O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this petition u/s.12 of the C.P. Act 1986 for getting reliefs from the opposite parties.

                   2. The case of the complainant is stated as follows:  On 07.04.2015 the complainant approached the opposite parties for the purchase of a motor cycle manufactured by the 1^st opposite party.  The complainant inspected the motor cycle from the show room of the 2^nd opposite party and decided to purchase a motor cycle.  At the time of the purchase of the motor cycle the 3^rd opposite party, the sales executive of the 2^nd opposite party, orally stated that the motor cycle CB UNICORN DAZZLER is having a particular standard, grade, composition, style and model which was available in the show room was introduced to the complainant.  The complainant believed the words of the 3^rd opposite party and signed the booking form of that motor  cycle with 2^nd opposite party for an amount of Rs.82,592/-.  On 10.04.2015 the 2^nd opposite party delivered the motor cycle for a consideration of Rs.82,592/-.  The said motor cycle was registered on 13.04.2015 vide Reg.No.KL-3-Y-9024.  It is contended that the said motor cycle showed starting trouble on subsequent days and the complainant entrusted the same with the 2^nd opposite party for rectification.  After rectifying the said defect subsequently it is noticed that the vehicle was became off when it was riding.  Though the 2^nd opposite party inspected all these defects but failed to rectify it so that the vehicle is still remaining with 2^nd opposite party.  It is contended that the above said vehicle was manufactured in the year 2013 but the 2^nd opposite party purposefully suppressed this fact to the complainant.  According to the complainant, in order to gain more benefit the 3^rd opposite party compelled the complainant to purchase the said motor cycle, which was having mechanical defect.  When the opposite party fails to cure the above said defects he requested to the opposite parties for the replacement of a new vehicle which is free from all defects.  According to the complainant, even though they approached the opposite parties for a replacement of the defective vehicle they failed to redress the grievances of the complainant so that the opposite parties are committed clear deficiency in service and unfair trade practice against the complainant.  Hence, this complaint for refund of the price of the vehicle Rs.82,592/- with interest, compensation, cost etc. etc.

                   3. This Forum entertained the complaint and issued notice to opposite parties for their appearance.  All the opposite parties entered appearance and they filed a joint version as follows:  According to the opposite parties, there is no cause of action for this complaint and this Forum lack jurisdiction to entertain the complaint.  The opposite parties are admitted that the complainant purchased CB UNICORN DAZZLER from the 2^nd opposite party on 08.04.2015 and the same was delivered on 13.04.2015.  The purchase was effected without any introduction or canvassing as alleged by the complainant.  It is contended that the complainant and the son selected the said motor cycle knowing all the realities with regard to the year of manufacture and condition of the vehicle etc.  It is again contended that the allegation of starting trouble and engine off all are only cooked up stories and there is no realities in it.  It is again contended that the complainant had not been reported the starting trouble or stopping of the engine even on 05.05.2015, i.e. the date of 1^st service.  It is again contended that in spite of repeated demands from the side of 2^nd and 3^rd opposite parties, the complainant did not turn up to collect the vehicle by saying that his son was not interested in using that vehicle and wants to exchange the vehicle with some other brand.  According to the opposite parties, there was no manufacturing defect for the said vehicle and the opposite parties did not commit any unfair trade practice or deficiency in service as alleged by the complainant.  It is further contended that the complainant has no right to get any relief claimed by this complaint and the opposite parties prayed to dismiss the complaint with cost to them.

                   4. On the basis of the complaint, version and records before the Forum, we framed the following issues for consideration:

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

                   5.  In order to prove the case of the complainant, the complainant he who filed proof affidavit in lieu of his chief examination and he is examined as PW1, marked Ext.A1 to A4 and Ext.C1 and C2.  Ext.A1 is the Booking Form dated 07.04.2015.  Ext.A2 is the retail invoice dated 09.04.2015 for Rs.70,920/-.  Ext.A3 is the copy of R.C. Book of the vehicle.  Ext.A4 is the Receipt/Gate Pass dated 07.05.2015. Ext.C1 is the commission report dated 30.11.2015 and Ext.C2 is the commission report dated 02.11.2015.  On the other side, DW1 to DW3 were examined and marked Ext.B1.  Ext.B1 is the copy of the identity card of Kalesh Kumar, Technician, Muthoot Honda.  After the conclusion of the evidence of both sides, we heard both sides.  The counsel who is appearing for the complainant filed an argument note in their favour.

                   6. Point No.1:-  The opposite parties contended that this Forum has no jurisdiction to try this case as such the case is not maintainable before the Forum.  When we peruse the whole evidence of this case, it reveals that the complainant he who purchased the vehicle is manufactured by 1^st opposite party, which was delivered by 2^nd opposite party by receiving an amount of Rs.82,592/-.  Even though, the opposite party seriously contended the maintainability issue they failed to produce any substantial evidence to succeed their contention.  It is evident to see that the complainant is a consumer and the opposite parties are service providers as far as this case is concerned.  Hence we find that this case is maintainable and this Forum is enjoyed all right to try this case.  Hence Point No.1 found accordingly.

                   7. Point Nos.2 & 3:-  When we peruse the evidence of this case, it is to see that the PW1 complainant purchased this vehicle from 2^nd opposite party, which was manufactured by 1^st opposite party and 3^rd opposite party is the sales agent of 2^nd opposite party.  It is also come out in evidence to see that 3^rd opposite party instigated the complainant to purchase the said vehicle and he succeed to convince the complainant for the purchase of the said vehicle.  If so, the next question to be considered is whether the opposite parties of this case committed any deficiency in service or unfair trade practice with regard to this vehicle.  When we examine the evidence of this case it reveals that the vehicle in question was purchased by the complainant by paying Rs.82,592/- as its consideration.  The complainant PW1 repeatedly submitted that the vehicle in question was having starting trouble and also having engine trouble at the time of riding.  In order to prove or substantiate the case of PW1, a commission was allowed and the commissioner inspected the vehicle and filed a report which is marked as Ext.C1 and C2.  The Ext.A1 dated 07.04.2015 shows that the price of the vehicle is Rs.70,920/-, the insurance is for Rs.2,008/- and registration fee and road tax is Rs.6,924/-.  When we look into the evidence of this case, it can be seen that the Ext.A1 document is not challenged by the opposite parties hence it is binding to opposite parties.  As per Ext.A2, it is again pointed out that the price of the vehicle is Rs.70,920/- and the 2^nd Page of Ext.A2 shows that the sales tax details as Rs.413/-.  Ext.A3 registration certificate also shows that the motor bike description is CB UNICORN DAZZLER and the complainant is the registered owner.  It also reveals that the year of manufacture of the said motor bike is on 2013 and the date of registration of the vehicle is on 13.04.2015.  Ext.A4 gate pass dated 07.05.2015 shows that the vehicle was delivered to the complainant on 08.05.2015.

                   8. On the other side, opposite parties and their witnesses in this case are examined as DW’s 1 to 3 and marked Ext.B1 in their favour.  DW1 is the Asst. Motor Vehicle Inspector of Pathanamthitta R.T.O office is the commissioner in this case he who filed Ext.C1, C2 commission report before this Forum.  DW2 is the manager of the 1^st opposite party he who filed a proof affidavit in his favour.  At the time of cross of PW2 he answered, “ഈ വാഹനം പരാതിക്കാരന് നൽകുന്ന സമയം  2013 Model ആണെന്ന് അറിയാമായിരുന്നു  07.04.2015-ൽ ആണ് വാദി വാഹനം വാങ്ങാൻ വന്നത് . വാഹനം വിൽക്കുന്ന സമയം ഈ വാഹനം വിപണിയിൽ നിന്ന് പിൻവലിച്ചിരുന്നില്ല”.  Again he answered, “ഈ കേസിലെ പരാതിക്കാരന് sale ചെയ്യുന്ന സമയത്ത് ടി വാഹനത്തിൻറെ same model വിപണിയിൽ ഉണ്ടായിരുന്നില്ല. ഈ കേസിലെ പരാതിക്കാരനോട് ഈ model ഇപ്പോള് വിപണിയിൽ ലഭ്യമല്ല എന്ന് പറഞ്ഞിരുന്നു.  (Q & A).  Sale promote ചെയ്യാൻ യഥാർത്ഥ വസ്തുത പരാതിക്കാരനോട് പറഞ്ഞില്ല എന്നത് ശരിയല്ല .  (Q & A).  Sale promote ചെയ്യാൻ മൂന്നാം O.P പറഞ്ഞ ഗുണഗണങ്ങള് പറഞ്ഞതിൻറെ അടിസ്ഥാനത്തിലാണ് വാദി വാങ്ങിയത് എന്നത് ശരിയാണ്.”.  On the basis of the answer in cross-examination of DW2, it reveals that the complainant purchased the vehicle knowing that the vehicle he purchased was a Model of 2013.  Even though, the complainant alleged suppression on the part of the opposite party with regard to the Model of the vehicle that contention has not been proved by the complainant.  In another question he answered, “07.05.2015 മുതൽ ഇന്നുവരെ വാഹനം എൻറെ സ്ഥാപനത്തിൽ ആണ് എന്നത് ശരിയാണ്. In the light of the answer given by DW2, it is clear that the vehicle in question is in the possession of 2^nd opposite party and the same was entrusted there for curing certain defects.  DW3 is a senior technician of 2^nd opposite party workshop he answered in cross, “എനിക്ക്  technical വിഷയത്തിൽ സാങ്കേതിക പരിജ്ഞാനം ഇല്ല.  O.P ക്ക് വേണ്ടി മൊഴി നൽകാൻ എനിക്ക് അധികാരപത്രം തന്നിട്ടില്ല”.  Again he adds, “ഈ കേസിലെ   2þ-Dw, 3þDw O.P കള് ഈ വാഹനത്തിൻറെ  complaint എന്നോടു ചോദിച്ചു മനസ്സിലാക്കിയിട്ടില്ല (Q & A).  Witness adds, “O.P എന്ന് ഞാൻ ഉദ്ദേശിച്ചത് വാഹനം വാങ്ങിയവരെയാണ്. ഈ കേസിലെ എതൃകക്ഷികളെ എനിക്ക് അറിയില്ല. ഈ വാഹനത്തിൻറെ  complaint എന്താണ് എന്ന് case-ലെ 1 മുതൽ 3 വരെ എതൃകക്ഷികള് എന്നോട് ചോദിചിട്ടില്ല”. On the basis of the answers in cross-examination of DW3, we are not in a position to rely his evidence for the decision of this case.

                   9. When we peruse Ext.C1 report dated 02.11.2015 it shows that the commissioner issued notice to both sides and he inspected the motor bike on 26.10.2015, 28.10.2015 and 30.10.2015.  According to the commissioner, the year of manufacture of the vehicle is on 03/2013 and the said vehicle is registered on 13.04.2015.  The category of the vehicle is CB UNICORN DAZZLER as stated by the complainant.  In the Ext.C1 report, the commissioner stated that the vehicle is suffering any kind of starting trouble or engine problem at the time of riding.  Ext.C2 report dated 30.11.2015 is also prepared by the same commissioner by the direction of this Forum.  In Ext.C2 on 09.11.2015, 11.11.2015 and on 17.11.2015, the commissioner inspected the vehicle from the Forum building.  It is to see that as per the direction of this Forum 2^nd opposite party produced the vehicle before the Forum and the said vehicle was kept within the court hall for inspection.  It is stated that on 11.11.2015 and on 17.11.2015 there was some starting trouble for the said vehicle and only on 3^rd time the vehicle was become functionable.  It is also                                              stated that on 09.11.2015 the vehicle was functioned smoothly. It is also interesting to see that the commissioner stated in the 6^th Para of his report as follows: “വാഹനം ഫോറത്തിൻറെ ഓ
ഫീസിൽ സൂക്ഷിച്ചതിനാൽ രണ്ടാമത്തെ പ്രാവശ്യവും മീന്നാമത്തെ പ്രാവശ്യവും സ്റ്റാർട്ടിങ്ങിൽ ചില തടസ്സങ്ങള് വന്നു. എന്നാൽ വാഹനം മൂന്നു തവണ പരിശോധിച്ചതിൽ നിന്നും വാഹനത്തിൻറെ സ്റ്റാർട്ടിങ്ങിലും , പ്രവർത്തനത്തിലും തകരാറുകളൊന്നും കണ്ടില്ല. വാഹനം നല്ല രീതിയിൽ പ്രവർത്തിച്ചു. ”.  The complainant in this case filed serious objection with regard to Ext.C1 and C2 commission report.  Apart from this objection, the complainant’s counsel cross-examined the commissioner as DW1 and he answered in cross, “09.11.2015 –ൽ  നിങ്ങള് വാഹനം ഓടിച്ചു നോക്കിയില്ല എന്ന് വാദി പറയുന്നു. (Q) എന്നോട് ഓടിച്ചു നോക്കാൻ ആവശ്യപ്പെട്ടില്ല  start ചെയ്യാൻ ആണ് ആവശ്യപ്പട്ടത്. (A).  എനിക്ക് Forum ത്തിൽ നിന്ന് ലഭിച്ച commission application-þ ൽ വാഹനം ഫോറം മുമ്പാകെ വച്ച് ഓടിച്ചു നോക്കാൻ ആവശ്യപ്പെട്ടിരുന്നു.”.

                10. When we peruse the Ext.C1 report and the above said answer of DW1, it can be inferred that the starting trouble of the motor bike arised for the reason of keeping it in the Forum hall.  Even a layman cannot believe the statement of DW1 with regard to this aspect.  Again DW1 answered to a question, “പുതിയ motor bike ആണെങ്കിൽ പെട്ടെന്ന്  start ആവേണ്ടതാണ്.  Witness adds, “വാഹനം 2 ദിവസം ഉപയോഗിക്കാതിരുന്നാൽ ഇങ്ങനെ ഉണ്ടാവും”.  This answer of DW1 also shows that he is highly biased to opposite parties by giving answers.  If a vehicle kept in a safe room for 1 or 2 days, there is no chance of happening any starting trouble, if the vehicle was perfect.  The opposite party’s learned counsel argued that PW1 and his son purchased the Model 2013 motor cycle knowing that its Model is in the year 2013 and complainant received certain benefit on the purchase of the old model motor cycle.  When we peruse the evidence of this case the complainant not succeeds to rebut the evidence adduced by the opposite parties in this regard.  But on the other side, the complainant PW1 proved that the vehicle he who purchased from 2^nd opposite party suffered so many defect within the warranty period.  When we go through the evidence it also shows that about 1 months time of its purchase the complainant entrusted the vehicle for repairing to opposite parties workshop for six times.  It can be inferred that the vehicle purchased by the complainant was suffering basic defect even at the time of its purchase.  It also proves that the opposite parties failed to rectify the mistakes shown by the complainant.  No prudent man can think that if a person purchased a new vehicle after paying a sum of amount, which is keeping in a motor workshop as idle.  Another important fact to be considered is the commissioner is duty bound to ride the vehicle at the time of his 2^nd inspection dated 09.11.2015.  He admitted that even though the test riding is directed by the Forum he did not comply it.  The non-compliance of a material fact which was directed by the Forum by the commissioner is not justifiable.  The performance and the style of reporting of the fact by the commissioner through Ext.C1 and C2 also proved the non reliability of Ext.C1 and C2 commission report.  The learned counsel appearing for the opposite parties argued that due to the use of adulterated fuel these defects might have been arised.  The commissioner who is an officer attached to the motor vehicle department he who is competent to examine the adulteration of the fuel as alleged by the opposite parties.  The said commissioner has also not given any specific answer with regard to the use of adulterated fuel.  The learned counsel appearing for the complainant vehemently argued that the vehicle delivered to PW1 was suffering mechanical defect and the same was not curable.  When we peruse the Ext.C1 commission report and the answer of DW1 before this Forum, it reveals that though the motor bike shown some starting trouble, it have been resolved in 3^rd test.  Even though, for argument sake the competency of the vehicle is somehow admitted a customer or a consumer has not been expected to use such a kind of defective vehicle at the beginning stage of its purchase.  Moreover, it is clear that all its defects are happened within one month of its purchase and within the warranty period.  In brief, it is so clear that the complainant purchased a vehicle from the 2^nd opposite party and the same was suffering starting trouble even in the early month of its purchase and the same defect is even visible at the time of the inspection of the commissioner (DW1) in this case.  Considering all these facts, we can easily presume that the vehicle purchased by the complainant is suffering mechanical defect and it is not cured.  The said defect was happened within the warranty period.

                   11. In order to substantiate the case of the complainant, the complainant submitted a decision reported in CPJ 2015 the dictum of the decision is as follows:- “Consumer Protection Act, 1986 Sections 2(I) (f), 2(I)(g), 14(I) (d) and 15 – Consumer Complaint – Vehicle purchased by complainant – Manufacturing defects occurred within warranty period – Non-delivery of vehicle after repairing – complainant filed before Dist. Forum alleging deficiency in service – Complaint allowed – President appeal filed against same – Case of the opposite party is that when the technician of the first opposite party went to install the censor on back wheel of the vehicle, complainant refused – But there was no evidence to substantiate the same – Order passed by Dist. Forum upheld – Appeal dismissed”.  Apart from the above decision, the complainant’s counsel cited another 4 decision reported in ALR 253 (84) 2011, CPJ 381 (2) 2016, CLT 586 (3) 2015, CLT 294 (4) 2015.  As per the decision reported in CLT 586 (3) 2015 the complainant is entitled to replacement of the vehicle with a new one with fresh warranty. 

                   12. In the light of the above discussion, we find that the complainant is succeed to prove his case and also found that the opposite parties 1 to 3 are committed deficiency in service and unfair trade practice against the complainant.  In this case, the complainant is also seeks compensation from the opposite parties for the non performance of the motor bike which he purchased.  Considering the nature and circumstances of this case, however the complainant demanded a huge compensation from the opposite parties, there is no sufficient evidence in complainant’s favour to allow a huge compensation to complainant when we consider the whole evidence of this case.  At the same time, we ought to know the mental agony and other difficulties faced by the complainant as a result of the purchase of this vehicle.  Hence we find that the complaint is allowable and the opposite parties 1 to 3 are equally and severally liable to the complainant.  Point No.2 and 3 are also found in favour of the complainant.

                   13. In the result, we pass the following orders:

1. The opposite parties are directed to refund an amount of Rs.82,592/- (Rupees Eighty Two Thousand Five hundred and ninety two only) to the complainant as the price of the defective vehicle with an interest of 10% from the date of filing of this case onwards, i.e. 28.05.2015.

2. The opposite parties are also directed to pay a compensation of Rs.10,000/- (Rupees Ten Thousand only) and a cost of Rs.3,000/- (Rupees Three Thousand only) to the complainant with 10% interest from the date of receipt of this order.

3.  If the opposite party 1 to opposite party 3 complied the order No.1 and 2 the complainant shall be transferred the motor bike bearing Reg.No.KL-3-Y-9024 as directed by the opposite parties.

                    Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 31^st day of December, 2016.

                                                                                              (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                         (President)

Smt. K.P. Padmasree (Member – I)               :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Jacob Samuel

Exhibits marked on the side of the complainant:

A1 :  Booking Form dated 07.04.2015. 

A2 :  Retail invoice dated 09.04.2015 for Rs.70,920/-. 

A3 :  Copy of R.C. Book of the vehicle. 

A4 :  Receipt/Gate Pass dated 07.05.2015.

Witness examined on the side of the opposite parties: 

DW1  :  Ajithakumar. K.S

DW2  :  Aju Mathew Oommen

DW3  :  Kaleshkumar. V.O

Exhibits marked on the side of the opposite parties:

B1  :  Copy of the identity card of Kalesh Kumar, Technician, Muthoot Honda.

Court Exhibits:

C1  :  Commission Report dated 30.11.2015

C2  :  Commission Report dated 02.11.2015    

                                                                                      (By Order)

Copy to:- (1) Jacob Samuel, Mannil Veedu, Thumpamon Thazham. P.O.,

                   Mezhuveli Village, Kozhencherry Taluk, Pathanamthitta Dist.                        (2) Honda Motor Cycles & Scooter India Ltd. (HMSI),

          Plot No.1 & 2, Sector 3, IMT, Manesar Dixstrict, Gurgaon,

          Hariyana – 122 050.

     (3) Proprietor, Muthoot Motors (Cochin),

          Muthoot Buildings, Near District Stadium,

         College Road, Pathanamthitta – 689 645,

     (4) Arsha, Sales Executive, Muthoot Motors,   -do.  –do.

     (5) The Stock File.