State Consumer Disputes Redressal Commission
M/S Hero Honda Motors Ltd vs K.P. Muraleedharan, South Railway ... on 11 June, 2010
Daily Order
First Appeal No. A/10/3
(Arisen out of order dated 30/07/2009 in Case No. OP 305/07 of District Ernakulam)
M/s Hero Honda Motors Ltd.
and Others
Vs.
K.P.Muraleedaran
and Others
BEFORE :
Sri.M.V.VISWANATHAN
, PRESIDING MEMBER
PRESENT:
None for the Appellant
None for the Respondent
Dated the 11 June 2010
ORDER
Disposed as Allowed KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 03/2010JUDGMENT DATED: 11-06-2010 PRESENT:
SMT. VALSALA SARANGADHARAN : MEMBER SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER APPELLANTS
1. M/s Hero Honda Motors Ltd., 34, Community Centre, Basant Lok, New Delhi - 110057.
2. M/s Hero Honda Motors Ltd., 3-E2, 3rd Floor, Sanya Plaza, Mahakavi Bharadiyar Road, Near K.S.R.T.C. Bus Station, Cochin-35.
(Rep. by Adv. Sri. Sunil C.G & others) Vs RESPONDENTS
1. K.P. Muraleedharan, South Railway Quarters No-54/D, Thamman P.O., Cochin - 682 032.
2. The Sales Manager, A 2 Z Motors, CPSA Building, Mattancherry, Cochin - 682 029 (R1 rep. by Adv. Sri. Tom Joseph) JUDGMENT SHRI . M.V. VISWANATHAN : JUDICIAL MEMBER Appellants were the opposite parties 2 and 3 and respondents 1 and 2 were the complainant and the first opposite party respectively in CC No. 305/2007 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency of service on the part of the opposite parties in effecting sale of a defective vehicle (Hero Honda CD Deluxe Bike) and to get the defective vehicle replaced by a new one or to refund the price of the vehicle to the tune of Rs. 41,000/- with interest and compensation of Rs. 25,000/- for the mental agony and harassment caused to the complainant.
2. The first opposite party entered appearance and filed written version denying the alleged deficiency of service. The first opposite party has also denied the alleged manufacturing defect in the vehicle and expressed his readiness and willingness to effect service to the vehicle and to make the performance of the vehicle satisfactory. Thus, the first opposite party prayed for dismissal of the complaint.
3. The opposite parties 2 and 3 filed a joint written version denying the alleged deficiency of service and the alleged manufacturing defect in the vehicle. They contended that there was no warranty for replacement of the vehicle; but the opposite parties had only assessed warranty to replace the defective parts, if any, based on the terms of the warranty. They vehemently contended that the only intention of the complainant in filing the complaint is to get a new vehicle; but there was no such manufacturing defect as alleged by the complainant. They also expressed their readiness to rectify any sort of problem with respect to the motorcycle sold to the complainant. Thus, the opposite parties 2 and 3 prayed for dismissal of the complaint with their compensatory costs.
4. Before the Forum below, the complainant was examined as PW1 and A1 to A4 documents were marked on his side. From the side of the opposite parties DWs 1 to 3 were examined and B1 job card was marked on their side. The expert Commissioner who was appointed by the Forum below at the instance of the complainant filed expert report and the same was marked as Ext.C1. On an appreciation of the evidence on record, the Forum below passed the impugned order dated 30th July 2009 directing the opposite parties 2 and 3 to pay Rs. 30,000/- as the price of the vehicle in question with interest at the rate of 9% per annum from the date of the impugned order till realization. The complainant was directed to return the vehicle under dispute to the first opposite party. The complainant was also awarded compensation of Rs. 5,000/- with costs of Rs. 1,000/-. The opposite parties 2 and 3 are made jointly and severally liable to pay the decree debt with costs. Aggrieved by the said order, the present appeal is filed by opposite parties 2 and 3 therein.
5. We heard the learned Counsel for the appellants and first respondent/complainant. There was no representation for the second respondent/first opposite party. The Counsel for the appellants submitted his arguments based on the grounds urged in the memorandum of the present appeal. He much relied on the warranty conditions and argued for the position that the appellants, the manufacturer of the disputed vehicle are only liable to replace the defective parts if any, and there was no warranty for replacement of the vehicle as such. It is also submitted that the C1 commission report itself would show that the defect could be rectified by replacing the defective chassis and that the alleged side pulling of the vehicle was due to chassis bent. It is further submitted that the vehicle under dispute has covered a considerable distance as the complainant had used the vehicle continuously from 30-05-2007 till this date and that the Forum below cannot be justified in ordering refund of the price of the vehicle with interest, costs and compensation. The appellants expressed their readiness to carry out the repairs to the vehicle and to make the same defect free. On the other hand, the first respondent/complainant supported the impugned order passed by the Forum below. The Counsel for the first respondent canvassed for the position that there is manufacturing defect in the vehicle and that the only course available is to replace the defective vehicle by a new one. He also relied on C1 Commission report and the oral evidence of the expert Commissioner who was examined as DW3. Thus, the first respondent prayed for dismissal of the present appeal.
6. The points that arise for consideration are:
1. Whether the case of the complainant (first respondent) that the Hero Honda CD Deluxe Bike purchased from the opposite parties is having manufacturing defect can be upheld?
2. Whether the prayer for replacement of the defective vehicle or to get the price of the defective vehicle refunded can be allowed in the light of the terms and conditions of warranty provided for the vehicle?
3. Whether the Forum below can be justified in directing the appellants/opposite parties 2 and 3 to pay to the complainant Rs. 30,000/- as the price of the vehicle in question with interest, compensation and costs?
4. Is there any sustainable ground to interfere with the impugned order dated 30-07-2009 passed by CDRF, Ernakulam in CC No. 305/2007?
7. Point Nos. 1 to 4: For the sake of convenience, these four points can be considered together as these points are interrelated and interconnected. Moreover, the evidence to be discussed is also one and the same. The parties to this appeal will be referred to according to their rank and status before the Forum below in CC No. 305/2007.
8. There is no dispute that the complainant purchased a Hero Honda CD Deluxe Bike manufactured by opposite parties 2 and 3 and that the said vehicle was purchased through the first opposite party who has been working under the MS and S (Motors) PVt. Ltd., the authorized dealer of Hero Honda Bikes. Ext.A1 sales invoice would also show that the complainant purchased the said Hero Honda CD Deluxe Bike through MS and S (Motors) Pvt. Ltd. The vehicle in question was purchased on 29-05-2007 and delivered on 30-05-2007. A1 document would show that the complainant purchased the said vehicle on the invoice amount of Rs. 35,500/-. There can be no doubt that the complainant has also paid the insurance and road tax for the said vehicle. Thus, the purchase of the vehicle by the complainant from the opposite parties is not in dispute.
9. The definite case of the complainant is that the vehicle is having manufacturing defect and that due to the manufacturing defect the said vehicle is having side pulling. The first service of the vehicle was done on 30-06-2007. On the date of the first free service, the vehicle had covered only 544 Km. B1 job card would show the first free service done on 30-06-2007. The second service for the vehicle was done on 11-09-2007 and on the date of the second service, the vehicle had covered a distance of 1397 km. Ext. A4 photocopy of the service advice sheet would make it clear that the service was done on 11-09-2007 when the vehicle covered a distance of 1397 Km. It would also show that at the time of the said service the rear mud guard and rear tyre of the vehicle were replaced. Admittedly, the aforesaid replacements were effected under warranty. The complainant as PW1 has categorically deposed about the replacement of the rear tyre and damage to the rear mud guard on account of the side pulling.
10. DW1 the witness from the side of the first opposite party has admitted the first service done on 30-06-2007 and subsequent entrustment of the vehicle on 05-09-2007 for second service and that the vehicle was delivered to the complainant after effecting the service and repairs only on 11-09-2007. He also admitted the fact that the rear mudguard and rear tyre of the vehicle were replaced under warranty. He also deposed that the vehicle was having wobbling while plying. It is pertinent to note that DW1 could not strongly deny the suggestion that replacement of rear mudguard and rear tyre occurred because of the manufacturing defect of the vehicle. At the same time, he deposed that rear tyre was replaced due to manufacturing defect of the tyre. But the terms and conditions of the warranty and limitations of warranty produced by the appellants (photocopy) at the time of arguments would show that the opposite parties will not be liable to replace the tyres etc. which are subjected to their warranty terms and conditions. So, the opposite parties replaced the rear tyre and rear mudguard because of the manufacturing defect of the tyre cannot be believed or accepted. Moreover, the opposite parties have no such case in their written versions that the rear tyre was replaced because of the manufacturing defect of the tyre. DW1 has also admitted that even if there was any manufacturing defect in the vehicle they are prepared to rectify the said defect.
11. DW2 the authorized representative of Hero Honda (Motors) Ltd, categorically admitted replacement of the rear tyre and rear mudguard. According to DW2 those parts were replaced as a gesture of goodwill and to satisfy the customer. DW2 has no case that the rear tyre was replaced because of the manufacturing defect of the tyre. Thus, the testimony of DWs 1 and 2 will differ in that respect. The aforesaid inconsistency in the testimony of DWs 1 and 2 with respect to the reason for replacement of the rear tyre of the vehicle would make it clear that the reasons stated by the opposite parties for replacement of the rear tyre cannot be accepted. It is too much on the part of DW2 to depose that they replaced the rear tyre just to satisfy the customer and that the rear tyre was replaced without any defect. This circumstance would strengthen the case of the complainant that the vehicle was having manufacturing defect and that is why the rear mudguard and rear tyre were replaced within a period of 6 months when the vehicle covered only a distance of 1397 kms.
12. An expert Commissioner was deputed by the Forum below to examine the complainant's vehicle and to detect as to whether there was any manufacturing defect in the said vehicle. The expert examined the vehicle in the presence of all the parties to the complaint and the said inspection was on 16-06-2008. On the date of the inspection on 16-06-2008, the vehicle had covered a distance of 5696 km. Ext.C1 is the commission report filed by the expert Commissioner who is a licensed surveyor and loss assessor. The expert Commissioner was examined before the Forum below as DW3. No suggestion was put to DW3 about his competency to conduct inspection of the disputed vehicle. A perusal of C1 expert report and the testimony of DW3 would make it clear that the disputed vehicle is having side pulling and the disputed vehicle was dismantled for the purpose of inspection. In the said inspection it was found that the chassis of the vehicle is having bent and that the front assembly alignment is not satisfactory. It is also reported that the chassis bent can be the reason for the side pulling. DW3, the expert Commissioner has also admitted the fact that side pulling for a vehicle would occur due to chassis bent or due to forkshaft bent, handle bent handle bracket bent etc. But the expert Commissioner could detect chassis bent for the disputed vehicle. So, there can be no doubt about the fact that the side pulling occurred due to chassis bent.
13. The expert Commissioner has also deposed that chassis bent may occur due to manufacturing defect or due to mishandling of the vehicle. But the opposite parties have no case that the chassis bent occurred due to mishandling of the vehicle by the complainant. No evidence is also forthcoming from the side of the opposite parties that the complainant mishandled the vehicle and it resulted in the bent to the chassis. So, it can very safely be concluded that the chassis bent occurred due to manufacturing defect. Thus, the evidence on record would make an irresistible conclusion that the vehicle in question was having manufacturing defect. The nature of the manufacturing defect is the bent to the chassis. The appellants/opposite parties 2 and 3 being the manufacturer of the disputed vehicle are bound to rectify the manufacturing defect in the vehicle.
14. The expert Commissioner in C1 commission report has reported that this defect of side pulling and chassis bent cannot be repaired by an ordinary workshop. The expert Commissioner as DW3 has admitted the fact that side pulling and the chassis bent can be rectified in a modern workshop. He also categorically deposed that the defect could be rectified by replacement of the defective chassis. It is to be noted that the complainant has not challenged the correctness of C1 report and the testimony of the expert Commissioner as DW3. The appellants have got a case that expert commissioner was not competent to detect the chassis bent. But DW3 has categorically deposed that no technical assistance or technical infrastructure is required to detect chassis bent. "Chassis bent !LUBTN HT\v8U* HITBfU[NL #EF_AUDc". So, this State Commission has no hesitation to rely on the testimony of DW3 and his C1 Commission report. Based on the expert evidence available on record, it can be concluded that there was manufacturing defect in the vehicle due to chassis bent and that the said manufacturing defect can be rectified effectively by replacement of the defective chassis.
15. The terms and conditions of the warranty would make it crystal clear that the manufacturer of Hero Honda Motorcycle is only liable to repair or replace the defective parts and the said replacement or repair is to be done free of charge. The terms and conditions of the warranty would also make it clear that the warranty is for a period of 2 years or 30000 km from the date of purchase, whichever is earlier. It can be seen that the warranty benefits available to the purchaser of Hero Honda Bike are for getting the defects or malfunction repaired or to get the defective part or parts replaced. There is no provision in the warranty to replace the entire vehicle as such. It is to be noted that the complainant purchased the Hero Honda CD Deluxe Bike from the opposite parties by agreeing the terms and conditions of the warranty and also the limitations of warranty incorporated in the warranty provided for the vehicle. If that be so, the Forum below cannot be justified in ordering refund of the price of the disputed vehicle. It is also to be noticed that there is no such evidence available on record warranting refund of the price of the disputed vehicle. If it is found that the manufacturing defect could not be rectified by replacement of the defective parts or that the manufacturing defect in the vehicle could not be rectified other than by replacement of the disputed vehicle, we can understand the Forum below ordering replacement of the defective vehicle as such by a new vehicle or ordering refund of the price of the vehicle. But in the present case on hand, it is come out in evidence that the manufacturing defect in the disputed vehicle can be rectified by replacement of the defective chassis. It is also established that the manufacturing defect is due to the defective nature of the chassis. Thus, the defect in the vehicle can be rectified by replacement of the defective chassis. Instead of ordering replacement of the defective chassis, the Forum below has ordered refund of the price of the disputed vehicle. The impugned order passed by the Forum below is legally unsustainable, especially in the light of the terms and conditions of the warranty and also in the light of the testimony of DW3 and his C1 expert report. It is also to be noticed that the disputed vehicle was purchased on 30-05-2007 and the disputed vehicle has covered a distance of more than 5000 kms. The complainant has been using the said vehicle till this date. It is true that the complainant has been using the vehicle with difficulty or discomfort. But it is not just or fair to direct the manufacturer of the vehicle to refund the price of the vehicle, which was purchased by the complainant on 30-05-2007. So, the reasonable way of redressing the grievance of the complainant is to rectify the manufacturing defect in the vehicle by replacement of the defective part namely, the chassis and to make the vehicle defect free. This Commission is pleased to set aside the impugned order passed by the Forum below and to direct the appellants/opposite parties 2 and 3 to rectify the manufacturing defect in the vehicle by replacement of the defective chassis by a new defect free chassis and to make the disputed vehicle defect free. It is also to be bone in mind that the opposite parties were always ready and willing to rectify the defects in the vehicle by effecting necessary repairs; but the complainant was insisting for getting the disputed vehicle replaced by a new vehicle or to refund the price of the vehicle. These points are answered accordingly.
In the result, the appeal is allowed to the extent as indicated above. The impugned order dated 30-07-2009 passed by CDRF, Ernakulam in CC No. 305/2007 is set aside and that the appellants/opposite parties 2 ad 3 are directed to rectify the manufacturing defect in the vehicle by replacement of the defective chassis and by making the disputed vehicle defect free. The aforesaid rectification of the manufacturing defect is to be done within one month from the date of surrender of the disputed vehicle to the 3rd opposite party, Hero Honda Motors Ltd. at its office in Cochin. The parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN : JUDICIAL MEMBER VALSALA SARANGADHARAN: MEMBER Sr. [ Sri.M.V.VISWANATHAN] PRESIDING MEMBER