D.O.F. 10.02.2009 D.O.O. 15.06.2011 IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR Present: Sri. K.Gopalan : President Smt. K.P.Preethakumari : Member Smt. M.D.Jessy : Member Dated this the 15th day of June, 2011 C.C.No.45/2009 N. Premarajan, S/o. Kannan : Complainant Legal Practitioner, ‘Sreechaithanyam’, P.O. Kuthuparamba. V.P. Muhammad Sirajudheen, S/o. Khader, Proprietor, Paradise Cycle Zone, : Opposite Party Thalassery Road, P.O. Kuthuparamba (Rep. by Adv. P.V. Zainudheen) O R D E R Sri. K. Gopalan, President. This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite party to refund ` 3,211 to the complainant taking back the cycle. The case of the complainant in brief is as follows : The complainant purchased a lady’s bicycle called Avon Magna for the purpose of journey of his daughter to and back from the school. It was purchased on 11.09.2008 for an amount of ` 3211. Opposite party guaranteed effective and prompt free service and repair to the cycle assuring one year replacement guarantee for the spares assembled by him. His cycle shop is situated only at a distance of 400 Metres from the residence of the complaint. Soon after began to use cycle it started developing defects on its chain and bearing system. In October, November months opposite party repaired the cycle three times causing considerable delay. The cycle again turned faulty. It became totally useless during the third week of December, 2008. When opposite party verified the cycle he said the defect is in the bearing socket of the chain system. Different dates were given but he did not repair the bicycle telling that there was no mechanic available. Finally it was again taken to opposite party for repair on 22.12.2008. But he informed that it is not possible to repair and also stated that he has no liability to repair it and thus complainant took the cycle back. Lawyer notice was issued demanding to repair it. But there was no response on the part of opposite party. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the allegations of complainant. Opposite party took the contentions as follows : Complainant had purchased a ladies bicycle from the opposite party on 11.09.2008. It is not correct to say that the opposite party choose a particular bicycle assembled by him. It is not also true that this opposite party guaranteed effective free servicing and repair to the bicycle. This opposite party never gain any guarantee for assurance to the complainant. It is also not true that this opposite party caused delay in repairing the bicycle. The allegation of the complainant is that this bicycle could not be used during the third week of December, 2008 is not true. Complainant has not approached this opposite party in December, 2008. The complainant did not check bicycle in goods Auto rickshaw for the repair. The allegation that the bicycle has developed serious defect is not true. It is false to say the bicycle was manufactured and assembled by poor craftsmanship using cheaper materials. It is also false to say that the complainant spent ` 20 per day for the alternative traveling facility. The complainant purchased the bicycle after thoroughly examining the cycle and with full satisfaction. If there is any defect it is caused due to the careless and negligent handling of the complainant. There is no bonafides on the part of the complainant in filing this complaint. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency in service on the part of opposite party? 2. Whether the complainant is entitled for the relief as prayed ? 3. Relief and cost. The evidence consists of the oral testimony of PW1 and Ext.A1 to A8 marked on the side of complainant. Opposite party has not adduced any evidence on his side. Issues 1 to 2 Admittedly complainant purchased a bicycle for his daughter studying in VIth STD on 11.09.2008 for ` 3211. Complainant’s case is that the lady’s bicycle purchased from the opposite party became faulty within a short span of time. The chain and bearing system of the bicycle became faulty. It was taken to opposite party for repair. Thus within 3 months of purchase, the cycle was repaired three times. The repair work was done causing too much delay. But thereafter opposite party was not ready to repair the vehicle when it was taken to him subsequently. Atlast cycle became totally useless on December, 2008. Finally he sent lawyer notice. But opposite party did not replied. He has denied all the allegations of the complainant in his version. Complainant adduced evidence by way of chief affidavit in lieu of chief examination. He has given evidence that he has purchased a lady’s bicycle from opposite party for his daughter on 11.09.2008 for the purpose of using it for going school. Assuring the quality opposite party himself selected a cycle fit for the purpose. Opposite party assured that in case any repair occurs it can be repaired without any expense causing no delay. He has also stated that the cycle is assembled from there itself. He has assured one year guarantee for free repair in case any repair happened to occur. On November-December months opposite party repaired the cycle for 3 times by taking much delay. It was again became faulty and taken to him for repair on 03.12.2008. After examining the cycle opposite party said the bearing socket is in default so that to come another day when mechanic is present, though the workers who were doing regular work of fittings and repairs were present there. His displeasure to repair the cycle revealed in their words and behaviour. Thereafter on all occasions of enquiry again and again opposite party repeated the same answer that the mechanic has not been available. But atlast expecting to use it in X-Mas holiday the vehicle was taken to opposite party on 12.12.2008. Then the opposite party told that it cannot be repaired and he has no liability to repair the same and sent back without repairing. Complainant also stated that he has sent lawyer notice demanding to repair the cycle. But no reply was sent by opposite party. Moreover, his behaviour to complaint was rude. Low quality spare parts and improper assembling with absence of professional skill caused the default of the cycle. It is due to the deficiency in service and cheat on the part of opposite party the complainant suffered loss. Cycle could not be used after 15.12.2008. For the alternative arrangement to go to school he had to spend ` 20. Complainant is also entitled for ` 25 per day apart from refunding the cost of the cycle. Opposite party did not adduced any evidence. Ext.A1 receipt proves the price of the cycle is ` 3211. Ext.A2 is the copy of the lawyer notice which reveals that complainant has demanded opposite party to repair the vehicle so as to make the cycle fit for use. Notice detailed that the vehicle was assembled from the shop of opposite party and assured one year warranty for the parts and one year free repair service to cycle. It was also stated that he has repaired the vehicle three times within three months by taking too much days. When it was taken again as it became totally useless he avoided complainant by telling mechanic was not available. At last when it was again taken expecting to use in December Vacation it returned telling that opposite party was not liable to do the repair. The notice concluded asking opposite party to make use of the cycle by repairing it. Ext.A3 postal receipt and Ext.A4 acknowledgment proves that complainant had sent lawyer notice and it was received by opposite party. But opposite party admittedly not replied the lawyer notice, which itself amounts to admission that the case of the complainant in this case is genuine. It is pertinent to note that the residence of the complainant is merely 400 Metres near to the shop of the opposite party. He could atleast approach the complainant. Except denying the allegation through version opposite party did not adduce any evidence oral or documentary. Opposite party admitted that cycle was purchased by the complainant. In the complaint itself it was made clear by pleading that the complainant sent lawyer notice and the same was received by the opposite party. But opposite party did not utter a single word with respect to the legal notice. That itself amounts to deficiency in service. It is the legal obligation of the opposite party to give answer to the allegation and demands raised in the notice. If it is avoided opposite party is liable to bear the risk of admission. It is important to note that the reply of V.S. Marketing Company states that the cycle is finally assembled by the dealer only. It is also mentioned that the important spares of the cycle there are one year warranty. It can be seen that the alleged cycle become useless within 3 months. The circumstance quite clearly reveals that there was no attempt on the part of opposite party to repair the cycle. He was not even ready to hear the complaints of the complainant which has been revealed in his diplomatic silence in the version regarding the lawyer notice. There is no justification for non-replying the notice send by the complainant to opposite party regarding the subject matter. Hence we find that there is deficiency in service on the part of opposite party. Thus issue No.1 & 2 are found in favour of complainant. Issue No.3 : However it can be seen that the subject matter bicycle sold by the complainant for scrap value. He has not disclosed how much amount he has received out of this sale. In cross examination he had deposed that “ssk¡nÄ scrap valuehn\v sImSp¯v Hgn-hm-¡n. henb XpI¡v adn¨p hnä-XmWv F¶p ]d-ªm icn-b-Ã. ssk¡nÄ XI-cmdv repair sNbvXv FSp-¡m-hp-¶-tX-bp-ffq F¶p ]d-ªm icn-b-Ã.” Since the amount received by the complainant out of sale has not been disclosed, it is difficult to assess the actual damage suffered by the complainant. The prayer also has not been amended. Taking into consideration the entire aspect we are of opinion that an amount of 1000 as compensation to complainant will meet the end of justice. Complainant is also entitled to a sum of 1000 as cost of this litigation. Hence issue No.3 is found in favour of complainant as stated above and order passed accordingly. In the result, the complaint is allowed directing the opposite party to pay an amount of ` 1000 (Rupees One Thousand only) as compensation and a sum of ` 1000 (Rupees One Thousand only) as cost of this litigation within one month from the date of receipt of this order failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the Complainant A1. Cash bill dated 11.09.08. A2. Copy of notice dated 10.01.2009. A3. Postal receipt. A4. Postal acknowledgment. A5. Letter dated 10.06.09. A6. Lawyer notice dated 07.11.09. A7. Letter dated 21.11.09. A8. Letter dated 23.04.09. Exhibits for the opposite party Nil Witness examined for the complainant PW1. Complainant. Witness examined for opposite party Nil /forwarded by order/ SENIOR SUPERINTENDENT
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
