BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

O.P.No. 443/2003 Filed on 30/10/2003

Dated: 30..10..2009

Complainant:

Shine. D., Puthuralvilakathu Veedu, Kattampally, Kandala, Thiruvananthapuram.

(By adv. Koshy P. Thomas)

Opposite parties:

1. Ancy Automobiles, Kattakkada, Thiruvananthapuram.

   (By Adv. K.P. Renadive)

2. Kinetic Engineering Ltd., Ayurveda College Junction, Thiruvananthapuram.

3. Gokulam Auto Consultancy and Finance Agency, Choondupalaka, Kattakkada, Thiruvananthapuram.

    

Addl. 4^th opp. Party:

4. Kinetic Engineering Ltd., D1, Block 1 & 2, Chinchu Ward, Pune – 411 019.

This O.P having been heard on 17..08..2009, the Forum on 30..10..2009 delivered the following:

ORDER

SMT. BEENA KUMARI. A., MEMBER:

The complainant in this case purchased a Kinetic Challenger from the 1^st opposite party on 22/9/2003. 2^nd opposite party is the dealer, 3^rd opposite party is the financier, who arranged finance for purchasing the vehicle. 4^th opposite party is the manufacturer of the vehicle. The complainant had purchased the vehicle believing the assurance given by the 1^st and 2^nd opposite parties through media and brochure. The complainant was of the belief that the said vehicle would maintain the requisite quality, standard and mileage. But on the very same day of purchase the vehicle started mechanic troubles and it was producing very high noise and on running the vehicle often stops automatically. Since the complaints were not normal and due to its poor performance the vehicle was shown at the 1^st opposite party. The 1^st opposite party made some repair and assured that the defects have been cured. But the defects was not cured then the complainant entrusted the vehicle to the 2^nd opposite party and all the complaints of the vehicle were explained. The 1^st & 2^nd opposite parties promised that the vehicle will be free from complaints after the 1^st authorised service, but even after the same the vehicle was not road worthy and repeated repairs were done by the 1^st opposite party and had not shown any improvements. Even after several repairs the vehicle shows poor quality of performance which is due to its manufacturing defect since the defects due to manufacturing defects as such is incurable. The complainant submits that the warranty period of the vehicle is not over and the opposite parties failed to cure the manufacturing defects. The opposite parties have delivered an unmerchantable vehicle and thereby committed unfair trade practice and deficiency in service. Hence this complaint.

2. In this case the 1^st opposite party only has filed version. Other opposite parties did not file version. The main contention of the 1^st opposite party is that in this case the manufacturer of the vehicle is not made a party. But later the complainant filed impleading petition to implead the manufacturer as a party. And this Forum allowed the application and the manufacturer is impleaded as 4^th opposite party. The 1^st opposite party also stated that the price of the bike is only Rs.25,000/- and the complainant paid this amount only. It is not true that he has paid Rs.41,000/- for the vehicle. The 1^st opposite party sold the vehicle for Rs.25,000/- as a trade discount scheme to the complainant. The 1^st opposite party also stated that the complainant never informed the defect of the vehicle to the 1^st opposite party till the date. And further they stated that there is no deficient service from their side and the 1^st opposite party has no liability to pay any compensation to the complainant.

3. In this case the complainant has filed proof affidavit and he has produced 3 documents. The documents were marked as Exts.P1 to P3. The opposite parties in this case did not adduce any evidence. As per the application of the complainant this Forum appointed Mr. Thomas A. Vadakkan as the expert commissioner to ascertain the defects of the vehicle. The report submitted by the Commissioner marked as Ext.C1.

4. Points that would arise for consideration are:

1. Whether there is deficiency in service or unfair trade practice from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

5. Points (i) & (ii) : The complainant alleges that after the purchase of the vehicle the performance of the vehicle is very poor and not road worthy. Due to the manufacturing defect of the vehicle he could not use the vehicle. The main defects of the vehicle he alleges are; Leakage of oil from Engine, Heavy smoke produced, Petrol tank is rusty, Carberator not normal, Poor mileage, Poor pick up, Missing of Engine and totally not worthy for road travelling. To ascertain the defects this Forum appointed Mr. Thomas A. Vadakkan as the expert commissioner. After examining the vehicle he has filed the report before this Forum, the report is marked as Ext.C1. In the report he concluded that the vehicle could not start due to electrical complaint. Loose connections in the electrical loom observed. The strength of current from the Magneto is also inadequate. This is a manufacturing defect. The fuel tank is fully coated with rust. No proper anti corrosive coating/paint is seen inside the fuel tank. This is a manufacturing defect. The front shock absorbers of the vehicle are defective and to be replaced. This is a manufacturing defect. The vehicle is not road worthy and cannot be used. The Commissioner also stated that engine of the vehicle is not in running condition, mileage test and other performance test of the vehicle were not conducted. From the conclusions of the expert commission we can see that the vehicle is defective due to manufacturing defect. The defects occurred within warranty period. As per the complaint the vehicle has been purchased on 22/9/2003. In the commission report the commissioner stated that as per the owners manual, the warranty period of the vehicle is for 365 days ie. upto 22/9/2004. The defects occurred on the very same day of purchase of the vehicle. During the pendency of this case, ie. after the commissioner filed the report before this Forum, the 4^th opposite party – the manufacturer submitted that they were ready to rectify the defects of the vehicle in the presents of the Commissioner and thereafter this Forum posted the case for settlement report. But no settlement report came before us and there was no representation from the side of opposite parties and the complainant did not submit whether the case was settled.

6. In this case the complainant has produced 3 documents to prove his case. The document marked as Ext.P1 is the copy of certificate of Insurance of the vehicle. (Ext.P3 is the copy of warranty registration card. As per this document date is seen as 22/9/2003 in the name of the complainant). Ext.P2 is the bill issued by the 1^st opposite party dated 8/10/2003 for engine oil. The complainant did not produce the invoice showing the price of the vehicle. The 1^st opposite party stated that they sold the vehicle for Rs.25,000/- to the complainant as per trade discount scheme. But nobody produced the document showing the price of the vehicle. In his affidavit the complainant stated that he had paid Rs.41,000/- for the vehicle through 3^rd opposite party. The affidavit filed by the complainant stands uncontroverted since nobody has cross examined him.

7. From the documents and evidences adduced by the complainant we are of the view that there is unfair trade practice and deficient service from the side of opposite parties. As per Ext.C1 report the defects occurred due to manufacturing defect, hence the manufacturer is liable to refund the value of the vehicle or for replacement of the vehicle. In this case we are of the opinion that it is reasonable to refund the price of the vehicle to the complainant.

In the result the 4^th opposite party is directed to pay the price of the Kinetic Challenger paid by the complainant on 22/9/2003 to the 1^st opposite party with 12% annual interest to the complainant. The 4^th opposite party shall also pay Rs.5,000/- as compensation and Rs.2,500/- as costs. Time for compliance one month from the date of receipt of the order. Thereafter 9% annual interest shall be paid the entire amount. On receipt of the amount, the complainant shall return the vehicle in dispute to the 4^th opposite party. Opposite parties 1 to 3 are exempted from any liability.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of October, 2009.

BEENA KUMARI. A.,

MEMBER.

G.SIVAPRASAD, PRESIDENT.

S.K. SREELA, ad. MEMBER.

O.P. No. 443/2003

APPENDIX

I. Complainant's witness : NIL

II. Complainant's documents:

P1 : Copy of certificate of Insurance No.570600/31/03/6205245.

P2 : Photocopy of cash bill dated 8/10/03 and Form D1 Non- transport vehicle licence.

P3 : Photocopy of warranty Registration card dated 22/9/2003.

III. Opposite parties' witness : NIL

IV. Opposite parties' documents : NIL

V. Court witness : NIL

VI. Court Exhibit

C1 : Commission Report dated 5/2/2005.

PRESIDENT