KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 140/2017
JUDGMENT DATED: 24.01.2023
(Against the Order in C.C. 376/2013 of CDRF, Malappuram)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SRI.T.S.P. MOOSATH : JUDICIAL MEMBER
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- Managing Partner, A.M. Honda, Dealer Code No. KL-130001, Dealer of Honda Motor Cycles, Manjeri.
- Honda Motor Cycle & Scooters India Pvt. Ltd., Plot No. 1 & 2, Sector 3, IMT Manesar, Gurgaon District, Hariyana-122 050.
(By Adv. R. Chandrapraveen)
Vs.
RESPONDENT:
Abdul Hakkeem, S/o Abdulla, Paravetty House, Nilambur P.O., Nilambur Taluk, Malappuram.
(By Adv. V. Ramkumar)
JUDGMENT
SRI.T.S.P. MOOSATH: JUDICIAL MEMBER
The opposite parties in C.C. No. 376/2013 of the Consumer Disputes Redressal Forum, Malappuram, (in short, the District Forum) have filed the appeal against the order passed by the District Forum by which the opposite parties were directed either to replace the vehicle sold to the complainant or to pay Rs. 59,400/-, the value of the vehicle purchased by the complainant, to pay Rs. 25,000/- as compensation and Rs. 5,000/- as costs to the complainant.
2. The averments contained in the complaint are in brief as follows:
The complainant purchased a motor cycle of 'Dream Yuga' model manufactured by the 2nd opposite party, from the 1st opposite party, the dealer of 2nd opposite party. The opposite parties had offered 24 months warranty period and they had declared in the owner’s manual that the vehicle would be repaired or the parts would be replaced free of charge at the authorized work shop within the warranty period. Though complainant purchased the vehicle on 16.01.2013 he started to use it on the next day that is on 17.01.2013. Before filing the complaint three services were conducted for the vehicle in the authorized service station of the 1st opposite party. At the time of second service complainant had informed the first opposite party that though the mileage offered by the company was 72 KMs per litre, he was not getting more than 40KMs per litre for this vehicle. Moreover, after running 2,500 KMs the chain and socket also were damaged. The shock absorber on the rear side was also damaged. Though first opposite party offered to rectify the damage, they did not rectify fully. Immediately after the second service the chain and shock absorber also were damaged again. When the first opposite party was intimated, he has suggested to bring the vehicle to the workshop at Perintalmanna it was also an authorized work shop and those defects were also pointed out to the workers in the workshop at Perintalmanna and they entered in the register also. There also all the defects were not cured fully. Even now complainant is using this defective vehicle and thereby causes great hardship to him. The opposite parties were giving pseudo offers and thereby cheating the complainant. Therefore, the opposite parties may be directed to replace the vehicle or to pay the price of new vehicle together with Rs.25,000/- as compensation to the complainant.
3. Opposite parties filed version raising the following contentions: The opposite parties have cured the defects of the vehicle as and when the complainant informed them. The defects of the vehicle noted in the complaint were caused by the careless and rash use of the vehicle by the complainant. The chain and socket were damaged since gear system was not used by complainant properly. When the vehicle is driven at high speed and jumped into a dip the shock absorber would be damaged. Thus, the experts of the showroom gave a study class to the complainant as to the use of the vehicle in a healthy manner. The mileage of the vehicle will increase gradually. But immediately after purchase of the vehicle complainant alleged that the required mileage is not available from the vehicle. Again, when the complainant took the vehicle to showroom with the complaint of another defect the complaint was made over to Perintalmanna branch and there the defects of the vehicle were cured. Again, the complainant approached the first opposite party with a complaint of steering kit and that defect was also cured by the first opposite party. There was no deficiency of service on the part of the opposite parties. Even after filing the complaint proper service was given to the complainant by the opposite parties. So, complaint is to be dismissed.
4. The complainant filed affidavit and documents produced by him were marked as Exts. A1 to A4. The opposite parties filed a joint affidavit, but no documents were produced by them.
5. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order. Aggrieved by the order passed by the District Forum the opposite parties have preferred this appeal.
6. Heard both sides. Perused the records.
7. The parties are referred according to their status/rank in the original complaint.
8. There is no dispute to the fact that on 16.01.2013 the complainant purchased a motor cycle of ‘Dream Yuga’ model manufactured by the 2nd opposite party from the 1st opposite party who is the dealer of 2nd opposite party. Ext. A2 is the copy of the receipt dated 16.01.2013 for Rs. 59,400/- issued by the opposite parties to the complainant. It is alleged by the complainant that the opposite parties offered 72 km mileage for one litre for the vehicle. But he is getting only 40 kms per litre. Ext. A1 brochure issued by the opposite parties reveals that they had declared and offered 72 kms mileage for one litre for the vehicle. The District forum found that the sale of the vehicle offering high mileage and when the customers are not getting the same that would be counted as unfair trade practice. The counsel for the appellant submitted that finding of the District Forum that the vehicle was not getting the mileage as offered by the appellants is without any basis. The mileage of the vehicle has not been tested. The complainant has not stated anything about the actual mileage of the vehicle. The said submission made by the counsel for the appellants is not correct. In the complaint itself, the complainant has stated that at no point of time he was getting the mileage of more than 40 kms per litre to his vehicle. The said statement of the complainant was not denied by the opposite parties. On the other hand, they practically admitted the said statement of the complainant. According to the opposite parties, higher mileage will be obtained gradually and the complainant made complaint regarding shortage of mileage of the vehicle within a short period of its use. The opposite parties asserted that the mileage will be increased gradually. The said justification is not accepted. There is no proper explanation for the opposite parties why the vehicle does not get the mileage offered by the company. As observed by the District Forum it is to be noted that the complainant had filed the complaint after the vehicle had run about 8000 kms. As observed by the District Forum, if the mileage of the vehicle is not increased even after 8000 kms, that can be considered as a manufacturing defect of the vehicle. In these circumstances it can be seen that the contention of the appellants that the finding of the District Forum that the vehicle was not getting the mileage offered by them is baseless, since the mileage of the vehicle was not tested, is not sustainable.
9. The specific allegation raised by the complainant is that the shock absorber on the rear side of the vehicle and the chain and socket were damaged when the vehicle covered 2500 kms. When those defects were shown to the 1st opposite party they offered to repair the same and return the vehicle after repair. But they did not rectify the defects fully. The same defects occurred again and those were rectified by the 1st opposite party. According to the complainant on the third occasion also those defects appeared and those were repaired by the 1st opposite party. But those defects were not rectified fully. According to the complainant the reason for the repeated occurrence of the defects was due to the manufacturing defect of the vehicle or due to the improper service of the vehicle. The allegation of the opposite parties is that those defects occurred to the vehicle since the complainant was using the vehicle in a negligent manner and the defects might have occurred due to the overload of heavy spare parts for his business and by its improper use. Admittedly, the defects occurred to the vehicle repeatedly even after repair of the same by the 1st opposite party. Apart from the bald assertion of the opposite parties no evidence is available to prove that the defects to the vehicle occurred due to the negligent and careless use of the vehicle by the complainant. The counsel for the appellants submitted that without the opinion of an expert the District Forum is not justified in finding that the vehicle was defective. It is true that the complainant or the opposite parties never attempted to have an examination of the vehicle by an expert. Admittedly, the same defects occurred to the vehicle repeatedly and even though those defects were repaired by the 2nd opposite party those defects were not rectified fully. As stated above, apart from the bald statement made by the opposite parties no evidence is available to prove that the defects occurred to the vehicle were as a result of the improper or negligent use of the vehicle by the complainant. As observed by the District Forum what is proved from the averments made by the parties and evidence is that the same defects repeatedly occurred to the vehicle even after the repair of the same by the 1st opposite party. The fact that the same defects occurred to the vehicle repeatedly shows either manufacturing defect or improper service of the vehicle. Considering all these facts the District Forum found that the vehicle was defective and for that no expert opinion is necessary. Considering the evidence, facts and circumstances of the case the District Forum came to the conclusion that the vehicle sold to the complainant had manufacturing defect and the service rendered by the 1st opposite party was also not proper and hence there was deficiency in service on the part of the opposite parties. We consider that there is no reason/ground to interfere with the said finding.
10. The District Forum directed the opposite parties either to replace the vehicle sold to the complainant or to pay Rs. 59,400/-, the value of the vehicle purchased by him. They were also directed to pay Rs. 25,000/- as compensation and Rs. 5,000/- as costs. It was also directed that the opposite parties shall pay the amount to the complainant within 30 days of the date of receipt of the order, failing which complainant can realize the amount with interest @ 12% per annum from the date of order. Counsel for the appellants submitted that the complainant purchased the vehicle in 2013 and hence it is not practicable to replace the vehicle sold to the complainant, since the model of the vehicle will be changed periodically. The counsel also pointed out the fact that the complainant had been using the vehicle for these years. The direction of the District Forum to the opposite parties is either to replace the vehicle or to pay Rs. 59,400/-, the value of the vehicle to the complainant. Hence the opposite parties can very well pay the amount of Rs. 59,400/- to the complainant, the value of the vehicle since it is impracticable to replace the vehicle. The counsel for the appellants submitted that the compensation and costs ordered by the District Forum are on the higher side and she prayed that those may be reduced. She also submitted that the rate of interest ordered by the District Forum is on the higher side and it may be reduced. She pointed out that the vehicle was with the complainant and the complainant had no case that he could not use the vehicle because of the defects to the vehicle and his only allegation is that because of the defects to the vehicle he has to effect repairs to the vehicle, at times and he could not use the vehicle properly.
11. The District Forum ordered Rs. 5,000/- as costs which is just and reasonable. Hence no interference is necessary regarding the costs ordered by the District Forum. Considering the facts and circumstances of the case, we consider that the compensation of Rs. 25,000/- ordered by the District Forum is on the higher side and it has to be reduced to Rs. 15,000/-. The rate of interest of 12% ordered by the District Forum is to be reduced to 9%. We do so. So the order passed by the District Forum is to be modified to that effect.
In the result, the appeal is partly allowed and the order passed by the District Forum is modified by reducing the compensation ordered by the District Forum to be paid by the opposite parties/appellants to the complainant/respondent to Rs. 15,000/- and reducing the rate of interest ordered by the District Forum on the amounts to be paid by the opposite parties/appellants to 9% per annum. In all other aspects, the order passed by the District Forum will remain/stand intact.
Parties are directed to suffer their respective costs.
At the time of filing of the appeal the appellants have deposited Rs. 25,000/-. The respondent/complainant is permitted to obtain release of the said amount on filing proper application to be adjusted/credited towards the amount due to him from the appellants/opposite parties.
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JUSTICE K. SURENDRA MOHAN : PRESIDENT
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T.S.P. MOOSATH : JUDICIAL MEMBER
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BEENA KUMARY. A : MEMBER
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