KERALA STATE CONSUMER DISPUTES REDRESSAL
COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL 267/2010
JUDGMENT DATED 10.2.2011
PRESENT:-
SMT. VALSALA SARANGADHARAN : MEMBER
SHRI. S. CHANDRAMOHAN NAIR : MEMBER
APPELLANTS
1. The Proprietor,
M/s. KVR Motors,
Atlas Complex, Kalpetta, Pin. 673 122.
2. M/s. Bajaj Auto Ltd., Akurdi, Pune,
Pin 411 035.
( Rep. by Adv. Sri. George Cherian Karippaparambil)
Vs
RESPONDENT
Hamza, S/o Abu,
Chettiyamthoduka House, Manjalomkolly,
Puthuvayal P.O.Vythiri Taluk,
Wayanad District.
,
( Rep. by Adv. Sri. E.S. Johny Scaria)
.
JUDGMENT
VALSALA SARANGADHARAN ; MEMBER
This appeal is preferred against the order dated 29.3.2010 of CDRF, Wayanad in C.C. 67/09 whereby the Forum below directed the opposite parties to refund a sum of Rs. 49,600/- being the price of the motorcycle with costs of Rs. 2,000/- Aggrieved by the impugned order, the opposite parties preferred the present appeal.
The facts of the case are that the complainant purchased a Bajaj of X CD-125 DTS – Si Motor Cycle from the first opposite party, who is the distributor of the second opposite party. In the advertisement second opposite party offered that the vehicle is manufactured with latest technology and is having a mileage of 109km/litre. On seeing the advertisement he approached the first opposite party and on 3.6.2008 he took delivery of the vehicle after giving the entire price. Though the offered mileage was 109Km/Litre the complainant get only 60 Km/L. Moreover there were regular complaints in the chain and socket and in the break of the back wheel of the motorcycle. Though it was repaired the defects persisted. And even after 3rd service the defects were not cured. Due to this the complainant could not ply the vehicle without fear of hazard. It is understood that this was due to manufacturing defects. Hence alleging deficiency in service and unfair trade practice on the part of the opposite parties he filed complaint before the Forum claming refund of the price of the vehicle with Rs. 50,000/- as compensation.
The opposite parties filed version and contented that there was no deficiency in service on their part. They admitted the sale of the vehicle to the complainant. They denied the allegation of manufacturing defects. They further contented that the vehicle will get a mileage of 109Km/L only under test running condition with one person riding the vehicle. They alleged that the complainant is using the vehicle for carrying goods for supplying to several shops. The said use of the vehicle will not get optimum mileage as the vehicle has to stop frequently. Pleading that there was no deficiency in service on their part they prayed for dismissal of the complaint with compensatory costs.
We heard the learned counsel for the appellants and the respondent. The learned counsel for the appellants submitted that the liability of the manufacturer is in accordance with the warranty given by them and that there is warranty only for repair of the vehicle or replacing of the defective parts. Hence the direction of the Forum to refunds the price of the vehicle is un warranty and unsustainable. He further argued for the position that even from the Commission Report it can only be inferred that the vehicle requires only minor servicing, which the complainant ought to have done at regular intervals and from the Commission report it can not be concluded that there is manufacturing defects. Moreover the complainant was using the vehicle extensively in hilly region without periodical service. The abnormal sound from the front area of the vehicle can be corrected by tightening the screws which is mandatory to be done at regular intervals of every 2500 Kms and the breaks of the vehicle depends upon the road condition and riding habits of the rider and the break system had to be checked in every 5000 Km and as per Ext. A5, the owners manner the chain and socket are to be checked and lubricated in every 500Kms. The lack of maintenance made the condition of the vehicle worse. Moreover the vehicle had covered a distance of 50,000 Kms at the time of inspection by the Commissioner. Hence there was no deficiency in service on their part and prayed for setting aside the impugned order passed by the Forum below.
On the other hand the learned counsel for the respondent/complainant submitted that the complainant had taken the vehicle for repairs several times and the appellants/opposite parties have not satisfactorily repaired the vehicle. He argued for the position that the Commission report would make it clear that the vehicle was having a mileage to 70 Km/Ltre. The Commissioner has also pointed out certain serious defects the vehicle had. According to the commissioner those are manufacturing defects. The learned counsel submitted that appellants/opposite parties were deficient in rendering service and prayed for upholding the order of the Forum.
On hearing both sides and on perusing the records we find that within a short span, the vehicle started mal functioning and not getting the offered mileage of 109 Km/ltr and had regular complaints on the chain and socket assembly and the break of the vehicle was ineffective. According to the commissioner certain defects that occurred to the vehicle was due to manufacturing defects and the Commissioner also noted that the vehicle was having abnormal noise at the time of taking of the vehicle from rest and at cruising speed the slackness of the chain was found excessive and produce abnormal noise while riding and the rear shock absorbers are also inefficient and this would lead to back ache to the rider/pillion and would caused for frequent repairs of the chain and sockets. But the Commissioner in his report no where stated that these defects are not curable by repair. From the deposition of PW1 and OPW1, it clear that the vehicle had covered about 8000 kms at the time of inspection by the Commissioner. From the evidence on record it is noted that the vehicle developed problem within a short period of its purchase and after the 4th service also the abnormal sound from the vehicle persisted and other problems were also not rectified by the opposite parties. There is no ground or reason to disbelieve the testimony to Pw1 regarding the repeated repairs to the vehicle within the warranty period. There is no acceptable contra evidence available on record dis believe the testimony of Pw1. Thus the complainant has succeeded in establishing his case that the vehicle had certain defects which were not cured by the opposite parties and this caused much inconvenience and mental agony to the complainant.
Expert Commissioner filed C1 Report and this report would show that the vehicle had certain defects as alleged by the complainant and the complainant was not getting the assured mileage. So no doubt that the appellants/opposite parties are liable to repair the vehicle in a perfect road worthy condition. The complainant had claimed refund of the price of the vehicle with compensation. But now the complainant used the vehicle for more than 2 years and now also he is using the vehicle. Moreover the defects are curable by repairing and as per the warranty conditions the appellants/opposite parties are liable only to repair or replace the defective parts and not liable to refund the price of the vehicle. Considering of these aspects and the fact that the complainant failed to establish manufacturing defects in the vehicle, the prayer for refund of the price of the vehicle can not allowed.
In such a situation the opposite parties are bound to rectify the defects in the vehicle free of cost. 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 sum of Rs. 20,000/-as compensation. The complainant is also entitled to get a sum of Rs. 2,000/- which was ordered by the Forum below as costs.
In the result, the appeal is allowed in part. Thereby the order of the Forum below is modified to the extent that the appellants/opposite parties are directed to repair the vehicle in a perfect roadworthy condition free of cost, on production of the vehicle by the complainant before the opposite parties/appellants. In the event of failure to rectify the defects the appellants are liable to pay a sum of Rs. 20,000/- as compensation to the complainant. The opposite parties are also directed to pay costs of Rs. 2,000/- to the complainant which was ordered by the Forum below.
VALSALA SARANGADHARAN : MEMBER
S. CHANDRAMOHAN NAIR : MEMBER
ST
