Date of Filing: 11/08/2016

Date of Order: 24/10/2017

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.Ps and prays for orders to direct the O.Ps for the following reliefs:

a) To direct the O.Ps to refund of Rs.87,659/- including refund the periodical charges of Rs.386/-  and Rs.544/-  and to refund of Installments paid from June to August 2016  amounts to Rs.9,687/-.

b) To pay medical charges of Rs.1,805/-.

c) To pay damages of Rs.25,000/- towards deficiency of service rendered by the O.Ps

d) To pay compensation of Rs.25,000/- in total O.Ps are liable to pay a sum of Rs.1,51,991/-  along with interest @ 12% per annum along with cost.

2.     The brief facts of the complaint are that, on 16.1.2016 complainant had purchased the bike bearing No. KA 02 JG 3877 for a sum of Rs.87,659/- from the O.P.No.2 and its model that Honda STD CB  Unicorn 160. Further complainant submits that initially he paid Rs.1,000/- as advance  amount and had paid down payment of Rs.29,945/- thereafter owed a vehicle loan from M/s L & T finance and hypothecated the vehicle in their favour.  It is stated that the said bike was working properly until 800 kms and thereafter it was servicing with the O.P.No.3  as per service manual book on 6.2.2016 and owed a sum of Rs.386/-. It is stated that after the first service within a few days the said bike on 27.2.2016   complainant had found  a defect in the engine and it was given an usual sound, sometimes when bike reaches around 50 KM speed, all of a sudden bike gets stopped in the middle of the road, sometimes front wheel with steering gets wobbling, by that time complainant use to reduce the speed of 50KM to 25-30 KM speed slowly, than his bike gets control over the road, otherwise the riding  on the said bike was endanger to his life and limb and the situation was horrible, some times suddenly the speed of the said bike gets down and incapable of cubic capacity to move further. The said bike has pick up problem, also shock observes not intact as there was no spring action and was noise over the seal and shock observers. With these problems O.P.No.2 was directed the complainant to give bike with O.P.No.3 for service. It is stated that, on account of the problem of the bike complainant suffering from backache and took treatment  all these faults held either four days once and weekly once. After the service by the O.P. No.3 the bike was running for 20 to 25 days but again had found similar defects. Thereafter complainant lodged complaint with the Honda customer care and they assured the defects get resolved by servicing the bike with the third parties with freshly and replacing parts such defective items in the bike. It is stated that complainant had left his bike for repair with the O.P.No.3. After that O.P.No.3 given the service and asked the complainant to take back his bike as the entire defects were rectified and O.P.No.3 collected Rs.544/- as charges.  It is alleged that after seven days once again the said defects found in his bike but the O.Ps did not keep up their words and refused to repair and service the same.  Thereafter complainant got issued the legal notice to the O.Ps but the O.Ps did not resolve the problem but given the evasive reply. Hence this complaint.

3.     Upon issuance of notice O.Ps entered their appearance through their counsel and filed its version.  In the version it is contended that, the complainant is one of the customers of the O.Ps.  The O.P No.1 is a manufacturer and corporate administrator. The O.P.No.2 is the dealer of selling the products and the 3^rd O.P is an authorized bike service provider of the 2^nd O.P. It is admitted that complainant was purchased the bike bearing No. KA 02 JG 3877 for a sum of Rs.87,659/- from the O.P.No.2.  The O.Ps contended that, obtaining finance by the complainant is not concern to these O.Ps and they are not parties for such loan contract.  It is contended that complainant is not a fit or proper person to ride the said bike due to his physical appearance which do not enable him to ride the vehicle as his legs are not touching the clutches or to apply the breaks of the vehicle.  It is contended that O.Ps advised the complainant while booking the vehicle of the non-suitability of the vehicle to the complainant, despite which the complainant booked the vehicle. Thus arising an improper usage. It is admitted that complainant  got the first service after reaching 800 kms on 6.2.2016 and O.P.No.3 owed a sum of Rs.386/-  as undertaken the service of the vehicle as per the service manual strictly and the averments made there too and is denied as false. Further O.Ps denies it is false and incorrect that the complainant found defects in the engine was given unusual sound when the bike reaches around 50 kms speed and all of a sudden bike stopped in the middle of the road etc. It is contended that complainant is not an experienced rider of the bike and he is physically inability caused damaged to the bike and he do not know the mechanism to use the bike and therefore the allegation of the complainant are contrary to the user manual of the vehicle as contended. It is denied as false and incorrect that the complainant had found mechanical faults either four days once or weekly once and the health problems, as it is not related to the bike.

 4.    It is contended that, warranty policy made available in respect of the vehicle indicates that repair or replacement of the parts would be done free of charge at the authorized work shop within a warranty period of 24 months from the date of sale or until the vehicle was covered 32 kms whichever comes first. Warranty claims in respect proprietary parts like tyres and battery or warranted by their respect manufacturer and should be claimed on them directly by customer.  The battery warranty is applicable form 21 months from the date of charging at manufacturer of 18 months from the date of sale or 20000 kms which ever is earlier. The manufacturer of the bike M/s Honda Motorcycle and scooter India does not warrant normal wear and tear like brake pad, brake shoes clutch disc, chain, chain socket, wheel rim ( in case of realignment and bent), bushes, fasteners, shims, washers and electrical items like bulbs (LEDS are covered under warranty), rubber and plastic components like grommets, O-Rings, Bellows as well as packings, gaskets, oil seals and consumable like fuel filter, air cleaner element, engine oil, grease, suspension, oil and other items as specified by the manufacturer  viz., the 1^st O.P.  It is contended that O.Ps have not contended any deficiency in service and unfair trade practice. Further O.Ps denied all other allegations, the main contention is put forth is the complainant not an able person to ride the bike in question and ultimately O.Ps prays for dismissal of the complaint with cost.

5.     In order to substantiate the case of the parties and both parties have filed their affidavit evidence and also heard the arguments.

6.     On the basis of the pleading of the parties, the following points will arise for our consideration is:-

                (A)    Whether the complainant has proved

                         deficiency in service on the part of the O.Ps?

(B)   Whether the complainant is entitled to

       the relief prayed for in the complaint?

(C)   What order?

7.     Our answers to the above points are:-

POINT (A)        & (B):       In the partly affirmative.

POINT (C):               As per the final order

for the following:

REASONS

POINT No. (A) & (B):-

8.     On perusal of the pleadings of the parties, it is not in dispute that, on 16.1.2016 complainant had purchased the bike bearing No. KA  02 JG 3877 for a sum of Rs.87,659/- from the O.P.No.2 and its model that Honda STD CB  Unicorn 160. Further it is also not in dispute by availing the loan that the complainant purchased the product.  The O.P.No.1 is the manufacturer, O.P.No.2 is the dealer and O.P.No.3 is the authorized service center of the O.P.No.2.  

9.     The main allegation of the complainant is that the bike in question covered the 800 kms complainant given it for service to rectify the defects like noise in the engine, creating wobbling when it reaches 40 to 50 kms and for other purpose. The complainant alleges that inspite of several service the problem still persists and O.Ps failed to rectify the same.

10.   Per-contra O.Ps contended that as per the service manual they have repaired vehicle but alleged that complainant is not a fit person to drive the bike the legs of the complainant are not touching the clutches and due to improper usage complainant find problem in the said bike.

11.   In order to prove the case of the parties, both parties filed their affidavit evidence and also documentary evidence produced. On perusal of the invoice produced by the complainant purchased the bike for an amount of Rs.87,659/-. On perusal of the loan agreement the complainant by obtaining the loan purchased the said bike and it is not concerned to the O.Ps. Further on perusal of the medical bills the complainant taken treatment for his ailment but did not produce any credible evidence in order to establish that while riding the vehicle the complainant suffered illness.   In the absence of the cogent evidence the allegation of the complainant cannot be acceptable one. 

12.   On perusing the documentary evidence produced by the O.Ps the complainant on 6.2.2016 given the bike for service for wobbling problem while bike reaches 50 kms speed and on perusing the job card dated 9.2.2016 it discloses that the complainant given it for suspension work and other problems and the O.Ps repaired the vehicle further on 14.4.2016 the complainant given the vehicle for rectifying the defect chain noise, low pick and wheel wobbling. So also on 26.4.2016 given the bike for repair to overcome the defect of engine abnormal voice wheel wobbling above 60 kms.  Likewise on 21.5.2016 all these job cards clearly disclose that many number of times complainant given the vehicle to the O.Ps service center for the repair. However in the version and in the evidence of O.Ps nothing is stated whether they repair the vehicle by rectify all the defects mentioned in the job card, but alleged that complainant’s inability and fitness to ride the bike due to non-reaching to short forearms to the hand breaks and clutches and due to height of the vehicle and he is unable to reach to the leg clutches.  It is worth to note that,  how can the O.Ps  without producing any evidence establish that complainant is physically unfit to use the vehicle and whether there is any nexus  for the problems occurred in the bike mentioned in the  all the job cards produced in the evidence.  On careful perusing the job cards producing evidence in the O.P it clearly mentioned about the problems of the bike narrated in the complaint.  Giving the bike for many number of service for the same problem and when the problem persists it clearly indicates that there is an inherent defect in the engine and in the bike and the O.Ps is also not specifically denied there is no inherent defects in the engine regarding sound and noise. The things when speaks itself there is no need of any expert evidence to reach conclusion that the motor bike in question is having inherent defect and hence complainant rightly approached the Forum. Further in a catena of decisions of the Hon’ble National Commission the time and again it is held that when the vehicle was given for number of times to repair and it amounts to defect in the engine and the service is deficient. At this juncture of the time we lay our hand to the decision of the Hon’ble National Commission reported in CPJ December 2016 Part 12 Vol-IV  page 574 in the case of Jaycee Automobiles Pvt. Ltd. Versus Raj Kumar  Agnihotri & Anr. It was held that the failure to rectify the defect and re-occurring the same defect it will cause mental agony and harassment to the complainant.  On perusal of the above judgment the ratio of the above decision is aptly applicable to the present case on hand.

13.   The O.Ps taken the bike in question for many number of services but did not place any cogent that they have cured all defects, but only put forth their defence the complainant is physically unfit to ride the bike without any supporting credible evidence and hence the contention of the O.Ps is lame of strength and holds no water. In our view the O.Ps did not respond to the complainant and failed to rectify the defect occurred in the bike and turn around saying that complainant is unfit to use bike. The act of O.Ps is wholly deficient in their service and failed to carryout the repairs to the usable condition. In the light of above discussion. Complainant proved deficiency in service on the part of the O.Ps. Under the circumstances we deem it just and proper O.P.No.1 and 2 are jointly and severally refund the Ex-showroom price of the bike i.e. amount of Rs.75,558/- excluding the road tax as the bike played on the road and the road tax paid to the government. Hence complainant only entitled for the ex-show room price. Further due to act of the O.Ps complainant suffered wandering from pillar to post and hence it lead to filing of the present and therefore complainant is entitled for Rs.2,000/- towards the cost of the proceedings. Further O.P.No.1 and 2 are directed to refund the amount well within 30 days from the date of receipt of this order along with cost, failing which O.P.No.1 and 2 are directed to pay interest on the ex-showroom price at the rate of 9% per annum from the date of complaint till its realization. However O.P.No.3 is only a service provider and act in accordance with the O.P.No.2 and hence O.P. No.3 is not liable for the inherent defects in the engine. Under the circumstances, the complaint against O.P.No.3 is hereby dismissed. Accordingly, we answered the Points (A) and (B) in the partly affirmative.

POINT No. (C):

14.   On the basis of answering the Points (A) and (B) in the partly affirmative, we proceed to pass the following:-

ORDER

1. The complaint is allowed in part with cost.

2. O.P.No.1 and 2 are jointly and severally hereby directed to refund an amount of  Rs.75,558/-i.e. Ex-showroom price of the bike to the complainant within 30 days from the date of receipt of this order, failing which O.P.No.1 and 2 are directed to pay interest on the ex-showroom price at the rate of 9% per annum from the date of complaint till its realization.

3. Further O.P No.1 and 2 are directed to pay Rs.2,000/- towards cost of the proceedings.

4. The complaint against O.P.No.3 is hereby dismissed.

5. The O.P No.1 and 2 are  hereby directed to comply the order of this Forum within 30 days from the date of receipt of this order and submit the compliance report to this Forum within 45 days from the date of receipt of this order.

6. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 24^rd Day of October 2017)

MEMBER                 MEMBER                PRESIDENT

*Rak