KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 683/2009

                         JUDGMENT DATED:22..12..2011.

PRESENT

SMT. VALSALA SARANGADHARAN    : MEMBER

SRI. M.V. VISWANATHAN                     : JUDICIAL MEMBER

SRI.M.K. ABDULLA SONA                      : MEMBER

Sitaram Auto Sales and Service,

Building No.708/A,

Patturaikkal, Thrissur,                                : APPELLANT

Rep. by its working Partner Sitaram.

(By Adv.Sri.K.Arunkumar)

          Vs.

1.      C. Muralidharan,

LIC Development Officer,

S/o Sankarankutty Menon, 20/267,

Chundiriyil House, Poothole,

Thrissur.

                                                                   : RESPONDENTS

2.      Bajaj Auto Ltd., Krishna kripa, 39/3584,

K.S.N. Menon Road, Cochin,

Rep. by Area Service Manager.

(R1 by Adv:Sri.Anoop Chandran)

                                           JUDGMENT

SRI. M.V. VISWANATHAN : JUDICIAL MEMBER

Appellant was the 1^st opposite party and respondents 1 and 2 were the complainant and 2^nd opposite party respectively in OP.101/03 on the file of CDRF, Thrissur.  The above complaint was filed alleging deficiency of service on the part of the opposite parties 1 and 2 in effecting sale of a Motor Cycle having manufacturing defects.  The complainant prayed for replacement of the said motor cycle by a new vehicle and also for compensation and cost.

2.      The opposite parties entered appearance and filed joint written version denying the alleged deficiency of service.  They contended that the vehicle was not having any manufacturing defects and that the complainant failed to have the proper maintenance for the motor cycle.  Thus, the opposite parties prayed for dismissal of the complaint.

3.      Before the Forum below Exts.P1 to P7 and R1 to R4 documents were marked on the side of the parties to the said complaint.  An expert commissioner was deputed for inspection of the subject vehicle and the expert filed 3 reports which were marked as Exts.C1 to C3.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated:23^rd October 2009 allowing the complaint in part and thereby directing the opposite parties to pay half of the Ext.P4 invoice amount and also the amount covered by P7 series of bills with a compensation of Rs.5000/- and cost of Rs.3000/-.  Aggrieved by the said order, the present appeal is filed by the 1^st opposite party, the dealer of the aforesaid motor cycle.

4.      Notice of this appeal was issued to respondents 1 and 2; but the 2^nd respondent, the manufacturer of the motor cycle remained absent.  We heard the learned counsel for the appellant/1^st opposite party and the 1^st respondent/complainant.  The counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He argued for the position that the complainant has not succeeded in establishing the alleged manufacturing defect and that the Forum below passed the impugned order without considering the evidence available on record.  Thus, the appellant/1^st opposite party prayed for setting aside the impugned order passed by the Forum below.  On the other hand, the counsel for the 1^st respondent/complainant supported the impugned order passed by the Forum below.  He much relied on the documentary evidence and the expert reports submitted by the expert commissioner and argued for the position that the expert reports would establish the fact that the motor cycle was having manufacturing defects and that there was deficiency of service and unfair trade practice on the part of the appellant and the 2^nd respondent being the dealer and manufacturer of the vehicle in effecting sale of a defective vehicle having manufacturing defects.  Thus, the 1^st respondent/complainant prayed for dismissal of the present appeal.

5.      There is no dispute that the 1^st respondent/complainant purchased the motor cycle with the brand ‘Pulsar’ bearing registration No.KL-8V-8045 from the appellant/1^st opposite party, the dealer.  Admittedly, the aforesaid Pulsar motor cycle was manufactured by the 2^nd respondent/2^nd opposite party Bajaj Auto Limited.  Ext.P4 is the invoice for purchase of the said motor cycle on a sale consideration of Rs.57095.  The said purchase was effected on 21/10/2002.  The said motor cycle was having warranty for 2 years.  Thus, the said vehicle was having warranty up to 21/10/2004.

6.      The case of the 1^st respondent/complainant is that the vehicle developed problems during the warranty period and the said problems were developed on account of manufacturing defects in the vehicle.  It is also the case of the complainant that the defects developed immediately within 4 months of its purchase.  It is to be noted that the complaint in OP.101/03 was filed on 26/2/2003.  Thus, it can be concluded that the defects or problems developed during the warranty period itself.

7.      An expert commissioner was appointed at the instance of the complainant in OP.101/03.  The expert commissioner inspected the subject vehicle on 7/5/2004, 16/5/2005 and 20/1/2007 and submitted C1 to C3 reports.  A perusal of the aforesaid reports would make it clear that the subject vehicle was having manufacturing defects.  It was specifically reported that there was manufacturing defect for the Fork assembly of the said vehicle and also other problems.  The report submitted by the expert commissioner would clinchingly establish the fact that the vehicle purchased by the complainant from the opposite parties 1 and 2 was having inherent defects and the said defects developed during the warranty period itself.  It can very safely be concluded that the opposite parties 1 and 2 being the dealer and manufacturer of the motor cycle effected sale of a defective vehicle to the complainant/consumer.  The aforesaid action on the part of the opposite parties 1 and 2 would amount to deficiency of service and unfair trade practice.

8.      Admittedly the subject vehicle was having warranty for 2 years.  The complainant/consumer who purchased the vehicle on 21/10/2002 filed a complaint in OP.101/03 within 4 months of its purchase ie, on 26/2/2003.  This would make it clear that the complainant was seriously aggrieved by the sale of a defective vehicle by opposite parties 1 and 2.  The case of the opposite parties that the complainant failed to maintain the vehicle properly cannot be accepted as such.  Admittedly, the first free service was done by the 1^st opposite party/dealer Seetharam Auto Sales and Service.  Thereafter the complainant filed the complaint in OP.101/03.  So, naturally the complainant would not be interested in getting the vehicle serviced at the workshop of the 1^st opposite party.  Thus, he approached another authorized dealer who is having the workshop in Thrissur itself.  The complainant was asked to produce the User’s Manual of the said vehicle by filing an inter-locutory application, I.A.No.503/08.  Thereby the complainant produced the aforesaid owner’s manual.  But the opposite party was not interested in getting that document marked.  So, the Forum below has not forwarded the aforesaid user’s manual to this commission. The case of the complainant that vehicle was serviced and it was having proper maintenance is to be accepted.  Moreover, there is no finding of the expert commissioner that the defects in the vehicle are due to improper maintenance of the vehicle.  On the other hand, the expert reports would make it clear that the vehicle was having manufacturing defects.  So, the Forum below can be justified in finding deficiency of service on the part of the opposite parties 1 and 2.

9.      The Forum below passed the impugned order against the 1^st opposite party (appellant) and 2^nd opposite party/manufacturer.  It is to be noted that the dealer and the manufacturer filed a joint version before the Forum below.  But only the 1^st opposite party/dealer has preferred the present appeal challenging the correctness of the impugned order passed by the Forum below.  Thus, the 2^nd opposite party (2^nd respondent) manufacturer has not preferred any appeal challenging the correctness of the impugned order passed by the Forum below.

10.    There is no dispute that as per the warranty conditions, the manufacturer is liable to replace the defective parts during the warranty period.  The manufacturer has also guaranteed for the satisfactory performance of the vehicle during the warranty period.  But in the present case on hand, the vehicle purchased by the complainant developed problems during the warranty period.  The expert commissioner has also pointed out the defects and he also suggested replacement of the defective parts.  The expert commissioner has no case that the defects in subject vehicle could not be rectified/repaired.  The Forum below has rightly disallowed the prayer for replacement of the defective vehicle by a new vehicle.  There is also no provision in the warranty for replacement of the defective vehicle by a new vehicle.  As per the warranty, the manufacturer is bound to replace the defective parts and to make the vehicle a defect free vehicle.  So, the appellant being the dealer and the 2^nd opposite party/2^nd respondent being the manufacturer are liable to make the subject vehicle a defect free one by making necessary repairs including replacement of the defective parts.

11.    The Forum below has ordered to refund half of the P4 invoice amount.  But no reason is stated for ordering refund of half of the P4 invoice amount.  There is nothing on record to show the required cost for repairing the defective vehicle.  In the absence of any such data or material it is not fair on the part of the Forum below in awarding refund of half of the invoice amount.  So, the best and suitable order that can be passed is to direct the appellant/1^st opposite party and 2^nd respondent/2^nd opposite party to replace the defective parts and to make the subject vehicle a defect free one and thereby to make the vehicle in a roadworthy condition.  The opposite parties 1 and 2 are also liable to extent the warranty for another one year from the date on which the defective vehicle is handed over to the complainant in a defect free condition.

12.    The 1^st respondent/complainant has incurred expenses for taking out an expert commission and also in prosecuting the complaint in OP.101/03.  So, the Forum below has awarded a very reasonable amount of Rs.3000/- by way of cost.  We have already directed the opposite parties to replace the defective parts of the vehicle and to make the vehicle in a roadworthy condition.  It is also to be borne in mind that the 1^st respondent/complainant is using the vehicle with the problems thereon.  Considering that aspect also the compensation of Rs.5000/- ordered by the Forum below is treated as unwarranted.  Hence the same is set aside.  In the event of failure of the appellant/1^st opposite party and 2^nd respondent/2^nd opposite party in effecting repairs to the vehicle by replacing the defective parts, the appellant/1^st opposite party (dealer) and the 2^nd respondent 2^nd opposite party (manufacturer) will be liable to refund the price of the vehicle amounting to Rs.57,095/- on return of the subject vehicle to the appellant/1^st opposite party (dealer).

In the result, the appeal is disposed of as indicated above.  Thereby the impugned order dated:23-10-2009 passed by CDRF, Thrissur in OP.101/03  is modified.  The appellant/1^st opposite party (dealer) and the 2^nd respondent/2^nd opposite party (manufacturer) are directed to replace the defective parts of the subject motor cycle and to make the vehicle in a roadworthy condition.  The 1^st respondent/complainant (consumer) is directed to produce the subject motor cycle for repairs including replacement of defective parts before the appellant/1^st opposite party and on production of the said vehicle the opposite parties 1 and 2 being the dealer and the manufacturer of the vehicle will effect the necessary repairs including replacement of the defective parts within two months from the date of production of the said vehicle.  On the failure of the opposite parties to comply with the aforesaid direction, they will be liable to refund the purchase price of the vehicle amounting to Rs.57,095/- and in that event the 1^st respondent/complainant will surrender the vehicle to the appellant/1^st opposite party.  The cost of Rs.3000/- ordered by the Forum below is confirmed.  The compensation of Rs.5000/- awarded by the Forum below is quashed.  The opposite parties 1 and 2 are also directed to extend the warranty for another one year from the date on which the said defective vehicle is handed over to the complainant in a defect free condition.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

M.V. VISWANATHAN   : JUDICIAL MEMBER

VALSALA SARANGADHARAN: MEMBER

M.K. ABDULLA SONA : MEMBER

VL.