KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No. 124/2017
JUDGMENT DATED: 19.04.2023
(Against the Order in C.C. 134/2015 of CDRF, Kottayam)
PRESENT:
HON’BLE JUSTICE SRI. K. SURENDRA MOHAN : PRESIDENT
SMT. BEENA KUMARY. A : MEMBER
APPELLANTS:
- Jubily Hero, represented by Manager, Pukadiyil Building, Nagambadam, Kottayam-686 006.
- Hero Moto Corp Ltd., represented by Balaji A., Manager, 34, Community Centre, Basant Lok, Vasant Vihar, New Delhi-110 057.
(By Adv. K.S. Arundas)
Vs.
RESPONDENT:
Ajayakumar K.K., Koorappillil House, Kattampack P.O., Njeezhoor, Kottayam-686 612.
(By Adv. Kazhakkuttom K.S. Narayanan Nair)
JUDGMENT
SMT. BEENAKUMARY A. : MEMBER
Appellants are the opposite parties in C.C. No. 134/2015 on the file of the Consumer Disputes Redressal Forum, Kottayam. The respondent is the complainant.
2. Facts of the case are as follows: The complainant on 20.04.2015 purchased a motor bike and while on journey to his house, when he reached at Kumaranalloor the engine of the said bike was stopped. He had informed the matter to the opposite party and a sales person from the opposite party came and took the vehicle to the showroom. After repair, they had delivered the vehicle on 21.04.2015. But on journey, when he reached Ettumanoor town, again the same complaint occurred and the vehicle was taken to the showroom by a sales person. The very next day on 22.04.2015 the complainant went to the opposite party’s showroom, inquired about the defects and then, the staff of the opposite party intimated that the new bikes were kept in the open, exposed to the rain and so, water had entered into the engine of the motor bike. As the engine of the new bike had been damaged, they advised that they may give him another new bike since the vehicle was having guarantee. So as per the direction of the staff of the opposite party, the complainant contacted the authorities of the opposite party and demanded to replace the bike. But they have not cared to replace the same. According to the complainant, the act of opposite parties in delivering an engine damaged bike amounts to deficiency in service and unfair trade practice. Hence this complaint was filed for an order directing the opposite parties to return the amount or replace the vehicle with compensation.
3. Opposite parties filed version admitting the purchase of the disputed vehicle for a total amount of Rs. 61,708/- which included the price of the vehicle, extra fitting, helmet, tax and insurance etc. According to the opposite parties, at the time of delivery they had filled 250 ml petrol only and it was intimated to the complainant. After filling the petrol by the complainant, the vehicle was stopped and on intimation the mechanic of the opposite party arrived at the place. And he had inspected the vehicle and found that there was water in the petrol. So the mechanic repaired the vehicle by clearing of the carburetor and started the vehicle. And he intimated to the complainant that if the vehicle is again stopped the vehicle is to be taken to the workshop for clearing the petrol tank and carburetor by removing the entire petrol. After that the vehicle stopped again and the complainant had taken the vehicle to the opposite party. And it was properly repaired by cleaning the petrol tank and carburetor after removing the petrol. But the complainant has not cared to take back the vehicle. He demanded to replace the vehicle with a brand new one. According to the opposite parties, the vehicle is registered by remitting the tax in the name of the complainant and insurance is also taken. So the replacement of the vehicle is not possible. Within warranty period, they are only liable to repair if there are any defects. And the disputed vehicle is not having any defects. According to the opposite parties, there is no deficiency in service or unfair trade practice on the part of opposite parties and they prayed for dismissal of the complaint with costs.
4. In this case the complainant and opposite parties filed proof affidavit and examined the complainant as PW1. Exts. A1 and A2 documents were marked on the side of the complainant. Opposite parties filed Exts. B1 to B5 documents. On the basis of the evidence, pleadings and arguments the District Forum found that there was unfair trade practice and deficiency in service from the side of opposite parties. Therefore the District Forum allowed the complaint directing the opposite parties to replace the defective bike with a new bike of the same model having same features to the complainant or refund Rs. 61,708/-, the price of the bike to the complainant and further ordered the opposite parties to pay Rs. 5,000/- as compensation and Rs. 2,500/- as costs of the proceedings. The order shall be complied within a period of 30 days from the date of receipt of the order, otherwise the amounts would carry 15% interest. Aggrieved by this order the opposite parties have filed this appeal.
5. The main contention raised by the appellants is that the defect was due to the presence of water in the petrol tank. The appellants stated that due to filling of water mixed petrol by the respondent the defects were caused. To prove that contention they have produced Ext. B1 document. In Ext. B1 it is stated that on 22.04.2015 the vehicle showed starting trouble, the fuel tank of the vehicle and carburetor were cleaned. This document shows that within two days of its purchase, the vehicle has shown some trouble. It is an admitted fact. The said defect and entrustment of the bike to the opposite parties were admitted by the opposite parties. The serious defects of the bike on the same day of its purchase and subsisting the same defects after repair shows that the motor bike is having some manufacturing defects.
6. The appellants also contended that there is no expert opinion to prove the defects of the vehicle. But in this case there is no need for an expert opinion. If the defect was due to water mixed petrol, the opposite parties ought to have proved this matter using the vehicle with pure petrol. But the appellant has not turned up to prove their contentions. The manufacturer and the dealer have some responsibility to the customers. It is the duty of the 1st appellant dealer to intimate the defects of the vehicle to the manufacturer and solve the problem amicably. The dealer has some after sales liability to its customers. The defects had occurred during the warranty period i.e; after two days of its purchase. The opposite parties ought to have replaced the defective vehicle with a new one to the complainant. But they did not do so. They evade from their liability with flimsy reasons. Due to the act of the opposite parties, the complainant has suffered too much mental agony, inconvenience and financial loss. Hence we find that the order passed by the District Forum in this case is correct. Hence we do not interfere with the merits of the order. We are of the view that the interest rate i.e; 15% per annum allowed by the District Forum is high. So we reduce the interest rate as 8% per annum.
In the result, the appeal is partly allowed. No order of costs.
The respondent has the right to withdraw the amount deposited by the appellant before this Commission and the District Commission on proper application. Balance amount shall be paid by the appellant within 30 days from the date of receipt of the order, otherwise the entire amount will carry 15% interest.
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JUSTICE K. SURENDRA MOHAN : PRESIDENT
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BEENA KUMARY. A : MEMBER
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