O R D E R

By Smt.Sreeja.S.,  Member :

          Complainant purchased a Yamaha Crux motor cycle  of the make of 1^st and 2^nd opposite parties from their  dealer 3^rd opposite party for a sum of Rs.39,032/-.  He booked the bike  at 3^rd opposite party on 15/12/14 by paying  Rs.10,000/- as advance.  Thereafter OP3 informed that bike  will be delivered on 18/12/14.  On the day, the complainant approached the OP3 to take delivery and paid balance of Rs.29,032/- to the 3^rd opposite party vide Invoice No.01-TY-R-VS-3243 for Rs.39,032/- dated 18/12/14.  The OP3 informed the complainant on that date that they are out of stock of vehicle and they could arrange the same from Palakkad show room and at last they delivered the vehicle on the day at about 8.30pm.  At the time of delivery of the motor cycle the 3^rd  opposite  party promised to the complainant that the motor cycle delivered to the complainant is of a brand new one and it is of a good quality and  also promised that all the material defects if any noticed would be replaced or the cost incurred will be reimbursed.  On the next day 19/12/2014 morning the complainant noticed that the silencer was rusted and there was a hole on it.  The entire engine cover, the shock absorber and the nuts of the motor cycle were rusted and both indicators in the front of the motor cycle looked old.  The head light, mudguards cone set bolts and stum lock were also found rusted and damaged.  The engine petrol connector of the motor cycle were also damaged.  On the same day itself the complainant informed  the 3^rd opposite party that the brand new Yamaha Crux Model motor cycle delivered to him suffers from the above mentioned defects and he demanded the 3^rd opposite party to replace the motor cycle .  The 3^rd opposite party asked the complainant to produce the motor cycle for inspection.  The complainant produced the motor cycle before the 3^rd opposite party and the 3^rd opposite party on examining the motor cycle noticed all the above mentioned defects.  The staff of the 3^rd opposite party informed the complainant that they will report about defects to the 1^st opposite party and promised that the complainant will get the motor cycle replaced and they asked the complainant  to leave the motor cycle with the 3^rd opposite party for inspection of the 1^st and 2^nd opposite parties.  Even after regular enquiry and repeated demands the opposite parties were not willing to replace the vehicle to the complainant.  Hence on 30/12/2014 the complainant approached the office of the 3^rd opposite party and demanded for replacement of the motor cycle.  But the 3^rd opposite party did not care to replace the motor cycle.  The complainant then caused the motor cycle to be examined by an expert of Kuruvath Two Wheeler Garage.  The expert examined the motor cycle and noticed certain damages viz. the centre stand, silencer back side holes, head light doom, rear shock absorber cup 2, front mudguard, engine fixed bolt, indicator, engine cover, aluminum buffing complaint, T-Fork nut etc. are old spare parts and is found rusted.  The complainant then caused to issue a lawyer notice to the 2^nd and 3d opposite parties demanding them to replace the defective commodity Yamaha Crux motor cycle with a brand new motor cycle or to pay a sum of Rs.39,032/-The 3^rd opposite party accepted the notice and had send a reply notice stating false allegations.  The complainant had booked for a brand new Yamaha Crux motor cycle for which the opposite parties have sold to the complainant a Yamaha Crux motor cycle which is of old model and from the stock which were remaining unsold and which is a substandard commodity.  The motor cycle delivered to the complainant is a defective commodity.  The complainant would not have purchased or accepted the delivery if he had any knowledge regarding the defective commodity delivered to him.  The opposite parties have sold to the complainant old, defective commodity and the act of the opposite parties amounts to service deficiency and unfair trade practice.  Hence this complaint.

          2. On receiving complaint, notice served properly to the opposite parties.  1^st and 3^rd opposite parties appeared through counsel and filed its version.  OP2 remained absent and set exparte.  The version of 1^st opposite party is as follows: Complaint is not maintainable.  He admit the purchase and delivery of motor cycle to the complainant on 18/12/14.  He also states that the bike has no manufacturing defect.  The bike has warranty period of two years or 30,000 kms of its operation. As per the terms of the said warranty the answering opposite party                                                          undertakes to repair and replace the parts  that are found to have  manufacturing defects within the period of warranty and the answering opposite party duly discharged its responsibility. The complainant on 19/12/2014 approached the opposite party No.3 with the problem alleged.  Further, it is denied that the 3^rd opposite party replaced the alleged parts with the new ones and delivered the said motorcycle to the complainant. Further, it is hard to believe that a person purchasing anew motorcycle takes delivery of a damaged vehicle and come for the replacement on the second day.  It is a basic principle of law is that the buyer must be aware ie. principle of ‘caveat emptor’ and in the present case the complainant is duty bound to examine/cross check the motorcycle before accepting the same.  If there is a breach in the terms of warranty the answering opposite party is not be liable for the damages caused to motorcycle by  untrained professional even if it falls within the warranty period.  It is pertinent to  mention that as per the service  records available and maintained  by the opposite party during the course of business the complainant has availed only three services.  This fact can be proven from the job card Nol366 dated 7/4/2015, job card No.803 dated 19/5/2015 and job card No.1456 dated  16/7/2015 which show that only regular servicing was  done and the motorcycle was always delivered with the complainant’s satisfaction only.  There is no deficiency in service or unfair trade practices being carried out on  the part of the opposite party and prayed for dismissal.

          3.The version of 3^rd   opposite party  is as follows:   Complaint is not maintainable.  The complainant approached the 3^rd opposite party and he urgently need for a Yamaha Crux motor bike and  3^rd opposite party had given one of the best bikes available in the show room on 8/12/2014.  The opposite party at the time of delivery assured complainant that if any material defect to the said vehicle is noticed, that parts can be replaced with a new one is correct.  Replacement of the vehicle or repayment of the vehicle cost etc. are incorrect and false.  A hole found on the silencer, the silencer originally has  that hole for some technical reasons.  The shock absorber, nuts, head lights, mudguards, cone set bolts and stum lock is damaged and got rested is also not correct and this opposite party deny the same.  This 3^rd opposite party conducted an inspection of the said vehicle and the other opposite parties did not find any serious complaint on the same vehicle and intimated the complainant also.  This opposite party never sated any flimsy reasons to evade from replacing the motorcycle to the complainant.  The 3^rd opposite party cannot replace any vehicle to any person once it is registered under concerned regional transport offices.  The entire engine cover, shock absorber and many of the nuts of the vehicle were also rusted and indicator of the said vehicle was in damaged condition and the head light was found rusted and damaged are denied.  The engine cover made of alloy/aluminium metal and it would not get rusted any time.  In the case of indicator and head light made of plastic and it was working properly at the time of delivery.  Especially in the notice complainant is admitting that he took the delivery in the night, in case the head light and indicator was not proper he would not take delivery at that time.   The 3^rd opposite party was ready to replace some parts which are within their limit.  But the complainant was demanded the replacement of the vehicle or repayment of the purchase amount.  It is not possible to replace or repayment of the purchase amount because the said vehicle is already registered in the name of the complainant.  The 3^rd opposite party never sold any old and defective commodity to any person on any of the day mentioned in the complaint, so, there is no deficiency in service and unfair trade practice also occurred and prayed for dismissal.

          4.Points for consideration are :

1)Whether there is any defect in the goods and deficiency of service on the part of the opposite parties?

2) If so reliefs and costs  

          5. From the side of complainant14 documents produced and marked as  Exts.P1 to P14.  Opposite parties produced two documents, which are marked as Exts.R1 and R2.  

          6.This is a case where in  the complainant forced to issue a lawyer notice to the opposite parties on 21^st day of purchase and delivery of a Yamaha Crux motorcycle.  The opposite parties defend the case stating interalia that the bike sold to the complainant cannot be replaced, since the bike has no mechanical defect.  The complainant mainly alleges that various substandard external fittings  were got defective due to rusting etc. on the visible parts.  It is true that time and again Hon’ble State Forum and Hon’bleNational Commission held that the defects in the goods is to determine on the basis of clear evidence by way of expert opinion.  In this case it is pertinent to state that some unusual  admissions are made by the opposite parties regarding the alleged defects in the complaint.  It is true that in this case no expert evidence has been adduced to prove the defects of the bike except Ext.P6 and obvious admission from the part of opposite parties.  It has been specifically alleged that the central stand, head light dome, rear shock absorber cups, front mudguards, engine cover, T-Fork nut are rusted and  silencer having holes in it along with damage to aluminium buffing.  It is also alleged that those spare parts are old one.  The complainant could attract the attention of this Commission to the point that all the aforesaid defects are apparently visible on the bike itself and to hold the consciousness of a common and prudent man.  Moreover no expert is needed to find out the existence of those defects as well.  But it has been clearly reiterated by the apex Forum to prove defect expert evidence is needed and this Forum abide by the law laid down by the Hon’ble Commission.  But the matter still looked into is the admission on the part of 3^rd opposite party.  This specifically and crucially  pleaded that at the time of delivery they assured the complainant that if any material  defects  to the said vehicle noticed, that parts can be replaced with a new one is correct.  It is the case of the 1^st opposite party that the vehicle was delivered  after completing the process of P.D.I(Pre delivery inspection). If the contention of the  1^st opposite party is taken as the true procedure for a bike which is having a specific warranty coverage, then the dealer need not assure that the defective parts will be replaced with new one.  This is the case in hand and in addition to these, they further admits that the silencer originally has that holes for some technical reason, which remained unexplained before this Commission.  Moreover from the preliminary stage if raising their contention through Ext.P14 reply notice, 3^rd opposite party admits that “even though my client is ready to replace some parts which are within their limits” and this contention has also been reiterated in their version as well.  In this case, alleged defects is to some parts alone as aforesaid and the admission to that extent needs to be considered by this Commission in the interest of justice.  Ext.P6 is a statement dated 5/1/2015 showing  the defective parts of the vehicle.  The 3^rd opposite party did not object the document and not challenged its existence.  Considering  the facts and circumstances of the case, this Commission inclined to direct the 3^rd opposite party to repair the only those defects  of those parts alone. It is made clear that timely interference of the opposite party to repair the aforesaid  parts is highly necessary. Lapse in it to  render injustice to the complainant and same would cause  an order by this Commission to replace all those parts as aforesaid within a reasonable time. Needless to say that complainant miserably fails to prove the all other facts and hence other reliefs declined by this Commission.

          7. In the result complaint is partly allowed and 3^rd opposite party is hereby directed to repair only the rusting of center stand, head light dome, rear shock absorber CUP 2, front mudguard, Engine fixed bolt, T-fork nut and also engine cover aluminium buffing  complaint within one month from the date of receipt of copy of this order.  Failing which the opposite parties are directed to replace all the parts aforesaid within a reasonable time.  The opposite parties are further directed to pay jointly and severally pay cost Rs.3,000/- (Rupees Three thousand only) to the complainant.

           Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Commission  this the  16^th   day  of   November 2020.

Sd/-                      Sd/-                                          Sd/-

Sreeja.S                Dr.K.Radhakrishnan Nair         C.T.Sabu                       

Member                Member                                    President                           

                                      Appendix

Complainant’s Exhibits

Ext.P1 Appln. Form for booking Yamaha motor cycle

Ext.P2 Invoice dtd. 18/12/14

Ext.P3 Copy of Regn. Certificate

Ext.P4 Copy of tax licence

Ext.P5 Two wheeler package policy

Ext.P6Estimate

Ext.P7 series  (SP)  - Photos

Ext.P8(SP) CD

Ext.P9 Bill for taking photos

Ext.P10 Copy of lawyer notice dtd.8/1/15

Ext.P11 Copy of lr. dtd. 10/6/15

Ext.P12 Lr dtd. 11/6/15

Ext.P13Postal cover

Ext.P14 Reply notice dtd.25/1/15

Opposite Parties Exhibits

Ext.R1 Authorization letter

Ext.R2 Invoice dtd. 18/12/14

                                                                                          Id/-

                                                                                      Member