By Smt. Mini Mathew, Member
1. Moossa, a businessman from Vengara approached this Forum with his grievances. He purchased a Honda Motor Cycle from the 1st opposite party who is the authorised dealer of opposite party No.2 on 05-05-2011 for an amount of Rs.46,297/-. At the time of purchase opposite party No.1 assured one year warranty and three free services within one year of purchase. Moreover opposite party No.1 assured at the time of purchase that the motor cycle would get a mileage of 55KM per liter of petrol. The vehicle was registered as KL-55-535. An additional amount of Rs.2,910/- also was paid for extra fittings and Rs.1,108/- towards labour charges and Rs.908/- towards insurance charges.
2. The complainant further states that he had given the motor cycle for first service on 11-06-2011 at the service centre of opposite party No.1. On that day itself the complainant brought to the notice of the 1st opposite party that there was some leakage of petrol from the motor cycle . At the time of delivery after service, the 1st opposite party made the complainant to believe that the defects have already been cured. But when the same leakage continued the complainant entrusted the vehicle to the 1st opposite party for repair and the vehicle was handed over to the complainant after one week making him believe that the mechanical defects had been cured. But while using the vehicle it was understood that the defects were not yet rectified. The opposite party No.1 cheated the complainant by making false statement to him. The petrol leakage still continued. The second service of the motor cycle was done on 26-08-2011. The opposite party promised the complainant that the mechanical defects would be cured after the second service of the vehicle, but it had not been cured by the opposite party No.1. Hence the complainant filed this complaint before this Forum alleging deficiency of service on the part of the opposite parties.
3. Complainant prays for a direction to the opposite parties to refund the actual value of the vehicle ie., Rs.51,225/- with 12% interest from 05-05-2011 onwards, Rs.25,000/- with 12% interest for the loss sustained by him due to petrol leakage and Rs.1,00,000/- for mental agony and cost of this complaint.
4. Even though notice was sent to the opposite party No.2 it was not returned after service. Since opposite party No.1 is the authorised dealer of opposite party No.2 and the notice is sent from this Forum by registered post it is presumed that opposite party No.2 is served with the notice and it is also presumed that opposite party No.1 has definitely informed this matter to opposite party No.2. So opposite party No.2 set exparte.
5. As per the version of opposite party No.1 the allegations made in the complaint are denied. He says that there was no manufacturing defects noticed. He admits that he is the authorised dealer of opposite party No.2. The purchase of the motor cycle, warranty given to the motor cycle and the services done in his workshop are also admitted by him. He denies the allegation about the leakage of the petrol from the motor cycle. He further states that the motor cycle was misused by the complainant and after some time he wanted his motor cycle to be changed, so he made some false allegations and approached this Forum to get the same replaced. According to him there is no deficiency of service on his part and he prays for the dismissal of the complaint with cost to him.
6. Complainant filed affidavit and documents Exts.A1 to A8 marked on the side of him. Opposite party No.1 counter affidavit filed. No documents filed on behalf of them. No oral evidence was adduced by both sides. Complainant filed argument notes also.
7. Points for consideration:-
(i) Whether opposite parties are deficient in their service?
(ii) If so want is the relief and cost.
8. Point No.(i):-
It is the admitted case that the complainant had purchased a Honda Activa Scooter from opposite party No.1 and the value for he same is Rs.46,349/-. This is proved through Ext.A1. It is also proved that extra fittings worth Rs.2,910/- also was purchased by the complainant on 02-05-2011 itself as per Ext.A2. Ext.A3 is the copy of the Registration Certificate of the vehicle. Ext.A4 is the warranty contract. Ext.A5 is the service record sheet and Ext.A6 is the insurance policy issued ICICI, Lombard dated, 02-05-2012 in respect of the motor cycle. Ext.A8 is the invoice issued by the opposite party No.1 dated, 03-09-2011 to prove that the complainant spent Rs.1,108/- towards repairing the vehicle. And the complainant filed a petition before this Forum to direct the opposite party No.1 to produce the Job card in respect of the motor cycle bearing No.KL-55-535 and it was allowed as per order in IA-358/12 dated, 28-01-2013. Opposite party No.1 filed an affidavit swearing that Job Card is not available with them and they keep the Job Card only for two months.
9. The complainant and opposite party No.1 had filed affidavits in lieu of chief examination and both parties have not taken any steps to cross examine the witnesses. But it is pertinent to note that the motor cycle was purchased on 02-05-2011 and the complaint is filed on 14-10-2011. This itself would show that the grievance of the complainant is not redressed by the opposite parties within the warranty period. The complainant has a definite case that the motor cycle was given for service to opposite party No.1 on 11-06-2011 and 26-08-2011 and it was the definite case that all the complaints with regard to the motor cycle was reported to opposite party No.1 and all those complaints was recorded in the Job Card of opposite party No.1. The complainant had taken steps to cause production of the Job Card and as per order in IA-358/12 and this Forum had directed the opposite party No.1 to produce the same before this Forum.
10. But instead of producing the same he filed an affidavit swearing that it is not available with him as it is kept only for two months. This Forum finds that even if the original of the Job card is not available with them definitely the copies of the Job Card will be available either with opposite party No.1 or opposite party No.2. In these circumstances it is found that the non-production of the Job card or it's copy before this Forum is a material fact found against opposite party No.2. If the Job Card had been produced, the defect of the vehicle would have been made visible to the Forum. Moreover the opposite parties have not produced any documents to prove their case. If there is any manufacturing defects, leakage of petrol etc., to the motor cycle they would have very well take steps to get an expert opinion. Nothing was done in this case.
11. The complainant purchased a motor cycle spending his hard earned money. By purchasing the said motor cycle he lost his peace of mind. Even though the complainant took his vehicle to opposite party No.1 to get it serviced and repaired it was not done properly and so the complaint persisted. These things happened within the warranty period. The act of the trader amounts to deficiency of service or unfair trade practice. So the complainant is a consumer, the act of the opposite parties made the complainant suffer much difficulty and hardship.
12. The negligent and evasive types of attitude taken by opposite party No.1 in defending his case was very clear when we go through the docket sheet. The opposite party No.1 has not taken any effective steps to produce the Job Card which contains the defects of the vehicle. Several adjournments was sought by him to submit the counter affidavit. The deficiency on the part of the opposite party No.1 is clearly proved.
13. At the same time we are taking into account the fact that the vehicle has run 10,800KM so far by the complainant and it is still in the custody of the complainant who is using it, considering all he facts and circumstances of the case, we are of the opinion that complainant is entitled to get a compensation of Rs.25,000/- along with a cost of Rs.5,000/- from the opposite parties.
14. In the result, we order that the opposite parties shall pay a sum of Rs.25,000/-(Rupees Twenty Five thousand only) as compensation along with Rs.5,000/-(Rupees Five thousand only) towards the cost of this proceedings to the complainant within one month of the receipt of the copy of this order.
Dated this 28th day of April, 2014.
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K. MOHAMMED ALI, PRESIDENT
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R. K. MADANAVALLY, MEMBER
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MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Exts.A1 to A8
Ext.A1 : Photo copy of the invoice dated, 02-05-2011 for Rs.46,349/-
from first opposite party to complainant.
Ext.A2 : Photo copy of the invoice dated, 02-05-2011 for Rs.2,910/-
from first opposite party to complainant.
Ext.A3 : Photo copy of the Registration Certificate of the vehicle No. No.KL-55-535
Ext.A4 : Photo copy of the Emission Warranty Contract.
Ext.A5 : Photo copy of the Service Record Sheet.
Ext.A6 : Photo copy of the insurance policy issued by ICICI, Lombard dated,
02-05-2012 in respect of the motor cycle.
Ext.A7 : Photo copy of the advertisement card of first opposite party.
Ext.A8 : Photo copy of the invoice dated, 03-09-2011 for Rs.46,349/-
from first opposite party to complainant.
Witness examined on the side of the opposite parties : Nil
Documents marked on the side of the opposite parties : Nil
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K. MOHAMMED ALI, PRESIDENT
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R. K. MADANAVALLY, MEMBER
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MINI MATHEW, MEMBER
