KERALA STATE CONSUMER DISPUTES REDRESSAL COMIISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
COMMONJUDGMENT
IN APPEAL Nos 232/2011 &. 507/2011
DATED : 29.06.2012
PRESENT
SHRI. M.K. ABDULLA SONA : HON. ACTING PRESIDENT
APPEAL 232/2011
APPELLANTS
1. M/s. Honda Siel Cars India Ltd.,
Plot No. A-1, Sector 4/41,
Greater Noida Industrial Dev. Area,
Gautam Budh Nagar(U.P) – 201 306.
2. Peninsular Honda,
M/s. Patel Cars Pvt. Ltd., N.H. 47,
Aroor Vyttila Bye Pass Road
Maradu – 682 304,
Ernakulam.
( Rep. by Adv. Sri. V. Krishna Menon & others)
Vs
RESPONDENT
Abdul K. Rubb,
S/o K.A. Kareem,
Panampilly Nagar, Kochin – 682 036
( Represented in person)
APPEAL 507/2011
APPELLANT
Abdul K. Rubb,
S/o K.A. Kareem,
Panampilly Nagar, Kochin – 682 036
Vs
RESPONDENTS
1. M/s. Honda Siel Cars India Ltd.,
Plot No. A-1, Sector 40/41,
Surajpur – Kasna Road, GNID Area,
Gautam Budh Nagar(U.P) – 201 306.
2. M/s. Peninsular Honda,
Dealers in Honda Siel Cars, Kundannur, N.H. 47,
Maradu – 682 304,
Ernakulam.
. ( Rep. by Adv. Sri. A.X. Varghese, Niyamavedi)
JUDGMENT
SHRI. M.K. ABDULLA SONA : HON. MEMBER
The Appeal No. 232/2011 is an appeal filed by the appellant/opposite parties and the appeal No. 507/11 filed by the complainant from the order passed by the CDRF, Ernakulam in C.C. No. 183/2009 dtd. 29.12.2010. The Appeal No. 232/11 filed by the opposite parties and the appeal No. 507/11 filed by the complainant under the order passed by the Forum below; directed the opposite parties shall jointly and severally install ABS(Anti Lock Break System) in the car of the complainant on free of cost or in the alternative the opposite parties shall jointly and severally pay Rs. 1,00,000/- to the complainant being cost of the A.B.S. There is no separate cost or compensation ordered by the Forum below.
In brief the complainant has a case that he purchased a Honda car (No. KL-7BF 1255) from the 2nd opposite party which was manufactured by the 1st opposite party. When the complainant drove the vehicle after purchase it found some problems in break system. The second opposite party failed to rectify the defect of the car and the very same is a manufacturing defect. The repeated communications between the complainant and the opposite parties were in vain. The complainant prays pass an order to replace the impugned vehicle together with the compensation of Rs. 2.5 lakhs. Hence the complaint.
The first opposite party contended in the written version that the complainant approached the second opposite party alleging defect in breaking system. The technical team of the opposite parties conducted a detailed inspection of the car but no defect whatsoever was found in the car. The complainant failed to raise any specific allegation against the opposite parties in his complaint. Hence the complaint is liable to be dismissed with cost to the first opposite party. But the same time second opposite party also filed their version and contended that the second opposite party or it’s officers ever stated that the vehicle would stop at the point whenever the break is applied at a speed of 120-140 km. The second opposite party had examined the breaks and found that the same does not suffer from any defects as alleged by the complainant. The complainant is not entitled for any of the relief as claim.
The evidence consist of the oral testimony of the complainant who examined as Pw1 and marked Ext. A1 to A8 on his side and the complainant taken out an expert Commissioner to inspect the vehicle who examined as Pw2 and marked his report as Ext. C1. Neither oral nor documentary evidence was adduced by the first opposite party. Witness for the 2nd opposite party was examined as Dw1.
Heard the complainant who appeared in person and the counsel for the opposite parties.
The Forum below raised 2 points for consideration;
1) Whether the complainant is entitled to get replacement of the car under dispute?
2) Compensation if any ?
The Forum below discussed the first and second point jointly admitted the fact that the complainant who purchased the car from the second opposite party which was manufactured by the first opposite party. According to the complainant he approached to the second opposite party to rectify the defect of the Break System in so many occasions. The opposite parties are truly failed to rectify the defect of the breaking system. The opposite parties vehemently objected to this allegation that the vehicle suffers from manufacturing defect.
The Forum below answered these points on the basis of evidence available to them as for the ever somany decisions of the Apex court those who settled this position legally. The Pw2 who examined by the opposite parties (Expert Commissioner) appointed by the Forum below nothing is brought out against his findings. The specific question was put to Pw2 by the Forum below: Whether there is any method to make breaking system more efficient apart from the installation from A.B. System? But the answer was in the negative. The Forum below taken a view that the Breaking System of the car is defective. Though the complainant has sought for replacement of the car; The Forum below taken a view that the installation of AB system (Anti Break System is never to rectify the defect of the breaking system of the car). Hence passed the impugned order in this case.
On this day, this appeal came before this Commission for final hearing , the counsel for the appellant/opposite parties are present and the appellant/complainant in this appeal is also appeared party in person. Both argued their own cases vehemently and detail. The appellant in A. 232/11 argued the appeal on the grounds of appeal memorandum that the opposite parties did not sold this car with A.B system.
The appellant is the manufacturer who manufactured the cars with different options. One is a car with AB System and other one the car is also without AB System. This complaint preferred a car without AB System and he paid lesser amount. In this circumstance there is no question of the AB System in his car. The Counsel for the appellant argued mainly evidentiary value of the Commission Report prepared by the expert Commissioner and marked as Ext. C1. He argued that the Commissioner in his cross examination have categorically deposed that he has no previous experience to deal with this type of car and who driven this type of car on the other hand fitted with or without AB System. He admitted that he is only a lecturer in the Poly Technic. He has no so much experience about the technical side of this type of new generation cars. Hence this report can not be helped any way to corraborate the allegations of the complainant in the complaint. He prays to allow this appeal and to set aside the impugned order passed by the Forum below. But the appellant in A. 507.2011; which filed by the complainant for the enhancement of the cost and compensation ordered by the Forum below on the grounds that the opposite parties sold the car to the complainant with a major defect. He submitted that the first and second opposite parties cheated the complainant. They supplied a car without AB System. The said vehicle was not having the AB System. It is nothing but unfair trade practice. He argued that he was driving the vehicle in a speed of 120-140 kms. He suddenly applied the break, the car was not managed to stop at the point. Suppose a vehicle fitted with AB System and such a vehicle was running in any speed if the driver applied the break then the vehicle will stop at the glance. Another point he argued that the opposite parties did not adduce any evidence both documentary and orally to support their defense. They approached to the Forum below with a free hand. In the circumstance, their appeal is not legally sustainable and liable to be dismissed. But the very same time, he submitted that the order passed by the Forum below is not accordance with the compensation and cost. The cost of Rs. 1lakh was ordered by the Forum below as an alternative remedy. He has argued that he was suffering ever somany defects including mental agony and financial loss. Hence he prays for enhancement of compensation and cost as he prayed in the original complaint.
Heard in detail.
It is true that the report is not fully data based, and the expert Commissioner appointed by the Forum below who admitted that he was having lack of experience to deal with this type of new generation cars. But in the absence of adduce any single evidence from the part of both opposite parties. The appellant/complainant in F.A. 507/2011 produced the same newspaper showed that the first opposite party manufacturer of Honda cars those who withdrawn certain cars they already sent with a finding of defect. But these are not any way related with this dispute. This Commission is not considering these documents in this appeal stage. In this case, as per the evidence, facts and circumstances, it is seeing that the complainant proved his prima facia case. The opposite parties were having ample opportunity to take out an expert Commission from their own part. Their such silence is nothing but an admission of the allegations of the complainant. But the very same time the Forum below considered the entire facts, circumstances and evidence discussed each and every point rightly. This commission is not seeing any apparent error in the order passed by the Forum below . From the evidence of the complainant it is not seeing any ground to enhance any amount of compensation and cost. In the circumstances, this order passed by the Forum below is strictly accordance with the provisions of law and evidence. I uphold this order passed by the Forum below. It is legally sustainable.
In the result, this appeal No. 252/2011 and F.A. 507/2011 are
dismissed and confirmed the order passed by the Forum below. The points of the appeal discussed one by one and answered accordingly. No cost ordered.
I hereby do so.
M.K. ABDULLA SONA : HON. ACTING PRESIDENT
ST
