Date of filing : 22-03-2013
Date of order : 28-01-2016
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.94/2013
Dated this, the 28th day of January 2016
PRESENT:
SMT.P.RAMADEVI : PRESIDENT
SMT.K.G.BEENA : MEMBER
SMT.SHIBA.M.SAMUEL : MEMBER
Avinash.R, S/o.Raghavan, : Complainant
R/at Love Nest House, S.G.K. Temple Road,
RD Nagar.Po. Kasaragod.Dt.
(Adv.Rajesh.K, Kasaragod)
1 Honda Motor Cycle & Scooter Pvt. Ltd (HMSI): Opposite parties
Plot No.1& 2, Sector 3, IMT Manesar,
District Gurgaon 122050 Haryana State.
2 The Manager, Pace Motors, Karandakkad,
Kasaragod.Po. 671121.
(Adv.Madhavan Malankad, Kasaragod)
O R D E R
SMT.SHIBA.M.SAMUEL,MEMBER
The gist of the complainant’s case is that the complainant had purchased a brand new motor cycle Honda CB shine bearing Reg.No.KL14-M-6534 model 2012 on 28-12-2012 by paying and amount of Rs.64410/- plus extra fitting charge for the bike. Opposite party No.1 is the manufacturer of the vehicle and opposite party No.2 is the authorized dealer. When the motor cycle was taken from the RT Office to obtain registration Number the complainant noticed some defects on the rear tyre and the same was repaired on the same day to the complainant. Thereafter the gear was missing within two days of purchase. That defect was also cured by opposite party No.2. Again within one week another defect was occurred that the unusal sound occurred from the vehicle. Accordingly the complainant kept the vehicle on 18-1-2013 in the service station of opposite party No.2 as informed by the opposite party. The error was found by the service station that the sound was due to defect on cam-shaft. The defect could be cured only by removing the engine from the original fitting. The complainant was not consented for the repair by removing the engine by apprehending that if the engine is removed from the original fitting very utility of new vehicle would be lost. The complainant sent a notice dated 26-01-2013 for replacing the defective bike with a new one but the opposite party never replied for the same. Thereafter on 2-2-2013 the complainant sent a registered lawyer notice for which the opposite parties sent a false reply on 16-2-2013. Inspite of having incurable defects to the vehicle the opposite parties have failed to replace the vehicle or cure the defect which amounts deficiency in service. Due to the act of the opposite parties the complainant had monetary loss and mental agony . Hence the complaint.
2. The opposite parties appeared through Sri.Madhavan Malankad and opposite party No.2 filed detailed version and opposite party No.1 filed memo by adopting the version of opposite party No.2. In the version the opposite party denied the allegation such as defect was noticed by the complainant on the date of delivery itself and also the defects relating to gear of the vehicle it is also denied that there was an unusal sound to the vehicle but small sound vibration was noticed due to problem of cam-shaft. It is informed to the complainant that camp-shaft to be replaced and thereby sound problem will be cured for which the complainant was not ready. For replacing the cam-shat the engine need not be removed. The top cover portion to be removed and then cam-shaft to be replaced. By removing the top cover the utility of the vehicle will not be lost as apprehend by the complainant. There is no manufacturing defect to the vehicle. Opposite party No.2 is ready with brand new cam-shaft. And they were ready to cure the sound problem by replacing brand new cam-shaft any time without even removing the engine. It is further denied in the version that the complainant could not use the vehicle because of its defect caused mental agony to him for which he is entitled for damages or for replacement of the vehicle or its value. Therefore the complaint is liable to be dismissed.
3. Based on the pleadings and contentions of the parties the following points arose for consideration
1 Whether there is any deficiency of service on the part of the opposite parties?
2 If so, what is the relief and costs?
4. The complainant in this case filed proof affidavit in lieu of his chief examination examined as PW1 and marked Exts.A1 to A3 on his side. The opposite party examined their manager of opposite party No.2 as DW1. No documents produced on the side of the opposite parties. Ext.C1 is the expert report in the above case.
5. Heard the counsel for both parties in detail, perused the documents carefully and analized the evidence before the Forum.
6. Point.No.1: The complainant’s case was that he had purchased a brand new motor cycle Honda CB shine bearing Reg.No.KL14-M 6534 from the opposite party No.2 who is the authorized dealer of opposite party No.1. The complainant had paid Rs.64410/- plus extra fitting charge on 28-12-2012. When the vehicle was taken for registration the complainant noticed defects on the rear tyre and also the defect with gear of the vehicle. Both defects were repaired on the same day of registration and after 2 days of purchase. Thereafter within one week there was some unusal sound from the vehicle was noticed by the complainant. The complainant immediately taken the bike to opposite party No.2 and opposite party No.2 herein directed the complainant to bring the vehicle on the first free service and promised that the defect would be cured. Accordingly the complainant kept the vehicle on 18-1-2013 in the service station of opposite party No.2. On that day the defect was detected as cam shaft mistake and informed the complainant that the defect could be cured only by removing the engine from the original fitting but the complainant was not consented for the suggestion of opposite party No.2 by apprehending that the very utility of new vehicle would be lost if the engine is removed from the original fitting. Therefore the complainant sent a notice dated 26-01-2013 for replacing the defective bike with a new one. The notice is produced by the complainant and marked as Ext.A1. But there was no reply for Ext.A1 from the side of opposite party No.2 the complainant herein constrained to sent a registered lawyer notice by expressing his grievances in detail which is marked as Ext.A2. Ext.A3 is the acknowledgement card of Ext.A2. The opposite party No.2 sent a reply on 16-02-2013 with false and frivolous contention. The evidence before the Forum is that eventhough the opposite parties denied the defects noticed by Pw1 about the rear tyre on the date of registration and subsequent defect with regard to gear, they admits in their version that small vibration sound was noticed due to problem of cam-shaft was clearly admitted. Moreover while cross-examining DW1 before the Forum the complainant substantiated his allegation about the defect on cam shaft. DW1 in his cross-examination on page No.2 admitted that there was an abnormal sound while the vehicle was produced for inspection on 18-01-2013. Further DW1 admitted that usually such sound should not be there. He has opined that it may be because of the wear and tear or depreciation such defects will occur. But is interesting to note that this defect was detected on 18-01-2013 that means hardly within 20 days of purchase of a new vehicle. There is no chance of any depreciation or wear and tear at any stretch of imagination that a newly purchased vehicle becomes defective by using 20 days. Another important aspect in this case is that it is admitted by DW1 that he deposed before the Forum as the Manager of opposite party No.2 and he has no technical qualification and moreover there are vehicle experts in his company as staff and further admitted that he never do any repair work and such a person is not in a position to adduce any technical aspects before the Forum. Ext.C1 is the report of Mr. Santhosh who is the two wheeler mechanic was appointed as expert in this case. Ext.C1 clearly reports that the cam-shaft is the part inside the engine in this case is defective and can be repaired only by removing the engine head. And further explained in the report that if the engine is removed the smoothness and rushness of the engine will be lost. Counsel appearing for the opposite parties vehemently contended that the report has to be set aside since he is not an expert either by qualification or by virtue of profession, the report is not mentioned about on what basis the so called expert has come to a conclusion as cam-shaft is spoiled as he did not open any part of the engine. In such a scenario it was the duty on the part of the opposite party to produce a witness to substantiate his case that the opinion of expert cannot be taken into consideration. But instead of that he has submitted before the Forum that he is ready to substitute the defective cam-shaft which means the complainant’s case is true and genuine. Apart from all these DW1 admits that authenticity of findings of expert by deposing before the Forum that the expert in this case was appointed by the Forum since he is an expert and because of that reason he has not raised any objection while appointing the mechanic as the expert.
7. The complainant herein prays for a replacement of vehicle with a new one. But we are of the opinion that the evidence before the Forum shows that the vehicle is still with the complainant and even now he is using it without any other complaint moreover he had admitted in the cross-examination that the vehicle already run about 16000 KMs. Admittedly there is a defect in the cam-shaft of the subject matter in this case not with the crank- shaft which is the part of the vehicle which connects the engine to the wheel and helps to turn the engine power in to movement. It is the definite case of the complainant that there is an abnormal sound due to the defect and the same is admitted by the opposite party as a vibration sound. Definitely the defect in the subject matter is causing some inconvenience to the complainant or lacks a perfection the complainant has no specific case that if a vehicle with such a defect is used that will endanger his life. Therefore Forum is of opinion that PW1 is not entitled for a replacement with a new one. But the complainant is definitely entitled for necessary relief from us since the defect occurred hardly within 20 days of purchase of the vehicle. Supply of defective vehicle by the opposite parties amounts to deficiency in service and opposite parties are liable to compensate for the damage sustained by PW1.
In the result, the complaint is allowed directing the opposite parties 1 & 2 are jointly and severally liable to pay an amount of Rs.25000/- as compensation with cost of Rs. 5000/- to the complainant and the opposite party No.2 is directed to repair the bike by replacing a brand new cam-shaft with the defective one. Time for compliance is 30 days from the date of receipt of copy of order.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Exts.
A1. 26-1-13 Copy of letter sent by complainant to M/s. Pace Honda Motors
A2. 2-2-2012 Copy of lawyer notice.
A3. Postal acknowledgement card
C1. Commission Report.
PW1.Avinash
DW1. George.P.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
