West Bengal

Paschim Midnapore

CC/100/2016

Sk. Sarju - Complainant(s)

Versus

Amit Bajaj - Opp.Party(s)

31 Oct 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

PASCHIM MEDINIPUR.

                             

     Bibekananda Pramanik, President,  

and 

Pulak Kumar Singha, Member.

 

Complaint Case No.100/2016

 

            Sk. Sarju, S/o Sk. Sajada, Residing at Aligunj, Fakirdanga, P.O. Medinipur,  P.S. Kotwali,

            District - Paschim Medinipur, PIN-721101…………..………..……Complainant.

                                                                              Vs.

1. Amit Bajaj, at Keranitola, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
2. Works Manager Amit Motors, Amit Bajaj Service Division, Keranitola, P.O. Medinipur, P.S. Kotwali, District- Paschim Medinipur, PIN-721101,
3. Bajaj Auto Ltd., Akurid, Pune, PIN-411035, Inda,
4. Bajaj Finance, C/o Amit Motors, Keranitola, P.O. Medinipur, P.S. Kotwali, Dist- Paschim Medinipur, PIN-721101……………………......……….….Opp. Parties.

                                                    

              For the Complainant: Sk. Arif Ali, Advocate.

              For the O.Ps.             : Mr. Somnath Guin, Advocate.

                                                  : Mr.Surajit Dutta, Advocate.

 

Decided on: -31/10/2017

                               

ORDER

                          Bibekananda Pramanik, President –This consumer complaint u/s 12 of the C.P. Act has been filed by the complainant Sk. Sarju against the above named O.Ps, alleging deficiency in service on their part.

                Complainant’s case, in brief, is as follows:-

                             On 15/07/2015, the complainant Sk. Sarju purchased a motorcycle namely Bajaj Pulsar 150 DTSI from the showroom of the O.P. no.1 by taking loan from O.P. no.4 at

a consideration of Rs.8,50,531/-.   Since the date of purchase, the complainant has been facing problem of leakage of mobil from the head (engine) of the motorcycle and on several

Contd…………………..P/2

 

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times, he went to the authorized servicing centre (O.P. no.3) of the O.P. no.1 but his problem was not solved.  Being assured by the manager of O.P. no.1, the complainant handed over the motorcycle to O.P. no.1 from time to time, but the O.P. no.1 could not solve the said problem of leakage of the mobil from the head (engine) of the motorcycle.  The complainant therefore on several times requested O.P. no.1 either to change the motorcycle or to change the entire engine of the said motorcycle but the O.P. no.1 refused to do so.  On 12/06/2016, the complainant took his motorcycle to the authorized servicing centre of O.P. no.1 and five days thereafter on 18/06/2016, O.P. no.1 returned the said motorcycle to the complainant expressing that the said problem could not be solved permanently.  Therefore the complainant issued a legal notice to O.P. nos.1&2 on 15/02/2016 and after receiving the said notice, the O.P. no.1 issued a reply notice to the Ld. Advocate of the complainant thereby admitting the problem of the motorcycle but he did not mention about the permanent remedy of the said defects.  From the said reply it is very much clear that there is some manufacturing defects in the motorcycle.  Complainant therefore submits that service of the O.P. no.1 was not satisfactory and knowing fully well, O.P. No.1 sold a defective motorcycle to the complainant.  Hence the complaint, praying for an order directing O.P. no.1 to replace the motorcycle with a new one and for an order of compensation of Rs.50,000/- and an order of litigation cost of Rs.10,000/- against O.P. no.1.

                  All the opposite parties have contested this case by filling  separate written versions.   

                   Denying and disputing the case of the complainant, it is the specific case of the opposite party Nos. 1&2 as made out in their written version that O.P. no.1 is a partnership farm and the O.P. no.2 is the qualified mechanical engineer of the O.P. no.1.  It is admitted by O.P. nos. 1&2 that the complainant purchased a Pulsar 150 DTSL motorcycle of Bajaj from their showroom and the said motorcycle was duly registered vide registration no. WB-34/AR-3903.  After purchasing the vehicle, the complainant thereafter for the first time came to the workshop of O.P. no.1 on 05/08/2015 for first free servicing and accordingly the vehicle was received by the workshop and the vehicle was serviced as per norms.  Thereafter the complainant came to the workshop of O.P. no.1 on 06/11/2015 for second free servicing and it was accordingly serviced again.  Thereafter on 08/11/2015, the complainant came to the workshop of O.P. no.1 for third free servicing and the vehicle was duly serviced and the complaint regarding oil leakage from the engine head stag was attended and accordingly the complainant took delivery of the vehicle after full satisfaction.  Again on 17/11/2015, 13/01/2016 and 27/02/2016, the complainant brought his motorcycle with the allegation of leakage of engine oil from the head stag and on all occasions, the allegation of engine oil leakage from head stag from head stag was attended

Contd…………………..P/3

 

                                                               ( 3 )

to and on each occasions, the complainant received the vehicle in good and running condition to his satisfaction.  O.P. no.1 did not charge a single farthing towards the said works done free of cost.  It is stated that there is absolutely no fault on the part of O.P. nos.1 & 2 to attend the services as and when required to the satisfaction of the complainant and the O.P. nos.1&2 have got nothing to do.  From the allegations as leveled by the complainant though not admitted by the O.P. nos.1&2, it has been alleged that on the engine mounting head, the said vehicle being a 4-stroke engine is provided with a cam to maintain the ratatory valves on the engine and the said valves are the basis on which a 4-stroke engine performs viz. suction- compression- ignation/working-exhaust and the cam shaft piniom is covered by a plastic cap and the allegations that the plastic cap seal has got a leakage.  Pertinent to mention that the plastic cap is mounted on a precision mould engine mounting of alloy steel and plastic and alloy steel are not homogeneous material and a permissible amount of seepage can be there which has got no bearing on the performance of the engine, however the said has been attended to and the alloy engine head mounting and the plastic cap has been replaced and attended to. It is stated further that there is no deficiency in service on the part of the O.P. nos.1&2 and the petition of complaint is therefore liable to be rejected.

              Denying and disputing the case of the complainant, it is the specific case of the opposite party No. 3 as made out in the written version that the present complaint is not maintainable and it requires to be dismissed with cost.  It is stated that after using the vehicle for eleven months with vehicle reading on 12/06/2016 as 15,500 kms. i.e. nearly 48 kms. per day, the complainant has filed this case with the allegation of leakage of mobil from the head engine of the vehicle.  It is stated that extensive use of 15,500 kms for eleven months itself proves that there is no problems in the vehicle.  Moreover, the complainant has not filed any cogent evidence like expert report or opinion about the allegation and therefore the complaint deserves to be dismissed with cost. It is also contended by the O.P. no.3 that had there been any problem in the vehicle, either the vehicle should not have been taken by the complainant at the time of delivery and even while taking the registration papers, the complainant should have lodged the complaint.  But there is no such complaint at both the point of junctures.  It is also stated that once the vehicle is delivered to the customer after it’s sale, the O.P. do not have any control or knowledge as to how the vehicle was being used and who were using it and whether it is maintained properly or not following the tips given for efficient performance of the vehicle.  In absence of it only on the bad allegations of the complaint no adverse order should be passed.  The O.P. No.3 therefore prays for dismissal of the complaint with cost.

Contd…………………..P/4

 

 

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               O.P. no.4 has contested the case by filing a written version.  Denying and disputing the case of the complainant, it is the specific case of the O.P. no.4 that they are only the financer in the present transaction and they are not at all liable and responsible for the condition of the vehicle and as such question of causing deficiency in service does not arise at all.  O.P. no.4 therefore claims dismissal of the complaint.

              To prove his case, the complainant Sk. Sarju has examined himself as PW-1 by tendering a written examination-in-chief and one Sk. Babul as PW-2.  During the evidence of PW-1, few documents were marked exhibit 1 to 10 respectively.  On the other hand, O.P. no.3 has examined one witness namely Subhankar Mondal as OPW-1 and during his evidence, few documents were marked as exhibit A to G series respectively.  On behalf of O.P. nos. 1&2, one Soumitra Sil has been examined as OPW-2 and during his evidence few documents were marked as exhibit H to P- series respectively.  No other witness has been examined by any of the O.Ps.  

 

                                                                 Points for decision

1. Is the case maintainable in it’s present form and prayer ?
2. Is the complainant a consumer under the provision of C.P. Act ?
3. Is there any defects in the vehicle in question ?
4. Is there any deficiency in service on the part of the O.Ps. ?
5. Is the complainant entitled to get the reliefs, as sought for ?    

                   

Decision with reasons

           Point no.1:

                          Maintainability of this case has not been questioned by any of the parties at the time

of final hearing of this case.  We also do not find anything adverse to hold regarding maintainability of this case.  This point is accordingly decided in favour of the complainant.

 

Point no.2:

            It is not denied and disputed that on 15/07/2015, the complainant purchased the motorcycle in question, manufactured by O.P. no.3 from the showroom of O.P. no.1, the dealer of O.P. no.3.  So the present complainant is definitely a ‘consumer’ of the O.P. nos. 1&3. This point is therefore decided in the affirmative and in favour of the complainant.

Point no.3 &4:

            There two points are taken up together for consideration.  

            In his petition of complaint, as well as in his evidence, PW-1 Sk Sarju has specifically stated that since the date of purchase of the motorcycle in question, he has been

Contd…………………..P/5

 

 

                                                                                      ( 5 )

 facing problem of leakage of mobil from the head engine of the motorcycle and with the said complain, he went to the authorized service centre (O.P. no.2) of the O.P. no.1 but the O.P. no.2 could not solve the said problem even after repairing.  Although in their written objection O.P. nos. 1&3 have denied existence of any such problem/defects in the motorcycle, but from the cross-examination of OPW-2 we find that the complainant visited their service centre with the complaint of leakage of fuel in the vehicle and such complaint will be also found from the job cards (exhibit O- series). These job cards have been admitted in evidence on behalf of the O.Ps.  It is none but OPW-2 in his cross-examination has admitted that on several occasions, the complainant visited their service centre with the same problem and he has opined that it might be that the problem of such leakage is due to improper surface finishing in the engine.  Not only OPW-2 but also OPW-1 who happens to be a service engineer of O.P. no.3 in his cross-examination has admitted that since 16/11/2015, the complainant bought the motorcycle before them on several times with the complain of oil leakage from the engine and they repaired the said problem on all occasions but in spite of that, the problem again recurred. It thus appears that none but OPW 1&2 have admitted in their cross-examination that after sale of the motorcycle, the complainant visited the workshop of the O.P. no.1 with the complain of mobil leakage from the head engine of the motorcycle and even after repairing of the said defects by O.P. no.2, the problem again recurred.  It thus appears that the motorcycle in question, so purchased by the complainant from the O.P. no.1, had defects in the engine and the O.P. nos. 1&2 failed to remove the said defects even after repairing which tantamounts to deficiency in service on the part of the O.P. nos. 1&2.  These two points are accordingly decided against the O.P. nos. 1&3 with the findings that the O.P. no.1 sold a motorcycle having defects in engine and O.P. nos. 1&2 have deficiency in service in repairing the said defects.

Point no.5:

             In view of our above findings, the complainant is entitled to the reliefs as prayed for.

                    All the points are accordingly disposed of.

                     In the result, the complaint case succeeds.

                                                        Hence, it is,

                                                        Ordered,

                               that the complaint case no.100/2016  is allowed on contest against O.P. nos. 1&3 with cost and dismissed on contest without cost against O.P. nos. 2&4.

O.P. nos. 1&3 are directed to replace the engine of the motorcycle in question by a new one free from any defects within two months from the date of this order

Contd…………………..P/6

 

 

 

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after prior notice to the complainant for production of the motorcycle in the showroom of O.P. no.1 for such replacement of engine.

O.P. nos. 1 &3 are further directed to pay a sum of Rs.20,000/- as compensation and Rs.10,000/- as litigation cost to the complainant within two months from this date of order.

                                     Let plain copy of this order be given to the parties free of cost.

                 Dictated & corrected by me

                    Sd/-B. Pramanik.                       Sd/-P. K. Singha                      Sd/-B. Pramanik. 

                            President                                  Member                                    President 

                                                                                                                         District Forum

                                                                                                                     Paschim Medinipur