Thana,Kannur.

2. Mr.Pramod,

KVR Spare Parts,

AVK Nair Road,

Thalassery.

3. Giresh (Manager-Service),

KVR Bajaj,

South Bazar, Kannur.

4. Managing Director,

KVR Bajaj,

Thana, Kannur.

(Rep. by Adv.T.P.Sabu)                Opposite parties

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to refund `2,617 and to pay `2,500 as cost of these proceedings.

The case of the complainant is that the complainant brought the vehicle to 2^nd opposite party at Thalassery to rectify the defect. 2^nd opposite party endorsed to replace starter motor and thus order placed. After waiting two months complainant contacted company and thereby delivered the motor.  2^nd opposite party/KVR Motors, Kannur directed to bring the vehicle to1^st opposite party/KVR Motors, Thalassery. 2^nd opposite party again directed to bring the vehicle from Thalassery to Kannur and caused heavy expense. 1^st  opposite party informed complaint that the defect is not that  of starter motor but with the starter  clutch and gear and advised to place the same assuring the amount spent for starter motor refunded. Order was placed accordingly. On 7.9.2009 3^rd opposite party delivered the vehicle and assured smooth and proper working. Complainant took the vehicle to Thalassery but within one km running it had become again defective and the same shifted in a goods Auto to opposite party. Complainant asked the opposite party to refund the repair amount but they denied. The vehicle was not repaired properly. There is willful default and deficiency in service on the part of opposite party. Hence this complaint.

          Pursuant to the notice opposite parties made appearance and filed version denying the main contention of complaint. Opposite parties contended as follows: The allegation of the complaint that the complainant brought the vehicle with some mechanical defect and 2^nd opposite party advised to replace starter motor etc. are false. 2^nd opposite party is not a mechanic. He is busy with the spare parts shop. He never checked the vehicle of the complainant and never suggested or advised for any repair or replacement. Complainant might have purchased a starter motor from the spare parts shop but it is not at the request of opposite party. Opposite party has not charged `2177 for starter motor and assured rectification 2^nd opposite party received the price of the starter motor. The allegation that 1^st opposite party informed the complaint that the defect of the vehicle is with respect to the starter clutch and gear and not with respect to the starter motor is false. Opposite parties 1 and 2 are persons employed in spare parts department of KVR vehicles and they have nothing to do with the checking of vehicles to find out defects and solutions. Opposite party sold the spare part to complainant and received the amount. It is true that vehicle is kept with the opposite party in repaired condition. As the opposite party serviced the vehicle and even sent letter to he complainant to take the vehicle from the opposite party and this complaint is purely made by the complainant by suppressing the material facts. The starter motor was used by the complainant hence the money received for the starter motor cannot be refunded. The vehicle was entrusted with the 4^th opposite party for repair and it was repaired. After the repair the complainant was not ready to take delivery of the same from the service station even after repeated request. The repair was done by the opposite parties by taking very much stress and pain as some of the parts were bringing from Chennai. As an authorized dealer and service centre this opposite parties are always ready and willing to give proper and effective service and repair to the vehicle if any problem raised in future also. The complainant even after receiving the phone calls and communication from opposite parties reluctant to take delivery of the vehicle with ulterior motives to extract money unlawfully. Complainant is liable to pay the repair and service charges to the opposite party. This complaint is filed to evade this liability. Opposite party is not liable to compensate complainant since there is no deficiency in service. Hence to dismiss the complaint.

          On the above pleadings the following issues have been taken for consideration.

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

               opposite   parties?

2.     Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost.

The evidence consists of the oral evidence of PW1, PW2, CW1, and DW1 and documents Ext.A1 to A6 on the side of the complainant and Ext.B1 to B4 on the side of opposite parties.

Issue Nos.1 to 3

Admittedly the vehicle of the complainant is still in the possession of opposite parties. The repair of the vehicle was done by opposite party. Opposite parties admitted that the vehicle was entrusted to 2^nd opposite party at Thalassery for repair. Later he was asked to bring the vehicle to Kannur for repair and accordingly 4^th opposite party repaired the vehicle. The case of opposite party  is that even after repair, the complainant was not ready to take the delivery of the vehicle from the service station though repeatedly requested to take back.

          The complainant’s definite case is that the vehicle has not been repaired properly. He has also case that at first he was asked to replace starter motor. Complainant purchased starter motor and produced the vehicle at Thalassery. It was again asked to bring the vehicle to Kannur and 1^st opposite party informed that the defect was not with the Starter motor but with the ‘starter clutch and gear. It was also informed to place the same and assured that the amount of starter motor would be refunded. Order was placed then and after the delivery with assurance of smooth and proper working the vehicle was taken to Thalassery but on the way it became again defective, which was thereby shifted in a goods vehicle to opposite party.

          The Expert commission was taken out. He inspected the vehicle of complainant KA.19L5394 Bajaj Saffire stored in the workshop (KVR), Thalassery on 11.11.10 and submitted a report. The report Ext.C1 goes to show reported as follows:

I.  Mechanical defects:

          1. Slow speed not set properly, the speed of vehicle is

             Gradually increasing after a throttle operation.

2.     Due to move engine speed the vehicle is difficult to move

     back ward during engine is in running condition.

3.     Speedometer and Odometer are not in working condition.

II. The Vehicle is stored inside the workshop (KVR-Thalassery)

     Properly.

III. Repair cost

After preliminary inspection (as per Job card and spare

parts list)

1.     In connection with self starter trouble is about `1000

2.     In connection with clutch repair is about `3500

IV. The self starting condition of vehicle is found correct, but kick

       starting is not so easy.

Opposite parties 1 to 4 filed objection to Commission report stating that the Expert Commissioner failed to note the manufacturing defects for which the inspection was sought with an allegation that the report was submitted with an intention to help the complainant. Opposite parties also contended that commissioner omitted to report the fact that the defects in the vehicle were happened not due to the mistake of the opposite parties.

The evidence of DW1 reveals that complainant had purchased a new starter motor. DW1 deposed in cross examination that “ ]pXnb starter Motor hm§n-b-Xmbn Adn-bm-T. 2167 cq] sNe-h¡n ]cm-Xn-¡m-cn- hm-§n-b-XmWv”. Version itself it is stated that complainant might have purchased a starter motor from the spare parts shop of opposite party but it is not at the request of opposite party. PW1 adduced evidence that  “FXnÀ I£n-IÄ aptJ-\-bmWv starter motor\p   order sImSp-¯Xp”. It is admitted by the opposite party that he had received the price of the starter motor. But there case is that it was not purchased at the request of the opposite parties. The admission in the version and that of the deposition of DW1 proves that complainant had purchased a new starter Motor from opposite party for `2167. The evidence goes to show that the vehicle was entrusted to opposite parties for repair. And it is also seen spare part is purchased from opposite party. In the ordinary course of dealings  there is nothing wrong to presume that the spare  parts is purchased for the purpose of repair and thereby in  accordance with the direction of the 3^rd opposite party.

It is an admitted fact that the opposite party carry out the repair of vehicle of complainant with respect to the defect of starter clutch and gear. Then there is no doubt spare part for repair of this might have purchased by the complainant. Thus starter motor purchased from opposite party has anyhow or other, become useless as far as complainant is concerned.

However, DW1 admitted that it was complainant who brought the vehicle to Kannur.DW1 deposed in cross examination that “I®q-cn hml-\T F¯n-¨Xp ]cm-Xn-¡m-cn-bm-Wv..”. It is a fact that the vehicle was first entrusted with opposite party’s branch in Thalassery. So it is clear that the shifting burden has been taken by the complainant herself.

Anyhow DW1 deposed that the vehicle brought to them in the 7^th month of 2009. Ext.B1 Job card dated 25.07.2009 of KVR Vehicles confirm that complainant’s vehicle is within the custody of opposite party on 25.07.2012. Ext.A2 is the bill issued by KVR vehicles which reveals that complainant purchased starter motor and Ladies Foot rest. The carbon entry on  25.07.2009 goes to show that those items are included among 1 to 8 items  entered therein. But the other side it is seen entered 8 items wherein those two items are excluded. So it can be very well assumed that starter motor was advised to purchase but later that was not used. As per Ext.B1 the vehicle was promised tobe delivered on 27.07.09. Complainant adduces evidence through affidavit that the vehicle returned to complainant on 07.09.09 with assurance that the same repaired curing all the defects. But on the same day after traveling about  1 km towards Thalassry from Kannur the vehicle became defective and this taken to opposite party by an auto goods and the vehicle still remains with opposite party.DW1 deposed in cross examination that “hml-\T Øm]-\-¯n sIm­ph-¶Xp  7þmT amkT 2009 -em-Wv.- A-¶p-ap-XÂ- C-¶p-hsc hml-\T R§-fpsS ssIh-i-¯n-em-Wv.”.  So it can be seen that the vehicle of the complaint has been still in the hands of opposite party. The case of the opposite party is that they have repaired the vehicle and informed the complainant. But complainant did not take delivery of the repaired vehicle. Opposite party produced Ext.B2 job card. Since there is no customers signature and supporting evidence the  document cannot be taken as genuine  when it was denied by the complainant.

It is an admitted fact that the complainant’s vehicle has been under custody of opposite parties at least right from July 2009. Complaint sent Ext.A4 lawyer notice on 20.10.09. Ext.A5, A5(1) to A5(3) are the acknowledgement which reveals lawyer notices were received by opposite parties. Lawyer notice sent to opposite parties calling for repair, refund of `2,167 and `5000 as compensation. Opposite party did not send any reply. Complainant made it clear that lawyer notice was sent both by pleadings and affidavit evidence. But opposite parties stated anything about Ext.A4 lawyer notice neither in version nor in affidavit evidence.

Ext.A4 lawyer notice specifically alleged that on 07.09.2009 when the complainant had driven the vehicle for one km from Kannur it showed grave mechanical defects and taken the vehicle to opposite party to conduct repair and to refund amount shown in the bill dated 25.07.2009Non reply to Ext.A4 lawyer notice is a deficiency in service on the part of opposite party. Since there is no explanation for the non-reply of the lawyer notice it can be presumed that the vehicle was not repaired ready for delivery. Opposite party deposed in cross examination that “17.11.09sâ Ext.B2hnt\m-sSm-¸-ap-ff 13 km[-\-§Ä amän-bn-«p-­v. .B2 billt\msSm-¸-ap-ff _nÃn  13 km[-\T amän-bn-«p-­v.. B2 bill\p tij-amWv Commissioner hml-\T ]cn-tim-[n-¨Xp. Ext.B3 dated 28.11.09 was claimed to be sent by opposite party but no postal receipt produced. It is a fact that Ext.A4 notice still remains not replied. Without evidence it cannot be believed such a notice has been sent by the opposite parties                                                                                                                                                         to complainant especially when Ext.A1 report of the expert Commissioner numbered the defects of the vehicle. It can be seen that Expert Commissioner had inspected the property before date of Bill. Expert Commissioner appointed in this matter submitted his report and the same marked as Ext.C1 in evidence. Opposite party filed objection to commission report on 01.02.2011.

The only objection of the opposite parties to the report was that the expert commissioner failed to note the manufacturing defects of the vehicle. It was also alleged that the omission was intentional. Nothing has stated about the mechanical defects pointed out by the Expert Commissioner. Thus the report and objection itself undoubtedly make it clear the vehicle as defective at least till January 2011.Nothing more to be required to come into conclusion that there is grave deficiency in service on the part of opposite parties since the defects of the vehicle has been specifically pointed out by the expert commissioner. Complainant is in no way obliged to take back the defective vehicle. DW1 deposed in cross examination that CommissionerDsS  report{]Im-cT h­n perfect condition Aà F¶p ]d-ªm icn-bm-Wv.”. So till the report of the commissioner the vehicle was kept un-repaired. And no evidence produced to show that the vehicle had been repaired fault free after wards. DW1 deposed in cross examination that“ CommissionerIs­-¯nb XI-cm-dp-IÄ ]cn-l-cn-¡m³ X¿m-dm-Wv. kT-Xr-]vX-am-b-D-`-t`m-àr-_-ÔT \ne-\nÀ¯m³X-¿m-dm-Wv.” He has also stated that “perfectBbn repair sNbvXp \ÂIn-bmse Repairing cost \ÂIm³ _m²-y-X-bp-f-fq- F¶p ]dªm icnbm-Wv”.

The analysis of the available evidence goes to show that opposite parties failed to deliver the vehicle fault free to complainant. Whatever may be the claim of the opposite party the report of the expert commissioner proved that the vehicle was defective at the time of his inspection. Opposite party failed even to give reply to the legal notice sent by the complaint. Taking into account the facts revealed in the analysis of the case we are of considered opinion that there is deficiency in service on the part of opposite parties and thereby opposite party is liable to deliver the vehicle repaired free of cost and to pay a sum of `5000 as compensation and an amount of `2000 as cost of this proceedings. Hence the issues 1 to 3 are found in favour of complainant and order passed accordingly.

          In the result, the complaint is allowed partly directing the opposite parties to deliver the vehicle of the complaint repaired free of fault (cost) and to pay a sum of `5,000 (Rupees  Five thousand only) as compensation and an amount of `2,000 (Rupees Two thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which the complainant is entitled to get an amount of price of a new scooter of the same. The complainant is at liberty to execute the order after the expiry of one month of this order as per the provisions of consumer protection Act.

                       Sd/-                     Sd/-                    Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1. Copy of the RC book

A2 & A3. Bills issued by OPs dt.25.7.09 & 7.9.09

A4.Copy of the lawyer notice sent to OPs

A5.Post AD cards

A6.Power of Attorney

Exhibits for the opposite parties:

B1& B2. Job cards and connected bills.

B3.Copy of the letter dt.28.11.09 sent to complainant

B4. Postal AD

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.Complainant

PW2. Jeejesh.K.P

Witness examined for the opposite parties:

DW1. Ajesh Joseph

                    /forwarded by order/

          Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.