Per Mr.H.K.Bhaise, Hon’ble Member
1) The present complaint has been filed by the complainant U/s 12 of the Consumer Protection Act, 1986. According to the complainant, on 7th November, 2011, he purchased Honda motorcycle from the O.P.No.1 for Rs.63,500/-. The company offered four free services. Two free services were carried out. At the time of third free service, it was noticed that crankcase was damaged during free service by the workers of the Opponents. He made enquiry about it from the management of the opponents and requested them to replace his motorcycle. But the management persons abused him and refused to replace the motorcycle. His complaint was not taken by the management. He had correspondence with the opponents but there was no response. Therefore, he has filed this complaint for replacement of his motorcycle and also for recovery of price of motorcycle Rs.63,500/- with interest at the rate of 18% per annum. He has also prayed for damages of Rs.30,000/- and cost of proceeding Rs.10,000/-.
2) The opponents appeared and filed the written statement. According to the opponents, there was no manufacturing defect. Therefore, the complainant is not entitled for replacement of the motorcycle. It is admitted the complainant purchased Honda motorcycle on 7th November, 2011 for Rs.63,400/-. The vehicle was registered under no. MH-01-AZ-6013. The complainant took delivery after test drive and after his satisfaction. The complainant was bringing vehicle for complementary free services. There was no complaint for the period of four to five months. On 15th March, 2012, the complainant brought the vehicle at service centre of O.P.No.1 and usual service was carried out. The following complaints were attended by the workers.
i) Engine Oil Change
ii) Break Setting
iii) R.P.M. settings
iv) Front disc noise check
v) Teflon Coating
Copy of job card bearing no.6455 showing the work is produced. While servicing, it was found that engine oil was dripping from casing i.e. engine cover. On examination, it was found that hairline crack was developed in the casing (engine cover) and therefore oil was dripping. It appears that complainant had hit the vehicle against some stone or hard object and therefore hairline crack was developed. It was a minor job and with the permission of the complainant crack was filled up by procedure called “bracing”. Thereafter, dripping of oil was stopped and vehicle had no problem. However, the complainant refused to take delivery of the vehicle. As there was no manufacturing defect, the complainant is not entitled for the relief as claimed.
3) After hearing both the parties and after going the record, following points arise for our consideration:
POINTS
Sr. No. | Points | Findings |
1) | Whether there is manufacturing defect in the motorcycle ? | No |
2) | Whether the complainant is entitled for replacement of the motorcycle ? | No |
3) | Whether the complainant is entitled for the compensation ? | Rs.5000/- |
4) | Whether the complainant is entitled for the relief as claimed ? | Partly |
5) | What Order ? | As per final order |
REASONS
4) As to Point No.1 :- It is admitted that the complainant had purchased the disputed vehicle bearing registration no. MH-01-AZ-6013 from the opponents. Four free services were afford. Two free services were already conducted. The vehicle was taken to workshop of O.P.No.1 for third free service. The opponents have produced job card dated 15th March, 2012. According to the complainant, there was no damage when the vehicle was handed over for third free service. In para 11 of the written statement filed by the opponents, it is contended that complaints of the complainant were attended by the worker i.e.
i) Engine Oil Change
ii) Break Setting
iii) R.P.M. settings
iv) Front disc noise check
v) Teflon Coating
As per para 12 of the written statement, while servicing, it was found that engine oil was dripping from casing i.e. engine cover. On close examination, it was found that hairline crack was developed in the casing (engine cover) and that was the reason for dripping of the oil. The opponents have produced the job card on record. There is no mention of dripping of engine oil. It corroborates the contention of the complainant that earlier there was no damage and while carrying out the service crank case was damaged and engine oil was coming out. According to the opponents, the complainant had hit the vehicle against the stone or hard object while in motion and that was the reason for developing hairline crack of casing cover. If it was the reason and if damage was already there then it was necessary for the workers to mention it on the job card or any other document maintain by the company. While considering this aspect, it is necessary to note that the complainant is not the technical person who will know the mechanical/technical defect in the vehicle. It is for the opponents who are the manufacturer and dealer of the vehicles having many technical/mechanical workers to say about the mechanical defect found in the vehicle. According to the opponents, bracing was carried out for stopping dripping of oil. The complainant had purchased new vehicle on payment and within a short time i.e. four to five months, the opponents applied bracing on the vehicle. If according to the opponents, they noticed hairline crack, then it was necessary to replace that part instead of bracing it.
5) Much has been argued about the damaged part i.e. whether it was crankcase or crankshaft. The learned advocate for the opponents had drawn our attention to the notice of complainant dated 27th March, 2012 and submitted that in this notice he has mentioned the part as crankcase and now the complainant is saying about the part as crankshaft. According to him, crankcase is only the cover and crankshaft is the part of the engine and both the parts are totally different. As stated above, the complainant is not the technical person. It is not expected from him to know the name of exact part which was damaged. The workers of opponents were technical/mechanical persons who were knowing the name of part. It was necessary for them to note it down on the company record which is maintained for attending job of service. The opponents being the technical persons are responsible to replace the part which was damaged during free service and handover vehicle free from any defects. Admittedly, it was third free service. Therefore, applying of bracing on damaged part is not proper. Even after complaint, the person from management did not take cognizance of it. Admittedly, oil was dripping from the engine. According to the opponents there was crack to cover only. If merely cover is replaced, then it is doubtful about supply of sufficient oil to the engine. If sufficient oil is not supplied to the engine then the vehicle will not function properly. The complainant had purchased new vehicle for the price offered by the opponents. Therefore, it was the responsibility of the opponents to give proper vehicle to the complainant. If the damage is found during free service it was necessary for the opponents to replace that part and give the vehicle free from any damage.
6) It is true that demand of replacement of the vehicle by the complainant was not proper. He had used the vehicle for four to five months. During that period, he has not found any manufacturing defect. Only part was damaged. Therefore, he is entitled for replacement of that part and not the vehicle. During course of argument, the learned advocate for the opponents has submitted that company is ready to replace the crankcase. We think mere replacement of crankcase will not suffice the purpose as again there will be a problem of supplying sufficient oil to the engine. Therefore, we think it just to direct the opponents to replace the crankshaft and hand over the vehicle to the complainant in roadworthy condition.
7) The learned advocate for the opponents has pointed out earlier judgment of this Forum dated 16th February, 2010 in CC/134/2009. In that case, Forum called expert opinion of engineer and believed the report given by the said engineer. In this case, the opponents have produced on record the report of Shri Prathamesh Bhor, Mechanical Engineer. The said report is not authenticate. The authority of Shri Prathamesh Bhor is in dispute. Therefore, his report can not be accepted. Moreover, the said report is produced by the person of opponents. The same is not supported by the affidavit of Shri Prathamesh Bhor. Therefore, it can not be believed. The learned advocate has placed reliance on the judgment of Hon’ble National Commission Villinur Associates –Versus= Dhanraj Denis A. reported in II (2003) CPJ 132 (NC). In para 3 of the judgment, it is observed that
There was nothing on record to show that there was any manufacturing defect in the scooter for the State Commission to direct the refund of the purchase price of the scooter to the complainant. District Forum after examining the record of the case observed that all the defects which were of minor nature had been rectified and allegation of the complainant about manufacturing defect could not be proved.
8) In the instant case before us, there is no evidence showing manufacturing defects. Only one part is damaged. Therefore, it is necessary to give directions to the opponents to replace that part i.e. crankshaft and handover the vehicle to the complainant in roadworthy condition.
9) As there is no manufacturing defect in the vehicle the complainant is not entitled for replacement of the vehicle or for refund of the purchase amount. It was necessary for the opponents to attend the defects promptly. They have not attended the defect promptly. Therefore, they are responsible to give damages to the complainant. The complainant has claimed damages of Rs.30,000/-. We think it just to direct the opponents to pay damages of Rs.5,000/- to the complainant. The opponents are also liable to pay cost of proceeding to the complainant. We think cost of Rs.1,000/- is suffice the purpose.
10) To conclude, the complainant is entitled for replacement of crankshaft and return of the vehicle in roadworthy condition. Therefore, we proceed to pass the following order.
O R D E R
1) Complaint is partly allowed
2) The opponents are directed to replace the crankshaft and handover the disputed vehicle to the complainant in roadworthy condition within fifteen days.
3) The opponents are directed to pay damages of Rs.5,000/- (Rs.Five Thousand Only) and cost of this proceeding Rs.1,000/- (Rs.One Thousand Only) to the complainant within fifteen days.
4) Copies of this order be sent to the parties free of cost.
Pronounced
Dated 31st August, 2013
