IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Friday the 30th day of September, 2011
Filed on 13.05.2010
Present
- Sri.Jimmy Korah (President)
- Sri. K. Anirudhan (Member)
- Smt. N. Shajitha Beevi (Member)
in
C.C.No.108/2010
between
Complainant:- Opposite Parties:-
Sri. M.D.Chandradas 1. The Managing Director
Muniveliyil House M/s. Hero Exports (Hero Electric)
Cheruvaranam, Varanum P.O. G.T. Road, Ludhiana
Cherthala – 688 585 Panjab – 141 003, India
(By Adv. Peter J. Kurisinkal)
2. Sri. Raveendra Panicker.S. National Auto Electro Motor Centre Panicker’s Complex, CMC - 15
Cherthala – 688 524
(By Adv. K.R.Anil Kumar)
O R D E R
SRI. K. ANIRUDHAN (MEMBER)
Sri. M.D.Chandradas has filed this complaint before he firm alleging deficiency in service on the side of the opposite parties. The allegations are as follows:- He had purchased an Electric Scooter, manufactured and marketed by the first opposite party, named ‘Hero Wave’ having chasis No.H520643 from the authorized dealer, the second opposite party, for an amount of Rs.33,000/-, on 25.5.2009. He has been using the said vehicle in accordance with the guidelines contained in the user Manual and instructions of 2nd opposite party. At the time of purchase, the 2nd opposite party offered 3 free service and one year warranty for the said vehicle. As per warranty card, the opposite parties promised to undertake to rectify the manufacturing defects in material and workmanship under normal conditions of usage. On 23.6.2009, he had noticed and uneven wear and tear of the tyres and that the right side of the tyres where seen more wear. On 24.6.2009, he had brought the vehicle to the 2nd opposite party and pointed the defects, after availing the first service. 2nd opposite party intimated that they have rectified the defects. When he brought the vehicle on 27.7.2009, to the 2nd opposite party for service, he pointed out that the defects of more wear and tear of the tyre. At the time of service, the 2nd opposite party also stated that the defects has been rectified. He also pointed out the defects of more wear and tear of the tyres to the opposite party at the time of 3rd service, and requested to fulfill the warranty provision. But the 2nd opposite party had not rectify the defects permanently. On 22.4.2010, while he was riding through NH 47, the back tyre of the vehicle burst and he fell down with the vehicle and suffered minor injuries, and now he is undergoing Medical treatment, since he is a diabetic patient. He brought the vehicle to the 2nd opposite party and requested to replace the vehicle with a new one, since the vehicle has manufacturing defects of non-wheel alignment and wheel balancing and bad workmanship of the opposite parties. Now the vehicle is kept in the workshop of the 2nd opposite party. So, far he had not obtained any positive relief. Hence the complaint.
2. Notices were issued to the parties. Opposite parties entered appearance before the Forum, and filed version.
3. In the version of the first opposite party, it is stated that they have admitted the purchase of the said vehicle for a sum of Rs.33,000/- by the complainant and denied the allegations of using the vehicle by him as per the Manual. It is stated that the complainant has used the vehicle in a careless manner and without paying any proper attention, and that as per the warranty form, any defect which may happened in the rubber parts especially tyre was not cover the warranty. It is further stated that they had provided proper care as per the terms and conditions of warranty, and the vehicle have not any inherent manufacturing defects. It is stated that the said vehicle has not suffered any sorts of defects or damages during transit and they have conducted stage inspection, and the contention was about the grave of tyres which does not cover the warranty. The alleged allegations regarding the accident was due to the negligent usage of the said vehicle, and they are not bound to replace the vehicle. It is further stated that the complainant is not entitled to get the refund of the amount or replacement of the vehicle.
4. In the version of the 2nd opposite party, they have raised the same contentions as stated in the version of the first opposite party and further stated that the complainant is not entitled to get any relief from them.
5. Considering the disputes of both parties, this Forum has raised the following issues for consideration:-
1) Whether there is any deficiency in service on the side of the opposite parties?
2) Whether the complainant is entitled to get the relief as prayed for in the complaint?
3) Compensation and costs.
6. Issues 1 to 3:- Complainant has filed proof affidavit in support of his case and produced documents – Ext. A1 to A4 in evidence. Exts. marked and he has been examined and cross examined by the opposite parties. Ext.A1 is the Certificate of Hero Exports issued by the first opposite party to the complainant at the time of purchase of the said vehicle. Ext.A2 is the original of the Retail invoice – Cash/credit dt. 25.5.09 issued by the 2nd opposite party to the complainant, at the time of purchase of the said vehicle. It shows that the 1st opposite party had collected a sum of Rs.33,000/- from the complainant towards the cost of the vehicle. Ext.A3 are the counter foils of free service of the said vehicle, issued by the 2nd opposite party. Ext.A4 is the purchase certificate and relevant pages of user Manual. Opposite parties are not filed proof affidavit or any documents in evidence. A commission was appointed in this case, along with an Advocate Commissioner in order to ascertain the details of the defects of the vehicle. The commissioners have filed a detailed report and same was marked as Exts.C1 and C2. On a verification of the commission reports, it can be seen that the vehicle has the manufacturing defects and that the vehicle is not road worthy due to the front and rear tyres.
7. We have heard the matter in detail from both sides and perused the documents filed by the complainant in evidence and verified the commission reports. On an overall verification of the entire matter of this case, it can be seen that the complainant had purchase the said vehicle for a sum of Rs.33,000/- from the 2nd opposite party. The said vehicle has the warranty period of one year. It is alleged that within one month from the date of purchase, the said vehicle has became defective due to the wear and tear of the tyres. At the time of services, the complainant had pointed the said defects to the 2nd opposite party. But the 2nd opposite party had not taken any sincere efforts to rectify the said defects. The 2nd opposite party had intimated the false statement to the complainant regarding the rectification of the defects of the said vehicle. Due to the defective tyres and alignment , the said vehicle met with an accident, when the complainant riding in the vehicle. It is alleged that the vehicle has the manufacturing defects. The opposite parties have not turned up the request of the complainant to replace the vehicle. The opposite parties are jointly and severally liable for this. In order to ascertain the details of the defects of the said vehicle, the Forum appointed the expert commissioner along with an Advocate commission to verify the said vehicle for ascertaining the defects. The commission reports (Exts.C1 and C2) clearly stated that the vehicle has the manufacturing defects by way of uneven wear and tear and that the 2nd opposite party have no facility to repair the wear and tear and further stated that that the said vehicle is not road worthy due to the front and rear tyres.
8. After verification of this entire matter of this case, and after the perusal of the Commission Report, we are of the considered view that the vehicle has the manufacturing defects. In this context, we are of the further view that the opposite parties shall replace the vehicle with a new one to the complainant. The entire matter shows that there is deficiency in service and negligence on the side of the opposite parties to replace the vehicle with a new one to the complainant in time, by way of purposeful refusal to replace the same. The contentions raised by the opposite parties cannot be accepted, since it lacks bonafides and have no merit. So, the contentions of the opposite parties have no locus standi and it cannot be taken into account to deny the replacement of the vehicle. The opposite parties are fully entitled to give a new vehicle to the complainant. The complainant is entitled to get a new one from the opposite parties. The defects occurred to the vehicle was within one month from the date of purchase of the vehicle, and defects are occurred within warranty period. It cannot be say that the said defects are occurred due to the negligent driving of the complainant. Considering the whole aspects of this matter, we are of the further view that the allegations raised by the complainant against the opposite parties are to be treated as genuine. So, the complaint is to be allowed. All the issues are found in favour of the complainant.
In the result, we hereby direct the 2nd opposite party to replace a new vehicle to the complainant having the same price and same specification of the earlier one, after taking the defective vehicle from him, and further pay a sum of Rs.10,000/- (Rupees ten thousand only) to the comp0lainant as compensation for the mental agony, pain sufferings, physical strain, inconvenience and loss sustained by the complainant, due to the grossest deficiency in service, culpable negligence, cheating and unfair trade practice of the opposite parties by way of purposeful refusal to delivery of a new vehicle to the complainant in time and dereliction of duty committed by the 2nd opposite party. We further ordered that the 2nd opposite party shall pay a sum of Rs.1000/- (Rupees one thousand only) to complainant as costs of this proceedings. We ordered that if any violation of this order by the 2nd opposite party, the complainant is free to proceed against the assets of the 2nd opposite party for the realization of the said amounts including the price of the said vehicle and further ordered that the 2nd opposite party shall comply with this order within 20 days from the date of receipt of this order.
Complaint allowed.
Pronounced in open Forum on this the 30th day of September, 2011.
Sd/- Sri. K. Anirudhan:
Sd/- Sri. Jimmy Korah:
Sd/- Smt.N.Shajitha Beevi:
Appendix:-
Evidence of the complainant:-
PW1 - M.D.Chandradas (Witness)
PW2 - K.V.Thomas (Witness)
PW3 - T.S.Jayarajalakshmi (Witness)
Ext.A1 - Certificate
Ext.A2 - Original of the retail invoice – Cash/credit dt. 25.5.09
Ext.A3 - Counter foils of the free service
Ext.A4 - Purchase Certificate and relevant pages of user Manual
Ext.C1 & C2 - Commission Reports
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- pr/-
Compared by:-
