D.O.F: 07/04/2015
D.O.O: 16/01/2019
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.92/15
Dated this, the 16th day of January 2019
PRESENT:
SRI.ROY PAUL :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
Manoj Varkey, Aged 28 Years, : Complainant
S/o Varkey Benedict Manattu, R/at Mundathadam,
Parappa Post, Kasaragod -671533.
(Adv : Rajesh Kumar Shetty.K)
And
1. M/s Mahindra Two Wheelers Ltd,
D1 Block, Plot No. 18/2 (part), : Opposite Parties
M I D C. Chinchwad, Poona-411019.
(Adv: P.V. Jayaraj)
2. The Proprietor
MBA Motors, 12/3658, Karthika Towers,
Mathoth , Kanhangad South, Kasaragod-671315.
ORDER
SRI.ROY PAUL :PRESIDENT
This is a complaint filed under section 12 of Consumer Protection Act for an order directing the opposite parties to refund the price of the Motorbike with compensation and cost to the complainant.
The gist of the complaint is that :-
The complainant had purchased a Mahindra Centuro Motorbike from opposite party No: 2. Though the opposite parties had offered a maximum mileage of 85.4 km/ltr, the availed mileage was 40-45 kilometre/ltr only, even after the periodical services. Due to the service of the vehicle from opposite party No: 2 it developed several technical problems also to the bike. There is sound from the engine and oil leakage also developed. The complainant become a frequent visitor of opposite party No: 2 due to the problem of bike. Lastly on 27/02/2015 the complainant took the vehicle to opposite party No:2 for the complaint of poor mileage and engine sound . After repair and service on 05/03/2015 the opposite party No:2 informed that the mileage could not be improved further as it is a general complaint. The opposite parties were assured a mileage of 85.4 km/ltr. So there is deficiency of service and unfair trade practice on the part of the opposite party. The vehicle is in the custody of opposite party No:2. The complainant does not want to use the vehicle. Hence the complaint.
Opposite party No: 1 entered appearance before the Fora and submitted their written version. opposite party No: 1 contented that the vehicle is perfectly all right and road worthy. In the job card the complainant has signed by expressing satisfaction over the service. The vehicle has already covered more than 13901 kms as on 04/02/2015. The opposite party No:1 has no direct contact with the complainant. The services of vehicle were admittedly done by opposite party No: 2. As for the mileage is concerned the factual position is that, it depends up on various factors including the driving habit of the rider, road condition, maintenance of vehicle etc. The allegation levelled by the complainant about the mileage is absolutely false hence, denied. The complaint is devoid of merits. The statement that the subject vehicle is in the custody of opposite party No:2 is not known to this opposite party There is no deficiency of service and unfair trade practice on the part of the opposite party and complaint may be dismissed with cost. The opposite parties No:2 was set exparte.
On the basis of the rival contentions in the pleadings the following issues were framed for consideration.
- Whether there is any deficiency service on the part of the opposite party?
- Reliefs and cost?
The evidence consists of oral testimony of Pw1 and Ext A1 to A3 document marked on the part of the complainant. The opposite party No: 1 adduced evidence through Dw 1 also.
ISSUE No: 1 & 2
The complainant adduced evidence by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by opposite party No:1 and he relied on Ext A1 to A3 documents also to substantiate his case. According to him the vehicle delivered to him by the opposite party No: 2 has no mileage as assured by the opposite parties. Even after the periodical service also the mileage problem persisted and the complainant was constrained to return the vehicle to opposite party No:2. There is deficiency of service and unfair trade practice on the part of the opposite parties. The complaint may be allowed as prayed for.
Dw1 adduced evidence to the tune that after the service of the vehicle it is kept with opposite party No:2 in a road worthy condition without any defect. The vehicle has already covered 14930 km/s within 13months. There is chance for 30 % mileage shortage as per the road condition. There is no defect for the vehicle as alleged by the complainant. The opposite party No: 1 has no direct contact with complainant and the complaint may be dismissed with cost of the opposite party.
On perusal of the pleadings, documents and evaluation of the evidence tendered before the Fora we are of the considered view the allegation levelled by the complainant is regarding the shortage of mileage. But in the absence of any expert report how we can ascertain the shortage of mileage. There is no specific admission from the side of opposite party No: 1 manufacturer or Dw1 about it. On perusal of Ext A2 service record the vehicle has covered 14930 km/also as on 27/02/2015. According to Dw 1 and as per Ext A2 service record the compliant has approached the opposite party No: 2 for 8 periodical services. There is no a service record or job sheet before the Fora in connection with the so called mileage shortage. From the foregoing discussions, findings and evaluation of the evidence before the Fora we are of the considered view that the complaint has miserably failed to prove any deficiency of service on the part of the opposite parties. So we are of the considered view that the complainant is not entitled for the reliefs sought in the complaint.
But on perusal of Ext A1 document the vehicle is still under the coverage of warranty. So it is the duty of opposite party No: 2 to provide proper service to the complainant. Hence we hold that opposite party No: 2 is liable to deliver the vehicle to the complainant in a road worthy condition to the satisfaction of the complainant. It is also pertinent to not that being the custodian of the vehicle it is the duty of opposite party No: 2 to appear before the Fora in this case on receipt of summons. So we hold that the opposite party No: 2 is liable to pay a sum of Rs.2000/- as litigation expenses to the complainant. Thus the issue No: 1 & 2 are answered accordingly.
In the result the complaint is disposed off with a direction to opposite party No: 2 to release the vehicle (KL - 60 G - 3708) to the complainant in a road worthy condition to the satisfaction of the complainant within 30 days of the receipt of the order. The opposite party No: 2 is further directed to pay a sum of Rs. 2000/-(Rupees Two thousand only) also to the complainant as litigation cost within the aforesaid 30 days. The order is executable under the Provisions of Consumer Protection Act 1986.
Sd/- Sd/-
MEMBER PRESIDENT
Exhibits:
A1- Brochure of Vehicle issued by Opposite Party No.1.
A2- Service Record Sheet issued by Opposite Party No.2.
A3- The acknowledgement Dated: 27-02-2015.
Witness Examined :
PW1- Manoj Varkey.
DW1- Biswas. R.
Sd/- Sd/-
MEMBER PRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
