<br /> <br /> <br /> By SRI.K. VIJAYAKUMARAN, PRESIDENT.<br /> <br /> This is a complaint seeking to replace the vehicle with a new vehicle or refund of the price of the vehicle, compensation and costs.<br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant was a honour of Motor cycle bearing Reg.No.KL 2M 1998. The opp.party is the dealer of Bike brand name 'Kinetic Velocity by issuing that it is a good quality having a mileage of 80 Km per liter. Even though this vehicle was suffering from manufacturing defect and was recalled by the company the dealer also made the complainant believe that the vehicle is good and having no manufacturing defect. In fact the complainant approached the opp.party with an intention to purchase a Nova Scooter. Since the opp.party also undertook to replace the vehicle if any case of the defect and belonging representation of the opp.party the complainant purchased a Kinetic Velocity Motor cycle which was registered with registration No.KL 2U 9740 on 12.4.2005. On 15.4.2005 itself the vehicle has been returned to the opp.party due to failure of clutch. Thereafter the vehicle intermittently taken to the garage of the opp.party for repairs on many occasion the clutch of the vehicle remains struck they were also other defects such as the front wheel and handle of the vehicle were not moving straightly The battery of the vehicle was fully damaged and the acid outpouring battery destroyed the silencer and engine and now the vehicle is having an ugly look. There was also manufacturing defect irresponsible vehicle in night the gear shift liver showed the head light of the vehicle was not working properly with result it was impossible to ride the vehicle during night. The engine of the vehicle has showed serious manufacturing defect and the vehicle used to struck down in many places the mileage was 39 Km per liter as against the premises on 80 km per liter. The vehicle did not start on 31.5.2005 at the residence of the complainant and the workers of the opp.party and even though an Engineer came for attending defect could not start the vehicle the engineer in fact certified that the vehicle suffering from serious manufacturing defect and finally the vehicle had to be taken to the opp.party workshop in another van The complainant was availed a loan of Rs.33,100/- from the Centruian bank for purchasing a vehicle and the Suzuki Fiero bike belong to the complainant was to be exchanged the vehicle is now a death stage a sum is kept in the garage by the opp.party. The opp.party did not repay the amount or replace the vehicle with a new one. Hence the complaint<br /> <br /> The opp.party filed a version contending, interalis, that the complainant is not maintainable either in law or on facts. The complaint is also bad for non- joiner of necessary parties. The opp. Party is a dealer of the vehicle and the complainant purchase the vehicle solely on his wish alone . The opp.party conducting the sale and service of the vehicle and the opp.party is on many dealer of Kinetic Engineering Ltd. The opp.party is neither a manufacturer or propagator of the said motor cycle. The vehicle does not suffer from any manufacturing defect is alleged and the vehicle will get a mileage of 80 kilometer per liter on normal reading conditions . The fuel efficiency of the vehicle depends on may factors and circumstances beyond control of the dealer and manufacturer such as road and driving conditions, quality or oil and petrol being used, tyre pressures maintained, individual driving habits and proper vehicle maintenance. The fuel efficiency is light to very under road traffic and driving conditions. The allegation that the vehicle was with the garage of the opp.party on many occasion is denied. The vehicle was suffering from minor defect and the opp.party has curd all though defects the complainant regarding clutch lever to the opp.party but the other complaints were not reported the complaint regarding the battery is due to the reckless driving of the complainant. The opp.parties ready to replace the damaged parts. Even after the defect the refused to take back the motor cycle which is still kept in the garage of the opp.party. The vehicle is not taken from the house of the opp.party as alleged but the same was brought to the garage of the opp.party by the complainant himself. If the vehicle was having any manufacturing defect the opp.party is having no hesitation and supply a new vehicle. The opp.party will not allow selling any vehicle having manufacturing defect. The motor cycle of the complainant given a value of Rs.24,000/- even though it is a market value of Rs.13,000/- only. The opp.party was ready and willing to get the motor cycle examined the vehicle for any manufacturing defect through an independent technical expert. The complainant is trying to tarnish the repudiation of the opp.party. There is no deficiency in service on the part of the opp.party and hence they prays to dismiss the complaint.<br /> <br /> 1.Whether the complaint is bad for non-jointer of necessary parties.<br /> 2.Whether there is any manufacturing defect of the vehicle<br /> 3.Whether there is deficiency in service on the part of the opp.parties<br /> 4.Reliefs and costs<br /> <br /> <br /> <br /> For the complainant PW.1 and 2 are examined. Exts. P1 and P2 are marked.<br /> <br /> <br /> For the opp.party DW.1 to DW.3 are examined.<br /> <br /> <br /> Point 1 :<br /> <br /> Contention of opp.party is that the complaint is bad for non joiner of necessary parties as the manufacturer is not made a party to the complaint. It is argued that the alleged defect is manufacturing defect which has to be rectified by the manufacturer and nor by the dealer. Admittedly opp.party is one of the dealer of Kinetic Engineering Ltd appointed for sale and service of Kinetic brand two wheelers. The relationship of opp.party and manufacturer is not one of agent and principal and as argued by the learned counsel for complainant distributing agent does not put the consumer into contractual relationship with the manufacturer but the contractual relationship is between the consumer and the dealer. If the dealer acts just as an agent of the manufacturer he could not be held liable for the manufacturing defect and the liability would be that of the manufacturer. But in case where the independent dealership without there being any agency of the manufacturer vehicle purchased for the purpose or sale then the dealer cannot escape from the liability in respect of even manufacturing defects for he was supposed to see at the time of taking the delivery that the vehicle did not suffer from any manufacturing defect. II[2008] CPJ 174 [NC] so the opp.party cannot escape liability. So the impleadment of the manufacturer is not necessary and the point found in favour of the complaint.<br /> <br /> <br /> Point II<br /> <br /> <br /> The case of the complainant is that the vehicle was manufacturing defect and that from the 3rd day of taking delivery it has to be taken to the opp.party. It is submitted the vehicle did not start on 31.5.2003 at the residence of complainant and the working from opp.parties garage who came to attend the vehicle could not start the same and finally the same was taken to opp.party's garage in a van. It is the further case that the vehicle developed complaints on the way also. Though the complainant adduced oral evidence to prove that the vehicle had manufacturing defect no attempt is made by the complaint to appoint an expert to establish that aspect. Only an expert can say whether the vehicle had any manufacturing defect. The definite contention of the opp.party is that the vehicle had no manufacturing defect when that be the pointing the burden is on the complaint to establish this aspect by adducing cogent evidencing which he failed to discharge from which an adverse inferior is to be drawn. So in one view the complaint failed to prove that the vehicle had any manufacturing defect. Point found accordingly.<br /> <br /> <br /> Point 3 & 4: <br /> <br /> For all that has been discussed above we find that there is no deficiency in service on the part of the opp.party.<br /> <br /> <br /> <br /> In the result the complaint fails and the same is dismissed. No costs.<br /> <br /> <br /> <br /> Dated this the 6th day of June, 2008<br /> <br /> <br /> I N D E X<br /> <br /> <br /> List of witnesses for the complainant<br /> PW.1. - Muhammed Aslam<br /> PW.2. - Anwaruddin<br /> <br /> <br /> List of documents for the complainant<br /> P1. - Warranty card.<br /> P2. - Advocate notice.<br /> <br /> <br /> List of witnesses for the opp.parties<br /> DW.1. - Binju.K. George<br /> DW.2. - Rajesh<br /> DW.3. - Moti Lal.