Hero Honda

**admin** · 09-06-2009, 05:55 PM

ORDER SRI.K. VIJAYAKUMARAN, PRESIDENT.

The complaint seeking replacement of a new motor cycle with compensation and costs.

The averments in the complaint can be breiefly summarized as follows:

The complainant while planning to purchase a new motor cycle happened to see the advertisement of the 1st opp.party through news papers and television about its product, Hero Honda Passion Plus motor cycle claiming a mileage of 87 kilometers per liter durability , perfect and flawless engine and other peculiarities. Believing the claims of 1st opp.party the complainant purchased a Hero Honda Passion Plus Motor Cycle from the 3rd opp.party who is the authorized dealer for a sum of Rs. 42.691/-. The vehicle was registered with Registration No.KlL-02-S-8179, The engine number was 04G08M24045 and the chasis No.04G09C23772. At the time of purchase the vehicle showed a mileage of 63 km. per liter. After one service mileage was reduced to 53 km. Thereupon the complainant approached the 3rd opp.party who said that the offered mileage of 87 km. per liter will be obtained after three successful services. But after three successful services also the mileage did not improve but was reduced to 40 km. per liter. The complainant thereafter contacted the 3rd opp.party again as the mileage has been reduced and the motor cycle started developing starting trouble. The motor cycle thereafter was subjected to repairs 7 times by the 3rd opp.party’s service centre at Curzon Road at Polayathode. Though no charges are to be collected for the same the 3rd opp.party collected Rs.212.26 paise from the complainant. Inspite of all these repairs and services starting trouble and the deteriorating mileage, could not be rectified. When the complainant consulted some experienced automobile engineers they opined that the defects of the motor cycle cannot be rectified since the same is the result of manufacturing defect. The complainant approached the 3rd opp.party and requested him to supply a new vehicle as the vehicle supplied has manufacturing defect but the 3rd opp.party did not take any action. Thereafter the complainant issued an advocate notice to the opp.parties. The complainant sustained huge loss due to the poor mileage of the motor cycle. The complainant is a business man and he purchased the vehicle in connection with the business purpose The low mileage and the intermittent starting trouble of the vehicle caused great inconvenience to him and the running of his business. Hence the complaint.

The opp.parties filed a joint version contending as follows. The complainant is not a consumer of the opp.parties . It is true that the complainant purchased a Hero Honda Passion Pluz motor cycle from the 3rd opp.party. The preparation made by the complainant for purchasing a motor cycle are matters known to him only for which the opp.parties have nothing to do They are not made any bluffing advertisement in this regard . The complainant did not observe the warranty conditions properly. The allegation of deterioration of mileage is also farcified creation of the complainant in order to harass the opp.parties due to ego clash created during the service time in the service station. The mileage would depend upon the quality of riding the vehicle, the load being pulled, the quality of the fuel used and other riding conditions. The vehicle lsupplied was devoid of any manufacturing defect. The alleged starting trouble of the vehicle is also a creation and afterthought in order to suit this claim The opp.parties can make a test and rectify the complainant’s vehicle with the observation of this Forum as a prudent approach. The complainant is not entitled to any relief as prayed for. There is no deficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint with their costs.

The points that would arise for consideration are:
1.Whether the motor cycle suffers from any manufacturing defect?
2.Whether there is deficiency in service on the part of the opp.parties?
3.Reliefs and costs.

For the complainant PW.1 and 2 are examined. Ext.P1 to P10 are marked.
No oral evidence is adduced by the opp.parties.

Points:

The case of the complainant is that he has purchased the motor cycle involved in this case seeing the advertisements made by the 1st opp.party in the media regarding the mileage and other performances. According to him the advertisements showed that the motor cycle had a mileage of 87 Km per litre. But no material worth believable was produced to show that the opp.parties gave such an advertisements. No material was also produced by the complainant to show that Hero Honda Passion Plus motor cycle has a milege of 87 km. per litre. There is also no evidence to show that the mileage of the motor cycle after each service had deteriorated . Though the complainant would claim that the vehicle was repaired and serviced by the opp.party seven time no bill or other material is purchased to establish that contention. Other than the oral assertions all that is produced is Ext.P4 series which are the value of engine oil purchased service charges and value of a bolt. Ext.P4 [a] and [b] are dated 3.3.2005 and Ext. P3[c] is dated 15.3.2005. These documents shows that the vehicle was taken to the opp.party by the complainant in March 2005 only. The complainant has admitted that he has taken the motor cycle to the opp.parties for 3 free services, but the service manual was not produced. According to him the service manual was lost when the vehicle was taken to the 3rd opp.party’s workshop. But he has no such averments in the complaints. As argued by the opp.parties the service charges alone is free and the material such as oil etc has to be purchased by the party and that after 3 free services charges will be collected for service.

The definite contention of the opp.party is that the motor cycle purchased by the complainant from them has no manufacturing defect at all and that the deterioration in mileage etc is not due to any manufacturing defect but due to the way in which the vehicle was being handed by the complainant. It is argued that the mileage would vary depending upon the quality of riding the vehicle, the load, quality of the fuel used and other riding conditions and that there is nothing to show that the complainant was observing all the above conditions properly while using the motor cycle. It is further argued by the opp.party that the dispute is not because of any defect to the motor cycle but due to some ego clash between the complainant and employees of the 3rd opp.party who was servicing the motor cycle.

The contention of the opp.parties is that the motor cycle had manufacturing defect which is the cause of all the complaints has not been properly established by the complainant. PW.2, the expert appointed in this case and who has prepared Ext.C1[a] inspection report has no case either Ext. C1[a] or in the box that this motor cycle had any manufacturing defect. He had inspected the vehicle and pointing out taken mistakes which are elaborating stated Ext. C1[a] . No even suggestion was put PW.1 by the complainant’s counsel that the vehicle has any manufacturing defect. It is also worth pointing out that a motor cycle having manufacturing defect cannot be used for riding more than 30,000 Kms. As admitted by PW.1 Therefore the contention of the complainant that the vehicle has manufacturing defect cannot be accepted.

The expert report Ext. C1[a] shows that the motor cycle has certain defects. The report shows that the starting coil ,the Carburetor, the exhaust the piston and odometer are unserviceable. He has suggested replacement of the starting coil, Carburetor, engine, exhaust and the odometer. According to him the condition of the vehicle is very poor and not roadworthy and that the above are beyond repair. It is stated in the expert report that the pitson is in a worn out condition and the engine condition is also very poor. It is not known as to how the expert come the conclusion that the piston is in a worm out condition without opening the engine . It has come out from Ext.C1[a] that the motor cycle has such 24057.8 kms. PW.1 has also admitted in cross examination that the motor cycle ran approximately 30,000 km.. PW.2 has stated during the cross examination that odometer was static and he cannot say whether the motor cycle has run more kilometers than what is shown in the odometer. Whatever that be a motor cycle having manufacturing defect cannot be said to have run so much kilometers. This aspect is fortified by Ext. C1[a] and the evidence of PW.2 Therefore, we are of the view that the motor cycle, as contended by the opp.party, cannot be said to have any manufacturing defect. In these circumstances the complainant cannot seek replacement of the motor cycle. As pointed out earlier Ext. C1[a] shows that the motor cycle has certain defects and the expert has categorically stated that the defects shown therein are beyond repair. Therefore we feel that it is only just and proper to direct the opp.party to replace the starting coil , the carburetor, exhaust the piston and service the engine . The opp.parties are also bound to replace odometer if the same is not serviceable. Infact in the version in para 5 the opp.parties have volunteered to rectify the complaints of the vehicle. Hence we are direct the opp.parties to replace the items shows above and service to the engine. Point found accordingly.

In the result the complaint is allowed in part directing the opp.parties to replace free of charge the starting coil, carburetor, exhaust, piston and to service the engine and odometer . We direct the parties to suffer their respective costs. The order is to be complied with within one month from the date of this order.

**admin** · 09-07-2009, 12:52 PM

COMPLAINT NO. 2785 OF 2008

SOMASUNDAR KRISNAMURTHY HEGDE,
S/o K.N.Hegde, A/a 28 yrs,
R/at Flat No.FF2, Lotus Kaveri Apartments,
Papanna Layout Lane, Ramanurthy Nagar,
Bangalore – 560 016.

…. Complainant.

V/s

01. The Managing Director,
Hero Honda Motors Limited,
F-126, Katwaria Saria,
Opp. Qutab Institutional Area,
New Delhi – 110 016.

02. M/s Shakthi Motors,
Shakthi Chambers,
Devikere Road, Sirsi,
Karnataka – 581 401.

03. Taru Motors,
No.5C/308, East of NGEF Layout,
Ramamurthinagar Main Road,
Bangalore – 43.

…. Opposite Parties

-: ORDER:-

The complainant has prayed for a direction to the Opposite Parties to take back the vehicle supplied to him and to replace the same with a new vehicle and to pay compensation of Rs.50,000/- and cost of Rs.5,000/- on the following grounds:-
On 26/06/2008 he purchased a new Hero-Honda Hunk Motor Bike with Disk Break and self-starter from Opposite Party No.2 and the Motor Bike was delivered to him at Mundgod. From the date of purchase itself, the complainant is having some issues with the gear and humming noise in the 4th gear. When he brought this problem to the notice of the concerned, he was informed that it will become normal after the first service. After few days, he noticed leakage of oil in the bike and left the vehicle for first free service at the service center of Opposite Party No.3 on 14/07/2008 and explained the problems which were found in the vehicle. After the first service, he noticed that none of the problems were solved and the vehicle was in the same condition. He again approached Opposite Party No.3 and stressed about the problems. But the same was not properly resolved. Opposite Party No.3 suggested to approach Millennium Motors, Domlur, Bangalore to get the defects rectified. Accordingly he approached the said service centre on 19/07/2008 and left the vehicle for repairs. On 23/07/2008 at the time of receiving the vehicle, he was informed by the said service centre that the gear wheel was replaced to reduce the humming noise and some cylinder stud was also replaced to stop oil leakage. Soon thereafter the vehicle started giving jerks on 3rd & 4th gear. On 19/08/2008 while he left the vehicle with Millennium Motors for repairs, the reading was showing 1245 Kms. Millennium Motors did not consider it for second service. The vehicle was delivered to him on 21/08/2008 but thereafter the vehicle started giving a new problem as the accelerator became errant and the vehicle started to raise even after the release of the accelerator. He again approached Millennium Motors with the above problem and left the vehicle for another three days. He was informed that the problem will be rectified. However, no job card was given. One of the service Manager told that they have replaced a pipe taking the same from a new vehicle in their showroom as it was not available anywhere. He went to Mysore on 27/09/2008 and during journey he noticed:
(a) Jerks in 4th & 5th Gear,
(b) Raising of Accelerator,
(c) Pickup lesser than a Splendor,
(d) Top Speed of 100 Km. only, and
(e) Mileage around 20 Km. only.
After returning from Mysore, he gave the bike for second free service to Millennium Motors on 01/10/2008 narrating all the above problems. He received the vehicle back on 06/10/2008 but found that none of the above problems were solved and it caused a lot of mental tension to him. He sent ‘e’ mails to Bangalore, Chennai, Hydarabad and Delhi branches of Hero-Honda clearly mentioning all the problems in the vehicle expecting some one responsible from Hero-Honda will contract him and solve the problems in the vehicle. But none of them contacted him so-far. On 19/11/2008 he issued legal notice to Opposite Party Nos. 1 to 3 and to Millennium Motors calling upon them to take back the faulty vehicle and replace the same with a new one. In spite of receipt of notice, the Opposite Parties have not bothered to approach him. Due to the act of the Opposite Party he has suffered a lot of mental agony and loss as such the Opposite Parties are liable to pay compensation of Rs.50,000/-. The complainant does not want to keep a defective vehicle at the price of a new vehicle. As a Software Engineer, he cannot spend much time in repairing a faulty and defective vehicle. Hence, the complaint.
2.In the version, the contention of the Opposite Party No.2 is as under:-
The statements in para-3 of the complaint are not with the knowledge of the Opposite Parties. The purchase of the vehicle as contended by the complainant is true. Since the vehicle was purchased at Mundagod and therefore this forum has no territorial jurisdiction to entertain the complaint. The averments in para-4 & 5 of the complaint are false. Whenever the vehicle was left with the Opposite Party for service, the same was delivered back to the complainant and the complainant was satisfied with the services carried out. On 01/10/2008 the Motorcycle was left with M/s Millennium Motors, necessary action were taken and the vehicle was delivered to the complainant. The complainant had signed the Job Card to the effect that the vehicle has been duly serviced and repaired to his satisfaction. Therefore, the complainant is estopped from making false allegations. A road trial of approximately 5 Kms was arranged in order to test the veracity of mileage. The statement that the complainant was traveling to Mysore on 27/08/2008 is not within the knowledge of the Opposite Parties. The allegation that the Motorbike has various problems is denied. Opposite Party No.2 has given reply to the legal notice dated:14/11/2008 issued by the complainant. The reply notice has been served on the complainant. On receipt of the legal notice, the complainant was asked to bring the Motorcycle to any authorized service centre in order to rectify the defects within the scope of warranty. But the complainant failed to adhere to the request of Opposite Party No.1 and has filed the present complaint which is premature. In the legal notice, the complainant was requested to bring the motorcycle in question for a through checkup and to set-right the problems if any within the terms and conditions of the warranty, but the complainant failed to bring the vehicle. Without any evidence, the complainant has presumed and assumed that there is defect in the vehicle and the same cannot be cured. As such he cannot seek replacement of the vehicle at his whims and fancies. The replacement of a vehicle is not necessary unless the manufacturing defect is proved. The complainant has failed to make out that there is manufacturing defect and the same cannot be rectified. Therefore he is not entitled to seek replacement of the vehicle. If there is any leakage, the complainant cannot presume manufacturing defect. All the problems complained are minor and trifling and none of them can be ascribed as manufacturing defects. Under the warranty, the obligation of the Opposite Parties is to repair or replace those parts causing mal-function free of charge. Without proving manufacturing defect, the complainant cannot come to the conclusion that there is a defect in the vehicle. On these grounds, the Opposite Party No.2 has prayed for dismissal of the complaint.
3.Opposite Party Nos. 1 & 3 have not filed version. In support of the allegations in the complaint, the complainant has filed his affidavit and has produced documents. The senior area service manager of Opposite Party No.1 has filed his affidavit in support of the defense. Except the copy of the reply notice, the Opposite Parties have not produced any documents. We have heard the arguments on both side.
4. The points for consideration:-

1.Whether the complainant has proved that the motorcycle supplied to him by the Opposite Parties has manufacturing defects?
2.Whether the complainant entitled to the relief prayed for in the complaint?
5. Our findings are:-
Point No.1 : In the Negative
Point No.2 : As per final order, for
the following:-

-:REASONS:-

6. Admittedly the complainant purchased the vehicle on 26/06/2008 and the complaint is filed on 24/12/2008 within about six months seeking replacement of the vehicle. It is the contention of the complainant that soon after purchasing the vehicle, he noticed humming noise in the 4th gear and leakage and even after the first service those problems were not solved. The complainant got the first service to the vehicle done at the service centre of Opposite Party No.3 and the subsequent services are got done at Millennium Motors. However, Millennium Motors is not impleaded as a party to the proceedings. The main grievance of the complainant is that while going to Mysore on 27/09/2008 he noticed:
(a) Jerks in 4th & 5th Gear,
(b) Raising of Accelerator,
(c) Pickup lesser than a Splendor,
(d) Top Speed of 100 Km. only, and
(e) Mileage around 20 Km. only.

He claims to have left the vehicle with Millennium Motors on 01/10/2008 narrating the above problems and received back the vehicle on 06/10/2008 and alleges that none of the above problems were solved. The Job Sheet issued by the Millennium Motors on 01/10/2008 is not produced to support the contention of the complainant that while leaving the vehicle with Millennium Motors on 01/10/2008 he pointed out the above problems, and the same were not rectified. Assuming for the shake of argument, that the above problems are found in the vehicle, no evidence is adduced to show that the above problems are due to any manufacturing defect in the vehicle. If the above problems are minor in nature as contended by the Opposite Party, the complainant is not entitled to seek replacement of the vehicle on account of minor problems, without adducing evidence of an expert to show that the above problems are due to manufacturing defect in the vehicle. In the reply to the legal notice, the Opposite Party had advised the complainant to take the vehicle to the authorized service centre for thorough check-up and to set-right the problems. It appears that the complainant did not take the vehicle to any service centre. The copy of the reply notice produced by the Opposite Party makes it clear that the reply notice was sent on 24/12/2008 by which time the complainant had filed the complaint before this Forum on 26/12/2008. Therefore, no reference is made in the complaint regarding the reply notice sent by the Opposite Party. The complainant is at liberty to take the vehicle to any authorized service centre of Opposite Party No.1 to get the problems rectified. As stated earlier without evidence to show that the vehicle has any manufacturing defects the complainant is not entitled to seek replacement of the vehicle with a new one. Thus, we hold that the complainant has failed to prove that the vehicle has any manufacturing defects and as such the complainant is not entitled to the reliefs prayed for in the complaint. In there result, we pass the following:-

-:ORDER:-

The complaint is DISMISSED. No order as to costs.

**Advocate.sonia** · 09-13-2009, 08:25 AM

1. Chandra Motors,

Authorized Dealer of Hero Honda,

N.H.No.7, Sai Nagar, Dasnapur,

Adilabad, Dist.Adilabad.

2. The Regional Manager,

Hero Honda Motors Ltd.,
3-6-475/3/B1, First floor,
Kalpavruksha Estate, Himayatnagar,
Hyderabad (A.P). 500029.

1. The complainant is resident of Bhoktapur, Adilabad town and he has purchased a two wheeler Hero Honda PASSIOIN PRO from the Opp.Party No.1 on 17.12.2008 vide Engine no.10ED8GM 040 540 Frame No.MBL HA 10ER 8 GM for Rs.49,762/- and taken delivery of the said vehicle from the Opp.Party No.1. The said vehicle started trouble within two days i.e., handle was shaking for which it was informed to Opp.Party No.1 but no steps were taken later after 30.12.2008 when first servicing, on that date the complainant complaint the same problem, then the workers changed the front tyre and checked the wheel and told that the vehicle will be run smoothly but there was no change in the running of the vehicle. As such on 07.01.2009 the complainant taken the vehicle to the show room of Opp.Party No.1 showing the problem of not running the vehicle properly and giving much trouble, in turn kept the vehicle two days with them thereafter returned the vehicle to the complainant as it is. Vexed with the attitude and careless of Opp.Party No.1 the complainant complaint the matter to Opp.Party No.2 on 12.01.2009, in turn a service engineer came to Adilabad on 213.01.2009 and checked the vehicle but at the instance of Opp.Party No.1 he went away by keeping the vehicle as it is thereby the complainant is suffering a lot of inconvenience and trouble, hardships even through he purchased the new vehicle but facing lot of problems and mental agony due to defective service of the Opp.Parties.

Hence the complainant prayed this forum to allow the complaint directing the Opp.Parties jointly and severally to replace the vehicle Hero Honda Passion-Pro with new one or pay its value of Rs.49,762/- and also direct to pay a compensation of Rs.25,000/- for the defective services and mental agony caused to the complainant with costs, in the interest of justice.

2. The Opp.Parties No.1&2 filed counter in common. The contents of counter is as follows:

It is fact that the complainant brought his vehicle on 30.12.2005 to the servicing center of our show room i.e., for first servicing with complaint of 1) Visor Noise 2) RR brake setting 3) Chain cover Noise 4) Clutch loose 5) Accelarating setting of spark plug and front wheel vibrating. Accordingly our service engineer on receiving the above vehicle with above complaints he issued the job card on 30.12.2008 and rectified the above defects of the vehicle and replace front wheel tyre for the complainant satisfaction and delivered the above vehicle to the complainant on same day at 6.00 P.M. by taking the satisfaction letter from the complainant. Again the complainant brought his vehicle on 23.01.2009 at the servicing center of our show room with a complaint of front wheel vibration on that the vehicle was thoroughly checked by our service engineer and after explaining as there is no problem as stated by him and it is only imagination of complainant, so question of keeping the vehicle fro two days on 07.01.2009 or on 12.01.2009 in show room does not arise and the complainant sustained the lot of inconvenience, trouble and hardships on purchasing the above vehicle does not arise. The Opp.Parties No.1&2 prayed to dismiss the complaint.

3. Both parties filed Proof Affidavits.

4. On behalf of complainant Ex.A1 to A3 are marked. Ex.B1 to B3 are marked on behalf of Opp.Parties.

5. Now the point for consideration is whether there are grounds to allow the petition?

6. Heard both sides. A perusal of Ex.B1 shows that 6 types of defects were noticed and the complainant brought the vehicle to showroom of Opp.Party No.1. The Opp.Parties rectified the problems and returned the vehicle in road worthy condition. In turn for such repairs, the Opp.Parties obtained acknowledgement from complainant under the original of Ex.B2. Ex.B2 reads:

“ I gave my bike for first servicing and the problem was solved with new tyre. So I am satisfied”.

7. The complainant further alleged that there was vibration in the front wheel so he took the vehicle to the showroom of Opp.Party No.1 on 7.1.2009 but the problem was not rectified. As against this contention the Ld. Advocate for the Opp.Party No.1 submitted that in fact the complainant brought the vehicle not on 07.01.2009 but on 23.01.2009 and the front wheel vibration was rectified and the vehicle was handed over to the complainant. In support of his contention he relied on Ex.B3. The fact that complainant brought the vehicle to the showroom of Opp.Party No.1 on 23.01.2009 and he took back the vehicle after necessary repairs and he is using the vehicle since then, is beyond dispute.

8. Thus in the above circumstances we see no grounds to direct the Opp.Parties to replace the Motor cycle with the new one. We see no merits in the allegations of the complaint.

**adv.sumit** · 09-30-2009, 11:42 AM

Gurpal Singh, aged 30 years, s/o Tarsem Singh, r/o H.No. 217, Street No. 17, Prem Garh, Hoshiarpur.

.... Complainant

versus

1.

Hero Handa Motors, 10 km., stone, G.T. Road, Post Office Dujana, Tehsil Dadri, Gautam Budh Nagar, U.P., Through its M.D./Chairman.
2.

M/s. Saini Motor Company, Near HDFC Bank, Chandigarh Road, Hoshiarpur, through its proprietor/partner.

........ Opposite Parties

1. The complainant namely Gurpal Singh has filed the present complaint, under Section 12 of the Consumer Protection Act, 1986 (as amended upto date) “hereinafter referred as the Act. Stated briefly, the facts of the case are that the complainant purchased one Hero Sting from OP No. 2 – M/s. Saini Motor Company on 23.5.2006 on payment of Rs. 27,600/-. The OP No. 2 is the authorized dealer of OP No. 1 – Hero Motors (manufacturer). That the fuel tank of the vehicle was leaking and kick touched with the cylinder and the vehicle was releasing excessive smoke from the cylinder. The said defects were brought to the notice of OP No. 2.
2.

It is the allegation of the complainant that OP No. 2 repaired the fuel tank and charged Rs. 330/- from him. The complainant brought in the notice of OP No. 2 that the vehicle is in warranty period, but the dealer – OP No. 2 ignored the said fact and told that these defects occurred during the transportation of the new vehicle and also told that problem of the smoke is due to defect in the kit. The complainant was also told that OP No. 1 had stopped manufacturing of the said vehicle due to permanent problem and advised him to purchase some other vehicle.
3.

It is further the allegation of the complainant that the complainant regularly visited OP No. 2 with the request to remove the defects of the vehicle, but of no consequences, though the vehicle was within the warranty period. That due to defect of releasing excessive smoke, the vehicle consumed more oil and the plug of the vehicle becomes defective frequently. It is also the allegation of the complainant that the complainant was told at the time of purchase of the vehicle that vehicle gives mileage of 90 km./litre, whereas, the vehicle gives mileage of less than 50 km/litre. The complainant sent a legal notice to the opposite parties.
4.

It is further the case of the complainant that on 14.2.2007, the complainant filed a complaint, which was decided by this Court on 17.3.2008 with the direction to the OP that the defects be removed and also to replace the defective kit. The OP did not comply with the order, as such the application u/S 27 of the Consumer Protection Act was made. That the OP on receipt of the notice complied with the impugned order, but after one week, the defects again occurred in the vehicle. The complainant again approached the opposite party with the request to remove the defects. The complainant was told that there is inherent and manufacturing defect in the vehicle, as such the same cannot be removed and due to that very reason, the Company had stopped the manufacturing of the said vehicle.
5.

The opposite parties No. 1 and 2 filed the joint reply. The preliminary objections vis-a-vis cause of action and estoppel were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the complainant purchased one Hero String 4 stroke from OP No. 2, the authorized dealer on 23.5.2006 after making the payment of Rs. 27,600/-. The vehicle was made available after due satisfaction to the complainant. It is denied that the vehicle started giving trouble after its purchase. The vehicle was inspected in the workshop and the complainant was satisfied, and thereafter, the vehicle was delivered to him on 4.1.2007. The complainant was also instructed by the Engineer of the workshop to abide by the terms and conditions contained in the booklet.
6.

It is further replied that the complainant brought the vehicle for routine check up. No amount was charged as alleged by the complainant. The complainant was requested to come after 20 days of the check up, but thereafter he never turned up nor brought any defect in the notice of the replying opposite parties. The vehicle had plied more than 25000 Kms. It is further replied that the complainant himself committed error in not approaching the opposite party no. 2 for the necessary repair. It is further replied that the manufacturing of the vehicle had not been stopped due to any problem in the running of the vehicle. It is further replied that OP NO. 2 never refused to repair the vehicle. That after the decision of the previous complaint, the OP NO. 1 replaced the desired part of the vehicle to the satisfaction of the complainant. The vehicle is not giving any problem as alleged in the complaint. The complainant was never told that the vehicle would give 90 km/litre mileage and it was made clear that the economic step 35 to 40 kms could give the approved average/mileage.
7.

It is further replied that the vehicle was checked on 7.1.2007 at the request of the complainant and the same was delivered to him in a satisfactory condition. The complainant was requested to come after 20 days, but thereafter, he did not turn up nor any problem was brought in the notice of the replying opposite parties.
8.

In order to prove the case, the complainant tendered in evidence his affidavit – Ex.C-1, RC – Mark C-2, supplementary affidavit - Ex. C-3, copy of order dated 12.6.2008 – Mark C-4, affidavit of Des Raj – Ex. C-5 and closed the evidence.
9.

In rebuttal, the opposite parties tendered in evidence affidavit of S.N. Sharma – Ex. OP-1, letter dated 30.5.2008- Mark OP-2, letter dated 5.6.2008 – Mark OP-3, order dated 12.9.2008 – Mark OP-4 and closed the evidence on behalf of the opposite parties.
10.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
11.

The admitted facts may be noticed thus :

i) That the vehicle bearing registration No. PB07-Q-9864 was purchased from OP No. 2 –M/s. Saini Motor Company, Hoshiarpur.

ii) That the vehicle was manufactured by OP No. 1 – Hero Motors.

Iii) That the complainant filed a complaint (CC No. 39/15.2.2007 titled Gurpal Singh versus Hero Motors and another) which was decided on 17.3.2008 – Mark C-4, and the direction given by this Court was complied with, as conceded by the ld.counsel for the complainant during the course of arguments.
12.

Now, the only controversy between the parties is that whether after the compliance of the direction given by this Court in CC No. 39/15.2.2007 titled as Gurpal Singh Bhardwaj versus Hero Motors etc., decided on 17.3.2008, the vehicle in question again developed defects and the opposite parties have failed to rectify the same?
13.

The opposite parties have raised the plea that the complainant had failed to take the vehicle to the workshop to carry out the necessary repairs or to remove the defects. The complainant has filed his self-serving affidavit – Ex. C-1 to prove the fact that the vehicle in question is suffering from defects and the opposite parties have failed to rectify the same. The complainant has also produced on record the affidavit of Expert – Ex. C-5 namely Des Raj.
14.

The opposite parties have produced on record the document – Mark OP-3 and its close scrutiny makes it clear that the letter dated 5.6.2008 was written to the complainant to the effect that the vehicle is lying with him (complainant), so they are unable to repair the same. The learned counsel for the opposite parties have also agreed that the opposite parties are ready to carry out the necessary repair of the vehicle.
15.

In CC No. 39/15.2.2007 decided on 17.3.2008 – Mark C-4, it has been observed in Para No. 12 that the vehicle bearing Registration No. PB-07-Q-9864 had already covered more than 10000 Kms, therefore, we are of the opinion that it will not be just to pass the order for replacement of the vehicle or to refund its price, therefore, under the given situation, the complainant is directed to take the vehicle to the workshop of the opposite parties within 7 days from the receipt of copy of the order, and thereafter, the opposite parties are directed to remove the defect in the vehicle to the satisfaction of the complainant. Litigation expenses are assessed at Rs. 500/- to be paid by the opposite parties to the complainant within one month from the receipt of copy of the order. Copy of the order be sent to the parties free of cost. File be consigned to the record room.

**adv.sumit** · 10-04-2009, 11:39 AM

Rayala Rambabu, s/o.Narayana, age:35 years, occu: Proprietor of Maheshwari

Ladies Tailor, R/o.H.No.9-7-127/1, Vallalavari Street, Kaman Bazar, Khammam

town and District.

…Complainant

and

1. Sri Sri Automobiles rep. by its Proprietor Authorised Dealer for Hero Honda, #

5-1-181, Passion Towers, Wyra Road, Khammam Town and District.

2. M/s.Hero Honda Motors Ltd., Head office,34, Community centre, Basant Lok,

Vasant Vihar, New Delhi-57.

…Opposite parties.

O R D E R

1. This complaint is filed u/s.12-A of Consumer Protection Act, 1986. The averments made in the complaint are that the complainant purchased a motor i.e. Hero Honda Glamour Caste Wheels DRM self vide Engine No.07EASM21500, frame No.07EAWC17736 from the show room of opposite party No.1 on 20-6-2007. The said motor cycle was manufactured by opposite party No.2. The said motor cycle was handed over to the complainant for a valid consideration of Rs.54,000/-, which was financed by Centurion Bank of Panjab Ltd., Secunderabad.

After one week from the date of purchase the said vehicle releasing heavy smoke, immediately the complainant approached the opposite party No.1 showroom and placed the said problem before them, upon which the opposite party No.1 employees kept the vehicle with them for three days and handed over the vehicle to the complainant and assured that the problem was resolved. Again after one week the same problem was repeated and again the complainant approached the opposite party No.1, who stated that after the first service, the problem was automatically solved itself.

Believing the words of the opposite party No.1, on 21-7-2007 the vehicle was brought for first servicing. Even after first servicing, the same problem was continued. Again the complainant requested the opposite party No.1 to resolve the problem or else to replace the said vehicle. But the opposite party No.1 refused to solve the said problem. Thus, the complainant faced much trouble from the vehicle, the opposite party No.1 failed to rectify the same and gave evasive reply, due to which the complainant faced mental agony.

Vexed with the attitude of the opposite party No.1, he got issued a legal notice on 21-9-2007 to the opposite party No.1. On 2-11-2007 the opposite party No.1 got issued a reply to the complainant. Accordingly the complainant approached the opposite party No.1 on 27-11-2007 and handed over the vehicle to rectify the problems i.e. heavy smoke release and less milage and other problems and the same entered in the register maintained by the opposite party No1 and signed by the complainant. On the very same day, the vehicle was handed over the complainant by stating that all the problems were rectified. Even though the said problems were not solved, hence, this complaint.

On the other hand, the opposite parties No.1 and 2 appeared through their counsel and filed counter, denying all the averments made in the complaint. In the counter, opposite parties No.1 and 2 contended that as per the warranty terms and conditions as mentioned in Clause (c) if a defect is observed in any Hero Honda motor cycle, Hero Honda’s only obligation/liability is to repair or replace those part/parts, such malfunction has not come to the notice of opposite parties. As such the duty of opposite party is confined to get the part repaired or replacing the part with new one. The question of replacing motor cycle is illogical and does not arise. It is further contended that on 2-11-2007 opposite parties No.1’s workshop after thorough check up of the vehicle, after lapse of 25 days from such advice, as apart of 2nd free service brought the vehicle to the opposite party No.1’s work shop on 27-11-2007, and the vehicle was delivered to the complainant.

Again on 9-1-2008 the vehicle was brought to the workshop for third free service and as such the allegation of the complainant that without solving the problem in the bike was returned is not true and correct. It is further contended that in all six free services are required as recommended by the manual is very much essential. There was a lapse an negligence on the part of the complainant in getting his vehicle first and second free services as recommended by the manual. However, on request of the complainant the free service was provided to the vehicle. As such there is no deficiency in service on the part of them and prayed to dismiss the complaint.

On behalf of the complainant, the following documents have been filed and marked as Exs.A.1 to A.7.

Ex.A.1 - Delivery challan issued by the opposite party No.1 in favour of the

complainant, dt.20-6-2007

Ex.A.2 - Receipt issued by opposite party No.1, dt.21-7-2007

Ex.A.3 - Office copy of legal notice, dt.21-9-2007

Ex.A.4 - Delivery letter issued by the postal department, dt.18-10-2007

Ex.A.5 - Reply notice got issued by opposite party No.2, dt.2-11-2007

Ex.A.6 - Receipt issued by opposite party No.1, dt.27-11-2007

On behalf of the opposite parties No.1 and 2, the following documents have been filed and marked as Exs.B.1 to B.4.

Ex.B.1 - Job card of 1st free service, dt.23-7-2007

Ex.B.2 - Job card of 2nd free service, dt.27-11-2007

Ex.B.3 - Job card of 3rd free service, dt.9-1-2008

Ex.B.4 - Xerox copy of the warranty terms and conditions provided in the

owners’ manual.

Heard the learned counsel for complainant and the counsel for opposite parties pleaded to treat the contents of counter as written arguments. Perused the oral and documentary evidence, upon which the point that arose for consideration is,

1. Whether there is deficiency in service on the part of opposite party?

2. Whether the complainant is entitled to claim for damages?

3. To what relief?

Points No.1 and 2:

It is not in dispute that the complainant purchased Hero Honda motor cycle from opposite party No.1 by paying Rs.54,000/-. It is also not in dispute that the said vehicle was brought to the service centre of opposite party No.1 for three times, for free services. After completion of service, the opposite party No.1 is also made an endorsement on the free service job card. Especially on 27-11-2007, on Ex.B.2 opposite party No.1 made an endorsement that there is no smoke problem in the said vehicle, it was checked and no such problem was identified by them. The complainant alleges that the motor cycle releasing heavy smoke, immediately he brought it to the servicing centre of opposite party No.1.

It is the reply of opposite party No.1 that it referred free service to the said motor cycle for about three times and not indentified any smoke problem releasing from the motor cycle. If such a defect is observed in the said motor cycle the liability of opposite party is to repair or replace such parts which are considered to be the cost of malfunction on free of charge of both labour and material. In the instant case, such mal function has not been materially proved. It is a common practice that such defective motor cycle should be brought to the nearest authorized service for necessary inspection. In this case also the said motor cycle was brought to the authorized service of opposite party No.1 and three services have been taken up on free of cost and no such defect has been pointed out as in Ex.B.2.

It is a fact that the said motor cycle was brought to the service centre within warranty period and the complainant availed warranty period as recommended in the terms and conditions. The complainant demanded to replace the new motor cycle in place of small defect found in the motor cycle which is nothing but beyond imagination. For which the complainant is not entitled to ask for the replacement, though the defect as pointed by him has been attended to. Therefore, we do not find any merit in the case of complainant for the indulgence of the forum. Accordingly, the complaint is liable to be dismissed.

In the result, the complaint is dismissed. No costs.

**adv.sumit** · 10-12-2009, 12:34 PM

S. Durairaj

S/o. A. sivaniah,

No. 202, Thiruvalluvar Nagar

Ramanathapuram

Coimbatore – 641 045. --- Complainant

Vs.

1. Hero Honda Motors Ltd.,

rep. by its Managing Director,

34, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi – 110057.

2. Hero Honda Motors Limited,

rep. by its Authorised Person

Zonal / Regional Office (South Zone)

723-A, & B, Thirumalai Tower,

D.No. IV-C, Avinashi Road,

Coimbatore – 641 018.

3. M/s. Gem Motors,

rep. by its Proprietor,

Authorised Dealer of Hero Honda

1672, Trichy Road, Near Sungam,

Coimbatore – 641 045. --- Opposite Parties

This case coming on for final hearing before us on 24.8.09, 8.9.09 and 15.9.09 in the presence of Mr. M.S. Balajee Sridhar, Advocate for complainant and Mr. J. Anthony Sagayakumar, Advocate for the opposite parties and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to pay a sum of Rs.280/- along with 12% interest towards the parts purchased by the complainant, to pay a sum of Rs.75,000/- to the complainant towards compensation for mental agony, deficiency in service and to pay a sum of Rs.2,000/- towards cost of the proceedings.

The averments in the complaint are as follows:

1. The 1st opposite party is a public limited company incorporated under the Companies Act and having its head office at New Delhi. The 2nd opposite party is the Zonal / Regional Office (South Zone) of the 1st opposte party for the South Zone and is incharge of the day to day business activities of the 1st opposite party and the 3rd opposite party is one of the authorized dealer of the 1st and 2nd opposite parties functioning at Coimbatore. The complainant purchased a Hero Honda “Super Splendor” on 8.08.2007 (Engine No. 07FAEE15900 & Chassis No. 07FAEF15467) bearing registration No. TN 37 A V 8859 from the 3rd opposite party and got his vehicle serviced as per the instructions given in the service manual issued by the 1st opposite party. As per the opposite party company’s warranty is for a period of three years or 40,000 K.M. from the date of purchase, which ever is earlier.

2. The complainant approached the 3rd opposite party for 3rd free service of the vehicle on 5.01.08, the complainant made a complaint about non-functioning of the head light dimmer (switch) of the head light and in addition the complainant also informed him about non- functioning of speedometer and trip meter and the service person immediately under took to rectify all the defects noted at the time of 3rd service. At the time of delivery of the vehicle the 3rd opposite party charged the complainant fro rectification of speedometer and tripmeter which was within the warranty period and which the 3rd opposite party should not have charged the complainant. Similarly the other defect of non-functioning of the head light dimmer (switch) of the head light which was also informed and noted in the job card was not rectified at all.

3. The complainant again on 26.02.08 when the complainant entrusted his vehicle with the 3rd opposite party for the fourth free service, he once again informed the service person that the same complaint regarding non-functioning of the head light dimmer(switch) of the head light which was noted and was not rectified in the 3rd free service has to be checked up. Once again the service person came with the same excuse that parts were not available and hence requested the complainant to come later and get the said defect rectified.

Subsequently in 5th and 6th free service also the complainant informed the service person of the defect regarding non functioning of the head light dimmer(switch) of the head light which was persistent right from the time of 3rd service and the service person also very evasive and casually giving the same reply each and every time that the parts were not available and never made any attempts to obtain the partsand get the defective parts replaced inspite of the fact that those parts are available in the market.

4. On 5.08.2008 the complainant received a telephonic call from the 3rd opposite party asking the complainant to come to the company and have the persisting problem of non-functioning of the head light dimmer(switch) of the head light rectified. On receiving the call the complainant immediately and rushed to 3rd opposite party to have the problem rectified but to his shock and surprise, the service person informed the complainant that this problem can be rectified by changing the parts which they are willing to do provided the complainant has to bear the bill amount for the parts and labour which will be charged by the 3rd opposite party. This problem existed right from the time of third free service and hence the same was well within the warranty period and by no stretch of imagination this can be changed. The 1st and 2nd opposite parties have failed to guide and instruct about the service to the customer at the time of warranty and free services to the opposite party’s authorized dealer i.e., the 3rd opposite party.

5. On 8.08.2008 the complainant has issued the registered legal notice to the 1st to 3rd opposite parties through his counsel. The 3rd opposite party alone has given a reply admitting all the averments mentioned in the legal notice and regretting the inconvenience caused to the complainant. The 3rd opposite party further admits for replacing the defective parts under free cost as per Hero Honda warranty policy and requested the complainant to contact their General Manager Mr.S. Narayanan through his reply. The 1st and 2nd opposite parties never replied nor settled the matter. Even after receiving the reply notice from 3rd opposite party the complainant hopefully approached the 3rd opposite party to rectify said defect but they once again willfully delayed to do the same and unnecessarily made the complainant run around and wait for 2 hours in the showroom promising to rectify the same which is nothing but a 10 minutes work and the vehicle was unattended.

6. Therefore the complainant having lost all hopes and seeing the indifferent attitude of the 3rd opposite party again and again to seek remedy was left with no other option but to approach another Authorized Hero Honda Service Station i.e., M/s. Nanjappa enterprises, Coimbatore and in the process spend a sum of Rs.280/- in addition to the labour cost to replace defective parts. The complainant has been put to lot of mental agony in view of the indifferent attitude shown by the 3rd opposite party in carrying out the repairs and in the matter of attending to the service. The mental agony suffered by the complainant cannot be valued and the complainant is entitled to get the cost spent for the replacement of the parts besides a sum of Rs. 75,000/- towards mental agony. Hence the complaint.

The averments in the counter filed by the opposite parties is as follows:

7. The complaint is false, frivolous, vexatious and unsustainable either in law or on facts of the case. The complainant purchased Hero Honda Super Splendor Motor cycle manufactured by the 1st opposite party on 8.08.2007 from the 3rd opposite party’s sale cum showroom at Coimbatore and took delivery of the same after through check-up and with full satisfaction. It is true that all Hero Honda Super Splendor Motor Cycles are warranted for a period of 3 years or 40,000 Kms, from the date of purchase, whichever is earlier. The warranty shall not apply to rubber parts, plastic components. Bulbs and other hardware items. The Hero Honda also provide 6 free services to their new vehicle.

8. On 5.01.08 the complainant came to the 3rd opposite party for 3rd free service of his Hero Honda Super splendor Motorcycle. Apart from other regular free check-up the complainant informed the service person to fix engtine guard and to adjust the headlight. The same was done as per the request of the complainant. After verification of the vehicle’s performance the complainant took delivery of the vehicle with full satisfaction, signed the job card and paid the cost of oil, cost of engine guard and for the consumable items. The complainant made complaint regarding the non-functioning of head light dimmer (switch) to the service person and the same was noted in the job card but not rectified at all and the service person came with the excuse that the parts were not available are denied and the complainant is put to strict proof of the same.

9. The complainant came to the 3rd opposite party on 2602.08 for the 4th Service and informed the service person to change the motor cycle’s left side cowel sticker and the same was noted in the job-card. Since there was no stock of the cowel sticker it was informed to the complainant and it was noted in the job card also. On 11.6.08 the complainant informed the opposite parties service person to check-up the left hand side dim bright switch. The service person checked and rectified the defect and the complainant took delivery of the vehicle after verification with full satisfaction. On 30.07.2008 the complainant came to the opposite parties service station for quick service and informed the service person to change front side indicator assembly and the same was changed against the payment of Rs.132/-.

10. The averments in para No. 5 , 6 and 7 of the complaint are denied and the complainant is put to strict proof of the same. The opposite parties came to know the alleged problem of non-functioning of head light dim(switch) of the vehicle only from the legal notice dated 8.08.2008. Immediately the opposite parties sent reply letter dated 13.08.2008, informed the complainant’s counsel to inform the complainant to contact their General Manager Mr. Narayanan at any working day for replacing the defective parts as mentioned in the legal notice at free of cost as per Hero Honda’s warranty policy. Since the complainant did not come to them, a letter dated 3.12.08 was sent to the complainant himself, informing him if he is facing any problem in his bike, to come to the show room and correct the fault if any in the motor cycle. The said letter was received by the complainant on 5.02.08.

11. The complainant has suppressed all these facts and preferred the complaint before this Honourable Forum with ulterior motive and to get wrongful gain at the opposite parties cost. The opposite parties have not committed any deficiency of service as alleged by the complainant. These allegations are only notional and imaginary and the amount claimed towards are without any basis or records. It is well settled law that the burden is upon the person who alleges to prove it. There is no merit in the complaint and the complaint deserves to be dismissed.

12. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A8 was marked and Ex.B1 to B9 was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency

in service? If so what relief the complainant is entitled to?

ISSUE 1

13. The case of the Complainant is that he purchased a Hero Honda Super Splendor Motor Cycle, manufactured by the 1st opposite party from the 3rd opposite party during 3rd free service i.e., on 5.01.08 he informed the 3rd opposite party’s service person about the non-functioning of his motor cycle’s head light dimmer switch and non-functioning of speedo meter and trip meter defects, at the time of delivery of the vehicle the 3rd opposite party charged the complainant for rectification of speedometer and tripmeter which was within the warranty period and even during 4th, 5th and 6th free services the defect in the Head Light dimmer(switch) was not rectified. The complainant further allegation s on 5.08.2008 he was called over phone by the 3rd opposite party to come to their company and get the alleged defects rectified. When the complainant went, he was asked to pay for the replacement arts. When he questioned it he was humiliated in front of several people and that caused him mental agony and hardship.

14. The opposite parties admit the purchase of Hero Honda ‘Super Splendor’ motor cycle by the complainant from the 3rd opposite party who is the dealer for the 1st opposite party in Coimbatore. But deny all other allegations made in the complaint.

15. The main allegations are:-

1) the nonfunctioning of headlight dimmer switch even after service

2) the collection of charges for rectification of speedometer and trip meter

Regarding the first allegation ie.

Non functioning of the Headlight Dimmer during 3, 4, 5 and 6th service, the contention of the complainant is that on 5.8.2008 3rd opposite party’s service persons informed that they are willing to do that service on payment basis and refused to do that service without charge.

The complainant issued legal notice on 8.8.08 which is marked as Ex.A2, the 3rd opposite party also issued reply dt.13.8.08 which is marked as Ex.A6 in that letter he has stated as follows:

………

“Dear Sir,

“We have received your legal notice dt.9.8.08. We deeply regret the inconvenience caused by us for client Mr.Duraisamy S. S/o.Sivaniah, who is the customer of Hero Honda Super Splendor Reg.No.TN 37AV8859

We request you to kindly advise your client Mr.Duraisamy.S to come to our workshop and contact our General Manager, Mr.Narayan.S (9944027755) on any working days from 9.00 am to 6.00 pm for replacing the defective parts as mention in the letter under free of cost as per Hero Honda warranty policy”

16. The 3rd opposite party has not denied the other allegation namely willful delay, and the complainant was made to sit in the visitor’s room. Because of this complainant purchased that particular part spending Rs.280 for which Ex.A7 bill is marked. Ex.B8 letter dt.3.12.2008 was received by the complainant only after filing of this complaint.

17. We are of the view that the 3rd opposite party had totally ignored the basic requirements of service and the 1st and 2nd opposite parties had failed to give instruction to the authorized dealer namely the 3rd opposite party. The opposite parties has put the complainant into a lot of mental agony as well as monetary loss and the same amounts to deficiency in service.

Regarding the 2nd allegation ie.:

18. For the collection of charges the complainant has not filed any document. Hence this allegation is not proved.

19. Hence we are of the view that the opposite party has committed deficiency in service by not providing proper service.

20. In the result we direct the opposite parties to pay a sum of Rs.280/- towards the parts purchased by the complainant and to pay Rs.4000 towards deficiency in service as well as towards the mental agony to the complainant and cost of Rs.1000 within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

**adv.sumit** · 10-12-2009, 02:13 PM

Mr. Rakesh Prayagdin Verma, )

R/at : Flat No. 62, Raviraj Heights, )

Ananandnagar, Sinhagad Road, )

)

)…COMPLAINANT

: Versus :

1. The Manager, )

Hero Honda Motors Ltd., )

34, Community Centre, )

Vasant Vihar, New Delhi – 110057. )

)

2.The Authorised Signatory, )

Pratibha Motors (Authorised Dealer )

Of Hero Honda), “Nishigandha”, )

Plot No. 323, S.No. 49/1, Dange Chowk, )

Hinjewadi Road, Near Pandit Petrol Pump, )

Tathawade, Tal. Mulshi, )

Districe : Pune – 411 033. )… OPPOSITE PARTIES

//J UD G M E N T//

The facts giving rise to the complaint briefly stated are as follows :-

[2] It is the case of the Complainant that on 21/1/2009, he booked KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) from the Opposite Party No.2, who is an authorized dealer of the Opposite Party No.1 who is a manufacturer, for total value of Rs.81,013/- under three advance receipts No. 1739 dated 17/1/2009 for Rs. 2,000/-, Receipt No. 1774 dated 19/1/2009 of Rs.68,000/- and Receipt No. 1793 dated 20/1/2009 for Rs.11,013/-. It is also further contended that the vehicle was delivered to him on 23/01/2009. It is further submitted that entire prior signatures of the Complainant were taken upon all concerned requisite documents.

The Complainant further states that after coming to know about oil leakage from engine head studs due to threading slip, as per the directions/suggestions, the Complainant brought the vehicle and left at service centre of Pratibha Motors, Pune-33, which fact, according to the Complainant is admitted by the Opposite Party No.2 by way of their notice reply dtd.11/02/2009. It is further alleged by the Complainant that engine of two wheeler was opened and taken out for repair in repair centre for inspection and after seeing condition of machine, engine of vehicle, the Complainant denied to accept repaired two wheeler or else entire price of it Rs.81,000/- and Mr. Rathod was reluctant either to replace or refund money.

It is also further contention of the Complainant that when he again contacted Mr. Prakash Rathod, and enquired about new vehicle or refund of money, he told to meet Mr. Amit Kunte and when the Complainant contacted Mr.Amit Kunte, he repeatedly asserted to take back repaired vehicle instead of new one. It is further submitted that after informing about oil leakage from engine by the Complainant to Mr. Prakash Rathod, the Complainant took the vehicle to his mechanic, who is not an Authorised Service Provider for Hero Honda and the said Mechanic or the Complainant himself did some repairs to the engine to correct the alleged problem. According to the Complainant, the Opposite Party sent two letters dtd.30/1/2009 and 7/2/2009, to which, the Complainant replied by letter dtd.6/2/2009.

[3] The sum and substance of the case of the Complainant is that as the vehicle is defective, the Opposite Parties are jointly and severally responsible for manufacturing or mechanical defect to be removed before actual handing over delivery of the vehicle and therefore, according to the Complainant, this is a deficiency in service and has prayed for replacement of the new vehicle. It is also further prayed that the Opposite Parties be directed to refund cost of the vehicle alongwith interest @12% p.a. thereon alongwith the cost etc..

[4] Alongwith the complaint application, the Complainant has also filed affidavit, in of support of the complaint, list of documents, letters, notice, photographs, receipts etc..

[5] After issuance of the notice, the Opposite Parties No. 1 and 2 appeared and filed their common written version. It is the contention of the Opposite Parties that the complaint filed by the Complainant is not legal and bona fide. It is also further contented that the Complainant has not filed the complaint against Hero Honda Motors Ltd., therefore, the complaint deserves to be dismissed.

The Opposite Parties are denying the contention that the signatures of the Complainant were obtained cunningly. According to the Opposite Parties, every customer is a mechanic. It is alleged that the Complainant has not come before the Forum with clean hands. It is admitted by the Opposite Parties that the Complainant brought the vehicle to the service center of the Opposite Party No.2 on 24/1/2009 and that the Complainant demanded a new vehicle or in the alternative the entire amount paid by him and that the Opposite Parties refused to comply with the demand of the Complainant.

However the Opposite Parties specifically denied that the engine of the vehicle was opened and taken out. It is also denied that the Opposite Parties purposefully kept the Complainant waiting. It is also further contended that Mr. Prakash Rathod is an employee of the Opposite Party No.2 and that he was fully authorized to order mechanic/s employed by the Opposite Party to look into the problem complained of. It is also further submitted that the Opposite Parties refused to give new vehicle or to pay the price of the vehicle and the Opposite Parties insisted on the Complainant receiving the repaired vehicle. It is also specifically denied that the Opposite Parties are jointly and severally responsible for the alleged manufacturing and mechanical defects.

It is also further contended that the Complainant is put to strict proof as to how and on what basis he has calculated and arrived at the amount of sundry expenses and the compensation for negligence. It is further specifically denied that the Complainant has suffered any mental or physical agony etc.. The Opposite Parties further contended that the Opposite Party No.2 has paid the transport charges for the tempo in which the Complainant brought the vehicle to the service center of the Opposite Party No.2.

[6] It is further submitted that before the vehicle was delivered to the Complainant, the same was thoroughly checked and inspected and the checking and inspection was carried out as per the norms prescribed for the said purpose. It is also the contention of the Opposite Parties that the delivery of the vehicle was taken by the Complainant only after satisfying himself about the sound condition of the vehicle.

It is denied that there was leakage from the engine or from anywhere else till the Complainant took the vehicle out of the premises of the Opposite Party No.2. As per 14 (d) of the written statement, it is submitted by the Opposite Parties that the Complainant informed Mr. Rathod that the Complainant took the vehicle to his mechanic and that his mechanic did something to the engine to repair the alleged leakage and the alleged leakage was caused due to the wrongful acts of the Complainant himself or of an unauthorized person who was permitted by the Complainant to tamper with the vehicle, which is, according to the Opposite Parties, against the express instructions from the Opposite Parties.

It is further stated that the Complainant admitted before Mr. Rathod that the engine of the vehicle was opened by the mechanic of the Complainant. As per para 14 (j) of the written statement of the Opposite Parties, it is submitted that the vehicle sold to the Complainant is fully repaired, which repairs were not warranted due to any fault on the part of the Opposite Parties. It is also further contended that the Complainant may take the delivery of the same, alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2.

[7] It is the contention of the Opposite Parties that this Forum does not have jurisdiction to try and entertain this complaint. It is also further stated that the complaint is not property valued. The Opposite Parties have denied the prayer of the Complainant for the replacement of the vehicle simultaneously with the refund of an amount of Rs.81,013/- together with interest.

[8] Alongwith all the abovementioned contentions, it is lastly prayed by the Opposite Parties that the claim of the Complainant be rejected with costs. As also the Opposite Parties be awarded compensatory costs of Rs.20,000/- from the Complainant. The Opposite Parties have also annexed list of documents, dtd.20/5/2009 alongwith affidavit of Mr. Raghavendra Rao, the Authorised Officer of the Opposite Party No.1.

[9] In connection with the written statement of the Opposite Parties, the Complainant has filed rejoinder affidavit dtd.09/6/2009. The sum and substance of the rejoinder is nothing but the denial of the written statement in toto except some of the assertions.

[10] The Complainant and the Opposite Parties Nos. 1 and 2 have also filed their respective written notes of arguments. On perusal of the same it appears that almost all the contentions are the same as are already raised.

[11] On going through the documentary evidence in the proceedings, respective contentions etc., the following points arose for our determination :-

POINTS ANSWERS

1. Whether the Complainant is a “consumer”? … Yes

2. Whether this Forum has jurisdiction to try

and entertain the complaint ? … Yes

3. What order? … As per final order.

REASONS :-

[12] Admittedly, the Complainant has purchased the vehicle on 21/1/2009 vide Invoice No. 001084 dtd. 21/1/2009, produced at page (42) of the compilation, as also, Advance Receipts bearing Nos. 1793, 1774, 1739 are produced at page (43 & 44) of the compilation, from which it is evident that the Complainant has paid entire amount of the vehicle to the Opposite Party No.2. Therefore, as per the definition under the provision of Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, the Complainant is a “consumer” and hence we answer the point No. (1) accordingly.

[13] The Opposite Parties Nos. 1 and 2 have raised the contentions about the jurisdiction of the Forum. In this context, it is pertinent to note that the Complainant has purchased the vehicle from the Opposite Party No. 2, who is the dealer of the Opposite Party No.1, in the capacity of principal-agent, which comes under the territorial jurisdiction of this Forum, therefore, this Forum has jurisdiction to try and entertain the present complaint. Hence we answer the point No. 2 in the affirmative.

[14] The Opposite Party No.2 has produced the list of delivery of the vehicle supplied to the various Customers, in which, the name of the Complainant is written at Sr.No.1 and that it denotes that the disputed vehicle was delivered to the Complainant on 23/1/2009. Prima-facie it appears that the disputed vehicle is in the custody of the Opposite Party No.2 and on perusal of the letters dtd.30/1/2009 and 5/2/2009 written by the Opposite Party No.2 to the Complainant, it is evident that the Opposite Party No.2 is ready and willing to deliver the disputed vehicle to the Complainant.

As also notice of Jayant B. Ranade Advocate dtd.11/2/2009 on behalf of the Opposite Party No.2 shows the same thing. On the contrary, Legal Notice written by the Complainant through Advocate Madan Waman Joshi dtd. 30/1/2009 to the Opposite Party No.2, it appears that the Complainant was insisting for replacement of the vehicle or for refund of the price of Rs.81.013/-. It appears that both the parties are reluctant to their claims. In the present case, for the sake of arguments, if it is presumed that there is deficiency in service on the part of the Opposite Parties, then the subsequent point arise that whether the Complainant has produced any cogent or concrete evidence on the record.

Unfortunately, the Complainant has failed to establish his case of manufacturing defect. On the contrary, Job Card bearing No. 1145 is produced on the record, in which there is remark that “top corner nuts round tampered approx when oil …..” . there is word against word contentions. Mere assertions and denials cannot substantiate the testimony of averments. By and large, what is required is that while alleging any deficiency in service on the part of the Opposite Party, the burden to show the exact proof of manufacturing defect lies upon the Complainant. In the present case, the Opposite Party is ready and willing to deliver the repaired vehicle to the Complainant.

The record also reveals that since inception of the complaint, the Opposite Party has persuaded to handover the repaired vehicle to the Complainant. The Opposite Parties have also clearly stated in their written statement that the Complainant may take the delivery of the vehicle alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2. Therefore, according to us, the Opposite Party has fully co-operated with the Complainant, and also, the Complainant did not produce any expert report on the record. In the absence of cogent evidence on the record, the Complainant has failed to prove his case. Hence it stands dismissed.

In our opinion, under these circumstances, in the interest of justice, the following order would meet the ends of justice.

// ORDER //

The complaint stands dismissed.

The Complainant is directed to collect the physical possession of the repaired vehicle bearing KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) (Engine No. MC38EA9GA00133) (Chassis No. MBLMC38EB9GA00197) as it is from the Opposite Parties, alongwith the registration certificate and other documents within a period of (15) days from the date of receipt of this order.

In the peculiar circumstances, no order as to costs.

Certified copies of this order be supplied to both the parties

free of costs.

**adv.sumit** · 10-15-2009, 03:51 PM

Mr. Rakesh Prayagdin Verma, )

R/at : Flat No. 62, Raviraj Heights, )

Ananandnagar, Sinhagad Road, )

)

)…COMPLAINANT

: Versus :

1. The Manager, )

Hero Honda Motors Ltd., )

34, Community Centre, )

Vasant Vihar, New Delhi – 110057. )

)

2.The Authorised Signatory, )

Pratibha Motors (Authorised Dealer )

Of Hero Honda), “Nishigandha”, )

Plot No. 323, S.No. 49/1, Dange Chowk, )

Hinjewadi Road, Near Pandit Petrol Pump, )

Tathawade, Tal. Mulshi, )

Districe : Pune – 411 033. )… OPPOSITE PARTIES

//J UD G M E N T//

The facts giving rise to the complaint briefly stated are as follows :-

[2] It is the case of the Complainant that on 21/1/2009, he booked KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) from the Opposite Party No.2, who is an authorized dealer of the Opposite Party No.1 who is a manufacturer, for total value of Rs.81,013/- under three advance receipts No. 1739 dated 17/1/2009 for Rs. 2,000/-, Receipt No. 1774 dated 19/1/2009 of Rs.68,000/- and Receipt No. 1793 dated 20/1/2009 for Rs.11,013/-. It is also further contended that the vehicle was delivered to him on 23/01/2009. It is further submitted that entire prior signatures of the Complainant were taken upon all concerned requisite documents.

The Complainant further states that after coming to know about oil leakage from engine head studs due to threading slip, as per the directions/suggestions, the Complainant brought the vehicle and left at service centre of Pratibha Motors, Pune-33, which fact, according to the Complainant is admitted by the Opposite Party No.2 by way of their notice reply dtd.11/02/2009. It is further alleged by the Complainant that engine of two wheeler was opened and taken out for repair in repair centre for inspection and after seeing condition of machine, engine of vehicle, the Complainant denied to accept repaired two wheeler or else entire price of it Rs.81,000/- and Mr. Rathod was reluctant either to replace or refund money.

It is also further contention of the Complainant that when he again contacted Mr. Prakash Rathod, and enquired about new vehicle or refund of money, he told to meet Mr. Amit Kunte and when the Complainant contacted Mr.Amit Kunte, he repeatedly asserted to take back repaired vehicle instead of new one. It is further submitted that after informing about oil leakage from engine by the Complainant to Mr. Prakash Rathod, the Complainant took the vehicle to his mechanic, who is not an Authorised Service Provider for Hero Honda and the said Mechanic or the Complainant himself did some repairs to the engine to correct the alleged problem. According to the Complainant, the Opposite Party sent two letters dtd.30/1/2009 and 7/2/2009, to which, the Complainant replied by letter dtd.6/2/2009.

[3] The sum and substance of the case of the Complainant is that as the vehicle is defective, the Opposite Parties are jointly and severally responsible for manufacturing or mechanical defect to be removed before actual handing over delivery of the vehicle and therefore, according to the Complainant, this is a deficiency in service and has prayed for replacement of the new vehicle. It is also further prayed that the Opposite Parties be directed to refund cost of the vehicle alongwith interest @12% p.a. thereon alongwith the cost etc..

[4] Alongwith the complaint application, the Complainant has also filed affidavit, in of support of the complaint, list of documents, letters, notice, photographs, receipts etc..

[5] After issuance of the notice, the Opposite Parties No. 1 and 2 appeared and filed their common written version. It is the contention of the Opposite Parties that the complaint filed by the Complainant is not legal and bona fide. It is also further contented that the Complainant has not filed the complaint against Hero Honda Motors Ltd., therefore, the complaint deserves to be dismissed. The Opposite Parties are denying the contention that the signatures of the Complainant were obtained cunningly. According to the Opposite Parties, every customer is a mechanic. It is alleged that the Complainant has not come before the Forum with clean hands. It is admitted by the Opposite Parties that the Complainant brought the vehicle to the service center of the Opposite Party No.2 on 24/1/2009 and that the Complainant demanded a new vehicle or in the alternative the entire amount paid by him and that the Opposite Parties refused to comply with the demand of the Complainant.

However the Opposite Parties specifically denied that the engine of the vehicle was opened and taken out. It is also denied that the Opposite Parties purposefully kept the Complainant waiting. It is also further contended that Mr. Prakash Rathod is an employee of the Opposite Party No.2 and that he was fully authorized to order mechanic/s employed by the Opposite Party to look into the problem complained of. It is also further submitted that the Opposite Parties refused to give new vehicle or to pay the price of the vehicle and the Opposite Parties insisted on the Complainant receiving the repaired vehicle.

It is also specifically denied that the Opposite Parties are jointly and severally responsible for the alleged manufacturing and mechanical defects. It is also further contended that the Complainant is put to strict proof as to how and on what basis he has calculated and arrived at the amount of sundry expenses and the compensation for negligence. It is further specifically denied that the Complainant has suffered any mental or physical agony etc.. The Opposite Parties further contended that the Opposite Party No.2 has paid the transport charges for the tempo in which the Complainant brought the vehicle to the service center of the Opposite Party No.2.

[6] It is further submitted that before the vehicle was delivered to the Complainant, the same was thoroughly checked and inspected and the checking and inspection was carried out as per the norms prescribed for the said purpose. It is also the contention of the Opposite Parties that the delivery of the vehicle was taken by the Complainant only after satisfying himself about the sound condition of the vehicle.

It is denied that there was leakage from the engine or from anywhere else till the Complainant took the vehicle out of the premises of the Opposite Party No.2. As per 14 (d) of the written statement, it is submitted by the Opposite Parties that the Complainant informed Mr. Rathod that the Complainant took the vehicle to his mechanic and that his mechanic did something to the engine to repair the alleged leakage and the alleged leakage was caused due to the wrongful acts of the Complainant himself or of an unauthorized person who was permitted by the Complainant to tamper with the vehicle, which is, according to the Opposite Parties, against the express instructions from the Opposite Parties.

It is further stated that the Complainant admitted before Mr. Rathod that the engine of the vehicle was opened by the mechanic of the Complainant. As per para 14 (j) of the written statement of the Opposite Parties, it is submitted that the vehicle sold to the Complainant is fully repaired, which repairs were not warranted due to any fault on the part of the Opposite Parties. It is also further contended that the Complainant may take the delivery of the same, alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2.

[7] It is the contention of the Opposite Parties that this Forum does not have jurisdiction to try and entertain this complaint. It is also further stated that the complaint is not property valued. The Opposite Parties have denied the prayer of the Complainant for the replacement of the vehicle simultaneously with the refund of an amount of Rs.81,013/- together with interest.

[8] Alongwith all the abovementioned contentions, it is lastly prayed by the Opposite Parties that the claim of the Complainant be rejected with costs. As also the Opposite Parties be awarded compensatory costs of Rs.20,000/- from the Complainant. The Opposite Parties have also annexed list of documents, dtd.20/5/2009 alongwith affidavit of Mr. Raghavendra Rao, the Authorised Officer of the Opposite Party No.1.

[9] In connection with the written statement of the Opposite Parties, the Complainant has filed rejoinder affidavit dtd.09/6/2009. The sum and substance of the rejoinder is nothing but the denial of the written statement in toto except some of the assertions.

[10] The Complainant and the Opposite Parties Nos. 1 and 2 have also filed their respective written notes of arguments. On perusal of the same it appears that almost all the contentions are the same as are already raised.

[11] On going through the documentary evidence in the proceedings, respective contentions etc., the following points arose for our determination :-

POINTS ANSWERS

1. Whether the Complainant is a “consumer”? … Yes

2. Whether this Forum has jurisdiction to try

and entertain the complaint ? … Yes

3. What order? … As per final order.

REASONS :-

[12] Admittedly, the Complainant has purchased the vehicle on 21/1/2009 vide Invoice No. 001084 dtd. 21/1/2009, produced at page (42) of the compilation, as also, Advance Receipts bearing Nos. 1793, 1774, 1739 are produced at page (43 & 44) of the compilation, from which it is evident that the Complainant has paid entire amount of the vehicle to the Opposite Party No.2. Therefore, as per the definition under the provision of Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, the Complainant is a “consumer” and hence we answer the point No. (1) accordingly.

[13] The Opposite Parties Nos. 1 and 2 have raised the contentions about the jurisdiction of the Forum. In this context, it is pertinent to note that the Complainant has purchased the vehicle from the Opposite Party No. 2, who is the dealer of the Opposite Party No.1, in the capacity of principal-agent, which comes under the territorial jurisdiction of this Forum, therefore, this Forum has jurisdiction to try and entertain the present complaint. Hence we answer the point No. 2 in the affirmative.

[14] The Opposite Party No.2 has produced the list of delivery of the vehicle supplied to the various Customers, in which, the name of the Complainant is written at Sr.No.1 and that it denotes that the disputed vehicle was delivered to the Complainant on 23/1/2009. Prima-facie it appears that the disputed vehicle is in the custody of the Opposite Party No.2 and on perusal of the letters dtd.30/1/2009 and 5/2/2009 written by the Opposite Party No.2 to the Complainant, it is evident that the Opposite Party No.2 is ready and willing to deliver the disputed vehicle to the Complainant. As also notice of Jayant B. Ranade Advocate dtd.11/2/2009 on behalf of the Opposite Party No.2 shows the same thing. On the contrary, Legal Notice written by the Complainant through Advocate Madan Waman Joshi dtd. 30/1/2009 to the Opposite Party No.2, it appears that the Complainant was insisting for replacement of the vehicle or for refund of the price of Rs.81.013/-.

It appears that both the parties are reluctant to their claims. In the present case, for the sake of arguments, if it is presumed that there is deficiency in service on the part of the Opposite Parties, then the subsequent point arise that whether the Complainant has produced any cogent or concrete evidence on the record. Unfortunately, the Complainant has failed to establish his case of manufacturing defect. On the contrary, Job Card bearing No. 1145 is produced on the record, in which there is remark that “top corner nuts round tampered approx when oil …..” . there is word against word contentions.

Mere assertions and denials cannot substantiate the testimony of averments. By and large, what is required is that while alleging any deficiency in service on the part of the Opposite Party, the burden to show the exact proof of manufacturing defect lies upon the Complainant. In the present case, the Opposite Party is ready and willing to deliver the repaired vehicle to the Complainant. The record also reveals that since inception of the complaint, the Opposite Party has persuaded to handover the repaired vehicle to the Complainant.

The Opposite Parties have also clearly stated in their written statement that the Complainant may take the delivery of the vehicle alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2. Therefore, according to us, the Opposite Party has fully co-operated with the Complainant, and also, the Complainant did not produce any expert report on the record. In the absence of cogent evidence on the record, the Complainant has failed to prove his case. Hence it stands dismissed.

In our opinion, under these circumstances, in the interest of justice, the following order would meet the ends of justice.

// ORDER //

The complaint stands dismissed.

The Complainant is directed to collect the physical possession of the repaired vehicle bearing KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) (Engine No. MC38EA9GA00133) (Chassis No. MBLMC38EB9GA00197) as it is from the Opposite Parties, alongwith the registration certificate and other documents within a period of (15) days from the date of receipt of this order.

In the peculiar circumstances, no order as to costs.

**adv.sumit** · 10-15-2009, 04:31 PM

S. Durairaj

S/o. A. sivaniah,

No. 202, Thiruvalluvar Nagar

Ramanathapuram

Coimbatore – 641 045. --- Complainant

Vs.

1. Hero Honda Motors Ltd.,

rep. by its Managing Director,

34, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi – 110057.

2. Hero Honda Motors Limited,

rep. by its Authorised Person

Zonal / Regional Office (South Zone)

723-A, & B, Thirumalai Tower,

D.No. IV-C, Avinashi Road,

Coimbatore – 641 018.

3. M/s. Gem Motors,

rep. by its Proprietor,

Authorised Dealer of Hero Honda

1672, Trichy Road, Near Sungam,

Coimbatore – 641 045. --- Opposite Parties

This case coming on for final hearing before us on 24.8.09, 8.9.09 and 15.9.09 in the presence of Mr. M.S. Balajee Sridhar, Advocate for complainant and Mr. J. Anthony Sagayakumar, Advocate for the opposite parties and upon perusing the case records and hearing the arguments and the case having stood over to this day for consideration, this Forum passed the following:

ORDER

Complaint under Section 12 of the Consumer Protection Act, 1986 seeking direction against the opposite parties to pay a sum of Rs.280/- along with 12% interest towards the parts purchased by the complainant, to pay a sum of Rs.75,000/- to the complainant towards compensation for mental agony, deficiency in service and to pay a sum of Rs.2,000/- towards cost of the proceedings.

The averments in the complaint are as follows:

1. The 1st opposite party is a public limited company incorporated under the Companies Act and having its head office at New Delhi. The 2nd opposite party is the Zonal / Regional Office (South Zone) of the 1st opposte party for the South Zone and is incharge of the day to day business activities of the 1st opposite party and the 3rd opposite party is one of the authorized dealer of the 1st and 2nd opposite parties functioning at Coimbatore. The complainant purchased a Hero Honda “Super Splendor” on 8.08.2007 (Engine No. 07FAEE15900 & Chassis No. 07FAEF15467) bearing registration No. TN 37 A V 8859 from the 3rd opposite party and got his vehicle serviced as per the instructions given in the service manual issued by the 1st opposite party. As per the opposite party company’s warranty is for a period of three years or 40,000 K.M. from the date of purchase, which ever is earlier.

2. The complainant approached the 3rd opposite party for 3rd free service of the vehicle on 5.01.08, the complainant made a complaint about non-functioning of the head light dimmer (switch) of the head light and in addition the complainant also informed him about non- functioning of speedometer and trip meter and the service person immediately under took to rectify all the defects noted at the time of 3rd service. At the time of delivery of the vehicle the 3rd opposite party charged the complainant fro rectification of speedometer and tripmeter which was within the warranty period and which the 3rd opposite party should not have charged the complainant. Similarly the other defect of non-functioning of the head light dimmer (switch) of the head light which was also informed and noted in the job card was not rectified at all.

3. The complainant again on 26.02.08 when the complainant entrusted his vehicle with the 3rd opposite party for the fourth free service, he once again informed the service person that the same complaint regarding non-functioning of the head light dimmer(switch) of the head light which was noted and was not rectified in the 3rd free service has to be checked up. Once again the service person came with the same excuse that parts were not available and hence requested the complainant to come later and get the said defect rectified.

Subsequently in 5th and 6th free service also the complainant informed the service person of the defect regarding non functioning of the head light dimmer(switch) of the head light which was persistent right from the time of 3rd service and the service person also very evasive and casually giving the same reply each and every time that the parts were not available and never made any attempts to obtain the partsand get the defective parts replaced inspite of the fact that those parts are available in the market.

4. On 5.08.2008 the complainant received a telephonic call from the 3rd opposite party asking the complainant to come to the company and have the persisting problem of non-functioning of the head light dimmer(switch) of the head light rectified. On receiving the call the complainant immediately and rushed to 3rd opposite party to have the problem rectified but to his shock and surprise, the service person informed the complainant that this problem can be rectified by changing the parts which they are willing to do provided the complainant has to bear the bill amount for the parts and labour which will be charged by the 3rd opposite party.

This problem existed right from the time of third free service and hence the same was well within the warranty period and by no stretch of imagination this can be changed. The 1st and 2nd opposite parties have failed to guide and instruct about the service to the customer at the time of warranty and free services to the opposite party’s authorized dealer i.e., the 3rd opposite party.

5. On 8.08.2008 the complainant has issued the registered legal notice to the 1st to 3rd opposite parties through his counsel. The 3rd opposite party alone has given a reply admitting all the averments mentioned in the legal notice and regretting the inconvenience caused to the complainant. The 3rd opposite party further admits for replacing the defective parts under free cost as per Hero Honda warranty policy and requested the complainant to contact their General Manager Mr.S. Narayanan through his reply. The 1st and 2nd opposite parties never replied nor settled the matter. Even after receiving the reply notice from 3rd opposite party the complainant hopefully approached the 3rd opposite party to rectify said defect but they once again willfully delayed to do the same and unnecessarily made the complainant run around and wait for 2 hours in the showroom promising to rectify the same which is nothing but a 10 minutes work and the vehicle was unattended.

6. Therefore the complainant having lost all hopes and seeing the indifferent attitude of the 3rd opposite party again and again to seek remedy was left with no other option but to approach another Authorized Hero Honda Service Station i.e., M/s. Nanjappa enterprises, Coimbatore and in the process spend a sum of Rs.280/- in addition to the labour cost to replace defective parts. The complainant has been put to lot of mental agony in view of the indifferent attitude shown by the 3rd opposite party in carrying out the repairs and in the matter of attending to the service. The mental agony suffered by the complainant cannot be valued and the complainant is entitled to get the cost spent for the replacement of the parts besides a sum of Rs. 75,000/- towards mental agony. Hence the complaint.

The averments in the counter filed by the opposite parties is as follows:

7. The complaint is false, frivolous, vexatious and unsustainable either in law or on facts of the case. The complainant purchased Hero Honda Super Splendor Motor cycle manufactured by the 1st opposite party on 8.08.2007 from the 3rd opposite party’s sale cum showroom at Coimbatore and took delivery of the same after through check-up and with full satisfaction. It is true that all Hero Honda Super Splendor Motor Cycles are warranted for a period of 3 years or 40,000 Kms, from the date of purchase, whichever is earlier. The warranty shall not apply to rubber parts, plastic components. Bulbs and other hardware items. The Hero Honda also provide 6 free services to their new vehicle.

8. On 5.01.08 the complainant came to the 3rd opposite party for 3rd free service of his Hero Honda Super splendor Motorcycle. Apart from other regular free check-up the complainant informed the service person to fix engtine guard and to adjust the headlight. The same was done as per the request of the complainant. After verification of the vehicle’s performance the complainant took delivery of the vehicle with full satisfaction, signed the job card and paid the cost of oil, cost of engine guard and for the consumable items. The complainant made complaint regarding the non-functioning of head light dimmer (switch) to the service person and the same was noted in the job card but not rectified at all and the service person came with the excuse that the parts were not available are denied and the complainant is put to strict proof of the same.

9. The complainant came to the 3rd opposite party on 2602.08 for the 4th Service and informed the service person to change the motor cycle’s left side cowel sticker and the same was noted in the job-card. Since there was no stock of the cowel sticker it was informed to the complainant and it was noted in the job card also. On 11.6.08 the complainant informed the opposite parties service person to check-up the left hand side dim bright switch. The service person checked and rectified the defect and the complainant took delivery of the vehicle after verification with full satisfaction. On 30.07.2008 the complainant came to the opposite parties service station for quick service and informed the service person to change front side indicator assembly and the same was changed against the payment of Rs.132/-.

10. The averments in para No. 5 , 6 and 7 of the complaint are denied and the complainant is put to strict proof of the same. The opposite parties came to know the alleged problem of non-functioning of head light dim(switch) of the vehicle only from the legal notice dated 8.08.2008. Immediately the opposite parties sent reply letter dated 13.08.2008, informed the complainant’s counsel to inform the complainant to contact their General Manager Mr. Narayanan at any working day for replacing the defective parts as mentioned in the legal notice at free of cost as per Hero Honda’s warranty policy. Since the complainant did not come to them, a letter dated 3.12.08 was sent to the complainant himself, informing him if he is facing any problem in his bike, to come to the show room and correct the fault if any in the motor cycle. The said letter was received by the complainant on 5.02.08.

11. The complainant has suppressed all these facts and preferred the complaint before this Honourable Forum with ulterior motive and to get wrongful gain at the opposite parties cost. The opposite parties have not committed any deficiency of service as alleged by the complainant. These allegations are only notional and imaginary and the amount claimed towards are without any basis or records. It is well settled law that the burden is upon the person who alleges to prove it. There is no merit in the complaint and the complaint deserves to be dismissed.

12. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A8 was marked and Ex.B1 to B9 was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency

in service? If so what relief the complainant is entitled to?

ISSUE 1

13. The case of the Complainant is that he purchased a Hero Honda Super Splendor Motor Cycle, manufactured by the 1st opposite party from the 3rd opposite party during 3rd free service i.e., on 5.01.08 he informed the 3rd opposite party’s service person about the non-functioning of his motor cycle’s head light dimmer switch and non-functioning of speedo meter and trip meter defects, at the time of delivery of the vehicle the 3rd opposite party charged the complainant for rectification of speedometer and tripmeter which was within the warranty period and even during 4th, 5th and 6th free services the defect in the Head Light dimmer(switch) was not rectified. The complainant further allegation s on 5.08.2008 he was called over phone by the 3rd opposite party to come to their company and get the alleged defects rectified. When the complainant went, he was asked to pay for the replacement arts. When he questioned it he was humiliated in front of several people and that caused him mental agony and hardship.

14. The opposite parties admit the purchase of Hero Honda ‘Super Splendor’ motor cycle by the complainant from the 3rd opposite party who is the dealer for the 1st opposite party in Coimbatore. But deny all other allegations made in the complaint.

15. The main allegations are:-

1) the nonfunctioning of headlight dimmer switch even after service

2) the collection of charges for rectification of speedometer and trip meter

Regarding the first allegation ie.

Non functioning of the Headlight Dimmer during 3, 4, 5 and 6th service, the contention of the complainant is that on 5.8.2008 3rd opposite party’s service persons informed that they are willing to do that service on payment basis and refused to do that service without charge.

The complainant issued legal notice on 8.8.08 which is marked as Ex.A2, the 3rd opposite party also issued reply dt.13.8.08 which is marked as Ex.A6 in that letter he has stated as follows:

………

“Dear Sir,

“We have received your legal notice dt.9.8.08. We deeply regret the inconvenience caused by us for client Mr.Duraisamy S. S/o.Sivaniah, who is the customer of Hero Honda Super Splendor Reg.No.TN 37AV8859

We request you to kindly advise your client Mr.Duraisamy.S to come to our workshop and contact our General Manager, Mr.Narayan.S (9944027755) on any working days from 9.00 am to 6.00 pm for replacing the defective parts as mention in the letter under free of cost as per Hero Honda warranty policy”

16. The 3rd opposite party has not denied the other allegation namely willful delay, and the complainant was made to sit in the visitor’s room. Because of this complainant purchased that particular part spending Rs.280 for which Ex.A7 bill is marked. Ex.B8 letter dt.3.12.2008 was received by the complainant only after filing of this complaint.

17. We are of the view that the 3rd opposite party had totally ignored the basic requirements of service and the 1st and 2nd opposite parties had failed to give instruction to the authorized dealer namely the 3rd opposite party. The opposite parties has put the complainant into a lot of mental agony as well as monetary loss and the same amounts to deficiency in service.

Regarding the 2nd allegation ie.:

18. For the collection of charges the complainant has not filed any document. Hence this allegation is not proved.

19. Hence we are of the view that the opposite party has committed deficiency in service by not providing proper service.

20. In the result we direct the opposite parties to pay a sum of Rs.280/- towards the parts purchased by the complainant and to pay Rs.4000 towards deficiency in service as well as towards the mental agony to the complainant and cost of Rs.1000 within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

**adv.sumit** · 10-21-2009, 04:19 PM

Mr. Rakesh Prayagdin Verma, )

R/at : Flat No. 62, Raviraj Heights, )

Ananandnagar, Sinhagad Road, )

)

)…COMPLAINANT

: Versus :

1. The Manager, )

Hero Honda Motors Ltd., )

34, Community Centre, )

Vasant Vihar, New Delhi – 110057. )

)

2.The Authorised Signatory, )

Pratibha Motors (Authorised Dealer )

Of Hero Honda), “Nishigandha”, )

Plot No. 323, S.No. 49/1, Dange Chowk, )

Hinjewadi Road, Near Pandit Petrol Pump, )

Tathawade, Tal. Mulshi, )

Districe : Pune – 411 033. )… OPPOSITE PARTIES

//J UD G M E N T//

[2] It is the case of the Complainant that on 21/1/2009, he booked KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) from the Opposite Party No.2, who is an authorized dealer of the Opposite Party No.1 who is a manufacturer, for total value of Rs.81,013/- under three advance receipts No. 1739 dated 17/1/2009 for Rs. 2,000/-, Receipt No. 1774 dated 19/1/2009 of Rs.68,000/- and Receipt No. 1793 dated 20/1/2009 for Rs.11,013/-.

It is also further contended that the vehicle was delivered to him on 23/01/2009. It is further submitted that entire prior signatures of the Complainant were taken upon all concerned requisite documents. The Complainant further states that after coming to know about oil leakage from engine head studs due to threading slip, as per the directions/suggestions, the Complainant brought the vehicle and left at service centre of Pratibha Motors, Pune-33, which fact, according to the Complainant is admitted by the Opposite Party No.2 by way of their notice reply dtd.11/02/2009.

It is further alleged by the Complainant that engine of two wheeler was opened and taken out for repair in repair centre for inspection and after seeing condition of machine, engine of vehicle, the Complainant denied to accept repaired two wheeler or else entire price of it Rs.81,000/- and Mr. Rathod was reluctant either to replace or refund money. It is also further contention of the Complainant that when he again contacted Mr. Prakash Rathod, and enquired about new vehicle or refund of money, he told to meet Mr. Amit Kunte and when the Complainant contacted Mr.Amit Kunte, he repeatedly asserted to take back repaired vehicle instead of new one.

It is further submitted that after informing about oil leakage from engine by the Complainant to Mr. Prakash Rathod, the Complainant took the vehicle to his mechanic, who is not an Authorised Service Provider for Hero Honda and the said Mechanic or the Complainant himself did some repairs to the engine to correct the alleged problem. According to the Complainant, the Opposite Party sent two letters dtd.30/1/2009 and 7/2/2009, to which, the Complainant replied by letter dtd.6/2/2009.

[3] The sum and substance of the case of the Complainant is that as the vehicle is defective, the Opposite Parties are jointly and severally responsible for manufacturing or mechanical defect to be removed before actual handing over delivery of the vehicle and therefore, according to the Complainant, this is a deficiency in service and has prayed for replacement of the new vehicle. It is also further prayed that the Opposite Parties be directed to refund cost of the vehicle alongwith interest @12% p.a. thereon alongwith the cost etc..

[4] Alongwith the complaint application, the Complainant has also filed affidavit, in of support of the complaint, list of documents, letters, notice, photographs, receipts etc..

[5] After issuance of the notice, the Opposite Parties No. 1 and 2 appeared and filed their common written version. It is the contention of the Opposite Parties that the complaint filed by the Complainant is not legal and bona fide. It is also further contented that the Complainant has not filed the complaint against Hero Honda Motors Ltd., therefore, the complaint deserves to be dismissed.

The Opposite Parties are denying the contention that the signatures of the Complainant were obtained cunningly. According to the Opposite Parties, every customer is a mechanic. It is alleged that the Complainant has not come before the Forum with clean hands. It is admitted by the Opposite Parties that the Complainant brought the vehicle to the service center of the Opposite Party No.2 on 24/1/2009 and that the Complainant demanded a new vehicle or in the alternative the entire amount paid by him and that the Opposite Parties refused to comply with the demand of the Complainant.

However the Opposite Parties specifically denied that the engine of the vehicle was opened and taken out. It is also denied that the Opposite Parties purposefully kept the Complainant waiting. It is also further contended that Mr. Prakash Rathod is an employee of the Opposite Party No.2 and that he was fully authorized to order mechanic/s employed by the Opposite Party to look into the problem complained of. It is also further submitted that the Opposite Parties refused to give new vehicle or to pay the price of the vehicle and the Opposite Parties insisted on the Complainant receiving the repaired vehicle. It is also specifically denied that the Opposite Parties are jointly and severally responsible for the alleged manufacturing and mechanical defects.

It is also further contended that the Complainant is put to strict proof as to how and on what basis he has calculated and arrived at the amount of sundry expenses and the compensation for negligence. It is further specifically denied that the Complainant has suffered any mental or physical agony etc.. The Opposite Parties further contended that the Opposite Party No.2 has paid the transport charges for the tempo in which the Complainant brought the vehicle to the service center of the Opposite Party No.2.

[6] It is further submitted that before the vehicle was delivered to the Complainant, the same was thoroughly checked and inspected and the checking and inspection was carried out as per the norms prescribed for the said purpose. It is also the contention of the Opposite Parties that the delivery of the vehicle was taken by the Complainant only after satisfying himself about the sound condition of the vehicle. It is denied that there was leakage from the engine or from anywhere else till the Complainant took the vehicle out of the premises of the Opposite Party No.2.

As per 14 (d) of the written statement, it is submitted by the Opposite Parties that the Complainant informed Mr. Rathod that the Complainant took the vehicle to his mechanic and that his mechanic did something to the engine to repair the alleged leakage and the alleged leakage was caused due to the wrongful acts of the Complainant himself or of an unauthorized person who was permitted by the Complainant to tamper with the vehicle, which is, according to the Opposite Parties, against the express instructions from the Opposite Parties.

It is further stated that the Complainant admitted before Mr. Rathod that the engine of the vehicle was opened by the mechanic of the Complainant. As per para 14 (j) of the written statement of the Opposite Parties, it is submitted that the vehicle sold to the Complainant is fully repaired, which repairs were not warranted due to any fault on the part of the Opposite Parties. It is also further contended that the Complainant may take the delivery of the same, alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2.

[7] It is the contention of the Opposite Parties that this Forum does not have jurisdiction to try and entertain this complaint. It is also further stated that the complaint is not property valued. The Opposite Parties have denied the prayer of the Complainant for the replacement of the vehicle simultaneously with the refund of an amount of Rs.81,013/- together with interest.

[8] Alongwith all the abovementioned contentions, it is lastly prayed by the Opposite Parties that the claim of the Complainant be rejected with costs. As also the Opposite Parties be awarded compensatory costs of Rs.20,000/- from the Complainant. The Opposite Parties have also annexed list of documents, dtd.20/5/2009 alongwith affidavit of Mr. Raghavendra Rao, the Authorised Officer of the Opposite Party No.1.

[9] In connection with the written statement of the Opposite Parties, the Complainant has filed rejoinder affidavit dtd.09/6/2009. The sum and substance of the rejoinder is nothing but the denial of the written statement in toto except some of the assertions.

[10] The Complainant and the Opposite Parties Nos. 1 and 2 have also filed their respective written notes of arguments. On perusal of the same it appears that almost all the contentions are the same as are already raised.

[11] On going through the documentary evidence in the proceedings, respective contentions etc., the following points arose for our determination :-

POINTS ANSWERS

1. Whether the Complainant is a “consumer”? … Yes

2. Whether this Forum has jurisdiction to try

and entertain the complaint ? … Yes

3. What order? … As per final order.

REASONS :-

[12] Admittedly, the Complainant has purchased the vehicle on 21/1/2009 vide Invoice No. 001084 dtd. 21/1/2009, produced at page (42) of the compilation, as also, Advance Receipts bearing Nos. 1793, 1774, 1739 are produced at page (43 & 44) of the compilation, from which it is evident that the Complainant has paid entire amount of the vehicle to the Opposite Party No.2. Therefore, as per the definition under the provision of Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, the Complainant is a “consumer” and hence we answer the point No. (1) accordingly.

[13] The Opposite Parties Nos. 1 and 2 have raised the contentions about the jurisdiction of the Forum. In this context, it is pertinent to note that the Complainant has purchased the vehicle from the Opposite Party No. 2, who is the dealer of the Opposite Party No.1, in the capacity of principal-agent, which comes under the territorial jurisdiction of this Forum, therefore, this Forum has jurisdiction to try and entertain the present complaint. Hence we answer the point No. 2 in the affirmative.

[14] The Opposite Party No.2 has produced the list of delivery of the vehicle supplied to the various Customers, in which, the name of the Complainant is written at Sr.No.1 and that it denotes that the disputed vehicle was delivered to the Complainant on 23/1/2009. Prima-facie it appears that the disputed vehicle is in the custody of the Opposite Party No.2 and on perusal of the letters dtd.30/1/2009 and 5/2/2009 written by the Opposite Party No.2 to the Complainant, it is evident that the Opposite Party No.2 is ready and willing to deliver the disputed vehicle to the Complainant.

As also notice of Jayant B. Ranade Advocate dtd.11/2/2009 on behalf of the Opposite Party No.2 shows the same thing. On the contrary, Legal Notice written by the Complainant through Advocate Madan Waman Joshi dtd. 30/1/2009 to the Opposite Party No.2, it appears that the Complainant was insisting for replacement of the vehicle or for refund of the price of Rs.81.013/-.

It appears that both the parties are reluctant to their claims. In the present case, for the sake of arguments, if it is presumed that there is deficiency in service on the part of the Opposite Parties, then the subsequent point arise that whether the Complainant has produced any cogent or concrete evidence on the record. Unfortunately, the Complainant has failed to establish his case of manufacturing defect. On the contrary, Job Card bearing No. 1145 is produced on the record, in which there is remark that “top corner nuts round tampered approx when oil …..” . there is word against word contentions.

Mere assertions and denials cannot substantiate the testimony of averments. By and large, what is required is that while alleging any deficiency in service on the part of the Opposite Party, the burden to show the exact proof of manufacturing defect lies upon the Complainant. In the present case, the Opposite Party is ready and willing to deliver the repaired vehicle to the Complainant. The record also reveals that since inception of the complaint, the Opposite Party has persuaded to handover the repaired vehicle to the Complainant.

The Opposite Parties have also clearly stated in their written statement that the Complainant may take the delivery of the vehicle alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2. Therefore, according to us, the Opposite Party has fully co-operated with the Complainant, and also, the Complainant did not produce any expert report on the record. In the absence of cogent evidence on the record, the Complainant has failed to prove his case. Hence it stands dismissed.

**adv.sumit** · 10-23-2009, 10:15 AM

P. Jalal Bose,

S/O. Mr.Philip Bose,

G-4, Chandra Flats,

No.22, N.R.S. Road,

Korattur,

Chennai – 600 076. Complainant

Vs.

1. The Proprietor,

M/S. Janaki Motors,No-1,

New Avadi Road,

Near Nathamuni Theatre,

Villivakkam,

Chennai – 600 049.

2. The Area Manager,

M/S.Hero Honda Motors Ltd,

(South Zone)

No.53/1, Ist Street,

Gathedral Road,

Chennai – 600 086.

3. The Managing Director,

M/S. Hero Honda Motors,

No.34, Community Centre,

Besant Lok, Vasant Vihar,

New Delhi – 110 057 Opposite Parties

O R D E R

1. The case of the complainant is briefly as follows:

The complainant had purchased Hero Honda Motor Cycle from the Ist opposite party on 17.01.2008 for sale consideration of Rs.45,250/- and the vehicle was delivered to the complainant on 22.01.2008. From the date of taking delivery of the vehicle, due to inherent manufacturing defects, there were several problems reflected, namely

a. Gear was not properly working

b. Clutch was not properly working

c. Battery was so weak hence horn and indicators were not properly functioning.

d. There were several Scratches in the petrol tank

e. While running the vehicle, it vomits oil from the engine and silencer

f. While running the vehicle, it discharges smoke from the engine and silencer. And other defects performed.

The complainant handed over to the vehicle to the Ist opposite party for rectifying the defects on 29.01.2008 and the vehicle is still with the Ist opposite party. The original registration certificate has not been handed over to the complainant till date. The 2nd and 3rd opposite parties manufacturers of the vehicle. The Ist opposite party informed the complainant the manufacturing defects have rectified only by 2nd 3rd opposite parties. The vehicle covered with the warranty period. He issued lawyers notice to the opposite parties for replacing defective motor cycle with a new one.

The Ist opposite party has not replied. But the 2nd and 3rd opposite parties sent replies. Since the vehicle was defective from the date of purchase, the complainant has filed this complaint to deliver the Hero Honda Splender plus motor cycle or in the alternative to refund Rs. 45,250/- being cost of the vehicle with interest and to pay Rs.300/- per day for the expenses of his office going and Rs.4,50,000/- towards compensation and damage and costs.

2.The opposite parties filed version and contended inter alia that the complainant had purchased a Hero Honda Splender Plus Motor Cycle and the delivery was taken on 22.01.2008. At the time of taking delivery service personnel of the Ist opposite party had explained the function and instrumental operation of the vehicle and necessity of periodical maintenance of the vehicle. The complainant had approached the Ist opposite party on 29.01.2008 with the vehicle covered 204 Kms made sudden complaints. The service executive of the opposite party had examined the vehicle and repairs were carried out.

The defects were minor and they rectified and RC book was received on 14.02.2008 and the complainant was informed to collect the same. The opposite parties did not sell defective vehicle to the complainant. There is no deficiency in service on the part of the opposite parties.

3.Proof Affidavits have been filed by the complainant and the opposite parties Exs.A1 to Exs.A10 were marked on the side of the complainant. Exs.B1 to Exs.B8 were marked on the side of the opposite parties

4.The points that arise for considerations are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. To what relief the complainant is entitled to?

5.Point No:1

Admittedly the complainant had purchased a Hero Honda Splender Plus Motor Cycle on 18.01.2008 for Rs. 45, 250/- and delivery was taken on 21.1.2008. According to the complainant, within 2 days from date of purchase of the vehicle he noticed several defects which are manufacturing defects. Therefore he want to replace the vehicle with a new one or to pay the cost of the vehicle. Since the opposite parties have not replaced the old vehicle with a new one. This act amounts to deficiency in service. Ex.A1 is the receipt for payment of the cost of the vehicle. Ex.A2 is the delivery receipt. Ex.A5 is the lawyers notice. Ex.B2 undertaking given by the complainant to the Ist opposite party. Ex.B3 is the copy of the registration certificate. Ex.B4 is the job card dated 29.1.2008. Apart from Ex.B4 there was no record to show that the vehicle was given for repairs.

The opposite parties would submit that the complainant had approached the opposite parties on 29.1.2008 for general service after the vehicle had covered 204 Kms. and after examining the vehicle it was found that the gear shifting arm lever bolt inside the clutch cover become loose and the same was tightened and the clutch gasket was replaced with a new one. The battery was dry and was filled with acide and charged the battery as per the requirements, of the complainant. The defects pointed out by the complainant were minor and no manufacturing defect, was noticed Therefore there is no deficiency in service on the part of the opposite parties.

The opposite parties would also submit that the Registration Certificate was received by the Ist opposite party on 14.02.2008 and the complainant was also informed to receive the same. Already Ex.B3 the copy of form of Registration certificate has been marked. The complainant has not filed any expert opinion to show that the vehicle purchase by him had inherent ,manufacturing defects mearly because there were some minor defects it cannot be said that there were manufacturing defects in the vehicle. The complainant has not proved any deficiency in service on the part of the opposite parties.

**adv.sumit** · 10-23-2009, 10:25 AM

S. Durairaj

S/o. A. sivaniah,

No. 202, Thiruvalluvar Nagar

Ramanathapuram

Coimbatore – 641 045. --- Complainant

Vs.

1. Hero Honda Motors Ltd.,

rep. by its Managing Director,

34, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi – 110057.

2. Hero Honda Motors Limited,

rep. by its Authorised Person

Zonal / Regional Office (South Zone)

723-A, & B, Thirumalai Tower,

D.No. IV-C, Avinashi Road,

Coimbatore – 641 018.

3. M/s. Gem Motors,

rep. by its Proprietor,

Authorised Dealer of Hero Honda

1672, Trichy Road, Near Sungam,

Coimbatore – 641 045. --- Opposite Parties

ORDER

1. The 1st opposite party is a public limited company incorporated under the Companies Act and having its head office at New Delhi. The 2nd opposite party is the Zonal / Regional Office (South Zone) of the 1st opposte party for the South Zone and is incharge of the day to day business activities of the 1st opposite party and the 3rd opposite party is one of the authorized dealer of the 1st and 2nd opposite parties functioning at Coimbatore.

The complainant purchased a Hero Honda “Super Splendor” on 8.08.2007 (Engine No. 07FAEE15900 & Chassis No. 07FAEF15467) bearing registration No. TN 37 A V 8859 from the 3rd opposite party and got his vehicle serviced as per the instructions given in the service manual issued by the 1st opposite party. As per the opposite party company’s warranty is for a period of three years or 40,000 K.M. from the date of purchase, which ever is earlier.

2. The complainant approached the 3rd opposite party for 3rd free service of the vehicle on 5.01.08, the complainant made a complaint about non-functioning of the head light dimmer (switch) of the head light and in addition the complainant also informed him about non- functioning of speedometer and trip meter and the service person immediately under took to rectify all the defects noted at the time of 3rd service.

At the time of delivery of the vehicle the 3rd opposite party charged the complainant fro rectification of speedometer and tripmeter which was within the warranty period and which the 3rd opposite party should not have charged the complainant. Similarly the other defect of non-functioning of the head light dimmer (switch) of the head light which was also informed and noted in the job card was not rectified at all.

3. The complainant again on 26.02.08 when the complainant entrusted his vehicle with the 3rd opposite party for the fourth free service, he once again informed the service person that the same complaint regarding non-functioning of the head light dimmer(switch) of the head light which was noted and was not rectified in the 3rd free service has to be checked up. Once again the service person came with the same excuse that parts were not available and hence requested the complainant to come later and get the said defect rectified.

Subsequently in 5th and 6th free service also the complainant informed the service person of the defect regarding non functioning of the head light dimmer(switch) of the head light which was persistent right from the time of 3rd service and the service person also very evasive and casually giving the same reply each and every time that the parts were not available and never made any attempts to obtain the partsand get the defective parts replaced inspite of the fact that those parts are available in the market.

4. On 5.08.2008 the complainant received a telephonic call from the 3rd opposite party asking the complainant to come to the company and have the persisting problem of non-functioning of the head light dimmer(switch) of the head light rectified. On receiving the call the complainant immediately and rushed to 3rd opposite party to have the problem rectified but to his shock and surprise, the service person informed the complainant that this problem can be rectified by changing the parts which they are willing to do provided the complainant has to bear the bill amount for the parts and labour which will be charged by the 3rd opposite party.

This problem existed right from the time of third free service and hence the same was well within the warranty period and by no stretch of imagination this can be changed. The 1st and 2nd opposite parties have failed to guide and instruct about the service to the customer at the time of warranty and free services to the opposite party’s authorized dealer i.e., the 3rd opposite party.

5. On 8.08.2008 the complainant has issued the registered legal notice to the 1st to 3rd opposite parties through his counsel. The 3rd opposite party alone has given a reply admitting all the averments mentioned in the legal notice and regretting the inconvenience caused to the complainant. The 3rd opposite party further admits for replacing the defective parts under free cost as per Hero Honda warranty policy and requested the complainant to contact their General Manager Mr.S. Narayanan through his reply. The 1st and 2nd opposite parties never replied nor settled the matter.

Even after receiving the reply notice from 3rd opposite party the complainant hopefully approached the 3rd opposite party to rectify said defect but they once again willfully delayed to do the same and unnecessarily made the complainant run around and wait for 2 hours in the showroom promising to rectify the same which is nothing but a 10 minutes work and the vehicle was unattended.

6. Therefore the complainant having lost all hopes and seeing the indifferent attitude of the 3rd opposite party again and again to seek remedy was left with no other option but to approach another Authorized Hero Honda Service Station i.e., M/s. Nanjappa enterprises, Coimbatore and in the process spend a sum of Rs.280/- in addition to the labour cost to replace defective parts. The complainant has been put to lot of mental agony in view of the indifferent attitude shown by the 3rd opposite party in carrying out the repairs and in the matter of attending to the service.

The mental agony suffered by the complainant cannot be valued and the complainant is entitled to get the cost spent for the replacement of the parts besides a sum of Rs. 75,000/- towards mental agony. Hence the complaint.

The averments in the counter filed by the opposite parties is as follows:

7. The complaint is false, frivolous, vexatious and unsustainable either in law or on facts of the case. The complainant purchased Hero Honda Super Splendor Motor cycle manufactured by the 1st opposite party on 8.08.2007 from the 3rd opposite party’s sale cum showroom at Coimbatore and took delivery of the same after through check-up and with full satisfaction. It is true that all Hero Honda Super Splendor Motor Cycles are warranted for a period of 3 years or 40,000 Kms, from the date of purchase, whichever is earlier. The warranty shall not apply to rubber parts, plastic components. Bulbs and other hardware items. The Hero Honda also provide 6 free services to their new vehicle.

8. On 5.01.08 the complainant came to the 3rd opposite party for 3rd free service of his Hero Honda Super splendor Motorcycle. Apart from other regular free check-up the complainant informed the service person to fix engtine guard and to adjust the headlight. The same was done as per the request of the complainant. After verification of the vehicle’s performance the complainant took delivery of the vehicle with full satisfaction, signed the job card and paid the cost of oil, cost of engine guard and for the consumable items.

The complainant made complaint regarding the non-functioning of head light dimmer (switch) to the service person and the same was noted in the job card but not rectified at all and the service person came with the excuse that the parts were not available are denied and the complainant is put to strict proof of the same.

9. The complainant came to the 3rd opposite party on 2602.08 for the 4th Service and informed the service person to change the motor cycle’s left side cowel sticker and the same was noted in the job-card. Since there was no stock of the cowel sticker it was informed to the complainant and it was noted in the job card also. On 11.6.08 the complainant informed the opposite parties service person to check-up the left hand side dim bright switch.

The service person checked and rectified the defect and the complainant took delivery of the vehicle after verification with full satisfaction. On 30.07.2008 the complainant came to the opposite parties service station for quick service and informed the service person to change front side indicator assembly and the same was changed against the payment of Rs.132/-.

10. The averments in para No. 5 , 6 and 7 of the complaint are denied and the complainant is put to strict proof of the same. The opposite parties came to know the alleged problem of non-functioning of head light dim(switch) of the vehicle only from the legal notice dated 8.08.2008. Immediately the opposite parties sent reply letter dated 13.08.2008, informed the complainant’s counsel to inform the complainant to contact their General Manager Mr. Narayanan at any working day for replacing the defective parts as mentioned in the legal notice at free of cost as per Hero Honda’s warranty policy.

Since the complainant did not come to them, a letter dated 3.12.08 was sent to the complainant himself, informing him if he is facing any problem in his bike, to come to the show room and correct the fault if any in the motor cycle. The said letter was received by the complainant on 5.02.08.

11. The complainant has suppressed all these facts and preferred the complaint before this Honourable Forum with ulterior motive and to get wrongful gain at the opposite parties cost. The opposite parties have not committed any deficiency of service as alleged by the complainant. These allegations are only notional and imaginary and the amount claimed towards are without any basis or records. It is well settled law that the burden is upon the person who alleges to prove it. There is no merit in the complaint and the complaint deserves to be dismissed.

12. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A8 was marked and Ex.B1 to B9 was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency

in service? If so what relief the complainant is entitled to?

ISSUE 1

13. The case of the Complainant is that he purchased a Hero Honda Super Splendor Motor Cycle, manufactured by the 1st opposite party from the 3rd opposite party during 3rd free service i.e., on 5.01.08 he informed the 3rd opposite party’s service person about the non-functioning of his motor cycle’s head light dimmer switch and non-functioning of speedo meter and trip meter defects, at the time of delivery of the vehicle the 3rd opposite party charged the complainant for rectification of speedometer and tripmeter which was within the warranty period and even during 4th, 5th and 6th free services the defect in the Head Light dimmer(switch) was not rectified.

The complainant further allegation s on 5.08.2008 he was called over phone by the 3rd opposite party to come to their company and get the alleged defects rectified. When the complainant went, he was asked to pay for the replacement arts. When he questioned it he was humiliated in front of several people and that caused him mental agony and hardship.

14. The opposite parties admit the purchase of Hero Honda ‘Super Splendor’ motor cycle by the complainant from the 3rd opposite party who is the dealer for the 1st opposite party in Coimbatore. But deny all other allegations made in the complaint.

15. The main allegations are:-

1) the nonfunctioning of headlight dimmer switch even after service

2) the collection of charges for rectification of speedometer and trip meter

Regarding the first allegation ie.

Non functioning of the Headlight Dimmer during 3, 4, 5 and 6th service, the contention of the complainant is that on 5.8.2008 3rd opposite party’s service persons informed that they are willing to do that service on payment basis and refused to do that service without charge.

The complainant issued legal notice on 8.8.08 which is marked as Ex.A2, the 3rd opposite party also issued reply dt.13.8.08 which is marked as Ex.A6 in that letter he has stated as follows:

………

“Dear Sir,

“We have received your legal notice dt.9.8.08. We deeply regret the inconvenience caused by us for client Mr.Duraisamy S. S/o.Sivaniah, who is the customer of Hero Honda Super Splendor Reg.No.TN 37AV8859

We request you to kindly advise your client Mr.Duraisamy.S to come to our workshop and contact our General Manager, Mr.Narayan.S (9944027755) on any working days from 9.00 am to 6.00 pm for replacing the defective parts as mention in the letter under free of cost as per Hero Honda warranty policy”

16. The 3rd opposite party has not denied the other allegation namely willful delay, and the complainant was made to sit in the visitor’s room. Because of this complainant purchased that particular part spending Rs.280 for which Ex.A7 bill is marked. Ex.B8 letter dt.3.12.2008 was received by the complainant only after filing of this complaint.

17. We are of the view that the 3rd opposite party had totally ignored the basic requirements of service and the 1st and 2nd opposite parties had failed to give instruction to the authorized dealer namely the 3rd opposite party. The opposite parties has put the complainant into a lot of mental agony as well as monetary loss and the same amounts to deficiency in service.

**adv.sumit** · 10-23-2009, 11:24 AM

P. Jalal Bose,

S/O. Mr.Philip Bose,

G-4, Chandra Flats,

No.22, N.R.S. Road,

Korattur,

Chennai – 600 076. Complainant

Vs.

1. The Proprietor,

M/S. Janaki Motors,No-1,

New Avadi Road,

Near Nathamuni Theatre,

Villivakkam,

Chennai – 600 049.

2. The Area Manager,

M/S.Hero Honda Motors Ltd,

(South Zone)

No.53/1, Ist Street,

Gathedral Road,

Chennai – 600 086.

3. The Managing Director,

M/S. Hero Honda Motors,

No.34, Community Centre,

Besant Lok, Vasant Vihar,

New Delhi – 110 057 Opposite Parties

O R D E R

1. The case of the complainant is briefly as follows:

The complainant had purchased Hero Honda Motor Cycle from the Ist opposite party on 17.01.2008 for sale consideration of Rs.45,250/- and the vehicle was delivered to the complainant on 22.01.2008. From the date of taking delivery of the vehicle, due to inherent manufacturing defects, there were several problems reflected, namely

a. Gear was not properly working

b. Clutch was not properly working

c. Battery was so weak hence horn and indicators were not properly functioning.

d. There were several Scratches in the petrol tank

e. While running the vehicle, it vomits oil from the engine and silencer

f. While running the vehicle, it discharges smoke from the engine and silencer. And other defects performed.

The complainant handed over to the vehicle to the Ist opposite party for rectifying the defects on 29.01.2008 and the vehicle is still with the Ist opposite party. The original registration certificate has not been handed over to the complainant till date. The 2nd and 3rd opposite parties manufacturers of the vehicle. The Ist opposite party informed the complainant the manufacturing defects have rectified only by 2nd 3rd opposite parties. The vehicle covered with the warranty period. He issued lawyers notice to the opposite parties for replacing defective motor cycle with a new one.

The Ist opposite party has not replied. But the 2nd and 3rd opposite parties sent replies. Since the vehicle was defective from the date of purchase, the complainant has filed this complaint to deliver the Hero Honda Splender plus motor cycle or in the alternative to refund Rs. 45,250/- being cost of the vehicle with interest and to pay Rs.300/- per day for the expenses of his office going and Rs.4,50,000/- towards compensation and damage and costs.

2.The opposite parties filed version and contended inter alia that the complainant had purchased a Hero Honda Splender Plus Motor Cycle and the delivery was taken on 22.01.2008. At the time of taking delivery service personnel of the Ist opposite party had explained the function and instrumental operation of the vehicle and necessity of periodical maintenance of the vehicle.

The complainant had approached the Ist opposite party on 29.01.2008 with the vehicle covered 204 Kms made sudden complaints. The service executive of the opposite party had examined the vehicle and repairs were carried out. The defects were minor and they rectified and RC book was received on 14.02.2008 and the complainant was informed to collect the same. The opposite parties did not sell defective vehicle to the complainant. There is no deficiency in service on the part of the opposite parties.

3.Proof Affidavits have been filed by the complainant and the opposite parties Exs.A1 to Exs.A10 were marked on the side of the complainant. Exs.B1 to Exs.B8 were marked on the side of the opposite parties

4.The points that arise for considerations are:

1. Whether there is any deficiency in service on the part of the opposite parties?

2. To what relief the complainant is entitled to?

5.Point No:1

Admittedly the complainant had purchased a Hero Honda Splender Plus Motor Cycle on 18.01.2008 for Rs. 45, 250/- and delivery was taken on 21.1.2008. According to the complainant, within 2 days from date of purchase of the vehicle he noticed several defects which are manufacturing defects. Therefore he want to replace the vehicle with a new one or to pay the cost of the vehicle. Since the opposite parties have not replaced the old vehicle with a new one.

This act amounts to deficiency in service. Ex.A1 is the receipt for payment of the cost of the vehicle. Ex.A2 is the delivery receipt. Ex.A5 is the lawyers notice. Ex.B2 undertaking given by the complainant to the Ist opposite party. Ex.B3 is the copy of the registration certificate. Ex.B4 is the job card dated 29.1.2008. Apart from Ex.B4 there was no record to show that the vehicle was given for repairs.

The opposite parties would submit that the complainant had approached the opposite parties on 29.1.2008 for general service after the vehicle had covered 204 Kms. and after examining the vehicle it was found that the gear shifting arm lever bolt inside the clutch cover become loose and the same was tightened and the clutch gasket was replaced with a new one. The battery was dry and was filled with acide and charged the battery as per the requirements, of the complainant. The defects pointed out by the complainant were minor and no manufacturing defect, was noticed Therefore there is no deficiency in service on the part of the opposite parties.

The opposite parties would also submit that the Registration Certificate was received by the Ist opposite party on 14.02.2008 and the complainant was also informed to receive the same. Already Ex.B3 the copy of form of Registration certificate has been marked. The complainant has not filed any expert opinion to show that the vehicle purchase by him had inherent ,manufacturing defects mearly because there were some minor defects it cannot be said that there were manufacturing defects in the vehicle. The complainant has not proved any deficiency in service on the part of the opposite parties.

**adv.sumit** · 10-23-2009, 11:28 AM

S. Durairaj

S/o. A. sivaniah,

No. 202, Thiruvalluvar Nagar

Ramanathapuram

Coimbatore – 641 045. --- Complainant

Vs.

1. Hero Honda Motors Ltd.,

rep. by its Managing Director,

34, Community Centre,

Basant Lok, Vasant Vihar,

New Delhi – 110057.

2. Hero Honda Motors Limited,

rep. by its Authorised Person

Zonal / Regional Office (South Zone)

723-A, & B, Thirumalai Tower,

D.No. IV-C, Avinashi Road,

Coimbatore – 641 018.

3. M/s. Gem Motors,

rep. by its Proprietor,

Authorised Dealer of Hero Honda

1672, Trichy Road, Near Sungam,

Coimbatore – 641 045. --- Opposite Parties

ORDER

1. The 1st opposite party is a public limited company incorporated under the Companies Act and having its head office at New Delhi. The 2nd opposite party is the Zonal / Regional Office (South Zone) of the 1st opposte party for the South Zone and is incharge of the day to day business activities of the 1st opposite party and the 3rd opposite party is one of the authorized dealer of the 1st and 2nd opposite parties functioning at Coimbatore.

The complainant purchased a Hero Honda “Super Splendor” on 8.08.2007 (Engine No. 07FAEE15900 & Chassis No. 07FAEF15467) bearing registration No. TN 37 A V 8859 from the 3rd opposite party and got his vehicle serviced as per the instructions given in the service manual issued by the 1st opposite party. As per the opposite party company’s warranty is for a period of three years or 40,000 K.M. from the date of purchase, which ever is earlier.

2. The complainant approached the 3rd opposite party for 3rd free service of the vehicle on 5.01.08, the complainant made a complaint about non-functioning of the head light dimmer (switch) of the head light and in addition the complainant also informed him about non- functioning of speedometer and trip meter and the service person immediately under took to rectify all the defects noted at the time of 3rd service.

At the time of delivery of the vehicle the 3rd opposite party charged the complainant fro rectification of speedometer and tripmeter which was within the warranty period and which the 3rd opposite party should not have charged the complainant. Similarly the other defect of non-functioning of the head light dimmer (switch) of the head light which was also informed and noted in the job card was not rectified at all.

3. The complainant again on 26.02.08 when the complainant entrusted his vehicle with the 3rd opposite party for the fourth free service, he once again informed the service person that the same complaint regarding non-functioning of the head light dimmer(switch) of the head light which was noted and was not rectified in the 3rd free service has to be checked up. Once again the service person came with the same excuse that parts were not available and hence requested the complainant to come later and get the said defect rectified.

Subsequently in 5th and 6th free service also the complainant informed the service person of the defect regarding non functioning of the head light dimmer(switch) of the head light which was persistent right from the time of 3rd service and the service person also very evasive and casually giving the same reply each and every time that the parts were not available and never made any attempts to obtain the partsand get the defective parts replaced inspite of the fact that those parts are available in the market.

4. On 5.08.2008 the complainant received a telephonic call from the 3rd opposite party asking the complainant to come to the company and have the persisting problem of non-functioning of the head light dimmer(switch) of the head light rectified. On receiving the call the complainant immediately and rushed to 3rd opposite party to have the problem rectified but to his shock and surprise, the service person informed the complainant that this problem can be rectified by changing the parts which they are willing to do provided the complainant has to bear the bill amount for the parts and labour which will be charged by the 3rd opposite party.

This problem existed right from the time of third free service and hence the same was well within the warranty period and by no stretch of imagination this can be changed. The 1st and 2nd opposite parties have failed to guide and instruct about the service to the customer at the time of warranty and free services to the opposite party’s authorized dealer i.e., the 3rd opposite party.

5. On 8.08.2008 the complainant has issued the registered legal notice to the 1st to 3rd opposite parties through his counsel. The 3rd opposite party alone has given a reply admitting all the averments mentioned in the legal notice and regretting the inconvenience caused to the complainant. The 3rd opposite party further admits for replacing the defective parts under free cost as per Hero Honda warranty policy and requested the complainant to contact their General Manager Mr.S. Narayanan through his reply.

The 1st and 2nd opposite parties never replied nor settled the matter. Even after receiving the reply notice from 3rd opposite party the complainant hopefully approached the 3rd opposite party to rectify said defect but they once again willfully delayed to do the same and unnecessarily made the complainant run around and wait for 2 hours in the showroom promising to rectify the same which is nothing but a 10 minutes work and the vehicle was unattended.

6. Therefore the complainant having lost all hopes and seeing the indifferent attitude of the 3rd opposite party again and again to seek remedy was left with no other option but to approach another Authorized Hero Honda Service Station i.e., M/s. Nanjappa enterprises, Coimbatore and in the process spend a sum of Rs.280/- in addition to the labour cost to replace defective parts.

The complainant has been put to lot of mental agony in view of the indifferent attitude shown by the 3rd opposite party in carrying out the repairs and in the matter of attending to the service. The mental agony suffered by the complainant cannot be valued and the complainant is entitled to get the cost spent for the replacement of the parts besides a sum of Rs. 75,000/- towards mental agony. Hence the complaint.

The averments in the counter filed by the opposite parties is as follows:

7. The complaint is false, frivolous, vexatious and unsustainable either in law or on facts of the case. The complainant purchased Hero Honda Super Splendor Motor cycle manufactured by the 1st opposite party on 8.08.2007 from the 3rd opposite party’s sale cum showroom at Coimbatore and took delivery of the same after through check-up and with full satisfaction.

It is true that all Hero Honda Super Splendor Motor Cycles are warranted for a period of 3 years or 40,000 Kms, from the date of purchase, whichever is earlier. The warranty shall not apply to rubber parts, plastic components. Bulbs and other hardware items. The Hero Honda also provide 6 free services to their new vehicle.

8. On 5.01.08 the complainant came to the 3rd opposite party for 3rd free service of his Hero Honda Super splendor Motorcycle. Apart from other regular free check-up the complainant informed the service person to fix engtine guard and to adjust the headlight. The same was done as per the request of the complainant.

After verification of the vehicle’s performance the complainant took delivery of the vehicle with full satisfaction, signed the job card and paid the cost of oil, cost of engine guard and for the consumable items. The complainant made complaint regarding the non-functioning of head light dimmer (switch) to the service person and the same was noted in the job card but not rectified at all and the service person came with the excuse that the parts were not available are denied and the complainant is put to strict proof of the same.

9. The complainant came to the 3rd opposite party on 2602.08 for the 4th Service and informed the service person to change the motor cycle’s left side cowel sticker and the same was noted in the job-card. Since there was no stock of the cowel sticker it was informed to the complainant and it was noted in the job card also. On 11.6.08 the complainant informed the opposite parties service person to check-up the left hand side dim bright switch. The service person checked and rectified the defect and the complainant took delivery of the vehicle after verification with full satisfaction. On 30.07.2008 the complainant came to the opposite parties service station for quick service and informed the service person to change front side indicator assembly and the same was changed against the payment of Rs.132/-.

10. The averments in para No. 5 , 6 and 7 of the complaint are denied and the complainant is put to strict proof of the same. The opposite parties came to know the alleged problem of non-functioning of head light dim(switch) of the vehicle only from the legal notice dated 8.08.2008.

Immediately the opposite parties sent reply letter dated 13.08.2008, informed the complainant’s counsel to inform the complainant to contact their General Manager Mr. Narayanan at any working day for replacing the defective parts as mentioned in the legal notice at free of cost as per Hero Honda’s warranty policy. Since the complainant did not come to them, a letter dated 3.12.08 was sent to the complainant himself, informing him if he is facing any problem in his bike, to come to the show room and correct the fault if any in the motor cycle. The said letter was received by the complainant on 5.02.08.

11. The complainant has suppressed all these facts and preferred the complaint before this Honourable Forum with ulterior motive and to get wrongful gain at the opposite parties cost. The opposite parties have not committed any deficiency of service as alleged by the complainant. These allegations are only notional and imaginary and the amount claimed towards are without any basis or records. It is well settled law that the burden is upon the person who alleges to prove it. There is no merit in the complaint and the complaint deserves to be dismissed.

12. The complainant and opposite parties have filed Proof Affidavit along with documents Ex.A1 to A8 was marked and Ex.B1 to B9 was marked on the side of the opposite parties.

The point for consideration is

Whether the opposite parties have committed deficiency

in service? If so what relief the complainant is entitled to?

ISSUE 1

13. The case of the Complainant is that he purchased a Hero Honda Super Splendor Motor Cycle, manufactured by the 1st opposite party from the 3rd opposite party during 3rd free service i.e., on 5.01.08 he informed the 3rd opposite party’s service person about the non-functioning of his motor cycle’s head light dimmer switch and non-functioning of speedo meter and trip meter defects, at the time of delivery of the vehicle the 3rd opposite party charged the complainant for rectification of speedometer and tripmeter which was within the warranty period and even during 4th, 5th and 6th free services the defect in the Head Light dimmer(switch) was not rectified.

The complainant further allegation s on 5.08.2008 he was called over phone by the 3rd opposite party to come to their company and get the alleged defects rectified. When the complainant went, he was asked to pay for the replacement arts. When he questioned it he was humiliated in front of several people and that caused him mental agony and hardship.

14. The opposite parties admit the purchase of Hero Honda ‘Super Splendor’ motor cycle by the complainant from the 3rd opposite party who is the dealer for the 1st opposite party in Coimbatore. But deny all other allegations made in the complaint.

15. The main allegations are:-

1) the nonfunctioning of headlight dimmer switch even after service

2) the collection of charges for rectification of speedometer and trip meter

Regarding the first allegation ie.

Non functioning of the Headlight Dimmer during 3, 4, 5 and 6th service, the contention of the complainant is that on 5.8.2008 3rd opposite party’s service persons informed that they are willing to do that service on payment basis and refused to do that service without charge.

The complainant issued legal notice on 8.8.08 which is marked as Ex.A2, the 3rd opposite party also issued reply dt.13.8.08 which is marked as Ex.A6 in that letter he has stated as follows:

………

“Dear Sir,

“We have received your legal notice dt.9.8.08. We deeply regret the inconvenience caused by us for client Mr.Duraisamy S. S/o.Sivaniah, who is the customer of Hero Honda Super Splendor Reg.No.TN 37AV8859

We request you to kindly advise your client Mr.Duraisamy.S to come to our workshop and contact our General Manager, Mr.Narayan.S (9944027755) on any working days from 9.00 am to 6.00 pm for replacing the defective parts as mention in the letter under free of cost as per Hero Honda warranty policy”

16. The 3rd opposite party has not denied the other allegation namely willful delay, and the complainant was made to sit in the visitor’s room. Because of this complainant purchased that particular part spending Rs.280 for which Ex.A7 bill is marked. Ex.B8 letter dt.3.12.2008 was received by the complainant only after filing of this complaint.

17. We are of the view that the 3rd opposite party had totally ignored the basic requirements of service and the 1st and 2nd opposite parties had failed to give instruction to the authorized dealer namely the 3rd opposite party. The opposite parties has put the complainant into a lot of mental agony as well as monetary loss and the same amounts to deficiency in service.

**adv.sumit** · 10-23-2009, 12:59 PM

Mr. Rakesh Prayagdin Verma, )

R/at : Flat No. 62, Raviraj Heights, )

Ananandnagar, Sinhagad Road, )

)

)…COMPLAINANT

: Versus :

1. The Manager, )

Hero Honda Motors Ltd., )

34, Community Centre, )

Vasant Vihar, New Delhi – 110057. )

)

2.The Authorised Signatory, )

Pratibha Motors (Authorised Dealer )

Of Hero Honda), “Nishigandha”, )

Plot No. 323, S.No. 49/1, Dange Chowk, )

Hinjewadi Road, Near Pandit Petrol Pump, )

Tathawade, Tal. Mulshi, )

Districe : Pune – 411 033. )… OPPOSITE PARTIES

//J UD G M E N T//

[2] It is the case of the Complainant that on 21/1/2009, he booked KARIZMA MMC-KAMDSSSBK (Two Wheeler Vehicle) from the Opposite Party No.2, who is an authorized dealer of the Opposite Party No.1 who is a manufacturer, for total value of Rs.81,013/- under three advance receipts No. 1739 dated 17/1/2009 for Rs. 2,000/-, Receipt No. 1774 dated 19/1/2009 of Rs.68,000/- and Receipt No. 1793 dated 20/1/2009 for Rs.11,013/-.

It is also further contended that the vehicle was delivered to him on 23/01/2009. It is further submitted that entire prior signatures of the Complainant were taken upon all concerned requisite documents. The Complainant further states that after coming to know about oil leakage from engine head studs due to threading slip, as per the directions/suggestions, the Complainant brought the vehicle and left at service centre of Pratibha Motors, Pune-33, which fact, according to the Complainant is admitted by the Opposite Party No.2 by way of their notice reply dtd.11/02/2009.

It is further alleged by the Complainant that engine of two wheeler was opened and taken out for repair in repair centre for inspection and after seeing condition of machine, engine of vehicle, the Complainant denied to accept repaired two wheeler or else entire price of it Rs.81,000/- and Mr. Rathod was reluctant either to replace or refund money. It is also further contention of the Complainant that when he again contacted Mr. Prakash Rathod, and enquired about new vehicle or refund of money, he told to meet Mr. Amit Kunte and when the Complainant contacted Mr.Amit Kunte, he repeatedly asserted to take back repaired vehicle instead of new one.

It is further submitted that after informing about oil leakage from engine by the Complainant to Mr. Prakash Rathod, the Complainant took the vehicle to his mechanic, who is not an Authorised Service Provider for Hero Honda and the said Mechanic or the Complainant himself did some repairs to the engine to correct the alleged problem. According to the Complainant, the Opposite Party sent two letters dtd.30/1/2009 and 7/2/2009, to which, the Complainant replied by letter dtd.6/2/2009.

[3] The sum and substance of the case of the Complainant is that as the vehicle is defective, the Opposite Parties are jointly and severally responsible for manufacturing or mechanical defect to be removed before actual handing over delivery of the vehicle and therefore, according to the Complainant, this is a deficiency in service and has prayed for replacement of the new vehicle. It is also further prayed that the Opposite Parties be directed to refund cost of the vehicle alongwith interest @12% p.a. thereon alongwith the cost etc..

[4] Alongwith the complaint application, the Complainant has also filed affidavit, in of support of the complaint, list of documents, letters, notice, photographs, receipts etc..

[5] After issuance of the notice, the Opposite Parties No. 1 and 2 appeared and filed their common written version. It is the contention of the Opposite Parties that the complaint filed by the Complainant is not legal and bona fide. It is also further contented that the Complainant has not filed the complaint against Hero Honda Motors Ltd., therefore, the complaint deserves to be dismissed. The Opposite Parties are denying the contention that the signatures of the Complainant were obtained cunningly.

According to the Opposite Parties, every customer is a mechanic. It is alleged that the Complainant has not come before the Forum with clean hands. It is admitted by the Opposite Parties that the Complainant brought the vehicle to the service center of the Opposite Party No.2 on 24/1/2009 and that the Complainant demanded a new vehicle or in the alternative the entire amount paid by him and that the Opposite Parties refused to comply with the demand of the Complainant. However the Opposite Parties specifically denied that the engine of the vehicle was opened and taken out.

It is also denied that the Opposite Parties purposefully kept the Complainant waiting. It is also further contended that Mr. Prakash Rathod is an employee of the Opposite Party No.2 and that he was fully authorized to order mechanic/s employed by the Opposite Party to look into the problem complained of. It is also further submitted that the Opposite Parties refused to give new vehicle or to pay the price of the vehicle and the Opposite Parties insisted on the Complainant receiving the repaired vehicle. It is also specifically denied that the Opposite Parties are jointly and severally responsible for the alleged manufacturing and mechanical defects.

It is also further contended that the Complainant is put to strict proof as to how and on what basis he has calculated and arrived at the amount of sundry expenses and the compensation for negligence. It is further specifically denied that the Complainant has suffered any mental or physical agony etc.. The Opposite Parties further contended that the Opposite Party No.2 has paid the transport charges for the tempo in which the Complainant brought the vehicle to the service center of the Opposite Party No.2.

[6] It is further submitted that before the vehicle was delivered to the Complainant, the same was thoroughly checked and inspected and the checking and inspection was carried out as per the norms prescribed for the said purpose. It is also the contention of the Opposite Parties that the delivery of the vehicle was taken by the Complainant only after satisfying himself about the sound condition of the vehicle. It is denied that there was leakage from the engine or from anywhere else till the Complainant took the vehicle out of the premises of the Opposite Party No.2.

As per 14 (d) of the written statement, it is submitted by the Opposite Parties that the Complainant informed Mr. Rathod that the Complainant took the vehicle to his mechanic and that his mechanic did something to the engine to repair the alleged leakage and the alleged leakage was caused due to the wrongful acts of the Complainant himself or of an unauthorized person who was permitted by the Complainant to tamper with the vehicle, which is, according to the Opposite Parties, against the express instructions from the Opposite Parties.

It is further stated that the Complainant admitted before Mr. Rathod that the engine of the vehicle was opened by the mechanic of the Complainant. As per para 14 (j) of the written statement of the Opposite Parties, it is submitted that the vehicle sold to the Complainant is fully repaired, which repairs were not warranted due to any fault on the part of the Opposite Parties. It is also further contended that the Complainant may take the delivery of the same, alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2.

[7] It is the contention of the Opposite Parties that this Forum does not have jurisdiction to try and entertain this complaint. It is also further stated that the complaint is not property valued. The Opposite Parties have denied the prayer of the Complainant for the replacement of the vehicle simultaneously with the refund of an amount of Rs.81,013/- together with interest.

[8] Alongwith all the abovementioned contentions, it is lastly prayed by the Opposite Parties that the claim of the Complainant be rejected with costs. As also the Opposite Parties be awarded compensatory costs of Rs.20,000/- from the Complainant. The Opposite Parties have also annexed list of documents, dtd.20/5/2009 alongwith affidavit of Mr. Raghavendra Rao, the Authorised Officer of the Opposite Party No.1.

[9] In connection with the written statement of the Opposite Parties, the Complainant has filed rejoinder affidavit dtd.09/6/2009. The sum and substance of the rejoinder is nothing but the denial of the written statement in toto except some of the assertions.

[10] The Complainant and the Opposite Parties Nos. 1 and 2 have also filed their respective written notes of arguments. On perusal of the same it appears that almost all the contentions are the same as are already raised.

[11] On going through the documentary evidence in the proceedings, respective contentions etc., the following points arose for our determination :-

POINTS ANSWERS

1. Whether the Complainant is a “consumer”? … Yes

2. Whether this Forum has jurisdiction to try

and entertain the complaint ? … Yes

3. What order? … As per final order.

REASONS :-

[12] Admittedly, the Complainant has purchased the vehicle on 21/1/2009 vide Invoice No. 001084 dtd. 21/1/2009, produced at page (42) of the compilation, as also, Advance Receipts bearing Nos. 1793, 1774, 1739 are produced at page (43 & 44) of the compilation, from which it is evident that the Complainant has paid entire amount of the vehicle to the Opposite Party No.2. Therefore, as per the definition under the provision of Section 2(1) (d) (ii) of the Consumer Protection Act, 1986, the Complainant is a “consumer” and hence we answer the point No. (1) accordingly.

[13] The Opposite Parties Nos. 1 and 2 have raised the contentions about the jurisdiction of the Forum. In this context, it is pertinent to note that the Complainant has purchased the vehicle from the Opposite Party No. 2, who is the dealer of the Opposite Party No.1, in the capacity of principal-agent, which comes under the territorial jurisdiction of this Forum, therefore, this Forum has jurisdiction to try and entertain the present complaint. Hence we answer the point No. 2 in the affirmative.

[14] The Opposite Party No.2 has produced the list of delivery of the vehicle supplied to the various Customers, in which, the name of the Complainant is written at Sr.No.1 and that it denotes that the disputed vehicle was delivered to the Complainant on 23/1/2009. Prima-facie it appears that the disputed vehicle is in the custody of the Opposite Party No.2 and on perusal of the letters dtd.30/1/2009 and 5/2/2009 written by the Opposite Party No.2 to the Complainant, it is evident that the Opposite Party No.2 is ready and willing to deliver the disputed vehicle to the Complainant.

As also notice of Jayant B. Ranade Advocate dtd.11/2/2009 on behalf of the Opposite Party No.2 shows the same thing. On the contrary, Legal Notice written by the Complainant through Advocate Madan Waman Joshi dtd. 30/1/2009 to the Opposite Party No.2, it appears that the Complainant was insisting for replacement of the vehicle or for refund of the price of Rs.81.013/-.

It appears that both the parties are reluctant to their claims. In the present case, for the sake of arguments, if it is presumed that there is deficiency in service on the part of the Opposite Parties, then the subsequent point arise that whether the Complainant has produced any cogent or concrete evidence on the record. Unfortunately, the Complainant has failed to establish his case of manufacturing defect. On the contrary, Job Card bearing No. 1145 is produced on the record, in which there is remark that “top corner nuts round tampered approx when oil …..” . there is word against word contentions.

Mere assertions and denials cannot substantiate the testimony of averments. By and large, what is required is that while alleging any deficiency in service on the part of the Opposite Party, the burden to show the exact proof of manufacturing defect lies upon the Complainant. In the present case, the Opposite Party is ready and willing to deliver the repaired vehicle to the Complainant. The record also reveals that since inception of the complaint, the Opposite Party has persuaded to handover the repaired vehicle to the Complainant.

The Opposite Parties have also clearly stated in their written statement that the Complainant may take the delivery of the vehicle alongwith the registration certificate and other documents during the working hours of the Opposite Party No.2. Therefore, according to us, the Opposite Party has fully co-operated with the Complainant, and also, the Complainant did not produce any expert report on the record. In the absence of cogent evidence on the record, the Complainant has failed to prove his case. Hence it stands dismissed.

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