BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 23rd day of September 2019
Filed on :02-12-2015
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. V. Ramachandran, Member
CC.No.792/2015
Between
Gineesh M.A., : Complainant
S/o.Ashokan, Madapattu house, (By Adv. A.X. Varghese,
Valyappanpady, 'Niyamavedi', XL/5344, 3rd floor,
U.C. College P.O., Edassery Buildings, Banerji road,
Aluva-683 102. Ernakulam, Kochi-682 031)
Vs
1. Regional Manager, : Opposite parties
Hero motorcorp. Ltd., 6-A, (By Adv. V. Krishna Menon, Surya J
DD Trade Tower, 6th floor, Menon & Menon, Kumaran Arcade,
Kaloor, Kadavanthra road, 1st floor, Power house road, Kochi,
Kochi-682 017. 682 031)
2. Authorised Officer,
Focus Biwheelers,
Sahodharan Ayyappan Road,
Panampially Nagar, Kochi,
Ernakulam, Kerala-682 036.
O R D E R
Cherian K. Kuriakose, President.
Complainant’s case
The complainant has purchased a Motor Cycle bearing Reg. No. KL-41-H-6650 manufactured by the 1st opposite party had sold through the 2nd opposite party on payment of an amount of Rs. 70,125/- . During the 2nd service of the vehicle it was found that there was defect in the pulling power of the motor cycle. In order to rectify the defects the vehicle was entrusted to the 2nd opposite party for repairs. The complainant paid Rs. 4,538/- towards service charge and took delivery of the vehicle. However on riding the vehicle he found that the defect continued, and the service was improper. On the same day he returned the bike to the 2nd opposite party for rectification of the defects. However, the 2nd opposite party was not able to cure the defects. The 2nd opposite party has requested to get the vehicle examined by the service engineer, however, it was not done by the opposite party. The complainant was abused by the opposite party which had prompted him to file a complaint before Sub Inspector of Police, Kadavanthra on 10-02-2015. The complainanat was intimated by the 2nd opposite party that the service was completing in all respects. However, on seeing the vehicle the complainant was not satisfied and therefore he did not take delivery of the vehicle. Later on 28-07-2015 the complainant had issued another notice to the opposite parties alleging deficiency in service. The complainant therefore seeks direction against the opposite parties to pay a compensation of Rs. 50,000/- for mental agony and to get the vehicle repaired by the opposite parties with the help of a service engineer.
2. The opposite parties who appeared pursuant to the notice and filed their respective versions contending inter-alia as follows in two separate versions.
3. The complainant is not a consumer despite intimation to the complainant when the work is completed in all respects, the complainant refused to take delivery of the vehicle with ulterior motives. There is no defect in the manufacturing of the vehicle the complainant is not entitled for any refund or replacement . The opposite party had acted diligently to all the complaints and grievances raised by the complainant. The complaint is liable to be dimissed.
4. Evidence in this case consists of Exbts. A1 to A10 on the side of the complainant. No oral or documentary evidence were adduced on the side of the opposite party.
5. Following issues were settled for consideration.
i. Whether the complainant had proved that there was any
deficiency in service on the part of the opposite parties?
ii. Reliefs and costs
6. Issue No. i. Exbt. A1 is the copy of the registration certificate and Exbt. A2 is the purchase invoice of the vehicle dated 11-04-2014. There is no dispute to the fact that the complainant is the owner of the vehicle in question. Exbt. A2 dated 11-04-2014 is the cost of the spare parts and accessories purchased by the complainant. Exbt. A4 dt. 18-12-2014 at a time when the vehicle has already run 9.500/-, pertains to the purchase of consumables. Exbt.A5 dated 17-01-2015 is a letter issued by the complainant demanding to get the vehicle repaired and given back to him. Exbt. A6 is the copy of the complaint dated 10-02-2015 addressing the Sub Inspector of police, Kadavanthra Police Station on the allegation that the spare parts were removed from his bike by the employees of the opposite parties. He also had incorporated grave allegation against the opposite parties for having committed offence under the Scheduled Caste Prevention of Atrocities Act. Exbt. A7 dated 21-02-2015 is a letter issued by the service manager of the opposite party intimating the complainant that the work of the vehicle had already been completed as per the guide lines given by the service engineer. Exbt. A8 is a legal notice issued on 2nd June 2015 demanding the repair of the vehicle. Ext. A8 was a reply through Exbt. A9 reply notice by the opposite party stating that even though the vehicle was ready the complainant did not take delivery of the vehicle despite intimation. On 28-07-2015 the complainant had given a letter to the service manager of the 2nd opposite party stating that the complainant is not taking delivery of the vehicle since the required repair works sought for were not carried out by the opposite parties.
7. When the case was posted for trial list and on the subsequent date to which the case was adjoured the complainant did not appear. The opposite party was also absent. Therefore we had gone though the documents produced by the complainant as Exbts. A1 to A10. It is seen that the complainant had taken out a commission through an expert to get the alleged defects notified and brought on record. But the expert is not seen to have been examined as a witness in this case. Therefore the report of the expert commissioner can not be accepted in evidence. In the absence of any such move on the part of the complainant we are unable to find on the basis of Exbts. A1 to A10, that the opposite party had committed any sort of deficiency in service as against the complainant . Considering the conduct of the complainant in not appearing to give evidence despite specific posting was given therefor, we find that the complainant had approached this Forum only to satisfy his ego and not for any genuine reliefs as contemplated under the Consumer Protection Act 1986. We therefore find the issue against the complainant.
8. Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed, however without any order as to costs.
Pronounced in the open Forum on this the 23rd day of September 2019
Sd/-
Cherian K. Kuriakose, President.
Sd/-
V. Ramachandran, Member.
Forwarded/By Order,
Senior Superintendent
Appendix
Complainant's Exhibits
Exbt. A1 : True copy of Certificate of
registration
A2 : True copy of Vat/Retail invoice
A3 : True copy of invoice
dt. 24-04-2014
A4 : “ “ dt. 18-12-2014
A5 : True copy of letter dt. 17-01-2015
A6 : True copy of letter dt. 10-02-2015
A7 : True copy of request
dt.21-02-2015
A8 : True copy of lawyer notice
dt. 02-06-2015
A9 : True copy of reply notice
dt. 16-07-2015
A10 : True copy of letter dt. 28-07-2015
Opposite party's exhibits: : Nil
Copy of order despatched on:
By Post : By Hand:
