By: A.A.Vijayan, President
The complaint is filed for replacing the bike purchased by complainant.
The averements in the complaint in short are as follows.
On 11-4-2011 the complainant purchased CB UNICON motor bike from 1st opposite party and that was registered as KL 55 H6592 the complainant had specifically directed the 1st opposite party at the time of booking the bike that he required a black coloured bike. After using the bike purchased by him for about one year he noticed that the colour of the bike started to fade away . More over on certain parts of the bike the red colour appeared . Thus the complainant was convinced that the real colour of the bike was red and that was repainted with black colour. At the time purchasing the bike the demand was for black coloured bikes, thus they might have faced shortage of black coloured bike and thus they converted red coloured bikes after repainting with the black colour. There for the opposite parties played unfair trade practice for undue gain. When the complainant approached 1st opposite party for replacing the vehicle he was not ready for the same and a lawyer notice was sent to opposite parties to which they did not respond. Since complainant was deceived by the opposite parties he suffered severe mental agony . Even after paying the entire amount , the opposite parties sold only a defective bike to complainant and that shows their deficiency of service and lack of responsibility. There for the opposite parties may be directed to replace the bike and pay Rs.100000/- as compensation for the mental agony suffered by complainant together with cost of this proceedings
The opposite party filed a joint version disputing the the claim of complainant as follows.
The 1st opposite party is not the manufacturer of the motor cycles as alleged in the complaint. The complainant purchased a brand new motor bike from the 1st opposite party dealer, from showroom with out any defect in colour. It is true that the complainant had booked black coloured motor bike and the bike delivered to complainant was also a brand new black coloured bike . The complainant took delivery of the bike after verification and check up and getting satisfied of the colour and quality of the bike. It is false to say that the colour of the bike started to fade after 1 year use and on some portions of the bike red colour began to be visible. The allegation that the 1st opposite party delivered red coloured bike after repainting it with black colour is baseless . The complainant never approached 1st opposite party alleging paint problem. There was no deficiency in service on the part of opposite party and thus they are not liable to pay any compensation to complainant. Hence complaint is to be dismissed.
Complainant and 1st opposite party filed affidavit and Ext. A1 to A4 and Ext.C1 were marked.
The points arose for consideration
(1) Whether there is any deficiency of service on the part of opposite parties.
(2) Reliefs and cost.
Point No.1
Admittedly the complainant purchased a black coloured bike from opposite party . The grievance of the complainant is that after the use of the bike for one year he noticed the black colour of the bike began to fade away and in the place of black colour red colour became visible..
It is brought out in the evidence that during that period the demand was for black coloured bikes and since opposite parties were unable to meet the demand of the customers , they repainted red coloured bikes with black colour and acquired profits in unhealthy manner. For verifying the real colour of the bike the commission was appointeD and he inspected the bike and filed report which is marked as Ext. C1. In Ext. C1 the expert commissioner specifically reported that the black colour of the bike was found lost or faded on different parts of the body and in those places red colour was visible . That indicate that the real colour of the bike was red and black colour was repainted on the bike to make it appear that it was originally a black coloured bike. No explanation was given by the opposite parties regarding the appearance of red colour in those places where in the black colour was faded or lost. Opposite parties made an attempt to disprove Ext. C1 report of the commissioner alleging that no scientific test was done by the expert . It is significant to note that for noting the visible red colour in that place of black colour of the bike a scientific test need not be done. No explanation was given by opposite party as to how the red colour became visible on the bike. Opposite party No.1 was examined as Dw1 and he feigned ignorance as to the appearance of red colour on different parts of the bike.
The opposite parties alleged in the version that the first opposite party is not the manufacturer of the bike and thus the complaint is dismissed against first opposite party. It is significant to note that there is no case for first opposite party what he received from the 2nd opposite party, the manufactured was black coulored bike. If that be so he could have produced any documents to prove that the bike having the same engine number and chassis number received from 2nd opposite party was black in colour. The manipulation on the colour of the bike can be done by the manufacturer as well as the dealer. It is brought out in evidence that during that period the demand was for black coloured bikes . Thus for promoting sales either manufacturer or the dealer might have manipulated the colour of the bike in a clandestine manner. As far as the complainant is concerned both opposite parties are liable and he cannot ascertain who changed the colour of the bike . Since both opposite parties did not reveal how it was happened , they are liable to replace the vehicle . The circumstances and evidence lead to an irresistible conclusion that the opposite parties committed deficiency of service and unfair trade practice for un due gain and there by deceived the complainant. Point is decided accordingly
Point No:2
On the basis of the finding on the above point we concluded that the opposite parties are deficient ins service and they committed unfair trade practice and they deceived the complainant. There fore we allow this complaint as follows
(1) The opposite parties shall replace the bike purchased by complainant with a new black coloured bike with in 30 days from the date of receipt of this order.
(2) If opposite parties are not willing to replace the vehicle or due to any reason beyond their control if they can not replace the vehicle they shall pay Rs.50000/- to complainant as damages.
(3) The opposite parties shall pay Rs. 50000/ as compensation for mental agony suffered by complainant
(4) The opposite parties shall also pay Rs.10000/- as cost to complainant
The above amounts shall be paid by opposite parties within 30 days from date of receipt of the copy of this order failing which they shall pay the same with interest @ 12% per annum from the expiry of that date till realization.
Dated this 31st day of October, 2016.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : PW1
PW1 : Complainant, Jayafar
PW2 : Arun Kumar.P.C, AMVI , RTO office Malappuram
Documents marked on the side of the complainant : Ext.A1to A4
Ext.A1 : Photo copy of RC vehicle bearing Reg. No.KL – 55-H- 6592.
Ext.A2 : Tax Licence
Ext A3 : Warranty Registration card
Ext A4 : Lawyer notice.
Witness examined on the side of the opposite party : DW1 and DW2
DW1 : Opposite party, Samson
Documents marked on the side of the opposite party : Nil
Ext. C1 : Expert commission report.
A.A.VIJAYAN, PRESIDENT
R.K.MADANAVALLY , MEMBER
MINI MATHEW, MEMBER
