CC No.363/2017                                            Date of filing:09.03.2017

                                                              Date of Disposal:27.07.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

                 DATED THIS THE 27^th DAY OF JULY 2020       

CONSUMER COMPLAINT NO.363/2017

PRESENT:

Sri.  Venkatasudarshan  D.R.  B.Com,LL.M.,   ….  PRESIDENT

Smt. L.Mamatha, B.A., (Law), LL.B.                ….       MEMBER

Sri. M.B. Seena, B.A., (Law), LL.B.             ….       MEMBER

COMPLAINANT:

Sri.K.G.Sridhar S/o

Late K.R.Gattappa,

Aged about 52 Years,

R/at No.A-4-316,

Gokulam Complex,

Doddakallasandra,

Kanakapura Main Road,

Bengaluru-560062.

(Complainant by Sri.Mohan Bangar N,  Advocate)          

V/s

OPPOSITE PARTIES:

1. Ashwa TVS,

(Authorised Main Dealer),

T.V.S.Motor Company Limited,

No.311, Ring Road,

Banashankarti 3^rd Stage,

Rep by its Manager Priju.

2. TVS Motor Company,

Post Box No.4, Harita,

Rep by is Authorized Signatory/Manager.

3. TVS Motor Company,

Registered office,

Jayalakshmi Estates, V.Floor 8,

Haddows Road,

Chennai-600006,

Rep by its Authorized Signatory/Manager.

(Opposite Party No.1, Vasanth B.H,

Opposite Party No.2 & 3 by Sri.Kotraiah

B.Prasadimath, Adv)          

= = = = = = = = = = = =   

WRITTEN BY SRI VENKATASUDARSHAN D.R., PRESIDENT

            ******

// ORDERS ON MERITS//

This complaint filed by Sri. K.G.Sridhar Under Section 12 of the Consumer Protection Act 1986 against M/s Ashwa TVS and two others, praying for a direction to the OP Parties to replace a new TVS Jupiter MLN Edition MSC Bike in place of old one purchased by him on 20.06.2016 or to direct the Ops to refund he sum of Rs.72,165/- together with interest at 18% p.a. and to direct the OP Parties to pay a sum of S.50,000/- as compensation for the mental agony and harassment under gone by him and also to pay the cost of litigation.

 2. The brief facts of the case of the complainant as per the complaint is that, the OP Party No.1 is the dealer at Bangalore.  OP No.2 is the Manufacturer of TVS Motors having factory at Hosur and the OP No.3 is the registered office of the Op No.2 having office at Chennai. 

3. It is the case of the OP Party No.1 that he is a resident of Bangalore.  It is the case of the complainant that on 20.06.2016, he purchased a TVS Jupiter MLN Edition DUC from OP No.1 for a total sum of Rs.72,165/- which includes Rs.56,454/- as its price and the rest were towards other charges under Invoice No.2001704.

4. The complainant also pleads that he was assured by the OP Party No.1 that the vehicle was of a best quality.  But that was found to be a make believe one.  This is because from the day one itself he noticed an abnormal sound in the engine.  He had given the vehicle for service on the advice of OP No.1 on 16.07.2016 to OP No.1 who is also authorized service center as per free coupon service.  The oil was changed and the complainant was told that there is no defect and returned the vehicle.  After taking delivery when the complainant started using the vehicle he again found abnormal sound in the engine and thus not satisfied with the service effected.

5. The complainant left the vehicle for 2^nd service on 15.10.2016.  Before that apart from the sound, from the engine the accelerator was not properly working and when that was brought to the notice of the 1^st OP Party, the complainant was assured that at the time of 2^nd service it would be looked into and set-right.  After 2^nd service that the complainant was assured that the defect has been cured.  But to the surprise, the defect was not at all cured and the same problem erupted again after 15 days.  When that was informed to the 1^st OP Party he changed the carburetor on 20.11.2016.  Thereafter the vehicle ran smoothly only for 15 days.  The same problem again surfaced.

6. The complainant not satisfied with the performance of the vehicle and as the service was also poor and he requested the Opposite Party No.1 to replace the vehicle with new one.  But the 1^st OP Party assured that all problems would be set right during 3^rd service.  Accordingly, the vehicle was left for 3^rd service on 17.12.2016.  After 3^rd service, the complainant used the vehicle for few days and found along with the usual problems, there was a problem in the disc brake.  Therefore the complainant got issued a legal notice on 12.01.2017 to the OP No.1 demanding the replacement of the vehicle.  The OP No.1 gave vague reply vide reply dt.22.01.2017.  Hence the complaint.

7.  There are three Ops in the case. After admitting the complaint, the notices were ordered to be issued.  The Ops on the receipt of notices have entered appearance through an advocate on 05.05.2017.  On the request of the Advocate for the OP Parties time was granted to file version by adjourning the case again and again dt.11.09.2017 (almost for 4 months).  But version was not at all filed.  Hence, this forum on 11.09.2017 has rejected the further prayer for time to file version by OP Parties 1 to 3 and posted the case for leading evidence.

8. Again on 11.12.2017, the Advocate of the OP Parties came up with an application u/s 151 of CPC r/w Section-13 of the Consumer Protection Act along with versions OP No.1 and a Joint version by OP No.2 and 3.  The said application was accompanied by the Memorandum of Facts of the Advocate for the OP Parties and not the affidavit of the Parties with valid explanation for the cause for the delay.  This Forum having noticed that no valid reason for the delay was assigned, has dismissed the said application and did not accept the versions filed by Ops vide order dt.24.01.2018.  Thus the versions filed along with the said application stand outside the scrutiny by the Forum.  This has become final.

9.   When the case was posted for recording evidence, the complainant filed his affidavit as a part of his evidence and produced some documents about which reference will be made in the course of this order. No argument advanced before us.

  10.   The points that arise for our determination are:-

1. Whether the Complainant proves that there was defect in the vehicle bearing No.KA.05-JU-8966 purchased by the Complainant from the 1^st OP manufactured by the 2^nd OP having registered office at Chennai ?
2. Whether the complainant proves that there was deficiency in service on the part of the 1^st OP?
3. Whether the complainant is entitled for the reliefs sought ?
4. What order ?

11.    Our findings on the above points are:-

Point No.1:- In the negative

Point No.2:- In the negative

Point No.3:- In the negative

Point No.4:- As per the final order for the following.

: REASONS :

12. POINT NO.1 & 2:-  This complaint is filed by Sri. K.G.Sridhar Under Section 12 of the Consumer Protection Act 1986 against the M/s Ashwa TVS and two others praying for a direction to the Ops to replace the existing vehicle purchased by the complainant with a new one or in the alternative to direct the Ops to pay a sum of Rs.72,165/- together with interest at 18% p.a and also compensation of Rs.50,000/- together with interest of this litigation.  This complaint was filed on 09.03.2017. 

13. It is the case of the complainant that he had purchased TVS Jupiter MLN edition on 20.06.2016 from 1^st OP for a sum of Rs.56,454/-.  In addition to this he has paid additional sum towards registration expenses towards insurance and additional accessories and in all paid a sum of Rs.72,165/-.  After purchasing the vehicle, he noticed that there was an abnormal sound in the engine.  He left the vehicle for service on 16.07.2016 as per the free coupon service and Complained about the said sound in the engine.  Even after 1^st service, the complainant was getting the same abnormal sound in the engine.  When that was brought to the notice of the 1^st OP, he assured that it would be attended to in the 2^nd service.  But even in the 2^nd service which was a free coupon service that defect was not attended.  Instead the complainant noticed that the running condition has become very poor.  When the complainant reported the same to the 1^st OP then carburetor was changed on 20.11.2016.  Even then the problem was not solved and it continued to exist.  Therefore, the complainant contends that he was not happy with the performance of the vehicle.  Even the 3^rd service was not satisfactory and the said complaints in the vehicle together with some disk break problem continued.  Therefore, the complainant requested to replace the vehicle with a new one or to refund the amount.  The Ops did not agree so he got issued a legal notice and filed this complaint. 

14. To substantiate the above aspects, the complainant has filed his affidavit evidence in which he has reiterated all the averments made in the complaint.  The burden of proving that there is a manufacturing defect which warrants replacement with a new vehicle is on the complainant.  The complainant has not produced any technical evidence or any information of an expert to show that there is a manufacturing defect in the vehicle.  Further nowhere in the complaint or in the affidavit evidence it has been stated that the vehicle has become unusable and therefore lying idle.  Nowhere in the complaint or in the evidence, it is stated that the complainant is not using the vehicle at all.  The only documents which he has produced are the copy of the invoice, receipt and copies of free service coupons.  In order to show that there was sound in the engine which was abnormal or that there was poor performance in the functioning of the vehicle or that there is some disk break problem which were all brought to the notice of the Opposite Party. The Complainant should have produced some document like the report of a M.V. technician, or from a guarage.  That also has not been done.  Nodoubt, in this case, there is no version filed by the Ops for the reasons already discussed in the brief paras. That does not however absolve the complainant from proving his case.   The Complainant has to prove the case in the manner required under law. Nothing prevented the complainant from summoning the records from the office of the 1^st OP concerning the vehicle like vehicle history periodical services made etc.  Had these documents been summoned by the complainant and made available for the inspection by the Forum the truth or otherwise of the averments made in the complaint could have been ascertained.  For the reasons best known to the complainant, he has not summoned the records.

15. Apart from that if at all there was such a mechanical defect in the vehicle which warrants replacement nothing prevented the complainant from requesting this Forum to send the vehicle to the Appropriate Laboratory/ a Technical Expert for inspection and to report at his cost in accordance with the provisions of Section 13(1)(c) of the Consumer Protection Act.  That also has not been done.

16. In addition to the above, it appears from the records produced by the complainant himself that he has not approached the Forum with clean hands.  We say so because admittedly the complainant had issued a legal notice on 12.01.2017 the copy of which is available.  By way of reply to that legal notice Ashwa TVS has sent a notice by way of reply to the Advocate for the complainant on 22.01.2017.  The copy of which has also been produced by the complainant himself.  In that reply notice it has been stated as under.

(1)”That even client purchased the new vehicle bearing No.KA.05JU8966 (Jupiter) on 20.06.2016.This vehicle is under warranty period.(24 months) from the date of purchase or during the 24000 KMs whichever is earlier.

(2)Now we are request you to kindly advise your client to report his vehicle to our service Centre at the earliest, we can resolve his vehicle noisy related complaint”.

This reply notice is under the seal and signature of Manger of Ashwa Motors.The complainant has deliberately suppressed the material facts contained in this notice in the complaint and also in the affidavit evidence.In the complaint at Para No.12, he has only stated that the 1^st OP has issued vague response to the legal notice issued by way of reply.This is totally incorrect.When the OP No.1 has so clearly and categorically stated that the vehicle is still under the warranty period and that it would attend to all the complaints made in respect of the vehicle including noise or sound in the engine, nothing prevented the complainant from taking vehicle to the OP No.1 and demand to attend to all the problems relating to the vehicle.For the reasons best known to the complainant he did not comply with the request made by the OP No.1 in the reply notice.Instead he has filed a present complaint alleging that there is deficiency in service on the part of the Op.This clearly shows that the complainant has not approached the Forum with clean hands.He is guilty of suppression of material facts.Therefore, the complainant is not entitled for any reliefs in the ends of this Forum.In this context, we may refer to the decision of the National Commission reported in 2012 (2)CPJ Page 83 (NC) and 2013 (2) CPJ Page 176 (NC) in S.Girija Selvaraj and another V/s Sri.Swarnambgial All India Travel Company.

17. In the light of the discussions made above, we are of the considered view that the complaint filed is premature.  The complainant has failed to prove that there is any defect in the vehicle which warrants replacement and also failed to prove that there is any deficiency in service.  Accordingly, we answer Point No.1 & 2 in the negative and against the complainant. 

18. POINT NO.3 & 4:- In view of our finding recorded on Point No.1 & 2 in the negative and against the complainant, the question on considering whether the complainant is entitled for any of the reliefs sought in the complaint does not arise.  Accordingly, we answer Point No.3 in the negative and proceed to pass the following final order. 

-:ORDER:-

The complaint filed by the complainant Sri. K.G.Sridhar against M/s Ashwa TVS and two others u/s 12 of the Consumer Protection Act is dismissed.  No order as to costs.

           Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on 27^th day of July 2020)                                            

   (M.B. SEENA)    (L.MAMATHA)    (D.R.VENKATASUDARSHAN)                                MEMBER                   MEMBER                      PRESIDENT  

 //ANNEXURE//

Witness examined for the complainant side:

Sri.K.G.Sridhar, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

• Nil -

List of documents filed by the complainant:

1. Copy of Proforma invoice dt.19.06.2016.
2. Copy of Vehicle Invoice dt.20.06.2016.
3. Copy of the receipt dt.19.06.2016.
4. Copy of the First Free Service coupon dt.16.07.2016.
5. Copy of the Second Free Service coupon.
6. Copy of Xerox photo of the carburetor.
7. Copy of the Third Free Service coupon.
8. Copy of the Legal Notice dt.12.01.2017.
9. Copy of the Postal Receipt.
10. Copy of the served acknowledgement Card.
11. Copy of the Reply dt.22.01.2017.

List of documents filed by the opponent:

(M.B. SEENA)       (L.MAMATHA)    (D.R. VENKATASUDARSHAN)                              MEMBER                   MEMBER                      PRESIDENT