By Smt. C.S. Sulekha Beevi, President,

Complainant alleges manufacturing defects to 'Kinetic Challenger' motor cycle.

1. Brief facts:-

Complainant purchased a “Kinetic Challenger' motor cycle from first opposite party on 15-10-2001. Second opposite party is the manufacturer. Opposite parties offered two years warrantee and mileage of 70kms/litre. The consideration was paid by a loan arranged through first opposite party from Kinetic Finance Ltd., which is an associate business concern of first opposite party. Complainant had to incur Rs.20,000/- as finance charges. It is submitted by complainant that within two weeks of it's purchase the vehicle developed the following defects:- (i) leakage of engine oil.

(ii) high vibration of the vehicle.

(iii) high noise.

(iv) abnormal emission of smoke.

Though the vehicle was repaired by first opposite party the defects persisted and the vehicle started to show further complaints as under:-

(a) the body parts started rusting and getting damaged frequently.

(b) the electronic fittings were not functioning properly.

© less mileage.

Complainant states that the vehicle was taken for repair to first opposite party several times and first opposite party used to keep custody of vehicle for days together. The engine was opened and repaired. Though complainant availed four free services the defects could not be rectified. Due tot he defects he used to get stuck up on the way and had to pull the vehicle to a mechanic. The silencer and engine got abnormally heated and his body got burnt. It is submitted that first opposite party became convinced about the defects and informed the complainant that there are manufacturing defects, and that there are several other consumers who had purchased the same vehicle who complain about similar defects. First opposite party then assured to take up the problem to the manufacturer and that first opposite party would be possible to find relief. After completion of the free services first opposite party did not provide any support to rectify the defects. The vehicle continued to have the above problems, and became defective during warranty period itself. Due to the defects complainant had to suffer much hardships and inconveniences, besides the monetary expenses incurred for repairing the vehicle and also for taking alternate transport. The loan availed had to be repaid which added to the sufferings. Hence this complaint.

2. First opposite party filed version admitting the sale of the motor cycle to the complainant. It is stated that first opposite party is only a service agent of the manufacturer and hence not liable for any of the reliefs claimed. The allegation that the vehicle has defects is denied. It is also submitted that first opposite party has trained expert mechanics and that best service was given to complainant. That the job cards maintained by opposite party would prove that the allegations are false. That the vehicle has already covered 17,283KM by May, 2003. The warranty is 2 years and 70,000km whichever comes first. That the complaint is malafide.

3. Second opposite party has field a detailed version. Bereft of the superfluous averments second opposite party admits that complainant has purchased a Kinetic Challenger motor cycle from first opposite party, which was manufactured by second opposite party. That the warranty is for free repair/replacement of certain parts only which is to expire on 14-10-2003. That there is no warranty for replacement of vehicle or refund of price. That the complaints reported were promptly and properly attended free of cost and complainant has taken delivery of the vehicle fully satisfied which was endorsed in the job cards. The exact terms and conditions of warranty are stated in the job cards. That the vehicle has run 17,283KMs by May, 2003 which is recorded in the job card. That this would prima facie show that the vehicle has no manufacturing defect. That complainant had purchased the vehicle by executing necessary hire purchase agreement with finance company and therefore complainant is not the owner. That the complainant has not maintained the vehicle in proper condition and has not observed the operational and maintenance instructions given in the Owners Manual. It is submitted that complainant has already availed of 4 free services and that second opposite party has offered to render necessary services and repair/replacement of parts if required at the cost of the complainant, as the warranty period is already over. That complainant has not incurred any expenses for repair of the vehicle and that repair was so far done free of cost by opposite party. That the complaint is filed with ulterior motives and that opposite parties are not liable to compensate the complainant in any manner.

4. Evidence consists of the oral evidence of complainant who was examined as PW1 and Ext.A1 marked for him. The service engineer of second opposite party was examined as DW1 in O.P.No.139/03. The cross examination of DW1 in O.P.139/03 was adopted by both sides in similar cases O.P.135/03 and O.P.138/03. No documents marked for opposite parties. Ext.C1 is the Commission report.

5. Points for consideration:-

(i) Whether opposite parties have committed any unfair trade practice.

(ii) If so, reliefs and costs.

6. Point (i):-

Complainant is aggrieved that the Kinetic Challenger motor cycle purchased on 15-10-2001 showed defects within two weeks itself as narrated above. Complainant has sworn reiterating the contentions in the complaint. His testimony has withstood the challenge of cross-examination. To prove the defects complainant had taken out an expert commission. Ext.C1 is the report filed by Sri.C.V. M. Sharief, who was the Motor Vehicle Inspector at Malappuram. He inspected the vehicle on 18-3-2008 and submitted his report on 21-4-2008. In Ext.C1 the expert has reported the following defects:-

(i) Engine oil leakage through the head and the crank case.

(ii) Wiring system damaged.

 

It is also stated by the commissioner that the vehicle was not in a condition to drive and that he could not test drive the vehicle and therefore could not assess the mechanical condition. The oddometer reading of the vehicle reported by Commissioner is 11,803KM.

7. At this juncture, it becomes necessary to state certain circumstances regarding the long pendency of this litigation. This is a case filed during the year 2003. From February, 2004 till June, 2007 there was no sitting of this Forum due to vacancy in the post of President and Member. After this Forum commenced sitting in June, 2007 a petition to appoint expert was filed by complainant on 15-11-2007. Thus the vehicle after appointment of expert was inspected only on 18-3-2008. It is true that there was a delay of almost five years to inspect the vehicle after filing of the complaint. But no element of fault can be attributed to the complainant for this delay. In fact there were about 11 cases filed before this Forum alleging manufacturing defect of the very same model vehicle (Kinetic Challenger) which were purchased by different customers from the same opposite party. The list of these cases are as below:-

Sl.No. No. of the case Name of Complainant Status of the case

1. O.P.282/03 E.P. Basheer Disposed on 29-10-2007

for non-prosecution by

complainant.

2. O.P.140/03 T. Bhaskaran “

3. O.P.141/03 V. Saji “

4. O.P.142/03 M. Musthafa “

5. O.P.143/03 George Sebastian “

6. O.P.144/03 V. Joshedas “

7. O.P.136/03 K. Asmabi “

8. O.P.137/03 C.P. Baiju “

9. O.P.135/03 T. Suresh Babu ) Only three cases were

10. O.P.138/03 K. Ismail ) proceeded by complainant

11 O.P.139/03 M. P. Manoj )

8. Thus it can be seen that out of the eleven cases filed basing on the same consumer dispute only three cases were proceeded by parties after the long time gap of non function of the Forum. It can be presumed that during the long delay of the cases the complainants might have sold the vehicles for whatever price available, and were thereby put in a situation of being unable to prove the defects of the vehicles. They chose to abandon the cases. Only three complainants have taken the litigation to the end. It is stated by them that the vehicles became totally defective and are kept with them in an idle condition. This has been reported by the Commissioner also. PW1 stated that the alleged vehicle was carried in a goods vehicle to the site of inspection from where the expert inspected the vehicle. It was submitted on behalf of complainant that after the warranty period first opposite party did not provide any free repairs. Frequent repairs and replacement was a costly affair besides being useless. Adding to this, the dealer, first opposite party closed down, the establishement. Thus complainants could not get any support for rectifying the defects.

9. Opposite parties have vehemently refuted the vehicle to have any inherent manufacturing defect. It was submitted that the Expert Co missioner has not conclusively stated that the vehicle has manufacturing defects. Further contention was that the vehicles became defective and ended in a non-pliable condition only due to the negligence of complainant in not properly maintaining the vehicle. That as per the job cards the vehicle has covered 10,679KM on 15-02-2003 and 17,283KM on 09-5-2003 and that actually at the time of inspection by the Commissioner the vehicle had covered 1,01,021km. That the odometer reading reported by Commissioner is obtained by manipulation. Thus opposite parties contend that complainant has run the vehicle for more than a lakh kilometers and the defects occurred only due to the negligent and exhaustive use. It is also contended by opposite party that the job cards will prove that the defects were properly rectified and that complainant took delivery of the vehicle fully satisfied, each time after repair. Second opposite party has offered that they are ready to rectify the defects if any by repair and replacement at the cost of the complainant.

10. To appreciate the evidence as tot he defects of the vehicle, the deposition of DW1 in this regard is noteworthy. DW1 has deposed:

1. “I have not verified the job cards of O.P.135/03, O.P.138/03, and O.P.139/03.”

2. “It is not correct to say that since I have not seen the job cards. I have not seen the exact kilometer run by the vehicle. Witness adds. I can say the approximate kilometer run by the vehicle. I agree that in the Commissioner's Report of all these cases the kilometers run by the vehicle is shown. I would say that the vehicles in all these cases have run more than a lakh kilometers. I agree that I do not have any document to substantiate this. Witness adds. I have filed job cards along with version. If a vehicle runs more than a lakh kilometer it requires a lot of periodical inspection. I agree to the suggestion that in such case there would be enough documents at my service centre. It is correct to say that if the vehicle was not properly maintained by owner such vehicle cannot run more than a lakh kilometer. I do not agree to the suggestion that therefore the vehicle owner has maintained the vehicle by himself.”

3. All these vehicles were purchased for personal use. It is correct to say that the dealers have not given job cards to the owners in these cases.”

4. “I agree to the suggestion that if the job cards were produced by opposite party all the complaints and problems of the vehicle which were submitted before opposite party would be clear in the job card. In the job cards usually we write the complaints submitted by owner and on the reverse side of job card the parts replaced will also be stated. I agree that when the Expert Commissioner inspected the vehicle it was not in a pliable condition. I am unable to say from which date onwards the vehicle became not pliable. It is correct to say that in all these three cases the vehicles had similar defects.”

5. “I agree that the dealer is equipped with necessary infrastructure and expertise to rectify the defects of vehicles. It is correct to say that sometimes the dealer may not be able to rectify the inherent manufacturing defect of the vehicle. At that point of time we come to assist the dealer. In all these three cases O.P.135/03 and O.P.138/03 and O.P.139/03 the company had deputed me to rectify the defects. I do not have any other document except job cards to show that I have rectified the defects of the vehicle.”

11. It is candidly stated by DW1 that the job cards would show the details of repairs/replacements/servicing done by opposite party. But both opposite parties have failed to produce any of these job cards. It is for opposite party to produce the job cards which they intend to rely on. Non production has to be held against the opposite parties. In view of the above, we are constrained to observe that the motorcycle had to be taken on different dates to the dealer for repairs during the warranty period itself and only when the defects were not removed even after continuous repair, the vehicle was kept as unused and unmaintained by the complainant. According to opposite party the warranty is for 2 years and 70,000km whichever is first. It is affirmed by second opposite party that the vehicle has run 17,283KM by May, 2003. This complaint is filed on 26-5-2003. Thus going by the contentions of opposite party itself, the consumer has approached the Forum frustrated, within the warranty period. When a person buys a new vehicle he does not buy a headache. In normal circumstances it should not give any trouble. Repeated repairs during warranty period for which the dealer had to call expert from the manufacturer as deposed by DW1 impels us to hold that the vehicle has inherent manufacturing defects. Further it is admitted by opposite parties and reported by Motor Vehicle Inspector (Commissioner) that second opposite party has stopped production of the said model of vehicles. The number of litigations filed alleging similar defects to the very same type of vehicle can only lead to the presumption that the manufacturing of such model was defective. Non replacement of the vehicle in these set of circumstances, would tatamount to unfair trade practice. We find both opposite parties guilty of unfair trade practice. Point found in favour of complainant.

12. Point (ii):-

Complainant has prayed for the following reliefs:-

(i) Refund of Rs.60,000/- paid to respondent as purchase price (Rs.40,000/-_ together with finance charges (Rs.20,000/-).

(ii) Compensation of Rs.1,00,000/- towards mental agony, personal inconveniences and damages.

(iii) Interest @ 18% per annum upon the above amounts from the date of purchase till payment.

(iv) Cost and any other reliefs deemed fit and proper.

13. When so many cases are filed before the same Forum alleging similar defects to the same model of vehicle, opposite party should have adopted a consumer friendly approach and resolved the dispute to the satisfaction of the consumer, at the earliest. In our country, the tendency on the part of manufacturers is not to accept the defects, but to encourage litigation by one or other defence, and then take undue advantage of delay in disposal. Having regard tot he nature and extent of defects noted in this particular case, we are of the considered view that complainant is entitled to replacement of the vehicle or refund of the purchase price. Admittedly the Company has stopped manufacturing the said model of vehicle. Hence replacement is impossible. Complainant has sworn that the purchase price of the vehicle is Rs.40,000/-. This has not been controverted by opposite party. We hold that he is definitely entitled to refund of this amount. The complainant was put to constant grievances after purchase of the vehicle for which he has to be compensated also. Basing on the facts and circumstances of the case, we hold that complainant is entitled to interest @ 9% per annum upon the above amount together with cost of Rs.5,000/- which would be adequate relief to the complainant. Second opposite party being the manufacturer is definitely liable to compensate the complainant for manufacturing defects. All other reliefs are disallowed.

14. In the result we allow the complaint and order second opposite party to pay to the complainant Rs.40,000/-(Rupees Forty thousand only) along with interest @ 9% per annum from date of complaint till payment together with cost of Rs.5,000/- (Rupees Five thousand only) within one month from the date of receipt of copy of this order.

Dated this 6^th day of July, 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : M. P. Manoj, Complainant.

Documents marked on the side of the complainant : Ext.A1

Ext.A1 : Photo copy of the Certificate of Registration in respect of vehicle

No.KL10/M.5744

Witness examined on the side of the opposite parties : DW1

DW1 : Nagraj Ramachandra Naik, opposite party.

Documents marked on the side of the opposite parties : Nil

Court document marked : Ext.C1

Ext.C1 : Commissioner's Report.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER