DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.48 of 22-02-2017

Decided on 16-01-2018

Inderjeet Singh S/o Modan Singh R/o Maur Kalan, Bathinda.

........Complainant

Versus

1.Bajaj Auto Limited, Akurdi, Pune-411035, through its Managing Director/GM/President/Chairman/Director.

2.Jai Baba Bangali Motors Opposite Co-operative Bank, Bus Stand Road, Maur through its Proprietor/Partner/MD/GM.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Smt.Sukhwinder Kaur Member

Present:-

For the complainant: Sh.Naresh Garg, Advocate.

For opposite parties: Sh.Rohit Jain, Advocate.

ORDER

M.P Singh Pahwa, President

1. The complainant Inderjeet. Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Bajaj Auto Limited and Others (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that he required motorcycle. After seeing the advertisement, he went to opposite party No.2, it narrated the good working of the Platina motorcycle, manufactured by opposite party No.1. Opposite party No.2 made tall claim regarding the good performance of Platina motorcycle. It was further told that in case of any defect, it would be rectified or motorcycle would be replaced with new one. Opposite party No.2 is dealer of opposite party No.1. Under the influence of opposite party No.2, the complainant purchased one Platina 100 ES motorcycle of model 2015 for Rs.46,090/-vide invoice dated 28.11.2015 with two years warranty.

3. It is alleged that after one month of delivery of the motorcycle, the complainant found big defect in the gear box as the gears were not properly functioning. On 8.1.2016, the matter was reported to opposite party No.2, it did the service and told the complainant to watch the defect of the gear box while driving for sometime so that the defect may came to the notice again, if any.

4. It is further alleged that the motorcycle was not again running due to the defect in the gear box as it was not rectified. Under forced circumstances, the complainant visited opposite party No.2 on 16.5.2016 and verbally told it many times. Opposite party No.2 called the complainant and its mechanic tried his best to set right the gear system, but he failed and advised the complainant with the promise that his problem would be solved on coming of the service engineer of the company. Thereafter opposite party No.2 did not call the complainant despite many reminders. It everytime delayed the matter intentionally and purposely. The complainant forced opposite party No 2 to give the new motorcycle in place of old. Opposite party No.2 brought the engineer Parminder Singh on 14.10.2016 for checking the motorcycle. The engineer after checking the motorcycle told the complainant that there is manufacturing defect, which would be reported to the higher officials of the company. Again on 13.1.2017, one official of opposite party No.2 i.e. Pardeep Kumar directed the complainant to bring the motorcycle for further checking, but he could not remove the defect.

5. It is also alleged that at the time of service, the cover of clutch plate was damaged, which was replaced with old one by opposite party No.2, but the defect could not be removed. The motorcycle is still lying in the showroom of opposite party No.2. The complainant got issued the legal notice to opposite parties through his counsel on 21.1.2017, but to no response.

   On this backdrop of facts, the complainant has pleaded that he suffered a lot of mental tension. He has claimed compensation to the tune of Rs.30,000/- and cost of litigation to the tune of Rs.2000/- besides replacement of motorcycle with new one or refund of its price with interest 18% per annum. Hence, this complaint.

6. Upon notice, opposite parties appeared through their counsel and contested the complaint by filing their joint written version. In the written version, opposite parties have raised the legal objections that the complaint is misconceived and frivolous. The complainant is not 'consumer' as provided under 'Act'. He is himself at fault. He has not come to this Forum with clean hands and lastly, he has no cause-of-action against opposite parties.

7. On merits, it is admitted that the complainant purchased the motorcycle, but as per opposite parties, the complainant has purchased the vehicle at his own choice, after due verification of its quality and working. The warranty is provided by opposite party No.1 only subject to various conditions, which were supposed to be followed by the complainant in order to avail the warranty. It is denied that there is any defect in the vehicle. All other averments of the complainant are denied.

8. It is further mentioned that the complainant is making false claims. He himself told opposite party No.2 that he does not like the vehicle any more and he wants to change his vehicle and for this purpose, he pressurized opposite party No.2 to take back the vehicle so that he can purchase other vehicle. Opposite party No.2 intimated the complainant that it cannot take back the vehicle once sold nor there is any such scheme or policy of opposite party No.1. Opposite party No.1 advised the complainant to sell the vehicle in the open market, if he so desires. Thereafter the complainant came time and again made false complaints regarding the vehicle. Each time the vehicle was duly checked by the service engineers, but no such defect was found in the vehicle. The complainant has to take back his vehicle after routine service of the vehicle. Finally, in the month of January 2017, the complainant left his vehicle with opposite party No.2 with the complaint of some defect. The service engineer of opposite party No.2 again inspected the vehicle and found no such defect in the vehicle. Since then, the complainant did not come back to take his vehicle. Although, he was duly informed to take back his vehicle, but he refused to take it back and insisted for the return of the vehicle. The vehicle is presently lying with opposite party No.2 in O.K fine condition, but the complainant is deliberately not picking up the vehicle in order to grab some undue benefit from this Forum. All other averments of the complainant are denied. In the end, opposite parties have prayed for dismissal of complaint.

9. Parties were asked to produce the evidence.

10. In support of his claim, the complainant has tendered into evidence his affidavit dated 20.2.2017, (Ex.C1); photocopy of delivery bill, (Ex.C2); photocopy of retail invoice, (Ex.C3); photocopy of vehicle job card receipt, (Ex.C4); photocopy of legal notice alongwith postal receipts, (Ex.C5); printout of photographs, (Ex.C6 and Ex.C7) and thereafter the complainant failed to produce evidence despite repeated adjournments. As such, his evidence was closed by order on 12.7.2017.

11. To rebut the claim of the complainant, opposite parties have tendered into evidence affidavit of Rakesh Kumar dated 22.9.2017, (Ex.OP2/1) and closed the evidence.

12. Both parties have submitted written arguments.

13. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for parties.

14. Learned counsel for complainant has reiterated his stand as taken in the complaint and detailed above. It is further submitted by learned counsel for complainant that the averments of the complainant are supported with his affidavit. It is admitted that the motorcycle is lying with opposite party No.2 since January 2017. Opposite parties have also pleaded that there is no defect, but this Forum can take the judicial notice of the fact that if, there is no defect in the motorcycle, the complainant was having no reason to leave the motorcycle with opposite party No.2 and not to take back. He has also placed on record copy of job sheet receipt, (Ex.C4), which shows that the motorcycle is still lying with opposite party No.2. Opposite party No.2 was to prove that there is no defect in the gear box. There is no evidence by opposite parties except affidavit of Rakesh Kumar. In these circumstances, they have failed to prove that the motorcycle is defect free. In both angles, adverse inference is to be drawn against them. In these circumstances, the complainant is entitled to claim reliefs.

    To support these submissions, learned counsel for complainant has relied upon following case law:-

    i) 2017(2) CPJ 80 NC Malay Kr. Deb Vs. Ford India Pvt. Ltd.;

    ii) 2010 (4) CPJ 56 SC C.N Anantharam Vs. Fiat India Ltd.;

    iii) 2004(3) RCR Civil 176 H.N Shankara Shastry Vs. The Asst. Director of Agriculture, Karnataka;

    iv) 2010(3) CPJ 217 Tata Motors Vs. D.K Kapoor.

15. On the other hand, learned counsel for opposite parties has reiterated his stand as taken in the written version and detailed above. It is further submitted by learned counsel for complainant that the complainant was required to prove defect as alleged. He has purchased the motorcycle on 28.11.2015, but there is job sheet receipt dated 9.1.2017 only. There is no other document to prove that the complainant ever reported referring gear defect or opposite party No.2 was to do any needful. The complainant has not produced any other evidence to prove his case. Therefore, the he is not entitled for any relief.

16. We have given careful consideration to these rival submissions as well as case law cited by learned counsel for complainant.

17. It is not disputed that the complainant purchased one motorcycle from opposite party No.2 on 28.11.2015. He has alleged that there is defect in gear box. He was to prove this fact by affirmative evidence. Now, it is to be seen that whether the complainant is able to prove his case by affirmative evidence or not. The evidence tendered by him and its evidential value is being discussed as under:-

    Ex.C1, is short affidavit. It does not contain the averment as levelled in the complaint. Therefore, this document will not prove the case of the complainant. Ex.C2, is delivery bill and Ex.C3, is invoice. These documents will prove that the complainant purchased the motorcycle on 28.11.2015 from opposite party No.2 and he got the delivery on the same day. These documents will also not prove any defect in the gear box. Ex.C4, is vehicle job card receipt and Ex.C5 and Ex.C6 are photographs of the motorcycle. These documents also will not prove any defect as alleged by the complainant. Ex.C4, simply proves that the complainant approached opposite party No.2 on 9.1.2017 and opposite party No.2 prepared the estimate cost and intimated the estimate delivery date and time. It will also not prove any manufacturing defect in the motorcycle. Therefore, evidence produced by the complainant is not sufficient to prove his case.

18. The complainant has also pleaded that on 8.1.2016, he reported the defect to opposite party No.2 and it did service, but he has also not produced any document to prove any service on 8.1.2016. He has also revealed next visit on 16.5.2016, but again there is no documentary evidence. He has pleaded that on 14.10.2016, opposite party No.2 brought the engineer Parminder Singh for checking. He after checking admitted the manufacturing defect, but there is no documentary evidence to corroborate this version of the complainant. It is also well settled that mere pleadings will not take place of evidence.

19. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost.

20. The complaint could not be decided within the statutory period due to heavy pendency of cases.

21. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    16-01-2018

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member

     

     

    (Sukhwinder Kaur)

    Member