Date of filing: 23.02.2015 Date of disposal: 29.12.2016
Complainant: Kazi Asrof Hossain, S/o. Late Kazi Mokbul Hossain, Village: Jamalpur, PO. & PS: Jamalpur, District: Burdwan, PIN – 713 408.
-V E R S U S-
Opposite Party: 1. Bajaj Auto Limited, represented by its General Manager, Pune-Mumbai Road, Akudi, Pune, Maharashtra, PIN – 411 035.
2. Speed Automobiles, represented by its Proprietor (Authorized Servicing Centre for Bajaj Auto Limited) Village & Post Office: Shyamsundar, Police Station: Raina, District: Burdwan, PIN – 713 424.
3. Saluja Automobiles, represented by its Partner Mr. Mahindra Singh Saluja, Saluja Automobiles, G. T. Road, Subhaspally, Police Station & District: Burdwan, PIN – 713 101.
4. Bajaj Finance, represented by Area Legal Manager, Bajaj Finance Ltd. (Bajaj Auto Ltd. Office), Pune-Mumbai Road, Akudi, Maharashtra, PIN – 411 035.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Appeared for the Complainant: Ld. Advocate, Soumalya Das.
Appeared for the Opposite Party No. 1, 2 & 3: Ld. Advocate, Santi Ranjan Hazra.
Appeared for the Opposite Party No. 4: Ld. Advocate, Debdas Rudra.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the OPs as the OPs have neither remove the defects from his motor cycle nor replaced the same with a new defect free one.
The brief fact of the case of the Complainant is that he purchased one Bajaj Discover 100m (Color-Black D Blue 100 CC) bike from the OP-2 through hypothecation system from Bajaj Finance Limited on 28.02.2014 being chasis no-MDZA57AZZERL72562 and engine no-PAZREL78526 and Registration no-WB-42AA-2442. Since its purchase the Complainant has been facing so many problems and the same was duly informed to the service centre dealer during free servicing from time to time. The details of the problems of the said bike are given below:-
- Unexpected bad sound from the engine, (b) unexpected bad harsh sound from rear shock absorber (Hydraulic), (c) head light problem, (d) horn problem, (e) front shock absorber problem, (f) apart from the above there are so many problems which is not possible to complain, & (g) starting problem.
Though the option of getting free servicing has been expired, the OP-2 did not take any step to remove the said defects from the said bike. The Complainant has made written complaint with the OPs on 22.05.2014 and 06.06.2014 and to the financier on 19.06.2014, but no action had been taken by any of the OPs for removal of the trouble and lastly on 07.01.2015 the Complainant had issued letter to the OP-2 stating the entire problem including the accident caused due to non-functioning of the horn. The Complainant being compelled paid a sum of Rs.4, 000=00 for damages caused due to the accident to the victim on 04.11.2014. Upon receipt of the said letter dated 07.01.2015 the OP-2 had denied all the allegations as made out by the Complainant by issuing reply and upon receipt of the said reply the Complainant went to the Speed Automobile for repairing of the rear shock absorber on two occasions, but the service centre had failed to cure the same. The Complainant had repeatedly made complaint to the OP-2 & 3 over phone stating the problem in the bike, but the said OPs did not take any step to inspect the bike for removal of the defects and the said defects are still existing in the bike, which could not be removed. Such inaction on behalf of the OPs denotes that the questioned vehicle is suffering from its manufacturing defects. Thereafter another problem cropped up i.e. the engine becomes stop in its running condition, which is also a manufacturing defect. As inspite of repeated requests the OPs have failed to remove the defects from the vehicle, hence the service of the OPs can be termed as deficiency in service and manufacturing defects are persisting in the vehicle since its purchase. As the OPs have failed to redress his grievance hence having no alternative the Complainant has filed this complaint praying for direction upon the OPs either to replace the defective vehicle with a new defect free one or to refund the amount of Rs.54,950=00 which was paid by him during its purchase along with interest on the said amount @12% p.a. from the date of payment i.e. 28.02.2014 till realization, to pay compensation for Rs.1,00,000=00, litigation cost of Rs.1,00,000=00 and Rs.4,000=00as paid by him to the victim due to accident and damage on 04.11.2014.
The petition of complaint have been contested by the OP-1, 2 & 3 by filing conjoint written version contending that Bajaj Auto Limited happens to be a leading and reputed business house in India and involve in manufacturing and distribution of automobiles business throughout India since more than 50 years. In order to maintain the quality of its product the Company introduced several stage of quality test, before launching any product in the market. The Complainant purchased Bajaj Discover 100 bike. More than one lac bikes of same model have already been sold out in the market and no such complaint is alleged by any purchasers till date. The complainant did not lodge any complaint regarding defects in first two free servicing as alleged in the petition. So it is apparent that the service centre was informed about the defects by the Complainant to the service centre after lapse of long period. Therefore the defects as alleged may be cropped up due to improper maintenance or mishandling of the vehicle. The vehicle was purchased by the Complainant on 28.02.2014 and after continuous and extensive using the same for nearly one year and filed this complaint in 2015. Hence such long use of the vehicle defies that the allegation in respect of the vehicle having any defect is false and concocted. Even now the vehicle is in running condition and the Complainant is enjoying the same, therefore irreparable manufacturing defect has no basis. The allegation of defect is speculative and the same is not backed by any expert opinion. As the Complainant has failed to comply with the Section 13 of the Consumer Protection, hence he is not entitled to get any relief from this complaint as sought for. The OPs have stated that the Speed Automobile consists of expert mechanics, who has solved the problems, which was reported by the Complainant during free servicing and as per the terms no charge was taken from the Complainant for necessary repairing as the vehicle was within the warranty period. Therefore the Complainant is under obligation that all conditions of the warranty clause has been duly complied with by him. On every occasion the Complainant took the vehicle from the service centre being fully satisfied with the servicing conducted by the centre. These OPs have no liability regarding the accident as alleged due to non-functioning of horn and payment of Rs.4,000=00 to the victim because driving of any vehicle on the busy public road without horn is tantamount to contributory negligence on the part of the Complainant for which the OPs cannot be held liable. The OPs have submitted that once the vehicle is taken delivery after purchase of the vehicle by the Complainant the OPs do not have any control or knowledge as to how the vehicle is used, who are the riders how it is maintained or whether all the tips mentioned in the booklet known as ‘Owners’ Manual’ are followed for efficient performance of the vehicle. These are some of the vital questions on which there is no evidence and in absence of the same and based only on the wild allegations of the Complainant no adverse order should be passed. The OPs have accordingly prayed for dismissal of the complaint with cost.
The petition of complaint has been contested by the OP-4 by filing written version contending that being financier it has no liability in connection with persisting of any inherent manufacturing defect in the vehicle because from the OP-4 the Complainant did not purchase the vehicle, rather at the time of its purchase he took financial assistance from this OP. Moreover within the four corners of the complaint no allegations has been whispered by the Complainant and no relief sought for from this OP, so this OP has been made a party in this complaint unnecessarily. Therefore according to the OP-4 the complaint should be dismissed with cost against this OP.
The Complainant has adduced evidence on affidavit along with some documents. The OPs-1, 2 & 3 by filing a petition on 04.08.2015 have prayed for adopt their written version as their evidence on affidavit and on the same day the OP-4 also made same prayer by filing a separate petition and accordingly two petitions were allowed mentioning that the written version filed by the OPs-1, 2&3 is treated as evidence of the OPs-1-3 and the written version filed by the OP-4 is treated as evidence of the OP-4. The OPs-1, 2&3 has put some questionnaire challenging the evidence filed by the Complainant and the Complainant filed replies on affidavit. The Complainant put some questionnaire challenging the evidence filed by the OPs-1-3 and the said OPs have filed replies on affidavit. The Complainant has filed a petition praying for appointment of an expert and accordingly the said prayer was allowed by the Ld. Forum and Mr. Tanmoy Roy Chowdhury, an Automobile expert was appointed, before whom some questions was put by the Complainant and the Ld. Expert has given the replies of the same accordingly. From the reply it is evident that he has opined that-
‘No extra bad sound from the engine, rear shock absorber is suffering from bad harsh sound, there is no manufacturing problem in the head light, horn problem is there, no extra problem in the front shock absorber and starting problem is there (CDI problem).’
The OPs-1, 2 & 3 has submitted written notes of argument.
The report of the Ld. Expert has been challenged by the OPs-1, 2&3 by putting some questionnaire and the Ld. Expert has replied the same.
It is evident from the expert opinion that the Ld. Expert has opined that there are problems in the rear shock absorber, horn and starting (CDI).
In respect of the Q-1 of the OPs-1,2&3 (Have you find any manufacturing defect in rear shock absorber? What is the reason behind the harsh sound from rear shock absorber? Whether can it be cure by good service?) the Ld. Expert has replied that ‘as observed, there are manufacturing defects in rear shock absorber. There may be different reason behind it. It is not possible to say without dismantling, which is not my part. My opinion, it should be replaced. In respect of this reply we are of the opinion that as it is replied by the ld. Expert that until and unless the vehicle is dismantling it cannot be said that due to what reason the rear shock absorber is suffering from its manufacturing defect and it cannot be repaired and should be replaced. So admittedly where the vehicle was not dismantled by the Ld. Expert how he came to the conclusion that the rear shock absorber of the questioned vehicle is suffering from manufacturing defect and until and unless the nature of defect cannot be ascertained it is hardly to say that it seeks replacement and being beyond repair. Therefore the answer in respect of the question no-1 given by the Ld. Expert is not at all conclusive. The Ld. Expert has answered in respect of the question no-2 that the problem of the horn of the said vehicle is not manufacturing defect and it can be repaired. In connection with the question no-3 (What is the CDI problem?) the Ld. Expert has replied that ‘CDI is the electrical part of engine which helps to start the engine by supplying power. Different defects may be developed.’ Regarding the reply of the Ld. Expert in respect of the Question no-3 put by the OPs we are of the view that the Owner’s Manual (page-33) reveals that warranty is not applicable for replacement of electrical items. Though the Ld. Expert has opined that due to defect of CDI different defects may be developed, but names of such defects has not been mentioned by him, so due answer is not forthcoming from the Ld. Expert. In respect of question no-4 of the OPs the Ld. Expert has opined that due to CDI problem the engine may stop as and when during driving or start the bike. Regarding the answer of the question no-4 we are to say as the CDI being electrical items, warranty is not applicable for replacement of electrical items; hence the Complainant cannot be benefitted by any reply/opinion of the Ld. Expert. The OPs have put the question no-5 (whether CDI problem is cause due to manufacturing defect in engine component? Does it can be cure by good service?), the Ld. Expert has replied that ‘No, it is not, CDI is self problem, due to its problem, failed to supply power to start or stop engine any time. It is not repairable, should be replaced.’ Our observation in respect of this reply is similar to the reply no-4 and in addition we are to say that the Ld. Expert has admitted that the CDI problem is not a manufacturing defect. Either repair or replacement of the CDI the Complainant is under obligation to bear the cost and in view of the warranty clause the OPs cannot be held liable.
Therefore it is ascertained from the Expert’s opinion that the problem in the horn of the questioned vehicle is repairable.
Therefore in our view the Complainant has failed to prove that the questioned vehicle is suffering from its manufacturing defects by adducing cogent documents and evidence in support of his contention. So he is not entitled to get replaced of his vehicle with a new defect free one or refund of the price of the vehicle paid by him as prayed for. As the Complainant has also failed to prove any deficiency in service as well as unfair trade practice against the OPs, hence he is not at all entitled to get any amount as compensation and litigation cost as sought for.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is dismissed on contest without any cost against the OP-4. The complaint is allowed in part on contest without any cost against the OP-1, 2 and 3. The OP-1, 2 & 3 are directed either jointly or severally to repair the horn of the questioned vehicle as and when it will be produced before the OPs only on one occasion. With the abovementioned observation the complaint is thus disposed of accordingly.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
