Kinetic

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edited January 2010 in Automobile
Complaint No. 59/2001

Shri Nilesh Pandit,
O/a. 111-112, Ashish Building,
Margao Salcete Goa. ….. Complainant

V/s.

1.[FONT=&quot] [/FONT]M/s. Ashvek Motors,
Near Old Market Circle,
Margao Goa.

2.[FONT=&quot] [/FONT]M/s. Kinetic Engineering Ltd.,
D-1, Block, Plot No. 18/2,
MIDC, Pune 411 019. ….. Opposite Parties

Advocate Shri M.N. Dessai appears for the Complainant

Dated: 24/03/2009
O R D E R
(Per Smt. Kala P. Dalal, Member)
By this Order we shall dispose of the Complaint dated 01.08.2001 filed by the Complainant herein against the Opposite Parties (O.Ps.) herein U/s. 12 of the Consumer Protection Act, 1986.

Brief facts of the case are as follows:

[FONT=&quot] [/FONT]I.[FONT=&quot] [/FONT]The Complainant who is a businessman has purchased a “Kinetic Style” scooter from the O.P. No.1 who is the authorized dealer and O.P. No.2 is the manufacturer of the same.

…2/-

[FONT=&quot] [/FONT]II.[FONT=&quot] [/FONT]The Complainant at the time of taking delivery of the said vehicle noticed some scratches on the front panel and when the same was brought to the notice of the staff of the O.P. No.1 they replaced the said panel before giving delivery.

[FONT=&quot] [/FONT]III.[FONT=&quot] [/FONT]The Complainant after replacement of the said panel, while taking the said vehicle to his house, noticed that the steering of the said vehicle was slightly hard to move, and the Complainant on the same day brought to the notice of the O.P. No.1 and the mechanical staff of the O.P. No.1 found some problem with the ball bearing and fork due to misalignment and the O.P. No.1 repaired the same and delivered the vehicle on 05.04.2000 at 2.30 p.m.

[FONT=&quot] [/FONT]IV.[FONT=&quot] [/FONT]The Complainant again on the very next day noticed that the rear brakes of the said scooter were not functioning and after having realized that the vehicle delivered to the Complainant was defective the O.P. No.1 replaced the said scooter with a new scooter on 06.04.2000. The Complainant even noticed some defects in the new scooter also and the technical staff of the .P. No.1 told the Complainant to consult one Mr. Nadaf who is a technical consultant of O.P. No.2

[FONT=&quot] [/FONT]V.[FONT=&quot] [/FONT]The Complainant further says that even after the repairs of the said replaced scooter at the showroom of the O.P. No.1 there were no results and the Complainant took the possession of the said scooter on the very same day without being repaired. That on 07.09.2000 the scooter completely stopped when the Complainant was on his way and the Complainant again brought the scooter to the O.P. No.1

[FONT=&quot] [/FONT]VI.[FONT=&quot] [/FONT]That inspite of several visits to the O.P. No.1 the defect in the said scooter was not rectified and the scooter continued giving constant trouble.
…3/-
[FONT=&quot] [/FONT]VII.[FONT=&quot] [/FONT]That a legal notice dated 09.02.2001 addressed to the O.P. No.1 was also served by the Complainant bringing to the notice of the O.P. about the defects in the said scooter and demanding the refund of the cost of scooter along with the costs. Though the O.P. have received the notice, failed to comply with the requirements of the notice. Based on the said cause of action the Complainant has filed the present complaint with the following reliefs:

a)[FONT=&quot] [/FONT]The O.Ps be directed to pay jointly and/or severally a sum of Rs. 46,500/- (Rupees forty six thousand five hundred only) as compensation to the Complainant with interest thereon at the rate of 18% per annum from the date of filing the complaint till recovery of the entire amount.
b)[FONT=&quot] [/FONT]Any other Order that this Hon’ble Court deems fit and proper.

Upon the notices issued to the O.Ps by this Forum the O.Ps filed their written version inter-alia opposing the case of the Complainant on the following amongst other grounds:

1.[FONT=&quot] [/FONT]The O.Ps state that the so-called defects mentioned in the complaint are in the nature of minor defects and therefore cannot be said that the two wheeler supplied was defective.

2.[FONT=&quot] [/FONT]The O.Ps further state that the said vehicle has allegedly met with an accident due to rash and negligent driving of the Complainant and as such the Complainant is not entitled for any refund of the price as claimed. Moreover the warranty in respect of the said vehicle has been already expired before the filing of this complaint, due to which the O.Ps are not liable to give any free services.

The Complainant thereafter filed his Affidavit-in-evidence on 27.12.2001 inter-alia adopting his case as setout by him in his

…4/-
complaint. The O.P. No.1 through their Managing Director and O.P. No.2 through their Dy. Manager(Service) at Pune filed their respective Affidavit-in-evidence inter-alia confirming their stand as set out in their written versions. The Complainant filed his written submission on 19.07.2002. The O.Ps also filed their written arguments on 23.08.2002.

On perusal of the documents on record, the respective Affidavits-in-evidence of the concerned parties, submissions, written and oral arguments made by the parties, we now proceed to record our findings as would appear hereinbelow:

1)[FONT=&quot] [/FONT]It is observed that issues arises out of the facts and circumstances of the case is as to whether O.Ps here can be said to be directed to replace the said scooter as claimed in the present complaint. The true questions are whether the Complainant has succeeded in proving with cogent evidence, the alleged acts of “deficiency-in-service” on the part of O.Ps within the meaning of Consumer Protection Act, 1986. Secondly whether the Complainant proves that the vehicle purchased through the O.P. No.2 is not road worthy because of inherent manufacturing defects in the vehicle.

2)[FONT=&quot] [/FONT]It is seen from the materials placed on record that even the replaced vehicle was required to be taken to the O.P. No.1 number of times. Both the parties have not examined any expert witness in support of their case. The Complainant has produced on record a letter dated 15.05.2000 received from the O.P. No.2 and a letter from Autoways, Margao dated 29.09.2000. Both these letters itself shows that there was some defect in the said replaced scooter which forced them to give extended warranty.

3)[FONT=&quot] [/FONT]The Complainant in his Affidavit-in-evidence at para no. 23 has categorically stated that “I say that the scooter purchased by me is defective suffering from following defects:
[FONT=&quot] [/FONT]i.[FONT=&quot] [/FONT]Petrol tank has crack petrol leakage
[FONT=&quot] [/FONT]ii.[FONT=&quot] [/FONT]Fuel gauge is not working

…5/-

[FONT=&quot] [/FONT]iii.[FONT=&quot] [/FONT]Faulty front shock obserbers
[FONT=&quot] [/FONT]iv.[FONT=&quot] [/FONT]No pick-up
[FONT=&quot] [/FONT]v.[FONT=&quot] [/FONT]Starting problem
[FONT=&quot] [/FONT]vi.[FONT=&quot] [/FONT]Vibration when runs at speed of 40-50 kms Phr.etc.”


4)[FONT=&quot] [/FONT]In reply-cum-Affidavit-in-evidence the O.P. No.1 has merely denied these allegation by stating that “I say that the grievances of the Complainant regarding knocking sound were attended by Shri M.P. Nadaf, Service Engineer of the O.P. No.2 on 21.05.2000 and the Complainant has thereafter taken the delivery of the two wheeler from the O.P. No.1 and therefore the contention of the Complainant that grievances/complaints in respect of the two wheeler were not attended at all is denied as false.” The said O.P. has failed to examine the said Service Engineer Shri M.P.Nadaf. We are also of the opinion that the contention of the O.P. that the Complaint is filed with some ulterior motive to harass the O.Ps and to obtain unlawful gain is not acceptable to us.

All this discussion takes us to the only conclusion that the Complainant has justified in promptly approaching the O.Ps in respect of the defects in the said vehicle and the O.P.s could not cure the said defects to the satisfaction of the Complainant.

In view of our above observation based on the perusal of the records of the case we do arrive at the findings that the Complainant in this case has reasonably made out a case that the vehicle supplied by the O.P.s is defective and despite several repairs has failed to cure the said defects which amounts to ‘deficiency-in-service’ as defined under the Consumer Protection Act, 1986.

Therefore we pass the following Order:
….6/-
O R D E R

It is hereby Ordered that the present Complaint dated 01.08.2001 filed by the Complainant herein against the O.Ps herein, hereby stands allowed. Accordingly the O.Ps are hereby directed to pay to the Complainant jointly and severally a sum of Rs. 46,500/- (Rupees forty six thousand five hundred only) being the cost of the said vehicle with interest at the rate of 8% per annum from the date of filing the complaint till the recovery of the entire amount. The O.Ps shall also pay to the Complainant the amount of Rs. 500/- (Rupees five hundred only) towards the cost. The aforesaid directions shall be complied with by the O.Ps within 30 days from the date of this Order.

Comments

  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Mr. Mahendra Madanlal Saraf,

    R/at : 891, Budhwar Peth, Opp. S.B.I.,

    Pune – 411 002. … COMPLAINANT


    : VERSUS :

    1. Gurusales Malik Ram Chambers,

    Pune-Satara Road, Dhankawadi,

    Pune – 411 043.


    2. Manager,

    Kinetic Motor Co.Ltd.,

    Head Office, D-1 Block,

    Plot No. 18/2, Chinchwad,

    Pune – 411 002. … OPPOSITE PARTIES


    This is a complaint, alleging deficiency in service on the part of the dealer and the manufacturer of Kinetic Nova. The facts lie in a very narrow compass.


    [2] The Complainant had purchased the aforesaid Kinetic Nova hereinafter referred to as Bike on 20/10/2005. He drove the same for about 77 kilometers. On 2/11/2005, he had noticed that there were certain problems. On that day, he gave Bike for the repairs. Again, the Complainant faced the same old problems on or about 10/11/2005. The vehicle was returned by the Opposite Party No.1 and delivery thereof was collected by the Complainant after about 4 days.


    [3] The Complainant gave the said Bike for first servicing on 3/12/2005. According to the Complainant, there were the following problems.

    · The bike was consuming more petrol than assured by the Company.

    · There was a starting problem.

    · There was engine vibration.

    [4] For all these reasons, the Complainant gave the bike for repairs on 3/12/2005 and had collected the delivery thereof but he found that the problems had not been solved by the Opposite Parties. The Complainant again gave the bike for the repairs on 20/12/2005 and had also carried out the usual servicing on 3/12/2005, 19/4/2006 and 3/6/2006. It appears that the seat of the bike was changed at the time of the last servicing on 3/6/2006. The changed seat was giving further problem to the Complainant. On account of the gerks, the seat was going down and was coming up. That gave a backache problem to the Complainant. The Complainant showed the said bike to the Opposite Party No.1. He had collected the contact number of the engineer from the Opposite Party No.2.

    The later had advised for servicing and the change of tubes. The advice was complied with by the Complainant. The main problem was not solved. On 10/5/2007, the Complainant had sent letter to the Opposite Party No.2. The Complainant was asked to repair his bike before the Service Engineer Mr. Joshi. On 22/5/2007, the bike was given for the repairs and was collected by the Complainant on or about 31/5/2007. On that date, the trial was taken and the Complainant found that the problems were still there. The Complainant issued a notice through his Advocate on 18/6/2007. The bike was entrusted in the custody of the Opposite Parties on 22/5/2007. Since then, the bike in question is in the custody of the Opposite Parties. The Complainant is unwilling to take the delivery contending inter-alia that there are number of manufacturing defects to the bike. The Complainant therefore prays that he be paid certain amount of compensation for mental paid, agony etc. and the bike in question be also replaced.



    [5] The Opposite Party No. 1 was duly served with the notice, he did not appear before the Forum. The complaint proceeded ex-parte as against the Opposite Party No.1.



    [6] The Opposite Party No.2 has however filed its affidavit and the written version. Most of the allegations have been denied in toto. The sum and substance of the contention of the Opposite Party No. 2 is that all these defects pointed out by the Complainant are not manufacturing defect. The Complainant is therefore not entitled to any relief.



    [7] The aforesaid complaint was initially heard sometime in the month of October-November-2008. Realising that the Complainant is unwilling to take the custody of the Bike from the Opposite Party No.2, the representative of the Opposite Party No.2 was directed to bring the said Bike before the Forum for the purpose of inspection by the Complainant. Accordingly, the Bike was brought and the inspection thereof was taken by the Complainant on 11/11/2008. Certain problems were noticed by the Complainant.

    The list thereof is duly prepared by the Complainant and the copy thereof was submitted to the representative of the Opposite Party No.2. The Opposite Party No.2 was then directed to rectify those defects by carrying out the necessary repairs. It is the contention of the Opposite Party No.2 that these defects had been removed and that the Bike in question is roadworthy. The said Bike was brought before the Forum for the purpose of inspection of the Forum. It was on 18/11/2008, unfortunately, on this day, neither the Complainant had prepared the list of the repairs carried out by the Opposite Party nor the same is submitted by the representative of the Opposite Party No.2 to the Complainant. Thus, there is a word against word as far as the incident dtd.18/11/2008. The contention of the Complainant is that the defects are not yet removed. The Opposite Party No.2 submits that they are duly rectified and repaired.



    [8] We shall in any case, are required to ascertain if the alleged defects are the manufacturing defect or otherwise. The complaint is not happily drafted. The contention on behalf of the Complainant is that the said complaint was filed by the Complainant on his own. That time, legal assistance was not taken by the Complainant. The fact remains that the factual aspects have come on the record with reasonable certainty. We have gone through the contents of the complaint. By and large, the aforesaid three defects namely, starting problem, vibration in the engine and average petrol consumption appears to be the main problems alleged by the Complainant. Even if all these three are examined individually, or collectively, it will not indicate that any of these problems is a manufacturing problem or an inherent manufacturing problem. These are problems which are faced by new Bike at all possible times.



    [9] In respect of the excessive consumption of the petrol is concerned, our attention is drawn to the brochure produced by the Complainant. It was pointed out that in the said brochure, the expression “mileage expert” is given which has attracted customers to the Company. The fact however remains that in the said brochure, the exact consumption of the petrol vis-s-vis, the mileage is not quoted by the Company. There is no question of attracting the perspective customers by indulging in an unfair trade practice. Now the expression “mileage expert” can be interpreted as per the convenience of each customer. There cannot be any hard and fast rule. In any case, therefore, we find that all these three defects that are pointed out by the Complainant even individually will not go to show that they are inherent manufacturing defect. Then, besides, making the oral allegation coupled with an affidavit, there is no evidence of an expert in this regard. It is therefore difficult to accept the contention of the Complainant and to act thereupon.



    [10] The last aspect is about the defect in the seat. Even according to the Complainant, the said seat was changed in the year 2006, the custody of the Bike was given to the Opposite Party No.2 on 22/5/2007. In other words, for a period of (11) months, the Bike in question was used by the Complainant. During that period even according to the Complainant, the Bike was driven for about 4500 kilometers or about. Out of which, five hundred kilometers had been driven by the mechanic of the Opposite Party No.1. If that is excluded, we do not find that there is any nexus between defective seat in one hand and the backache of the Complainant and other family members at the other. The reliance is placed on the certain Certificate issued by the Doctor showing that such backache can arise on account of defective seat. The same is the opinion of Doctor. If all the aforesaid circumstances are appreciated, we find that the Certificate of the Doctor loses its significance.



    [11] In the result, we are inclined to hold that in the absence of manufacturing defect to the Bike, it is not possible to entertain the present complaint. The same deserves to be dismissed, which is accordingly dismissed with no order as to costs.
  • adv.singhadv.singh Senior Member
    edited January 2010
    Appeal no. FA-7/399

    (Appeal against the order dated 27.04.2007 passed by District Forum-III, in complaint case no.686/2005)

    Rajni Thakur

    3604, Durga Mohalla,

    Baljeet Nagar,

    New Delhi-08

    Presently at :

    WT-78, Gali no. 21 A,

    Vishwakarma Marg,

    Baljeet Nagar,

    New Delhi-08

    …..Appellant/Complainant.

    through

    Sh. Vikram Singh, Advocate


    VS
    1. Prince Auto (Authorised Dealer)

    9-4, Amar Colony,

    Main Rohtak Road,

    Nangoli,

    Delhi-41.


    Branch office,

    V.O. Metro Pole no. 225,

    2187, Chauhan Bhawan,

    West Patel Nagar, New Delhi.

    2. M/s Kinetic Motor Company Limited

    D-1, Block , Plot no. 18/2, Chindhwad,

    Pune 411019.

    ……Respondents/OPs

    CORAM

    Justice Barkat Ali Zaidi, President.

    M.L. Sahni, Member



    1. Whether reporters of local newspaper be allowed to see the

    judgment?



    2. To be referred to the reporter or not?





    M.L. SAHNI, MEMBER



    1. This appeal by the complainant (hereinafter referred to as the Appellant) has been filed against order dated 27.04.2007, passed by the District Forum No. III, Janakpuri, New Delhi, vide which allowing the complaint of the Appellant, Forum has directed the Opposite Party (hereinafter referred to as the Respondent) to deliver the Kinetic Zing Scooter purchased by the Appellant, after due repairs in perfect operational condition with a warranty for the period allowed at the time of sale and also pay compensation of Rs. 1000/-.



    2. Brief facts of the case are that the Appellant filed a complaint Registered as C.C. No. 686/05, before the District Forum alleging that , she purchased one Kinetic Zing Scooter from respondents on installments after making down payment. The said vehicle was delivered at the residence of the Appellant by the opposite parties 10.10.2005. When she tried to start, the vehicle it did not start. The vehicle started with troubles. The appellant complained to the respondents about the manufacturing defects in the said vehicle and took the said scooty to the show-room of the respondents. After much efforts , the engineering staff of the respondents also could not start the said vehicle, either through kick or through self-start. After it started and was brought by appellant to her residence, it again gave the same problem. Ultimately the appellant, took the said scooter in an auto rickshaw and left the same at the show-room of the respondents on 20.10.2005. Thereafter, the appellant had approached the respondents several times to get the said manufacturing defects removed but the respondents did not pay any attention and the vehicle had been lying with the respondents since 20.10.2005.

    3. The respondents, appeared in response to the notice of the complaint and filed reply admitting that Kinetic Zing Scooter bearing Regn. No. 4S AD 0623 was sold by OP-1 to the complainant on 11.10.2005. They alleged that it was accepted by the Appellant/ complainant after having satisfied herself during pre-delivery inspection (PDI) conducted in the presence of the Appellant; that, the scooter was free from any defect which was brand new received from OP-2. It was claimed that the vehicle did not suffer from any manufacturing defect and that in case the Appellant/complainant so alleges, the vehicle could be got examined from the appropriate laboratory to obtain the report of Independent Competent Technical Expert of Govt. Lab. i.e. ARAI ( Automotive Research Association of India, Pune). It was stated that though the vehicle was free from any defect, yet the Respondents were ready to repair/replace the parts , if so required.

    4. After hearing both the parties and considering the evidence filed by way of respective affidavit by them, the Ld. District Forum passed the impugned order.

    5. Dissatisfied with this order, present appeal has been preferred , praying for setting aside the impugned order and allowing the complaint, whereby the Appellant had asked for refund of the cost of the scooter paid by the Appellant.

    6. We have heard the Ld. Counsel of the parties and have carefully examined the impugned order, which is well-reasoned based on the material produced before the Ld. District Forum. We fully agree with the findings of the Ld. District Forum that the vehicle manufactured in March, 2005 and purchased in October, 2005, by no means can be dubbed as “Old-vehicle”, as alleged by the Appellant. Her allegation that she had consented for the vehicle other than the one supplied to her cannot be believed, when she, admittedly states that its colour was the same she had opted to buy ,simply because it was not manufactured in October, 2005. It cannot be expected that the vehicle purchased on 11.10.2005, could possibly be manufactured within 10 days of its reaching the dealer’s show-room simultaneous to its manufacturing. Process of manufacturing certainly requires some time.

    7. As found by the Ld. District Forum, the only grievance of the Appellant against the vehicle in question was that it had starting troubles at the time of its delivery, which could not be termed as manufacturing defect. By no stretch of reasoning, these assertions, even if assumed to be true can entitle the appellant for the refund of the cost of vehicle, in view of the law as discussed by the Ld. Forum in its order impugned by the Appellant.

    8. However, considering the facts borne on the record that the Appellant left the scooter with the Respondent just after 10 days of the purchase i.e. 20.10.2005 and is still lying with the Respondent , the grievance of Appellant can be redressed by replacement of the vehicle , to which extent the impugned order needs modification.

    9. Hence , partly allowing the appeal we direct the Respondent to give the Appellant any Scooter of latest model of Appellants liking subject to Appellant’s paying the difference of cost already paid and the present cost of New vehicle. In that case, she shall be entitled to no compensation. If the Appellant still feels dissatisfied, the impugned order will remain in force as it is without above modification and the appeal shall be deemed as dismissed.

    10. A copy of this order as per statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum . The file thereafter be consigned to Record Room.
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