KERALA STATE CONSUMER DISPUTES REDRESSALCOMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No. 82/2010
JUDGMENT DATED: 20.10.2010
PRESENT:-
SMT. VALSALA SARANGADHARAN : MEMBER
SRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SRI. M.K. ABDULLA SONA : MEMBER
APPELLANT
Mohammed Faizal,
Karimbanakkal House,
West Kodur, Kodur Post,
Perintalmanna Taluk,
Malappuram.
(Rep. by Adv. Sri. Sandeep T. George)
Vs
RESPONDENTS
1. M/s. Bajaj Auto Ltd,
Akurdi Pune – 411035
2. The Area Service Manager,
Bajaj Auto Ltd., Krishna Kripa,
39/3584, K.S.N Menon Road,
Kochin – 679 321.
3. M/s. K.V.R. Automobiles,
Angadippuram, Perintalmanna
(Rep. by Adv. Sri. P. Harikumar & Narayan.R)
JUDGMENT
SMT. VALSALA SARANGADHARAN : MEMBER
The above appeal is preferred against the order dated 08.01.2010 of CDRF, Malappuram in C.C. 281/2002 whereby the Forum below dismissed the complaint on the ground that the complainant failed in proving the defects of the vehicle.
The case of the complainant is that on 15.11.2000 he purchased a motor cycle manufactured by the first opposite party from the 3rd opposite party who is the authorized dealer of the first opposite party. The second opposite party is the area service manager of the first opposite party. The warranty was for one year and it was extended for another one year and by running 50 kms. itself the vehicle showed the complaint of sound from the engine and it was entrusted for repairs to the 3rd opposite party, and after a week it was delivered to the complainant after repairs. Again after a month the same complaint along with engine oil leakage developed and it was entrusted to the 3rd opposite party and they delivered the vehicle after repairs. Thereafter on various occasions the vehicle had developed problems such as oil leaking, gear slipping, complaints in the silencer, starting trouble etc. and on 30.5.2002 the complainant paid Rs. 72/- as repairing charges as demanded by the 3rd opposite party. A letter was sent by the 3rd opposite party requesting to take delivery of the vehicle, but the complainant refused to take delivery of the same as the complaints are not rectified. According to the complainant, the defects are manufacturing defects which occurred during warranty period. Hence he filed complaint before the Forum claiming refund of the price of the vehicle with interest, compensation and costs.
The opposite parties filed joint version and admitted the purchase of the vehicle by the complainant. They denied the allegation of manufacturing defects and submitted that whatever defects were reported, were properly attended and rectified by them and the defects reported, were due to the improper use of the vehicle by the complainant. They further contented that the complainant used the vehicle for more than 2 years and the claim for a new vehicle is to make unlawful enrichment. They expressed their readiness to repair the defects on payment of charges by the complainant. Thus they prayed for dismissal of the complaint.
We heard the learned counsel for the appellant/complainant and the respondents. The learned counsel for the appellant/complainant submitted that the complainant had taken the vehicle for repairs on several occasions to the opposite party and they had not satisfactorily repaired the vehicle and the vehicle was malfunctioning within a short period of its purchase. The first opposite party has stopped the manufacture of the said model of the vehicle and that was why the first opposite party extended the warranty to one more year. He argued for the position that Exts. C1 to C3 reports prepared by the expert Commissioner were not based on any standard scientific tests which ought not have relied on by the lower Forum. He further submitted that the oil leakage as well as the unusual sounds from the engine etc. can be ascertained only if the vehicle is road tested at least for 20 or more kilometers and the expert commissioner completed his tests within 15 months and the complainant had filed a petition to set aside reports of the commissioner and sought time for filing a fresh panel of experts. It is submitted by him that the appellant had availed loan for the purchase of the said vehicle and he was not able to use the vehicle to his full satisfaction due to the continuing defects. Thus he prayed for allowing the appeal.
On the other hand the learned counsel for the respondents supported the findings and conclusions arrived at by the Forum below and admitted that the said vehicle is with the 3rd opposite party and showed their readiness to hand over the same to the complainant. According to the respondents the vehicle had no manufacturing defects as alleged by the appellant and certain minor defects that the vehicle had were rectified by them. Due to the improper usage of the vehicle this complaint occurred and that the complainant plied the vehicle for more than 2 years and in praying for refund of its price is to get unlawful enrichment. Thus he prayed for dismissal of the appeal.
The job cards Exts. B2 to B4 produced from the side of the 3rd opposite party, the approved dealer would make it clear that the engine of the motor cycle developed problems from the very beginning. The complainant purchased the vehicle in November 2000. He produced the same before the 3rd opposite party/dealer in December 2000 itself with abnormal sound in the engine of the vehicle with some other minor defects. The complainant was compelled to produce the vehicle for rectifying the defects in February 2001 also. . At that time also the abnormal sound in the engine had been persisting. This would give an indication that the 3rd opposite party/dealer could not rectify the defect of abnormal engine sound which developed within one month of the purchase of the vehicle. As per Ext. B4, job card, it is seen that the complainant produced vehicle before the 3rd opposite party in June 2001. At that time the 3rd opposite party changed starter clutch of the vehicle. The replacement of the starter clutch within 6 months of its purchase would give an indication that there was some inherent defect in the vehicle. In the ordinary course brand new vehicle was not expected to develop problem in the engine. The aforesaid admitted document would give an irresistible conclusion that the opposite parties effected sale of a defective vehicle to the complainant. The complainant who purchased a brand new vehicle had to approach the dealer to get the defects rectified immediately after its purchase. The aforesaid circumstances should definitely cause inconvenience to the complainant. Thus the opposite parties are to be found deficient in rendering service by effecting sale of a defective vehicle.
The complainant as Pw2 has deposed that he produced the vehicle before the 3rd opposite party for about 20 times to get the defects in the vehicle rectified. There is no ground to doubt the testimony of Pw2 regarding the repeated repairs to the vehicle within the warranty period. There is no acceptable contra evidence available on record to disbelieve the testimony of Pw2. Thus in effect, the complainant had succeeded in establishing his case that the opposite parties effected the sale of a defective vehicle and the said vehicle caused much inconvenience to the complainant.
Dw1 the Senior Service Manager of the 3rd opposite party was not having any direct knowledge about the purchase of the vehicle from the 3rd opposite party by the complainant. Dw1 has simply denied the suggestion regarding the repeated repairs effected on the workshop of the 3rd opposite party. The 3rd opposite party had not examined any responsible officer who was having acquaintance with the repairs effected on the vehicle of the complainant during the warranty period. Thus the evidence of Dw1, is not at all sufficient to shake the oral testimony of the complainant. So the Forum below cannot be justified in relying on the testimony of Dw1 and in ignoring the testimony of the complainant as Pw2.
It is noted that the expert commissioner submitted C1 and C2 reports without properly examining the vehicle. The way in which the C1 and C2 reports prepared based on the inspection would given a clear indication that the expert commissioner was not very much serious in examining the defective vehicle in a proper manner. It is to be noted that even according to the expert commissioner he plied the vehicle only for 2 to 3 kilometers if in fact he was very much interested to detect the actual problem if any, in the vehicle he should have plied the vehicle for a long distance. Then only an expert could detect the defects if any in the vehicle. It is to be noted that the expert report is silent about the route through which the vehicle was plied for testing. There is also no acceptable evidence to show that the expert commissioner in fact thoroughly examined the vehicle. So the Forum below cannot be justified in placing reliance on C1 and C2 reports.
It is true that the complainant was given an opportunity to submit fresh panel of experts for appointing as expert commissioner but that suggestion was made by the Forum below without setting aside the earlier reports submitted by the first expert commissioner. There could be no doubt about the fact that the burden is upon the complainant to substantiate his case regarding manufacturing defects in the vehicle. The job cards produced by the opposite parties would indicate and support the case of the complainant that the vehicle had been subjected to frequent repairs.
The available evidence and the facts and circumstances of the case would make it clear that the opposite parties effected the sale of a defective vehicle to the complainant. So the opposite parties are to be found guilty of selling such a defective vehicle to the purchaser like the complainant. Thus there is deficiency of service on the part of opposite parties. The complainant has claimed refund of price of the vehicle with interest. But the complainant used the vehicle for about 2 years and when the vehicle was produced by the complainant before the 3rd opposite party in March 2002, the vehicle was covered a long distance. It is to be noted that the complaint is silent about the distance covered by the vehicle. The complainant as Pw2 has not spoken anything about the use of the vehicle. Dw1 has also not uttered any word about the distance covered by the vehicle when the same was produced in March 2002. But as per Ext. B4 job card dated June 2001, the vehicle had covered a distance of 7675 Kilometers . So the afore said evidence would give an indication that the complainant has been using the vehicle. It may be correct to say that he has been using the defective vehicle with much inconvenience and discomforts. The complainant preferred the complaint in November 2002. Thus the complainant took another 8 months time to prefer the complaint before the Forum. Moreover there is no provision in the warranty for replacement of the vehicle or for refund of the price of the vehicle. The vehicle was produced before the 3rd opposite party at the middle of the extended warranty
period and the complaint has been preferred by the lapse of total warranty period of 2 years. Considering all these aspects, the prayer for refund of the price of the vehicle cannot be allowed.
The forgoing discussions and finding thereon would make it clear that there was deficiency in service on the part of the opposite party in effecting sale of a defective vehicle to the complainant. In such a situation, the opposite parties are bound to rectify the defects in the vehicle free of cost and entrust the vehicle to the complainant in a perfect roadworthy condition. In the event of failure on the part of the opposite parties to make the vehicle in a perfect roadworthy condition, the complainant is to be compensated by paying a compensation of Rs. 25,000/- The complainant is also entitled to get a sum of Rs. 2,000/- by way of costs.
In the result, the appeal is allowed partly. The respondents/opposite parties are directed to repair the vehicle in a perfect roadworthy condition and handover the same to the appellant/complainant within the period of 2 months from the date of
receipt of copy of this order, failing which the respondents/opposite parties are jointly and severally liable to pay a compensation of Rs.25,000/- to the appellant/complainant and in that event the respondents/opposite parties can keep the vehicle under their possession and ownership and that the appellant/complainant is bound to handover the R.C. book and necessary papers for getting the vehicle transferred in the name of any one of the respondents/opposite parties or to their authorized person. The respondents/opposite parties are also liable to pay Rs. 2,000/- by way of costs to the complainant.
VALSALA SARANGADHARAN : MEMBER
M.V. VISWANATHAN : JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
