DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 19th day of September 2019
Present : Smt.Shiny.P.R, President
: Sri. V.P.Anantha Narayanan, Member Date of Filing : 22/12/2017
CC/191/2017
Sunilkumar C.K
P.K. Kesavan Nair, Cheruvalli House, - Complainant
Lakkidi P.O, Ottapalam - 679 301
(By party in person)
Vs
The Sales Manager/ Proprietor
Adithya Auto Sales,
Authorised Dealer` - Hero Moto Corp. Ltd., - Opposite party
18/734, Yakkara Road,
Palakkad. , Pin - 678 014.
(By Adv.P.R.Hariharan)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Complaint is briefly narrated as follows.
The complainant as per the instruction of a technician, following the damage of petrol leakage of his bike (2005 model Hero Honda CD Deluxe) bearing registration number KL 09S-2349, contacted the opposite party (Adithya Auto Sales) over phone and demanded carburetor of the said vehicle but complainant was told to bring the said bike to the showroom of the opposite party and only then the demanded carburetor would be given for which Rs.1,400/- was also demanded by the opposite party; accordingly the next day complainant took the vehicle to the opposite party’s showroom where from on 24/11/2017 carburetor bearing invoice number 10096 CK 17 V2057 was purchased and for materials attached to carburetor and for maintenance bill amount of Rs.1,874/- was recovered by the opposite party from the complainant. After two days in the said bike petrol leakage was again found and the complainant contacted the opposite party over phone and as per the demand of the opposite party the said vehicle was again brought to the opposite party’s showroom on 02/12/2017, as per the opposite party’s instruction the said vehicle was kept in the showroom of the opposite party who returned the same on 04/12/2017 telling the complainant that petrol leakage problem was solved and no petrol leakage will occur again. After a fortnight petrol leakage was again found and the complainant contacted the opposite party on 15/12/2017 over phone to replace the said product, he was told by the opposite party if the vehicle is brought to the opposite party showroom, the same shall be repaired and the opposite party cannot replace the same. To the question of the complainant if after two weeks of this repair the same problem is repeated, no reply was given by the opposite party. Complainant pleads that a new product of the company was purchased from its authorised showroom and serviced there, even then the vehicle petrol leakage problem still persists which shows the opposite party’s deficiency in service. Complainant further submits that as a consumer the said product was neither replaced nor the bill amount paid by the complainant was refunded to him by the opposite party. According to the complainant from his residence to the opposite party’s showroom, to and fro 66 kilo meters are to be travelled and also he has to lose one day’s work. Complainant further pleads that he has suffered a major heart attack and it is difficult for him to drive his vehicle for this much distance. All these were also told to the opposite party, as pleaded by the complainant. Complainant prays to this Hon’ble Forum for an order to refund to him the bill amount of Rs.1,874/- of the carburetor and to give him a compensation of Rs.10,000/- for mental agony and physical difficulties suffered by him which is caused by the opposite party.
The complaint was admitted and the opposite party was issued notice to enter appearance and file version before this Forum. As per his version, the opposite party contends that except those expressly admitted, this opposite party denies the other averments in the complaint. This opposite party admits that he has serviced complainant’s motor cycle on 24/11/2017 when the complainant had brought the motor cycle to this opposite party complaining about fuel leakage in the carburetor of complainant’s vehicle. This opposite party contends that he has serviced the motor cycle and replaced the carburetor assembly and the complainant had taken delivery of the vehicle after fully satisfying that the defects were rectified; this opposite party contends that he has serviced the vehicle as per standard operating procedure and the service given by the opposite party was efficient and prompt. But this opposite party alleges that the motor cycle of the complainant was repaired by local mechanics and the complainant in order to increase the mileage adjusted the carburetor tampering the factory fitted settings leading to the present situation. According to this opposite party, he has replaced all the parts with genuine parts supplied by the manufacturer. The carburetor assembly has been set and calibrated as per company specification and any tampering with the set specifications will cause damage to the equipment. This opposite party reiterates that the present problem has arisen due to complainant’s repair of the said vehicle by local mechanics. Hence this opposite party contends that there is no deficiency on the part of this opposite party and the complainant is not entitled to any relief. Therefore this opposite party prays to this Hon’ble Forum to accept his contentions and dismiss this complaint.
Complainant and the opposite party filed chief affidavits. Complainant filed an application for appointment of an expert commissioner and Mr.Mohandas is appointed as an expert commissioner to examine the vehicle and file a detailed report. The expert commissioner filed his report and the opposite party’s counsel filed his objections to the commission report. Opposite party filed IA/10/2019 for cross examination of the commissioner and he was cross examined as CW1 and his report was marked as Ext.C1. Exts.A1 & A2 were marked from the side of the complainant and Exts.B1 & B2 were marked from the side of the opposite party. Both parties were heard.
The following issues arise for consideration by this Forum.
- Whether there is any deficiency and unfair trade practice committed by the opposite party?
- If so, the relief and cost available to the complainant?
Issues 1 and 2 in detail
The complainant has produced before this Forum Exts.A1 & A2 to support his arguments. Ext.A1 is an original blank job card number – 3420 dated.24/11/2017 issued by the opposite party to prove that the complainant has handed over his defective vehicle for servicing with the opposite party. This Ext.also mentioned registration number of the disputed vehicle and agreed delivery date to the complainant. Ext.A2 is tax invoice dated.24/11/2017 issued by the opposite party to the complainant which shows invoice number, job card number, model of the disputed vehicle, vehicle registration number, invoice amount etc. This Ext. proves that Rs.2,167/- has been collected by the opposite party from the complainant for servicing and removing the defect of his vehicle namely petrol leakage. The opposite party has filed Exts.B1 and B2 to defend his contentions. Ext.B1 is a copy of tax invoice dated.24/11/2017 issued by the opposite party which shows invoice number, job card number, model of the disputed vehicle, its registration number, name of the customer, details of costs and labour details, invoice amount payable etc. This Ext. proves that that Rs.2,167/- has been charged by the opposite party from the complainant for servicing the latter’s vehicle and solving the problem of the vehicle namely petrol leakage. Ext.B2 proves that complainant has brought the disputed vehicle to the opposite party for rectifying the defect of petrol leakage, on 24/11/2017. Ext.C1 is the report filed by expert commissioner before this Forum. The major findings of the expert commissioner with regard to the disputed vehicle are as follows.
- The complainant has asked the representative of the opposite party that whether there is any sealing arrangement provided for the carburetor so that unauthorized servicing and repairing can be detected, as there was no sealing arrangement like paint/seal apparently seen outside the carburetor. Therefore there is no possibility to ascertain the unauthorized opening and servicing.
- After ensuring the petrol in the tank, when the petrol tank cork is turned ON, petrol is found leaking through the overflow pipe.
- Using a burette, the quantity of leakage of petrol is measured at a rate of 20 milliliters in 57.3 seconds that is 1.25654 liters per hour.
The expert commissioner has also made the inference that the needle valve
associated with the float chamber of the carburetor of the disputed vehicle is not working properly to prevent the overflow and hence petrol is leaking as overflow at the rate of 1.25654 liters per hour. The reading of the vehicle odometer is 1935.5 kilo meters according to the expert commissioner. The expert commissioner has also remarked that the reason behind the petrol leakage is justified and convinced by both the parties. The expert commissioner has also given two additional observations namely 1. A fresh carburetor was brought by the opposite party, which also was used for inspection in a similar manner and no leakage was noticed even after a lapse of five minutes. 2. With locally arranged tools the float chamber of the carburetor alone was removed from the carburetor assembly without affecting the settings of the other parts. On dismantling this the same amount of leakage is found through the float valve (needle valve) of the carburetor, even if it is press closed by sensitively lifting up the float even the stem connected to the needle valve is sensitively operated to close the same leakage persists.
In his deposition by the expert commissioner as CW1 before this Forum, he mentioned that he has examined a fresh carburetor provided by the opposite party and he found that there is no difference between this carburetor and the carburetor in complainant’s vehicle. He has also remarked that no tampering at all and it is not correct to say that no manufacturing defect exists in the carburetor.
We have perused the affidavits and documentary evidences submitted by both the parties before this Forum and understood that a manufacturing defect of fuel leakage is present in the carburetor of the complainant’s vehicle which is confirmed by expert commissioner’s deposition before this Forum as CW1. He has also deposed that he has not noticed any difference between the two carburetors after examining the carburetor provided by the opposite party and the one of complainant’s vehicle. Further in his report (vide observation number 2) it is written that there is no possibility of unauthorized opening/servicing because according to the expert commissioner there was no sealing arrangement like paint/seal seen outside the carburetor which is also confirmed by him in his CW1 deposition as “no tampering at all”, thus expert commissioner’s CW1 deposition and Ext.C1 report make wrong the opposite party’s arguments that the motor cycle of the complainant was repaired by local mechanics and in order to increase the mileage complainant adjusted the carburetor tampering the factory fitted settings leading to the present situation of petrol leakage. We also observe that as per expert commission report the needle valve associated with the float chamber of the carburetor of the disputed vehicle of the complainant is not working properly to prevent the outflow and hence petrol is leaking as overflow @ 1.25654 liters per hour. Above all we also view that although the complainant has taken his vehicle to the opposite party’s showroom for servicing and repairing two times on 24/11/2017 & 02/12/2017 and the opposite party is seen to have replaced the carburetor assembly of the disputed complainant’s bike charging from him Rs.2,167/- (Rupees two thousand one hundred and sixty seven only) by way of service charges, the fuel leakage serious defect of the carburetor in complainant’s said vehicle cannot be cured at all and still persists. This shows that the opposite party has committed grave deficiency in service and unfair trade practice of not servicing complainant’s vehicle properly and not fitted perfect defect free carburetor in complainant’s vehicle which is found to have caused much fuel leakage in complainant’s vehicle and consequently resulted in financial loss and mental agony to the complainant.
Hence we decide to allow the complaint.
We order the opposite party to repair the defective carburetor in a perfect manner in order to solve completely the problem of fuel leakage present in the complainant’s disputed vehicle; if it is not possible to repair and service the complainant’s vehicle perfectly, we order the opposite party to refund to the complainant the bill amount of the carburetor of Rs.1,874/- (Rupees one thousand eight hundred and seventy four only) recovered from the complainant. We also order the opposite party to pay to the complainant Rs.5,000/- (Rupees five thousand only) by way of compensation for mental agony suffered by the complainant and litigation expenses incurred by him in this case.
This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to receive interest @ 9% p.a on the total amount due to him from the date of this order till realization.
Pronounced in the open court on this the 19th day of September 2019.
Sd/-
Shiny.P.R
President
Sd/-
V.P.Anantha Narayanan
Member
Exhibits marked from the side of complainant
Ext.A1 - original blank job card number – 3420 dated.24/11/2017 issued by the
opposite party
Ext.A2 - tax invoice dated.24/11/2017 received by the complainant from the opposite party
Exhibits marked from the side of opposite party
Ext.B1 - copy of tax invoice dated.24/11/2017 issued by the opposite party to the
complainant
Ext.B2 - Photocopy of job card issued by opposite party to the complainant dated.
24/11/2017
Commission report
Ext.C1 - Expert commissioner’s report
CW1 - Mohandas
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
Nil
Cost
Cost and compensation for mental agony Rs.5,000/-
