State Consumer Disputes Redressal Commission
Smt Banala Ravali W/O Banala Bal Lingam vs Managing Director And Authorized ... on 29 November, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.623 OF 2013 AGAINST C.C.NO.646 OF 2012 DISTRICT FORUM-I HYDERABAD Between: Smt Banala Ravali W/o Banala Bal Lingam Aged about 28 years, Occ: Household R/o Velkatoor Village, Nangnoor Mandal Medak Dist.-375 Appellant/complainant A N D 1. Managing Director and Authorized dealer M/s Majestic Motors, Near Taj Mahal Hotel Himayathnagar, Hyderabad-27 2. Managing Director Mahendra Two Wheelers Ltd., D-1, Block, Plot No.18/2 (Part) Pune-019 3. Road Transport Officer (RTO/RTA) Siddipet Mandal, Siddipet Medak District-103 Respondents/opposite parties Counsel for the Appellants M/s K.Nagendran Counsel for the Respondent M/s G.Anand Kumar (R2) M/s G.P.for State (R3) QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE I/C PRESIDENT & S.BHUJANGA RAO, HONBLE MEMBER
FRIDAY THE TWENTY NINETH DAY OF NOVEMBER TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The unsuccessful complainant is the appellant. On 20.12.2010 the appellant purchased a Mahindra two wheeler from the respondent no.1 for `51,500/- with a warranty of 4 years or covering distance of 40,000 kms whichever is earlier. Within two months of its purchase, the vehicle started posing problems relating to shock absorber, oil leakage, battery leakage, colour fade, mileage etc. On 15.11.2011 the appellant handed over the vehicle to the respondent no.1 workshop for repairs and after repairs it ws delivered to the appellant on 24.11.2011 and the problems posed by him still persisted. The appellant again handed over the vehicle on 25.11.2011 which was delivered back to him on 26.11.2011 by changing the engine without the knowledge of the appellant. The respondent no.1 did not issue the owners identification certificate and fitness certificate of the vehicle.
On verification of the owners manual the appellant noticed the vehicle was sold to one Mr.Sreenivasan which revealed that the respondents sold the second hand vehicle to the appellant.
2. The respondent no.1 did not choose to contest the matter before the District Forum.
3. The respondent no.2 resisted the case contending that the appellant has not availed all the services as per the terms and conditions of the warranty card and failed to observe the instructions given in the owners manual. The respondent no.2 gives the warranty in respect of all new Stallio Two wheeler manufactured by them and sold after pre-delivery inspection to be free from any manufacturing defect and undertake to repair or replace free of charge within a period of 48 months from the date of sale or running of 40,000 kms whichever is earlier. Proper care and precaution has been taken to ensure the best quality in respect of the material and workmanship in manufacturing. The warranty excludes ay loss or damage due to normal wear and tear for the parts. Under the warranty only repair or replacement of certain defective parts will be considered. The respondent no2 directed the respondent no.1 to rectify all the defects and the vehicle now is in good running condition.
4. The appellant filed his affidavit and the documents, Exs.A1 to A13. On behalf of the opposite party no.2, its Territory Manager filed his affidavit and no documents have been marked on their behalf.
5. The District Forum dismissed the complaint on premise that the appellant did not adduce any evidence that the vehicle was inherent manufacturing defects and that without taking delivery of the vehicle and without plying the vehicle the appellant cannot contend that the defects in the vehicle are still persisting.
6. Aggrieved by the order of the District Forum, the complainant has filed appeal contending that the District Forum has not applied its mind to the facts of the case while deciding the matter and that the District Forum did not consider Ex.A13 which shows that the vehicle is second hand vehicle and the respodnentno.1 did not issue ownership certificate and fitness certificate and vehicle registration card number.
7. The point for consideration is whether the order of the District Forum suffers from misappreciation of facts or law?
8. The appellants husband purchased Mahindra two wheeler motor cycle for consideration of Rs.51,500/- on 20.12.2010 from the respondent no.1 -and the motor cycle was registered in the name of the appellant with the registration number AP 23 AB 2192. It is not disputed that the motor cycle posed problem after it was purchased and the problems reported by the appellant were relating to shock absorber, Oil leakage, Battery leakage, Color fade and poor mileage and the appellant incurred an amount of Rs.2,591/- for replacement of defective parts.
9. As seen from the notice dated 9.10.2012 the motor cycle posed problem on various dated and the appellant dealt with in her notice the dates on which the motor cycle was taken to the respondents and the particulars of the problems posed by the motor cycle which read as under:
1. On 15.11.2011 vehicle received by majestic motors work shop at Hyderabad and delivered it on 24.11.2011 the trolley charges Rs.1400/-
2. On 25.11.2011 again return to the work shop by my client and it was delivered by the Majestic Motors work shop on 26.11.2011, with Vehicle Engine changed. And also the engine number changed from MFEAG005283 (old)_ MFEAF002293 (New) dated 26.11.2011. but guarantee warrant is only for four (4) years the trolley charges Rs.1560/-.
3. On 04.09.2012 against return the vehicle by my client to the Majestic Motors workshop, issued acknowledgement bearing NO.1530 dated 04.09.2012 at about 11.30 a.m. of vehicle bearing No.AP23 AB 2192 for defect of the vehicle and the trolley charges of Rs.1650/- paid by him.
But till today the Workshop Manager did not repair the vehicle. That Manager day to day taking time to deliver the vehicle. That on the advice of the Workshop Manger my client rounding to the workshop his bus charges occurred till today Rs.3,000/- and borne other incidental expenses of rs.2,000/- and his agricultural works damages of Rs.10,000/- also beard (sic.borne ) by him.
10. A overall perusal of the documents placed on record establish that the vehicle posed some problem or the other and the respondent no.1 and 2 attended to the problems, however, not to the satisfaction of the appellant as such this Commission finds substance in the contention of the appellant that the vehicle posed some problem. However, posing some problem by the vehicle does not mean that the vehicle is inherently defective and need to be replaced with a new vehicle.
11. This Commission in Sri Gopal Auto Stores Ltd and another vs Sri Neeripelli Veeranna and another in F.A.No. 313 of 2011 decided on 15.10.2012 and The Managing Director, Hero Honda Motors and another vs Sri B.Srikanth in F.A.No. 355 of 2009 decided on 13.10.2009 dealt with the cases involving similar facts and circumstances.
12. B.Srikanths (supra) was a case where the motor cycle purchased by the complainant posed repeated problems such as noise while the vehicle is operated in second gear and generation of severe heat in the engine, silencer and brake pedal within 15 minutes of the vehicle put in motion. The service engineer conducted test drive after replacing spindle gear shifter, spring gear shit drum and compound shift stopper etc . It was found that there was no manufacturing defect in the vehicle. It was held:
Even in the case of manufacturing defect of a vehicle, the vehicle in toto cannot be ordered to be replaced in view of the judgment of the Honble Surpeme Court in Maruti Udyog Ltd., Vs Susheel Kumar Gabtora reported in AIR 2006 SCC 1586 wherein the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car. In another case, the Honble National Commission held in M/s TELCO Ltd., another Vs. M.Moosa, 1986-94 page 1367 (NS) that the section 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced.
In view of the aforesaid discussion and in the light of the judgment of the Honble Supreme Court we do not find the respondent entitled to the replacement of motor cycle or refund of its cost
13. In Veerannas case, the complaint was made as regards to low pick up, low battery performance and clutch plate related problems. The job cards were considered as to find out whether inherent defect is found in the vehicle. The cost of the parts not covered by the warranty were held to be borne by the complainant at paragraphs 15 and 16 of the order as follows:
The first appellant during the first servicing of the vehicle replaced parts charging Rs.1079/- and waived the amount as goodwill gesture. The warranty terms mentioned in the manual cover certain parts of the vehicle subject to proper use and correct handling of the vehicle with exception to normal wear and tear of the components. The warranty will not apply in the following circumstances:
1.
If all free services/paid services/oil top-ups are not availed from the authorized Hero Honda workshops. As per their recommended schedule.
2. If Hero Honda recommended engine oil SAE-10W 30 SJ Grade (JASO MA) is not used.
3. To normal wear and tear components including but not limited to) brake shows, clutch shoes, bulbs, electrical wiring, filter, spark plug, fasteners, shims, washer, oil seals, gaskets, rubber parts, bush rubber bellows, plastic parts breakage and wheel rim for misalignment bend.
4. If additional wheel(s) is are fitted and/or any other modification carried out/accessories fitted other than the ones recommended by Hero Honda
5. If Super Splendor motorcycle has been sued in any competitive events like races or rallies or for any commercial purposes as taxi etc.
6. To any damage on motorcycles painted surface cropping due to industrial pollution or other external factors.
7. For normal phenomenon like noise, vibration, oil seepage etc., which do not affect the performance of the Motorcycle.
8. To any damage caused due to usage of improper oil/grease, non-genuine parts.
9. If any defect crops or repairs needed as a result fo using adulterated fuel.
10. If any maintenance/repairs required due to bad road conditions or misuses of Super Splendor motorcycle.
11. If any defect crops or repairs needed as a result of Super Splendor Motorcycle meeting to some accident.
12. For consumables like oil, grease, gasket etc., to be used during free services and/or warranty repairs..
13. To any part of Super Splendor motorcycle which has been tampered or got repaired at unauthorized outlet.
14. For Super Splendor motorcycle not used in accordance with the guidelines given in the owners manual.
16. In terms of warranty it is mandatory for the first respondent to avail all the free services as per the recommended schedule. Any defect observed in the motorcycle during the period of warranty and the part considered to be the cause of the defect, the second appellants obligation is restricted to repair or replace such part subject to the condition that such defect is not resulted due to improper driving or misuse of the vehicle
14. As there were no manufacturing defect found in the vehicle or established by the appellant, it goes without saying that the service rendered by the respondent no.1 do not meet the standard requirement meant therefor. The appellant sought for replacement of the vehicle and the District Forum has not found manufacturing defect in the vehicle and dismissed complaint. The District Forum ought to have directed the respondents to check the vehicle and attend to the problems. As such the order of the District Forum is required to be set aside. The appellant has also cannot claim the repair or replacement of the vehicle as an absolute right in the absence of any evidence to show that the vehicle suffered any manufacturing defect. For the inconvenience caused to the appellant, the respondents no.1 and 2 are liable to pay an amount of `5,000/- towards compensation.
15. In the result, the appeal is allowed setting aside the order of the District Forum.
Consequently the complaint is allowed directing the opposite parties no.1 and 2 to check and repair the vehicle bearing registration No.AP 23 AB 2192 of the appellant and deliver it in roadworthy condition to the appellant. The respondents no.1 and 2 are also directed to pay compensation of `5,000/-
and costs of `3,000/-. Time for compliance four weeks. The complaint is dismissed against the respondent no.3.
No costs.
I/C PRESIDENT MEMBER Dt.29.11.2013 కె.ఎం.కె*