Kerala

StateCommission

A/16/385

THE MANAGER M/S BAJAJ AUTO Ltd. - Complainant(s)

Versus

BAIJUMON T K - Opp.Party(s)

AVANEESH V N

07 Aug 2018

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 385/16

JUDGMENT DATED : 07.08.2018

 

(Appeal filed against the order in CC.No.239/2014 on the file of CDRF, Kottayam order dated 29.04.2016)

 

PRESENT

 

HON’BLE JUSTICE SRI.S.S. SATHEESACHANDRAN       : PRESIDENT

 

SRI.T.S.P. MOOSATH                               : JUDICIAL MEMBER

 

SRI.RANJIT. R                                          : MEMBER

 

APPELLANTS

 

1. The Manager, (Sales and Services), M/s.Bajaj Auto Limited, Akurdi, Pune – 411035

 

2. The Manager (SNS), Royal Motors, Kodimatha, Kottayam – 686031

(DIR Code – 10594)

 

3. The Manager, Royal Bajaj, Pampady, Kottayam – 686 502

 

(By Adv.Sri.Avaneesh.V.N & Adv.D.R.Rajesh)

 

565.  

RESPONDENT

        Baijumon.T.K, Kochukulathil House, Kumarakom North.P.O

        Kottayam – 686 563

        (Adv.B.Madhu kumar)

JUDGMENT

 

SRI.T.S.P.MOOSATH                                :JUDICIAL MEMBER

Opposite parties in CC.No.239/14 of the Consumer Disputes Redressal Forum, Kottayam, in short the District Forum, has filed the appeal against the Order passed by the district forum by which they were directed to replace the defective motor bike purchased by complainant with a brand new defect free vehicle or to refund the price of the bike, Rs 61,000/-, and to pay Rs 5000/- as compensation with cost of Rs 2000/-.

2.     The case of the complainant is as follows. He had purchased a Bajaj Discover 100 T motor bike from the second opposite party on 03.06.2013. Three days after purchase the bike became defective. On complaint made by the complainant, opposite parties took back the vehicle for examination. After five days the vehicle was handed over to the complainant. Two days later the vehicle again became defective while riding. The next day the vehicle was handed over again for repair. At the time of purchase of the vehicle the opposite parties assured that it would get mileage of 85 km, but, the complainant got mileage only of 55 km. Moreover the vehicle continuously became defective. Complaint demanded new vehicle from the opposite party. But the opposite party stated that the entire problem would be solved after running of vehicle for some kilometers. The vehicle used to stop while riding during rainy season. Complainant had spent Rs 10,000/- for repairing the vehicle during the last 11 months after its purchase. On 23.06.2014, the complainant entrusted the vehicle to the third opposite party for service, but, till date it was not delivered to the complainant after service. There was clear deficiency of service from the side of the opposite parties. Hence the complaint.

3.     Opposite parties filed their version contending as follows. The complaint is not maintainable either in law or facts. It is admitted that the petitioner purchased a Discover 100T Bajaj motor bike from the second opposite party, manufactured by the first opposite party, from 03/06/2013 and thereafter it was extensively and continuously used by the complainant Continuous usage of vehicle itself show that it has no problem. It is false that the vehicle was taken by the mechanic of second opposite party on two occasions. The mileage of the vehicle depends on various factors. If the vehicle has low mileage, it will be certainly due to the handling of the petitioner. There was no deficiency of service on the side of the opposite parties. Hence this complaint may be dismissed with costs.

4.     Complainant was examined as PW1and Exts. A1 to A6 were marked on his side. No oral evidence was adduced by the opposite parties and Exts.B1 to B3 were marked on their side. Considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.

5.     Aggrieved by the Order passed by the District Forum opposite parties have preferred the present appeal.

6.     Heard both sides. Perused the records.

        7.     Complainant has purchased a motor bike from the second opposite party, manufactured by the first opposite party on 03.06.2013. Ext.A1 is the bill issued by the second opposite party to the complainant over the purchase of the motor bike. Ext.A3 is the copy of the Certificate of Registration of the motor bike in the name of the complainant. Ext.A5 is the Insurance Certificate and Ext.A4 is the Warranty card over the motor bike. From Ext.A4 it can be seen that the warranty was for a period of two years or 30,000 kms, which ever occur earlier, from the date of sale. According to the complainant three days after the purchase the motor bike became defective and it was entrusted with the opposite parties. They took the vehicle and after some days it was returned to the complainant. Again the motor bike became defective and it was handed over to the opposite parties. After some days it was returned to the complainant. According to the complainant at the time purchase of the vehicle the opposite parties had assured that it would get mileage of 85 kms. But the complainant got only mileage of 55 kms. According to the complainant the vehicle continuously became defective and during riding it would stop suddenly. According to the complainant he demanded a new vehicle from the opposite parties but they stated that the entire problems will be over after running of some kilometers. On 23.06.2014 the complainant entrusted the vehicle to the third opposite party for service, but, it was not returned. It is alleged by the complainant that there was deficiency of service on the part of the opposite parties. The opposite parties contended that there was no manufacturing defect to the vehicle. Further the complainant had used the vehicle for one year and complaint was filed only on 15.07.2014. The mileage of the vehicle depends on various factors, according to opposite parties.

        8.     It is the case of the complainant that within a few days of purchase the motor bike became defective and it was taken by the opposite party and returned after some days. According to the complainant defects of the motor bike was a continuous one and on several occasions the motor bike suddenly stopped during riding. According to the complainant it happened due to the manufacturing defects of the bike. According to the opposite parties there was no manufacturing defect to the vehicle. Opposite parties have no case that there were no defects at all to the motor bike. Exts.B1 and B2 shows that some repair works were done and some parts were replaced by the opposite parties. In paragraph 8 of the version filed by the opposite parties 2 & 3 it is stated that when the vehicle was entrusted to the third opposite party on 23.06.2014 it was found that the crank shaft and the cylinders were not working in proper condition. The District forum found that there is nothing to disbelieve the testimony of PW1 that there are defects to the motor bike and such defects continued. The District forum directed the opposite parties to replace the defective motor bike with a brand new defect free motor bike or to refund the price of Ra 61,000/-. It is true that the vehicle was not inspected by any expert and there is no expert opinion on evidence to show whether there was any manufacturing defect to the vehicle. There is no material to ascertain as to what were the defects to the vehicle. However, as found by the district forum, there is nothing to disbelieve the testimony of PW1 that within few days of the purchase there  working of the motor bike was not proper and it became defective. According to the complainant the motor bike used to stop suddenly during its riding. There is nothing to indicate that the defects occurred to the motor bike was due to the improper use of the bike by the complainant. Considering the evidence and the facts and circumstances it has to be considered within there was mechanical defect to the motor bike. The materials produced would clearly show that the vehicle had defects from the date of sale and it required repair intermittently.  There was deficiency of service on the part of opposite parties is established but there was no proof that the vehicle had manufacturing defects. 

9.     Complaint was filed by the complainant on 15.07.2014 in which he alleged that he had entrusted the vehicle with the opposite parties on 23.06.2014 it was not returned to him. In the version filed by the opposite parties 2 & 3 it is stated that on 18.07.2014 the complainant took the vehicle from the office of the third respondent without any complaint. But that fact was not brought to the notice of the District forum. In the Order passed by the district forum it is stated that at the time of passing of the order the motor bike was with the opposite parties. The respondent / complainant appeared in person before the commission and he admitted that the motor bike is with him, but, contended that it cannot be used because of defects. PW1 admitted that he had used the vehicle for about one year and it had run 27,000 kms. Considering all these facts, we find that the Order passed by the district forum directing the opposite parties to replace the defective motor bike with a new motor bike or to refund the price of the motor bike, Rs 61,000/- to the complainant is not justifiable and the Order has to be modified. The vehicle had some defects when sold to complainant is established but there is no expert evidence showing the nature of defects and also whether it is repairable. Complainant was put to hardship and suffering due to the defects of the vehicle but, it is seen, that he had used the vehicle continuously for more than one year covering a distance of 27000/- kms. Taking into account all the above facts compensation payable has to be assessed. Complainant, in the facts of the case is not entitled to have a new defect free bike or refund of the price paid. We find it just and reasonable to direct the opposite parties to pay Rs 20,000/- (Rupees Twenty thousand only) to the complainant / respondent. Cost ordered by the District forum is just and reasonable and no interference thereof is called for.

                In the result, the appeal is partly allowed. Order passed by the District forum is modified as :

                The appellants / opposite parties are directed to pay Rs 20,000/- (Rupees twenty thousand only) to the respondent / complainant with cost of Rs 2000/-(Rupees two thousand only).

                At the time of institution of the appeal the appellants have deposited Rs 25,000/-(Rupees twenty five thousand only) before the commission. The respondent / complainant is permitted to realize the amount of compensation and cost from the above sum deposited by opposite parties on filing a proper application before this Commission.

 

                Parties are directed to suffer their respective costs.

 

JUSTICE S.S.SATHEESACHANDRAN      : PRESIDENT

 

 

T.S.P.MOOSATH              : JUDICIAL MEMBER

 

 

RANJIT.R                 : MEMBER

 

 

Be/

 

 

 

 

 

 

 

 

KERALA STATE

 CONSUMER DISPUTES

REDRESSAL COMMISSION

 SISUVIHARLANE

 VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 385/16

JUDGMENT DATED : 07.08.2018