ONSUMER DISPUTES REDRESSAL FORUM

PALAKKAD, KERALA

Dated this the 29^th day of December, 2012.

Present: Smt. Seena. H, President

: Smt. Preetha. G. Nair, Member

: Smt. Bhanumathi. A.K, Member Date of filing: 09/05/2012

CC /84/2012

Prabhakaran.P,

S/o. Krishna Prabha, Saradha Nagar, - Complainant

Karingarapully Post,

Palakkad – 678 559

(Party in Person)

Vs

1. M/s. Malang Motors,

Opp. Kavitha Automobile, Kannara street

G.B. Road, Palakkad – 678 001 - Opposite parties

( By Adv. Viju.K. Raphel)

2. Mahindra Two Wheelers Limited,

D-I Block, Plot Nos.18/2, PART MiDC,

Chinhcwad, Pune -411 019, India.

(Adv. Saji Mathew, Adv. Denu Joseph &

Adv. Antony Xavier)

O R D E R

BY SMT. BHANUMATHI. A.K, MEMBER

The Case of the complainant in brief :-

The complainant has purchased one Mahindra Duro Scooter from 1^st opposite party on 23/02/2012. The self start as well as the kick start of the vehicle stopped functioning after 2 or 3 days from purchase. The scooter after being kick started, on raising of the accelerator had stopped utomatically due to engine being turned off. Complainant informed the problem to the 1^st opposite party. The technician from the 1^st opposite party solved the problem. When the complainant reached his house he noticed that the problem is still existing.

The complainant informed the 1^st opposite party about the same several times but the problem is not rectified. So the complainant sent a registered notice to the 2^nd opposite party stating the problems with respect to self starter and mileage. 2^nd opposite party instructed the 1^st opposite party to attend the matter. Even after the rectification by the 1^st opposite party the problem of the vehicle has not solved. At the time of purchase the opposite parties made the complainant to believe that the scooter will get 55 Km/ltr. But the complainant did not get the mileage as promised. At the time of purchase itself there are some damages to the vehicle. The opposite party rectified it later. There is a bend in the main stand and on a key. So that the key is not fit in the key hole. Battery was leaking but they have rectified the problem. So that the complainant registered a complaint on toll free of Mahindra. But no action was taken. The above act of opposite parties caused financial loss and mental agony to the complainant.

So the complainant seeking an order directing the opposite parties to refund the price of the vehicle that is Rs, 49,700/- and an amount of Rs. 25,000/- as compensation for mental agony.

Opposite parties entered appearance and filed version denying the contentions put forward by the complainant.

1^st opposite party admits that the complainant approached the 1^st opposite party complaining of starting problem. But the technician of the opposite party could not find any technical defect in the vehicle of the complainant. The complainant was informed that the starting problem is arising mainly due to non usage of the vehicle for a long time and due to non following of instruction given in the user's manual. The complainant was specifically informed that after non usage of vehicle for some times, while starting the vehicle he should apply choke. Many occasions the complainant made complaint about the starting of the vehicle and the technicians of the 1^st opposite party attended the complaint. But technicians could not find any technical defect in the vehicle of the complainant. Even then the opposite party has replaced the CD1 unit and HT coil connected with the auto starter of the vehicle under warranty. 1^st opposite party is ready to attend any mechanical defects of the vehicle of the complaint in the warranty period.

2^nd opposite party submits that it is only on 22-03-2012 the complainant informed about the problem with respect to self starter and mileage to the 2^nd opposite party. Immediately on receipt of the complaint, 2^nd opposite party instructed 1^st opposite party to attend the matter. When the vehicle of the complainant was examined the technician could not find any problems. As far as the mileage of the vehicle is concerned, it depends on various factors connected with the usage of the vehicle such as driving style, usage, condition of the roads etc. When the 1^st opposite party conducted an inspection on 4-06-2012 in the presence of the complainant, the vehicle gave a mileage of 52.7 km/litre. The liability of the manufacture of the vehicle arises only in case of a manufacturing defect in the vehicle and to the extend of replacement of the defective part as per warranty policy.

There is no deficiency of service on the part of opposite parties. Both parties pray for the dismissal of the complaint.

Both parties filed chief affidavits. Ext. A1 and A2 marked on the side of the complainant. Ext. B1 and B2 marked on the side of the opposite parties. Commission report is marked as Ext. C1.

Heard both parties.

Issues to be considered are

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

2. If so what is the relief and cost?

Issues I & II

On 23-02-2012 the complainant has purchased a Mahindra Duro Scooter from 1^st opposite party. It is evident from Ext. A1 document. Complainant alleges that the self start as well as kick start of the vehicle stopped functioning after 2 or 3 days from purchase. There were some defects in the vehicle at the time of purchase itself. All of them were rectified by the opposite parties. Another contention of the complainant is that the vehicle is not getting 55km/litre mileage as promised by the opposite parties at the time of purchase.

Now the main grievance of the complaint is that the self start as well as kick start is not working. The complainant made several complaints regarding the problem with the opposite parties. Once or twice they have rectified the problem but it is not solved. On 22-03-2012 complainant informed the 2^nd opposite party about the starting trouble and mileage problem and 2^nd opposite party instructed the 1^st opposite party for attending the complaint. Ext. B2 dtd. 14/08/2012 shows that the opposite parties attended the complaints. But it is only after receiving the notice from the Forum.

In order to prove the starting problem an expert commission was appointed and filed report marked as Ext. C1.

As per Ext. C1 “ The vehicle has clocked 959.9km and undergone its first service on 25/03/2012 at 137 km from Mahindra's authorised service centre.”

Ext. C1 further states “ while cold starting the vehicle we need to kick for more than 8 times without engaging the choke lever, we could start the vehicle in the second kick with the choke lever engaged and could start the engine without fail for subsequent attempts with kick lever or by the self starting switch”. From this report it is clear that there are troubles to the vehicle with regard to the starting. While cold starting the vehicle need to kick for more thatn 8 times without engaging the choke lever. The 1^st service of the vehicle was on 25/03/12 at 137 km. Commissioner inspected the vehicle on 5/11/2012. At that time vehicle was clocked 959.9.km. So it is clear that the complainant has not kept the vehicle idle. He is using the vehicle. The complaint alleges that after 2 or 3 days from the purchase itself the problem started. It is not expected from a newly purchased vehicle. In Commission report it is stated that the centre stand of the vehicle and one ignition key is slightly bent.

Another grievance of the complainant is regarding mileage. It is true that mileage depends up on the style of driving, condition of the road etc. The complainant has purchased this type of vehicle from the opposite party under a belief that it will get 55 km/litre mileage. But it is getting only 41.km/litre. Commissioner has not verified the same. .

It is clear that there are some starting troubles to the newly purchased vehicle. Even though several times the complainant approached the opposite party for rectifying the defects, a positive effort has been made by them was only after the receipt of the notice from the Forum. It can be considered as deficiency of service on their part. According to the complainant the starting problem to the vehicle is still existing. But the expert commissioner has not stated any defect to the vehicle in the report.

In the result complaint partly allowed. Opposite parties are jointly and severally directed to pay an amount of Rs. 2,000/- (Rupees Two thousand only) as compensation for mental agony and Rs. 4,000/- ( Rupees Four thousand only) as cost of the proceedings to the complainant.

Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest per annum for the whole amount from the date of order till realization.

Pronounced in the open court on this the 29 ^th day of December, 2012

Sd/-

Smt. Seena. H

President

Sd/-

Smt. Preetha.G.Nair

Member

Sd/-

Smt. Bhanumathi.A.K

Member

A P P E N D I X

Exhibits marked on the side of complainant

Ext. A1– Tax invoice (vehicle) form 8.B

Ext. A2- Registered receipt.

Exhibits marked on the side of opposite party

Ext.B1- Owners manual of Mahindra Duro Scooters

Ext. B2- The job card No. 5444 issued by the 1^st oposite party.

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite party

Nil

Commission Report

Ext. C1 - B. Rajesh Menon

Cost allowed

Rs. 4000/- (Rupees Four thousand only )allowed as cost of the proceedings.