IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 6th day of March, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
O.P. No. 149/2003 (Remanded)
Between:
Binuraj @ Babu Raj,
Malancharuvil House,
Mezhuveli P.O.,
Mezhuveli Village,
Kozhencherry Taluk,
Pathanamthitta Dist.
(By Adv. George Koshy) … Complainant.
And:
1. Kinetic Engineering Ltd.,
D-1 Block, Plot No.18/2,
Chinchwad, Pune – 411 019
represented by the General Manager.
2.Manager (Marketing),
Kinetic Engineering Ltd.,
D-1 Block, Plot No. 18/2,
Chinchwad, Pune – 411 019.
3. Proprietor,
Pulimoottil Automobiles,
Kinetic Dealer, Muttambalam P.O.,
Kanjikuzhy, Kottayam -4.
4.Suresh. S., Ayshariya Two Weeler Market,
Thookupalam, Pathanamthihtta
(Panachakkal House, Vazhamuttom P.O.,
Omallur Village, Pathanamthitta.
(By Adv. T.H. Zirajuddin for Opp. Parties 3 & 4) … Opposite parties.
ORDER
Shri. Jacob Stephen (President):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The complainant’s case is that he is the owner of a Kinetic Challenger Motor Cycle manufactured by the first opposite party. He purchased the motor cycle on 02.08.2002 from the third opposite party through the 4th opposite party. On the very same day of the purchase of the motor cycle, it showed many complaints all over its parts. The main complaints are as follows: The engine condition of the motor cycle is too bad and it had high emission of black smoke, low mileage, gear and clutch complaints, low pulling power and high vibration during running, leakage of oil, electrical problems etc. The said complaints were brought to the notice of the opposite parties. But they have not rectified the said defects. At last, the complainant made a written complaint to opposite parties 1 to 3 on 09.01.2003. On getting the said notice, the first opposite party directed the complainant to contact the third opposite party for inspecting the motor cycle. Accordingly, the complainant produced his motor cycle before the third opposite party on 28.02.2003, 21.03.2003 to 29.03.2003. Even then the complaints were not rectified. The said motor cycle is having a valid warranty for 2 years or 30000 Kms. from the date of purchase whichever occurs earlier. Now the vehicle has run only 15982 Kms. Due to the above said defects of the motor cycle, the complainant had sustained financial loss and mental agony. Since the motor cycle is having manufacturing defects, opposite parties are liable to return the price of the motor cycle and compensate the complainant for his loss and mental agony. Hence, this complaint for the realization of the price amount of ` 40,400 with 24% interest from the date of purchase along with compensation of ` 1 lakh and cost of this proceedings.
3. Opposite parties entered appearance and filed their versions.
4. First and second opposite parties filed a common version with the following main contentions: First and second opposite parties denied all the allegations of the complainant. According to them, the vehicles are manufactured and dispatched only after their passing through vigorous quality control checks and confirmation as to their performance norms. The complainant had purchased the said motor cycle on 02.08.2002 after having satisfied about the performance of the vehicle during pre-delivery inspection. The vehicle in question is free from any manufacturing defect, whatsoever. It is perfectly in order and in roadworthy condition. The complainant had used the vehicle for more than one year and it had run of 15982 Kms. as on July 2003 which itself indicates that the vehicle has been continuously in use and is having no complaints as alleged. The opposite parties have rendered free services promptly and efficiently as and when the complainant made his vehicle available before them. The grievances of the complainant have fully redressed and also replaced certain parts as per the warranty conditions. The complainant has taken delivery of the free serviced motor cycle, all the time, by taking trial and satisfying himself for the job carried out and performance of the vehicle. The fuel efficiency depends on the driving conditions, road condition, quality of the oil and petrol etc. In order to get maximum fuel efficiency, the complainant has to observe the instructions given in the owner’s manual. The allegation that the spare parts are not available is false as it is available with the authorized service centres. The vehicle in question had no manufacturing defect. The alleged claims of ` 40,400 with 24% interest and for Rs. 1 lakh towards damages are baseless, false, illegal, unwarranted and unjustifiable. The complainant has not sustained physical or mental pain. This complaint is frivolous and vexatious and is filed with some ulterior motive to harass the opposite parties and to obtain unlawful gain. The allegations of the complainant are baseless and false. There is also no deficiency in service or negligence from the part of the answering opposite parties. With the above contentions, the first and second opposite parties prays for the dismissal of the complaint.
5. The 3rd and 4th opposite parties also filed a common version with the following main contentions: According to the answering opposite parties, there is no allegation of deficiency in service against the opposite parties and hence this complaint is not maintainable against them. The warranty provided by the company is for repairs and service and hence the prayer for the price amount of the vehicle is not allowable. The vehicle had run 15982 Kms. at the time of filing this complaint. So the filing of this complaint itself is for getting unlawful gain. All the allegations raised in the complaint are false. The vehicle was purchased by the complaint after satisfying the condition. So the allegations at this belated stage is baseless and this complaint is not allowable. With the above contentions, opposite parties 3 and 4 also prayed for the dismissal of the complaint as they have not committed any deficiency of service from their part.
6. On the basis of the complaint and versions, the parties adduced their evidence before this Forum and it consists of the oral testimony of the complainant as PW1 and Exts. A1 to A12 and B1 and B2.
7. After considering the evidence, this Forum allowed this complaint in favour of the complainant.
8. Being aggrieved by the order of this Forum, first and second opposite parties preferred an Appeal before the Hon’ble Consumer Disputes Redressal Commission, Thiruvananthapuram as Appeal No. 698/2006.
9. After hearing the matter, the Hon’ble CDRC allowed the Appeal and set aside the order of this Forum and remanded the matter to this Forum for fresh disposal in accordance with law allowing the parties to adduce further evidence if they so desires.
10. Accordingly, this Forum issued notice to both parties and they appeared before this Forum. On appearance, .the complainant filed a Commission Application for appointing an Expert Commissioner for ascertaining the defects of the vehicle in question. The said application was allowed and an Expert Commissioner along with an Advocate Commissioner were appointed. Accordingly, the Commissioners inspected the vehicle and filed their reports. On the basis of their reports, the Expert Commissioner was examined as CW1 and Advocate Commissioner was examined as CW2 and the report and mahazar were marked as Exts. C1 to C3(a). Ext. C1 is the report dated 11.02.2011 submitted by CW1 and Ext.C2 is the report dated 11.02.2011 submitted by CW1. Ext. C3 is the report dated 11.02.2011 submitted by CW2 and Ext. C3(a) is the mahazar (expert report) dated 11.02.2011 prepared by CW2.
11. Subsequent to the examination of the Commissioners and after the marking of Exts. C1 to C3(a), CW1, the Expert Commissioner submitted 2 documents for showing his qualifications and experience as an expert in the field of automobile. The said documents were marked as Exts. C4 and C5 on the basis of the proof affidavit filed by CW1. Ext. C4 is the copy of certificate issued by the Institute of Motor Industry (India) in the name of CW1. Ext. C5 is the copy of Membership card issued by the Institute of Motor Industry (India) in the name of CW1. With this evidence, complainant’s evidence was closed. However, opposite parties have not adduced any oral or documentary evidence in this stage. Hence their evidence was also closed. After closure of evidence, both sides were heard.
12. The only point to be considered at this stage is whether this complaint can be allowed or not on the basis of the evidence adduced by the parties after the remand of this case?
13. The Point: The case of the complainant is that the motor cycle purchased from the opposite parties is a defective one having manufacturing defects from the date of purchase itself. His grievances are brought to the notice of the opposite parties. But they have not redressed the grievances of the complainant in spite of the warranty issued by the opposite parties. Therefore, the complainant argued for allowing the complaint.
14. Opposite parties’ contention is that the complainant’s allegations are baseless and the vehicle in question had no manufacturing defects whatsoever as alleged by the complainant. According to them, the vehicle had already run 15982 Kms. which itself shows that the complainants allegations are baseless. T his complaint was also filed after using the motor cycle for 11 months from the date of purchase. The warranty provided is only for repairs and replacement of defective parts, if any. The vehicle was serviced free of cost on different occasions in compliance to the warranty conditions. On all such occasions, the complainant took the delivery of the vehicle with full satisfaction. So according to the opposite parties, this complaint is filed only for harassing the opposite parties and with an intention for getting unlawful enrichment from the opposite parties. On the basis of the above contentions, opposite parties argued for the dismissal of the complaint.
15. On the basis of the contentions and arguments of the parties and on the basis of the Ext. C2 expert report, we have perused the entire materials on record and found that there is no dispute between the parties with regard to the sale and purchase of the motor cycle. The dispute is with regard to the manufacturing defect of the vehicle in question. In order to prove the alleged manufacturing defects of the vehicle, the complainant filed an application for appointing an Expert Commissioner. Accordingly, this Forum appointed an Expert Commissioner and an Advocate Commissioner who inspected the vehicle and filed their reports. The Commissioners were examined as CW1 and CW2 and their reports and mahazar were marked as Exts. C1 to C3(a). Out of the said exhibits, Ext. C3(a) is the relevant document wherein the expert made his opinion in respect of the alleged defects of the vehicle. As per Ext. C3(a), the vehicle is having various defects which are manufacturing defects. Opposite parties also filed their objection to Ext. C3(a). It is evident from the depositions and other evidences that the vehicle was purchased in the year 2002 and at the time of inspection of the vehicle by the Commissioners during 2010, the vehicle has been lying idle for the last 5 years. The nature of the defects noted by the Expert Commissioner can be expected from a vehicle lying idle for 5 years. CW1 has not adduced any evidence showing that he had inspected the parts after dismantling the vehicle or he had driven the vehicle. It is not possible to ascertain the alleged manufacturing defects by an external visual inspection. CW2 deposed before this Forum that at the time of inspection he had started the vehicle. But it is difficult to believe that part of his deposition based on the other part of his deposition that the vehicle was lying idle for the last 5 years. If it is admitted for argument sake that CW2 had started the vehicle, it means that the said vehicle is in working condition and it has been using by the complainant for the last 8 years. If the complainant had been using the said vehicle for the last 8 years, the defects noted by the Commissioner is due to wear and tear and are not manufacturing defects. On the other hand, if it is admitted for the argument sake that the said vehicle has been lying idle for the last 5 years, no expert can ascertain the defects without riding the vehicle or without inspecting the inner parts. CW1’s inspection was in the year 2010 i.e. after 8 years from the date of purchase of the vehicle. They have also not noted the present reading in the speedometer to show that the vehicle had run how many kilometers on the date of inspection. They have also not issued notice to the opposite parties for the inspection. Because of the delay in conducting the inspection and other laches of the Commissioners, the Commissioners’ report cannot be considered as a full proof evidence for the alleged manufacturing defect. Therefore, we are not inclined to accept Ext. C3(a).
16. The complainant’s argument is that the vehicle is having manufacturing defect at the time of purchase itself. The usual practice at the time of purchasing a vehicle, the customer should ascertain the condition of a new vehicle by conducting test drive and other inspections. In this case also the complainant had conducted the test drive and other inspections and he had satisfied with the condition of the vehicle before he took the delivery of the vehicle. If that be so, how can he say that the vehicle had manufacturing defect from the date of purchase itself. If that be so, the complainant has to answer why he had took the delivery of the vehicle from the show room if the purchased vehicle had manufacturing defects at that time. So the contention of the complainant that his vehicle has manufacturing defects at the time of purchase itself is not sustainable. As per Ext. B1 job card dated 12.08.2004, the complainant had taken the delivery of the vehicle after repairs with full satisfaction which also shows that the complainant’s allegations are baseless. It is pertinent to note that the complainant has not challenged Ext. B1 job card. Further, the complainant had put his signature in Ext. B1 even after the filing of this complaint. The complainant had also no case that he is not using the vehicle due its manufacturing defects. He also admitted that he had run the vehicle for 15982 Kms. before filing this complaint. The complainant has not adduced any evidence to prove that he had maintained the vehicle properly during this period. So the alleged defects of the vehicle cannot be treated as manufacturing defects. The alleged defects can be caused due to wear and tear.
17. From the overall facts and circumstances of this complaint and on the basis of our observations made herein above, we are not inclined to accept the contentions of the complainant. Therefore, we cannot find any deficiency in service or unfair trade practice from the part of the opposite parties.
18. In the result, this complaint is dismissed. No cost.
Dictated to the Confidential Assistant, transcribed and typed by him, corrected be me and pronounced in the Open Forum on this the 6th day of March, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Binu Raj.
Exhibits marked on the side of the complainant:
A1 : Invoice dated 12.08.2002 for ` 40,400 issued by the third opposite
party to the complainant.
A2 : Photocopy of the complaint dated 09.01.2003 sent by the
complainant to the first opposite party.
A3 : Reply to the complainant dated 09.01.2003 from the first opposite
party dated 25.02.2003.
A4 : Cash bill dated 28.02.2003 for ` 126-90 from Yamuna Motors,
College Road, Pathanamthitta.
A5 : Receipt dated 21.03.2003 issued by the third opposite party.
A6 : Bill dated 29.03.2003 for ` 42 issued by the third opposite party
to the complainant.
A7 : Warranty.
A9 : Photocopy of the certificate of registration in respect of Motor
Cycle No. KL-03H/3018.
A9 : Bill dated 18.08.2004 for ` 463-50 issued by the third opposite
party to the complainant.
A10, A11 & A12 : Acknowledgments.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties:
B1 : Job card.
B2 : Job card.
Court Witnesses: (After remand)
CW1 : Vinumon.
CW2 : P.K. Jayamohan.
Court Exhibits: (After remand)
C1 : Report dated 11.02.2011 submitted by CW1.
C2 : Report dated 11.02.2011 submitted by CW1.
C3 : Report dated 11.02.2011 submitted by CW2.
C3(a) : Mahazar dated 11.02.2011 prepared by CW2.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Binuraj @ Babu Raj, Malancharuvil House, Mezhuveli P.O.,
Mezhuveli Village, Kozhencherry Taluk,
Pathanamthitta Dist.
(2) General Manager, Kinetic Engineering Ltd., D-1 Block, Plot
No.18/2, Chinchwad, Pune – 411 019.
(3) Manager (Marketing), Kinetic Engineering Ltd., D-1 Block,
Plot No. 18/2, Chinchwad, Pune – 411 019.
(4) Proprietor, Pulimoottil Automobiles, Kinetic Dealer,
Muttambalam P.O., Kanjikuzhy, Kottayam -4.
(5) Suresh. S., Ayshariya Two Weeler Market,
Thookupalam, Pathanamthihtta.
(6) The Stock File.
