KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.

APPEAL NO.FA 78/11

JUDGMENT DATED 28-7-11

PRESENT:

JUSTICE SHRI. K.R. UDAYABHANU              :  PRESIDENT

SHRI. M.K. ABDULLA SONA                           :  MEMBER

APPELLANTS

1.                M/s. Hero Honda Motors Ltd.,

Registered Office 34, Community Centre,

Basant Lok, Vasanth Vihar,

New Delhi – 110057.

2.                Gayathri Motors,

Viswam Arcade, N.H. 47,

Chandranagar, Palakkad.

( By Adv. M/s. S.G. Chancery Chambers)

Vs

RESPONDENTS

1.                Mohammed Rafi.C.

S/o. Chellappa

Akbar Manzil,2/470, Chengapotta,

Collengode P.O., Palakkad – 678506.

2.                M/s. Ansil Motors,

Opp. Co- operative Urban Credit Society,

Nenmara Road, Kollengode.

(Rep. by Adv. Sri. C.S. Rajmohan)

JUDGMENT

SHRI.M.K.ABDULLA SONA: MEMBER

          This appeal prefers from the order passed by the CDRF Palakkad in CC No. 63/2008 dated 29-11-2010. The appellants are the opposite parties 3 and 2 and the respondents are complainant and the 1^st opposite party respectively.

          1.      This appeal prefers under the order of the forum below that allowed the complaint and directed the forum below that to the opposite parties; jointly and severally to pay the cost of the vehicle of Rs.38,565/- with cost  Rs.2000/-. The complainant is directed to turn to the vehicle to the opposite parties at the time of payment. Order shall be complied with in 1 month from the date of receipt of order of failing which the whole amount shall carrying interest at the rate of 9% per annum from the date of order till realization.

          2.      The complainant purchased a new Hero Honda Passion Plus petrol motor bike from the 1^st opposite party. The allegation is that during the 1^st journey from the show room to house; the complainant felt riding difficulties in smooth movement of the handle. It was claimed that the same day itself the complainant informed the riding difficulties to the opposite parties. Then the 1^st opposite parties asked the complainant to meet for the service after the first service. It was informed that the mistake has been corrected and smooth riding will be possible. It is claimed that during the return trip again the complainant has felt the same trouble as earlier. Then the complainant informed to the 1^st opposite party and was alleged at the advised to wait till the next service. It was further alleged that the complainant was suffered pain on his shoulders and treatment was carried out. It was claimed that during the next service the 1^st opposite party informed the complainant that the problem is due to the manufacturing defects and they have informed the matter to the 2^nd opposite parties. There after it is further claimed that the 1^st opposite party informed the complainant that the Chief Engineer from Hero Honda will be visiting the showroom during June 2008 and the dispute can be discussed. However, since the complainant was not satisfied with the explanation from the part of the 1^st and 2^nd opposite parties. Hence the complaint.

          3.      The opposite parties 1 and 2  contended  in other version that the complainant has came for his first service to the 1^st opposite party and as informed about the sound from the front side of the vehicle. The mechanic attached to the 1^st opposite party checked the vehicle  and it was found that there was no sound. The mistake was pointed out by the complainant and the same was duly explained and demonstrated to the complainant. There after the vehicle was again taken for second service by the complainant and the same complaint was again raised. The mechanic of 1^st party again checked the vehicle and found that no complaint was alleged was persisting and informed the complainant . Even then the complainant is not satisfied and started created a seal by rising a sound against the 1^st opposite party and their men and to avoid nuisance. The 1^st opposite party replaced 1. Front fork assemble,2. T Stem, 3. Ball race and 4. Handle bar to the satisfaction to the complainant. There after the opposite parties have not received any complaint from complainant and the vehicle was subjected for the remaining service 3 to 6 with the 1^st opposite party. The opposite parties 1 and 2 had also stated that there were no way liable for any kind of Physical discomfortness  of complainant. The 3^rd opposite party filed separate version and found that is not at all coming in the line of transaction between the complainant and other opposite parties. In this context  it was specifically stated that there is no privity of contact beween the 3^rd opposite party and the complainant. There was a expert  commissioner was appointed by the forum below and he reported that the damage was due to normal wear and tear, pitting in the ball cages and balls and the commissioner also suggested their rectification and the replacement of the ball race assemble with a new one. The prayer of the opposite parties is to dismiss the complaint they denied that there is no deficiency in service from the part of the opposite parties.

          4.      The evidence consist of documents marked as an Ext. A1 to A7 from the part of the complainant and there is no oral testimony  from the part of the complainant. The  opposite parties examined  a witness C. P. Sukumaran as DW1. The forum below raised to points for the consideration;

1.                Whether there is any deficiency in service on the part of the opposite parties?

2.                If so, what is the relief and cost entitle to the complainant?

5.      The forum below heard parties in detail and examined the evidence adduced  by both sides and found that there is a deficiency in service from the part of the opposite parties  and fixed the liability under the head of deficiency in service under the provisions of  Consumer Protection Act and allowed the complaint and passed the above mentioned impugned order against the appellants.

6.      This appeal prefers from  the above order by the appellants.

7.      On this day this appeal came before this commission for final hearing; the counsel for the appellants and the counsel for the respondents (amicus curie) are present and the counsel for the appellants argued on the grounds of the appeal memorandum that the order passed by the forum below on the basis of the grounds of appeal memorandum the order passed by the forum below is without the provisions of law and evidence. The forum below did not consider the evidence of the expert witness, Ext. C1 and directed the opposite parties to pay the entire price of the Motor Bike to the complainant. He submitted that the bike was repaired and given service. The complainant used the bike so many years. How he is entitle to get a full price of a new vehicle for his old vehicle. He submitted that the order passed by the forum below is not legally sustainable and it is liable to be set-aside. The counsel for the respondents argued that there is an evidence for the immediate defect detected for the newly purchased vehicle by the complainant. This defect and the repair of the newly purchased bike was clearly admitted by the appellant opposite parties. The expert Commissioner appointed by the forum below is also noted that their are detected to the motor bike. Under this circumstances, the opposite parties are liable to re-pay the price received by them for the new Honda Bike to the complainant. He submitted that the order passed by the forum below is strictly accordance with the law and evidence.

8.      Heard in detail and perused the entire evidence available in the case bundle. It is seen that there is a defect detected by the complainant immediately after the purchase of a new brand Hero Honda Motor Bike from the opposite parties by the payment of full amount. For what purpose a person is purchasing a brand new Motor Bike? The opposite parties are liable to give proper explanation for this question. Even though they admitted the defects on the bike which sold by them. Due to the problem of the defect of the handle of bike the complainant who sustained shoulder pain and discomfort and it is due to the deficiency in service from the part of the opposite parties. The expert commissioner has also detected same defects in the Motor Bike. In the circumstance the finding of the forum below that the opposite parties committed deficiency in service; is legally proved and they are liable to pay compensation. On other side the Motor bike is along with complainant as per the evidence from
14-5-2007 on words. It is presumed he is using the motor bike for his personal use. The complainant have a case that the motor bike is not fit for use in the road till this time. It means he used maximum the vehicle and enjoyed the riding. In the circumstance, we cannot understand how the forum below direct to pay the entire cost of the motor bike and cost Rs. 2000/- It is not accordance with the provisions of law and evidence. In this circumstance we decide to modify the impugned order is passed by the forum below. It is legally sustainable except and amount of the compensation and cost.

In the result, the appeal is allowed in part and directed the opposite parties to pay Rs.5,000/- as a compensation under the head of the deficiency in service; committed by them and also directed to pay Rs.5,00/- at cost to the complainant with in 15 days after the receipt of the copies of this judgment. Failing which the opposite parties are direct to pay cost of Rs.2,000/- and interest 12%
per annum, from the date of the complaint till realization. This appeal is disposed according to the above modification in the amounts of the order of the forum below. Both parties are directed to suffer their own respective Dhast. The points of the appeal discussed one by one  and answered accordingly.

M.K. ABDULLA SONA:    MEMBER

JUSTICE K.R. UDAYABHANU:  PRESIDENT

DA