Date of Filling : 22.04.2014
Date of Disposal: 29.10.2015
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR
PRESENT: THIRU. S.PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S.SUJATHA,B.Sc., … MEMBER-I
CC.27/2014
Tuesday, the 29th day of October 2015
A.Radhakrishnan,
S/o Arumugam
No.218, New Addl Law Chambers,
High Court,Chennai -600 104. …Complainant
/Vs/
The proprietor,
H.M.Motors, No.3,
Arcot Road, Ganapathy Nagar,
Porur, Chennai - 600 116. …Opposite Party
…
This Complaint is coming upon before us finally on 15.10.2015 in the
Presence of Thiru.K.Justin Selvakumar, Advocate on the side of the complainant and Thiru.M.Sunil Kumar, Advocate for the opposite party and upon hearing arguments on the side of the complainant and perused the documents and evidence, this Forum delivered the following,
ORDER
PRONOUNCED BY THIRU. S. PANDIAN, PRESIDENT
This Complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties to pay the cost of the Vehicle of Rs.4,88,008/- Indica V2 LS, Diesel Model Vehicle, to pay the damages of Rs.5,00,000/-for the mental agony and hardship caused by the opposite parties with cost.
The Brief averments of the complaint as follows:
1. The complainant purchased a motor bike splendor Pro with registration No.TN-10-AH-8775 from the opposite party in the month of August 2012 as brand new and the complainant availed all the free services. The opposite party given warranty for the bike which states the warranty period is 2 years from the date of purchase or 30,000 kilometer drive whichever is earlier. That during warranty period if any defect is occurred in the vehicle the opposite party is has to repair or replace the defective parts in the vehicle.
2. That on 06.03.2014 while he is driving, the neutral gear was struck and he could not drive the vehicle. That on 10.03.2014 he handover the bike to the opposite party dealer shop for repair. After examining the bike the opposite party mechanic staff told to the complainant that the chain and sprocket kit to be changed otherwise the bike will stop at any time in the road. The complainant told the opposite party mechanic staff, the bike is in warranty period, the opposite party has to replace the chain and sprocket kit. But the opposite party mechanic staff compelled the complainant to pay the cost of chain sprocket kit i.e.Rs.662.15/- otherwise repair will not be done and therefore he has no other way except to pay the cost of the chain sprocket kit and paid the cost of chain sprocket kit Rs.662.15/- and took delivery of the bike from the opposite party dealer shop on 17.03.2014. On account of the opposite party deficiency of service rendered to him he underwent agony. Even after the said notice the opposite party has not complied with the demands made in the said notice. Hence this complaint.
The contention of the written version of the opposite party has brief as follows:
3. The complaint is neither maintainable in law nor on facts and the same in liable to dismiss in limine. The complainant has not made the opposite party being the H.M.Motors represented by its authorized signatory as a party nor the complainant had made the proper party being the H.M.Motors as a party to proceeding and therefore the present complaint is liable to be dismissed for non jointer of the proper parties and on the other hand the opposite party as made the proprietor of the H.M.Motors and therefore this opposite party submits that, the complaint is liable to be dismissed on the grounds of miss joinder of the proper party.
4. The averment relating to the period of warranty is true. However the warranty are subject to limitation from the Hero Moto Corp Limited being the manufacturer. The owner’s manual of the motor bike splendor pro, at the page Limitation of Warranty clearly states about the fact of warranty which shall not be applicable and read under clause (3) as follows., “To normal wear and tear components including (but not limited to) brake shoes/pads, clutch plats, drive chain and sprockets, bulbs, electrical wiring, filer, spark plug, fasteners, shims, washers, oil seals, gaskets, rubber parts, bush, rubber bellows, plastic parts breakage and wheel rim for misalignment/bend”.
5. After examining the vehicle this opposite party intimated to the complainant about the fault and also intimated that the chain and sprockets kit, has to be replaced along with the other materials that had to be replaced. The chain and sprocket kit does not fall within the warranty and the same has to be replaced only at the cost of the complainant. This opposite party submits that along with the chain and sprockets kit, there were several other parts replaced and services done and the complainant paid the charges accepting the clause of normal wear and tear. However in order to have undue gain and wantonly raised the issue relating to chain and sprockets kit and demanded from this opposite party to bend for his illegal demand failing which the complainant being an Advocate would drag this opposite party before the court and cause undue loss and hardship.
6. That, all the parts are also subject to proper care maintenance and
equally used by the complainant. At this juncture the opposite party pertinently points out that there is no pleading by the complainant relating to the proper care and usage by the complainant. It is crystal clear that even as per the own admission of the complainant that warranty is only in relation to services and not for material or parts which are damaged in the course of normal wear and tear and non handling the vehicle in proper course. Therefore, the claim is an illegal and unjust demand for having a wrongful gain.
7. There was no manufacturing defect in the bike and no deficiency in service on the part of this opposite party. Therefore, the complainant as well as the opposite party are bound as per the terms and conditions of the company. This opposite party submits that though initially on the gesture of goodwill, this opposite party had offered to replace for free of cost, however this opposite party could now clearly visualize and understand that the complainant grievance is nothing but illegal and unjust demands and hence the illegal demands cannot be complied by this opposite party. Therefore the complaint is liable to be dismissed.
8. On the side of the complainant, proof affidavit submitted as his evidence and Exhibit A1 to A4 are marked. Similarly, proof affidavit is filed on the side of the opposite party and Exhibit B1 is marked.
9. At this juncture, the point for determination before this Forum is:-
- Whether there is any deficiency of service on the part of the opposite party?
- To what other relief, the complainant is entitled to?
10. Point 1: As per the case of the complainant that during the warranty
period instead of replace of the defective chain and sprocket kit at free of cost, the opposite party compelled the complainant to pay the cost of Rs.662.15/- and the same was paid by the complainant and thereby the opposite party caused mental agony due to deficiency in service on the part of the opposite party. It is further stated by the complainant that since the substandard chain fixed on 17.03.2014, the complainant was constrained to change the new one on 05.08.2014 i.e. after four months from 17.03.2014 at the cost of Rs.697/- in the M/s Vishnu Motor Plaza Pvt., Ltd. 11. On the other hand, it is vehemently contended that the warranty is not applicable for chain and sprocket kit as per clause (3) of the warranty and further no documentary evidence is filed by the complainant for all free service availed and to show that the goods were substandard and there is no proof for any mechanical defect and hence there is no deficiency in service and also the complainant has not moved this Forum with clean hands and hence it is not maintainable.
12. At this juncture, the prime duty of this Forum is to decide whether the complainant has proved his case by means of relevant and acceptable evidence beyond all reasonable doubts. First of all, on perusal of the proof affidavit, it is learnt that the main allegation against the opposite party is that the opposite party has charged for the replace of the defected parts as chain and sprocket kit in his motor bike splendor bearing the registration No.TN-10-AH-8775 during the warranty period. In order to prove the same, the complainant has produced Exhibit A1 to A4. Exhibit A1, is the Invoice issued by the opposite party, Exhibit A2, is the legal notice sent by the complainant to the opposite party, Exhibit A3, is the reply of the opposite party and Exhibit A4, is the Invoice given by the M/s for the change of new chain.
13. At the outset, it is noticed that among the above said documents, the warranty is not found available to show about the terms and conditions. Whereas, the opposite party has filed the Exhibit B1, the owner’s manual and limitation of warranty clause. In Exhibit B1, clause 3 it reads as follows:-
The limitation of warranty shall not applicable for the below parts.
“To normal wear and tear components including (but not limited to) brake shoes/pads, clutch plats, drive chain and sprockets, bulbs, electrical wiring, filer, spark plug, fasteners, shims, washers, oil seals, gaskets, rubber parts, bush, rubber bellows, plastic parts breakage and wheel rim for misalignment/bend”.
14.It is further learnt that the above said fact of the warranty condition clearly intimated by the opposite party through Exhibit A3, the reply notice to the complainant and as a special case, the opposite party was ready to reimburse and even then the complainant has preferred this complaint. Furthermore, on careful perusal of the rival submissions put forth on either side, it is crystal clear that the complainant has not moved this Forum with clean hands. As rightly pointed out by the opposite party, that though the complainant is an Advocate by profession, he ought to have aware of the terms and conditions and the limitation of the warranty and the owner’s Manual, but for the reason best known to him with ulterior intention, he has come forward to file this complaint, which cannot be easily thrown out.
15. Regarding other facts, there is no concrete and reliable evidence on the side of the complainant. At this juncture, this Forum wants to enlighten with the decision Rajbeer Singh Vs. M/s Goel and Goel another, it is held that “To normal wear and tear components including (but not limited to) brake shoes/pads, clutch plats, drive chain and sprockets, bulbs, electrical wiring, filer, spark plug, fasteners, shims, washers, oil seals, gaskets, rubber parts, bush, rubber bellows, plastic parts breakage and wheel rim for misalignment/bend”. (Rajbeer Singh Vs. M/s Goel and Goel on 31 October, 2013 State Consumer Disputes Redressal Commission, Punjab, Dakshin Marg, Sector-37a, Chandigarh in first appeal no.310 of 2010) that the opposite party is not liable the things specified in the limitation of warranty. Which is squarely applicable to the facts of this case on hand.
16. In the light of the above facts and circumstances of this case, this Forum has no hesitation to hold that there is no deficiency in service on the part of the opposite party as alleged by the complainant. Thus the Point No-1 is answered accordingly.
17. Point 2: In view of the findings arrived in point no.1, the complainant is not entitled for any relief as prayed for in the complaint. Thus the point no.2 is answered accordingly.
In the result, the complaint is dismissed. No cost.
Dictated by the president to the steno-typist, transcribed and computerized by her, correctly by the President and pronounced by us in the open Forum on this 29th October 2015.
MEMBER I PRESIDENT
List of Documents filed by the complainant
Ex.A1/Dt.17.03.2014: Xerox copy of the Invoice of the complainant given by the
opposite party.
Ex.A2/Dt.19.03.2014: Xerox copy of the legal notice sent by the complainant to the
opposite party.
Ex.A3/Dt.26.03.2014: Xerox copy of the reply sent by the opposite party to the
complainant.
Ex.A4/Dt.05.08.2014: Xerox copy of the Invoice of the complainant’s vehicle given by
the said Vishnu Motor Plaza Pvt., Ltd.
List of documents of the opposite party
Ex.B1/Dt. : Xerox copy of the Owner’s manual and limitation of warranty
clause.
Sd/- Sd/-
MEMBER I PRESIDENT
