KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL   COMMISSION  VAZHUTHACADU    THIRUVANANTHAPURAM

                                     APPEAL  NO: 501/2009

JUDGMENT DATED:13..04..2010.

PRESENT

SMT.VALSALA SARANGADHARAN       : MEMBER

SHRI. S.CHANDRAMOHAN NAIR                    : MEMBER

The Managing Director,

Kinetic Engineering Ltd.,

D-1 Block, Plot No:18/2,                                       : APPELLANT

Chinchwad, Pune-411 019,

Maharashtra.

(By Adv: Sri.M.Sasindran & Bipin M.V.)

            Vs.

1.K.Ismail,

   S/o Ummer,

   Kizhakkiniyakath House,

   P.O.Niramaruthur,                                               : RESPONDENTS

   Tirur Taluk, Malappuram Dist.

2.The Proprietor/Partner/Manager,

   Reliance Motors, Pookayil, Tirur Taluk,

   Malappuram District.

                             JUDGMENT

SMT.VALSALA SARANGADHARAN : MEMBER

The above appeal is preferred from the order dated:6/7/2009 of CDRF, Malappuram in OP:138/03 whereby the 2^nd opposite party is directed to pay a sum of Rs.40,000/- along with 9% interest per annum from the date of complaint with costs of Rs.5000/- to the complainant.

2. It is the case of the complainant that on 27/8/2001 he purchased a “Kinetic Challenger” Motor Cycle from the 1^st opposite party which was manufactured by the 2^nd opposite party.  The opposite parties offered 2 years warranty and assured mileage of 70 Kms per litre.  The consideration was paid by a loan arranged through 1^st opposite party from Kinetic Finance Ltd. which is an associate business concern of the 1^st opposite party.  The complainant had to incur Rs.20,000/- as finance charges.  Within 2 weeks of purchase the vehicle showed certain defects and though it was repaired the defects persisted and showed further complaints.  The vehicle was taken for repairs to the 1^st opposite party several times and the engine was opened and repaired.  But the defects could not be rectified.  The silencer and engine got abnormally heated and the 1^st opposite party was convinced of the defects and informed the complainant that there was manufacturing defect and that there are several other consumers who had purchased the same type of vehicle also have similar complaints.  The 1^st opposite party assured to take up the matter to the manufacturer but after completion of the free service the 1^st opposite party did not provide any support to rectify the defects.  The troubles in the vehicle persisted.  So he filed complaint before the Forum claiming for refund of the price of the vehicle with Rs.1,00,000/- as compensation with 18% interest per annum from the date of purchase of the vehicle till the date of payment with costs.

3. The 1^st opposite party filed version admitting the sale of the vehicle to the complainant.  It is denied that the vehicle had defects.  It is contended that the 1^st opposite party had trained expert mechanics and best service was given to the complainant and job cards would show that the allegations are false and contended that the 1^st opposite party is not responsible for any reliefs claimed by the complainant as he is only a service agent of the manufacturer.

4. The 2^nd opposite party also filed version and contended that there is no warranty for replacement of the vehicle or refund of price and the warranty is only for free repair/replacement of certain parts only.  They further submitted that the complaints reported were promptly attended at free of cost and the complainant after fully satisfying the work done has taken back the vehicle.  As the warranty period is over, if required repairs it can be done only at the expense of the complainant.

5. We heard the learned counsel for the appellant and 1^st respondent.  The learned counsel for the appellant argued his case based on the grounds urged in the Memorandum of the present appeal.  He submitted that it can be seen from the job cards produced by the appellant that all free services were done and minor defects were rectified then and there without any complaints and the vehicle was delivered to the complainant.  From the job cards it can be seen that the motor cycle had covered more than 20000 Kms and the complainant never approached the appellant and the 2^nd respondent after the free service and has not done any periodical service or rectified any major defects and this made the condition of the vehicle worse.  Hence there was no deficiency on their part and prayed for setting aside the impugned order passed by the Forum below.

6. On the other hand, the learned counsel for the 1^st respondent/complainant supported the finding and conclusions arrived at by the Forum below and prayed for upholding the order of the Forum below alleging that the opposite parties were deficient in rendering service.

7. The Forum below has relied on the commission report which was marked as Ext.C1.  The commissioner has noted the following defects.

1.Engine oil leakage through head and crank case.

2.Kicker pedal broken and detached from seating.

3.Gear shifting very hard.

It was also noted by the commissioner that the vehicle was not in a condition to drive and so he could not test drive the vehicle and could not assess the mechanical condition of the same and that the Oddo meter reading was 9907 Kms at the time of inspection.

8. The main contention of the 1^st respondent/complainant is that within two weeks of purchase itself the vehicle started mal functioning and noticed the problems like leakage of engine oil, high vibration, high noise and abnormal emission of smoke from the vehicle.  Even after repairs the problems continued to exist and because of the mal functioning of the said vehicle he suffered inconveniences and losses.  DW1, the Service Engineer of the appellant/2^nd opposite party admitted that at the time of inspection of the expert commissioner the vehicle was not in a pliable condition.  He has also admitted that the company stopped production of this model of vehicle.

9. Thus it is noted that immediately after purchase, the vehicle had developed problems.  It is seen from the report of the commissioner, that the vehicle has serious problems and is not in a pliable condition at the time of inspection.  There is no doubt that the complainant had to suffer mental agony and inconveniences due to this.  The manufacturer had admitted that they had stopped manufacturing of this model of motor cycle.  The complainant has alleged that even after repeated repairs the vehicle was having the same defects and on account of that he had been put to much inconveniences on several occasions.  It is to be noted that the complainant is still using the vehicle.  More than 8 years have elapsed.  The Forum below ordered to refund the price of the vehicle with 9% interest from the date of complaint till the date of payment together with Rs.5000/- as cost.  We find that at this distance of time the impugned order directing the 2^nd opposite party to give the price of the vehicle is not proper.  In the said circumstances we are of the view that it would be reasonable to direct the appellant/2^nd opposite party to pay a sum of Rs.15,000/- as compensation for the loss and injury suffered by the complainant with 9% interest from the date of order of the Forum below.  The order of the Forum below regarding payment of costs, of Rs.5000/- also appears on the higher side.  Hence the same is reduced to Rs.2500/-.

In the result the appeal is allowed in part thereby the appellant/2^nd opposite party is directed to pay Rs.15,000/- with 9% interest from the date of order of the Forum below till the date of payment.  The order of the Forum below in directing the appellants to pay Rs.5000/- as cost is reduced to Rs.2500/-.  As far as the present appeal is concerned there shall be no order as to costs.

VALSALA SARANGADHARAN  : MEMBER

S.CHANDRAMOHAN NAIR  : MEMBER

VL.