BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 7^th day of March 2018

Filed on : 25-07-2017

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.296/17

Between

Deepak K.B., : Complainant

S/o. Sabu K.K., Korasserill house, (By Adv. P.M. Benzir, V/2, 5^th floor,

Cherai P.O., Pallipuram, Empie building, High Court End,

Ernakulam-683 514. Old Railway Station Road,

Cochin-18)

And

1. Honda Motor Cycles & : Opposite parties

Scooter India Pvt. Ltd.,

Unit 01, 1^st floor, West Wing,

Golden Heights,

59^th C Cross, 4^th M Block,

Rajajinagar, Bangalore,

Karnataka-560 010.

2. Aryabhangy Motors, (O.P. 2 & 3 by Adv. T.A. Rajan,

AMC XVII/506 (4/5), 1^st floor, Cheruvathoor buildings,

NH Bye Pass Road, Market road, North End, Ernakulam,

Aluva-683 101. Kochi-18)

3. Aryabhangy Honda,

TCS Memorial Building,

Cherai, Ernakulam-683 514.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant’s case

2. 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 has been broken. The opposite parties did not issue any job card and ask the complainant to come after two days. When the complainant went there again, he was informed that the handle got stuck due to the 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 there he will have to pay Rs. 3,000/- towards replacement of the parts including service charge of the 3^rd opposite party. When the complainant informed that the vehicle is 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 21-04-2017 . Since then on wards 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 to 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 monitory 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 thorough this complaint.
2. Notices were issued to the opposite parties and the opposite parties resisted the complaint by filing a version contending inter-alia as follows.

3. The complaint is not maintainable as it was filing 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 defects 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 struck with any 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 in tact 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. Following issues were settled for consideration.

1. Whether the complainant had proved that there was any deficiency in service on the part of the opposite parties as alleged in the complaint?

2. Reliefs and costs.

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

6. Heard both sides.

7. Issue No. i. As per Exbt. A1, retail invoice, the complainant, Shri. Deepak purchased a Honda Activa scooter from the 2^nd opposite party on 26-07-2016. On 21/4 the complainant had given the vehicle for service as per Exbt. A2. The vehicle was insured with comprehensive insurance with oriental insurance company till 26-07-2017 as per Exbt. A3 cover note. The vehicle was delivered to the complainant on 27-07-2016 as per Exbt. A4 . Exbt. A5 is a communication issued by the complainant to one Mr. Thomasjibi attached to the opposite party. It is admitted in Exbt. A5 that the complainant did not carry out the 3^rd service within the time limit. However, the complainant is not pressing the service under warranty as seen from Exbt.. A5. He was concerned only about the delay occurred in handing over of the vehicle Duly repaired. According to the complainant and Exbt. A5 the delay occurred due to want of spares with the opposite parties. The complainant when examine as PW1 and during cross-examination he admitted that the complainant’s case was revolving round on the contention that there was manufacturing defects. Therefore, the opposite parties took a contention that the warranty is not applicable as the complainant did not do the 3^rd service with any of the authorized service centres and he had violated the terms and conditions of the warranty conditions. The complainant has filed an application on 18-07-2017 to appoint the commissioner to inspect and ascertain the defective parts provided by the opposite party. However, he did not pursue the application despite it’s filing. In the affidavit filing in support of the commission application it is the definite case of the complainant that the handle of the scooter got stuck due to manufacturing defects. At the same time, the opposite parties took a contention that the defects of the scooter was not with the manufacturing defects but the T-fork was broken due to an accident.

8. Since the parties had taken such contentions as above we find that it was the duty of the complainant to bring in positive evidence with regard to the manufacturing defects of the vehicle. The complainant admitted that he did not do the 3^rd service with any of the service providers of the 1^st opposite party. Therefore, he had violated the terms and conditions of the warranty. It is seen that the complainant had entrusted the opposite parties to make a claim regarding the damage caused to the vehicle and to realize the bill amount for repairs . If the insurance company were to honour the claim, the claim should have arisen out of some accident. The complainant had therefore suppressed material facts while approaching in this Forum seeking compensation for deficiency in service. We understand that the complainant had used the vehicle for about 9 months without any indications showing manufacturing defects. If the T-fork of the vehicle has broken after 9 months it must be proved through the evidence of an expert who had occasion to inspect the vehicle. Therefore, we find that the complainant did not prove that there was manufacturing defects for the vehicle as alleged. We find the issue therefore, against the complainant.

Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on this the 7^th day of March 2018

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order, `

Senior Superintendent.

APPENDIX

Complainant's exhibits

Exbt. A1 : True copy of Retail invoice dt. 26-07-2016

A2 : True copy of delivery slip dt. 21/4

A3 : True copy of Cover Note

A4 : True copy of registration details

A5 : True copy of e-mail

A6 : Copy of brochure

Complainant's exhibits : Nil

Copy of order despatched on :

By Post: By Hand: