SMT. RAVI SUSHA  : PRESIDENT

         This complaint  has been filed  U/S 12 of Consumer Protection Act 1986  against the opposite parties seeking to  get an order directing opposite parties to pay an amount of Rs.1,72,000/- towards the value of the vehicle with compensation  together with cost of this litigation  to the complainant  alleging deficiency in  service  on the part of OPs.

   The facts in brief of the complaint are that the complainant had purchased a new Honda Active scooter with chassis No.ME4JF50ADJTO93905 and Engine No.JF50ET7093969 from the OP on 28/4/2018 by paying Rs.72,000/- Thereafter he sparely used the vehicle and kept  it at the residence of  his employer, on 12/5/2018 the employer was riding the vehicle with the complainant as a pillion rider , the vehicle started to tilt and suddenly fall down on the road along with the  two passengers.  On checking  of the vehicle, it was found that the rear wheel of the scooter was detached from its holder. Thereafter the complainant made a complaint before Vidyanagar Police ,Kasaragod about the accident and the vehicle was got  examined by Asst. Motor Vehicle Inspector, RTO, Kasaragod found that the rear wheel  hub nut missing  and hub with  brake drum and wheel assembly detached from the drive shaft spines and there is a scaring works on the thread of the drive shaft  and on the hub outer portion.  From the  above physical observation, it is  concluded that drive  axle nut was not properly torque before the delivery  to the complainant by the OPs and that the accident took place due to the poor workman-ship of the OPs. As per  their report, the vehicle had mechanical defects at the time of accident.  Thereafter the complainant contacted the 1^st OP  and convinced the facts to the sales manager, they deliberately evaded the  responsibility by saying vague excuses.  So the complainant is not prepared to continue to occupy the vehicle and he wants to return it to the OPs.  On 2/6/2018 the complainant  issued  lawyer notice to OPs, but 1^st OP received  notice and send a reply stating false things. The acts  of OPs amounts to unfair trade practice and both OPs are jointly and severally liable to compensate.

       After receiving notices 1^st OP entered appearance through counsel and filed written version since 2^nd OP did not turn up , 2^nd OP was set exparte.  The contention of 1^st OP is that he admitted  the purchase of  a new Honda Active scooter  from 1^st OP on 28/4/2018 , manufactured by 2^nd OP.  But the 1^st OP is unaware of remaining facts alleged in the complaint.  1^st OP strongly deny the averments that the  axle nut of the scooter was not tightened in proper torque by this  OP before delivering the vehicle and the accident happened due to the poor workmanship of the  1^st OP and also denied  the further allegation that his service manager behaved rudely and indecently etc. 1^st OP states that on 28/4/2018 after pre delivery inspection in accordance with the pre delivery inspection check sheet given by  2^nd OP.  1^st OP submits that even if the  axle nut is not tightened in proper torque  it will not get loose on running since the axle nut is made with a special feature, that is auto locking system. Hence even if  the axle nut is only hand tightened,  the axle  nut  will not  get loose and it will get tightened on forward running. Hence the company manufactured the axle nut even without a locking pin. 1^st OP alleged  in the version that complainant has kept the scooter in his  employers house.  Hence this OP suspect that  somebody who is in enimical terms with the  employer  might have removed the axle nut of the  vehicle or  cause  to unscrew the  axle nut to last thread of the  axle, so as to expose the employer of the complainant to hazards.  It is not worthy to notice that after taking  delivery of the vehicle no unusual sound or movement from the scooter noted by the complainant and nothing was happened till it reaches the house of employer of the complainant in a period from 28/4/2018 to 12/5/2018.  If the axle nut is in a loose  condition the same thing would be felt at the scooter handle and scooter will be moving in a wobbling manner with huge sound from rear side and by sensing the same to the rider can easily understand the situation and thereby he will be able to stop the vehicle comfortably and the complainant has been using  the above vehicle, without any further complaint.  There is no deficiency of service or unfair trade practice on their part. Hence prayed  for dismissal of the complaint.

     On the side of complainant PWs1&2 including complainant were examined.  Exts.A1 to A8 were marked as documents on the side of complainant.  PW2 is the  Motor Vehicle Inspector, Mr. Jishor R.S who inspected the vehicle and prepared report (Ext.A3) as per the instruction from the Vidyanagar Police station Kasaragod.  On the side of 1^st OP Proprietor of 1^st OP Mr.Sijoy Joseph has filed his proof affidavit and has been  examined as DW1.  Pre delivery check sheet was marked Ext.B1 from the side of 1^st OP.

   After that  learned counsel of  both parties filed their written argument notes.

      It is an admitted fact that complainant had purchased a new Honda Activa scooter from the 1^st OP on 28//4/2018 by paying  Rs.72,000/-.  Thereafter he sparely used the vehicle and kept it  at the residence of his employer.  Complainant’s case is that on 12/5/2018,  the employer was riding the vehicle with the complainant as a pillion rider, the vehicle started to  tilt and suddenly fall down on the road along with the passengers.  On checking of the vehicle, it was found that the rear wheel of the scooter was detached from its holder.  He  has filed  complaint before police station and the vehicle got  examined by AMVI, RTO,Kasaragod found that the rear wheel  hub nut missing  and hub with  brake dream and wheel assembly detached from the drive shaft spines and  it was opinioned that drive  axle nut was not properly torque before the delivery  to the complainant by the OPs and that the accident took place due to the poor workman-ship of the OPs.  Complainant alleged that though he approached 1^st OP, they deliberately evaded the  responsibility.  According to complainant, OP has not done pre-delivery  inspection and the action of OPs amounts to unfair trade practice.

       On the other hand OPs contended that the vehicle was in his custody and driven it from 28//4/2018 to 12/5/2018.  Till 12/5/2018, there was no notice of shivering or any sound  while driving the scooter.  1^st OP submits that even if the  axle nut is not tightened in proper torque  it will not get loose on running and it will get tightened on forward running.  1^st OP’s case is that complainant has kept the scooter in his  employers house.  Then somebody who is in enimical terms with the  employer  might have removed the axle nut of the  vehicle to unscrew the  axle nut to last thread of the  axle, so as to expose the employer of the complainants to hazards.  During  cross-examination of Expert commissioner Motor Vehicle Inspector(PW2), the learned counsel of OP put a suggestion in page 4 last and page 5.  ഈ കേസിൽ  Wheel nut  ഊരിമാറ്റിയതോ, അല്ലെങ്കിൽ last  ത്രഡ്  വരെ ലുസാക്കി വച്ചതുകൊണ്ടോ  വാഹനം ഓടിച്ചതുകൊണ്ടാണ് ഇത്തരത്തിൽ അപകടം ഉണ്ടായത് എന്നു പറയുന്നു? (A) എനിക്ക് പറയാൻ സാധിക്കില്ല wheel lock  nut  തനിയെ ഊരിപ്പോകില്ല എന്നു പറയുന്നു? ശരിയാണ്.  Further adds   പുതിയ വാഹനം അതേപടി customer ന് കൊടുക്കുവാൻ പാടില്ല PDI   നടത്തണം. ഈ കേസിൽ OP1 ന്ർറെ poor workmanship ആണ്  എന്ന് പറയുവാൻ പറ്റുമോ (A) ഉറപ്പിച്ചു പറയാൻ പറ്റും കാരണം വാഹനം 120 കി.മീ മാത്രമേ ഓടിയുള്ളൂ .  Further the learned counsel put a question, wheel nut പൊട്ടിയാൽ dealer    ഉത്തരവാദിയാകുമോ? Pre delivery inspection  ൽ ശ്രദ്ധിക്കേണ്ടതാണ്.

   Here 1^st OP has produced Ext.B1 PDI check sheet Form.  It is an unfilled sheet which does not mean that 1^st OP had  done PDI before delivery of the vehicle to complainant.  With regard to the contention of OP that somebody in enimical terms with the employer of complainant might have removed the axle nut of the vehicle.  In connection with the said allegation, there is no  evidence available before us.  Hence we cannot believe the said contention of 1^st OP.

   Hence from the available evidence, especially from the evidence of expert commissioner it is evident that the rear drive axle nut was not properly torque before delivery of the  vehicle to the customer.  Further such circumstances, the incident happened was due to the poor workmanship of the  dealer before delivering the vehicle to the customer.  So it is clearly  evident that there is deficiency in service on the part of  1^st OP.  From the expert report, it is stated that the rear wheel hub nut missing and hub with break drum and wheel assembly detached from the drive shaft splines , it is observed that there is scaring  marks on the thread of the drive shaft and on the hub outer portion.  Hence it is observed that there is mechanical defect of the vehicle.  So the manufacturer,2^nd OP is  also held liable

     Complainant has stated that for  the  last four  years, the vehicle was not using by the complainant and now it is not fit for use and is kept in the premises of the complainant’s  residence.  The photo print out attached with the objection of the OP’s petition shows that the odometer reading is 120 k.m, which means complainant is not using the vehicle after the incident.

   To sum up, we direct the opposite parties  to jointly and severally pay the complainant Rs.72,000/-, the value of scooter in question with  Rs.10,000/- as compensation  for the inconvenience and harassment caused  to him and Rs.5000/- as cost  within a period of 30 days from the date of receipt of  order.  Complainant shall return the subject Honda Activa Scooter to opposite parties on complying the  order by the opposite parties.  If opposite parties fail to comply within the period, shall pay  interest @9% per annum to the amount of  Rs.72000/- from the date of  order till realization.  Complainant  is at liberty to  execute the order as per provisions in Consumer Protection Act 2019.

Exts:

A1- Booking form

A2- petition receipt dtd.14/5/18

A3- Inspection report

A4-Copy of lawyer notice

A5- postal receipt

A6- Reply notice

A7-Copy of RC

A8- payment voucher

B1-Pre delivery check sheet

PW1-Johny.P.J-Complainant

PW2-Jishor.R.S- witness of PW1

DW1-sijoy Joseph-1^st OP

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR