Karnataka

Bangalore 4th Additional

CC/14/188

Joseph John, - Complainant(s)

Versus

Bajaj Auto Limited., - Opp.Party(s)

In person

07 Dec 2017

ORDER

Complaint filed on: 27.01.2014

                                                      Disposed on: 07.12.2017

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027       

 

 

CC.No.188/2014

DATED THIS THE 07^th DECEMBER OF 2017

 

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SRI.D.SURESH, MEMBER

SMT.N.R.ROOPA, MEMBER

 

Complainant/s: -                           

Joseph John,

123/B, 4^th A main,

6^th cross, Behind

Government school,

Bahubali nagar,

Jalahalli village post office, Bengaluru-13.

 

By Inperson      

 

V/s

Opposite party/s

Respondent/s:-

 

1. Bajaj Auto Limited,

Akrudi,

Pune-411035.

Rep. by General Manager

 

2. Popular Motor Corporation,

43/1 B, D.R.C post, Bannerghatta Road,

Bengaluru-29.

 

By Adv.Sri.R.Ravindra Upadhya

 

 

ORDER DELIVERED BY PRESIDENT

SRI.S.L.PATIL

 

 

            This complaint is filed by the Complainant u/s 12 of the CP Act against the Opposite parties no.1 & 2 (herein after referred as Op.no.1 & 2 or Ops) seeking compensation of Rs.96,000/- (total vehicle purchase, cost of servicing, parts new purchased and interest).      

 

          2. The brief facts of the case of the Complainant are that he booked a new Baja company two wheeler model boxer 150 cc, in Bajaj authorized dealer popular motor corporation, Bengaluru, booking no.BK-4847 dtd.24.01.2012. He bought the vehicle by exchange offer of old two wheeler. He purchased the said motor cycle for an amount of Rs.51,000/- under cash paid bill no.3926 from the Popular motor corporation dtd.25.01.2012. Vehicle delivery registration was also on the same day. The said vehicle bearing no.KA01EW1435, on purchased date 25.01.2012 onwards, some complaints arise with the said vehicle, as per the Bajaj company owner’s service manual done all the 3 free services and 4 paid services and he informed all the difficulties of vehicle riding, vehicle complaints to the service centre. Soon after purchase of the said vehicle, he noticed many of the problems which are vehicle is not free while riding, front fork heaviness, front fork/wheel/handle wobbling (totally severe handle shivering/shake/vibrate), no control while applying the both front back brake, heavy weight, engine heat within 5 kilometer ride, oil leakage from engine head, mileage drop up to 45 kilometer per liter of petrol (company guaranteed 62 kilometers per liter). Vehicle 1^st free service onwards I explained all the complaints, after servicing some day after repeated the same problems. On the purchased date onwards vehicle back tyre/tube puncher totally more than 8-10 times. When vehicle 2^nd paid service vehicle kilometer reading is 9951 kilometers, after servicing some days vehicle kilometer is 12100 kilometer; he had a self accident while riding, suddenly the back wheel tyre/tube blasted I got his body injuries with this vehicle. So suddenly he changed his vehicle back wheel tyre/tube new cost Rs.2,400/-. After this incident he made complaint to the Bajaj two wheeler companies, regarding his accident, vehicle tyre/tube other complaints and legal forwarding. He send complaint letter through electronic mail/company website complaint forum. Immediately he got a system generated email reply from the company and complaint reference no.CR-137851 and message that, our sales/service team will touch with you shortly. After some days he got so many call from Bajaj show rooms and service centre for better service and problem solving; finally he serviced the vehicle in Khivraj motors, Kasturba road, Bengaluru service centre, paid amount Rs.1,400/- and advised him to change the clutch box is damaged, after servicing same problems facing with the vehicle and service executive not accepting about the vehicle problem and replacement/compensation. Finally senior executive and senior service manager re inspected the vehicle and test drive done and found the problem about the vehicle manufacturing/parts defect (tyre manufactured outside India/China/Taiwan made cheapest quality Maha grip company). As per service engineer, he tried different company tyre and changed front new tyre/tube also cost Rs.2,100/- but also same defects with vehicle. Finally the service centre engineer accepted to take both front and back wheel tyres, and send these tyre to the company for vehicle total fault inspection and given him the special sanction/permission warranty replace/refund acknowledgement dtd.26.11.2014 and vehicle kilometer reading is 14600 kilometer only. It is also the case of the Complainant that his previous old Bajaj two wheeler, wherein he did not find any complaint like the vehicle purchased till 10 to 12 years, so he has decided to purchase the above said new two wheeler, but for his dismay, he noticed many of the manufacturing defects in the said vehicle. In this context, he informed to the Ops but there was no any proper response in respect of replacement of the said vehicle. But anyhow for his repeated request, he called the service engineer who told him to wait for some time for replacement or to refund. Hence he did not like to ride the said vehicle who purchased by exchanging his earlier two wheeler. Hence he prays for awarding the compensation (total vehicle purchase, cost of servicing, parts new purchased and interest).

 

          3. On receipt of the notice, Ops did appear and filed their objections denying the contents of the complaint except purchase of the said vehicle as stated in para 3 of the complaint. The sum and substance of the version of the Ops are that there is no any defect found fault on the said vehicle. The instant complaint filed by the Complainant is only to bring a bad name to the Ops. Further it is stated that it is not the case of the Complainant that these Ops have not provided any service to him. In view of the same, the entire allegations that there is deficiency of service on the part of these Ops have no legs to stand. It is also stated that the Complainant has been in custody of the subject vehicle till the date of filing the version and is able to run the vehicle from the date of sale i.e. on 25.01.2012. So the said vehicle is in a good running condition and it suffers from no manufacturing defect in the same. It is also stated that without making M/s.Kalyani Motors, M/s.VST Auto agency, M/s.HMS sales and service and M/s.Khivraj motors through whom the Complainant says that he has got services done on the subject vehicle, as party to the proceedings, it will not be possible to find out the truth or otherwise of the allegations made by the Complainant. It is also the specific contention that even otherwise, throughout, these Ops are kept in dark about the condition of the vehicle. Neither the Complainant nor any of the service dealers have informed the Ops about the condition of the subject vehicle. Subsequent to the 2^nd Op selling the subject vehicle and doing only the first service on the vehicle, the Complainant has not brought the subject vehicle to the 2^nd Op at all. It is further submitted that on contacting the service dealers, they represented these Ops that no such complaint regarding the alleged defect in the subject vehicle was lodged at any point of time by the Complainant. Further submitted that the present complaint is filed after the one year of free warranty services which is provided for taking care of any after sale operational problems in the vehicle and which is also obviously lapsed when this complaint is filed before this forum. Hence, any complaint filed after warranty period is also not maintainable. Till the expiry of the warranty period, the Complainant had no grievance/complaint about the alleged manufacturing defect in the vehicle.  Hence it has not been opened to the Complainant to make these allegations about the subject vehicle, more so, after the subject vehicle has met with an accident. It is also the contention of the Ops that as per clause 4 of warranty scope and limits in the service manual, if any vehicle meets with an accident at the instance of the customers, all the warranties pertaining to the said vehicle comes to an end and the Ops cannot be held responsible for any future warranty claim. However, on payment, every endeavor will be made to repair the said vehicle. It is also the case of the Ops that the vehicle in question does not suffer from any manufacturing defect. If the vehicle in question is really defective, the same has to be confirmed by an expert as per the provisions of the CP Act, 1986, especially products like 2 wheeler automobiles are concerned, which is basically an assembly of hundreds of complex mechanical and engineering and electrical components or parts as each part or components are easily replaceable without affecting the performance of the said vehicle in any manner whatsoever. Very fact that the Complainant has neither produced any document vouching the alleged defectiveness in the vehicle purchased by the Complainant which, he is now barred from doing so, goes to show that the vehicle does not suffer from any manufacturing defectiveness. It is also the case of the Ops that this forum in order to fix the liability on these Ops should be first satisfied about the alleged defectiveness in the goods or vehicle supplied to the Complainant. Since no concrete materials have been produced by the Complainant, automatically, the complaint should be dismissed.  As per the decision of the Hon’ble National Commission in the case of Voluntary organization & In E.I.D Parry case. Further it is submitted that the subject vehicle comes with 3 free services – first free service – 45days/1000 kms., from the date of purchase, which ever is earlier; second free service – 150 days/6000 kms, from the date of purchase, whichever is earlier; and 3^rd free service – 240 days/11000 kms., from the date of purchase, whichever is earlier. Thereafter it is 4 paid services every 5000 kms. Hence the allegations made are after thought by the Complainant that too after expiry of the one year warranty services, as there is no any deficiency of service on the part of Op.no.1 & 2. Hence, they prays to dismiss the complaint filed by the Complainant.

 

          4. The Complainant to substantiate his case filed his affidavit evidence and got marked the documents Ex-A1 to A9 and close his side. One Sri.P.Suresh, Asst., Manager of the Ops filed his affidavit evidence, none of the documents marked on behalf of Ops. Both parties have filed their written arguments. We heard both side and placed reliance on the available materials on record.

  

5. The points that arise for our consideration are:

1. Whether Complainant proves that there is deficiency of service on the part of Ops, if so whether he entitled for the relief sought for ?
2. What order ?

                   

           

 

6.  Our answers to the above points are as under:

 

Point no.1: In the Negative.

Point no.2: As per the final order for the following

 

REASONS

 

          7. Point no.1: In the forgoing paragraphs, we have already briefly narrated the contents of the complaint filed by the Complainant so also the version filed by the Ops denying the claim of the Complainant. As per the case of the Complainant, in exchange, he has purchased boxer 150 cc two wheeler Bajaj company motor cycle. Accordingly he has taken the deliver on 25.01.2012 under the invoice marked as Ex-A2. It is also the specific case of the Complainant that soon after purchasing the said motor cycle, he noticed many of the defects. As per the warranty, he has exhausted all the 3 free services and also got repaired on payment. This fact is not denied by the Ops. As the said motor cycle having manufacturing defects, hence the Complainant was met with an accident. The fact of accident admitted by the Ops, but denied the manufacturing defect. Now, the question that crops up for our consideration is, is there any deficiency of service on the part of the Op.no.1 & 2. It is an evident that the Complainant never brought the said motor cycle either to the Op.no.1 or 2. Even till today, the said motor cycle is with the Complainant. As per the say of the Ops, the said motor cycle is in running condition even till today and the Complainant is riding it. Further the learned counsel for the Ops, draw our attention to the contents of the purchase invoice of the said motor cycle marked as Ex-A2. The said motor cycle was delivered on 25.01.2012. This fact is also stated by the Complainant in his complaint. Under the said invoice, the very important fact which brought our notice, reads thus:

Boxer 150 CC

Taken delivery in good condition from your showroom at Bengaluru/Mysore

 

Sd/- 25.01.2012

Signature of Customer

 

Referring to the above contents submits that at the time of taking delivery of the said motor cycle, it was in good condition. Hence submits that the contention taken by the Complainant that the said motor cycle having manufacturing defect has no legs to stand. We found there is considerable force in the arguments advanced by the learned counsel for the Complainant, since the contents of Ex-A2 clearly disclose that at the time of taking delivery of the said motor cycle it was in good condition.

 

          8. With regard to the alleged deficiency of service on the part of Ops are concerned, the Ops submit that the Complainant in his complaint never pleaded that the Ops have not provided any service to him. He has got repaired the said vehicle in M/s.Kalyani Motors (it is wrongly typed as Kalyani Motors but finally the said motor cycle was serviced in M/s.Khivraj motors, Kasturba road, Bengaluru). The Complainant has already availed three free services and more over the warranty period is also over which can be seen on going through the contents of Ex-A5. Further there is no any expert report with regard to the manufacturing defect. In this context, the Ops have taken the specific contention in para 13 of their version stating that the vehicle in question does not suffer from any manufacturing defect as alleged by the Complainant. If the vehicle in question is really defective, the same has to be confirmed by an expert as per the provisions of the CP Act, 1986, especially products like 2 wheeler automobiles are concerned, which is basically an assembly of hundreds of complex mechanical and engineering and electrical components or parts as each part or components are easily replaceable without affecting the performance of the said vehicle in any manner whatsoever. In the instant case, the Complainant has not produced any document vouching the alleged defectiveness in the vehicle purchased by him, which goes to show that the vehicle does not suffer from any manufacturing defect as alleged by the Complainant. In this context, further submits that this forum cannot decide the alleged defectiveness in the said motor cycle. In order to fix the liability on the Ops, the forum first satisfied about the alleged defectiveness in the goods or vehicles supplied to the Complainant. Since, there is no concrete materials to come to such conclusion, under such circumstances, complaint filed by the Complainant is liable to be dismissed in the light of the decision rendered by Hon’ble National Commission in the case of Voluntary organization & In E.I.D Parry case. Wherein it was categorically held that whenever any person alleges any manufacturing defect and seeks compensation, the same has to be brought with an expert report or an opinion.

 

          9. In the instance case, there is no any export report or opinion placed by the Complainant to come to the conclusion that there is manufacturing defect in the said motor cycle purchased by the Complainant under the invoice marked as Ex-A2. Hence, we are of the opinion that the Complainant has exhausted all the three free services and also he got repaired the said motor cycle by M/s.Khivraj motors. We are of the opinion that there is no deficiency of service on the part of Ops. Hence, we come to the conclusion that the complaint filed by the Complainant is with an oblique motive as against the Ops.  Accordingly the complaint filed by the Complainant is liable to be dismissed. Hence we answered point no.1 in the negative.

         

10. Point no.2: In view of our findings on point no.1, the Complainant is not entitled for any of the relief sought for. Accordingly we passed the following.

 

ORDER

 

          The complaint filed by the Complainant is hereby dismissed.

 

2. Looking to the circumstances of the case, we directed both the parties to bear their own cost.   

 

          Supply free copy of this order to both the parties. 

 

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the Open Forum on 7^th December of 2017).

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT

                                                                        

1. Witness examined on behalf of the complainant/s by way of affidavit:

 

Sri.Joseph John, who being the complainant was examined. 

 

 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Postal acknowledgement for sending Complaint letter to Op
Ex-A2	Purchase invoice dtd.24.01.12
Ex-A3	Purchase cash receipts
Ex-A4	Vehicle registration receipt and registration documents
Ex-A5	Warranty certificate
Ex-A6	Vehicle servicing bills
Ex-A7	Front & back tyre replacement acknowledgement
Ex-A8	Vehicle parts purchased bills
Ex-A9	Original Owner’s manual boxer warranty certificate

 

2. Witness examined on behalf of the Opposite party/s Respondent/s by way of affidavit:

 

Sri.P.Suresh, who being the Asst. Manager in Op.no.2 company was examined. 

 

Copies of Documents produced on behalf of Opposite party/s

 

-NIL-

 

 

(SURESH.D)   MEMBER

(ROOPA.N.R)     MEMBER

(S.L.PATIL)  PRESIDENT