Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint u/s.12 of the C.P. Act 1986.

                   2. The case of the complainant is as follows.  The complainant is working as a priest (pujari) at Pullad Bhagavathi Kavu temple he who purchased a new ‘Glamour’ bike bearing engine No. JA 06 EJG 9 K 07784 from the 1^st opposite party on payment of Rs.68,000/-.  The 2^nd opposite party is the manufacturer and the 3^rd opposite party is the South Zone office of the 2^nd opposite party.  On 06/03/2017 while he was returning to his house after the temple work the bike has shown some starting trouble.  On the next day the employees of the 1^st opposite party has taken the bike for necessary repairment.  The 1^st opposite party repaired the bike but not ready to extent the warranty period.  The complainant informed the said matter to all the opposite parties concerned but they did not redress the grievance of the complainant.  According to the complainant the defect of the bike happened as a mechanical defect.  It is also contended that the 1^st opposite party received an excess amount of Rs.3,179/- from the complainant.  It is stated that the bike is still in the custody of the 1^st opposite party and also contented that for the said reason the complainant was not get an opportunity to file an expert report with regard to the condition of the vehicle.  According to the complainant the act of the opposite party is a clear deficiency in service and all opposite parties are liable to the complainant.  Hence, the case for replacement of the bike or refund of the price of the bike Rs.68,000/-, compensation, cost etc. etc.   

                   3. This Forum entertained the complaint and issued notice to the opposite parties for appearance.  All the opposite parties are received notice but the 1^st opposite party failed to appear before this Forum hence, the 1^st opposite party was set ex parte on 01/06/2017.  The 2^nd and 3^rd opposite party filed a joint version as follows.  According to the opposite parties the complaint is not maintainable either in law or on facts.  It is admitted that the complainant he who purchased a motor bike from the 1^st opposite party as alleged.  The complainant entrusted the motor bike for service on 07/03/2017 for its ‘engine abnormal sound’.  It is contented that the 1^st opposite party inspected the bike and found that the lock of the bike chain had broken.  The service engineer rectified this mistake and informed the complainant to take back the bike.  The complainant did not take back the bike from the 1^st opposite party but claimed a new bike.  It is contented that the opposite parties offered 5 year warranty for the vehicle but did not allow a replacement because it happened due to wear and tear and abnormal usage of the vehicle.  It is specifically contented that the bike is not suffering any manufacturing defect as alleged by the complainant.  According to the opposite party they did not commit any deficiency in service or unfair trade practice against the complainant so that they are not liable to the complainant and also further contented that there is not cause of action against the opposite parties.  Therefore this opposite parties prayed to dismiss the complaint with cost.

                   4. On the basis of the complaint, version and records before as we framed the following issues for consideration. 

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

5. In order to prove the case of the complainant, the complainant he who filed a proof affidavit and examined him as PW1.  Through PW1 Ext.A1 to A8 were also marked.  Ext.A1 is the copy of the retail invoice dated 23/02/2017.  Ext.A2 is the letter dated 16/03/2017 to the opposite party.  Ext.A3 is the copy of complainant dated 30/03/2017 to Thiruvalla RTO.  Ext.A4 is the copy of the insurance certificate.  Ext.A5 is the temporary registration certificate.  Ext.A6 is the copy of the driving license.  Ext.A7 is the letter dated 15/03/2017.  Ext.A8 is the owner’s manual of the said bike.  On the other side the authorized representatives of 2^nd and 3^rd opposite party one Mr.Balagi.A filed a proof affidavit in lieu of his chief examination and examined him as DW1.  Through DW1 Ext.B1 is also marked.  Ext.B1 is the job card dated 07/03/2017.  After the closure of evidence we heard both sides.  Apart from the hearing 2^nd and 3^rd opposite parties counsel filed a hearing note in their favour.

6. Point No.1:  The case of the contesting 2^nd and 3^rd opposite parties are that the case is not maintainable either in law or on facts since there is no cause of action arised against to them as alleged by the complainant.  When we look into the evidence of the case it is revealed that the complainant as a bonafide purchaser purchased the said bike from the 1^st opposite party by paying its consideration.  On the basis of the version of the 2^nd and 3^rd opposite party we can understood that the 1^st opposite party is the official dealer of the bike manufacturer the 2^nd opposite party.  Hence the complainant is a consumer and opposite parties are service provider of the complainant.  Therefore we found Point No.1 in favour of the complainant. 

7. Point No.2&3:- For the sake of convenience we would like to consider Point No.2 & 3 together.  The case of the complainant is that he who purchased a ‘glamour’ bike from the 1^st opposite party and he is using the said bike for his daily employment purpose as a priest.  In order to substantiate his contention he produced and marked Ext.A1 the retail invoice dated 21/02/2017 issued by the 1^st opposite party against the complainant for an amount of Rs.57,705/-.  Ext.A2 is a notice dated but 16/03/2017 which was issued by the complainant against the 2^nd opposite party the manufacturer.  In the said Ext.A2 the complainant raised the same contention which we refer in the complaint or his proof affidavit.  Ext.A3 is another copy of the letter issued by the complainant against the joint RTO Thiruvalla.  In Ext.A3 the PW1 described all the events related to his complaint to the joint RTO.  Ext.A4 is the copy of insurance policy which was issued in favour of the complainant.  Ext.A5 is the copy of the temporary registration certificate of the said bike issued by the Motor Vehicle Department Government of Kerala.  Ext.A6 is the copy of the driving license in favour of the complainant.  Ext.A7 shows that the complaint of the bike had been rectified by the 1^st opposite party and also directed to the complainant to take back the bike from the work shop of 1^st opposite party.  Ext.A8 is the owner’s manual of the said bike.  In the light of the evidence adduced by the complainant PW1 and the records discussed above it is proved that PW1 who purchased the ‘glamour’ bike from the 1^st opposite party and paid an amount of Rs.57,705/- as per Ext.A1.  Though the complainant contented that he paid an amount of Rs.68,000/- to the 1^st opposite party he failed to adduce any evidence on records to prove it.  It is further proved that the bike entrusted for repairing at the 1^st opposite party’s work shop and the said bike is still in 1^st opposite party’s work shop.  It is also proved that though the 1^st opposite party intimated the fulfillment of the work and the running condition of the bike the complainant did not take it and demanded for a new bike since the defect found was a manufacturing defect.  We can see that the 2^nd and 3^rd opposite party seriously contented that they are not responsible for any kind of warranty for the said vehicle since the defect caused to the vehicle by way of wear and tear or rough use.  In the light of the above rival contention we would have to find that whether the complaint has any right to get a new bike instead of the present bike or eligible for the refund of the price of the vehicle.  It is come out in evidence to see that the vehicle suffered some defect which resulted the non-use of the vehicle it happened within one moth of its purchase.  If so, it is the duty of the official service persons of the 2^nd or 3^rd opposite party to rectify the defect to the satisfaction of the complainant.  It is true that as per Ext.A7 the 1^st opposite party informed the complainant that the vehicle is in good condition.  Ext.A7 notice cannot be considered as an evidence of the working condition of the vehicle.  There is no convincing evidence before us to see that whether the vehicle is in working condition or not.  It is to be noted that either the complainant or the opposite parties failed to adduce any evidence to show that the present condition of the vehicle.  The complainant’s counsel submitted that since the vehicle is in the custody of 1^st opposite party they could not get an opportunity to get an expert report.  We don’t think that it is the duty of the opposite party to produce an expert opinion with regard to the present condition of the vehicle as argued by the complainant. However it is proved that the vehicle was suffered some mistake and it is still in the custody of the 1^st opposite party.  In this case the 1^st opposite party declared ex parte as such the evidence adduced by the complainant is unchallengeable as far as the 1^st opposite party is concerned.  The complainant who is a bonafide purchaser of the vehicle has got every right to get the vehicle in a perfect condition.  For that, the 1^st opposite party service person manufacturer – 2^nd opposite party and the dealer the 3^rd opposite party are liable to the complainant.  We also find that for curing the defects of the vehicle 1^st to 3^rd opposite parties all are jointly and severally liable to the complainant.  It is also to be noted that from the date of entrustment of the vehicle for necessary repairment i.e. 7/3/2017 till this date the vehicle is in the custody of 1^st opposite party.  Either the 1^st opposite party or other opposite party’s miserably failed to take any positive steps with regard to this fact.  The inaction on the part of the opposite parties also can be seen as a deficiency in service on their part.  Hence point No.2&3 found infavour of the complainant.    

8. In the result we pass the following orders.

1. 1^st to 3^rd opposite parties are hereby directed to cure the defect of the vehicle (Bike) bearing engine No. JA 06 EJG 9 K 07784 within one month of receipt of this order and obtain a certificate from an officer not below the rank of an M.V.I of Pathanamthitta Regional transport Office (Fitness certificate) If fails, the opposite parties are liable to pay the price of the bike Rs.57,705/- (Rupees Fifty Seven Thousand Seven Hundred and Five Only) to the complainant with 10% interest from the date of filing of this case i.e. 18/04/2017.

2. The opposite parties are also directed to pay a compensation of Rs.7,000/- (Rupees Seven Thousand Only) along with a cost of Rs.3,000/- (Rupees Three Thousand Only) to the complainant with 10% interest from the date of receipt of this order onwards.        

                      Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 28^th day of November, 2018.

                                                                                             (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                           (President)

Smt. Sheela Jacob (Member)  :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1 :  Sreedharan Nampoothiri.

PW2 :  Shinu.P.O.

Exhibits marked on the side of the complainant:

A1 :  Copy of the retail invoice dated 23/02/2017. 

A2 :  Letter dated 16/03/2017 to the opposite party.

A3 :  Copy of complainant dated 30/03/2017 to Thiruvalla RTO.

A4 :  Copy of the insurance certificate.

A5 :  Copy of the form TR5(c). 

A6 :  Copy of the driving license.

A7 :  Letter dated 15/03/2017. 

A8 :  Owner’s manual of the said bike. 

Witness examined on the side of the opposite parties:

Dw1 : Balaji.A.

Exhibits marked on the side of the opposite parties:

B1 : Job card dated 07/03/2017.                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       

                                                                                                    (By Order)

Copy to:- (1) Sreedharan Nampoothiri,

 S/o.G.N.Nampoothiri, SNV Illom,

           Thiruvanvandoor.P.O, Chengannoor-689 109.

               (2)  Prime Motors,

                Amni Tower, Opp. IOC Petrol Pump, M.C.Road,              

                Perumthuruthi.P.O., Thiruvalla-689 107.

           (3) M/s.Hero Motocorp Ltd.,

                34, Community Centre, Basant Lok, Vasanthvihar,

                New Delhi-110 057,  Rep. by its CEO.

           (4) M/s.Hero Motocorp Ltd (South Zone)

                6-A, D.D, Trade Tower (6^th Floor), Kaloor, Kadavanthara Road,

                Kaloor, Kochi-682 017,  Rep.by its CEO.

           (5) The Stock File.