By Sri. MOHANDASAN.K, PRESIDENT
1. The complainant purchased a PIAGGIO VESPA , SXL scooter from the first opposite party which is manufactured by the third opposite party for Rs.1,11,500/-. The vehicle was numbered as KL- 54 L- 4025. While the complainant started to use the vehicle it was appeared abnormal jerking for the vehicle and also felt that it is not suitable for convenient use. The complainant has taken the vehicle for the due service and the complaint was stated to the service executive. But even after service there was no change in the condition of vehicle.
2. On 15/08/2019 while the complainant was travelling from Ponnani to Chamaravattom he heard a bursting sound from the rear tyre and the vehicle stopped at the place, Chamaravattom junction. Then immediately complainant contacted the first opposite party and the mechanic came to the spot and it was said that the vehicle must take to the service center then only it can be examined that what happened to the vehicle. Then the vehicle was taken to the service center in a goods vehicle paying rent of Rs.700/-. On 16/08/2019 the first opposite party stated that Rs.7,000/- is required for the repair of the vehicle. The complainant stated that the vehicle has been purchased just five months back and the second free service undergone only on 28/06/2019. But the opposite party responded in a rude manner to the complainant. The complainant submitted that the vehicle was undergone two services on 25/04/2019 and 28/06/2019 respectively within five months of purchase. The opposite party recovered Rs.1,611/- and Rs.71/- from the complainant during service period. The complainant alleges the vehicle appeared defective which is manufacturing one and the first opposite party failed in providing effective service. It is further submitted that the first and second opposite parties are the approved dealers of the third opposite party and the third opposite party is the manufacturer of the vehicle and there is deficiency in service from the side of opposite parties. The complainant alleges there was no proper and efficient service from the side of opposite parties. There is unfair trade practice from the side of opposite parties. The act of the opposite parties resulted mental and financial loss to the complainant. The opposite parties wilfully delivered a defective vehicle on the shoulder of the complainant. The complainant submitted that he is incurring nearly 500 /-rupees per day for availing special conveyance as part of his work. So, the prayer of the complainant is to refund the cost of Rs.1,11,500/- or to replace a new scooter along with compensation of Rs.3,00,000/- and cost of Rs.10,000/-.
3. On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version denying the averments and allegations in the complaint.
4. The first and second opposite parties specifically denied the averment in the complaint that he was using two-wheeler for years, the petitioner experienced extra ordinary jerking while using the motor cycle with registration No. KL- 54 L- 4025, the driving of the motor cycle was not comfortable etc. It is denied that the vehicle was undergone two periodical services in time as per the instructions given by the opposite parties, the complaint of jerking was reported to the executive, even after the service the complaint of jerking was not rectified, the opposite parties misbehaved with petitioner etc. The opposite party denied that the damages caused to the bike, running very less kilometers was due to the manufacturing defect and there was deficiency in service on the part of first and second opposite parties etc. The opposite parties further denied that the first and second oppose parties are being the dealers and the third opposite party being the manufacturer are guilty of giving service to the petitioner and to be held for unfair trade practice. The allegation that the opposite parties cheated the petitioner and caused mental agony to the petitioner is not at all correct. The vehicle cannot be used due to mechanical defect is a false allegation. The opposite party submitted that the claim of the complainant that he spent Rs.500/- per day for traveling from home to work place is not correct. There is no logic or basis for the claim of Rs.1,11,500/- along with compensation of 3,00,000/- and cost of Rs.10,000/-.
5. The opposite party submitted that the complainant purchased a bike vide No. KL- 54 L- 4025 from the second opposite party. The first opposite party is service branch of second opposite party at Tirur. The second opposite party has sold the vehicle to the petitioner as supplied by the third opposite party. The first opposite party purchased the vehicle from the second opposite party and sold to the petitioner. The second opposite party has completed pre delivery inspection and delivered the vehicle in good condition.
6. The opposite parties contended that the petitioner did not care to do periodical service as per the instructions given by the manufacturer. The delivery of the vehicle was on 15/03/2019. The first service should have been done before 15/04/2019 or before completing 750 km. Here the petitioner has not done the first service as per the instruction given by the manufacturer. The first service was done on 25/04/2019. The second service should have been done before three months from the date of delivery of the vehicle or before completing 3000 km, i.e before 15/06/2019 which was not done by the petitioner. The second service was done on 28/06/2019. Since the petitioner has not done periodical service in time and not complied the instructions given by the manufacturer in the matter of warranty, the manufacturer or dealers of the vehicle are not liable to compensate the petitioner or provide the protection as per the warranty.
7. On examination of the vehicle by opposite parties they could see that the clutch was damaged due to overheat. The rider of the bike was unnecessarily and improperly applied brake continuously while driving against the instructions which was the reason for the damages. The vehicle is built in automatic clutch, hence constant and irregular application of brake will cause heating clutch assembly. Careful inspection of the vehicle revealed that the unnecessary and improper application of brake while driving was the reason for the damage to the clutch assemble, for which the first and second opposite party cannot be held liable. The opposite parties one and two submitted that if the Forum finds that the complainant is eligible for any compensation the third opposite party may be directed to pay the amount being the manufacture of the vehicle and the complaint is liable to be dismissed with compensatory cost of first and second opposite parties.
8. The third opposite party also filed version contenting the complaint is not maintainable either in law or on facts. The present complaint is bad for misjoinder of parties. The third opposite party submit that they are mentioned in the complainant as proprietor / manager of Piaggio vehicles private limited which is patent error. It is submitted that the Piaggio vehicle private limited is a company incorporated under the companies act and is the manufacturer of piaggio Vespa brand scooters. Piaggio vehicles private limited cannot be considered as a competent party against which the present complaint would lie since there is no entity as proprietor at the first instance and manager, thereafter, as a matter of fact there are various mangers under piaggio vehicles private limited and the managers in their individual capacity are merely employees of the company and not liable to be made as part to a litigation and are not in any manner whatsoever individually responsible .
9. The third opposite party summited that the second opposite party safari motors are the dealer of piaggio vehicles private limited. The relationship between piaggio vehicles private limited and safari motors is on principal-to-principal basis and safari motors have sold the said vehicle to the complainant. The opposite party denied the allegation that the vehicle had shown jerking from the time when the vehicle was used by the complainant is false and hence denied. It is also denied the allegation that the complainant had informed about the alleged jerking to the service executives of safari motors.
10. The third opposite party further denied that on 15/08/2019 there was break down of vehicle and was taken to the service centers of safari motors is not a correct information. The subject vehicle was reported on 11/08/2019 and on examination of the vehicle it was found that the clutch disc of the vehicle has got melted down due to improper use of the vehicle. In fact, the complainant who is aged person was regularly and constantly applying the brake in an improper manner while driving the vehicle which was confirmed by complainant himself causing heating up of the clutch assembly system and due to the said happening the clutch assembling system melted down and it is thus the brake down happened. The opposite party submitted that the complainant confessed about the fact that he was always using the brake while driving the vehicle thus it is a clear case of misuse / abuse of vehicle causing the above problem to the vehicle and the issue happened due to the default of complainant himself.
11. The opposite party submitted that piaggio vehicles private limited is not aware about the dealings between the complainant and safari motors and therefore the allegation that the complainant had to pay Rs.700/- for transporting the vehicle to the service centers safari motors etc is not within the knowledge of the opposite party. It is further stated that the complaint had happened due the misuse of the vehicle by the complainant and therefore the safari motors had demanded Rs.7,000/- for repair / replacement of parts of the vehicle. The contention of the complainant that after purchase of vehicle, used only for few months and had completed second and third free service on 28/06/2019 is not correct.
12. The third opposite party submitted that the vehicle was not having any manufacturing defect as alleged by the complainant. It is a matter of fact that each vehicle is thoroughly examined prior to the vehicles being released from the factory of piaggio vehicles private limited. Thereafter prior to sale of the vehicle a procedural thorough free delivery inspection is prescribed and the dealer safari motors has done thorough free delivery inspection and the vehicle was delivered in very good condition. It is also evident that from the date of purchase vehicle has run almost 1000 kilometers and had never expressed any issues relating jerking or any other issues whatsoever prior to the incident in August 2019. The allegation with respect to jerking etc. raised by the complainant merely as an afterthought for the purpose of the present litigation. In fact, the problem is a result of his own bad driving habit. There is no merit in the contention that the opposite party have committed unfair trade practice. The opposite party have never committed any act of cheating, causing mental agony to the complainant. Hence the relief sought refund of the amount paid by the complainant for the purchase of the vehicle, compensation and expenses are not maintainable and are to be rejected with compensatory cost.
13. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ex. A1 to A5. The documents on the side of opposite party marked as Ext.B1 to B5. The commissioner’s report marked as Ext.C1. Ext.A1 is the copy of certificate of registration of vehicle No.KL- 54 L 4025. Ext. A2 is copy of cash receipt dated 15/03/2019. Ext. A3 is copy of retail invoice dated 25/04/2019. Ext. A4 is copy of retail invoice dated 28/06/2019. Ext. A5 is copy of policy schedule cum certificate of insurance with policy No.76190131180900020749. Ext. B1 is copy of retail invoice dated 25/04/2019 for Rs.1,111. Ext.B2 copy of retail invoice dated 28/06/2019 for Rs.1,111. Ext. B3 is vehicle history details, date of sale is 15/03/2019 VESPA XSL 125. Ext. B4 is print copy of current odometer. Ext. B5 owner’s manual original.
14. Heard complainant and opposite parties, perused affidavit, and documents. The first and second opposite parties filed argument note also.
The following points arise for consideration-
- Whether the vehicle has got manufacturing defect?
- Whether there is deficiency in service on the part of the opposite parties?
- Relief and cost?
15. Point NO.1
The grievance of the complainant is that he purchased the vehicle from the second opposite party and while using the vehicle he felt extra ordinary jerking and the vehicle was not comfortable to use for the complainant. The complainant duly reported his complaint before the opposite parties but the opposite party did not provide proper service and demanded 7,000/- rupees for the repair work. Though the complainant revealed that the vehicle had expired only 5 months after purchase but the response from the opposite party was rude and there was no consideration towards his grievance. Hence, the complainant alleged the defect to the vehicle is manufacturing one and non-repairing of the vehicle by the opposite parties amounts deficiency in service.
16. The complainant on filing this complaint taken out an expert commission and the commissioner examined the vehicle and filed a report which is marked as Ext. C1. The commissioner Mr. Anas. S, the Assistant Motor Vehicle Inspector, Sub R.T.O, Tirur reported that the vehicle is working in continues variable transmission system. The application of brake continuously causes the working of clutch disc that will result clutch assemble overheating and ultimately clutch shoe will melt. In this vehicle due to the above reason the damage caused to the vehicle. The expert commissioner has not reported the complaint to the vehicle as a manufacturing defect. The vehicle is having continues variable transmission system and continues application of brake caused the melting of clutch shoe. In the absence of other evidence, this Commission is liable to accept the version of the expert commissioner and find that there is no manufacturing defect to the vehicle as alleged by the complainant and so the first issue answered accordingly.
17. Point No.2
It is admitted fact the vehicle involved in the complaint was purchased from the second opposite party on 15/03/2019 and the same was became defective on 16/08/2019 and thus the vehicle is entrusted with the first opposite party. The opposite parties allegedly demanded Rs.7,000/- of the repair cost ignoring the warranty period. The contention of the first and second opposite party is that the petitioner did not care to do periodical service as per the instructions given by the manufacturer. The opposite party submitted that the vehicle was purchased on 15/03/2019 and the first service should have been done before 15/04/2019 or before completing 750 kilometer whichever is earlier. But the petitioner serviced the vehicle only on 25/04/2019. So, there is a delay of 10 days in the first service. The second service should have been done before three months from the date of delivery of the vehicle or before completing 3000 kilometer whichever is earlier, i.e before 15/06/2019 which was not done by the petitioner. The petitioner has done the second service on 28/06/2019 and so there is 13 days delay. So, the specific contention of the first and second opposite party is that the complainant has not done periodical service in time and so not entitled the benefit of warranty. It is further contended that certain spare parts are will not come under the warranty. But there is no specific contention whether the defective spare parts of the vehicle will not come under the coverage of warranty. The vehicle was undergone first service before completing 750 kilometers and the second service was completed before 3000 kilometers. But there is delay of certain days in providing due service. It appears the delay caused is only negligible days and which cannot be considered as a ground for not providing the facilities under warranty condition to a customer i.e consumer like senior citizen. It appears that the complainant purchased a vehicle of the opposite party for Rs.1,11,500/- and which became defective within five months of use. The cause for the defect is alleged application of continues brake. But the fact is not established through any sort of documentary evidence. It is admitted that the complainant is a senior citizen and it can be presumed that he was holding driving license for a long period and he is an experienced driver also. In the absence of exact cause of defect to the vehicle and also absence of finding regarding manufacturing defect it will be just and proper to repair the defective vehicle of the complainant by the opposite parties. The demand for Rs.7,000/- for the repair work cannot be justified.
18. In the above facts and circumstances of the complaint, the first and second opposite parties are liable to repair the vehicle free of cost. Non-repairing of the vehicle from the side of opposite parties and demanding repair cost of Rs.7,000/- amounts defective and unfair trade practice. So, the Commission direct the first and second opposite parties to repair the vehicle without any cost and make the vehicle roadworthy, we find the second point accordingly.
19. Point No.3
It is admitted fact that the vehicle is with the first opposite party for a long period. The complainant is being a senior citizen he was not able to use the vehicle for a long period and which resulted lot of inconvenience and hardship to the complainant. Hence the Commission finds a reasonable amount of Rs.20,000/- as compensation on account of defective service from the part of first and second opposite parties and thereby caused inconvenience and hardship to the complainant . The Commission also allow Rs.5,000/-as cost of the proceedings.
20. It is already found that the vehicle has no manufacturing defect but the third opposite party is liable to comply the warrantee condition.
21. In the light of above facts and circumstances, the complainant stand allowed as follows: -
- The first and second opposite parties are directed to deliver the vehicle to the complainant after repairing free of cost and making the vehicle in a roadworthy condition.
- The opposite parties 1 to 3 are directed to pay Rs.20,000/ (Rupees Twenty thousand only)-as compensation to the complainant
- The opposite parties are directed to pay Rs.5,000/- (Rupees five thousand only) as cost of the proceedings.
The opposite parties are directed to comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled for the interest at the rate of 9% per annum from the date of order to till date of payment .
Dated this 27th day of June , 2023.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A5
Ext.A1: Copy of certificate of registration, vehicle No.KL- 54 L 4025.
Ext.A2: Copy of cash receipt dated 15/03/2019.
Ext A3: Copy of retail invoice dated 25/04/2019.
Ext A4: Copy of retail invoice dated 28/06/2019.
Ext A5: Copy of policy schedule cum certificate of insurance, policy
No.76190131180900020749.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B5
Ext.B1: Copy of retail invoice dated 25/04/2019 for Rs.1,111.
Ext.B2: Retail copy of retail invoice dated 28/06/2019 for Rs.1,111.
Ext.B3: Vehicle history details date of sale 15/03/2019 VESPA XSL 125.
Ext.B4: Print copy of current odometer.
Ext.B5: Owner’s manual.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
