KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAD, THIRUVANANTHAPURAM

APPEAL. 698/2006

JUDGMENT DATED: 22.6.2010

PRESENT

SMT.VALSALA SARANGADHARAN                : MEMBER

SRI.S.CHANDRAMOHAN NAIR                         : MEMBER

1. The General Manager,                                        : APPELLANTS

    Kinetic Engineering Limited,

    D-1, Block, Plot No.18/2 MIDC,

    Chinchwad, Pune.

2. Manager(Marketing),

      -do-do-

(By Adv.Narayan.R)

     Vs.

1. Binu Raj @ Babu Raj,                                        : RESPONDENTS

    Malancharuvil house,

    Mezhuveli.P.O., Mezhuveli,

    Pathanamthitta District.

(By Adv.Issac Samuel)

2. Proprietor,

    Pulimoottil Automobiles,

    Kinetic Dealer, Muttambalam.P.O.,

    Kanjikkuzhy, Kottayam-4.

3. Suresh.S.

    Ayshariya Two Wheeler Market,

    Thookkupalam, Pathanamthitta and residing at

    Panachackal House, Vazhamuttom.P.O.,

    Omallur Village, Pathanamthitta.

JUDGMENT

SMT.VALSALA SARANGADHARAN       : MEMBER

          The appellants are the opposite parties 1 and 2.  1^st opposite party is under orders to pay a sum of Rs.40400/- along with a compensation of Rs.5000/- and costs of Rs.1500/- to the complainant.

          2. The matter related to the defects in the motor cycle purchased by the complainant.  It is the case of the complainant that on the very same day of  purchase itself the vehicle showed serious complaints and as a result the complainant  had to suffer inconvenience and hardships.  Even after repeated repairs the condition of the vehicle could not be improved.  Now the complainant could not run the vehicle smoothly and the spare parts are also not available in the market.  Hence he filed complaint before the  Forum  claiming refund of the price of the vehicle with interest at the rate  of 24% per annum from the date of purchase till realization along with a compensation of Rs.1,00,000/- and cost  of the    proceedings.

          3. The 1^st and 2^nd opposite parties filed joint version and contended that the allegations of the complaint regarding the performance of the vehicle and rendering service by the opposite parties are without any basis and that service engineer of the   company was ready to repair or replace the defective parts of the vehicle during the warranty period and hence the claim for realization of the price  of the vehicle is not maintainable.  They further submitted that with regard to the complaints a report from the expert is to be obtained.  According to the opposite parties the complainant has not followed the directions in the owners manual to avoid defects while using the vehicle.  Hence there was no deficiency on their part and prayed for dismissal of the complaint.

          4. The 3^rd and 4^th opposite parties also filed joint version and contended that the warranty is only for two years and the warranty means  repair/service only and hence this complaint is not maintainable.  Moreover the complainant is till using the vehicle  and this would make it clear that the complaint is without any basis.  Hence they prayed for dismissal of the complaint.

          5.We heard the learned counsel for the appellants and the 1^st respondent/complainant.  The learned counsel for the appellant argued for the position that the complainant has admitted that he was using the vehicle even after filing the complaint before the Forum and the Forum below ought to have found that the complainant had run the vehicle about 16000 Kms within the first year of purchase itself.  Moreover the finding of the Forum that the vehicle had patent defects without expert evidence is unsustainable.  He also attacked the order of the Forum in awarding interest and compensation simultaneously and prayed for allowing the appeal.

          6. On the other hand the learned counsel for the 1^st respondent/ complainant supported the findings and contentions of the Forum below.  It is argued by him that though the vehicle had run for a considerable period it was with unsuccessful repairs and that now the vehicle is totally unpliable and the directions of the Forum below are to be upheld only.

          7. On hearing the learned counsel for the appellant and 1^st respondent/complainant and also on perusing the records we find that the Forum below had directed the 1^st opposite party/appellant to pay a sum of Rs.40400/- with 12% interest from the date of complaint till realization along with Rs.5000/- as compensation and Rs.1500/- as costs to the complainant on the finding that 1^st opposite party is liable to pay the loss including the value of the vehicle with compensation and costs.  It is observed by the Forum that the opposite party did not adduce any evidence to challenge the case of the complainant.  On an appreciation of the entire facts and circumstances of the case we find that the complainant has alleged defects in the vehicle and the opposite parties were unsuccessful in rectifying the defects.  But it is noted that the complainant has not adduced any evidence to show that the vehicle had manufacturing defects.  It is also to be noted that in the absence of evidence to support the case of the complainant that the vehicle had  so much defects as alleged by the complainant, it is hard to support and sustain the order passed by the Forum below  in allowing the full purchase value of the vehicle.  Moreover the vehicle had run for more than 15000 KMs at the time of filing the complaint.  The counsel for the appellant  prayed for setting aside the impugned order. On the ground that there is no conclusive proof showing that the vehicle had manufacturing defects.  We find   force in the said argument of the learned counsel for the appellant  but at the same time the learned counsel for the 1^st respondent/complainant has submitted that he is ready to prove the case of manufacturing defects by taking  out an expert commission for examining the vehicle and getting a report from him.  In the aforesaid circumstances we feel that it is a fit case to be remanded to the Forum below for giving an opportunity to both parties to adduce further evidence in support of their contentions.

          8. In the result the order of the Forum below is set aside and the matter is remanded to the Forum for fresh disposal in accordance with law.  The Forum is directed to give notice to both parties and dispose of the matter on merits  after permitting  the parties to adduce evidence if they so desire.  The Forum is also directed to dispose of the matter within 6 months from the date of receipt of copy of this order. The matter stands posted before the Forum on 31.7.2010.

          Office is directed to forward the copy of this order as well as lower court records  to the Forum urgently.

          SMT.VALSALA SARANGADHARAN                : MEMBER

          SRI.S.CHANDRAMOHAN NAIR                         : MEMBER

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