BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
C.C. No. 127/2011 Filed on 16.04.2011
Dated : 30.09.2011
Complainant :
Akshayakumar. K.S, Akshaya Bhavan, Kannaravila, Nellimoodu P.O, Neyyattinkara, Thiruvananthapuram-695 524.
(Appeared in person)
Opposite party :
Rajan, Managing Director & Proprietor, Cheran Automobiles, Kaimanam, Thiruvananthapuram.
(By adv. V. Prathap Singh)
This O.P having been heard on 04.08.2011, the Forum on 30.09.2011 delivered the following:
ORDER
SMT. BEENAKUMARI.A: MEMBER
Facts of the case are as follows: Complainant has booked a Hero Honda Glamour FI Black two wheeler with the opposite party and paid Rs. 25,000/- as advance amount on 07.02.2011. On 25.03.2011 as per the information from the opposite party the complainant has approached the opposite party with balance amount to select the vehicle. As per the direction of the opposite party he has paid the balance amount of Rs. 42,195/- and selected a black colour bike and filled the form with its chasis No. and engine number and handed over all the relevant documents to the opposite parties for the registration of the vehicle. On 28.03.2011 after the registration of the vehicle when complainant checked the engine number and chasis No. it was found that the vehicle was not the vehicle he has been selected. The complainant has taken possession of the vehicle on 31.03.2011. the complainant alleges that there was over smoking, over sound and oil leakage occurred from the vehicle. Due to that reason the complainant has entrusted the vehicle to the opposite party for replacement of the vehicle on 04.04.2011. But the opposite party instead of replacement of a defect free new vehicle, returned the same vehicle to the complainant assuring that they have cured the defects. But the same defects were continued. For that complainant against entrusted the vehicle to the opposite party. The complainant alleges that the opposite party has committed fault to give the vehicle which has been selected by the complainant. The complainant has been cheated by the opposite party in giving another defective vehicle to the complainant instead of selected vehicle. The act of the opposite party caused irreparable loss and hardship to the complainant. Hence this complaint.
Opposite party filed their version contending the allegations against them. The opposite party states that the complainant has taken delivery of the vehicle with full satisfaction and without any compulsion. The opposite party denied the statement that the complainant had entrusted the vehicle to the opposite party on 04.04.2011 for replacement. They stated that the complainant has entrusted them the vehicle for curing the defects. The opposite party stated that there was no complaint on the vehicle as he alleged. The defect was due to over gear raising and improper use. The opposite party further states that they have cured the defects of the vehicle in free of costs and intimated the matter to the complainant on 25.04.2011 to take the vehicle from there. But the complainant did no do so. They further state that they have delivered more than 700 vehicle in a month and they have maintained their goodwill among public. The aim of the complainant is to defame their goodwill. In the version they contended that the vehicle has two years warranty and within that period they will cure all the defects and replace defective parts free of costs. Hence they prayed for the dismissal of the complaint.
The complainant in this case has filed proof affidavit and has produced 6 documents which were marked as Exts. P1 to P6. Opposite party has no oral evidence, but produced 3 documents which were marked as Exts. D1 to D3.
The points to be ascertained:
Whether there is unfair trade practice or deficiency in service from the side of opposite party?
Whether the complainant is entitled to get the reliefs and costs sought for?
Points (i) & (ii):- The case of the complainant is that he has selected one vehicle and the opposite delivered another vehicle. The complainant alleges that the engine number and chassis number of the vehicle were different from the vehicle which he has selected. In the version the opposite party admitted that fact and they stated that the complainant has taken delivery of the vehicle without any objection and without any compulsion. The complainant states that on the same day itself it was found that the vehicle was defective one and there was over smoking and over sound from the vehicle and there was oil leakage. The opposite party stated that the over gear raising and improper use of the vehicle are the causes of the complaint and they have already repaired the vehicle and the vehicle is in a perfect condition now. But the complainant is not willing to accept the vehicle. The complainant wants refund of the price of the vehicle or replacement of a new one. To prove the contentions in the complaint complainant has filed proof affidavit and produced 6 documents. He has been examined as PW1 and the documents were marked as Exts. P1 to P6. From the opposite party's side 3documents were marked as Exts. D1 to D3. Ext. P1 is the cash receipt for the payment of Rs. 67,195/-. Ext. P2 is the copy of postal receipt. Ext. P3 is the copy of service job card dated 04.04.2011 and Ext. P4 is job card dated 11.04.2011. Ext. P5 and P6 are the copies of insurance details. In Ext. P5 we can see a correction in frame number column of the vehicle and in that portion it is seen signed by the opposite party. Ext. P6 is the copy of service book. The complainant alleges that the opposite party has made correction in that book. The document marked as Ext. D1 is the fitness certificate issued by the opposite party's Works Manager regarding the condition of the motor vehicle in dispute. Ext. D2 is the copy of purchase order of Hero Honda Motors Ltd by he opposite party. The engine number and frame number of the disputed vehicle is mentioned in this document. Ext. D3 is the tax invoice of the vehicle. In this case at the time of trial the complainant has filed a petition to direct the opposite party to produce the original booking form of the vehicle before this Forum. But the opposite party has not produced the same. He has filed an affidavit stating that after the registration of the vehicle they do not keep the original booking form, they have saved all the details in their computer. Hence they could not produce the original booking form.
From the documents and evidence adduced by both the parties we find that it is true that the vehicle which has been booked and selected by the complainant was not delivered to the complainant. The opposite party had delivered another vehicle to him. And it is the true fact that the vehicle has some defects and the opposite party admitted that they have repaired the complaints and the vehicle is in a perfect running condition. The vehicle in dispute is a Hero Honda Glamour FI Black colour motor cycle. The vehicle supplied to the complainant became defective from the very next day of its purchase. The vehicle is still with the opposite party. So there is no need for the complainant to follow the procedures as envisaged in Sec. 13 of the Consumer Protection Act. But the opposite party has also not taken out a commission to prove their contention that the vehicle is in perfect condition. From the above discussions it is evident that the complainant has neither been given vehicle which has been opted by him nor the vehicle supplied to him is defect free one. On going through the entire materials on record we find that there is unfair trade practice from the side of opposite party, that they have not supplied the vehicle booked and selected by the complainant. He is not satisfied with the present vehicle. For that reason he has suffered a lot of mental agony and has suffered inconveniences. For that mental agony and inconvenience the opposite party is liable to compensate the complainant. Hence we allow the complaint.
In the result, opposite party is directed to replace the defective vehicle in dispute with a new defect free one of the same model and same colour to the complainant. The opposite party shall pay Rs. 10,000/- as compensation to the complainant and pay Rs. 1,500/- as costs. Time for compliance one month from the date of receipt of the order. Otherwise 12% annual interest shall be paid for the amount till the date of realization.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30th day of September 2011.
BEENAKUMARI. A : MEMBER (Sd/-)
G. SIVAPRASAD : PRESIDENT(Sd/-)
S.K. SREELA : MEMBER (Sd/-)
C.C. No. 127/2011
APPENDIX
I COMPLAINANT'S WITNESS :
PW1 - Akshayakumar. K.S
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of the cash receipt No. 601 dated 07.02.2011
P2 - Copy of the postal receipt dated 29.03.2011
P3 - Copy of service schedule and service job card counterfoil.
P4 - Copy of service schedule and service job card counterfoil.
P5 - Copy of two-wheeler certificate-cum-policy schedule.
P6 - Copy of the service book.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Fitness certificate issued by the opposite party.
D2 - Copy of purchase order of Hero Honda Motors Ltd. by the opposite party.
D3 - Copy of tax invoice No. 8777 dated 28.03.2011
Sd/-
PRESIDENT
