KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                   VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO. 821/12

JUDGMENT DTD:28/06/2013

(Appeal filed against the order in C.C. No. 120/2008 on the file of CDRF, Thiruvananthapuram,  dt: 30.04.2012)

PRESENT  

SRI. K.CHANDRADAS NADAR:                  JUDICIAL MEMBER  

SRI.V.V. JOSE:                                                                 MEMBER  

Ravikrishnan. N.R.

S/o. the late Rajakrishnan. N.R.,                                     APPELLANTS

101 # N.S.P. Nagar, Kesavadasapuram,

Vasant Vihar, New Delhi-110057  

(By Adv. Sri.N.R. Ravikrishnan)

V/s.

1.  The Managing Director,

     Hero Honda Motors Ltd.,

     34-Community Centre, Basanth Lok,  

    Vasant Vihar, New Delhi – 110057                         RESPONDENTS

2.  The Proprietor,

     Cheran Automobiles,
     Neeramankara, Thiruvananthapuram       

   JUDGMENT  

SRI.V.V. JOSE:       MEMBER  

          The    appellant was the complainant in CC No. 120/2008 in the file of

Thiruvananthapuram District Consumer Disputes Redressal Forum.  The complainant is an advocate.  The appellant purchased a Motor bike manufactured by the 1^st opposite party through the 2^nd opposite party on 09/03/2004.  According to appellant in the month of July 2007 he noticed some problem with the vehicle.  The engine was not properly working and it emanated some sounds.  Appellant took the bike to one of the authorized local dealers of the 1^st opposite party M/s. JCT Motors, who found, bike is having some major problems, which is not supposed to occur within such span of time and suggested to replace the entire component which had an effect of refitting the bike with a new engine.  The cost of the replaced component was Rs.7,785/-.  According to complainant such replacements are not warranted during the initial fifteen years.  Complainant asserts that the engine cover (case) and the crank shaft will not damage due to usage.  Both the components ought to have worked throughout the entire life span of the bike.  Due to the manufacturing defect of the vehicle complainant suffered a lot.

          The problem repeated in February, 2010 also which compelled the complainant to replace parts for Rs.5390/-.  The complainant alleges that the bike was having some serious manufacturing defects and sought compensation for mental agony and refund of the amount spent.

          2^nd opposite party resisted the complaint on various grounds including maintainability, and limitation, non-jointer of JCT Motors, who did the repair work, was necessary party.  The alleged defects are normal wear and tear and not manufacturing defects according to respondents.  Their words also contend no defects were to their notice during warranty period or there after. The life span of a vehicle depends upon its usage, maintenance, and various other factors.  The opposite party given warranty for a minimum period to the machine.  The components used in the vehicle are not of inferior quality as evident from the fact that the vehicle was used for more than three years without any defect.  The workshops in which the alleged works are carried out have not been impleaded as party in the case, is a grave error according to the respondent.  Complainant has been examined as PW1 and marked Exbts. P1 to P3.   PW2 & PW3 were also examined on the part of complainant.  Opposite parties has not adduced any evidence.

          Issues were framed by the Lower Forum regarding limitations, non-jointer, manufacturing defect and entitlement for relief.  All the issues were answered together.  The complainant alleged that it has become defective during the month of July, 2007.  According to the opposite parties, since the vehicle is purchased on 09/03/2004 and the complaint has been filed after four years i.e. in May, 2008.  So the complaint is barred by limitations.  The complainant pleads that the periodical check-ups and services were conducted in the authorized service centers in time.  Admittedly the defect of the vehicle first noticed in July, 2007.  First opposite party’s authorized service centre supervisor conducted checking and reported some major components of the vehicle got damaged.  Complainant stated that on his enquiry, he found such things do not happen and it is very rare.  Complainant states that he got opinion from the supervisor that the vehicle is having some manufacture defect.  Complainant pleaded that the defect found was not the violation of warranty, but it is a violation of conditions which entitle the complainant to repudiate the contract of sale.  On the contrary opposite party would argue that they have no knowledge about the alleged problems faced by the complainant.  According to them the records revealed the problem of wear and tear only.  If the defects occurred during warranty they would have rectified and replaced the defects or components.  They have not extended any additional warranty.  The Lower Forum found that the service centre which has done repairs are not parties to the proceedings.  Similarly the manufacturing defect is not proved by the complainant.  The parts replaced or the vehicle was not seen and examined by an expert Commissioner.  The Forum Below found that the complainant has not proved the manufacturing defect as per Section 13 (1) of Consumer Protection Act and also they found the complainant has not produced document to prove the reasonable life span of the vehicle, though he admitted to produce records.  The reliance of the evidence given by PW2 is the basis of the complainant’s case.  But Forum found that the same is not sufficient to prove the very case of the complainant, as he has also suggested that the bad handling of the vehicle could also cause such defects.  The Forum Below dismissed the complaint and that complainant failed to prove his case.  The repairs and replacements were carried out after warranty and the vehicle is still used by the complainant.

          We are not agreeable to this finding.  The fact that the vehicle was subjected to a major repair during the third year sounds very important.  The alleged mishandling is the cause of the defect cannot be accepted, as the vehicle run without any repair during the first two years by the complainant.  Mishandling commenced during the third year only cannot be probable.  It is admitted the repairs and replacements were done through two authorized service stations at a cost of Rs.13,175/- as per Exbts. P3 & P4.  The evidence of PW2, PW3 cannot be simply ignored PW2 & PW3 are the supervisor and proprietor of the authorized service stations of the 1^st opposite party and they are trained by the manufacturer and familiar in detecting defects and repairing the same.  The fact that replacements of crucial engine parts were necessary according to PW2 & PW3 are very significant. The manufacturers i.e. the 1^st opposite party has not adduced any evidence or disproved the evidence of PW2 and PW3 leads us to a conclusion that the replacements of engine parts were necessary not due to mishandling but due to the defects of the engine itself.  Hence we find that the refund of the cost of the parts replaced would meet the ends of justice and therefore we set aside the order of the Lower Forum and direct the 1^st opposite party to refund the cost of repairs and replacement covered by Exbt. P3 & P4 to a tune of Rs.13,175/-to the complainant.  We also direct the opposite party to pay a cost of Rs.1,000/- to the complainant.

          In the result, Appeal is allowed and set aside the order of Lower Forum and we direct the 1^st opposite party to refund the cost of repairs and replacements covered by Exbts. P3 & P4 to a tune of Rs.13,175/- together with a cost of Rs.1,000/- to the complainant.

V.V. JOSE:                     MEMBER  

  K.CHANDRADAS NADAR:          JUDICIAL MEMBER  

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