DATE OF FILING :11/08/16 

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the 30th  day of August 2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

           SRI. BENNY. K. MEMBER

CC NO. 233/2016

Between

Complainant       : Basil Scaria, S/o Scaria,

                                                                           Kunnathu House, 

                                                                           Machiplavu P.O., 

                                                                           Adimaly, Pin 685 561.

And

Opposite Party                                          :  The Manger,

                                                                        Muthoot Honda, 

                                                                        Adimaly.

(By Adv: Lissy M.M.)

 

O R D E R

SRI. S. GOPAKUMAR (PRESIDENT)

 

The case  of the complainant is that,  

 

Complainant purchased a Motor Bike manufactured by Honda Company branded as Honda CB Hornet 160 R model, from the opposite party, authorised agency of Honda two wheelers on 15/06/16.  Within some days of its purchase complainant found that below outside portion of the silencer as well as engine is rusting.  It is further found that the engine and body part are repainted to conceal the rust.  When the complainant done  water wash on the vehicle all the new paint coating over the body parts became torn and the rusting became more visible.  On enquiry, the complainant got realiable information from the opposite party's office itself that it is a 2015 demo bike, and after a long use, the opposite party sold the vehicle after done some repairing work, on the pretext that it is a new vehicle.  Complainant further stated that instead of delivery of a 2016 model bike opposite party delivered an old bike and received full amount of the branded new bike and thereby opposite party cheated the complainant and this act of the opposite party warranted unfair trade practice, thereby the complainant sustained a heavy loss and mental agony.  Against this act of the opposite party complainant filed this petition for allowing  relief  such  as  to  direct  the  opposite  party to replace the bike with

                                                                                                                           (Cont....2)

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a 2016 model one or else repay an amount of Rs.96,000/- being the purchase price of the vehicle and also direct them to pay compensation and cost.

 

Upon notice opposite party entered appearance and filed written version.  In their version opposite party contented that complainant is well aware of all these fact and after knowing the vehicle is a 2015 model he accepted it and also before taking delivery of the vehicle, the complainant conducted thorough inspection.  After satisfying the performance and condition of the vehicle, the complainant took delivery of the vehicle.  Opposite party further contented that, this model vehicle was launched in the month of December 2015, and the vehicle was reached to the showroom in the month of April and May 2016.  The opposite party is not aware of any of the defect which is stated in the complaint, opposite party has got knowledge only after the receipt of copy of this complaint.  At the time of delivery of the vehicle, no defect was noted and more over the complainant inspected the vehicle with the help of the mechanics of opposite party's show room.  Opposite party specifically denied the averment that the vehicle was used by them as demonstration bike.  Hence there is no deficiency in service or unfair trade practice is occurred on the part of the opposite party in this matter.

 

Evidence adduced by the complainant by way of proof affidavit and documents.  Complainant was examined as PW1 and Ext.P1 to Ext.P3 were marked.  Ext.P1 is the copy of RC book of the bike in question having Reg No.KL/68/6223, Ext.P2 is the photographs of the bike, Ext.P3 is the copy of legal notice dated 07/07/16 and its AD card.  

 

From the defence side Sales Manager of the opposite party was examined as DW1 and Ext.R1 to Ext.R5 were marked.  Ext.R1 is the copy of retail invoice dated 15/06/16, Ext.R2 is the copy of insurance certificate, Ext.R3 is the copy of booking particulars dated 15/06/16, Ext.R4 is the copy of loan sanction letter, Ext.R5 is the copy of new model vehicle circular.  

 

Heard both sides,

 

The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties, and if so, for what relief the complainant is entitled to ?

                                                                                                                           (Cont....3)

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The Point:- We have heard the counsel for both the parties. 

 

In the complaint, it has been contented that the vehicle in question was booked on 15/06/16 and it was delivered to the complainant on the same day itself, and on 02/07/16 it was registered in his name as KL/68/6226.  Within few days of its purchase the complainant noticed defects such as rusting in the engine part as well as silencer and he further noticed that all the new painting of the body part are repainted to conceal the rust.  The learned counsel for the complainant vehemently argued that, immediately on finding of these defects, they intimated the matter to the opposite party and further the complainant issued a legal notice  to the opposite party on 07/07/16 and the opposite party accepted it on 08/07/16.  Even after the acceptance of the notice, opposite party  has not acted upon it even at least to enquire the matter.  The counsel further stated that, opposite party sold the vehicle to the complainant with the knowledge of it become a year back demo bike, pretended to be a 2016 Model, in order to cheat the complainant.  More over complainant booked the vehicle in the month of June 2016.  At that time sufficient units of 2016 Model of the same branded vehicle was available in their showroom also.  Hence the opposite party is liable to replace the vehicle to a new one or else liable to repay the purchase price along with cost and compensation.

 

On the other hand the learned counsel for the opposite party submitted that after convincing all this matter and after conducted  thorough check up, the complainant took delivery of the vehicle and he was satisfied with its performance and over all conditions.  Contrary averments are baseless and  unsustainable.

 

We have thorough gone through the allegation in the complaint as well as written reply filed by the opposite party along with the exhibit and deposition of witnesses.  On the perusal of the exhibit, we came to know that the vehicle in question was booked by the complainant on 15/06/16 and it was delivered on the same date.  It is evident from Ext.R1 Retail Invoice and Ext.R3 booking particulars of the opposite party.  On a scrutiny of this documents we can see that except the year and month of manufacturer, all other details of the two wheeler is stated in these documents.  At the same time in Ext.R2 insurance certificate, manufacturing year column specifically filled on June 2016.  That mean, the opposite party tactfully hidden the manufacturing year

                                                                                                                            (Cont....4)

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and month of the vehicle in Ext.R1 and Ext.R2 and it is intentionally stated in the insurance certificate on June 2016.  On going through the Ext.P1, copy of the RC particulars it is seen that the vehicle was registered on 02/07/16.  It is obvious that at the time of delivery of the vehicle opposite party handed over Retail Invoice and Insurance Certificate to the complainant/customer,  because the validity of the insurance of the vehicle is as per Ext.R2, starting from 15/06/16, and the other records for registration of the vehicle was submitted before the authorised agency directly by the opposite party.

 

At this juncture a pertinent question arises that, as per the version of the opposite party, the brand of vehicle was launched in the month of December 2015 and they got the stock in the month of March and April 2016.  But opposite party has not a case that, at the time of booking of this vehicle 2016 model bike were not launched.  If it is launched has not distributed  by the manufacturer to the authorised dealers.  No such contention is raised by the opposite party in the reply version.  More over it is further surprising that as per the contention of the reply version, opposite party was unaware of the defects of the vehicle till the receipt of the copy of this complaint.  This version of the opposite party cannot be believable at a moment, because as per Ext.P3(s) copy of legal notice and AD card, it is very clear that, the opposite party received the legal notice on 08/07/16 and well aware of this matter before initiating this complaint.  At this juncture it is very pertinent to note  that, the complainant took delivery of the vehicle on 15/06/16 and the vehicle got registered on 02/07/16, and the complainant issued legal notice to the opposite party stating all these facts was on 07/07/16.  It is also note worthy that the registered owner will get the RC book normally after a long gap through registered post  by that time only available record in the hands of the complainant relating to the vehicle was it Tax Invoice,  Insurance policy and Service Manual only,  Except Ext.R2 insurance policy, the month and year of manufacturer of the vehicle is not mentioned in other records.  It is mentioned in the insurance certificate on June 2016.  By going through the above said evidence, the Forum is of a considered view that, the version of the complainant is believable that the opposite party delivered the vehicle by concealing the fact that the vehicle is an year back one.

 

                                                                                                                          (Cont....5)

 

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Hence on the basis of above discussion the point that considered above is found in favour of the complaint and complainant established the deficiency in service and unfair trade practice on the part of the opposite party in this matter with clear and cogent evidence.

 

Hence the complaint allowed.  Opposite party is directed to replace the vehicle of the complainant with a 2016 Model vehicle or else opposite party is directed to repay the purchase price of the vehicle by receiving the old vehicle and also directs to pay cost of Rs.5000/- as cost  to the complainant within 30 days from the date of receipt of the copy of this order, failing which the purchase price of the vehicle  shall carry 12% interest per annum from the date of default  till the realization. 

 

Pronounced in the Open Forum on this the 30th day of August, 2018.

 

                                                                                                    Sd/-

                                                                                      SRI. S. GOPAKUMAR (PRESIDENT)

                                                                                                           Sd/-                                                                                                                                                                                                                                                                                                                                                                                                                                                                                  

             SRI. BENNY. K.  (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1               - Basil Scaria

On the side of the Opposite Party :

DW1              - Ajesh K Salimkumar

Exhibits :

On the side of the Complainant :

Ext.P1  -  The copy of RC book of the bike in question having Reg No.KL/68/6223

Ext.P2  -  The photographs of the bike

Ext.P3 -  The copy of legal notice dated 07/07/16 and its AD card

On the side of the Opposite Party :

Ext.R1   -  The copy of retail invoice dated 15/06/16

Ext.R2   - The copy of insurance certificate

Ext.R3   - The copy of booking particulars dated 15/06/16

Ext.R4   - The copy of loan sanction letter

Ext.R5   - The copy of new model vehicle circular.  

                       Forwarded by Order,

 

                             SENIOR SUPERINTENDENT