BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 20^th day of July 2018

                                                                                       Filed on : 18.05.2017

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 193/2017

Between               

O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had purchased an Aprila SR 150 Scooter with Engine No.M911M3016957, chassis No. MET0001AAUB016593 from the 1^st opposite party on 22.03.2017.  The vehicle was registered before the Regional Transport office, Kakkanad, Ernakulam with Reg. No. KL7 CJ-8808.  From the first day onwards, an unusual and annoying sound from the engine has been hearing.  Apart from that the wheel balance has been completely lost and consequently a side-wise abnormal tear and wear on the front wheel occurred. The complainant also felt vibration and wobbling on the handle bar which might have been led to a fatal accident.  The complainant could realize that the scooter had some serious problem from the 18^th day of its purchase.  The complainant approached the authorized service centre of the 1^st opposite party to get the problems rectified. It was for the 1^st service of the vehicle with 7092 kms on odometers. On the first inspection itself the service person informed the complainant that the vehicle had suffered serious manufacturing defect. They have also noticed that some defects on the front shock absorber.  Mr. Biju who is the authorized service manager initially denied the defects and finally admitted manufacturing defect.  The vehicle was returned back after some maintenance work.  But the very same problems were still persisted. On 05.04.2017 the complainant approached the service centre with the back wheel complaint and the vehicle returned on 08.04.2017 with the replacement of the back wheel. But for the wobbling problem on the front handle bar recurred.  The complainant again approached the service centre on 10.04.2017 and service centre without rectifying the problem returned the vehicle on the same day itself. Therefore the complainant had contacted the service manager and the vehicle was retuned as directed by him for another inspection and service.  The vehicle was garaged on 19.04.2017 and delivery of the vehicle was taken on 22.04.2017. Even then the defect of the front handle bar was not repaired.  The complainant became disappointed and he again contacted the service manager and informed him of the above issue. This time the service manager has given a cold approach to the issue raised by the complainant and it was informed that as a dealer they cannot do anything even though the vehicle was under the warranty period. The complainant contended that under the normal warranty it is ensured to rectify all the manufacturing defects.  Moreover the warranty was extended for further period of 2 years by paying additional cost of Rs.557/- .  Since the service centre did not rectify the defects during the warranty period a legal notice was sent to Jay Motors on 29.04.2017 demanding replacement of the vehicle. There was no reply to the above legal notice issued to the Jay motors. Therefore this complaint is filed before this Forum to get grievance of the complainant redressed. The complainant submitted that he heavily depended on the two wheeler travels for doing his professional work of installation of dish antenna and connected services to earn his income for livelihood and in view of the technical problems in the new vehicle he could not perform his job properly incurring heavy loss. Moreover he had sold his old scooter to purchase this new vehicle. Therefore, the complainant sought for an order of this Forum to give direction to the opposite parties to refund the cost of the vehicle of RS.70058/- and to pay Rs.30,000/- for loss of job activities, to pay Rs.40,000/-  towards compensation for the mental agony suffered by him along with costs of Rs.10,000/- totaling to Rs.1,50,058/-.  Hence this complaint.

2)       Notices were issued to the opposite parties from this Forum. The 1^st opposite party did not file their version and the 2^nd opposite party filed their version in response to the notice received by them. 

3)       Version of the 2^nd opposite party is as follows:

It is submitted that the complainant had wrongly made the M.D of the Piaggio Vehicle Pvt. Ltd. as a party to the litigation. The MD of the company cannot be held personally liable for the issues raised by the complainant. It is requested that the complaint may be dismissed for mis-joinder of the 2^nd opposite party in the party array without prejudice to the above contention it is admitted that Aprila SR 150 was manufactured by the 2^nd opposite party it was purchased from the 1^st opposite party dealer that the transaction between the 1^st and 2^nd opposite party was on principal to principal basis that there is no privity of contract between the 2^nd opposite party and the complainant.  The averment of the complainant that from the 1^st day an unusual and annoying sound was heard from the engine absolutely false and hence denied. On inspection of the vehicle by the technician of the 2^nd opposite party no such sound was noticed from the engine. The issues regarding wheel balancing and sideways abnormal wear and tear are also absolutely false and hence denied. It is submitted that there was a problem in the rear alloy wheel of the slight knocking sound and steps were taken to replace the rear alloy wheels of all vehicles wherein that particular batch of rear alloy wheels were used. It is also submitted that the slight knocking sound of the rear alloy wheel had no bearing on the performance of the vehicle in any other manner. The allegation that the service personnel of the 1^st opposite party had noticed some defects in the front shock absorber is absolutely false and hence denied. The Service Manager Mr. Biju of the 1^st opposite party after necessary inspection informed the complainant that the rear alloy wheel shall be replaced. Accordingly, the rear alloy wheel was replaced on 05.04.2017. A minor problem found with the replaced rear alloy wheel also rectified on 08.04.2017 by replacing the alloy wheel with a brand new one. It is contended that the complainant causing nuisance by raising baseless issues and the 2^nd opposite party had as a gesture of goodwill replace the front alloy wheel.  The statement of the complainant that the vehicle was taken back on 22.04.2017 is absolutely false. In fact, the vehicle is still lying with the service centre of the 1^st opposite party and the vehicle is lying ready to be delivered. It is contended that it is absolutely no merit in the averments of the complainant and the 2^nd opposite party sought for the dismissal of the complaint with compensatory costs to the 2^nd opposite party.

4)       Evidence in this case consisted of oral evidence adduced by the complainant as PW1 and documentary evidence which were marked as Exbt.A1 to A9. The 2^nd opposite party adduced oral evidence through DW1 and furnished the documentary evidence which were marked as Exbt.B1 to B4.  Expert Commission Report was marked as Exbt.C1. Heard both sides. 

5)       Issues came up for considerations are as follows:

1. Whether the complainant has proved any deficiency in service or any unfair trade practice on the part of the opposite parties?
2. Whether the complainant has proved any manufacturing defect of the disputed vehicle?
3. If so, whether the opposite parties are liable to refund the price or to pay compensation to the complainant for the mental agony if any suffered by the complainant along with costs?

6)       Issue Nos. (i) and (ii)

In this case, the complainant had purchased Aprila SR 150 scooter from the 1^st opposite party on 22.03.2017.  Exbt.A1 invoice shows that the complainant had purchased above said scooter from the 1^st opposite party at a price of Rs.70,588/-The complainant stated in his complaint that the scooter showed some defects right from the beginning of its purchase. Subsequently the vehicle had showed repeated defects and hence the complainant had suffered a lot of inconvenience, mental agony, financial loss…etc due to the above said defects of the disputed scooter. The complainant further stated that employee of the opposite party also admitted that the vehicle had suffered inherent manufacturing defects. The complainant alleged that he had repeatedly approached the opposite party to cure the defects of the disputed vehicle. But the opposite party miserably failed either to rectify the defects of the vehicle or to replace with new one even when the vehicle is under the warranty period. The complainant alleged that there is a serious manufacturing defect of the disputed vehicle. Exbt. A4 service details of the disputed vehicle go to show that the complainant had approached the opposite party to the 1^st service of the disputed scooter on 30.03.2017. In Exbt.A4 we could not find any serious manufacturing defects or in the work done by the opposite party.  Exbt.A5 and A6 are the acknowledgment slips produced by the complainant in whom it did not mentioned the time and date of issue the same. Exbt. A7 email communication between the complainant and the opposite party.

7)       In this case, the 2^nd opposite party stated in their version that there is no deficiency in service or unfair trade practice happened on the side of the opposite parties.  The statement made by the complainant that the service person of the 1^st opposite party had informed that there is serious manufacturing problem which caused alleged defect is absolutely false. Any service person of the opposite party did not admit that the disputed vehicle had suffered any inherent manufacturing defects. The opposite party argued that all the defects of the vehicle due to the rash and negligent driving of the complainant. The vehicle is free from any manufacturing defects.

 8)      In Exbt.C1 Commission Report, the Expert commissioner inspect the vehicle and his observation is as follows:

          A detailed inspection of the vehicle done after riding the vehicle for 15 km. and found as follows:

1. Handle bar shivering is not noticed.
2. Rear sound not noticed.
3. Any uneven wear to the tyre is not noticed.
4. The only defect noticed is at the front right shock absorber.  After riding the vehicle for 15 kms as it is found that  a small amount of oil leakages visible in the front right shock absorber shaft as the rings of leaked oil.

The only defect that I am able to understand from my inspection is the defect listed in paragraph 5 (d).  This is due to the defective seal of the shock absorber or defective shaft of shock absorber happened in the manufacturing stage.  If the defect is not rectified, it will lead to increase the leakage and will cause to handle bar shivering and tear and wear.  Consumer can use this vehicle in perfect condition except the defect listed in paragraph 5 (d).

9)       In this case, expert commissioner clearly says that he could not find out any serious manufacturing defect as alleged by the complainant in his complaint.  He pointed out that the only defect noticed that front right shock absorber was damaged. If cure the defect of the front right shock observe the scooter will be in perfect condition.

10)     We could not find any serious manufacturing defects in this vehicle as alleged by the complainant on going through the Exbt.A1 to A9 evidences adduced by him. Moreover, the expert commissioner clearly examined the disputed vehicle and categorically stated that the vehicle had suffered any manufacturing defect. In the above fact and circumstances we are of the opinion that the complainant’s case is not believable and he is not entitled to get any of the reliefs sought for his complaint. The complainant has miserably failed to prove his case with substantial evidences.

11)     Issue No. (iii)

Having found the issue No. (i) and (ii) against the complainant we are not inclined to consider and decide issue No.(iii).

12)    In the result we find that this complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on this 20^th day of July 2018.

Sd/-Sheen Jose, Member.

Sd/-Cherian K. Kuriakose, President

                                                                   Sd/-Beena Kumari V.K., Member

                                                                             Forwarded by Order

                                                                             Senior Superintendent

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:             

Depositions        :

          PW1 ::        Linson Varkey   

          DW1 ::        Sreejith Rama Krishnan                

Date of Despatch        :

          By Hand              :

          By Post                :

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