KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUDTHIRUVANANTHAPURAM APPEAL NOS.118/05 & 565/09 COMMOM JUDGMENT DATED 5.8.2010 PRESENT JUSTICE SHRI.K.R.UDAYABHANU -- PRESIDENT SRI.S.CHANDRAMOHAN NAIR -- MEMBER APPEAL NO.118/05 M/s T.V.S.Motors Company Ltd. P.B.No.4. Harita, Hosur-635109, -- APPELLANT Tamil Nadu. (By Adv.Nair Ajay Krishnan) Vs. 1. Ajith Kumar, S/0 Choikutty, “Nanda nivas” House, Kommeri P.O, Kozhikode. 2. The Manager, -- RESPONDENTS Gem Motors, Nasirine Arcade, Kannur Road, West Nadakkavu. Kozhikode. (R1by Adv.M.S.Manish) APPEAL NO.565/09 Ajith Kumar, S/0 Choikutty, “Nanda nivas” House, -- APPELLANT Kommeri P.O, Kozhikode-673007. Vs. 1. Gem Motors, Nasirine Arcade, Kannur Road, West Nadakkavu. Kozhikode-11 2. T.V.S.Motors Company Ltd. P.B.No.4. Harita, Hosur-635109, -- RESPONDENTS Tamil Nadu. COMMOM JUDGMENT JUSTICE SHRI.K.R.UDAYABHANU,PRESIDENT The appellant in appeal 118/05 is the second opposite party/manufacturer and the appellant in appeal 565/09 is the complainant in OP.125/03 in the file of CDRF, Kozhikode. The opposite parties are under orders to make the vehicle defect free and return back the same to the complainant within one month with an extended warranty of one more year and also to give a compensation of Rs.5000/-. 2. The case of the complainant is that he purchased a TVS MAX 100 R Motor Cycle from the first opposite party/dealer on 11.10.02 which is manufactured by the second opposite party. Altogether, the complainant has paid a sum of Rs.38557/- and took delivery of the same on 16.10.02. It is his case that it is attracted by the advertisement of the opposite parties in the news papers that he purchased the vehicle which is a necessity for him as he is a sales representative. It is alleged that immediately after purchase there was tumultuous sound from the engine and gear box of the vehicle. When it was informed, the dealer told him that the vehicle is having certain manufacturing defects and the same can be rectified at the time of first service. On 13.11.02, the complainant entrusted the vehicle to the first opposite party for first free service and the same was returned on 16.11.02. But the sound problem from the engine and gear box continued. Hence, he returned the vehicle to the first opposite party on 17.11.02. The mechanics of the opposite parties could not find out the defects and manufacturing problems of the vehicle so far. The vehicle is in the custody of the first opposite party since 17.11.02. It is his case that on every day he is approaching the dealer. But, he is being informed by a Mechanical Engineer and there major manufacturing defects and that the same cannot be rectified in any manner. The complainant had availed finance from Chola Investments and Finance Company. He has to pay the monthly installments and also to spent Rs.100/- per day for traveling expenses. Lawyer notice was issued on 10.1.03. The reply from the first opposite party dated.11.2.03 contains false averments. The second opposite party has not sent any reply. The complainant has sought for a direction to supply a new vehicle or to return the amount of Rs.38557/- with interest at 12% and also pay Rs.1 lakh as compensation. 3. The first opposite party/dealer has filed version denying the allegations altogether. It is stated that after running 968 kms; the vehicle was entrusted for the first free service on 13.11.02. The job card would show that there was no defect. Thereafter, on 16.11.02 the vehicle was again brought with a complaint of gear break noise. By cleaning the brake drum, the above minor problem was cleared on the same day, and the Job card will prove the same. On 10.12.02 after running 1928 kms; the vehicle was brought for a routine check up and taken back. On 23.10.02, the vehicle was brought with the complaint that there is a sound from the engine. On inspection it was found that the clutch bell should be changed and as the above item was not available he was asked to come after 2 days. The vehicle was again brought on 28.12.02 and the clutch bell was replaced under warranty. Thereafter, the complainant never turned up to take back the vehicle. It is apprehended that the complainant is not taking delivery of the vehicle deliberately in order to avoid payment due to the financier. It is submitted that the vehicle is in perfect condition and that if the same is inspected by an expert, the falsity of the complaint can be found out. 4. The second opposite party/manufacturer has also filed version totally denying the allegations in the complaint. It is contended that there is no manufacturing defect to the vehicle at all. It is also stated that subsequent to the receipt of notice from the Forum Mr.Dileep kumar, the Service Engineer of the opposite party thoroughly examined the vehicle and found that the same is in perfect condition. It is further submitted that the manufacturer is still willing to inspect the vehicle in the presence of the complaint and ascertain from the complainant the problems observed by him and if there are any problems which need to be sorted out. The opposite party is ready to attend the same in accordance with the terms of warranty. The second opposite party has also supported the version of the first opposite party. 5. The evidence adduced consisted of the testimony of PW1, RWs 1 and 2, Exts. A1 to A8 and B1 to B6. 6. The Forum has noted that the complainant has not obtained any expert opinion as to the defects existing in the vehicle. The Forum has held that the complainant could not prove specifically that there was any manufacturing defect to the vehicle. All the same, on examining the evidence adduced, it was held that the inability of the opposite parties to make the vehicle defect free and return back the same to the complainant amounted to deficiency in service. 7. It is pertinent to note that admittedly the vehicle has been purchased/taken delivery on 16.10.02 and the complaint has been filed on 7.3.03 ie; within a period of 5 months. According to the complainant, the vehicle is in the custody of the first opposite party/dealer from 17.11.02 whereas according to the opposite parties the vehicle was entrusted with the dealer on 28.12.02 for replacing the clutch bell and thereafter the complainant did not come back to take delivery of the vehicle. Ext.B6 is the Job card dated 28.12.02. Ext.B2 to B5 are the other Job cards. In Ext.B6, the Job card it is noted as clutch bell fixing. Ext.B2 Job card dated 13.11.02 is with respect to the first free service and therein routine matters have been attended. Ext.B3 Job card dated 16.11.02 wherein rear break, drum cleaning is mentioned. Ext.B4 Job card dated 12.12.02 mentions as the cable lubricated and clutch cable changed. The complainant has not produced any objective evidence with respect to the repairs made to the vehicle by the first opposite party. Ext.A6 lawyer notice is dated 10.1.03. According to the complainant the mechanics of the opposite party could not detect the defect to the vehicle and repair the same and that he has been approaching the first opposite party almost regularly. But, they did not return the vehicle that was entrusted on 7.11.02. According to the opposite parties after bringing the vehicle and entrusting the same for replacing the clutch bell on 28.12.02 the complainant has not approached them for taking back the vehicle. It is their case that the vehicle is kept ready defect free, but the complainant is not willing to take it back. The above submission was repeated by the opposite parties at the time of hearing of this appeal also. But, the counsel for the complainant has submitted that the complainant is not willing for the above course. The counsel has relied on the statements in the testimony of RW1, the Service Manager of the first opposite party. In the cross examination, he has submitted that on the date of first service ie; on 13.11.02 the vehicle had run altogether 94 kms. only. He has also stated that what has been mentioned in the version as 968 kms. is not correct. Ext.A9 contained the first service coupon wherein the kilometer run is mentioned as 94 kms. The rest of the free coupons are intact in Ext. A9 Owners Manual. RW1 has also stated in the cross examination that within 2 months of purchase, the vehicle was repaired 5 times. He has also stated that the gear oil was changed twice. He has also stated that clutch bell had to be changed on account of the sound from the Gear box and Engine. All the same, he has asserted that the vehicle has no manufacturing defects. He is a Mechanical Engineer. He has also denied the suggestions that Ext.B2 to B6 Job cards were fabricated. He is a Service Engineer in the second opposite party/company. He has stated that the vehicle was delivered only after free pre-delivery inspection. According to him, the only repair done to the vehicle is the clutch bell replacement, which is only a minor matter. In the cross examination he has stated that it is his name that has been mentioned in the version of the second opposite party as the Engineer who examined the vehicle after receiving notice from the Forum. It is also stated that the vehicle has got warranty of 1 ½ years or 20,000 kms. He has denied that the vehicle was having any manufacturing defects. 8. We find that the major draw back in the evidence adduced is that the complainant has not got the vehicle examined by an automobile expert. In the absence of an expert opinion, it would not be possible to arrive at a finding that the vehicle is having manufacturing defects. Apparently, the vehicle is a brand new one. There is no objective evidence as to how many kilometers the vehicle has been plied. The opposite parties have asserted that the vehicle is totally defect free and kept with the opposite party/dealer. According to them, it was brought on 28.12.02 for replacing the clutch bell and thereafter the complainant did not return to take back the vehicle. Admittedly, the vehicle was purchased on 16.10.02, and almost after 2 months the vehicle has been returned to the dealer and kept there. The stand of the opposite parties through out in the Forum as well as before this Commission is that the vehicle is kept ready for delivery to the complainant and that it has no defects. There is no explanation for the conduct of the complainant in not getting the vehicle examined by an expert. The Forum ought to have directed the complainant to get the vehicle examined by an expert. It is also pertinent to note that after filing the appeal the above said tact was not brought to the notice of this Commission. Evidently, a number of years have lapsed and it is possible that the vehicle kept stationary might have developed problems. The complainant has failed to establish that the vehicle is having manufacturing defects. The finding of the Forum that there is deficiency in service on the part of the opposite parties in not returning the vehicle cannot be up-held. It is for the complainant to take back the vehicle. Even after filing, the complainant/opposite parties have submitted that the vehicle is kept ready for delivery. The direction in the order of the Forum to return the vehicle defect free with extended warranty of one more year and to pay a compensation of Rs.5,000/- cannot be upheld. The order of the Forum is set aside. The complainant will be at liberty to take back the vehicle from the first opposite party. The appeal 118/05 is allowed as above. Appeal No.565/09 is dismissed. The office will forward the LCR along with the copy of this order to the Forum urgently. JUSTICE K.R.UDAYABHANU -- PRESIDENT S.CHANDRAMOHAN NAIR -- MEMBER s/L | 
