Present : Sri. C.T. Sabu, President
Smt. Sreeja. S., Member
Sri. Ram Mohan R., Member
15th day of December 2022
CC 39/15 filed on 28/01/2015
Complainant : Ajayan P.T., S/o Thankappan, Pulikkal House,
Kolangattukkara, Choolissery Post,
Thrissur – 680 541.
(By Adv. Harish P.N., Thrissur)
Opposite Parties : 1) Honda Motor Cycle & Scooter India Pvt. Ltd.,
Registered Office, Plot No. :I, Sector – 3,
IMT Manesar, Gurgaon District, Haryana – 122 050.
Rep. by Authorised Signatory / Managing Director /
General Manager.
2) Johns BI-Wheelers, Johns Arcade, Guruvayoor Road,
Ayyanthole P.O., Thrissur – 680 003.
Rep. by Authorised Signatory / Managing Director.
(OP 1 & 2 By Adv. P.G. Devadas, Thrissur)
F I N A L O R D E R
By Sri. Ram Mohan R, Member :
- The complaint in brief, as averred :
The complaint is filed under Section 12(1) of the Consumer Protection Act, 1986. The complainant purchased a “Honda Activa Scooter” bearing model No.SCV 110D ID from the 2nd opposite party, on 02/01/2014, paying a sum of Rs.51,640/- vide Invoice No.131NO 9816. The 1st opposite party is the manufacturer of the scooter in question. The Registration No. of the vehicle is KL.8.BC.141. Allegedly, the vehicle which had been making horrible noise during running was brought to the 2nd opposite party several times for repair. In spite of their having repaired the same repeatedly, the defect allegedly persisted. The matter was brought to the notice of the 1st opposite party manufacturer as well, by repeated email. The complainant alleges manufacturing defects in the vehicle. Hence the complaint. The complainant prays for an order directing the opposite parties to refund/replace the vehicle with a new one, apart from other reliefs of compensation and costs.
2) NOTICE :
Being noticed by the Commission, the opposite parties entered appearance and the 2nd opposite party filed its version before the Commission.
- Version of the 2nd Opposite Party :
The 2nd opposite party does not dispute the complainant’s purchase of the vehicle in question. They aver that the noise from the Engine side reported by the complainant during the 2nd service of the vehicle on 19/05/14, was not noticed by them on their inspecting the vehicle. Thereafter during the next service, the complainant reported sound from the floor panel which also could not be statedly noticed by them. Subsequently, the complainant brought the vehicle to them on 23/08/14 while its covered 3960 k.m., whereupon rear noise was reported by the complainant, amongst others. The vehicle was again brought to the 2nd opposite party on 04/09/14 while the vehicle covered 4050 km whereupon the complainant reported sound from the front side and from the silencer, which also could not be identified by the 2nd opposite party. The 2nd opposite party avers that the vehicle does not make any “engine noise”, except the normal one and that the complaint is for illegal enrichment.
- Evidence :
The complainant produced documental evidence that had been marked Ext. P1 to P3, apart from affidavit and notes of argument. The complainant had also applied for appointing an Expert Commissioner to ascertain the alleged defects of the vehicle which was allowed. The report submitted by the duly appointed Expert Commissioneris marked Ext. C1.
The 1st opposite party manufacturer, in spite of their having been permitted as prayed, by proceedings dtd. 03/07/15 to adopt the 2nd opposite party’s version, they failed to file petition to that effect. But the 2nd opposite party is seen to have adduced evidence on behalf of the 1st opposite party, as well. The 1st opposite party having not properly filed any version, the evidence adduced by the 2nd opposite party is considered by us exclusively to their (2nd opposite party’s) extent only. The 2nd opposite party produced documental evidence that had been marked Exts. R1 to R4, apart from affidavit and notes of argument.
The Expert Commissioner appointed by the Commission was also examined/cross examined as CW1.
5) Deliberation of evidence and facts of the case :
The Commission has very carefully examined the facts and evidence of the case. Ext. P1 is Invoice No.13IN0 9816 dtd.02/01/2014 issued by the 2nd opposite party in favour of the complainant, towards the sale of the vehicle, receiving a sum of Rs.51,640/-. Ext. P2 (series) comprise print out of the email communication trail between the complainant and the 1st opposite party. Ext. P3 is copy of the Certificate of Registration in respect of the vehicle KL 08 BC 141.
Ext. R1 (series) comprise 5 numbers of Job cards issued by the 2nd opposite party in favour of the complainant’s vehicle No. KL8BC141, respectively dtd. 06/02/14, 22/05/14, 29/07/14, 23/08/14 and 04/09/14. Ext. R2 is letter of satisfaction dtd. 26/08/14 signed by the complainant. Ext. R3 is print out of 2nd Opposite party’s email dtd. 27/12/14 addressed to the complainant. Ext. R4 is the 2nd Opposite party’s letter dtd. 05/01/2015 addressed to the complainant.
6) Points of deliberation :
(i) Whether the alleged manufacturing defect is proved ?
(ii) Whether the act of the opposite parties is tantamount to unfair trade
practice or whether there is any deficiency in service on their part
of the opposite parties ?
(iii) Whether the complainant is entitled to any compensation from the
opposite parties ? If so its quantum ?
(iv) Costs ?
7) Point No.(i)
Ext. C1 report affirms that the vehicle in question produces abnormal noise occasionally at the time of release of the accelerator while running downhill and that the sound is apparently from the clutch / engine. During cross examination, the Expert Commissioner deposed that the chances of the said sound being attributed to manufacturing defects, is not certain. At the same time the Expert Commissioner has not ruled out the possibility of its being attributed manufacturing defect, as well. In the absence of conclusive affirmation regarding manufacturing defect, we are, in the instant case, not in a position to decide on the alleged aspect of manufacturing defect.
8) Point No.(ii) :
A close scrutiny of the Ext. R1 series of Job cards reveals that all the said job cards except the one dtd. 06/02/14, bear thereon endorsement relating to reported complaints such as noise/sound either from the engine side or clutch/gear box or floor panel or from front side. It is thus evident that the vehicle in question exhibited the fault of producing abnormal sound, repeatedly right from 22/05/14 i.e. hardly in six months of its purchase itself. The 2nd opposite party avers that on their thorough inspection of the vehicle, alleged ‘sound’ was found normal. They also contend that the complainant at different instances, reported sound emanating from different parts of the vehicle. In our view, a rider who is not a technical expert, can only complain about abnormality of the sound that a vehicle produces, but cannot distinctively tell whether such sound originates from the clutch or the engine of the vehicle. It is also important to note that the user of a vehicle reports the complaint of “sound”, when the sound produced by the vehicle is felt not akin to its working. The Expert Commissioner’s Ext. C1 report, affirms that the vehicle produces abnormal sound on release of accelerator during downhill drive. He also stated that the sound emanated from the clutch unit/ engine. The 2nd opposite party who filed objection to the Ext. A1 report, raised the sole objection that the Expert Commissioner has not confirmed whether it is the complaint of the clutch unit or of the engine unit. The Expert Commissioner explicitly deposed during the cross examination that he had identified the defect of the vehicle upon driving the same and not after opening or dismantling the vehicle. In our view it was the duty of the opposite parties to thoroughly inspect the vehicle and find out which part of the vehicle was defective, when such a complaint was bonafidely reported by a consumer of theirs. The 2nd opposite party argues that they were not informed of the Expert Commissioner’s second date of inspection viz 10/12/2015. Had this argument been true, the 2nd opposite party would definitely have mentioned the same in the objection to Commissioner’s report filed by them. There is no such contention seen raised by them in their objection to Commissioner’s report. But the Expert Commissioner had explicitly deposed before the Commission that he had on the 1st date of inspection itself, verbally informed the 2nd opposite party of the date of the 2nd inspection. In the absence of any mention of such a matter in their objection, we are constrained to consider the 2nd opposite party’s argument to the contrary, only as an afterthought. Besides, as already mentioned supra, Ext. R1series of Job Cards are revelatory of the fact that the vehicle in question exhibited the fault of making abnormal sound.
When a newly purchased vehicle reportedly exhibits faults that too within a few months of its purchase, the manufacturer and the dealer/service centre have the bounden duty to repair/rectify the same, to the satisfaction of the consumer. By Ext. C1 Report, it is evident that the complainant’s reported grievance of “abnormal sound” made by the vehicle, is genuine, but the opposite parties failed to identify the defects and rectify the same. Ext. P2 series of email trail evidence that the said grievances were brought to the notice of the 1st opposite party manufacturer, as well. The failure on the part of the opposite parties to productively rectify the defects reported by the complainant, that too in a few months of the purchase of a new vehicle, is certainly a deficiency in service on their part which at the same time constitutes an unfair trade practice.
9) Point No. (iii) & (iv) :
Admittedly, the vehicle had been taken to the 2nd opposite party on several occasions for repairs. In our view, there is no necessity of taking a new vehicle to the workshop on several occasions for repairs, especially, within a short span of one year of its purchase. It is a matter beyond doubt that if a new vehicle gives troubles within a few months of its purchase, the consumer would be dissatisfied. In the instant case the complainant who purchased a new vehicle, paying a sum of Rs.51,650/-could not enjoy its fruits owing to the wrong doings of the opposite parties. Such dissatisfaction itself will inflict agony and hardship on the complainant. The Hon’ble National Commission held the same view by its order dtd. 25/02/2008 in Nachiket P Shirgaonkar Vs Pandit Automotive Ltd. & Another. The opposite parties have necessarily to compensate the complainant, we are of the considered view that the complainant is entitled to receive from the opposite parties a sum of Rs.25,000/- towards compensation for the agony and hardship he underwent, and a sum of Rs.5,000/- towards costs.
In the result, the complaint is partly allowed and the opposite parties are jointly and severally directed to
- Pay the complainant a sum of Rs.25,000/- (Rupees Twenty five thousand only) towards compensation for the agony and hardship he underwent, and
- Pay the complainant a sum of Rs.5,000/- (Rupees Five thousand only) towards costs,
all with 9% interest p.a. from the date of filing of the complaint till the date of realisation. The opposite parties shall comply with above direction within 30 days of receipt of copy of this order.
Further, if the complainant, within 7 days of his receiving a copy of this order, produces the vehicle in question before the 2nd opposite party, the 2nd opposite party shall rectify the defect of the vehicle, free of cost, within 25 days of such production. In case, the 2nd opposite party, by any reason, is not in a position to do so, shall, additionally pay the complainant a further sum of Rs.5,000/- (Rupees Five Thousand only) towards additional compensation, within 7 days of elapse of the aforementioned period of 25 days stipulated for the repair.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission this the 15th day of December 2022.
Sd/- Sd/- Sd/-
Sreeja S. Ram Mohan R C. T. Sabu
Member Member President
Appendix
Complainant’s Exhibits :
Ext. P1 Invoice No.13IN0 9816 dtd.02/01/2014 issued by the 2nd opposite
party in favour of the complainant, towards the sale of the vehicle,
receiving a sum of Rs.51,640/-.
Ext. P2 (series) comprise print out of the email communication trial between the
complainant and the 1st opposite party.
Ext. P3 copy of the Certificate of Registration in respect of the vehicle KL 08
BC 141.
Opposite Parties’ Exhibits :
Ext. R1 (series) comprise 5 numbers of Job cards issued by the 2nd opposite
party in favour of the complainant’s vehicle No. KL8BC141,
respectively dtd. 06/02/14, 22/05/14, 29/07/14, 23/08/14 and 04/09/14.
Ext. R2 letter of satisfaction dtd. 28/08/14 signed by the complainant.
Ext. R3 print out of 2nd Opposite party’s email dtd. 27/12/14 addressed into the
complainant.
Ext. R4 the 2nd Opposite party’s letter dtd. 05/01/2015 addressed into the
complainant.
Id/- Member
