DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
DATED THIS THE 21st DAY OF MARCH, 2024.
PRESENT : SRI. VINAY MENON .V, PRESIDENT.
: SMT. VIDYA .A, MEMBER.
: SRI. KRISHNANKUTTY N .K, MEMBER.
Date of filing: 23.07.2021.
CC/110/2021
1. Anad.PS, S/o.Sudarsanan.P.K, - Complainant
Pullikkaparambu veedu,
Karlode, Panniyankara,
Vadakkanchery, Palakkad-678 683.
(By Adv. Sooraj Krishnan K.V)
VS
1. Managing Director, -Opposite Parties
T.V.S. Motor Company,
Chaitanya, No.12m Khader
Nawas Khan Road,
Nungapakkam, Chennai-600 006.
(By Adv.Nidhin Jose)
2. Nasar, Proprietor,
Nasha Motors, Mersi College Junction,
Near Welcare Hospital,
Palakkad-678 006.
(By Adv. Sunish K.Abrahan)
ORDER
BY SMT. VIDYA .A, MEMBER.
1. Pleadings of the complainant in brief
The complainant visited the 2nd opposite party showroom on 22.02.2021 for the purchase of bike by Brand name Apache RTR 2004V which is manufactured by the 1st opposite party. The complainant decided to purchase the vehicle on the assurance made by the 2nd opposite party’s employees that it is a brand new vehicle having 5 years warranty. On 24.02.2021, he paid Rs.25,000/- as booking advance and on 01.03.2021, he paid the balance of Rs.1,33,500/- towards the cost of the bike. He paid a total of Rs.1,58,000/- as the price of the bike and the 2nd opposite party delivered the vehicle on that day itself. At the time of delivering, the complainant noted punch marks on the fly wheel’s cover. On informing this to the opposite party, they replaced it with another cover of a brand new Apache in the show room. On riding the vehicle, he found that the engine of the vehicle got heated quickly and he informed the 2nd opposite party through telephone. The 2nd opposite party assured to rectify it during the 1st service if the problem persists. The complainant found so many defects in the vehicle and informed the opposite party about these defects. Even after the 1st service, the same defects persisted.
The 2nd opposite party knowingly sold a defective bike under the guise that it is a brand new one and cheated the complainant. When the complainant approached the 2nd opposite party to get the defective bike replaced with a new one, the 2nd opposite party misbehaved infront of his staff.
The complainant sent registered lawyer notice to the opposite parties. The 1st opposite party did not send any reply to the notice and the 2nd opposite party sent reply raising false allegations against the complainant.
The acts of the opposite parties amount to deficiency in service and unfair trade practice. So, the complainant approached this Commission for getting an order directing the opposite parties.
1) To provide the complainant with a brand new bike of the same model or to refund Rs.1,58,500/- being its cost together with 9% interest.
2) To pay Rs.2,00,000/- as compensation for the mental agony and financial loss suffered by the complainant.
3) To pay the cost of the litigation.
2. After admitting complaint, notices were issued to the opposite parties. Evenafter receiving notice, the 1st opposite party did not appear or file version and they were set ex-parte. The 2nd opposite party appeared and filed version. The 2nd opposite party in their version contended that there is no manufacturing defect in the motorcycle which is manufactured by the 1st opposite party and sold by the 2nd opposite party. They denied the entire allegations regarding the defects in the motorcycle. According to them, it is due to mishandling and improper use of the bike without following the user’s manual and operating instructions and warranty conditions that the defect, if any, might have occurred.
The 2nd opposite party has sent reply to the lawyer notice denying the allegations raised by the complainant.
The vehicle sold to the complainant is a brand new vehicle without any damage. If there is any complaint, it has to be addressed to the TVS Company (the 1st opposite party) and the dealers can do replacement only if there is specific instructions from the company. There is no deficiency in service on the part of the 2nd opposite party. If the Commission finds the allegation of manufacturing defect to be correct, the responsibility of compensation lies with the 1st opposite party and the 2nd opposite party has to be exonerated from liability. They prayed for the dismissal of the complaint with their cost.
3. From the pleadings of both parties, the following points arise for consideration.
1) Whether the vehicle suffer from any manufacturing defect as alleged by the complainant?
2) Whether there is any deficiency in service on the part of the opposite parties?
3) Whether the complainant is entitled to the reliefs claimed?
4) Reliefs as to cost and compensation.
4. Complainant’s evidence comprised of proof affidavit and Exts.A1 to A10. Complainant filed IA No.230/2022 seeking appointment of an Expert Commissioner to inspect the vehicle and it was allowed. Expert filed report which is marked as Ext.C1. The 2nd opposite party also filed proof affidavit and no document marked from their side.
5. Point No.1
The complainant’s case is that the brand new motor cycle which he purchased from the 2nd opposite party and manufactured by the 1st opposite party started showing defects within short span of time. He complained about engine misfiring, the number plate lamp, over heating of engine, engine cooling fins, handle bar switch etc. According to him, all these problems occurred due to the manufacturing defect in the vehicle. The opposite parties denied the entire allegations regarding manufacturing defect.
6. Inorder to prove his case, the complainant filed an application as IA.No.23./2022 for the appointment of an Expert Commissioner. The Commissioner after inspecting the vehicle, filed report which is marked as Ext.C1.
As per Ext.C1 report, “the engine oil condition was good and oil level was correct. No engine oil leakage found and the service of the vehicle was as per schedule.” Regarding the specific complaints mentioned in the complaint, the Commissioner made the following observation.
“1) There is a major misfiring and whole vehicle hesitates to move smoothly while driving at 59 to 61 kmph speed range in 5th gear and 4th gear.
2) It is also observed that in stationary condition (Neutral gear) there is major engine misfiring at 4000 km when engine is in Hot/Warm condition.
3) Number plate light assembly fitment not in proper alignment and gap persist.
4) Head light indicator combination switch fitment found not in proper alignment. A noticeable gap persist near the indicator switch which may cause rain water to enter in the switch wiring which needs replacement.
5) Engine cooling found normal.
6) Chasis number portion found normal.
7) Engine temperature found normal.
8) Fuel tank found normal and no defect found.”
He noted that major engine misfiring may be due to electronic fault since it is a fuel injection type vehicle which needs further diagnosis for clarification.
7. Hence, from the observations in Ext.C1 report, some of the defects complained by the complainant like major engine misfiring, number plate light, head light indicator combination switch are found to be correct.
8. The Expert Commissioner made the following suggestions to cure the defects.
1) Left handle indicator combination switch needs replacement.
2) Engine management system/engine need to be inspected and misfiring complaint to be rectified.
Since the defects can be cured by replacing the defective parts or rectifying it, it cannot be termed as manufacturing defect. But the complainant had succeeded in proving some of the defects pointed out by him.
Point No.2 to 4
Opposite parties in their version denied the allegation of manufacturing defect in the vehicle raised by the complainant. According to them, if there is any defect, it is due to mishandling and improper use of bike without following user’s manual, operating instructions and warranty conditions. But they did not adduce any evidence in support of their contention. On the contrary, the complainant has proved that his bike suffers from some defects.
Since it is not a manufacturing defect, the complainant is not entitled to get replacement of the vehicle or its price. He is entitled to get the defective parts repaired/replaced. Further, he is entitled to get compensation for the mental agony and financial loss due to the frequent defects in the brand new bike and for the inconveniences suffered by him.
In the result, the complainant is allowed in part. We direct;
1) The opposite parties to cure the defects noted by the Expert Commission in his report to the satisfaction of the complainant or in the alternative to pay Rs.75,000/- as a reasonable amount for curing the defects.
2) To pay Rs.50,000/- as compensation for their deficiency in service, Rs.30,000/- for the mental agony and inconveniences suffered and Rs.25,000/- as cost of the litigation.
Pronounced in open court on this the 21st day of March, 2024.
Sd/-
VINAY MENON .V, PRESIDENT.
Sd/-
VIDYA.A., MEMBER.
APPENDIX
Documents marked from the side of the complainant:
Ext.A1: The copy of price quotation of the bike dated 22.02.2021.
Ext.A2: Mailed copy of booking receipt of the bike dated 24.02.2021.
Ext.A3: Copy of payment receipt of total price of the bike dated 01.03.2021 for Rs.1,33,500/-.
Ext.A4: Notice issued to the 1st respondent dated 19.04.2021.
Ext.A5: Notice issued to the 2nd respondent dated 19.04.2021.
Ext.A6: Acknowledgement of receipt of notice by the 2nd respondent.
Ext.A7: Reply notice sent by the 2nd respondent to the complainant.
Ext.A8: Copy of insurance of the bike dated 25.02.2021.
Ext.A9: Copy of service book marking 1st service of the bike.
Ext.A10: Copy of RC book of the bike dated 11.11.2022.
Ext.C1: Expert Commissioner report.
Document marked from the side of Opposite party: Nil.
Cost : 25,000/-
NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5)of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
