IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of April, 2024
Present: Sri. Manulal V.S, President
Sri. K.M. Anto, Member
C C No. 247/2023 (Filed on 03-08-2023)
Petitioner : Achu Krishnan,
Thekkedathu House,
Parathodu P.O. Kanjirappally,
Kottayam - 686512
Vs.
Respondent : (1) KTM Popular Motor Corporation,
Manipuzha, Kottayam – 686013
Opp. Kia Motors, Nattakom, Kottayam
(2) Popular Motor Corporation,
Vitila KTM Sales, KTM Beeva Towers,
Vytila Junction, Ernakulam.
(For Op1 and 2, Adv. K. Anilkumar [Ambady]
and Adv. George Chirian Karipparambil)
O R D E R
Sri. Manulal V.S. President
Complaint is filed under Section 35 of Consumer Protection Act, 2019.
Case of the complainant is as follows:
On 27-3-2023 the complainant purchased a Duke 250 motorbike from the first opposite party. On covering 500KM, complainant found water in the speedometer of his bike. The opposite party returned the bike stating that the complaint of the water entry in the speedometer was rectified during the first service. However while riding the complaints of water entry in the speedometer occurred again and the vehicle had stopped. Though the vehicle was entrusted to the first opposite party on 6-6-2023 and they returned the vehicle on the next day stating that there is no defect in the vehicle. The first opposite party demanded Rs.550/- from the complainant as service charge. When the complainant lodged a complaint before the authorities of Chingavanam police station, the first opposite party informed that the service charge need not be paid by the complainant and delivered the vehicle to the complainant. On inspection, it was found by the complainant that engine of the motorcycle was opened by the first opposite party and the vehicle was of 2022 model. It is alleged in the complaint that after receiving an amount of Rs.3,08,000/- from the complainant being the price of the 2023 model vehicle the opposite parties delivered 2022 model vehicle to him. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to pay a compensation of Rs.50,000/- and Rs.18,000/- as the cost of this litigation.
Upon notice from this Commission, opposite parties appeared before the Commission and filed joint version contenting as follows:
The allegation of water entry in the speedometer was not detected and is incorrect. On 25-4-2023 at odometer reading of 1186 kilometres the motorcycle was received by the first opposite party with the service requirements of vehicle getting misfiring ,oil change and chain cleaning. On inspection service recruitment of vehicle misfiring was not detected. Oil, oil filter and ring of the oil filter was replaced as per the periodic maintenance schedule for an amount of Rs.1,665/-. The chain cleaning was done free of charge. On 6-6-2023 at Odometer reading of 2464 kilometres the motorcycle was received by the first opposite party with a service requirements of the speedometer water entry, Rear LH indicator water entry, vehicle getting misfiring, vehicle getting off suddenly, chain adjust, engine sound check, front brake light not working, rpm idling 3000RPM, gear shifting hard and sound and general check up. On inspection Speedometer water injury was not detected. As per the standard maintenance instruction from the manufacturer during heavy rains due to the velocity of splashing rainwater there will be settlement of fog on side corners of the metre as it cannot be breathed out due to outside high humidity. It is instructed by the manufacturer when fog is detected inside the speedometer the two wheeler has to be kept in warm condition for about of 2-3 hours and the condensation would get clear by itself. In the case of the complainant also the concern was resolved when his two wheeler was kept in warm condition for about two to three hours. Rear L H indicator was replaced under warranty. No complaints of vehicle getting misfiring and vehicle getting off suddenly were detected during the inspection or during test run. The engine control unit of the two wheeler did not show any fault code indicating the alleged complaint of vehicle getting misfiring and vehicle getting off suddenly. The chain was adjusted and was lubricated with the standard motul tube and complainant was charged 130. The complaint of engine sound was not detected and the front brake was replaced under warranty. RPM3000 warning is provided by the manufacturer to give an indication to the rider that the rpm is crossing 3000. At the request of the complainant rpm 3000 warning was shifted to rpm 7000 warning. . The complaint of gear shifting hard and sound was not detected during the inspection or ride. The general check up was done.
On 6-6-2023 Anoop A.B who is the service engineer of the first opposite party was summoned by the SHO police station on the allegation of the complainant that there is water entry in the speedometer of his two wheeler and request for replacement of meter. At the police station the service engineer pointed out when the two wheeler was kept in the warm condition the condensation inside the metre was cleared and shown the same to the station house officer. Hence no action was taken against the opposite parties. As a goodwill gesture the first opposite party waived the bill for Rs.130/- to the complainant. The complainant came to the service centre on 13-6-2023 when the two Wheeler covered 2500 kilometres raising the service concern of the sound from engine head. On inspection it is found that tensioner costing Rs.202 placed on the engine cover was weak and the same was replaced under warranty. The two wheeler sold to the complainant for Rs.2,38,118 is a new vehicle.
Complainant filed proof affidavit and marked exhibit A1 to A9. Manu Mohan who is the authorized officer and Manager of the first opposite party filed a proof affidavit and marked exhibit B1 to B6 from the side of the opposite parties. Expert Commission report is marked as exhibit C1.
On going through the complaint, version and evidence on record we would like to consider the following points.
- Whether the complainant had succeeded to prove any unfair trade practice or deficiency in service on the part of the opposite parties?
- If so what are the reliefs and cost?
Point No.1 and 2
There is no dispute on the fact that the on 9-3-2023 the complainant had purchased a new KTM 250 DUKE 250 ABS BS6 with chassis number MD2JPEXL0PC019633 and engine number P937*05105* which is manufactured by Bajaj Auto Limited. It is proved by Ext.A3 Order form that the price of the ex-showroom price of the vehicle was Rs.2,38,118/-. The specific case of the complainant is that his motorcycle is having defects of water entry in the speedometer and after abrupt stopping of motorcycle while riding.
The complaint was resisted by the opposite parties stating that the allegation of water entry in the speedometer was not detected and as per the standard maintenance instruction from the manufacturer during heavy rains due to the velocity of splashing rainwater there will be settlement of fog on side corners of metre as it cannot be breathed out due to outside high humidity.
In order to prove his case the complainant applied for the appointment on Expert Commissioner to inspect the vehicle and to ascertain the defects. Accordingly this Commission appointed Mr. Sriraj D as an Expert Commissioner in this case. The report of the Expert Commissioner is marked as exhibit C1. In exhibit C1 the expert reported that during his inspection it was found that there is a water entry in the speedometer. She further reported that the manufacturing date and year of the vehicle is different from the manufacturing date of the tyre. During inspection, it is further reported by the expert commissioner that the brake light of the motorcycle is not working, there is a leakage of front brake oil and the clutch cable of the motorcycle is corroded. However it is pertinent to note that in C1 report the Expert Commissioner did not opine that these defects were due to the inherent manufacturing defect.
In the absence of expert evidence to prove the vehicle is suffering from inherent manufacturing defect we cannot hold that the opposite parties sold the motorcycle to the complainant which has an inherent manufacturing defect. But it is evident that the vehicle is suffering from the defect of the water entry in the speedometer and non functioning of the brake light from front break oil leak and corroded clutch cable. It is pertinent to note that these defects were detected within a few months from date of purchase. Neither the complainant nor the opposite parties did not disclose about the warranty offered by the manufacturer. Opposite parties have no case that the vehicle was out of warranty coverage and these defects would not come under the warranty. Thus it can be presumed that the vehicle was under the warranty coverage and these defects were under the coverage of warranty. Being an authorized dealer of the manufacturer of the vehicle the opposite parties are under an obligation to rectify these defects under warranty.
Non rectifying of these defects under warranty amounts to deficiency in service on the part of the opposite parties.
On examination of exhibit A1 which is the certificate of registration of the motor cycle we can see that the chassis number is recorded as MD2JPEXL0PC019633 and engine number as P937*05105*. The month and year of manufacturing is recorded in exhibit A1 as 02/2023. Therefore we cannot accept the contention of the complainant that the motor cycle sold to the complainant is a 2022 model.
We already found that the opposite parties committed deficiency in service by not rectifying the defects which were found by the expert commissioner. Considering the nature and circumstances of the case and keeping in mind the salutary principles of consumer Protection Act we are inclined allow this complaint and to pass the following order.
- We hereby direct the opposite parties to rectify the defects of the vehicle which are reported in exhibit C1 commission report at free of cost within 30 days from date of receipt of copy of this order. The complainant is directed to handover the vehicle to the opposite parties within 15 days from the date of receipt of copy of this order.
- We hereby direct the opposite parties to pay Rs. 5000/- as compensation to the complainant for the deficiency in service on the part of the opposite parties.
The opposite parties are jointly and severally liable pay the compensation amount within 30 days from the date receipt of copy of this order failing in which he compensation amount shall carry interest@ 9% per annum from the date of this order toll the date of realization.
Pronounced in the Open Commission on this the 30th day of April, 2024
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1- Certificate of registration (Form 23)KL34H7385
A2 – Copy of screen shot of e-mail
A3 – Copy of order form and payment details of vehicle from Popular Motors
A4 – Copy of screen shot showing the date of sale-10-03-23 (Warranty card)
A5- Photo of speedometer
A6 – Photo of rusted engine part
A7 – Photo of tyre showing the date & year of manufacturer
A8- Photo of Odometer
A9-Photo of the rusted of motor bike
Exhibits marked from the side of opposite party
B1 – Job card dtd.25-4-23
B2 – True copy of circular issued by manufacturer
B3 – Job card dtd.6-6-23
B4- Job card dtd.13-6-23
B5- Tax invoice 380070733 dtd.23-2-23
B6-Email copy of despatch details from MIS Services to Bajaj
Commission Report
C1 – Report submitted by Sreeraj
By Order
Assistant Registrar
