BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SRI.  P.V. JAYARAJAN                               : PRESIDENT

SMT. PREETHA G. NAIR                           : MEMBER

SRI. VIJU  V.R.                                             : MEMBER

C.C.No. 417/2021 Filed on 30/12/2021

ORDER DATED: 13/01/2023

ORDER

SRI.P.V. JAYARAJAN, PRESIDENT:

1. This is a complaint filed under section 35 of Consumer Protection Act 2019 and the matter stood over to this date for consideration.  After hearing the matter the commission passed an order as follows:
2. This is a complaint filed by the complainant against the opposite party alleging deficiency in service on the part of the opposite party.  After admitting the complaint notice was issued to the opposite party.  The opposite party entered appearance and filed written version denying the allegation raised by the complainant.  
3. The case of the complainant in short is that on 25/11/2021 the complainant purchased a Two wheeler from the opposite party for an amount of Rs.1,05,000/-.  The old two wheeler which was in the possession of the complainant was exchanged for an amount of Rs.22,000/- to the opposite party.  According to the complainant after purchase of the vehicle on the same day he saw excess emission of smoke from two wheeler and the same was immediately reported to the opposite party.  At that time the opposite party told that within 2 days that problem will be automatically solved.  Subsequently after 10 days the complainant brought the vehicle for service to the opposite party and at that time also the complainant reported the excess smoke from the two wheeler and accordingly the opposite party replaced of cylinder kit.  The complainant’s case is that even after the replacement of cylinder kit, excess smoke was produced by the vehicle when it was used.  The complainant also has got a complaint that there is a starting problem with starter kicker of the vehicle.  According to the complainant, though all this problem were reported to the opposite party, they have neglected to consider that stating that those problems will be automatically rectified.  Hence according to the complainant there is manufacturing defect in respect of the vehicle and alleging deficiency in service on the part of the opposite party the complainant approached this Commission for redressing his grievances.  The opposite party contented that the vehicle was not having any manufacturing defect and the new vehicle purchased by the complainant was a more powerful one than the vehicle which was used by the complainant prior to that and hence that was the reason for the misunderstanding with regard to the excess smoke.  According to the opposite party the replacement of kits cylinder block piston was replaced during the warranty period free of charge only to satisfying customer and as such there was no defect for the kit so as to replace the same.  According to the opposite party the vehicle of the complainant was brought to their service center on 08/01/2022 and at that time running kilometer of vehicle was 2415km and at that time the complainant has not reported any problem with regard to the excess smoke emission from the vehicle.  The opposite party further contended that as part of the post service feedback the vehicle of the complainant was again brought to the service center of the opposite party on 24/01/2022 and that time also there was no complaint with regard to the excess smoke production from the vehicle.  The opposite party’s specific case is that there is no manufacturing defect for the vehicle and the opposite party further promised that the vehicle is having 5 years warranty or 48,000 kms and hence the opposite party is ready to provide all the service as per the instruction of the manufacturer and hence denied the allegation of deficiency in service on the part of the opposite party.  Hence the opposite party prays for dismissal of the complaint.                 
4. The evidence in this case consists of PW1 and Exts.A1 to A5 marked on the side of the complainant.  The opposite party though filed written version they have not filed affidavit or marked any documents to substantiate their contention.
5. Issues to be considered:

1. Whether there is any deficiency in service and unfair trade practice

               on the part of the Opposite Party?

2. Whether the complainant is entitle to the relief claimed in the
3.  
4. Order as to cost?

6. Heard. Perused records, affidavit and documents.  To substantiate the case of the complainant, the complainant sworn an affidavit as PW1 and Ext.A1 to A4 were marked.  Ext.A1 is the photograph.  Ext.A2 is the copy of RC book.  Ext.A3 series are the copy of message and invoice.  Ext.A4 is the copy of vehicle invoice.  The specific contention of the opposite party is that there is no manufacturing defect for the vehicle purchased by the complainant from the opposite party.  The admitted fact is that the complainant has raised the complaint with regard to the excess emission of smoke from the vehicle and the opposite party replaced the kits cylinder block piston within a period of one month from the date of purchase.  Though the opposite party contended that the replacement of the kit was to satisfy the customer, it is a fact that within period of one month a brand new vehicle was brought to the service center with a complaint of excess smoke emission.  Hence we could not simply accept the version of the opposite party that the replacement of the kit was only to satisfy the customer.  On the other hand the complainant also failed to establish any manufacturing defect to the vehicle by adducing any expert evidence to substantiate that aspect.  None of the documents produced by the complainant shows that the vehicle was having any manufacturing defect.  We are going to a conclusion that the vehicle has some defect with regard to excess material emission as the opposite party admitted that complaint from the side of the complainant in the version filed by the opposite party.  Apart from that there is no evidence before this Commission but find the vehicle is having nay manufacturing defect.  As such we are unable to accept the prayer made by the complainant for the replacement of the vehicle.  On the other hand the complainant has suffered mental agony and financial loss within a period of one month from the date of purchase of the vehicle from the opposite party which shows that there is deficiency in service on the part of the opposite party.  As the complaint was forced to take his brand new vehicle to the service station with in a period of one month and the fact that some of the parts were replaced by the opposite party shows that there is some force in the allegation made by the complainant.  Hence though the complainant was not able to convince this Commission by adducing evidence to show that there is manufacturing defect, from the available evidence before this Commission, we find that there is deficiency in service on the part of the opposite party.  By swearing an affidavit as PW1 marking Ext.A1 to A4 documents we find that the complainant has succeeded in establishing that there is deficiency in service on the part of the opposite party.  On the other hand the opposite party has not adduced any evidence or produced any documents to discredit the evidence adduced by the complainant.  In view of the above discussion we find that this is a fit case to be allowed in part in favour of the complainant.                  
7. In the result the complaint is partly allowed.  The opposite party is directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh Only) as compensation and Rs.2,500/- (Rupees Two Thousand Five Hundred Only) as cost of this proceedings to the complainant within 30 days from the date of receipt of this order failing which the amount except cost shall carry interest @9% from the date of order till the date of realization/remittance.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 13^th day of January,  2023.

C.C. No. 417/2021

APPENDIX

1. COMPLAINANT’S WITNESS:

2. COMPLAINANT’S DOCUMENTS:

3. OPPOSITE PARTY’S WITNESS:

4. OPPOSITE PARTY’S DOCUMENTS:

                                                                                                                                                Sd/-

                                                                                                                                         PRESIDENT