O R D E R

Sri. P. Satheesh Chandran Nair (President):

                The complainant filed this complaint u/s. 12 of the C.P. Act for getting a relief from the Forum.

                2. The case of the complainant is as follows:  The complainant is a web designer he conducting a business at Revenue Tower, Thiruvalla.  The complainant is the owner of a motor bike (Yamaha Entiser 2002 Model) which is a product of the 1^st opposite party and the same was used by the complainant regularly.  On March 2012 the break light of the bike was broken and he contacted the Yamaha officials but he has not received any positive response from them.  On October 2013 onwards the bike got some mechanical trouble hence he brought the vehicle to a bike mechanic and the mechanic said that the ‘Air Induction System’ of the vehicle has to be replaced for a better performance.  The complainant contended when he approached 2^nd opposite party for the necessary spare part for the bike the dealer told him that the spare parts he demanded was not available.  As a result, the complainant directly contacted the Yamaha officials through e.mail on 26^th April, 2012 and 8^th December 2013.  Again the complainant stated that as per the Yamaha officials request he remitted Rs.500/- to 2^nd opposite party’s address on 20.12.2013.  According to him, his vehicle is not in running condition and the same is corroding day by day and the value is also diminishing.  Even though the complainant issued e.mail to the opposite parties for more than 20 times, no steps were taken for redressing his grievances.  The complainant has to spent more money for using hired vehicle due to the non performance of his own vehicle.  The absence of a bike is also highly affected on the business of the complainant and the opposite parties are also answerable to this also.  The complainant again contended that all the above acts of the opposite parties are comes under the deficiency in service of C.P. Act.  The complainant is eligible to get compensation for the loss suffered by him and for the delay caused.  The complainant requested the following relief from the Forum. (a) The opposite parties may be directed to rectify the problem in a specific time period and pay a compensation of Rs.40,000/- and allow Rs.8,000/-per month to the complainant till the rectification of the bike along with the cost of the litigation.  The complainant filed this complaint before this Forum and this Forum entertained the complaint and issue notice to both the opposite parties.

                3. Opposite parties appeared before the Forum and 1^st and 2^nd opposite party filed separate version.  The content of the opposite parties through his version is as follows:  According to 1^st opposite party the complaint is false, frivolous, vague and vexatious and therefore the complaint is liable to be dismissed.  According to 1^st opposite party, the complainant purchased a Yamaha Enticer in the year 2002 from 2^nd opposite party, who is the dealer of 1^st opposite party.  At the time of purchase of the said motor cycle no defect was alleged by the complainant.  This opposite party has provided a warranty for the period of 2 years or 30000 kms whichever is earlier from the date of sale to the complainant.  This opposite party again contended that the conduct of the complainant in this case is against the settled position of law.  As per his complaint it would reveal that the complainant has suppressed some material fact in his complaint.  The complainant’s case is for illegal gains from the opposite parties.  This opposite party again stated that when new model of vehicle is marketed the opposite parties usually kept the spare parts of the running models.  According to him, this complainant approached this opposite party after 12 years of the purchase of the motor cycle and demanded spare parts.  2^nd opposite party placed a request before the 1^st opposite party for the supply of the spare parts and on 10.01.2014 it was supplied to 2^nd opposite party.  According to this opposite party, the installation of the spare part is beyond his duties and it was not within the work scope of the 1^st opposite party.  In Para 6 of the version as (a), (b), (c) raised certain questions regarding the installation of the spare parts by the complainant.  He again contended that there is no privity of contract between the 1^st opposite party and the complainant and he does not sell this article to the complainant.  The Dealer Sales Agreement governs the relationship between the 1^st and 2^nd opposite parties.  Anyway this opposite party is liable for any grievances.  According to this opposite party, the complainant ought to have approached 2^nd opposite party for the purpose of repairment of the vehicle.  According to 1^st opposite party, there is no cause of action arised against the 1^st opposite party or against 2^nd opposite party.  The 2^nd opposite party is always ready for redressing the part (1) of the prayer clause of the complainant.  On the basis of the above contention 1^st opposite party requested that the complaint has to be dismissed with cost to 1^st opposite party.

                4. The 2^nd opposite party also filed a separate version as follows:  He admitted that the complainant is the owner of a Yamaha Entiser 2002 Model bike of 1^st opposite party.  According to this opposite party, the complainant contacted 2^nd opposite party in December 2013 for some spare parts named Rear Break Light and Air Induction System for his bike.  The 2^nd opposite party place an order for the required spare parts with 1^st opposite party on payment of advance amount of Rs.500/- because the spare part in question was not available on opposite party’s shop.  It is stated that on 10.01.2014 and 27.01.2014 the said spare parts were couriered to 2^nd opposite party by the 1^st opposite party.  The 2^nd opposite party promptly informed about the arrival of the spare parts to the complainant.  The complainant demanded that 2^nd opposite party’s mechanic should come to the complainant’s house and fix the spare parts.  This opposite party informed to the complainant that if he would brought the bike to the service station or if he bears the charges for transportation he would have repaired the bike.  The opposite party again contended that the service policies of opposite parties does not allow to repair or provide services at the customers’ residences which is beyond the prescribed distance.  This position was clearly informed to the complainant at the very instance of his demand.  The spare parts purchased as stated is still with the 2^nd opposite party and if the complainant does not pay the rest of the purchase money the same shall only form dead stock of this opposite party.  The 2^nd opposite party categorically stated that there is no deficiency in service towards the complainant and this opposite party is not liable to pay any compensation of the complainant as claimed and he also submitted that the complaint has to be dismissed with costs. 

                5. When considering the complaint, separate version filed by 1^st and 2^nd opposite party and the document filed at the time of this petition we raised the following issues in this case.

1. Whether the complainant is a consumer of the opposite parties 1 and 2?
2. Whether the complainant suffered any deficiency in service on the part of 1^st and 2^nd opposite parties?
3. Regarding relief and costs?              

         6. Point Nos.1 to 3:-  For the sake of convenience we decided to consider all the above issues together.  On the side of complainant, the complainant is examined as PW1 and marked Exts.A1 to A3.  Ext.A1 is the e.mail dated 08.12.2013 for Spare parts Enquiry.  Ext.A2 is the transaction details dated 16.07.2014 issued by Oriental Bank of Commerce.  Ext.A3 is the photocopy of e.mail dated 16.05.2014 for Spare parts Enquiry.  Both the opposite parties cross-examined the complainant.  Both the opposite parties not adduced any evidence on their part.  After the closure of evidence, both the parties were heard.

        7. It is the definite case of the complainant that on March 2012 the complainant’s bike’s break light has broken though he contacted the officials of the opposite parties no positive response were taken from their side.  On October 2013 onwards the bike got some mechanical trouble and he inspected the vehicle with the help of a mechanic and understood that the air induction system of the vehicle is not functioning properly.  The complainant issued 2 e.mails, one on 26.04.2012 and other on 08.12.2013 to the opposite parties addresses.  Even though the opposite parties did not care to redress the grievances of the complainant but it is informed that the spare parts demanded by the complainant where not available and this can be obtained only from 1^st opposite party.  The complainant received a proposal from opposite parties for remitting Rs.500/- as advance of the spare parts needed for bikes repairment.  The complainant remitted the amount as informed by the 2^nd opposite party and it is come out in evidence that the spare parts reached in 2^nd opposite party’s workshop. 

          8. But on the other hand, the learned counsels appearing for 1^st and 2^nd opposite party submitted that the complainant is always entrusting his bike to others workshop for its maintenance and as an authorized workshop of 1^st opposite party, it is not his duty to provide the spare parts even after the warranty period.  It is submitted that the bike was old for 12 years and the spare parts of the old model bikes are not normally available with 2^nd opposite party.  It is also come out in evidence that the vehicle was not in a running condition and it is corroding day by day and the value of the vehicle is also diminishing.  It is also come out in evidence that the spare parts was available in 2^nd opposite party’s workshop after the payment of Rs.500/- by the complainant through his bank account.  Then the question to be considered is who is responsible for the non repairment of the vehicle alleged.  When the complainant examined as PW1, it is brought out in evidence that he sent so many e-mail to the opposite parties regarding the necessity of spare parts and it’s early repairment.  Even though the 2^nd opposite party has a case that the vehicle used to repair in other workshops but the PW1 specifically denied this suggestion at the time of cross-examination and he pointed out a visiting card affixed in Page No.8 of Ext.A1.  PW1 answered for a specific question to the effect that he was ready to pay the service charge incurred for repairing the vehicle.  In Page 

of Ext.A1, it is clear that the 1^st opposite party even directing the 2^nd opposite party for repairment of the vehicle.   In cross-examination of PW1 he replied, “വീട്ടീല് spare parts കൊണ്ടുവന്ന് നന്നാക്കിത്തരാം എന്നു പറഞ്ഞ ഉറപ്പിന്റെ അടിസ്ഥാനത്തലാണ്  2^nd opposite party- യെ സമീപിച്ചത് .  2^nd opposite party- യെ ഞാന് ഒരു കാര്യത്തിലും സമീപിച്ചിട്ടില്ല .  2^nd opposite party യുടെ അക്കൌണ്ടില്  500/ രൂപാ advance payment നല്കിയതിന്റെ അടിസ്ഥാനത്തില് spare parts നല്കാമെന്നല്ലേ  2^nd opposite party സമ്മതിച്ചത് . (A) 2^nd opposite party യുടെ പേരില് അക്കൌണ്ടില് പണം ഇട്ടാല്  2^nd opposite party- യെ കൊണ്ട് വീട്ടില് വന്ന്  spare parts മാറ്റിച്ചു കൊള്ളാമെന്ന  1^st opposite party- യുടെ ഉറപ്പിന്മേലാണ് ഞാന്    2^nd opposite party യുടെ അക്കൌണ്ടില് പണം ഇട്ടത് ”.  According to PW1, this above portion can be seen in Page No.13 and 14 of Ext.A1.  As per Ext.A1 Page 13, “He will be in touch with you and will pick up your bike for repair at Our Yamaha Dealer in your area” and 1^st opposite party has given a direction to one Sachin, “has discussed on Telecom please help customer”.  The said Sachin is connected to 2^nd opposite party and his name is mentioned in the evidence of this case.  As per Page No.16 of Ext.A1, “Dear Sir, Sorry for inconvenience being caused to you  We have contacted Our Yamaha representative Mr. Sachin C. Vijay.  He will be in touch with you and will pick up your bike for repair at Our Yamaha Dealer in your area.  Kindly bear with us for a while.  *Request to Mr. Sachin*.  As discussed on telecom, Please help customer.  *Thanks & Regards*.  *Hemlata Verma*.  *Spare parts Division*  India Yamaha Motors Pvt. Ltd*”.  It is seen that this communications was sent on 19.12.2013.  Even though 1^st and 2^nd opposite party filed versions in this case and cross-examined PW1 they have not adduced any evidence on their part.  It is a cogent and conclusive evidence before the Forum that the bike ought to have been taken from the residence of PW1 and it would have to be repaired at 2^nd opposite party’s workshop. 

           9. At the same time, there is no evidence to show that what was the difficulty for 2^nd opposite party to take the vehicle from PW1’s residence for repairing purposes?  There is no evidence to show that the 2^nd opposite party has given any kind of information to PW1 for the difficulty to take the vehicle from PW1’s residence or raised any dispute regarding the expenses incurred for the same.  It shows that as a responsible manufacturer and dealer, both opposite parties are responsible to repair the vehicle within time.  It is seen that even though the complainant is so prompt to contact the opposite parties for the redressal of his grievances on one way or other the opposite parties are not redress the genuine grievances of PW1.  All the above facts will lead to an inference of deficiency in service on the part of the opposite parties.  In this case the complainant demanded each days taxi expense from the opposite parties.  But considering the nature and circumstances of this case there is no need to consider that demand in this case.  It is an admitted fact that the 1^st and 2^nd opposite parties are the manufacturer and dealer respectively and PW1 is the purchaser of the bike.  Hence Point No.1 is found in favour of the complainant.  Hence we find that the complainant (PW1) is a consumer of the opposite parties.  On the basis of the above evidence already discussed it is clear that the 1^st and 2^nd opposite party is jointly and severally liable for the grievances caused to PW1.  It is also pertinent to see that this 1^st and 2^nd opposite party has not adduced any evidence to convince this Forum to the effect that there is no deficiency in service on their part.  Hence we found the Point No.2 is also in favour of the complainant.

        10. In the result, we pass the following orders:

1. The 2^nd opposite party is directed to repair the bike with the spare parts which were kept for the complainant’s bike (Yamaha Entiser 2002 Model) and make the bike to running condition.  The 2^nd opposite party is at liberty to issue necessary bill for its labour and material needed.

2. The complainant is directed to produce the bike (YAMAHA Entiser 2002 Model) at 2^nd opposite party’s showroom/workshop on his own expense within 15 days from the date of receipt of this order for necessary repairment.

3. The 1^st and 2^nd opposite parties are directed to pay a compensation of Rs.15,000/- (Rupees Fifteen Thousand only) to the complainant within one month from the date of receipt of this order.

4. The 1^st and 2^nd opposite parties are directed to pay Rs.2,000/- (Rupees Two Thousand only) to the complainant as the cost of this case.

5. The complainant is eligible to realize an interest of 10% from the date of order of this case from the complainant till its realization if the 1^st and 2^nd opposite parties not comply the order within one month as specified in order C and D.

        Declared in the Open Forum on this the 9^th day of July, 2015.

                                                          (Sd/-)                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        

                                                         P. Satheesh Chandran Nair,

                                                                       (President)

Smt. K.P. Padmasree (Member – I)     :  (Sd/-)

Smt. Sheela Jacob (Member – II)        :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Kiran. K

Exhibits marked on the side of the complainant:

A1 :  E.mail dated 08.12.2013 for Spare parts Enquiry. 

A2 :  Transaction details dated 16.07.2014 issued by Oriental 

        Bank of Commerce. 

A3 :  Photocopy of e.mail dated 16.05.2014 for Spare parts 

        Enquiry. 

Witness examined on the side of the complainant:  Nil.

Exhibits marked on the side of the complainant:  Nil.

                                                                       (By Order)

                                                                                         (Sd/-)                         

                                                                          Senior Superintendent.

Copy to:- (1) Kiran, Palapurathu House, Kaviyoor. P.O.,

                    Thiruvalla – 689 582.

               (2) Yamaha Motor Pvt. Ltd., 35/279, Suburban Complex,

                    Palarivattom, Kochi, Pin – 682 025.

               (3) M/s. Ninan Motors, S.H. Tower, Kulasekharapathy,

                    Pathanamthitta.P.O., Pin – 689 645.

               (4) The Stock File.