Karnataka

Kolar

CC/143/2023

Sri.V.A.Sendil Kumar - Complainant(s)

Versus

Sri. Kausthub Motors Pvt Ltd - Opp.Party(s)

30 Apr 2024

ORDER

Date of Filing: 16/11/2023

Date of Order: 30/04/2024

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR – 563 101.

Dated:30^th DAY OF APRIL 2024

SRI. SYED ANSER KALEEM, B.Sc., B.Ed., LL.B., …… PRESIDENT

SMT. SAVITHA AIRANI, B.A.L., LL.M., …..LADY MEMBER

CONSUMER COMPLAINT NO:143/2023

 

Sri. V.A. Sendil Kumar.

S/o V.K. Anand Raj,

Aged about 43 years,

Painter by Profession,

#175, Someshwara Block,

Oorgumpet,

K.G.F – 563121.

(Rep. by B. Kumar, Advocate)                          ….  Complainant.

 

                                                                                                                - V/s –

1) Sri. Kausthub Motors Private Limited,

Railway Station Road,

Opposite Robertsonpet Post Office,

Robertsonpet,

K.G.F - 563122

(Ex-Parte)                                                      

 

2) Honda Motor Cycle Scooter India Private Limited,

Plot No.109-142, KIADB,

Narasapura Industrial area,

Karinayakanahalli, Kasaba Hobli,

Malur Taluk,

Kolar District.

(Rep. by Subrami H.V. Subramani, Advocate)  …Opposite Parties.

                                                             

-: ORDER:-

BY SRI. SYED ANSER KALEEM, PRESIDENT

1. This is the complaint filed under section 35 of the Consumer Protection Act 2019 against OP.No.1 & 2 and prays for directions to the OPs to replace the HONDA ACTIVA 6G two wheeler bearing registration No. KA-08-EB-3000 with new vehicle of the same description and Rs.10,000/-towards compensation in respect of loss of earnings along with Rs.5,000/- towards mental agony and Rs.5,000/- towards cost of the proceedings.
2. The brief facts of the complaint is that, on 14/01/2023 complainant was purchased the Honda Active 6G two wheeler from the Ops and he had paid Rs.29,570/- towards the down payment to the Ops and remaining amount of Rs.79,259/- was paid by availing the loan.  Complainant states that, he is repaying the loan amount through EMIs and monthly paying Rs.3,557/- towards each EMI and the tenure of the loan is fixed for 30 months.

 

3. It is stated that, though complainant made payments but the Ops caused delay in getting the vehicle registered and finally after prolong time on 11/03/2023 complainant got the vehicle registered to his name bearing registration No.KA-08-EB-3000.

 

4. It is stated that, on 17/02/2023 complainant had its first service to vehicle and the OP changed the oil and water service was done for which complainant was paid Rs.405/-.  It is alleged that, during the month of April 2023, the battery drained out within the 3 months from the date of purchase and thereon, complainant approached the OP.No.1 and thereon, OP got replaced the battery.  Further stated that, on 27/07/2023 when the complainant get the vehicle for second service again the OP changed the oil and water service was done and collected Rs.405/- from the complainant.  Further alleged that, on 04/11/2023 when the complainant was proceeding with the said vehicle and it was stopped due to oil leakage from the silencer, and also caused burning smell and hence complainant and the vehicle was stopped completely and could not move.  Further complainant took the said vehicle to the OP.No.1 and the OP.No.1 informed that, entire engine of the vehicle is seized and they sought for time for replacement of engine.  It is stated that, vehicle is lying idle with the OP and till date OP has not care to effect necessary repairs.  The complainant alleges that, the subject vehicle has inherent manufacturing defect and in spite of repeated request by the complainant but the OP.No.1 did not care to replace the vehicle and made the complainant to wander from pillar to post.  Hence the complainant by alleging deficiency in service filed this complaint.

 

5. Upon admission of complaint and on issuance of notice, OP.No.1 failed to appear before this Commission to answer the claim of the complainant, consequently OP.No.1 placed Exparte.  Further, due to non-returning of the acknowledgement regarding notice sent to the OP.No.2, complainant taken another notice to the OP.No.2 and also filed postal track consignment report along with affidavit regarding service of notice to the OP.No.2.  On perusal of postal consignment track report and the affidavit it is reflected from the track consignment report that, the notice sent to OP.No.2 was served on him and on the basis of the affidavit and the postal track consignment it is sufficient to hold service of notice to OP.No.2 but the OP No.2 for the reasons best known to it not appeared before this Commission to answer the claim of the complaint, consequently OP.No.2 also placed exparte.  However, when the matter reached at the stage of arguments once the H.V.S Advocate files power for OP.No.2.  It is worth to note that, OP.No.2 though not filed the version within the stipulated time but he is permitted to contest the case in accordance with law. 

 

6. In order to prove the case of the complainant, and the complainant filed his affidavit evidence along with the documents.

 

7. On the basis of the complaint averments and the evidenced placed on record the following points will do arise for our consideration.

 

1. Whether the complainant proves that, there is an inherent manufacturing defect in the vehicle bearing registration No.KA-08-EB-3000 and thereby Ops committed deficiency in service in delivering the said defective vehicle?
2. Whether the complainant is entitled for the relief as sought in the complaint?
3. What Order?

  

We have heard the arguments.  Our answers to the above points are as follows:

Point No. (1) & (2):-    In the Affirmative.

Point No. (3):-             As per the final orders

                                 for the following.

                                 

                            REASONS

8. Point No.(1) & (2):-  On perusal of the pleadings of the parties and evidence placed on record and we are of the opinion that these two points are interlinked to each other and in order to avoid repetition of discussion of facts and for the sake brevity these points will taken up together for common discussion.

 

9. On perusing the complaint averments along with the document placed before us and perusing Annexure “A” it discloses that, on 14/01/2023 complainant paid Rs.29,570/- to the OP.No.1 as an advance amount in order to purchase the subject vehicle.  Further on perusal of the certificate issued by the Transport Department dated: 11/03/2023, it also discloses that, complainant paid a total sum of Rs.1,04,869/- to the OP.No.1 to purchase the said vehicle.  Further on perusal on annexure “D” complainant got registered his vehicle and bearing registration         No.KA-08-EB-3000. On perusal of the annexure “E” it discloses that, complainant had taken the service of the vehicle from the OP.No.1 and the OP.No.1 for changing Engine Oil and water service and paid Rs.405/-.

 

10. Further complainant in order to show that, regarding paying of down payment filed receipt bearing No.135 dated: 14/01/2023 it shows that, complainant paid Rs.29,570/- towards down payment and also filed regarding obtaining loan from the concerned finance it reflects that, after the down payment complainant availed loan amount of Rs.79,259/- in order to purchase the subject vehicle and he is paying regular EMIs towards the repayment of the loan.  Further on perusal of the online payment dated: 11/03/2023 it discloses the payment made by the complainant in respect of the purchase of the subject vehicle.  All the documents produced in support of the complainant discloses that, complainant totally paid Rs.1,04,869/- to the OP.No.1 

 

11. It is the grievance of the complainant that, when the subject vehicle is purchased by him due to certain repairs and seizing of the engine of the subject vehicle he left the vehicle with the OP for suitable repairs and the said repair comes within the couple of months since the date of purchase.  Despite service of notice Ops failed to answer the claim of the complainant and however, advocate for OP.No.2 entered appearance after placing the matter exparte.  As a matter of right OP.No.2 permitted to conduct the case in accordance with law.  However, OP.No.2 not put forth any solid grounds regarding seizing of the engine of the subject vehicle and the evidence placed on record not rebutted by the Ops.  Under the circumstances, when the things itself speaks there is no need of calling the expert evidence to ascertain the seizing of the engine and disbelieve the allegations of the complaint. 

 

12. Further it is noteworthy to mention that, within a few months of purchase of the subject vehicle, engine was seized and it obviously demonstrate that, the subject vehicle is defective in nature and hence selling of defective vehicle to the complainant amounts to deficiency in service.  It is also noteworthy to mention that, the complainant also filed memo praying for alternate remedy and seeking refund of the amount paid towards the subject vehicle.

 

13. On looking in to the facts and evidence placed on record we reached to conclusion that, due to defect in engine of the subject vehicle complainant is entitled for refund of the amount as he lost confidence with the Ops.  As per the records the subject vehicle purchased on 14/01/2023 for an total amount of Rs.1,04,869/-and somehow that, the complainant used the vehicle though used for few months and hence to strike the balance between the parties before ordering refund of the amount, it is just and proper to calculate depreciation of amount paid to an extent of 10% P.a.  Under the circumstances OP.No.2 being a manufacturer and the defective vehicle sold by the OP.No.1 and hence both OP.No.1 & 2 are jointly and severally are liable to refund of the amount of Rs.94,382/-to the complainant.  Furthermore, complainant is directed to handover the possession of the said vehicle to the OPs and executing the necessary papers in favour of the OPs.  Furthermore, OP.No.1 is also responsible for selling the defective vehicle and made the complainant wander from pillar to post without assisting the complainant to enable him to get new vehicle or to remove the defect in respect of the engine and thereby, complainant obviously lost confidence with the Ops vehicle and hence complainant is entitled for cost of the litigation to an extent of Rs.2,000/-along with refund of the amount.  Accordingly we answered Point No.(1) & (2) In the affirmative.

 

14. Point No. (3):- On the basis of discussion and reasons assigned while answering Point No.(1) to (2) and thereon we proceed to pass the following order:

ORDER

1. The complaint is hereby allowed with cost.
2. That the OP.No.1 & 2 i.e are directed to refund of the amount of Rs. 94,382/- to the complainant by receiving back the HONDA ACTIVA 6G two wheeler bearing registration No.KA-08-EB-3000.
3. Further complainant is directed to execute the necessary loan papers in favour of the OPs or in favour of any other person as directed by the OPs.
4. That the OP.No.1 & 2 are hereby directed to pay Rs.2,000/- towards the cost of the litigation.
5. Further both the OP.No.(1) & (2) are hereby by comply the orders shown at Sl.No. (2) to (4) within 30 days from the date of receipt of order and submit the compliance report within 45 days.
6. Send a copy of this order to all the parties to the proceedings at free of cost.

 

      (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 30^th DAY OF APRIL 2024)

 

 

       MEMBER                                 PRESIDENT