KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.797/2016

JUDGEMENT DATED: 13.12.2023

(Against the Order in C.C.No.261/2013 of CDRF, Kasaragod)

PRESENT:

APPELLANTS:

(by Adv. G.S. Kalkura)

Vs.

RESPONDENT:

JUDGEMENT

SRI. AJITH KUMAR D. : JUDICIAL MEMBER

The appellants are the opposite parties in C.C.No.261/2013 on the file of the Consumer Disputes Redressal Forum, Kasaragod (the District Forum for short).  On 24.06.2016 the District Forum had allowed the complaint and directed the appellants to pay an amount Rs.30,000/-(Rupees Thirty Thousand only) as compensation and Rs.5,000/-(Rupees Five Thousand only ) as costs to the complainant.  A further direction was also given by the District Forum to the 1^st opposite party to deliver the motor bike without any defect extending the warranty period for further two years.  Being aggrieved by the aforesaid order, the appeal has been filed.

2.       The averments contained in the complaint in brief are stated below:

The complainant had purchased a Honda Shine motorcycle from the 1^st opposite party by paying a sum of Rs.65,000/-(Rupees Sixty Five Thousand only).  He took the delivery of the vehicle on 26.08.2013 and brought the same for registration.  But on checking the vehicle he could notice that the paint of the vehicle was remaining wet.  So the complainant came to a conclusion that the vehicle had met with some accident prior to delivery and the seller had effected some repair works so as to make the vehicle appear as a new one.  He brought the vehicle to the showroom and showed the defects to the opposite party.  The opposite party took custody of the vehicle, but insisted the complainant to take it back.  The complainant was not ready to take back the vehicle and he had sought for refund of the sale consideration of Rs.25,000/-(Rupees Twenty Five Thousand only) along with interest @12% per annum.  He also sought for a compensation of Rs.15,000/-(Rupees Fifteen Thousand only).

 3.      Initially, the dealer alone was impleaded as the opposite party.  Subsequently, the complaint was amended and the manufacturer was also arrayed as an additional opposite party.

4.       The 1^st opposite party had filed a written version with the following contentions:

They denied the allegations raised in the complaint that the motorbike had met with any accident before the delivery.  But the opposite party would concede that the complainant had brought the vehicle to the showroom and requested to take redelivery of the vehicle without any justifiable reasons.  There is no unfair trade practice or deficiency in service on the part of the 1^st opposite party.  The complainant had refused to repossess the vehicle alleging that there was some colour fading on the body of the vehicle.  The 1^st opposite party is not liable to repay Rs.65,000/-(Rupees Sixty Five Thousand only) as claimed in the complaint.  On conducting an inspection of the vehicle, a minor colour fading was seen on the engine area which might have occurred during the transit.  The colour fading was repaired when it was noticed by the staff of the opposite party.  The opposite party is only a dealer and for claiming refund of the value of the vehicle, the manufacturer is the proper and necessary party.  So the complaint is bad for joinder for necessary party in view of the contention raised by the 1^st opposite party.

5.       The appellant would assail the judgement of the District Forum for the reason that after reaching a conclusion that the vehicle never met with any accident or had any manufacturing defect the District Forum ought to have dismissed the complaint.  The District Forum, after relying upon the decision of the Hon’ble Supreme Court ought not have directed the opposite party to pay half the cost of the vehicle.  Hence, the appellant would seek for an order by setting aside the impugned order.

6.       The records from the District Forum were called for.   Though notice was served on the complainant, he remained absent.  Heard the counsel for the appellant.  Perused the records received from the District Forum.  The complainant had given evidence before the District Forum as PW1.  Exhibit A1 is the lawyer notice sent by the complainant to the 1^st opposite party and Exhibit A2 is the reply notice issued by the 1^st opposite party.

7.       The complainant had set up a specific case that the vehicle had met with an accident prior to its delivery to the complainant.  He had also raised a contention that the vehicle was having manufacturing defects.  On these reasons the complainant had returned the vehicle to the 1^st opposite party and thereafter he had declined to repossess the vehicle though the 1^st opposite party had issued a notice requesting the complainant to take back the vehicle.  When a case of manufacturing defect or any accident  prior to the delivery of the vehicle is alleged the burden is on the complainant to establish the same.  The opposite party would concede that there was a minor colour fading on a spot which occurred during the transit of the vehicle to the garage.  They had rectified the above colour fading and requested the complainant to take back the vehicle.  But he had failed to repossess the vehicle and insisted for realisation of the amount paid as consideration for the vehicle.  Replacement or realisation of the value of the vehicle could be ordered only if the complainant is able to establish the existence of any manufacturing defect or when the vehicle had met with any accident prior to the delivery of the same to the complainant.

8.       A ruling of Hon’ble Supreme Court reported in Maruthi Udyog Ltd. Vs. Susheel Kumar Gabgotra (2006) 4 SCC 644 was relied upon by the District Forum.  The Apex Court had declared that replacement of the vehicle or realisation of the total consideration could be considered only if the complainant is able to establish any manufacturing defect to the vehicle.  If there is any defect to a part of the vehicle replacement of that part alone could be claimed.

 9.      By adopting the dictum laid down by the Hon’ble Supreme Court the claim raised by the complainant for realisation of the total consideration of the motorbike cannot be accepted.  The materials on record would go to show that the opposite parties had already rectified the defect regarding the colour fading and requested the complainant to take back the vehicle.  The conduct of the complainant in abandoning the vehicle by insisting the 1^st opposite party to refund the entire amount appears to be improper.  But, at the same time one can understand the mental agony happening to a buyer on noticing certain colour change on the material portion of a brand new vehicle.  It was obligatory on the part of the dealer to rectify the colour fading and convince the complainant the reason for the colour fading and do the rectification.  When a new vehicle is purchased, one would never expect any repairs to be effected on it the purchase date itself.  So it could be seen that the complainant had suffered inconvenience and hardships on account of the irresponsible conduct of the 1^st opposite party and his staff in not ensuring the delivery of the new motorbike to the complainant without any colour fading or any other defects.

 10.    On consideration of these aspects it could be seen that there is deficiency in service on the part of the 1^st opposite party in not delivering the vehicle to the complainant in a proper condition and the complainant is entitled to get an adequate amount proportional to the defects occurred and value of the vehicle as compensation in that regard. The District Forum had directed the opposite parties to pay an amount of Rs.30,000/-(Rupees Thirty Thousand only) as compensation. Considering the defect occurred to the vehicle this appears to be on the higher side.  When compensation is awarded, it must be proportionate to the hardships and inconvenience caused to the complainant.  The total value of the vehicle is Rs.65,000/-(Rupees Sixty Five Thousand only) and admittedly, the complainant could not establish any mechanical defect to the motor bike or proved that the vehicle had met with any accident.  So the order awarding a compensation to the tune of Rs.30,000/-(Rupees Thirty Thousand only) is liable to be interfered.

11.     Having due regard to the inconvenience and hardships caused to the complainant, it is found that the complainant is entitled to get compensation to the tune of Rs.10,000/-(Rupees Ten Thousand only).There is  a direction by the District Commission to the opposite party to deliver the vehicle without any defect and to extend the warranty period for further two years.  These directions do not require any modification. 

In the result, the appeal is allowed in part.  The compensation awarded is reduced to Rs.10,000/-(Rupees Ten Thousand only).  The 1^st opposite party is directed to deliver the vehicle to the complainant without any defect and he should be given an extended warranty for a further period of two years.  The opposite parties shall abide by the conditions within thirty days from the date of receipt of the copy of the judgement.  No costs.

SL