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Judgment
THE opposite parties are the appellants. The appeal has been filed against the order dated 24.10.2003 in C.D. No. 89/2003 on the file of District Forum -II, Hyderabad under Section 15 of the Consumer Protection Act.
THE facts leading to filing this appeal as stated in the complaint are briefly narrated hereunder. The complainant purchased Hero Honda Splender with chassis No. 02B20F 43850 and Engine No. 02B18E 43191 model 2002 on 5.3.2002 by paying the entire consideration of Rs. 47,730 including registration. After the vehicle was taken for delivery it is realized that the vehicle suffered from inherent problems comprising starting trouble, low mileage, hard gears, improper focus lights, vibration at speed exceeding 55 kms. etc. The accessories provided were also of poor quality. The bike while running was pulling to right side. As the vehicle did not give the satisfactory performance, the defects were brought to the notice of opposite party No. 2. The opposite party No. 2 directed the complainant to bring the vehicle for service and rectified the only problem of starting trouble and beak of the head light. The vehicle was delivered as if defects pointed by the complainant were rectified. Even after the delivery the vehicle did not provide relief to the complainant. The defect of vehicle pulling to right side was not rectified even after first servicing resulting in severe shoulder pains and neck pain. The vehicle was again taken to the workshop of the opposite party to rectify the defect of pulling towards the right side which was attended by the opposite party No. 3 under job card No. 6305 dated 6.6.2002. Unfortunately even after delivery of the vehicle it was realized that the said defect was not rectified. Therefore, the vehicle was again sent for repairs on 4.7.2002. The opposite party Nos. 2 and 3 detained the vehicle for a period of 43 days. When the vehicle was taken for trial it was observed that the major defect of the vehicle i.e., pulling to right side was not rectified. This was tested by the opposite party No. 3 and confirmed. Therefore, the opposite party kept the vehicle till 15.7.2002. On 15.7.2002 the complainant sought the delivery of the vehicle. The opposite party No. 3 confirmed that the vehicle was having manufacturing defect and the same will be rectified by a service engineer coming from Delhi deputed by opposite party No. 1 and the complainant was supplied with a standby vehicle for his use. Inspite of repeated requests the vehicle. was not delivered and the opposite parties 2 and 3 demanded back the standby vehicle. The complainant got issued notice on 25.7.2002 which was replied by the opposite parties on 31.7.2002. The complainant issued a rejoinder to the notice on 8.8.2002. The opposite parties agreed to release the vehicle free from all the defects on 17.8.2002 and the vehicle was taken by the complainant under protest. But it was found that major defect in the vehicle i.e., pulling to right side is still persisting and the opposite party refused to take back the vehicle for any further repairs. The complainant finally got issued notice dated 29.8.2002. As there was no reply the complainant filed this complaint to direct the opposite party Nos. 1 to 3 to replace the vehicle or in alternative to refund back the cost of the vehicle i.e., Rs. 42,080 + Rs.
,000 TOWARDS the vehicle tax paid, TOWARDS insurance and accessories and totalling to Rs. 47,730 and to pay Rs. 100 daily from 4.7.2002 till the replacement of the vehicle, to pay Rs. 28,000 TOWARDS expenditure incurred, to pay Rs. 2 lakh and to pay Rs. 5,000 TOWARDS costs. 4. Even though notices were served on all the opposite parties only opposite party No. 3 filed counter contending that the complaint is not maintainable. There is neither any deficiency in service rendered nor adopted unfair trade practice while attending to the repairs of the motor cycle of the complainant. It is true that as per company specifications mileage of the said vehicle was prescribed between 70 to 80 kms. per litre, but the same is under ideal test conditions conducted by Automotive Research Association of India. Therefore, for obtaining specific mileage the complainant should have maintained required speed laden weight and other parameters. The vehicle was given for first servicing at 525 kms. on 7.4.2002 claiming starting trouble in the morning hours and mileage problem which were set right while servicing the vehicle. The opposite party cannot replace the vehicle of the complainant with a new vehicle since the complainant received the vehicle at the time of sale after thoroughly inspecting the same and having satisfied with its performance and plied upto 525 kms without any complaint. The complainant got the vehicle registered in his name and plied it for more than 8000 kms. The complainant did not bring the vehicle for second servicing between 2500 to 2800 kms. range as provided in the warranty card. For the first time the complainant brought the vehicle for first servicing on 7.4.2002. The complainant again brought the vehicle on 6.6.2002 complaining some head light problem and fork tight. On the said date a minor job card was issued and vehicle was checked and after effecting necessary repairs it was handed over to the complainant without charging anything. The complainant on 4.7.2002 brought the vehicle when the meter reading was at 3622 kms. It is only on this date the complainant made a specific complaint of right side pulling of the vehicle. The complainant has been using the vehicle quite negligently and there is no proper maintenance on his part. The complainant is not entitled for warranty facility. Though the vehicle was not brought for the second servicing opposite party No. 3 did second service and also attended the complaints and replaced the ''Cone and balls of bearing''. It is only on account of the rash riding of the vehicle in the ditches and on the speed breakers and not getting the vehicle serviced in time the balls of bearing got damaged. Though the servicing of the vehicle was completed on 4.7.2002 and the vehicle was kept ready for delivery, the complainant did not turn up to take back his vehicle. The pain and suffering and treatment and consumption of medicines etc., have no relation with driving of the vehicle. There is no manufacturing defect and even if there is some manufacturing defect as per the Section 13 ((THELAW)) Consumer Protection Act, the alleged defects in the vehicle should be determined by proper laboratory as specified under the Act and Clause (d) of the said Section requires the complainant to bear such cost for analysis of the alleged manufacturing defects by the appointed laboratory. There is no deficiency in service. The complaint is liable to be dismissed with costs.
ON the basis of pleadings, Exs. A1 to A25 documents filed by the complainant and Exs. B1 to B5 documents filed by the opposite party the District Forum felt that there are defects in the vehicle and deficiency in service on the part of the opposite parties and directed the opposite party Nos. 1 to 3 jointly and severally to replace the Hero Honda Splender with Chassis No. 02B20F of 43850 and Engine No. 02B18E 43191 model 2002 with a new one which is free of defects with a fresh warranty period of one year from the date of replacement and to pay compensation of Rs. 10,000 and costs of Rs. 1,000 to the complainant. Aggrieved by the said order the opposite party Nos. 1 to 3 preferred this appeal.
IT is contended by the appellants that the vehicle of the complainant does not have any manufacturing defect. It is mandatory for the District Forum to refer the vehicle to appropriate laboratory for determining the alleged manufacturing defects. The manufacturer is only bound to repair the said defect and cannot be asked to replace the vehicle. The order of the District Forum is liable to be set aside and appeal is to be allowed.
WE have gone through the entire record. The vehicle was purchased by the complainant on 5.3.2002. It is almost admitted by the opposite parties that the vehicle is having complaints of starting trouble, low mileage, hard gears, improper focus lights, and vehicle was pulling to the right side, the opposite party attended the complaints made by the complainant on 6.6.2002, 4.7.2002 and 15.7.2002. Repeatedly taking the vehicle for rectifying the defects and failed to rectify the defects is sufficient proof that there are manufacturing defects in the vehicle. The opposite party kept the vehicle from 4.7.2002 to 15.7.2002 and could not rectify the defects. The opposite party took the plea that the mandatory provision of 13 ((THELAW)) of Consumer Protection Act is not followed and the vehicle was not tested by any competent technician or at the laboratory. After filing the appeal the complainant was directed to collect the vehicle at the showroom of the opposite party and report to the Commisison on 8.11.2004. Prior to that this Commission directed the complainant on 3.8.2004 to deliver the vehicle to the opposite party listing out all the defects and the opposite party shall attend to those defects diligently within a period of 2 weeks and the opposite party shall report compliance on 13.9.2004. But the opposite party did not present on 13.9.2004, 27.9.2004 and 1.11.2004. Therefore, the complainant was directed on 1.11.2004 to collect the vehicle and report to this Commission on 8.11.2004. A memo was filed by the complainant on 8.11.2004 stating that as per the direction of this Commission on 1.11.2004 the respondent/complainant has received the subject vehicle AP. 9 AM. 3108 on the same day evening at 5.00 p.m. for testing and trial to check whether the defects complained were rectified or not. But to the utter dismay of the respondent/complainant except for the small increase in the mileage i.e., 53 to 58 kms. per litre as against the company claim of 75 kms. per litre the remaining defects especially the defective balance of the vehicle (right side pulling) is still not fully rectified and causing one side pains to the complainant/respondent herein. Accordingly the vehicle is thus tested and produced before this Court for passing appropriate orders. Even though the vehicle was kept for 45 days with the opposite party the defects were not rectified. Hence the District Forum took a view that there are manufacturing defects in the vehicle. The District Forum rightly directed the opposite party to replace the vehicle with a new one free of defects with fresh warranty period of one year from the date of replacement. As the complainant suffered a lot the District Forum awarded compensation of Rs. 10,000/ -. There are no merits in the appeal. There are no grounds to interfere with the order of the District Forum. In the result, appeal is dismissed. The order of the District Forum is confirmed. Appeal dismissed.