Kinetic Motor Company Limited vs RAJ KUMAR

THIS appeal is directed against the order dated 20.2.2003 passed by District Forum, Karnal, whereby while accepting the complaint filed by respondent -complainant, direction has been given to the appellant -opposite parties to replace the vehicle in question with a new one and if it is not possible for it to do so then refund the price of the vehicle amounting to Rs. 38,500 to the complainant along with interest @ 10% per annum from the date of the order till payment. The above order was to be complied with within 30 days from the receipt of the copy of the order.

THE facts of the case need to be noticed briefly in order to focus the controversy involved in the present appeal. The complainant, who is stated to be a handicapped person, had purchased one white gray colour Kinetic -ZX from the appellant on 14.11.2000 for Rs. 38,500 vide invoice No. 1/vs/200 through M/s. Malhotra Agencies, Karnal being the dealer. The appellant was impleaded as opposite party No. 2 being the manufacturer of the vehicle. The first service of the vehicle was obtained by the complainant within the stipulated period of 45 days. On that occasion, the opposite party No. 2 retained the other two coupons with it on the representation that it would be for the benefit of the complainant. Soon thereafter the engine of the scooter started giving irritating noise and for that reason the vehicle was taken to workshop of dealer on 2.3.2001. Instead of doing the necessary repairs, the workers of opposite party No. 2 abused him, made fun of him being a handicapped person, insulted him with the result that he had to leave that place. It is further case of the complainant that the pick -up of the said vehicle is not according to the specification given by the opposite party No. 1 which is a manufacturing defect and as the opposite parties had failed to rectify the same, he filed the present complaint seeking direction against the opposite parties to replace the vehicle with a new one and also claimed Rs. one lac as compensation for mental agony and harassment faced by him at the hands of officials of opposite party No. 2. In addition, Rs. 10,000 were claimed as litigation expenses. On notice, opposite parties put in appearance. In the written reply, they denied the allegations of the complainant that during the first service, other two service coupons were retained by the opposite party No. 2. It was further pleaded by them that the complainant has visited the workshop of opposite party No. 2 on 2.3.2001 at 5 -00 p.m. with the complaint of noise in the engine of the vehicle. As closing time of the workshop is 6 -00 p.m., Harjit Singh, Foreman of the opposite party No. 2 informed the complainant to leave the vehicle so it could be checked on the next day, whereas the complainant has insisted that it be checked immediately and further used abusive language against the proprietor of the opposite party No. 2 in the presence of staff and customers. It was further stated by them that three engineers namely Vaveen Succena, Sandip Gambhir and Rajiv Duggal went to the house of the complainant on 26.3.2001 and 20.4.2001 and offered to do the necessary repairs of the vehicle in question but the complainant insisted for change of the vehicle with a new one which request could not be accepted under the rules of the company. Thus they maintained that Kinetic Honda was in working condition except that it needed some minor repairs which have occurred due to normal wear and tear. Thus, they prayed for dismissal of the complaint. The District Forum on appraisal of the pleadings of the parties and evidence adduced on record accepted the complaint vide order dated 20.2.2003 and issued the direction as noticed earlier. Aggrieved by the said order, the present appeal has been filed by the appellant -opposite party No. 1.

NONE of the parties appeared at the time of arguments. It is the common case of the parties that white grey colour Kinetic Honda -ZX scooter was sold by the opposite party No. 2 to the complainant on 14.11.2000 for Rs. 38,500. The complainant had obtained first service of the vehicle in question within 45 days. According to the complainant, he noticed irritating noise in the engine of the scooter and this fact was brought by him to the notice of the opposite party No. 2 on 2.3.2001, which defect, according to the opposite party No. 2 was rectified. During the pendency of the complaint as is evident from the job card dated 1.7.2001 (Annexure A) the opposite party No. 2 had replaced the defective parts namely crank assembly, crank bearing, rear shocker and cylinder piston assembly. The stand of the complainant was that despite replacement of the above stated parts, the vehicle in question was not working properly and the defects noticed continued to subsist as per affidavit dated 27.3.2001 of the complainant. According to the opposite parties, defects in the scooter arose because the complainant has used coolant mixed with 2 T Oil which caused failure of the crank shaft, main bearings and piston assembly. This part of the opposite parties was not accepted by the District Forum for the reason that the opposite parties have not placed on record any affidavit of the person, who has given the aforesaid opinion. It was also noticed by the District Forum that when first service was got done by the complainant, opposite party No. 2 had obtained other two free service coupons of the scooter with ulterior motive. In addition to the above stated position, primacy was given by the District Forum to the affidavit C -1 of the complainant wherein he has stated that the vehicle in question carries the same defects and thus concluded that there was a manufacturing defect in the vehicle which had been supplied to the complainant. On the basis of this evidence, directions noticed earlier have been given by the District Forum including the replacement of the vehicle in question.

NEEDLESS to say, where the vehicle is found to be defective, right of the consumer to seek its replacement or refund of the price is a basic requirement of the warranty during the warranty period. The burden to prove the defects would be on the consumer. But as regards the nature of the defects, which totally impaired the functioning of the scooter would normally depend on expert evidence because some time, it would not be possible to fix because of the normal functioning of the scooter on physical examination of the scooter. Even if the consumer is not able to lead any expert evidence, however, he cannot avoide his responsibility to prove that the defects noticed are of such magnitude that it has totally affected the driving of the vehicle in question. In this case, as already stated, initial complaint of the complainant was noise in the engine, which had been rectified by the opposite party No. 2. It is surprising that the complainant during the pendency of the complaint approached the opposite party No. 2 and got the replacement of the parts of the scooter namely crank assembly, crank bearing, rear shocker and cylinder piston assembly. This clearly shows that the opposite parties have been attending to the complaints made by the consumer. The District Forum was wholly unjustified by placing reliance on the affidavit of the complainant wherein he maintained that defects continued to subsist and that too without finding out as to what other defects remained in the scooter which needed to be rectified, and still ordered the replacement of the scooter treating the defect as manufacturing defect. The circumstances on record has clearly brought out that the District Forum could not have ordered the manufacturer to replace the vehicle or ordered the refund of its price merely because some defective parts have been replaced by the opposite party No. 2. For the aforesaid reasons, the order of the District Forum is not sustainable and the same is accordingly set aside. While accepting the appeal, we dismiss the complaint. Complaint allowed.