State Consumer Disputes Redressal Commission
M/S.Hero Honda Motors Ltd, No.53/1, ... vs P.Jayakumar, New No.70, Old No.225A, ... on 27 March, 2012
THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI. Present: Thiru.A.K.Annamalai, M.A., M.L., M.Phil., PRESIDING JUDICIAL MEMBER Thiru.S.Sambandam, B.Sc., MEMBER F.A.No.67/2011 [Against order in C.C.No.392/2009 on the file of the DCDRF, Chennai (North)] TUESDAY, THE 27th DAY OF MARCH 2012. 1. M/s.Hero Honda Motors Ltd, No.53/1, First Floor, Cathedral Road, Chennai 600 086. .. 1st Appellant/2nd opposite party 2. M/s.Nagappa Motors Pvt. Ltd., No.13, Balfour Road, Kilpauk, Chennai 600 010. .. 2nd Appellant/1st opposite party /Vs/ P.Jayakumar, New No.70, Old No.225A, Anna Street, Thiruvalluvar Nagar, Ayanavaram, Chennai -23. .. Respondent/Complainant The Respondent as complainant filed a complaint before the District Forum, against the opposite parties praying for the direction to the opposite parties to replace the vehicle and to pay a compensation of Rs.1,00,000/- due to their deficiency of service which caused mental agonies to the complainant. The District Forum partly allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dated 25.10.2010 in C.C.No.392/2009. The appeal coming before us for hearing finally on 16.3.2012, upon hearing the arguments of both sides and perused the documents, written submissions as well as the order of the District Forum, this Commission made the following order :- Counsel for Appellants/Opposite parties : M/s.S.Ramasubramaniam & Associates, Adv. Counsel for Respondent/Complainant : M/s. V.Subramanian, Advocate. ORDER
A.K.ANNAMALAI, JUDICIAL MEMBER
1. Opposite parties are the appellants.
2. Complainant filed a complaint against the opposite parties praying for direction to replace the defective vehicle and to pay a sum of Rs.1,00,000/- as compensation for deficiency of service and mental agony and for costs.
3. Complainant purchased a Hero Honda Pleasure Scooter from the 1st opposite party for Rs.36,150/- on 9.5.2008 for which 2nd opposite party is the manufacturer and including other expenses complainant paid Rs.40,990/- from the day of purchase the vehicle was in trouble not giving more mileage as promised for more than 50 kms per liter of petrol to only 25 kms was given and after service it had given 33 kms and also the starter was not functioning properly while kicking which gave reverse force thereby causing injury to the leg and also the self starter was not properly functioning and in spite of 3 services were carried out and for 3 times on complaint the vehicle was serviced for poor mileage self starter, kick starter not functioning kicker not returned rear break jam and thereby a notice was given and in the reply they were admitted and on 2.5.2009 complainant wrote a complaint to the 1st opposite party and the 2nd opposite party for which on 12.5.09 a letter was received to produce the vehicle for checking the vehicle and battery was removed for test is still with the opposite parties and thereby the complainant after giving a lawyer notice on 20.5.09 receiving reply on 12.6.09 and 17.7.09 the complainant filed this complaint claiming above relief.
4. Opposite parties denied the allegations of the complainant in their common version and contended that at the time of delivery of the vehicle the 1st opposite party explained the functions and instrumental operation and periodical maintenance of the vehicle as per the owners manual and the complainant had not reported for the periodical maintenance services regularly as specified in the owners manual and the vehicle was brought for second service on 17.10.2008, after covering 2191 kms with the complaints of poor mileage self starter, kick starter not working rear break jam and all these defects were attended and general free service was carried out and delivered on 20.10.2008 and on third service on 24.2.09 after covering 3983 kms for the same type of complaints lubrication, battery charging, carburetor tuning were all done to resolve the problems and thereafter complainant received the same with satisfaction on 2.5.09. He sent a complaint to the company and thereby he was asked to produce the vehicle for checking the problems on 12.5.09 but the complainant did not turn up and thereafter he issued the legal notice and the vehicle battery was checked because of discharge condition and loose terminal self starter was not functioning which was set right and the battery was sent to the manufacturer for 3 occasions on 28.2.09, 17.4.09 and 11.5.09 and the battery conditions found O.K. Due to various factors like quality of petrol traffic condition of the road load carriage usage and maintenance of the vehicle the low mileage could occur and thereby there is no deficiency on their part and the vehicle had run more than 4000 kms and thereby there is no negligence and deficiency of service on their part.
5. On the basis of both sides materials and after an enquiry the District Forum having come to the conclusion that in spite of more than 6 times of service carried out the vehicle was not become alright and there is because of inherent defect that the defects could not be rectified and directed the opposite parties to replace the vehicle or in the alternative to refund the sum of Rs.40,990/- and Rs.25,000/- towards compensation for mental agony and Rs.5,000/- towards costs.
6. Aggrieved by the order of the District Forum, opposite parties have come forward with this appeal and in the grounds of appeal contended among other things that the alleged manufacturing defect was not proved by the complainant by sending the defective vehicle to the test for expert opinion and all the defects alleged were rectified by the 1st opposite party during every service and his satisfaction in writing was recorded and when the vehicle was ordered to be produced for attending the problems on the basis of complaint made by the opposite parties to the complainant the vehicle was not produced and thereby there is no deficiency on the part and the District Forum erroneously allowed the complaint with direction to replace the vehicle and also ordered compensation which are all unreasonable, unsustainable and the District Forum failed to consider the scope of warranty and thereby appeal to be allowed.
7. While considering both sides arguments, averments and contentions it is not in dispute that the complainant had purchased Hero Honda pleasure scooter from the opposite parties as a new one on payment of Rs.40,990/- on 19.5.2008 and within the period of one year from 19.5.2008 to 26.2.2009, the vehicle was not satisfactorily used by the complainant due to the defects alleged of poor mileage self starter not working kick starter not working, kick starter not returned rear break jam and for which admittedly he had left the vehicle 3 times for free service on 4.7.2008, 17.10.08 and 24.2.09 and also on complaint for 3 more times for attending repairs on 20.11.2008 and 21.1.09 and 26.2.09. Even though the opposite party contended the vehicle ran for more than 4000 kms and after giving complaint by the complainant to the company under Exhibit A11 on 2.5.09 explaining the circumstances and the troubles in the vehicle and on that basis a reply was sent by the 1st opposite party to produce the vehicle for checking at their Kelleys service station and the vehicle was not produced for the same. Instead the complainant rushed to the consumer forum by filing the complaint.
It is also admitted that for the purpose of checking or service the battery was removed from the vehicle and it was sent 3 times for checking to the manufacturer of the battery company and obtained reports stating that the battery was O.K under Exhibit B6, B7 and B8, on 28.2.09, 17.4.09 and 11.5.09 within the period of 3 months the battery was sent for 3 times for checking and it is still with the opposite party and it is not proved by the opposite party that they have informed the complainant after making the battery ready for use to produce the vehicle for refixing the same until 2.5.09 and only after receiving a letter from the complaint dated 2.5.09 under Exhibit A11 the opposite party sent the reply under Exhibit A12 and B9 requesting to produce the vehicle in which also they failed to inform that the battery was made ready for fixing and from the details of the job cards and the documents relied upon by the complainant it is seen that there are certain inherent defects in the kick starter and self starter in the starting mechanism and even though the other defects are rectified it may be due to various factors of causes occurred and in those circumstances we are of the view that the opposite parties have not rectified the defects relating to the self starter and kick starter to the satisfaction to the complainant and thereby they committed deficiency in their service. As far as the award is concerned the District Forum instead of directing the opposite parties to rectify the defects of the particular part o the vehicle or to replace with the same as new part i.e. self starter with kick starter mechanism ordered erroneously for entire replacement of the vehicle itself which it is not correct in our view. The opposite parties have relied upon the ruling reported in National Commission. Case in Appellants: Suseela Automobiles Pvt. Ltd., through its Manager, Shri Kamlesh Kumar Singh Vs. Dr.Birenda Narain Prasad and Others and in the order dated 7.5.10 it is held in para 6 as follows :- At the very outset, it may be stated that to establish the claim for the total replacement by a new vehicle, the complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert automobile/mechanical engineer that the vehicle suffered from inherent manufacturing defect. Opinion of an expert body in such cases would be an essential input. The Honble Supreme Court as well as this Commission in a number of cases have held lthat unless this onus is satisfactorily discharged by the complainant, the liability of the manufacturer would be limited to removal of the defect and/or replacement of the parts. When the present case is considered in this backdrop, it cannot be said that the complainant has been able to satisfactorily prove his case of the car suffering from inherent manufacturing defect. Mere because the car had been taken to the workshop of the petitioner-dealer several times or because a number of letters/complainants had been addressed to various functionaries and authorities of the opposite party-manufacturing company, it will not be itself amount manufacturing defect. The District Forum, on a scrutiny of the evidence produced by the parties, has observed some minor defects appreared in repaired and necessary parts covered under the warranty were replaced. The suspension kit which had not been provided at the time of purchase as promised by the dealer, which was the main grouse of the complainant, was also replaced though belatedly. The District Forum has further observed that defect in the lubrication system and other minor problems would not constitute manufacturing defect and the problems faced by the vehicle appeared to have surfaced after the vehicle had met with an accident. The District Forum has further gone on to observe that in view of the accident, although the complainant was not entitled under warranty for replacement in case of accident, even then the same was done by the opposite parties only to maintain its high reputation in the market and amongst the customers. The District Forum under the circumstances had ruled out any manufacturing defect.
8. Hence on that basis the appellants prayed for dismissal of the case. Further they also relied upon the precedent followed by this Commission in the appeal in F.A.No.580/2006 dated 10.8.2010 in the similar case in para 10 it was held as follows :-
When the alleged defect in the vehicle, which cannot be determined without proper test of the vehicle, the complainant should have adopted the mandatory provisions available under Section 13(1)( c) of the Consumer Protection Act, which he failed. Defect is defined under Section 2 (1) (f), which says Any fault, imperfection or shortcoming in the quality of the goods. Therefore, a person who came to the Forum, complaining defects in the vehicle, purchased by him, should make out a case, thereby, shifting the burden to other side, to prove otherwise.
From these rulings the opposite parties contended the complainant failed to prove the manufacturing defects in this case and thereby prayed for dismissal of the complaint.
As far as the case in our hand is concerned even though the manufacturing defect was not proved for the entire vehicle as the complainant was specific about the defects relating to the starter mechanism concerned which could be replaced or repaired by the opposite party in a proper manner and without attending the same the complainant was compelled to bring the vehicle for 6 times to rectify the defects to their service station which itself would cause mental agony and the opposite parties have committed the deficiency in this regard. Hence we are of the view that in such circumstances complainant is entitled for compensation alone and instead of replacing the entire vehicle as the complainant not satisfied with the opposite partys service and to that extent we are of the view that the order of the District forum to be set aside by allowing this appeal in part.
9. In the result, the appeal is allowed in part, the entire order of the District Forum passed in C.C.No.392/2009 is hereby set aside. The opposite parties are directed to pay a sum of Rs.10,000/- towards charges to rectify the defects in the vehicle and a sum of Rs.5,000/- as compensation for mental agony and deficiency in service in not rectifying the defects of the vehicle purchased by the complainant properly and also directed to replace the battery with a new one to the complainant or to pay the cost of the same to the complainant. Opposite parties are directed to pay a sum of Rs.2,000/- only as costs to the complainant.
No order as to costs in this appeal.
S.SAMBANDAM, A.K.ANNAMALAI, MEMBER PRESIDING JUDICIAL MEMBER INDEX : YES / NO sg/B-I/aka/bike