KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

                            VAZHUTHACAUD THIRUVANANTHAPURAM                                                                                                                   

APPEAL NO.556/10

JUDGMENT DATED 02.09.11

PRESENT

SHRI.S.CHANDRAMOHAN NAIR                    --  MEMBER

1.      M/s Bajaj Auto Ltd;

Reptd by its Area Service Manager

M/s Bajaj Auto Ltd; Krishnakripa,

39/3584 KSN Menon Road,                     --  APPELLANTS

Kochi – 16.

2.      M/s Popular Vehicles and Services Ltd;

Indian Express building,

Kaloor, Kochi-17.                                               

               (By Adv.S.Reghukumar & Ors.)

                             Vs.

Mr.Denny.C.I,

Konikkara House,

Choolissery P.O,                                                          --  RESPONDENT

Thrissur.

   (By Adv.Jagadeeshkumar, Amicus curiae)

JUDGMENT

SHRI.S.CHANDRAMOHAN NAIR,MEMBER

          It is aggrieved by the directions contained in the order dated                                                         30.6.2010 of CDRF, Ernakulam  in OP.336/01 that this appeal is filed by the opposite parties.    By the impugned order they are under directions to replace the  scooter  in question with a new one of the same price or refund the price of the scooter as per Ext.A1 with interest at 12% per annum.

          2. The complainant has approached the Forum stating that he has purchased a Bajaj Suffire 4 stroke vehicle from the  second opposite party and that the vehicle had so many defects even from the  date of delivery.  The complaint was filed claiming replacement of the vehicle by a new one and to pay compensation and costs.

          3. Opposite parties denied the allegations of the complainant and in the version they disputed the defects pointed out by the complainant.  It was submitted that the vehicle in question had no defects and they prayed for the dismissal of the complaint with costs.

          4. On the evidence of the complainant and the documents produced by him and also on the evidence of the service engineer of the opposite parties who was examined as DW1 the Forum below vide order dated 11.12.03  directed the second opposite party to repair the vehicle on production of the vehicle by the complainant before the opposite party.  However, the said order was taken up in appeal by the complainant and the matter was remanded   for a fresh disposal on merits as per orders in Appeal 167/04.  The Forum below reopened the matter and gave   opportunity to the complainant  to adduce further evidence.    The vehicle was examined by an expert who was examined as PW2 and his  report were marked as Exts.C1  and C2.  It is based on the entire evidence that the Forum below passed the impugned order.

          5. Heard the learned counsel for the appellants and the amicus curiae appointed by this Commission for the respondent.

          6. The learned counsel for the appellants vehemently argued before us that the order of the Forum below finding that the vehicle had manufacturing defect cannot be sustained from any corner since the commissioner had not inspected  the vehicle properly and also that it was without the juncture of the opposite parties that the commissioner had inspected the vehicle.  It is his very case that the commissioner had seen the vehicle after it was dismantled by some other persons and the commissioner had only occasion to see the vehicle in a dismantled stage  and hence the commission report stating that  the vehicle had manufacturing defect cannot be accepted.    The learned counsel advanced the further contention that   the reports were cooked up to suit the convenience of the complainant.   It is also his case that   the commissioner himself had stated that the vehicle had  run 4915 kms. at the time of inspection.    Thus, he canvassed for the position that the order of the forum below is unsustainable  and argued   for the dismissal of the complaint with costs.  

          7. On the other hand, Adv.Jagadeeshkumar,   the amicus curiae appointed by this Commission,  supported the findings and conclusions of the forum below.  It is submitted by him   that the vehicle had so many defects and the commissioner had pointed out that the damage to the engine was due to manufacturing defect.  It is also submitted by him that it was not the fault of the commissioner that the opposite parties were absent at the time of inspection of the vehicle.  The commissioner himself had stated before the Forum that the opposite parties promised   him to be present in the afternoon for inspecting the vehicle.    He has canvassed for the position that the earlier order directing the opposite party to repair the  vehicle was not challenged by the opposite parties which would  indicate that the vehicle had defects from the very beginning  itself and the complainant was put to untold harassment and hardships at the hands of the opposite parties.  The learned counsel argued for the dismissal of the appeal with compensatory costs. 

          8. On hearing both sides and also on perusing the records, we find that it is the admitted case of both parties that the  complainant had purchased the vehicle in   question from the second opposite party and that  very many defects were pointed out by him to the opposite parties.  It is also found that an expert commission had examined the vehicle.  But on going through the cross examination, we find  that the commissioner had inspected the vehicle  in the absence of the opposite parties or their representatives.  It is also found that when the commissioner had come to see the vehicle, the engine was already   dismantled and there was enough engine oil in the assembly.  The appellant would argue that engine oil was poured in the engine before the arrival of the expert and hence his finding that in spite of having engine oil there was defect in the engine.    It is also found that the second opposite party has filed  an objection to the commission report stating that no notice was given   before inspecting the vehicle by the commission.   However, it is to be found that the complainant was having  a case that the vehicle had defects from the very beginning itself.  It is also found that the complainant had run the vehicle for a considerable distance of 4915 kms. at the time of inspection.   It is   to be seen that though the manufacturing defect cannot be attributed to the vehicle in question, in the given facts and circumstances it cannot be totally said that the vehicle had no defects at all.    The complaint  was filed as back in 2001 and once it was remanded for fresh disposal and further remand of the matter would be putting the complainant/respondent to further difficulties.  However, the order directing the replacement of the vehicle cannot be upheld since it is found that the commissioner had inspected the vehicle without the presence of the opposite parties and also that when he reached for the inspection of the vehicle, the engine was dismantled before his arrival by other persons.  Hence, it is our considered view that  the opposite parties can be held liable for payment of compensation which we fix  as Rs.10,000/- to meet the ends of Justice.  It is also found that no order as to costs has been made by the Forum in both the orders passed on 11.12.03 and 30.6.10.  It  is found that the complainant is entitled cost of Rs.2000/- for the proceedings throughout.

          9. In the result, the appeal is allowed in part with the modifications indicated above.  Thereby, the appellants are liable to pay Rs.10,000/- as compensation with cost of Rs.2,000/- within one month from the date of receipt of this order, failing which the amounts shall carry interest at 12 % p.a. from the date of default till the date of payment.

          Office is directed to return the LCR along with a copy of this order to the Forum urgently.

 S.CHANDRAMOHAN NAIR --  MEMBER