DATE OF FILING : 24.1.2011

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30^th day of June, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.BINDHU SOMAN MEMBER

C.C No.25/2011

Between

Complainant : Vimal, S/o Balakrishnan,

Pottananickal House,

Peringaseery, Moolakadu P.O.,

Thodupuzha, Idukki District .

(By Adv: Jose Thomas) And

Opposite Parties : 1. The Proprietor,

Muthoottu Honda,

Aniyaveettil Buildings,

Vengalloor P.O., Thodupuzha,

Idukki District.

2. The Manager,

Honda Motor Cycle and Scooter (India) Pvt. Ltd.,

Plot No.1, Sector 3, IMT - Manesar,

Dist. Gurgoon, 122050,

Haryana.

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant is working as a Meter Reader at KSEB on daily wages and he had to visit many premises to take the meter reading of the consumers coming under Vazhathope Major Section of KSEB. So due to his work load, he purchased a new two wheeler bike manufactured by the 2^nd opposite party with a description C.B. Twister C BF 110MA B5-2 from the 1^st opposite party at Thodupuzha, by paying an amount of Rs.51,507/-. It was registered as KL-38-A-6940. A warranty for the vehicle was offered by the opposite parties. The first service was done on 6.9.2010 at 552 kms. The complainant felt some problems regarding the gear on the 2^nd day of the purchase of the vehicle and the matter was intimated to the 1^st opposite party. The 1^st opposite party conveyed that, all the problems regarding the vehicle will be set all right during the first service. Believing the words of the 1^st opposite party, the complainant entrusted the vehicle to the 1^st opposite party after giving complaint regarding gear slip during travel through the inclined roads moving upward direction preferably with pillar. After the 1^st service, the opposite party told that the defect of the vehicle has been rectified and the rectified vehicle was returned to the complainant. But after 10 days of the first service of the vehicle, the fault regarding gear slip as well as chain socket complaint arised. The matter was intimated to the opposite party. Again the 1^st opposite party informed the complainant to drop the vehicle for second service. The complainant put the vehicle idle at home many days due to the acute gear slip and chain socket problem while running. On the second service on 9.11.2010, when the vehicle reached at 2321 kms, the complainant very clearly informed and given complaint for gear slip as well as chain socket problem. But after running almost for 20 days, again the same complaint repeated. This effected acute mental agony and suffering since it affected the job of the complainant. The complainant had to hire an

autorickshaw to complete his works for which he spent more money and time. The matter was informed to the 1^st opposite party. The 1^st opposite party conveyed that the complainant may come (cont.....2)

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for third service and he informed that the complaint can arise a manufacturing defect for which the 2^nd opposite party is also responsible. It is also requested by the opposite party to produce the vehicle for curing the defect. As per the instruction of the 1^st opposite party, the complainant brought the vehicle to the service centre of the 1^st opposite party on 13.12.2010 by giving above mentioned complaint. The 1^st opposite party returned the vehicle bonafide making that all the complaint related to the vehicle are rectified. The complainant plied the vehicle for some days, but the same complaint again araised. While this matter was seriously informed to the 1^st opposite party, they told the complainant that they will take the vehicle from the premises of the complainant immediately after informing the 2^nd opposite party. But the 1^st opposite party did not turn up. The 1^st opposite party ridiculed the complainant by saying that they had serviced lot for the vehicle and they don't want to hear the inconvenience of the complainant. So the petition is filed for getting direction to replace the vehicle or rectify the vehicle.

2. As per the written version filed by the 1^st opposite party, it is admitted that the complainant had purchased Honda CB Twister CBF 110 MA B5-2 from the 1^st opposite party and registered as KL-38-A-6940. The complainant is a Meter Reader in KSEB Major Section, Vazhathope and he had to visit many premises daily to take the meter reading of the consumers. At the first service of the new two wheeler on 6.9.2010 at 552 kms, is absolutely true that the complainant had reported some defect in gear changing. He requested the service manager present there to check the engine sound. The 1^st opposite party's servicemen and service engineers thoroughly checked the vehicle for identifying defects in the gear section, if any. Even after repeated checking and riding, either the opposite party servicemen or service engineer did not find any defect with regard to the gear section or gear shifting. No engine sound other than the normal engine sound while starting or running the two wheeler identified. There exists no gear complaints as alleged by the complainant. There is no fault either with regard to the gear or chain. After the same, the complainant reported while admitting the two wheeler for service on 9.11.2010, problems like front handle nut damage, gear slipping, chain loose, abnormal sound while running and head light switch complaint. The 1^st opposite party servicemen checked the vehicle in the presence of its service engineers for identifying such problems, if any, as reported by the complainant. Only the front handle nut damage was identified and front handle nut replaced and accordingly a total charge of Rs.87/- was collected from the complainant and it was delivered. The 1^st opposite party admitted the two wheeler again for gear complaint check up on 13.12.2010. On request, the 1^st opposite party requested the 2^nd opposite party to inspect the two wheeler and to identify manufacturing defect, if any in the two wheeler as alleged by the complainant. The 2^nd opposite party's service engineer visited the 1^st opposite party service centre and thoroughly checked the two wheeler, but no manufacturing defects identified by them. It is submitted by the 2^nd opposite party to the complainant that no manufacturing defect or no default caused as a result of defective service from the part of the opposite party as aware by the complainant. The complainant is using the two wheeler recklessly. As admitted by the complainant, the two wheeler is covering kilometers of distance through out hill areas every day. The inclined roads moving upwards direction preferably with pillars may cause some difficulty while driving the vehicle. It is a common knowledge that the easiness and performance while driving through a parallel road cannot experience while driving on pillar type hill roads. The vehicle has no defects. An advocate commissioner appointed by this Forum is not an expert in automobile engineering to identify the defect or requirement of repair with regard to the engine parts, engine or gear. He may identify some discomfort while driving to an upward hill steep road. A certified engineer can only identify

the defects of engine or engine parts. Hence the report of advocate commissioner, who may be a legal expert but not an expert in automobile engineering, shall not be admissible as evidence. The manufacturing defect, if any has to be proved with the support of expert evidence. The vehicle has (cont.....3)

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no defect with regard to the gear as to get it repaired or no manufacturing defect as to get it replaced. The careless handling of the two wheeler, unauthorised work shop repairing, use of sub standard engine oil, reckless driving and use of duplicate parts may cause discomfort to the complainant's vehicle. The complainant is still using the vehicle which completed more than 13,000 kms within a short span of days from the date of purchase. So the intention of the complainant is to harass the opposite parties of such repute and to extort money and complaint may be dismissed.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite party, and if so, for what relief the complainant is entitled to?

4. The evidence consists of oral testimony of PW1 and Exts. P1 to P5 marked on the side of the complainant and oral testimony of DW1 on the part of the opposite party.

5. The POINT :- The complainant produced evidence as PW1. As per PW1, who is a Meter Reader at KSEB on daily wages has to visit many premises daily to take the meter reading of the consumers. So he was in acute need of a two wheeler and so he purchased a Honda vehicle from the 1^st opposite party by paying an amount of Rs.51,507/-. Ext.P1 is the copy of RC Book of the vehicle which was registered as KL-38-A-6940. Ext.P2 is the copy of the retail invoice of the vehicle. The opposite party offered warranty for the vehicle and on the first service on 6.9.2010 at 552 kms, PW1 informed the problem regarding the gear which was felt on the second day of the purchase and the opposite party conveyed that the problem will be cured at the service. But after the service, the same problem repeated. There was a gear slip complaint during travel through inclined road moving upward direction preferably with pillar. After 10 days of the first service, the gear slip complaint as well as chain socket complaint araised. The matter was informed to the opposite party and the vehicle was given to the opposite party for second service on 9.11.2010 at 2321 kms. The opposite party told that the complaint will be cured after the service, but again the problem repeated after 20 days of the service. It caused mental agony and sufferings to the complainant because it affected his work. He hired an autorickshaw for the works. The matter was informed to the opposite party and on the third service, it was reported by the complainant that there is a manufacturing defect for the vehicle. The opposite party requested to produce the vehicle for curing the defect on 13.12.2010. The vehicle was brought to the 1^st opposite party service centre for repairing and Ext.P3 is the copy of the job card issued by the opposite party for the service on 13.12.2010 at 3741 kms and the main complaint arised by PW1 in the same is gear box complaint. After the service of the vehicle, it delivered stating that all the defects were cured. But even after it, the same complaint repeated. While it was informed to the opposite party, the opposite party told that they had serviced the vehicle several times and they never want to hear the inconvenience of the complainant. Ext.P4(series) are the warranty registration card and service record sheet issued for the vehicle by the opposite party. An advocate commissioner was appointed to inspect the vehicle to find out the gear slip of the vehicle and the Commission Report is marked as Ext.C1. The 1^st opposite party produced evidence as DW1. DW1 is an Automobile Engineering Diploma holder and he serviced the vehicle twice. Several times the complainant approached DW1. The job cards were also issued by them. 1^st and 2^nd services were done promptly. Ext.P5 is the job card issued by the opposite party for the service of the vehicle on 13.12.2010. The vehicle was fit for riding with two persons. A manual also produced for the riding of the vehicle. On cross examination of the learned counsel for the complainant, DW1 admitted that the complaint of the vehicle can be revealed by an ordinary prudent man who knows to ride the bike. The complaint of the vehicle was reported by PW1 on the first service itself. The engineer of the 2^nd opposite party also examined the vehicle and there is no complaint was revealed by them.

(cont.....4)

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As per the complainant, after 2 days of the purchase of the vehicle, gear problem was noted and the matter was informed to the 1^st opposite party in the 1^st, 2^nd and 3^rd services. The gear slip and chain socket problem were reported in 1^st, 2^nd and 3^rd services. The opposite party repaired the same and offered that the vehicle will not have any defect again. But again the same complaint repeated and while the matter was informed to the opposite party, they themselves never turn up to cure the defect, stating that they had serviced a lot for the vehicle and they never want to hear the inconvenience of the complainant again. Ext.P5 is the job card dated 13.12.2010 also shows that there is gear complaint for the vehicle and it is written that the major complaint is gear complaint check. As per the written version filed by the opposite party, it is admitted that the gear complaint of the vehicle was reported by the complainant several times, even on 13.12.2010, as per Ext.P5 job card. But as per the opposite party, the complaint was cured by them and while the service engineer of the 2^nd opposite party checked the vehicle, there was no complaint for the vehicle. But they have admitted that the complainant reported the gear complaint on 1^st, 2^nd and 3^rd services of the vehicle. An advocate commissioner was appointed for checking the gear complaint of the vehicle because it was a complaint that can be understood by an ordinary prudent man who knows to ride the vehicle. It is also admitted by the DW1 that the complaint can be revealed by riding the vehicle by an ordinary person who knows to ride the vehicle. The main defect of the vehicle was the gear slip during travel through inclined road moving upward direction preferably with pillar. As per Ext.C1 commission report produced by the Advocate Commissioner which is stating that while riding in high range area in inclined road and riding the vehicle with another person, pillar, the 2^nd gear slip problem was revealed. There was 2^nd gear slip problem for the vehicle. At the time of inspection of the vehicle, 2^nd opposite party's service in charge was there and while the commissioner requested him to convince the problem what was revealed by the commissioner, the service in charge was not ready to do the same. So it is very clear from the commission report that the gear slip problem of the vehicle is still existing even after several services. So it is a gross deficiency from the part of the opposite party that the defect was not at all cured. The same defect was repeated even after 3,4 services. It means that the vehicle is having some manufacturing defect. So we think that the opposite parties should clear the defect of the complainant's vehicle by changing the gear box or its concerned parts or supply a fresh vehicle to the complainant. There is no evidence produced by the complainant to show that he spent a lot of money for hiring autorickshaw for his works because of the defect of the vehicle. The gear complaint of the vehicle was several times reported to the opposite party by the complainant, but it was not absolutely cured by the opposite party and it affected the job of the complainant. So we fix Rs.3,000/- for the inconvenience and mental agony caused to the complainant.

Hence the petition allowed. The opposite parties are directed to cure the defect of the complainant's vehicle with full satisfaction of the complainant, by changing the concerned parts of the gear box or supply a new vehicle of the same classification to the complainant, after taking back the old one. The opposite parties are also directed to pay Rs.3,000/- as compensation and Rs.2,000/- as cost of this petition within 30 days of receipt of a copy of this order failing which the amount shall carry 12% interest per annum from the date of default.

Pronounced in the Open Forum on this the 30^th day of June, 2011

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

(cont...5)

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APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Vimal P.B.

On the side of the Opposite Party :

DW1 - Rakesh Gopal.

Exhibits :

On the side of the Complainant :

Ext.P1 - Copy of RC Book of the vehicle.

Ext.P2 - Copy of the retail invoice of the vehicle dated 16.8.2010.

Ext.P3 - Copy of the job card issued by the opposite party for the service on 13.12.2010.

Ext.P4(series) - Copy of the the warranty registration card and service record sheet issued

by the opposite party.

Ext.P5 - Copy of the job card issued by the opposite party for the service on 13.12.2010.

Ext.C1 - Commission Report dated 16.5.2011.