THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C. 105/2013
Dated this the 8th day of December 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Rose Jose, President:
This petition is filed by the petitioner Under Section 12 of Consumer Protection Act for getting an order directing the opposite parties to replace the defective vehicle with a defect free new one or to refund the purchase price of the vehicle Rs.71000/- along with the entire expenses borne by him for the engine repair works and also for compensation and cost.
The case of the petitioner is that, he had purchased a brand new Hero Honda F1 bike on 14.05.2011 from the 2nd opposite party manufactured by the 1st opposite party for Rs.71000/-. He has been using the vehicle with utmost care and caution and had availed all the free and paid services from the authorized service centers only, till 15.10.12 and after service; the service center had handed over the vehicle in good condition to his full satisfaction.
It is stated by the petitioner that, he was out of station for one month for his personal reasons and hence he could not use or get the vehicle serviced in that period. When returned on 29.01.2013 he approached the 2nd opposite party for servicing the vehicle and they told him to bring the vehicle after 20 days. As there was abnormal sound from the engine and high smoke emitting from the engine, he serviced the vehicle at another authorized service center of the 1st opposite party viz Neat and Best Motors Mukkom, Calicut on 30.01.2013. They told him that the bike is having serious engine problem and the alignment of the front suspension is not proper also. On the very next day itself he took the vehicle to the 2nd opposite party and they also confirmed the service defects, but they refused to repair the defects at free of cost even when the vehicle was under the warranty period.
The petitioner stated that now the vehicle became a burden to him so far as its use is concerned. According to him, the defects are due to the poor quality of vehicle, and since the vehicle is emitting excess smoke; the Motor vehicle Department is not permitting the vehicle to ply in the public road. More over due to the said defect of the engine he was forced to buy engine oil in every week by spending huge amount for this. The sale of a defective vehicle to a customer is unfair trade practice and the indifferent attitude of the opposite parties in rectifying the defects and providing proper after sale service at free of cost within the warranty period is gross negligence and also deficiency in service on their part and this caused much mental agony, huge financial loss and other inconvenience to him. Hence this petition seeking reliefs.
The 1st and 2nd opposite parties appeared but the 1st opposite party did not file version. Hence the 1st opposite party set ex-parte.
The 2nd opposite party in their version contented that this petition is not maintainable either in Law or on facts of the case. They denied the statement of the petitioner that he was using the vehicle with utmost care and caution as false and stated that the petitioner is using the vehicle regularly to ply to and fro Calicut to Kodenchery which is a hilly area about 50 kms from the town and the alleged defects if any is occurred due to the careless usage of the vehicle and due to the bad condition of road and not because of manufacturing defect as alleged. They also denied the statement that the petitioner has serviced the vehicle at Neat and Best Motors, Mukkom due to abnormal sound from the engine and emission of high smoke and he was told by the mechanics from there that the vehicle is having serious engine problem and the alignment of the front suspensions is not correct and stated that these are made only for the purpose of the petition. It is contended that Neat and Best Motors is not associated with them.
They further contended that, the vehicle could be damaged due to the work of unskilled laboures of Neat and Best Motors and so they could not take the responsibility of the vehicle which was repaired in an outside agency. Whenever they had serviced the vehicle it has been delivered in good condition and the petitioner himself had admitted this also. Hence there is no deficiency in service on their side as alleged and they are not liable to compensate the petitioner in any manner and so prayed to dismiss the petition with cost to them.
The matters for determinations are:-
- Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
- If so, what are the reliefs and costs?
Evidence consists of the affidavits filed by the petitioner and Exts.A1 to A5.
Point No.1:-
The petitioner averred that his bike manufactured by the 1st opposite party had plyed up to 19 months of its purchase in good condition to his full satisfaction and the service rendered by the 2nd opposite party was also satisfactory. But there after its engine produced abnormal sound and high smoke began to emit from the engine. When he took vehicle to M/s. Neat and Best Motors, an authorized service center of the 1st opposite party, their mechanics told him that the bike is having serious engine problem and also problem in the alignment of front suspension. So he approached the 2nd opposite party and requested them to repair the defects at free of cost since the complaint occurred was within the warranty period, but they denied to do so stating untenable contentions.
During the pendency of the proceedings the petitioner filed a statement before the Forum stating that, as per the direction from this forum the 2nd opposite party had repaired all the defects of the vehicle pointed out by him to his full satisfaction and hence he had no claim remaining against the 2nd opposite party with a prayer to pass an order only against the 1st opposite party absolving the 2nd opposite party from any liability.
According to the petitioner, the abnormal sound from the engine and emission of high smoke is due to the manufacturing defect of the vehicle and the denial of the opposite parties to replace the bike with a defect free new one along with compensation is unfair trade practice and also deficiency in service on their side. But in his statement submitted before this forum it is admitted by the petitioner himself that all the defects pointed out by him are cured by the 2nd opposite party to his satisfaction and now he had no claim against the 2nd opposite party at all. This shows that the defects are not serious manufacturing defects which are not curable as alleged by the petitioner. Admittedly the warranty is for 3 years. The user’s manual produced by the petitioner was marked as Ext.A1. Clause 3 of Ext.A1’Limitations of warranty’-excluded the defects which occurs due to “normal wear and tear components including (but not limited to) brake shoes/pads, clutch plates, chain and sprockets, bulbs, electrical wiring, filter, spark plug, fasteners, slums, washers, oil seals, gaskets, rubber parts, bush, rubber bellows, plastic parts, breakage and wheel rim for misalignment/bend”. Through warranty the Company undertakes only to repair or replace those parts which are considered to be the cause of malfunction of the vehicle at free of charge and only if the defects are not repairable it needs replacement. Here the petitioner himself had stated that the 2nd opposite party had rectified all the defects pointed out by him with regard to the vehicle. Hence it is clear that the alleged defects are not due to any manufacturing defect of the vehicle. From Ext.A4 series invoice, it is found that the repairs done and parts changed were under the normal course of wear and tear which was excluded from the warranty cover age. More over no expert report is before us in support of the allegations of the petitioner that there are manufacturing defects with the vehicle which could not be rectified permanently.
The petitioner had purchased the vehicle on 14.05.2011 and as such the warranty period ends on 13.05.2014. Ext.A5 series cash bills produced by the petitioner to prove the amounts spend by him for repairing the vehicle is dtd. 23.04.15, which was out of the warranty period, and as such the company, is not liable to refund these amounts.
So considering the facts stated and evidence on record, it is found that the petitioner had failed to establish any manufacturing defects with the vehicle except the defects due to normal wear and tear of usage which are already rectified by the 2nd opposite party and so we cannot attribute any unfair trade practice or any deficiency in service on the 1st and 2nd opposite parties. Point No.1 found against the petitioner.
Point No.2- In view of the findings in point No.1, this petition is liable to be dismissed and the petitioner is not entitled for the reliefs sought for in the petition.
In the result, this petition is dismissed. Parties will bear their costs.
Dated this 8th day of December 2017.
Date of filing: 12.03.2013.
SD/-MEMBER SD/- PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Owner’s manual cum service record sheet.
A2.Lawyer notice dtd.23.02.2013
A3.Lawyer notice dtd.10.03.2013.
A4. Order Form estimate dtd.10.02.2013.
A5.Cash bill of Rs.12062/- dtd.23.04.15
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
Nil
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
