Tamil Nadu

South Chennai

CC/105/2015

Mr.S.Sivaraj - Complainant(s)

Versus

The Managing Director, Hero Moto Corp, - Opp.Party(s)

M/s.S.Petchi Muthukumar

09 Aug 2017

ORDER

                                                                        Date of Filing :   27.02.2015

                                                                        Date of Order :   09.08.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO.105/2015

WEDNESDAY THIS  9^TH DAY OF AUGUST 2017

 

Mr. S.Sivaraj,

S/o. Selvaraj,

No.54, Bala Garden,

Old Jothi Nagar,

Madambakkam,

Chennai 600 126.                                             .. Complainant

                                        ..Vs..     

 

1.  The Managing Director,

Hero MotoCrop,

Registered Office,

No.354, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi 110 057.

 

2. The Managing Director,

Mohana Motors,

(Unit of Mohana Automobile),

No.131/137, Velachery Bye-Pass Road,

Velachery, Chennai 600 042.                           .. Opposite parties.

 

 

Counsel for Complainant         :  M/s. S. Petchi Muthukumar & another

Counsel for opposite parties    :  M/s. S. Ramasubramaniam & Associates.

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to replace the Hero Xtreme having engine No.KC 12EEEGF07749, bearing vehicle registration No.TN14-A 8547 or to pay sum of Rs.66,700/- towards cost of the Vehicle and also to pay a sum of Rs.30,000/- towards mental agony.

 1. The averment of the complaint in brief are as follows:

         The complainant submit that on seeing advertisement of the opposite parties, he  purchased Hero Xtreme two wheeler vehicle bearing registration No.TN 14-A 8547 on 31.10.2014 exchanging his old vehicle.  After due exchange the total cost paid is Rs.66,700/-.  The complainant further state that right from the date of purchase there was a noise in the engine.  Hence the complainant brought the vehicle to the 2^nd opposite party for due repair.   Further the complainant state that the 2^nd opposite party after due check up and service stated that there was a leakage of oil and after complying the complaint returned the vehicle to the complainant.   But again engine noise was persisting.  So the complainant left the vehicle to the 2^nd opposite party and demanded for replacement of the vehicle.   The 2^nd opposite party after complying the first service  returned the vehicle on 17.11.2014 stating that there shall be no replacement.   Even after repeated service the oil leakage engine noise coupled with gear getting tighter and getting struck continued.   On 7.1.2015 once again the complainant sent the vehicle for 2^nd service.  After 2^nd service the condition of the vehicle become worse as the piston, engine bore and engine parts were under repair which was replaced by the 2^nd  opposite  party  on  11.2.2015.  Even then the said defect was persisting because of manufacturing defect.     As such the act of the opposite parties clearly amounts to gross deficiency in service and thereby caused harassment, mental agony  and hardship to the complainant.  Hence the complaint is filed.

2. The brief averments in the Written Version of  the 1^st opposite party and adopted by the 2^nd opposite party  are as follows:

        The opposite parties deny each and every allegation except those that are specifically admitted herein.   The opposite parties state that  the complainant brought his vehicle for first free service to the 2^nd opposite party on 17.11.2014 at 640 kms.   The free service was done by issuing a job card.    Thereafter on 7.1.2015 the complainant brought his vehicle for second free service at 3145 kms.    Further in the second free service, the 2^nd opposite party  has checked and found that the oil level was good.   Further the opposite parties state that the vehicle was in good condition and there is no manufacturing defect or deficiency in service rendered by the opposite parties as falsely alleged by the complainant.    Subsequently the complainant again gave his vehicle for quick service on 2.2.2015 at 4364 kms.   This would mean that between the second free service and the quick service, the complainant had used the vehicle for 1219 kms.  At this time i.e. after driving the vehicle for 4364 kms, the complainant state that the vehicle was not moving properly and therefore the complainant had taken the vehicle to a local mechanic who informed the complainant to fill engine oil.  The complainant permitted the local mechanic to fill engine oil in the vehicle.    The opposite parties  further state that  the complainant went to a local mechanic who is not an authorized service provider / workshop of the 1^st opposite party before he came to the 2^nd opposite party who is an authorized service provider / workshop of the 1^st opposite party.    Further the terms of the warranty clearly state that only Hero 4 T plus genuine oil must be used for the vehicle.     The opposite parties also state that the warranty for the vehicle is not applicable since contrary to the provisions of the warranty, the complainant got the vehicle serviced /repaired by a local mechanic not authorized by the 1^st opposite party and also used an oil not recommended by the 1^st opposite party and also not compatible with the vehicle.    There is no manufacturing defect and the vehicle was delivered in good condition to the complainant.  Hence there is no deficiency in service on the part of the opposite parties and therefore this complaint is liable to be dismissed.

3.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A4 marked.  Proof affidavit of opposite parties  filed and Ex.B1 to Ex.B4  marked on the side of the opposite parties.  

4.   The points for the consideration is:  

 

1. Whether the complainant is entitled to a sum of Rs.66,700/- towards cost of the  Hero Xtreme vehicle bearing registration No.TN14-A 8547 alternatively a new vehicle as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.30,000/- towards deficiency of service with cost as prayed for ?

5.      POINTS 1 & 2 :

        Heard both sides.  Perused the records.  The learned counsel for the  complainant contended that on seeing advertisement of the opposite parties, the complainant  purchased Hero Xtreme two wheeler vehicle bearing registration No.TN 14-A 8547 on 31.10.2014 exchanging his old vehicle.  After due exchange the total cost paid is Rs.66,700/-. The learned counsel for the complainant further contended that right from the date of purchase there was a noise in the engine.  Hence the complainant brought the vehicle to the 2^nd opposite party for due repair.   The 2^nd opposite party after due check up  service stated that there was a leakage of oil and after complying the complaint returned the vehicle to the complainant.   But again engine noise was persisting.  So the complainant left the vehicle to the 2^nd opposite party and demanded for replacement of the vehicle.   The 2^nd opposite party after complying the first service returned the vehicle on 17.11.2014 stating that there shall be no replacement.   Even after repeated service the oil leakage, engine noise coupled with gear getting tighter and getting struck continued.   On 7.1.2015 once again the complainant sent the vehicle for 2^nd service.  After 2^nd service the condition of the vehicle became more worse as the piston, engine bore and engine parts were under repair which was replaced by the 2^nd opposite party on 11.2.2015.  Even then the said defect were persisting because of manufacturing defect  which caused great mental agony to the complainant.   Hence the complainant was constrained to file this complaint. 

6.     The contention of the opposite party is that admittedly the complainant purchased Hero Xtreme two wheeler vehicle bearing registration No.TN 14-A 8547 from the 2^nd opposite party on 31.10.2014 on exchange of old  Hero Honda vehicle.  The 2^nd opposite party duly serviced the vehicle for the first time on 17.11.2014 after 640 kms.   After taking delivery of the vehicle the complainant has not raised any allegation regarding the engine oil leakage.  The job card also is absolutely silent regarding such complaint.  The complainant also submitted  feed back without any allegation  of complaint.   Further the learned counsel for the opposite parties contended that on 7.1.2015 the complainant brought the vehicle for 2^nd free service at 3145 kms i.e. the complainant used the vehicle for 2500 kms between the 1^st service and 2^nd service.   After due 2^nd service the vehicle was duly delivered with good condition, the job card shows all the details.    On 11.2.2015 at 4364 kms the complainant brought the vehicle for quick service as per Ex.A3 i.e. after using the vehicle for 1219 kms   between the 2^nd service and quick service.  The contention of opposite party that the complainant informed the 2^nd opposite party that he has taken the vehicle to the local mechanic and filled engine oil since the vehicle was not running properly  is totally denied by the complainant.   The leaned counsel for the opposite parties contended that since the complainant used the local oil and given the vehicle to local mechanic he is not liable to service the vehicle even during the warranty period.   Further the learned counsel for the opposite parties contended that the complainant has not taken any steps for producing expert opinion in this case.   The learned counsel for the opposite parties further contended that the replacement of entire vehicle shall not be permitted for the simple reason of oil leakage and engine noise.  Further the learned counsel for the opposite parties contended that the compensation of Rs.30,000/- towards mental agony is exorbitant.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally directed to replace the defective engine parts, oil leakage; gear struck etc. on free of cost within one month from the date of this order and also compensation of Rs.10,000/- for mental agony with cost of Rs.2,000/- and the points 1 & 2 are answered accordingly.

        In the result the complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally directed to replace the defective engine parts, oil leakage; gear struck etc. on free of cost within one month from the date of this order i.e. 9.8.2017 and also to pay compensation of Rs.10,000/- (Rupees Ten thousand only) for mental agony with cost of Rs.2,000/- (Rupees two thousand only) to the complainant.

The above  amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  9^th   day  of  August 2017.  

 

 MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 31.10.2014         - Copy of Retail Invoice issued by 2^nd opposite party.

Ex.A2- 18.11.2014         - Copy of Invoice issued by 2^nd opposite party.

Ex.A3- 11.2.2015  - Copy of Invoice issued by 2^nd opposite party.

Ex.A4- 23.2.2014  - Copy of receipt issued by 2^nd opposite party.

 

Opposite parties’ side document: -    

Ex.B1- 17.11.2014         - Copy of Free Service Job card.

Ex.B2- 7.1.2015    - Copy of Free Service Job card.

Ex.B3- 22.2.2015  - Copy of Quick Service Job card.

Ex.B4         -       -Copy of Limitations of warranty issued by 1^st opposite party.

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.