12.08.08<br /> Sri.K.Gopalan, President<br /> <br /> <br /> This complaint is filed under section12 of the consumer protection Act for getting an order directing the opposite party to replace the vehicle by new one or to compensate the complainant by paying the purchase price and to pay a sum, of Rs.14,500/- as damages with cost of this proceedings.<br /> The case of the complainant in brief are as follows: The complainant had purchased from 2nd opposite party on 26.11.01 a kinetic challenger Bike of silver co lour bearing chassis number CH.50029983, Engine N.50032087 manufactured by the 1st opposite party. Impressed by the advertisement and representation of 2nd opposite party that the said vehicle has a high performance in style, mileage pick up and working that the complainant had purchased the vehicle. But the vehicle purchased was suffered lot of troubles. Within a couple of days complainant noticed sound from engine. There is no sufficient pickup and the vehicle cannot be speed up even to a speed of 45 kmph. There is loud noise when changing the gear. There is oil leak on the engine side and the chassis makes a loud noise while riding and getting only poor mileage. It was widely advertised that the vehicle will get mileage of 70 kmph on road. But complainant is getting only30kmph. The vehicle is covered under extended warranty of 2 years from the date of purchase. Even though the complainant reported these defects within few weeks before 2nd opposite party the grievances were not redressed. Complainant issued a lawyer notice on 12.8.2003 to both opposite parties. Opposite partied did not respond to notice. The complainant suffered monetary loss and alsomental pain. Complainant quantifies his loss as Rs.14, 500/-. He was compelled to take taxi for his personal use and thereby carried a loss of an amount of Rs.4, 500/-. He quantifies Rs.10, 000/- as damages for mental pain and sufferings. Complainant has used the vehicle for his personal use only. Since the vehicle is suffered from manufacturing defects, the same cannot be repaired but only to replace with new one. Hence this complaint.<br /> Opposite parties’ field version jointly denying the allegations and averments. The contentions of opposite parties in brief are as follows: Opposite party admits the purchase of the vehicle. They specifically deny all the other allegations since it is false. The complainant has not produced the vehicle before 2nd opposite party for free service or for any paid service. It is the duty of the complainant to produces the vehicle before 2nd opposite party for service immediately after purchase. It is a written condition specified in the owner’s manual. As per the Owners Manual the warranty becomes void if the service is not availed in stipulated time. The complainant never availed the services till the date of version. Complainant is keeping the vehicle in his custody without availing the service. It is violation of the condition specified in the owner’s manual. This complaint is only to harass the opposite parties. The opposite parties admitted the receipt of the lawyer notices. They could not send reply since they are not available at that time in their station. The opposite parties also submit that the complainant has not sustained any loss. If at all any repairing work is needed he can very well produce the vehicle before the 2nd opposite party and get it repaired. Complainant has not come before the Forum with clean hands.<br /> On the above pleadings the following issues have taken for consideration:<br /> 1. Whether there is any deficiency on the part of the opposite parties?<br /> 2. Whether the complainant is entitled for the relief as prayed in the complaint?<br /> 3. Relief and cost.<br /> The evidence consists of the oral evidence adduced by PW1, DW1 and documents Exts.A1 to A3, B1 and C1.<br /> Admittedly complainant purchased a Kinetic Challenger Bike from the 2nd opposite party which is manufactured by 1st opposite party. Vehicle has been purchased on 26.11.2001. There is 2 years warranty for the vehicle.<br /> The allegation of the complainant with respect to the defects of the vehicle are: No sufficient pick up, disturbing sound from engine, Oil leakage, Noise from chassis, poor mileage etc. Lawyer notice was issued on 12.8.03. There was no response on the part of the opposite party. The explanation given by DW1 in cross examination is thus “Reply<br /> <br /> Complainant has the case that within a couple of day’s defects of the vehicle was noticed. Pleadings and affidavit of the complainant raise clear allegations that the bike was having so many troubles even in the very beginning period of the purchase. The vehicle was purchased on 26.11.2001. It is an admitted case that there are two years warrany . PW1 is the power of attorney holder of the complainant. Though he has stated that he knows everything with regard to the vehicle he does not know the price of the vehicle. In cross examination his answer is” “<br /> It is relevant in this case to examine what are the repairs that have been done to the vehicle during the warranty period. In cross examination PW1 stated “warranty period service<br /> <br /> He has also stated in re-examination that “warranty period service <br /> <br /> .<br /> Complainant has stated in complaint thus “However to the complainants utter dismay the said vehicle purchased was suffering from a lot of troubles. Within a couple of days of purchase the complainant noticed a disturbing sound from the engine. There is no sufficient pick up and the vehicle cannot be speed up even to a speed of 45 kmph. It cannot be ridden smoothly and there is loud noise when changing the gear. There is oil leak on the engine side and the chassis makes a loud noise while riding. The shock absorber of the vehicle is very weak and mileage is very poor” These allegations repeated in his affidavit in lieu of chief also. But nowhere in the complaint or in affidavit has he stated whether the vehicle has taken to 2nd opposite party for repair. Opposite party has the case that it is the duty cast up on the complainant to produce the vehicle before the 2nd opposite party for services immediately after purchase as it is a written condition specified in the Owners Manual. It can be seen that the warranty terms and conditions insist the consumers to produce the vehicle to Authorized Service outlet. Terms and conditions says thus: Customer must present the Motor cycle along with this Manual to any of the Authorized service outlet, enabling them to verify and furnish proper details such as Engine No, chassis No, date of purchase, etc. on warranty claims. All such parts failed due to manufacturing defect, will either be repaired or replaced by kinetic dealer”. In the light of the allegation that within a couple of days complainant noticed sound from Engine together, with the above terms it is a very relevant question whether the complainant presented the vehicle before 2nd opposite party for necessary repairs within the warranty period. Complainant stated nowhere in complaint he has presented the vehicle to 2nd opposite party for repair. While denying in the affidavit complainant has not stated when he was presented vehicle before the 2nd opposite party. He has not produced owner’s Manual. PW1 stated in his affidavit thus:<br /> <br /> <br /> <br /> <br /> <br /> <br /> Presentation of the vehicle with the opposite party has not mentioned anywhere between the period of two years.<br /> Defects found within a couple of days of purchase on 22.11.01 and lawyer notice sent on 12.8.03. What all happened to the vehicle which was defaulted within few days of purchase from 22.11.01 to 12.8.03. No satisfactory explanations given by the complainant with respect to the service of the vehicle within the warranty period. According to the allegation of complainant there are number of defects. Thus the history of vehicle during this period of warranty is a relevant fact to decide the case of deficiency of service. It is also important to note that the warranty becomes void under certain cases in accordance with the terms and conditions of warranty. “Service not availed in stipulated time” is an item under which the warranty becomes void. Complainant has not produced the Owners Manual to prove the state of affairs of the vehicle during the warranty period. <br /> In cross examination PW1 answered “company <br /> Service warranty cancel <br /> He also stated thus:<br /> <br /> <br /> He further stated in re-examination thus:” warranty period <br /> <br /> Owner’s manual produce . But complainant did not produce the owner’s manual. Opposite party has filed petition before the Forum to direct the complainant to produce the Owners manual. Forum directed the complainant to produce the owner’s manual but he has filed affidavit stating that the manual issued to him was not in his possession but in the possession of opposite party itself. But in evidence stage during reexamination he deposed “warranty period <br /> <br /> Owners manual produce “. This shows that owner’s manual is with the complainant but he did not produce it before the Forum. What can be presented from non-production of the same is nothing but complainant will not be able to prove that the respective service has been availed in stipulated time from 2nd opposite party. <br /> Ext. C1, Commission report reveals that the vehicle has defects. But Ext.C1 is not sufficient to prove that the service availed from 2nd opposite party within the stipulated time. Non production of Owners manual is a serious omission on the part of complainant which makes failure to establish clear deficiency in service on the part of opposite parties. The vehicles availed within the stipulated time from 2nd opposite party is to be satisfactorily explained to establish deficiency of service upon the opposite parties. Complainant has not produced any document to show that the vehicle was presented before the 2nd opposite party for service. Hence we are of the opinion that the complainant is not entitled for an order to replace the vehicle by a new one as prayed in the complaint.<br /> Ext.C1 the commission report proves that vehicle at the time of commissioner’s inspection was in a defective position. The opposite party was not taken initiative to produce service register. More over the opposite parties failed to reply the lawyer notice sent by the complainant. Such an attitude is not expected from a well reputed establishment. We are not hesitating to say that it is a deficiency on the part of the opposite party. It is therefore we are of opinion that the opposite party is liable to repair the vehicle free of cost. Hence issue Nos.1 to 3 is found partly favorable to complainant.<br /> In the result, the complaint is allowed partly directing the opposite parties to repair the vehicle on production of the same before 2nd opposite party. The repair work shall be carried out free of cost within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order as per the provisions of Consumer Protection Act.<br /> Sd/- Sd/- Sd/-<br /> President Member Member <br /> APPENDIX<br /> Exhibits for the complainant<br /> A1.Copy of the lawyer notice sent to Ops dt.12.8.03.<br /> A2 & A3.Acknowledgement cards<br /> <br /> Exhibits for the opposite parties<br /> B1. Owner’s manual of the vehicle<br /> <br /> Exhibits for the court<br /> C1.Commission report<br /> Witness examined for the complainant<br /> PW1.M.Ashraf<br /> Witness examined for the opposite parties<br /> DW1Muralidharan /forwarded by order/<br /> <br /> Senior Superintendent<br /> <br /> Consumer Disputes Redressal Forum, Kannur <br />