By Sri. K. Mohammed Ali, President

Facts in brief:-

1. The case of the complainant is that he has purchased CB NICORN DAZZLER Motor Bike from the opposite party No.1 on 03-07-2010. He has availed seven services at the authorised Service Centre of the opposite party. Within a short period of purchase, there developed oil leakage from the engine and unusual sound when starting the vehicle. So complainant demanded to replace the engine since it was a mechanical defect. But opposite party convinced the complainant that by changing Gasket Head cover the defect can be rectified. Accordingly, it was done also. On 20-03-2012, there was heavy expulsion of smoke from the bike, but the opposite party assured that the defects also can be cured by repair work and no replacement is necessary. But inspite of the repeated assurances made by opposite party that the defect can be rectified by repair the same defect still persists with the engine of the Bike. So the complainant is claiming to replace the vehicle with a new one and Rs.57,000/- as compensation.

2. The opposite party filed version by which all the allegations was denied. The purchasing of the bike and repair work done in authorised service centre of the opposite party is admitted. The main dispute is that due to rash, negligent driving of the vehicle by inexperienced driver in connection with the marriage of the complainant has caused all the alleged defects. The oil leakage and unusual sound of the engine was rectified by the opposite party. The opposite party contends that after curing all the defects, the vehicle was handed over to the complainant from the Service Centre with full satisfaction. The demand to replace the bike is quite unwarranted and unjustifiable, since no such mechanical defects were noted. So no bonafide in the complaint.

3. The main points that arises for our consideration are as follows:-

   1. (ii) Relief if any.

      1. 1. 1. (i) Whether the opposite party is deficient in service.

4. Point No.(i) & (ii):-

1. 1. 1. 1. The documents produced by the complainant as marked as Ext.a1 to A6 were carefully scrutinized. The opposite party was cross examined by the counsel of the complainant. The opposite party has not produced any documents or oral evidence. As part of evidences, both parties filed affidavits.

5. Ofcourse, the vehicle was having some serious defects. The question is whether it is a mechanical defect or not. On 04-12-2012, the complainant filed an I.A.420/12 requesting the forum to appoint an expert commissioner to test and examine the vehicle to ascertain the nature of the defects and expenses to be incurred to rectify the defects and to decide that a replacement is necessary or not. The paragraph No.2 of the I.A. reads as follows:- മേല്‍ നമ്പര്‍ ഹരജിക്കാസ്പദമായ വാഹനത്തിന് തകരാറുകള്‍ സംഭവിച്ചിട്ടുള്ള സംഗതി മേപ്പടി വാഹനം ഒരു മെക്കാനിക്കല്‍ വിദഗ്ധന്‍ പരിശോധിച്ച് റിപ്പോര്‍ട്ട്‌ വരുത്തികിട്ടേണ്ടത് മേല്‍ നമ്പറില്‍ ഹരജിക്കാരന്‍റെ ഭാഗം കേസ് തെളിയിക്കുന്നതിന് അത്യാവശ്യമാണ്.” But it is very unfortunate that no steps was taken by the complainant to submit a panel of experts inspite of five chances and five months time were granted to him to do so. 12-12-2012, 09-01-2013, 11-02-2013, 13-03-2013, 17-04-2013, 20-05-2013 were the dates granted to complainant to submit panel of experts. So no evidence is available before the forum to conclude that the vehicle was having any mechanical defects which can be cured only by the replacement.

6. At the same time, the Ext.A1 to Ext.A6, produced and marked by the complainant reveals that the vehicle was taken to the authorised Service Centre of the opposite party for some repair work within a short period of purchase. As per Ext.A1 document, opposite party charged Rs.587/- towards the expenses of total parts, labour and lubricants on 12-04-2012. The Ext.A3 document discloses the facts that an amount of Rs.525/- was charged by opposite party on 13-12-2011 as repair charge. Ext.A4 is issued by opposite party to the complainant on 20-03-2012 and as per this tax invoice, the complainant has remitted Rs.3,613/- as repair charge. Ext.A5 shows that a sum of Rs.233/- was charged from the complainant on 29-03-2012. Now, the total amount levied from the complainant, as repair charges and other charges is Rs.4,958/-. The opposite party No.1, at the time of the cross examination, has deposed in page No.2 of the deposition that “എഞ്ചിന്‍റെ part leak ഉണ്ടായിരുന്നത് ഞങ്ങള്‍ Replace ചെയ്തിട്ടുണ്ട്. ശേഷം എഞ്ചിന്‍ മാറ്റണം എന്ന് പരാതിക്കാരന്‍ ആവശ്യപ്പെട്ടിരുന്നു. ഈ ആവശ്യം ഉന്നയിച്ചത് വാറണ്ടി പീരിയഡിലാണ്. Ext.A4 warranty period-ല്‍ ഞാന്‍ issue ചെയ്ത ബില്ലാണ്. Ext.A4 പ്രകാരം 4,000/- രൂപയോളം പരാതിക്കാരന്‍ അടവാക്കിയിട്ടുണ്ട്. അതില്‍ ലേബര്‍ ചാര്‍ജും ഈടാക്കിയിട്ടുണ്ട്.”

7. The Ext.A6, the warranty policy issued by opposite party states in the third paragraph that “HMSI will replace or repair at their authorised workshops, free of charge, within a period of 24 month's from the date of sale.....................”

8. So all the above said documents issued by opposite party to the complainant clearly proves that the opposite party has committed deficiency in service for which he is liable to compensate the loss sustained by the complainant.

9. We agree with the points raised by the complainant in the affidavit and Notes of arguments that every bonafide purchaser expects his vehicle to be perfect and free from all defects. It is the duty of the every manufacturer and service provider to ensure that the vehicle should be free from all defects. It is to be noted that within the warranty period, all these defects occurred. The opposite party No.1 and 2 are jointly and severally liable for the loss of the complainant.

10. In the result, we order that the opposite parties shall refund Rs.4,958/-(Rupees Four thousand, nine hundred and fifty eight only) to the complainant with interest @ 10% per annum from the date of the complaint till the date of payment, along with Rs.10,000/-(Rupees Ten thousand only) as compensation towards the mental agony and hardships met by the complainant, within one month of the receipt of the copy of this order. No order as to costs.

Dated this 25^th day of November, 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 : Ext.A1 to A6

Ext.A1 : Photo copy of the invoice dated, 12-04-2012 for Rs.587/-

by first opposite party to complainant.

Ext.A2 : Photo copy of the lawyer notice by complainant's counsel

to opposite parties

Ext.A3 : Photo copy of the invoice dated, 13-12-2011 for Rs.525/-

by first opposite party to complainant.

Ext.A4 : Photo copy of the invoice dated, 20-03-2012 for Rs.3,613/-

by first opposite party to complainant.

Ext.A5 : Photo copy of the invoice dated, 29-03-2012 for Rs.233/-

by first opposite party to complainant.

Ext.A6 : Photo copy of the Warranty Policy.

Witness examined on the side of the opposite parties : DW1

DW1 : Haris. K., first opposite party.

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