposite parties in their version stated that opposite party 3 is a Public Ltd company and opposite party 1 & 2 are its authorised agents. Their contention is that, in this case when any after sale service/quality issue is brought to their notice, they immediately corrected it as a matter of priority. Even though the complainant alleges manufacturing defect in the vehicle, he has miserably failed to prove it by adducing cogent evidence. Merely because the vehicle had been taken to the workshop of the dealer several times or because a number of complaints had been addressed to various authorities of the opposite party company , it will not amount to manufacturing defect.
It is true that the complainant approached the 2nd opposite party for regular service many times and once he stated that there is gear stiffness. On inspection, it is found that the gear system of his bike became defective due to negligent/abnormal use and they replaced the defective part free of cost since the vehicle is under warranty. The complainant had inspected and received it with complete satisfaction on 06/10/2017 and after that he never approached the opposite party for availing service.
The complainant’s motor bike covered more than 12,000 kilometers in the last 15 months and the allegation that he could not use and enjoy the vehicle from the date of purchase and sustained loss is not correct. The complainant’s vehicle is free from any defect. The averments, accusations and allegations in the complaint are untenable and the opposite parties are not liable for the alleged monetary loss sustained to the complainant. There is no Deficiency in Servie/Unfair Trade Practice on the part of the opposite parties. The complainant is not entitled to the reliefs claimed and it has to be dismissed with cost to the opposite parties.
4. Main points to be considered.
1. Whether there is any Deficiency in Service on the part of opposite parties ?
2. Whether the complaint is entitled to the reliefs claimed ?
3. Reliefs & costs if any.
5. Even though several postings were given, the complainant did not file proof affidavit and so his evidence was closed. Opposite parties filed proof affidavit. No documents were marked from their side.
Points 1, 2 & 3
6. Complainant’s main grievance is with regard to the gear tightness while applying the second gear in the vehicle during driving. As per the complaint, he intimated this problem in the vehicle to the 1st opposite party and they assured that it will be alright after 2nd or 3rd service which did not happen. Later on, he found problems in the gear box and in the use of accelerator. The problems in the vehicle persisted even after 5th service and he could not enjoy the vehicle from the date of its purchase and had spent huge amount for repairs. The complainant alleges manufacturing defect in the vehicle.
7. The opposite parties stated that the complaint approached the 2nd opposite party for regular service many times and once he complained about the gear tightness and they cured the defect by replacing the defective part free of cost as it was within warranty period and the complainant received the vehicle with full satisfaction. They contended that the vehicle is free from any defect as it had covered more than 12,000 Kilometers in the last fifteen months and there is no manufacturing defect in the vehicle as alleged by the complainant.
8. Complainant filed IA 256/18 to appoint an expert Commissioner to inspect the vehicle and to note the manufacturing defects in the vehicle and it was allowed. The commissioner filed an interim report stating that on the date of inspection, the vehicle was not having insurance and since the insurance of the vehicle seems to have expired on 17/11/2017, he could not complete his inspection on that day and it was postponed to 06/02/2019. On 06/02/2019 he inspected the vehicle in the presence of both parties and filed final report. These two reports are marked as Ext C1 & C2. In Ext C1, the Commissioner has stated that there is no gear tightness in the vehicle. He reported that “hml\w ÌmÀ«v sNbvXv sFUnenwKv kv]oUv IrXyamsW¶pw, i_vZ hyXymk§Ä H¶pw CÃmsb¶pw Dd¸p hcp¯n. hml\¯nsâ tÌjWdn s]mknj\n \yq{Sen \n¶pw ^Ìv Knbdnte¡pw, Xncn¨v \yq{Sente¡pw KnbÀ amän t\m¡pIbpw, KnbÀ ssSäv\kv CÃmsb¶pw t_m[ys¸«q”.
9 The Commissioner further reported that inorder to test the tightness in the second gear, he drove the vehicle 16 Kms with complainant as pillion rider and 15 Kilometers with representative of opposite party. He tested the vehicle in different types of roads and by changing the gear. He reported that “hml\w hnhn[ tdmUp kmlNcy§fn HmSn¨p t\m¡n C§s\ ]e XhW hml\¯nsâ FÃm KnbdpIfpw amän HmSn¨p t\m¡n. sk¡âvdv Knbdn ssSäv\kv Dtmsb¶v Adnbp¶Xn\mbn ^Ìv Knbdn \n¶pw sk¡âvdv Knbdnte¡pw sk¡âvdv Knbdn \n¶v tXÀUv Knbdnte¡pw AXp t]mse Xncn¨pw ]e XhW KnbÀ amän t\m¡ns¡mv hml\w HmSn¨Xn \n¶pw Xmsg ]dbp¶ \nKa\§fn F¯nt¨À¶p.
1. hml\¯nsâ KnbÀ amäp¶Xn\v Hcp XhW t]mepw ssSäv\kv A\p`hs¸«nÃ.
2. hml\¯nsâ FÃm KnbdpIfpw {^o Bbn F³tKPv BIp¶p.”
10. Finally the expert commissioner in his report concluded that there is no gear tightness in the vehicle. Since the vehicle is two years old and it has covered 16,687 Kms and due to repair of many parts during service, he was not in a position to conclude that the vehicle suffers from any manufacturing defects.
11. The complainant filed objection to the Commission report and filed an IA 80/2020 to remit back the report to the Commissioner directing him to inspect the exact defects(real problems) in the vehicle. But that IA was dismissed by this Commission as the matters sought to be ascertained were already answered and so the report became final and admitted in evidence as Ext C1.
12. From Ext C1, it is clear that the problem of gear tightness which is the main grievance of the complainant is already resolved and now the vehicle is free from any defects . The commissioner has noted that as per Invoice No. 22566BG18V2188 issued by M/s Bright Motors, certain major repairs had been carried out in the vehicle. All those repairs were carried out under warranty and the vehicle was in good working condition when it was brought before the commissioner for inspection. At that time the odometer reading was 16,687 Kilometers and the commissioner has noted that when the vehicle was brought for inspection it had covered 691 Kilometers after repair.
13. Even though the complainant alleges manufacturing defect in the vehicle, he had not succeeded in proving his contention. The expert’s report clearly states that the vehicle is free from defects and is in good working condition when it is brought for inspection. . No steps were taken by the complainant for cross examining the expert and to contradict the expert’s opinion.
Merely because the vehicle was taken to workshop many times and had undergone repair does not mean that the vehicle suffers from any manufacturing defect. Manufacturing defect is one which cannot be repaired and renders the vehicle useless. Here the complainant’s vehicle had covered 16,687 Kilometers in 2 years which shows that the vehicle is in good working condition.
The National Commission in Maruti Udyog Ltd Vs Hashmukh Laxmi Chand(2009) 3CPJ 229, it was held that manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. Manufacturing defect is fundamental basic defect which creeps in while manufacturing a machinery.
14. In this case, the opposite parties had replaced the defective parts and made the vehicle in good working condition. So there is no deficiency in service on their part. Replacement of vehicle by manufacturer is only permissible in case there is some manufacturing defect in the vehicle which cannot be repaired and renders the same useless. There is no evidence on record to show that there was some manufacturing defect in the vehicle which was beyond repair.
15. Hence the complainant had not succeeded in proving his claim of manufacturing defect by adducing cogent evidence. In the absence of cogent evidence we are not inclined to allow the complainant’s claim for replacement of the vehicle or refund of the value of the vehicle.
In the result, the complaint is dismissed.
Pronounced in the open court on this the 05th day of May 2022.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/-
Krishnankutty.N.K
Member
Exhibits marked on the side of complainant
NIL
Exhibits marked on the side of Opposite parties
NIL
Court Exhibits
C1- Interim report dated 30/01/2019 filed by Expert Commissioner
C2- Final report by the Expert Commissioner with regard to inspection carried out on 23/01/2019.
Cost: Nil
