KINETIC MOTOR COMPANY LIMITED Vs. RAJ KUMAR

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.