BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 346/2005 Filed on 17.10.2005

Dated : 16.04.2010

Complainant:

S. Suneesh Kumar, S/o Sundaresan Nair, 2/16, Vellaikadavu, Puliyarakonam, Thiruvananthapuram (now working as Manager, United News of India, Vishnumaya, Pattanikkunnu Lane, Sasthamangalam, Thiruvananthapuram.

(By adv. K.S. Suja)

Opposite parties :

1. The Manager, Cheran Automobiles(Authorized Dealer of Hero Honda Company), Cape Road, Neeramankara, Kaimanam, Pappanamcode P.O, Thiruvananthapuram-18.

    

2. The General Manager, Hero Honda Motor Ltd., 34, Community Centre, Vasanth Lok, Vasant Vihar, New Delhi-110 057.

(By adv. S. Ajith)

This O.P having been heard on 15.03.2010, the Forum on 16.04.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

The facts of the complaint are the following: That the 1^st opposite party is the authorized dealer of Hero Honda Company and the 2^nd opposite party is the manufacturer of Hero Honda Motor Ltd. That on 27.10.2004 the complainant had booked a Hero Honda Passion Plus Bike with the 1^st opposite party for ready cash payment and the complainant selected a bike of his own choice bearing Engine No. 04 K 08 M 22850 and Chasis No. 04 K 09 C 22583. As directed by the 1^st opposite party, on 28.10.2004, when the complainant approached the 1^st opposite party for taking delivery of the vehicle after completing the registration formalities, the 1^st opposite party informed the complainant that only the insurance policy of the above said vehicle was taken with the Oriental Insurance Company and the registration procedure is not yet completed. On believing the words of the 1^st opposite party, again on 29.10.2004, when the complainant approached the 1^st opposite party, the 1^st opposite party after receiving the entire amount of Rs. 42,691/- delivered the vehicle to the complainant after completing all the formalities. But to the utter shock of the complainant, the 1^st opposite party delivered another bike bearing Engine No. 04 JO 8 M 43260 and Chasis No. 04 JO 9C 42866, which is not the dream bike of the complainant, already booked by him with the 1^st opposite party. When the complainant enquired and complained about this change of vehicle, the 1^st opposite party very cunningly dodged by giving lame excuses and flimsy reasons. Thus the complainant has no other go, but constrained to take the vehicle supplied by the 1^st opposite party and also, again forced to take the insurance policy for the vehicle supplied by the 1^st opposite party. Moreover the vehicle supplied by the 1^st opposite party is a defective one and not in a good condition due to the problems of shock absorber and its performance as a whole. Several times the complainant personally complained the defects of the vehicle to the 1^st opposite party and also made representation to the 2^nd opposite party through the registered letter dated 05.02.2005.But the 1^st and 2^nd opposite party had not made any response and also the complainant sent a reminder letter dated 07.04.2005 to the 2^nd opposite party. But even after receiving the reminder there was no response either from the side of the 1^st or 2^nd opposite parties and the opposite parties were not ready to exchange the vehicle with a new one of complainant's choice and satisfaction as prayed in the notice dated 05.02.2005. Thus on 01.09.2005, the complainant sent a legal notice to the 1^st and 2^nd opposite parties demanding either to exchange the bike with a new one of complainant's choice or to refund the amount of Rs. 42,691/- with interest at the rate of 12% along with Rs. 300/- towards the cost of the notice. Both the 1^st and 2^nd opposite parties received the notice and the 1^st opposite party replied by denying all the truthful submission made by the complainant and the 2^nd opposite party not cared to send any reply till this date. The complainant has made several complaints about the defects of the bike within four months from the date of purchase of the vehicle to the 1^st and 2^nd opposite parties personally and through registered letter and reminders. Thus the 1^st and 2^nd opposite parties have committed deficiency in service and unfair trade practice to the complainant. Hence this complaint is necessitated.

In this case 1^st opposite party filed version for himself and for and on behalf of 2^nd opposite party also. In the version, they have stated that the Motor Cycles manufactured by Hero Honda Motors Ltd, the 2^nd opposite party, is high standard and defect free in all aspects. The vehicles are put to thorough check up at every point of manufacturing. Therefore there is no basis for the allegations made by the complainant with respect to the defects in the vehicle. The complainant has not booked any vehicle on 27.10.2004 as alleged. The complainant has not selected any bike as stated with the engine number, chasis number given in the complaint. The complainant has no reason to approach the opposite party on 28.10.2004 and the opposite party has no knowledge about the taking of insurance policy etc. The complainant purchased the vehicle on 29.10.2004 after making the payment of price of the vehicle and the vehicle was delivered to him on the said date itself. Opposite party further stated that the complainant has no allegation that the registration certificate contains engine number and chasis number different from that of the vehicle which is in possession of the complainant. Therefore there is no basis in the allegation of change of vehicle. The registering authorities are registering the vehicle after satisfying with the correctness of the engine number and chasis number embossed on the vehicle. The opposite party stated that the complainant has not informed any complaints with the opposite party regarding the defects in the vehicle. On receipt of the notice from the complainant the opposite party specifically requested him to produce the vehicle if there is any defects, but he has not produced the vehicle which would prove that there is no defect in the vehicle as alleged. Opposite party further stated that there is no specific allegation with respect to the alleged defects in the vehicle. There is only a vague allegation that there is defect in the vehicle and this would prove that the allegation is baseless. There is absolutely no deficiency in service on the part of the opposite party and opposite party has not adopted any unfair trade practice. Hence they prayed for the dismissal of the complaint.

Complainant in this case filed proof affidavit in lieu of chief examination and he was examined as PW1. From his side Exts. P1 to P7 were marked. The opposite parties in this case did not adduce any evidence.

Points that would arise for consideration are:-

1. Whether there has been unfair trade practice or deficiency in service occurred from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs?

Points (i) &(ii):- The case of the complainant in short is that he had booked a Hero Honda Passion Bike with the 1^st opposite party on 27.10.2004, he selected the bike bearing Engine No. 04 K 08 M 22850 and Chasis No. 04 K 09 C 22583. But the bike which was delivered by the 1^st opposite party was another one having Engine No. 04 JO 8 M 43260 and Chasis No. 04 JO 9C 42866 which is not the dream bike already booked by him. And the complainant also alleges that the bike supplied by the opposite party is defective. Complainant's repeated requests and demands to change the bike with a new one of complainant's choice or refund the price of the vehicle was denied by the opposite parties. To prove his case complainant as PW1 produced some documents. The copy of insurance policy of bike having Engine No. 04 K 08 M 22850 and Chasis No. 04 K 09 C 22583 supplied to the complainant by the 1^st opposite party is marked as Ext. P1 and the cover note of the same is marked as Ext. P1(a) and the invoice dated 29.10.2004 is marked as Ext. P2 and the copy of insurance policy of bike having Engine No. 04 JO 8 M 43260 and Chasis No. 04 JO 9C 42866 supplied to the complainant by the 1^st opposite party is marked as Ext. P3, the copy of R.C Book is marked as Ext. P4, the registered letter send by the complainant to the opposite party is marked as Ext. P5, the postal receipt of the same was marked as Ext. P5(a) and the acknowledgement signed by the opposite party is marked as Ext. P5(b), the registered reminder send by the complainant to the opposite party is marked as Ext. P6, the postal receipt and the acknowledgement of the same was marked respectively as Ext. P6(a) and Ext. P6(b), the legal notice signed by the complainant is marked as Ext. P7 and the acknowledgement cards signed by the opposite parties are marked as Ext. P7(a) and Ext. P7(b) respectively. In this case no evidence was adduced by the opposite parties. Exts. P1 and P1(a) policy certificate and its cover note issued by the Oriental Insurance Company Ltd in the name of the complainant show that Engine No. of the vehicle is 04 K 08 M 22850 and Chasis No. 04 K 09 C 22583 dated 28.10.2004. As per Ext. P2 invoice dated 29.10.2004 Chasis No. of the vehicle is seen as 04 JO 9C 42866 and engine No. 04 JO 8 M 43260. As per this document the complainant got the vehicle which is in his possession now. As per this document the Oriental Insurance Company issued another policy certificate in the name of the complainant in the same date i.e, on 28.10.2004. That document is marked as Ext. P3. At the time of cross examination the complainant answered the question put forward by the opposite party as “ Ext. P1 opposite partyസ്ഥാപനമാണ് issue ¨OiíY® F¼® J¡X¢´¡u F¨ÉÆ¢k¤« endorsement AY¢v D©Ù¡? (Q) ©jK C¿, opposite party Bണ് issue ¨OiíY®. Showroom-cJ·® Y¨¼ insurance company- i¤¨T Bq¤Jq¤Ù®.-” It is the usual practice that the dealers itself clear out all the papers in connection with registration and insurance of the newly purchased vehicle. In this case complainant himself admitted that he has been using the vehicle since the date of purchase and till now. And moreover in this case the complainant never turned up to ascertain the defects of the vehicle by an expert commissioner. And he has no specific case regarding the defects of the vehicle. From the documents and evidences adduced by the complainant we can conclude that the statement of the complainant that the vehicle which he booked was not delivered to him is true. From Ext. P1 and P1(a) document it is clear that the complainant booked the vehicle bearing Engine No. 04 K 08 M 22850 and Chasis No. 04 K 09 C 22583. But the opposite party delivered another bike bearing Engine No. 04 JO 8 M 43260 and Chasis No. 04 JO 9C 42866. Due to the pressure of the circumstances the complainant was compelled to purchase that vehicle. For that reason he suffered a lot of mental agony. Hence the 1^st opposite party is liable for their unfair trade practice and they are liable to compensate the complainant. Hence the complaint is partly allowed.

In the result, 1^st opposite party is directed to pay Rs. 5,000/- as compensation to the complainant. The 1^st opposite party shall also pay Rs. 2,000/- as costs of the proceedings. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid to the entire amount. 2^nd opposite party is exempted from any liability.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 16^th day of April 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 346/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Suneesh Kumar

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of certificate-cum-policy schedule.

P2 - Photocopy of insurance policy.

P3 - Photocopy of certificate cum policy schedule

P4 - Photocopy of R.C Book

P5 - Photocopy of letter dated 05.02.2005

P5(a) - Acknowledgement card

P6 - Reminder letter dated 07.04.2005

P6(b) - Acknowledgement card

P7 - Photocopy of legal notice dated 31.08.2005

P7(a) - Acknowledgement card

P7(b) - Acknowledgement card.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT