By Sri. K. Gheevargese, President: The complaint filed under section 12 of the Consumer Protection Act. The complaint in brief is as follows: The Complainant is a purchaser of the Kinetic Challenger Motor Cycle having engine No. CF 50024038, chassis No. CF 50022863 from the Opposite Party No.2 and the vehicle manufactured by the Opposite Party No.1. The vehicle had the warranty of two years and a loan of Rs.20,000/- was arranged by the Opposite Party No.5 from the opposite Party No.4. The Loan amount is to be refunded in 18 monthly installments and towards which 18 cheque leaves were of Rs.1,377/- in each of different dates as per the chart were given. The vehicle showed symptoms of manufacture defects as such irregular sound from the engine shortage of millage, oil leakage from engine and so on. The defects were informed to the Opposite Party No.2, though it was tried to be rectified by them defects were in continuity. During this the vehicle met with an accident and it caused the defects in large. The vehicle was produced at the shop of Opposite Party No.2 and as per the direction of the Opposite Party No.2 it was shifted to the shop of Opposite Party No.3 to rectify the defects. For transportation of the vehicle an additional amount of Rs.1,350/- was spent by the Complainant. The charge levied for repair was Rs.5,279/- as per the bill No.WS 3886 on 27.11.2002. The Complainant approached the Insurance Company to realise the insurance amount liable to be paid towards repair but the claim was repudiated on the ground that the engine number written in the policy is wrong. Instead of the No. CF 50024038 the policy consist of the No. CF 50024039. The attempt on the part of the Complainant to get the mistake corrected was not dealt positively. The trouble of the vehicle due to the manufacturing defects became sever and the vehicle was kept idle at the residence of the Complainant. (Contd........3) - 3 - 2. The Complainant had also paid Rs.7,900/- on 05.12.2002 towards the full and final settlement of the hire purchase agreement through the collection agent of the Opposite Parties No.4 and 5. Later the Opposite Party No.4 issued the lawyer notice to the Complainant alleging that the Complainant forcefully extracted some documents. The Opposite Parties caused irreparable loss and hardships to the Complainant. There may be an order to replace the defective vehicle or to the return of the price of the vehicle along with repair charge Rs.5,279/- by the Opposite Parties No.1, 2 and 3 along with interest. The transportation charge Rs.1,350/-, the direction to issue No Objection Certificate and cheque leaves bearing No.776981 to 776986 extracted from the Complainant are to be received. The Opposite Parties No.1 to 5 may also be directed to give Rs.10,000/- towards the loss caused to the Complainant due to unfair trade practice and Rs.2,500/- towards cost. 3. The Opposite Parties filed version on their appearance. The Opposite Party No.1 admitted the purchase of the Kinetic Challenger Motor Cycle bearing registration No.KL 12/B 1750. The allegation of manufacturing defects with respect to the vehicle is denied. During the warranty period the Opposite Party was inclined to rectify the defects noticed. The vehicle had the warranty of two years. The company is not liable to rectify the defects if it is caused out of accident as per the terms and conditions of the warranty. No complaint was received by the Opposite Party No.1 of any manufacturing defects. The wrong writing of the engine number and the warranty registration card is not a material fact as far as the company is concerned. The number written in the warranty registration card is only for office purpose. A simple mistake of the number written in the warranty registration card will not affect the warranty of the vehicle. The repudiation of the claim with respect to the difference of the number in policy certificate and engine is baseless. The Insurance Company is a necessary party who is not arrayed as the party in the complaint. The complaint is in defect of non jointer of necessary party. The (Contd....... 4) - 4 - Company already informed the dealer to correct the number written in the warranty registration card. This was already communicated to the Complainant through the Opposite Party No.2. The complaint is to be dismissed with compensatory cost. 4. The Opposite Party No.2 denied defects inherent in the manufacture. The allegation of the Complainant that unusual sound from engine and shortage in milage are not within the knowledge of this Opposite Party. The Complainant availed the free service during that period no genuine or any reasonable complaint was informed to the Opposite Party No.2. If the vehicle met with any accident, the complainant is not entitled to get the benefit of free repair from the Opposite Party as per the terms and conditions of warranty. The name of the insurer and the detail of repudiation of the claim is not intelligible from the complaint itself. The Opposite Party No.2 is ready to render the service under the expert management of well trained and qualified persons abide by the terms and conditions of the warranty. There is no deficiency in service and the Complaint is to be dismissed. 5. The Opposite Party No.3 filed version on their appearance. The repair of the vehicle as per the bill No. WS 3886 dated 27.11.2002 for Rs.5279 of the Kinetic Challenger Motor Cycle bearing engine No.CF 50024038 is admitted. Any error in the writing of the number of engine in the warranty card is not related to the Opposite Party No.3. Apart from that the Opposite Party is not within the territorial jurisdiction of this Forum and the complaint is to be dismissed. 6. The Opposite Parties No.4 and 5 filed version on their appearance. The Opposite Parties No.1 and 2 arranged loan of Rs. 20,000/- from the Opposite Party No.4 through the Opposite Party No.5 upon the conditions that the loan issued to the Complainant is to be paid (Contd.......5) - 5 - back in 18 monthly installments with flat interest of Rs.4,786/- the Complainant had also entrusted the Opposite Parties No.4 and 5 with 18 cheque leaves for the payment of installments in different dates in monthly ways each in different rates. The vehicle has developed symptoms of defect is incorrect. The insurance policy on the vehicle was availed from the Opposite Parties No.4 and 5 are correct and admitted. The allegation of the complainant that Rs.7,900/- was paid towards the full and final settlement of the said hire purchase agreement to the collection agent of the Opposite Party and he had also assured the No Objection Certificate for canceling hire purchase endorsement in RC Book is utter false and baseless. The Opposite Parties No.4 and 5 took steps to settle the dispute with respect to the manufacturing defects and wrong writing of engine number in the documents are totally baseless and cooked up for the purpose of the case. The further allegation of the Complainant that the collection agent would demand for the return of the stamped receipt for the settlement of the matter are also incorrect. As per the terms and conditions of the issuance of loan 18 post dated cheques were given to this Opposite Parties and payment was made for 12 cheques. The Complainant became defaulter after the payment of the 12 cheques on 04.12.2002 the collection agent of the Opposite Parties No.4 and 5 approached the Complainant who was under pretension of ready to make the amount due. The cash was counted in presence of the collection agent and also told him that he was ready to pay only Rs.7,900/- on receival of the receipts. The Complainant was not ready to make any payment to the agent. The Complainant extracted 4 cheques bearing serial No. 776981, 776982, 776983 and 776985. The Complainant and his henchmen further manhandled the collection agent when he requested the return of the cheques wrongfully seized. The collection agent was hospitalised in connection with manhandling of the Complainant and his henchmen. The Police complaint was given in Gudallore Police Station on 07.12.2002. This Opposite Parties preferred a lawyer notice to the Complainant on 20.12.2002 to return cheques and stamped receipts extracted by the Complainant along with the payment of damages. Apart (Contd....... 6) - 6 - from that two more cheques are dishonoured the complaint is filed under section 138 of Negotiable Instrument Act in the receipt of one cheque bearing No.776984 and another No.776986 in total 6 cheques remain unpaid heavy damages were caused to the Opposite Parties 4 and 5. There is no deficiency in service and more over the Opposite Parties No.4 and 5 are liable to issue No Objection Certificate and the Two cheques to the Complainant. The complaint is to be dismissed with cost to the Opposite Party. 6. The points in consideration are. 1.Whether any deficiency is there in the service rendered by the Opposite Party? 2.Relief and cost. 7. Point No.1: The case of the Complainant is that the Kinetic Challenger Motor Cycle numbered KL 12B 1750 purchased by the Complainant manufactured by the Opposite Party No.1 and delivered by the 2nd Opposite Party is inherent with manufacture defect. The vehicle was purchased upon the loan issued by the 4th Opposite Party through the Opposite Party No.5. Apart from the loan amount of Rs.20,000/-. The Complainant paid balance amount ready in cash. The vehicle bears the engine number C.F.50024039 in the registration card and the policy of insurance was issued. The wrong entry in the insurance policy of the engine number caused the repudiation of the claim. The amount spent by the Complainant for the repair charges of Opposite Party No.3 are not refunded. Even after the payment of full and final settlement of Rs. 7,900/- on 5.12.2002 the No Objection Certificate was not delivered by the financier. The defects in manufacture which was born from the very beginning of the use still persist. The motor cycle was kept idle when it appeared to the Complainant that the defect were unrectifiable even after the repeated repairs. (Contd......7) - 7 - 8. Two witnesses PW1 and PW2 including the Complainant are examined to substantiate the contention of the Complainant. ExtA1 to A13 are marked on the side of the Complainant. The Opposite Parties No.1 to 5 are examined as OPW1 to OPW5. An expert was appointed to inspect the motor cycle and to report of the defects. The vehicle showed manufacture defect from the very beginning according to the Complainant. According to the 2nd Opposite Party the manufacture defect is false and alleged for the purpose of the case. However the warranty is extended by the dealer by the 2nd Opposite Party. Ext.A2 is the document extending the warranty period. Ext.A1(a) is the terms and conditions of the Warranty, the sum up of the Ext.A1(a) is that to be free from manufacturing defect however the warranty excludes plastic parts, control cables, Hardware parts, Rubber items, Spark plug, Bulbs, tyres, Gasket, Oil seals, Tool kits and Accessories. The allegation of the Complainant is that upon the direction of the 2nd Opposite Party the vehicle was taken to the Opposite Party No.3 to rectify the defects of the vehicle. Ext.A8 is the bill dated 7.11.2002 for Rs.5,279/- the amount charged on the repair. The 2nd Opposite Party is examined as OPW2. Upon examination of the 2nd Opposite Party it is deposed that if the vehicle met with an accident, the benefit under warranty will not be given. 9. The 2nd Opposite Party admitted the difference of the engine number recorded. According to him it would have been a clerical mistake. In cross examination of the 2nd Opposite Party it is further deposed that the vehicle had the warranty till 21.8.2003. The rectification of the complaints is written in the job card. If the job card is produced what all rectifications done could be seen. The contention of the second Opposite Party is that the vehicle was given normal service. If any manufacturing defect was noted and rectified it would have been written in the job card. The 2nd Opposite Party has not produced the job card in order to substantiate their contention. How ever it is also admitted by the 2nd Opposite Party that the complaints were rectified in the warranty period. Opposite Party No.3 is the authorised service centre of Opposite Party No.1. (Contd.......8) - 8 - The engine of the motor cycle is admitted as over hauled. The repair charges collected by the third Opposite Party including the transportation charge was not refunded to the Complainant. The reason pointed out by the Opposite Party for the repudiation of the claim is that the vehicle met with an accident. On examination of the complainant it is stated that while riding the vehicle when reached near Gudallor the engine piston stuck off and in effect of that the accident took place. The vehicle was taken to 3rd Opposite Part's workshop in Kings Transport. 10. An Expert Commissioner inspected the vehicle. The report of the Commissioner is marked as Ext.C1 and the Commissioner is examined as PW2 to substantiate the contention of the Complainant. The inspection was carried out when the motor cycle was not in running condition. The Complaints noted by the Expert Commissioner are that the kicker was not working, oil leakage and the crack assembly was jam. In the piston assembly there were lines of cracks that apart the piston rings were weak. The oil pub was also defective. The motor cycle was plied the distance of 1114 km as per the report. During this time the engine was overhauled for two times. In normal case a vehicle purchased newly will not have such defect as disposed by Expert Commissioner. The supervisor of Opposite Party No.3 is examined as OPW2. In chief examination be deposed that the defect of the vehicle is not natural and such defect may not be possible in accident but it is due to manufacture defect and engine became dry. 11. The collection agent of the 4th Opposite Party is examined as OPW5. According to the Complainant the full and final settlement of the finance due is cleared as per Ext.A9. According to the collection agent of 4th Opposite Party Ext.A9 is extracted from the agent in a foul play. The agent was also man handled by the Complainant and his henchman. The dispute with respect to the issuance of cheque and the dishonour of cheque presented required a detailed evidence. The case related to the dishonour of the cheque is filed in appropriate court by the (Contd......9) - 9 - collection agent. The meritorial aspects of those things need not be considered in ally with the deficiency of service. The Opposite Parties No.1 and 3's act's involve deficiency in service. The 2nd Opposite Party is the dealer of the vehicle. The defects of the vehicle is disclosed in evidence and the point No.1 is found accordingly. The Opposite Parties 2, 4 and 5 are not done the deficiency of service or any unfair trade practise and they are absolved from the liability. 12. Point No.2:- The amount remitted towards the loan amount by the Complainant is Rs.24,786/-. The Complainant has not produced the document to show how much amount is remitted by him ready in cash apart from the loan amount. The repair charges received by the Opposite Party No.3 is Rs.5,279/- that would have not been collected upon terms of warranty. The Motor Cycle is transported to Opposite Party No.3 by Kings Transports and Auto Consultant for Rs.1,350/- was spent by the Complainant. The full and final settlement was done by the Complainant and the entire loan repayment was closed according to Ext.A9. The Complainant admitted that the vehicle was plied by him for a distance of 11000 km as per the recording in speedometer according to the 2nd Opposite Party the speedometer was not working. The complainant spent Rs.24,786/- and used the vehicle for a distance of 1100. The vehicle became no use to the Complainant because of the continuous defects. The amount collected by the Opposite Party No.3 towards the repair charges Rs.5,279/- is unauthorised and improper. The Complainant was in use of the vehicle for a considerable distance and the excess amount spent other than Rs.20,000/- is to be met by the Complainant himself. In the result, the complaint is partly allowed the 1st Opposite Party is directed to give Rs.20,000/- (Rupees twenty thousand only) to the Complainant with interest at the rate of 12% from the date of filing this complaint till realisation. The 3rd Opposite Party is directed to refund Rs.5,279/- (Rupees Five thousand Two hundred and Seventy Nine only) which is (Contd.......10) - 10 - unauthorizedly collected from the Complainant treating the defects apart from the term of warranty. The Opposite Parties No.1 and 3 are directed to comply with this order within one month from the date of this order. Pronounced in open Forum on this the 11th day of December 2007.
