KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 263/2018

JUDGMENT DATED: 25.09.2019

(Against the Order in C.C. 296/2017 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI. RANJIT. R                                                                              : MEMBER

APPELLANT:

Deepak. K.B, Korasseril House, Cherai P.O, Pallipuram Village, Ernakulam-683 514.

                          (Party in person)

                                                Vs.

RESPONDENTS:

1. Honda Motor Cycles & Scooter India Pvt. Ltd., Unit-01, 1^st Floor, West Wing, Golden Heights, 59^th C Cross, 4^th M Block, Rajaji Nagar, Bangalore, Karnataka-560 010.

2. Aryabhangy Motors, AMC XVII/506 (4/5), NH Bypass Road, Aluva-683 101.

3. Aryabhangy Honda, TCS Memorial Building, Cherai, Ernakulam-683 514.

JUDGMENT

SRI. RANJIT.R : MEMBER

The complainant has filed this appeal against the Order of the Consumer Disputes Redressal Forum, Ernakulam, in short the District Forum, in C.C. No. 296/2017 dated 07.03.2018 dismissing the complaint. 

2.  Case of the complainant in brief is that the complainant purchased a Honda Activa scooter on 26-07-2016 for a price of Rs. 65,000/- and it was registered as KL-42-L-9971. After about 7 months of the purchase on 18.03.2017, the handle of the scooter got stuck and the complainant had faced a serious situation on the road. The scooter was immediately entrusted to the 3^rd opposite party.  After inspection the complainant was informed that a part of the T-fork was broken.  The opposite parties did not issue any job card and asked the complainant to come after two days. When the complainant went there again, he was informed that the handle got stuck due to manufacturing defects. However they refused to invoke the warranty for the reason that the 3^rd servicing of the vehicle was delayed by the complainant and therefore, he would have to pay Rs. 3,000/- towards replacement of the parts including the service charge of the 3^rd opposite party. When the complainant informed that the vehicle was covered by valid insurance, the 3^rd opposite party made a revised estimate for Rs. 11,500/- and told the complainant that the 3^rd opposite party will recover the claim amount from the insurance company and the complainant need not pay anything.  A job card was issued to the complainant on 21-04-017. Then onwards the vehicle is kept in the showroom of the 3^rd opposite party giving excuses like “parts are not available, valuer from the insurance company did not come etc.”   The vehicle is still kept by the opposite parties and the e-mail communications sent by the complainant to the opposite party bounced and some remained unresponded. The opposite parties had denied proper service to the complainant and the complainant had suffered great loss and damage including monetary damage as he was in dire need to travel by the two wheeler in aid office occupation as a computer repairing professional. Since the vehicle had manufacturing defects, the 1^st opposite party is responsible to compensate the complainant for having sold defective vehicle. The complainant seeks refund of the price of the scooter with compensation and costs through the complaint.

3.  Opposite parties filed version contending that the complaint is not maintainable as it was filed without any bonafides suppressing material facts. The complainant did not carry out the service of the vehicle as per the service schedule . The parts of the vehicle was misused and the damage was caused due to accident and negligence on the part of the complainant. Therefore, the complainant is not entitled for warranty. The 1^st opposite party is the manufacturer, the 2^nd opposite party is the dealer and the 3^rd opposite party is the service provider of the 1^st opposite party. It is true that the complainant purchased scooter on 27-07-2016 for the price of Rs. 65,000/- as alleged. He purchased the vehicle after satisfying the good condition at the time of purchasing it. The owner’s manual was provided to the complainant which shows the importance of the periodical maintenance and service. There was no manufacturing defect for the vehicle. The complainant did not report any issues of manufacturing defects within a reasonable time to any of the opposite parties. The handle was got stuck not due to manufacturing defects as alleged. The parts of the vehicle were damaged due to accident and therefore warranty conditions are not applicable to the vehicle. The complainant agreed to get the works done at the expense of the insurance company and the accident was informed to the insurance company and they checked the vehicle through authorized surveyor. Accordingly, the work was carried out and the matter was informed to the complainant several times over phone to come and collect the bills for presenting before the insurance company to get the bill reimbursed. However, the complainant did not turn up. The vehicle was not kept exposed to sun and rain as alleged. The website and email address of the opposite parties were intact and there was no question of bouncing mail. The vehicle was not delivered to the complainant, not due to the fault of the opposite parties but due to the laches on the part of the complainant. The complainant did to suffer any damage at the hands of the opposite party. There was no denial of service and deficiency in service. The complaint is liable to be dismissed.

4.  The evidence in this case consists of the oral evidence of the complainant and Exbts. A1 to A6 documents, marked on his side. The opposite parties did not adduce any evidence.

5.   The District forum after analyzing the materials on record found that the complainant failed to prove the allegation of manufacturing defect of the vehicle and therefore dismissed the complaint.  Aggrieved by this Order the complainant has filed this appeal.

6.  Heard the appellant/complainant who was present in person and the respondents.  Perused the records.  The appellant who was present in person contended that within a period of 7 months of the purchase of scooter from the 2^nd opposite party the handle of the scooter got stuck while driving and hence he brought the vehicle to the 3^rd opposite party for repair on 18.03.2017.  But they did not issue the job card and asked the complainant to come after two days.  Accordingly he went to the 3^rd opposite party and they informed that the T-fork was broken and it was due to the manufacturing defect.  At first they agreed to repair the vehicle for an amount of Rs. 3,000/-.  When informing about the insurance coverage of the vehicle by the complainant, they made an estimate for Rs. 11,500/- and assured that this amount will be covered by the insurance and accordingly the appellant/complainant agreed with that assurance and thereafter on 21.04.2017 the job card was issued.  The respondents failed to repair the vehicle even after a lapse of 5 months.  Though the appellant has sent many e-mails to the opposite parties and all the e-mails got bounced.  Only one e-mail was delivered, but there was no reply.  The denial of service is deficiency in service on the part of the respondents and 1^st opposite party being the manufacturer and 2^nd opposite party being the dealer and the 3^rd opposite party being the service provider are liable to replace the vehicle free of cost since the vehicle was having manufacturing defects. 

7.  The learned counsel for the respondents, on the other hand, contended that complainant did not report any manufacturing defect within a reasonable time to any of the opposite parties.  The complainant did not carry out the third service as per the service schedule.  The parts of the vehicle were misused and damage was caused due to the accident and negligence of the complainant and complainant is not entitled for the warranty.  The complainant agreed to get the work done at the expense of the insurance company and the accident was informed to the insurance company and the surveyor of the insurance company has also inspected the vehicle.  Accordingly the work was carried out and the matter was informed to the complainant over phone asking to collect the bill for presenting before the insurance company to get the bill reimbursed.  However the complainant did not turn up.  There is no bouncing of mails and the website and e-mail address of the opposite parties were intact. 

8.  The specific case of the complainant in the complaint is that while the complainant was driving the vehicle the handle of the scooter got stuck on 18.03.2017 and thereafter on the same day the complainant brought the scooter to the 3^rd opposite party for service.  Though the 3^rd opposite party received the vehicle and intimated that T-fork was broken, they did not issue the job card.  According to the complainant the T-fork was broken only due to the manufacturing defect and it was admitted by the 3^rd opposite party.  The 3^rd opposite party issued the job card only after the complainant agreed for the condition that the 3^rd opposite party will recover the amount for service by claiming the insurance amount.  Since there was delay in servicing this vehicle he sent Ext. A5 e-mail to the opposite party.  It is noted that in Ext. A5 e-mail the complainant had admitted that he has not done the third service within the time limit prescribed for the service.  The complainant in his complaint as well as in Ext. A5 admitted that he had instructed the opposite party to carry out the service and asked them to claim the insurance amount for the service.  Normally T-fork will not break due to the delay in service.  It may be either due to manufacturing defect as alleged by the complainant or due to the accident as alleged by the opposite party.  If there was any manufacturing defect to the T-fork of the vehicle the vehicle could not have been used for 9 months.  Admittedly complainant did not report any complaint at the time of first and second free service.  It was first reported that there is manufacturing defect only on 21.04.2017.  It is an admitted fact that there was delay in carrying out the third service.  But due to delay in service itself the T-fork will not break.  As stated supra naturally the insurance company will honour the claim only if there is any accident.  Here the complainant has failed to prove manufacturing defect, whereas the complainant himself has stated that he had instructed the opposite party to carry out the work and to claim the amount from the insurance company.  From the above it is clear that complainant has indirectly admitted the accident.  Naturally the insurance company will honour the claim only if there is accident.  The District Forum has correctly found that the complainant had suppressed material facts while approaching the Forum seeking compensation.  The Forum below found that the vehicle was used for about 9 months without any indication of manufacturing defects.  If the T-fork of the vehicle was broken after 9 months due to the manufacturing defect as alleged by the complainant it is to be proved through expert evidence.  Here the complainant did not prove manufacturing defect.  Even though he had filed petition to inspect the vehicle by an expert commissioner he did not pursue the petition and hence it was not allowed.  The reason for the non-pressing of the petition is stated that the opposite party has already rectified the defects.  The question of manufacturing defect does not arise since the complainant himself has indirectly admitted that there is an accident and that he had instructed the opposite party to claim amount from the insurance company.  From the above it is clear that the complainant has suppressed material facts about the accident and tried to establish his case canvassing manufacturing defect for which there is no cogent evidence. 

We do not find any merit in the contentions of the appellant or justification which call for any interference with the order appealed against. 

In the result, the appeal is dismissed.  Parties to suffer their respective costs.    

JUSTICE K. SURENDRA MOHAN         : PRESIDENT

                                                                                                                                                                          RANJIT. R       : MEMBER

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