BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of January 2017
Filed on : 15-10-2014
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.777/2014
Between
Vasudevan M.A., : Complainant
S/o. Ammunni, C.S. Ajith Prakash, 1st floor,
Abhilash Bhavan, Metro Plaza, Market road)
Panangadu, Kochi-682 506.
1. The Managing Director, : Opposite parties
M/s. Honda Siel Power Products (1st and 3rd o.ps. By Adv. C.R.
Ltd., No. 409, DLF Tower B. Syam Kumar, IInd floor,
Jasola Commercial Complex, Chundanal Monarch, K.K.
New Delhi – 110 025. Padmanabhan road, Ekm)
2. The Manager, (2nd O.P. By adv. P. Martin Jose,
M/s. Melamparambil Agencies, S. Sreekumar, Chittoor road,
38/506-507, Opp. Manorama, Cochin-18)
Sahodaran Ayyappan road,
Cochin-682 106.
3. The Manager,
M/s. Honda Siel Power Products Ltd.,
Area Office, Door No. 36/2962 B,
Kaloor – Kadavanthra road,
Kaloor, Ernakulam-682 017.
O R D E R
Sheen Jose, Member
The case of the complainant is as follows:
The complainant is a fisherman and he is used to do fishing by his small country boat which can run by a single person. The complainant had purchased a Honda make GK-200 ACPS 3 HP outboard engine (3600 PMO) on 07-03-2013 from the 2nd opposite party by paying an amount of Rs. 23,720.81 paise to operate his country boat for fishing purposes. The outboard engine was manufactured by the 1st opposite party. The very 1st day of operation after the purchase, the outboard engine had developed serious mechanical defects. As a result, the complainant became unable to use the boat as he desired. On most of the occasions when the complainant gone for fishing, he had to return with bare hands, as the engine failed to perform in the waters and the complainant returned shore manually, by using oars. The complainant contacted with the authorized service providers and they returned the machine on several occasions without properly addressing the defects of the engine. At last the complainant entrusted the engine back to the 2nd opposite party on 19-11-2013 with a request either to refund its price or to replace the same with a new one as the engine has become totally defunct and the complainant came to a position that it can not be used any further . The continuous mechanical failure of the engine has caused both financial loss and mental agony to the complainant, during the period when the engine was in his possession. The complainants spent an appropriate amount of Rs.25,000/- for its repairing charges. It is reliably learned by the complainant that the above said engine had an incurable manufacturing defects on the date of purchase itself which all of the opposite parties deliberately concealed from the complainant for effecting a sale and all the opposite parties have failed in redressing the grievances of the complainant either by replacing/repairing the engine or by refunding its purchase value, in spite of many reminders from the complainant’s part and there is deficiency of service on the part of the opposite parties. On 10-12-2013 the complainant issued a lawyer notice through his counsel noting the above mentioned case. But the opposite parties denied the defects of the machine and the deficiency on their part. Thus the complainant is before us seeking a direction against the opposite parties to pay a total amount of Rs. 63,720.81 paise, which is inclusive of the price of the disputed engine of Rs. 23,720.81 paise, an amount of Rs. 25,000/- spend for repair charges by the complainant and Rs. 15,000/- as compensation for the mental agony. The complainant also seeks an amount of Rs. 5,000/- towards costs of the proceedings. Hence this complaint.
2. The version of the 1st and 3rd opposite parties are as follows:
The averment of the complainant that he had purchased Honda Make GK-200 ACP 3 Hp out Board Engine (3600 PMO), is not correct. The available documents kept in the office of this opposite party shows that he had purchased Honda GK 200 AC PS engine 3600 RPM on 07-03-2013. The first and third opposite parties had no information with regard to any of the complaints about the said Honda Engine, till they received the lawyer’s notice on 10-12-2013. As per the terms of agreement in warranty Card, the Company will rectify any defect that may occur within six months after the purchase of the product. Therefore, it is submitted that the warranty terms prescribed by the Company in the above mentioned document/agreement for the engine in question expired on 06-09-2013. In the above circumstances the opposite parties 1 and 3 have no liability to replace/repair defective engine pursuant to the expiry of period of warranty as well as breach of the warranty clause (i.e. 2.2). The company has no liability to provide free service or refund the purchase amount after the expiry of the warranty period and the complainant has not furnished any evidence to show that the engine has any manufacturing defect to prove his claim. After the company received the lawyer notice the technical expert of the company inspected the particular engine and found that the engine was working well and the said engine was modified by the complainant by cutting the crank shaft PTO and taking the drive from the cam shaft side drilling a hole on the cover assembly crank case. As per warranty condition Clause No. 2 it is clearly mentioned that warranty is not applicable if the engine is modified or any material alterations are made in the engine. In the above circumstances, the complaint is liable to be dismissed with compensatory costs to the opposite parties.
3. Version filed by the 2nd opposite party is as follows .
The averments of the complainant that when the outboard engine was started, it developed serious mechanical defects from the very 1st day of its operation and the engine used to fail to perform in waters, pursuant to which the complainant had to return the shore manually using oars, are false and hence denied. The allegation of the complainant that the opposite party had not responded to the complaints of the complainant is false and hence denied. The opposite party submitted that the machine Honda make GK-200 ACPS 3 Hp Out Board Engine (3600 PMO) was purchased by the complainant on 07-03-2013 and the complainant contacted the opposite party only on 24-05-2013 alleging that the machine had some defects. The manager of the opposite party immediately attended to the request and found that there was no such issues as pointed out by the complainant. Thereafter, the complainant again approached the opposite party on 24-07-2013 raising a false complaint that the machine stops while running in water. This time the opposite party checked the machine in front of the complainant and since no issues were found o ut the complainant took back the machine without raising any objection. The machine had only 6 months warranty which has expired on 06-02-2014. It was only on 19-11-2013 the complainant had approached the 2nd opposite party with a request to replace the machine, it was noted that the complainant had modified the engine by cutting the crank shaft PTO End and taking the drive from the crams shaft side by drilling a hole on the cover assy crank case. As per the clause 2 of the warranty booklet provided to the complainant at the time of the purchase of the machine, the machine will be no longer covered by the warranty as the clause clearly states that warranty is not applicable if the engine is modified or otherwise opened or repaired by anybody who is not the authorized service agent of the manufacturer. No deficiency in service or unfair trade practice happened on the side of the 2nd opposite party as alleged by the complainant. Therefore on the basis of the above facts and circumstances the Hon’ble Forum may be pleased to dismiss the complaint.
4. The evidence in this case consisted of the proof affidavit filed by the complainant and oral evidence adduced as PW1 and Exbts. A1 to A6 documents were marked on his side. On the side of the opposite parties Exbts. B1 to B5 and witness of 1st and 3rd opposite parties were examined as DW1. Heard the learned counsel for both parties.
5. Issues came up for consideration before this Forum are as follows:
i. Whether the complainant has proved any manufacturing defects to the disputed engine?
ii. Whether the complainant has proved any deficiency in service or unfair trade practice on the part of the opposite parties?
iii. Whether the complainant is entitled to get refund of an amount of Rs. 23,720/- being the price of the disputed Honda GK 200 ACPS 3HP engine purchased from the opposite parties?
iv. Whether the opposite parties are liable to pay Rs. 25,000/- towards compensation for mental agony, expenses incurred for servicing the machine and Rs. 5,000/- towards costs of the proceedings, to the complainant?
6. Issue Nos. i&ii. As per Exbt. A1, the complainant had purchased a Honda make GK 200 ACPS 3HP engine on 07-903-2013 from the 2nd opposite party at a price of Rs. 23,720/- which was manufactured by the 1st opposite party. He used the above said machine to operate his country boat for fishing purpose. Exbt. A2 receipt dated 19-11-2013 shows that the complainant entrusted disputed machine to the 2nd opposite party for repairing. The complainant alleged that the disputed machine showed some defects right from the beginning. He had approached the opposite party for curin the defects of the machine but the opposite party failed either to cure the defects by replacing the engine or to refund its price. The complainant contended that the above act of the opposite party is deficiency in service. Exbt. A3, legal notice dated 10-12-2013 issued by Adv. C.S. Ajith Prakash to the opposite parties under the instruction from the complainant goes to show that the complainant raised the very same issues in this Consumer Complaint. Exbt. A4 postal receipt of the Exbt. A3 legal notice. Exbt.A5 and A6 reply notices sent by the 2nd and 1st opposite parties for Exbt. A3 legal notice. As per Exbt. A5 and A6 opposite parties replied that the disputed engine sold to the complainant on 07-03 -2013 and the company provides only 6 months warranty for the same. Further the opposite parties stated that the complainant had made modification to the engine for using it his fishing boat. The clause number 2 of the terms and conditions of warranty clearly states that if the engine is modified extra, the warranty is not applicable. Hence the complainant is not eligible to get benefits of the warranty. The executive of the 2nd opposite party had examined the disputed engine and he could not find any defects as alleged by the complainant. Exbt. B1, letter of authority issued by president and CEO of the 1st opposite party shows that Mr. O.R. Ravi, who is the employee of the 1st opposite party authorized to appear and give evidence before Consumer Foras every where in Kerala State. Exbt. B2, certificate shows that 1st opposite party given Authorized dealership for sale, service and spares to the 2nd opposite party. Exbt. B3 warranty card of another same model of engine. In page 21 of the warranty card clause 2.2 states that “Failures resulting from unauthorized modifications or repairs, improper mounting of engines” . The 1st and 3rd opposite parties submitted that the company’s technical experts inspected the disputed engine and found that engine was working well. The technical experts also noticed that the above said engine had been modified by the complainant by cutting the crankshaft, PTO end and taking the drive from the camshaft side drilling a hole on the cover assembly crank case. Exbt. B4 series photographs and Exbt. B5 CD shows that some modifications were made in the engine.
7. The complainant alleged that the disputed engine was defective right from the beginning on most of the occasions when the complainant gone for fishing he was returned with bare hands as the engine failed to perform in waters and the complainant returned to the shore by using oars manually. In all respects except for the averments made, the complainant failed to prove the above said contentions. The complainant did not produce any evidence before this Forum to show that he had highlighted the above defects of the disputed engine to the opposite parties. Exbts. A1 to A6 are not substantial evidences to prove the case of the complainant. More over the complainant miserably failed to appoint an expert commissioner to inspect the disputed engine and produce the report of the expert commissioner before this Forum. In the absence of any expert evidence or opinion we discard all allegations made by the complaint. The opposite party stated in their version and proof affidavit that the complainant made some modifications in the engine without their consent. Therefore, as per the clause 2.2. of the warranty conditions the complainant is not eligible for any free service. However, the complainant is entitled to paid service.
8. In the above facts and circumstances, we find that the complainant had failed to prove any manufacturing defects in the disputed engine or any deficiency in service and unfair trade practice on the part of the opposite parties. Therefore the complaint is found liable to be dismissed. Hence the complaint is dismissed.
9. Issue Nos. 3 & 4. Having found issue numbers 1 and 2 against the complainant, we are not considering issue numbers 3 and 4.
10. In the result, complaint stands dismissed. No costs.
Pronounced in the open Forum on this the 31st day of January 2017
Sd/-
Sheen Jose, Member.
Sd/-
Cherian K. Kuriakose, President. Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
APPENDIX
Complainants Exhibits
Exbt. A1 : Invoice dt. 07-03-2013
A2 : Receipt dt. 19-11-2013
A3 : Lawyer notice dt. 10-12-2013
A4 : Postal receipt
A5 : Reply notice dt. 31-12-2013
A6 : Letter dt. 16-12-2013
Opposite party's Exhibits:
Exbt. B1 : Letter of authority
B2 : True copy of certificate
B3 : Warranty card
B4 series : Photos
B5 : C.D.
Depositions:
PW1 : Vasudevan M.A.,
DW1 : O.R. Ravi
Copy of order despatached on:
By Post: By Hand:
