State Consumer Disputes Redressal Commission
M/S Mahindra Two Wheelers Ltd., vs 1. Smt Avagadda Viveka Chatanya Gowri ... on 25 April, 2013
BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD F.A.No.840 OF 2012 AGAINST C.C.NO.159 OF 2011 DISTRICT FORUM VIZIANAGARAM Between: M/s Mahindra Two Wheelers Ltd., Manfuacturers at Twoo wheelers D-1 Block Plot No.18/2(P), MDC Chinchwad, Pune-019 rep. by a Sajith S/o N.r.Aravindakshan aged about 37 years, Area Service Manager Appellant/opposite party no.2 A N D 1. Smt Avagadda Viveka Chatanya Gowri W/o Nara Tirumala Kishore Kumar D/o Avagadda Satyam, aged about 25 years, Civil Assistant Surgeon, Employees Dispensary Sri Venkateswara Elementary School, behind Saptagiri, Tirumala Chittoor Dist. Respondent/complainant 2. M/s BKR Automobiles, rep. by its Authorized Dealer for Mahindra Two Wheelers Ltde., D.No.8-1-93, MG Road, Vizianagaram. Respondent/opposite party no.1 Counsel for the Appellant M/s G.Anand Kumar Counsel for the Respondents Served QUORUM: SRI R.LAKSHMINARASIMHA RAO, HONBLE MEMBER
AND SRI THOTA ASHOK KUMAR, HONBLE MEMBER THURSDAY THE TWENTY FIFTH DAY OF APRIL TWO THOUSAND THIRTEEN Oral Order (As per Sri R.Lakshminarasimha Rao, Honble Member) ***
1. The respondent purchased Mahindra Rodeo two wheeler on 26.11.2011 from the first appellant for consideration of `53,700/- which was assigned with registration number AP 72373. The second appellant is the manufacturer of the scooter. The respondent complained of self-starting button problem and leakage of oil from engine. The first appellant informed her that they would be settled within a week or two and due to non-functioning of self-starting system, the respondent said to have developed knee pain for using the kick rod for staring the vehicle.
2. It is stated that on 5.11.2011 the vehicle was suddenly stopped and the first appellant on being informed about the condition of the vehicle, requested the respondent to take the scooter to M/s Silkon Motors, Akkayyapalem, Vishakhapatnam which said to have informed the respondent that the vehicle suffered from manufacturing defect for rectification of which the respondent was asked to pay an amount of `13,000/-.
3. The second appellant resisted the claim on the premise that the respondent had not availed all the services as per the terms of warranty and the vehicle is in proper condition. The second appellant gives warranty in respect of new scoters to be free from manufacturing defect, and undertakes to replace or repair free of charge within period of 24months from date of sale or running of 20,000 kms whichever is earlier and the warranty excludes normal wear and tear for the parts such as shoe , drive belt etc.,. It is contended that warranty becomes void in case of failure to observe instructions mentioned in the manual, if the maintenance of scooter is not done as per the schedule given in the owners manual. Replacement of the vehicle is not warranted and only certain defective parts would be replaced. The second appellant directed the first appellant to attend to the complaint of the respondent. As such there was no deficiency in service on the part of the appellants.
4. The respondent in support of her claim has field her affidavit and the documents, ExA1 to A10. On behalf of the appellants, its Service Engineer filed his affidavit and the documents, ExB1 to B4.
5. The District Forum allowed the complaint on the premise that there is manufacturing defect in the vehicle which was informed to the respondent by M/s Silicon Motors and the vehicle posed continuous problems including starting problem.
6. The opposite parties have filed appeal contending that the respondent has not filed any of opinion of expert to prove that the vehicle was defective and that the District Forum has not considered that the respondent had not made Silicon Motors as party to the proceedings nor did she produce on record any documentary evidence of any technician from M/s Silikon Motors. It is contended that the respondent purchased the vehicle after conducting test ride and she filed the complaint after using the vehicle for a period of one and half years. It is contended that the vehicle may develop problems due to its improper use and the problems may reoccur due to faulty workmanship and each time the scooter was taken to the workshop of the appellant no.1 their staff attended to the problem and the respondent endorsed her satisfactory note on cash memo.
7. As both parties did not appear, the matter is posted for orders on merits.
The point for consideration is whether the vehicle purchased by the respondent is defective and if so, to what relief the respondent is entitled to?
8. The respondent purchasing the scooter manufactured by the second appellant and sold by the first appellant on 26.11.2010 for consideration of `53,700/- is not disputed. The respondent stated that since the date of purchase the vehicle posed some problem or other. The respondent had stated that the vehicle posed continuous trouble in respect of self-operation button and self-kick rod and she referred to leakage of oil from engine of the scooter in her notice dated 28.01.2011. The relevant paragraphs of the notice read as under:
Having believed the version of No.1 of you my client took delivery of the vehicle. Even after 7 days after delivery also the self-starting system is not functioned, and when my client contacted No.1 of you, he replied that it will be rectified during 1st service of the vehicle. In the meanwhile there is heavy leakage of oils from the engine and from the beginning itself the vehicle is having defect in starting. Even after complaining the same and after completion of the 1st service also the said defect is not rectified. While matters stood thus, on 5.1.2011 all of a sudden the vehicle was stopped near Pendurthi in Visakhpatnam District and my client informed the same to No.1 of you over phone who in turn directed my client to take the vehicle to their nearest show room i.e., Silicon Motors, Akkayyapalem, Visakhapatnam to that effect the Silicon Motors passed a receipt.
Inspite of approaching No.1 of you to get the defects rectified and to give delivery of the vehicle the same is not rectified.
9. The job card dated 5.01.2011 would show the service carried out and the parts replaced which read as under:
Oil Seal IMP Face Comp Mov Drive Roller Comp Weight Piece Slide
10. The appellant contended that the vehicle did not suffer from any manufacturing defect and the respondent had not produced evidence of an expert to show that the vehicle suffered from any manufacturing defect. The appellant placed reliance on the following decisions.
i) Engineers International vs Vasudeva Rao 1997(2)CPR 78.
ii) TATA Engineering & locomotive Co.Ltd vs T.Nagaraju I (20000 CPJ 62.
iii) State of Himachal Pradesh vs Jai Lal (AIR 1999 SC 3318).
iv) Maruthi Udyog Ltd vs Susheel Kumar Gabgotra (2006) 4 SCC 644.
11. In Engineers International (supra) it was held that the complainant in order to substantiate his claim with regard to the defects in the machine purchased by him, has to produce some evidence on record.
12. In T.Nagarajus case, the National Commission held that it is necessary to have a report from a technical expert to ascertain whether the vehicle suffered fro any manufacturing defect and if so, the nature and extent of those defects.
13. In Jai Lal(supra) the Honble Supreme Court considered qualification of an expert. It was held in order to bring the evidence of a witness as that of an expert it has to be shown that he has made a special study of the subject or acquired a special experience therein or in other words that he is skilled and has adequate knowledge of the subject
14. In Maruti Udyog Ltd , the scope of terms of warranty was considered and it was held that various documents show that the appellant/opposite party had indicated that downing of the engine was necessary to trace the problem. There was no agreement to replace the engine system. But when the appellant/opposite party asked the vehicle to be brought for the said purpose, respondent/complainant did not do so. To infer that there was any manufacturing defect in the said background is without any foundation
15. As contended by the appellant, the respondent did not make M/s Silkon Motors as party to the proceedings. Basing on the statement of the respondent, it cannot be inferred that the vehicle suffered from manufacturing defect. However, the negligence of the appellants in attending to the problems reported by the respondent particularly in regard to the problem posed by start-button cannot be lost sight of.
16. This Commission in Sri Gopal Auto Sotes 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. 355of 2009 decided on 13.10.2009 dealt with the cases involving similar facts and circumstances.
17. 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
18. 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
19. In the case on hand, the respondent sought for replacement of the scooter and the District Forum has found manufacturing defect in the vehicle not based on any evidence. The District Forum ought to have directed the respondents to check the scooter and attend to the problems without charging money from the appellant and it ought to have awarded a sum of `5,000/-
towards compensation.
20. In the result, the appeal is allowed modifying the order of the District Forum. The appellants/opposite parties are directed to check the scooter of the respondents and pay an amount of `5,000/- to the respondent towards compensation. There shall be no order as to costs. Time for compliance four weeks.
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MEMBER Dt.25.04.2013 కె.ఎం.కె*