IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

      Saturday the 16^th  day of April 2022.

                                     Filed on 10. 2. 2020

 Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt. Lekhamma C K, BA, LLB (Member)  In

                                         CC/No.41/2020

                                                        between

          Complainant:-                                                     Opposite parties:-

1.  Sri. Libin Joy,                                        1.       The General Manager,

      S/o P S joy,                                                    India Yamaha Motors Pvt. Ltd.,

      Puthukulangara,                                              A-3, Industrial Area,

      Bharanikkavu South,                                      Noida-Dadri Road, Surajpur,

      Onampally North,                                           Gautham Budh Nagar,

      Bharavnikkavu,                                               Utter Pradesh – 201306.

      Mavelikkara,                                                   (Adv. Ranjith Sreenivas &

      Alappuzha -690503.                                         Adv. Sujesh K)

      (Adv.James Johnson)                            2.       The Area Manager,

                                                                             India Yamaha Motors Pvt. Ltd.,

                                                                             No.32/2249/B-6, 4^th Floor,

                                                                             Greenland Heights,

                                                                             Cochin – 682025.

                                                                             (Exparte)

                                                                   3.       The Manager,

                                                                             Indel Automotives Kochi Ltd.,

                                                                             South Kalamassery,

                                                                             Ernakulam – 682033.

                                                                             (Rep.by Adv.P Faizal &

                                                                             Adv.Jithin Paul Varghese)

                                                                   4.       The Manager,

                                                                             Evergreeen Yamaha,

                                                                              Makkaiyil Building,

                                                                             Vadackal P o., Alappuzha.

                                                                             (Exparte)

                                                                   5.       The Manager,

                                                                              Kalpakam Motors, Pthentheruvu, 

                                                          K S Puram P O., Karunagappally, Kollam. (Exparte)

O R D E R

SRI. S. SANTHOSH KUMAR  (PRESIDENT)

Complaint filed under Sec.12 of the Consumer Protection Act, 1986.

Material averments briefly discussed are as follows:-

1.       On 18.06.2019 complainant purchased a Yamaha motorcycle from the 3^rd opposite party which was manufactured by the 1^st opposite party and it was registered as KL 31 N 6818.  2^nd opposite party had assured the quality of the vehicle.  4^th and 5^th opposite parties are the authorized service centers cum dealer of 1^st opposite party. 

2.       After 3 weeks of purse the complainant noticed oil leakage and knocking sound from the engine of the vehicle.  Complainant approached 3^rd opposite party and produced the vehicle for proper checkup and remedy.  After two days the vehicle was returned to the complainant but they could not find any remedy and the defect continued.  The matter was intimated to the 3^rd opposite party and it was informed that the issue was due to some manufacturing defect.  Complainant surrendered the vehicle before the 3^rd opposite party on 08-07-19 and the vehicle was returned after repairs. After two weeks the same complaint occurred and he again contacted the 3^rd opposite party and surrendered the vehicle and after repairs it was returned on 30.08.19.  However after few days again the defect occurred and on 25.09.19 the vehicle was entrusted with the 3^rd opposite party it was returned after 3 days.  However again the same defect occurred and the matter was informed to the 1^st opposite party on 08.10.19, 22.10.19 and finally on 13.11.19 through telephone and email.  The vehicle was again entrusted with the 4^th opposite party.  On 13.11.19 it was return only after 9 days ie on 22.11.19.  After purchasing the motor cycle on 18.06.19 several days it was to be kept at the service center to rectify the defect and the complainant had to avail the leave for producing the vehicle and taking back the same.  On 02.12.19 again the vehicle was entrusted for the 5^th opposite party.

3.       On 05.12.19 a lawyer’s notice was issued to opposite parties No. 1 to 4 and though it was accepted but no reply.  Opposite parties by way of unfair trade practice and restrictive trade practice caused damages and loss to the complainant.  They are duty bound to refund or replace the vehicle as per the stipulations in the warranty.  Opposite parties sold a defective vehicle and it amounts to deficiency in service.  Hence the complaint is filed to refund Rs.1,65,000/- to the value of the vehicle and to pay a compensation of Rs.75,000/- for the mental agony, physical hardships etc.

1^st opposite party filed a version mainly contenting as follows:-

4.       The complaint is false, frivolous, vague and vexatious.  As per the records complainant purchased the Yamaha MT 15 motorcycle from 3^rd opposite party on 18.6.19. The vehicle was delivered to the complainant after completing the process of pre delivery inspection to the entire satisfaction of the complainant.    A warranty was provided for a period of two years or 30,000 Kms whichever is earlier from the date of purchase.  As per the terms of the warranty the same is extended only to the extent of certain parts that are found to have a manufacturing defect and not to the complete motorcycle.  This opposite party undertakes to repair and replace, free of costs the parts that are found to have manufacturing within the period of warranty.  Warranty does not cover for claims on those parts of the motorcycle that have been subjected to mishandling or negligent treatment or by accidental damages by the user.  Similarly there is no warranty on tyres/wheel, battery, spark plug, helmet, chain etc.  As per the terms of warranty this opposite party is only liable to repair the defective parts and not to replace the motor cycle with a new one. 

5.       The motor cycles manufactured by this opposite party is sold through dealers.  The relationship between this opposite party and dealers are on principal to principal basis.  Complainant has suppressed material facts which are extremely relevant for the adjudication.  The averment that the complainant approached the 3^rd opposite party and produced the vehicle for check up is false.   The averment that the vehicle developed defects after few days is false.  The vehicle was brought for 1^st service on 08.07.2019 and the complaints were properly rectified by the dealer.  When the vehicle was brought with cylinder head oil leak on 19.08.2019 it was rectified and the parts were replaced under warranty.  On 23.09.19 it was brought for 2^nd free service and when oil leakage issue was pointed out it was rectified by replacing gasket.

6.       It is true that the vehicle was surrendered with 4^th opposite party following oil leakage on 13.11.19.  They undertook a thorough inspection of the vehicle and found that the oil level is high than it was delivered to the complainant on 25.09.2019.  There is no problem for the motor cycle. Complainant is trying to mislead this Commission with a malicious intention to gain unlawfully.  Complainant is not entitled for any relief and hence the complaint may be dismissed with cost.    

3^rd1 opposite party filed a version mainly contenting as follows:-

7.       Complainant purchased the vehicle on 18.06.19 and it is alleged that the vehicle had multiple defects since beginning. Complainant had not reported any complaints with regard to oil leakage or knocking sound from the engine of the motor cycle at the time of 1^st free service on 08.07.2019.   Thereafter complainant approached this opposite party by raising complaints with regard to oil leakage.  On detecting minor leaks below the engine the complainant was requested to leave the vehicle with this opposite party for two days for solving the defect.  The cylinder gasket and gasket cylinder head were replaced under warranty.  On 25.09.19 the vehicle was handed over to the complainant.  This opposite party is only a dealer of the Yamaha motors and allegations of manufacturing defect are not maintainable.

8.       The manufacturing defect should be an inherent manufacturing defect present in the vehicle at the time of purchase.    Complainant has not approached this opposite party raising complaints regarding oil leakage or knocking sound.  The allegation that this opposite party informed the complainant that the defect was due to manufacturing defect and promised to cure the defect within days is false.  On 08.07.19 when the motor cycle was brought for 1^st service there was no complaint.  On 19.07.19 the technicians detected some minor leak below the engine and it was cured by changing engine gasket.  After replacing the cylinder gasket the vehicle was handed over on 21.07.19.  Again when the complaint was reported after replacing the cylinder gasket the vehicle was handed over on 25.09.19.  The vehicle is not suffering from any manufacturing defect.  There is no deficiency of service or unfair trade practice on the part of this opposite party.  This  opposite party either jointly or severally are not liable to pay any amount.  Hence the complaint may be dismissed with cost.     

Opposite parties 2, 4 and 5 remained exparte.

9.       On the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the motor cycle purchased by the complainant is suffering from any manufacturing defects as alleged?
3. Whether the complainant is entitled to realise an amount of Rs.1,65,000/- being the price of the vehicle as alleged?
4.  Whether the complainant is entitled to realise an amount of Rs.75,000/- as compensation from the opposite parties as alleged?
5. Reliefs and cost?

10.     Evidence in this case consists of the oral evidence of PW1 and PW2 and Exts.A1 to A12 from the side of the complainant. Opposite parties have not adduced any oral or documentary evidence Ext.C1 report was marked through PW2.

Points No.1 to 4

11.     Power of attorney holder of the complainant who is none other than his father was examined as PW1.  He filed an affidavit in tune with the complaint and marked Ext.A1 to A11.

12.     PW2 is working as AMVI at Sub RT office, Cherthala. On  06.10.21 he inspected vehicle No.KL 31 N 6818 Yamaha motor cycle and prepared Ext.C1 report. The copy of RC book of the vehicle is marked as Ext.A12.

13.     As per Ext.A1 bill on 18/6/2019 complainant purchased a motor cycle from the 3^rd opposite party M/s Intel Automotives Cochi Pvt Ltd for Rs. 1,39,500/-. It was manufactured by 1^st opposite party M/s India Yamaha Motors Pvt. Ltd.  2^nd opposite party is the Area Manager of the 1^st opposite party and opposite parties 4 and 5 are the service centers.  According to complainant even before one month of purchase the motor cycle had shown complaints. There was leak of oil from the engine and there was knocking sound. Though he gave the motor cycle for service several times the defect was not cured.  He could not use the  vehicle inspite of spending more than  one lakh rupees and so he sustained  mental agony. Since he was  unable to use the vehicle  he  could not attend office for several days. Hence the complaint is filed to return an amount of Rs.1,65,000/- being the amount of motor cycle along with compensation of Rs. 75,000/-. 1^st opposite party filed a version admitting the purchase. However according to them the motor cycle was delivered after completing the pre- delivery inspection. When it was produced for service certain parts were changed free of cost since it was within the warranty period. According to them there was no manufacturing defect and so the complainant is not liable against them.  3^rd opposite party filed a version contenting that whenever the motor cycle was produced for service it was done free of cost and the spare parts were also changed during warranty period. There was no deficiency of service from their part.  If there is any manufacturing defect they are not liable.  Opposite parties 2, 4, and 5 remained exparte.  Power of Attorney holder of the complainant who is none other than his father was examined as PW1 and marked Ext.A1 to A11.  As per the request of complainant PW2, Asst. Motor Vehicle Inspector at Sub RT office, Cherthala inspected the vehicle on 6/10/2021 and filed Ext.C1 report.  The copy of RC book of complainant was marked as Ext.A12.  Opposite parties have not adduced  any evidence either oral or documentary.

14.     The fact that  PW1 purchased the vehicle as per Ext.A1 bill on 18/6/2019 for Rs. 1,39,500/- from the 3^rd opposite party is not in dispute.  It is also an admitted case that 1^st opposite party is the manufacturer of the vehicle. According to PW1 his son and himself were using the vehicle and it developed several complaints.  Ext.A3 dtd. 30/8/2019 , Ext.A4 dtd. 8/7/2019, Ext.A5 dtd. 25/9/2019 are the tax invoice issued  when the vehicle  was produced for service.  According to PW1 several times there was complaints for the vehicle and so  often it was produced for service.  Ext.A6 is an Acknowledgement dtd. On 11/3/2019  to show that the vehicle was produced for service before the  4^th opposite party.  Ext.A7 is the  job card dtd. 2/12/2019 when the vehicle was produced for  service before the 5^th opposite party. Relying upon these documents the learned counsel appearing for the complainant pointed out that these are evidences to show that the vehicle had several complaints. Per contra according to the learned counsel appearing for the  3^rd opposite party when the vehicle was produced for  free service  there was no such complaints.   The complaints which were reported where rectified during warranty period and no amount was collected for the spare parts.  Ext.A8 is a legal notice dtd. 2/12/2019 issued to opposite parties 1 to 4  explaining the difficulties faced by the complainant while using the vehicle and demanding Rs. 1,65,000/- and compensation.  Ext.A9 series are the postal receipts by which notices were sent and Ext.A10 series are the AD card by which the notices were accepted.  Inspite of receipts of notice there was no reply for the same.  Ext.A11 is a copy of e-mail sent on 4/2/2020 to the 1^st opposite party complaining about the product.  So from these evidence it can be seen that as pointed out by the complainant the vehicle had several complaints even during the warranty period.

15.     As discussed earlier on 6/10/2021 PW2, AMVI inspected the vehicle and prepared a Ext.C1 report.  According to PW2 though there was no oil leakage the vehicle had manufacturing defect. In Ext.C1 report PW1 stated that “In light of the above mentioned points I assume that the vehicle delivered to the registered owner was having manufacturing defects from the factory level itself.  The possibility of similar problems in future cannot be ruled out.”  It is also noted in Ext.C1 report that as per the service history the vehicle was produced only before the authorized   dealers for service.   So the oral evidence of PW2 coupled with Ext.C1 report shows that the vehicle had manufacturing defect.

16.     Admittedly the vehicle had warranty of two year or 30,000 kms whichever is earlier.  From the documents produced from the side of the complainant coupled with discussion made above it is pellucid that the vehicle had several complaints which could not be rectified inspite of service done several times before the authorized service centre.  It is noticed that though opposite parties 1 and 3 field version running into several pages they did not prefer to enter the witness box to prove the case on oath.  As held by the Hon’ble Surpeme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)

 “WHERE a party to the suit does not appear into the  witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

The learned counsel appearing for the complainant relied upon a ruling of the Hon’ble National Consumer Disputes Redressal Commission in Mahindra & Mahindra Ltd. Tractor Vs. Nandalal & 3 Others [II (2019) CPJ 60] and pointed out that “when there is manufacturing defect   manufacturer is bound to   replace the vehicle”.

17.     In the said case the District Commission directed the opposite parties to change the tractor of complainants with new tractor and compensation was allowed.  Appeal filed before the Hon’ble State Commission was dismissed and the Hon’ble National Commission on revision only modified the order with regard to payment of installments to the bank.  The learned counsel appearing for the complainant also relied upon a ruling of the Hon’ble National Consumer Dispute Redressal Commission in  Hyundai Motors India Ltd.  Vs. Suresh Kumar Sharma & Anr [II (2019) CPJ 400].   In the said case the District Commission directed the respondent to take back the car and provide him a new car of the same model for return Rs.15,84,104/- being the  price of the car.  In the said case it was observed by the  Hon’ble National Commission 

“I can only further add that the  petitioner company would do  better to spend all this energy in improving it’s services to the consumer.  Everyone wants a hassle free car.  When it is  not so, it is expected that the service providing companies are sympathetic and understanding and make an honest effort to understand and recompense the consumer complaint, rather than engage in legal battles.”

18.     Here also the Revision Petition was dismissed by the Hon’ble National Commission.  The learned counsel appearing for the 3^rd opposite party pointed out that during cross examination PW1 admitted that there was no deficiency of service from their part.    However it is to be noted that 1^st opposite party is having its office at Uttar Pradesh and 3^rd opposite party is the retail seller cum service centre.  So without junction of other opposite parties an order can be executed effectively.  So from the evidence on record it is  pellucid that the Motor cycle purchased by PW1 on 18/6/2019 had several complaints and  it could not be rectified in spite  of producing before the authorized service centre for several times.  Hence applying the principles laid down in the decisions referred above complainant is entitled for the price of the vehicle.  Though he is claiming an amount of Rs.1,65,000/- as per Ext.A1 bill the  total price of  the vehicle is Rs. 1,39,500/- and so  he is entitled to get back the same.

19.     Complainant has got a further case in the complaint that since the vehicle could not be used properly he was unable to go for his work and availed lien for several days.  However complainant was not available for giving evidence and his father was examined as PW1 on the strength of a Power of Attorney.  The evidence on records shows that on several days the vehicle was at the service centre for repairs.  One who purchased the vehicle by spending more than one lakh is expected to get good service from the same.   If he is not able to get the same definitely one will sustain mental agony and difficulties and so he will be entitled for compensation.    However considering the entire circumstances in this case we are granting an amount of Rs.25,000/- as compensation. These points are found accordingly. 

 Point No.5

20.     In the result complaint is allowed in part.

A) Complainant will produce the motor cycle bearing Reg.No.KL.31.N.6818 before the

    3^rd opposite party and opposite parties will return an amount of Rs.1,39,500/- being   

    the price of the vehicle  which is shown in Ext.A1 bill along with interest @ 9% per    

    annum  from the date of complaint  ie, on 10/2/2020 till realization.

B) Complainant is allowed to realize an amount of Rs. 25,000/- as compensation from

     the opposite parties.

C) Complainant is allowed to realize an amount of Rs.3000/- as cost from the opposite

     parties.

The order shall be complied within one month from the date of receipt of this order

Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 16^th  day of April, 2022.                                                                  

                                      Sd/-Sri.S.SanthoshKumar(President)

Sd/-Smt.C.K.Lekhamma (Member)

Appendix:-

Evidence of the complainant:-

PW1                -   P S Joy (Complainant)

PW2                -   Anoop P (Witness)

  Ext.A1            -   Tax Invoice  dtd 18.6.2019

Ext.A2            -   Policy dtd 19.6.19

Ext.A3            -   Tax Invoice  dtd 30.8.19

Ext.A4            -   Tax Invoice  dtd 08.7.19

Ext.A5            -   Tax Invoice  dtd 25.9.19

 Ext.A6           -   Copy of Acknowledgement Evergreen Yamaha

Ext.A7            -   Job Card Invoice dtd 02.12.19

Ext.A8            -   Advocate Notice

Ext.A9            -   Postal Receipt 05.12.19

Ext.A10          -   Acknowledgement 03 in number

Ext.A11          -   Photocopies (screenshots) of  chats and email conversation with opposite parties

Ext.A12          -    Copy of Registration form 23

Ext.C1             -   Commission Report

 Evidence of the opposite parties:-NIL

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                 Assistant Registrar

Typed by:-Br/-

Compared by:-