CC No.1096/2016                                            Date of filing:09.08.2016

                                                                    Date of Disposal:20.01.2020

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICTCONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS THE  20^TH   DAY OF JANUARY 2020

CONSUMER COMPLAINT No.1096/2016

PRESENT:

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

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

COMPLAINANTS:

Sri. Lakshmikanth Bhat .K

S/o Thrivikram Bhat .K,

34 years, R/at Siri Indus,

Site No.25/2A, Flat No.403,

3^rd floor, Hemavathi water supply

Road, Subramanyapura post,

Uttarahalli, Bengaluru-560061.

(Complainant by Sri.Chandrashekhar Vittal Jadhav, Advocate)          

V/s

OPPOSITE PARTIES:

1. Bajaj Auto Limited,

(Service Department), Registered

Head office at Akrundi, Pune-

411035, India, PH (020)27472851,

27476151, Represented by its

Managing Director, Sri. Rahul Bajaj.

2.  Popular Motor Corporation

(Bajaj Sales), A Bajaj Pulsar Dealer,

Registered head office at No.43/1B,

DRC post, Bannerghatta road,

Opp. Sagar Appollo Hospital,

Branch office and service centre at

No.294, 100 ft. ring road, BSK

560070. Represented by its

Proprietor/Authorized Signatory.

(Opposite party by Sri.R. Ravindra Upadhya, Advocate)

= = = = = = = = = = = =                              

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER //

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Lakshmikanth Bhat .K against Bajaj Auto Limited and another praying for a direction to the opposite parties to pay a sum of Rs.1,56,386.51/- being the price and charges paid for the vehicle together with a sum of Rs.5,00,000/- as compensation towards deficiency of service and another Rs.5,00,000/- for mental agony and also for the cost of litigation.

3. The complainant has purchased Bajaj Pulsar RS 200 ABS motor cycle from the opposite party No.2 manufactured by opposite party No.1 for a sum of Rs.1,54,386/- and took delivery of the same on 28.08.2015.This is inclusive of comprehensive insurance, life time road tax and registration charges.Its model No.00DT04 Chassis No. MD2A55FZXFCE35136, Engine No.JLZCFE29245 bright yellow color.The said motor cycle registered under No.KA05-JN9478 with RTO, Bangalore.It is the case of the complainant that after using the vehicle for some days he experienced the issue of heating near seating area of the said motor cycle and it was given for first free service to opposite party No.2 who did not resolve the issue.It is stated that thereafter the said motor cycle is having following defects;

1. Heating near the seating area.

2. Heating near Thigh, Leg and back area while riding for 30 minutes in traffic.

3. Rear Break making noise (just received the call from services centre that it has gone bad and needs replacement (minimum replacement for an disc break is 10 Kms but this has failed in 4 K Kms.).

4. Vibration and noise in front area of the chassis (Reported for 2^nd time).

5. Front break jams at times (once in a month).

6. Rear shocks are hard.

4. The opposite party No.2 who has assured to resolve the said issue as early as possible has not resolve the issue even up to the date of filing of the complaint, though 2 free services were made, in spite ofcomplaint made to opposite party No.1 and 2.Several e-mail correspondence were also made from 24.03.2016 to 05.06.2016.As per the warranty the vehicle has to be replaced due to the manufacturing defect within a period of 2 years or a run of 30,000 kilometer from the date of sale on fulfilment of condition stipulated in para A, B and C of warranty.The vehicle has so for ran 5221 kilometers as on 13.06.2016.

5. It is the case of the complainant that he registered the complaint with customer care center on 27.09.2015 under query No.174135 and again on 24.03.2016 under query No.178952.One Mr. Giri .M Somankoppa who is the Area Manager met the complainant and had discussion face to face, personally verified the motor cycle and assured the complainant that the issues would be resolved.But it has not been resolved.In spite of all reminders through e-mail there was no response from Mr. Giri .M. Somankoppa nor there was response from opposite party Nos.1 & 2.Thus it is contended that there is acute deficiency in service on the part of the opposite parties and also the vehicle is having a manufacturing defect.Hence, prays for allowing the complaint.

6. There are two opposite parties in this case.After admitting the complaint the notices were ordered to be issued to the opposite parties.The opposite parties have entered appearance and filed their version.In joint version filed by the opposite parties it is contended that the complaint is false, frivolous and vexatious filed only with a malafide intention of harassing the opposite parties and to make wrongful gain.It is submitted that the complaint is not maintainable and required to be dismissed.It is denied that there is defect in the bike and deficiency in service.After completing of manufacturing of any bike or vehicle the company compulsorily check and subject the vehicle to pass through all required tests.No vehicle will go out from factory without getting tested and check with proper certification.Hence,it is contended that there was no defect.Once the vehicle was delivered to the customers after its sale the opposite parties will not have any control or knowledge as to how the vehicle is being used and who are using it and whether it is being maintained properly etc.,.When the complainant alleges that manufacturing defect it is for him to prove through an expert opinion or a report.In this case except bear allegation made in the complaint there is no such report or evidence.Hence, it is contended that the complaint is liable to be dismissed.The complainant has been comfortably riding the said vehicle even now.The vehicle is sold subject to the conditions of having 3 free services.The 1^st service after 45 days or the run of the vehicle for 750 kilometers. 2^nd service 240 days or run of 4500 to 5000 kilometers.3^rd free service 365 days or after the run of vehicle from 9500 to 10000 kilometers from the date of purchase of the vehicle.The very fact that the complainant has been in custody of the vehicle till today and able to run the vehicle shows that the vehicle is in a good condition and does not have any manufacturing defect.The complainant has not produced any documents vouching the alleged defects in the vehicle purchased.It is contended that the complainant is not entitle for any of the reliefs sought.It is contended that even if the job cards produced before the Forum by the complainant are perused it can be said that there is no manufacturing defect in the vehicle whatever the complaints are alleged, they are minor in nature and not fatal nor calls for any refund.Hence, prays for dismissing the complaint.

7. When the case was set down for recording evidence.The complainant has filed his affidavit evidence in which he had refered certain documents which would be refered to in the course of the order.

8. On behalf of the opposite party No.2 one person by name Girish Koushik, the Manager in Popular Motor Corporation (second opposite party) has filed his affidavit evidence.

9. The complainant or the advocate for the complainant have not at all appeared to argue the case.Heard the arguments of the learned counsel for the opposite parties.

(1) Whether the complainant proves that there is manufacturing defect in motor cycle and also that deficiency in service on the part of the opposite party?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

Point No.1:- Partly in affirmative.

Point No.2:- Partly in the affirmative.

          Point No.3:-  As per the final order for the following.

•  
•   This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Lakshmikanth Bhat .K against Bajaj Auto Limited and another  praying  for a direction to the opposite parties to pay a sum of Rs.1,56,386.51/- being the price and charges paid for the vehicle together with a sum of Rs.5,00,000/- as compensation towards deficiency of service  and another Rs.5,00,000/- for mental agony and also for the cost of litigation.

13. The complainant has taken up a contention in this case that the Motor Cycle Bajaj Pulsar Rs.200 ABS described in the complaint manufactured by the 1^st opposite party was purchased by him from the 2^nd opposite party the dealer/service center in good condition.On 28.08.2015 for a sum of Rs.1,54,386/- which includes 1^st year comprehensive insurance, life time road tax and registration charges, smart card and postage charges.When the vehicle was purchased he has taken delivery of the same under good working condition.According to the complainant after using the vehicle, the complainant noticed/felt heating near seating area.The same was brought to the notice of the 2^nd opposite party during first service.But not resolved.The following defects were noticed viz;

1. Heating near the seating area.

2. Heating near Thigh, Leg and back area while riding for 30 minutes in traffic.

3. Rear Break making noise (just received the call from services centre that it has gone bad and needs replacement (minimum replacement for a disc break is 10 Kms but this has failed in 4 K Kms.).

4. Vibration and noise in front area of the chassis (Reported for 2^nd time).

5. Front break jams at times (once in a month).

6. Rear shocks are hard.

Though the above defects were brought to the notice of the opposite party they were not resolved.  Hence according to the complainant these are due to the manufacturing defect.  Hence, the complainant prays for a direction to the opposite parties to pay  the price of Rs.1,56,386.51/- along with compensation and cost of litigation.  The opposite parties have denied any manufacturing defects in the vehicle.

14.  To substantiate the case, the complainant got himself examined by filing his affidavit as evidence.  In the said affidavit filed by way of evidence, the complainant has reproduced all the averments in the complaint.  Since the compliant averments have already been narrated above, there is no need for us to discuss here again about the averments in the affidavit.

15. Similar is the position in respect  of the affidavit filed by Mr. Girish Koushik, Manager of the opposite party No.2 company as filed affidavit as evidence on behalf of opposite parties No.1 and 2.

16. Now, it is needless to say that here is a case where the complainant alleging manufacturing defect in the vehicle purchased seeks to return the same to opposite parties and in return expect the payment of Rs.1,56,386.51/-  back from the opposite parties.  It is needless to say that the burden of proving that the vehicle had manufacturing defect is on the complainant.

17. The undisputed facts of this case are that the 1^st opposite party is the manufacturer and 2^nd opposite party is the dealer of the Bajaj Pulsar vehicle like the  complainant purchased is not in dispute.  It is also not in dispute that the complainant had purchased the motor cycle described in the complaint from 2^nd opposite party for a total price of Rs.1,56,386.51/- on 08.08.2015.  It is also undisputed that the vehicle in question has a warranty for a period of 2 years or run up to 30,000 Kms which ever is earlier.  But it is specifically denied that the vehicle had the defects mentioned in the complaint much less manufacturing defect.  It is contended that while manufacturing the vehicle all care would be taken to ensure quality and all tests would be conducted as per the requirement of law.  Hence, it is contended that there is no defect/manufacturing defects in the vehicle.

18. Another contention taken by the opposite parties is, if really the vehicle had such serious defects as noted in the complaint the complainant would not have used the vehicle at all.  They very fact that the complainant has been using the vehicle even to this day is itself an indication of the fact that the vehicle has no manufacturing defect at all is the contention of the opposite parties.  In the back drop of the above contention and rival contention, it has to be seen whether the complainant has proved that the vehicle has a manufacturing defect and the opposite parties have committed an act of deficiency of service.

19. As already stated above the burden of proving that the vehicle had the defects mentioned in the complaint and they are the manufacturing defects is on the complainant.  This is also another contention taken by the opposite parties in their version.

20. The opposite parties have relied on the decision of the Hon’ble State Commission Uttar Pradesh reported in I(2011) CPJ 461 in Manava Kalyana Prathisthana V/s Raj Rani and others.  In that case the facts are that the complainant purchased Charkhas with the help of Bank loan  from opposite parties.  The complainants contend that there is manufacturing defect in the Charkhas as they could not be operated to their advantage.  Hence, alleged deficiency in service.  But the complainants have not produced any expert report/evidence to substantiate their allegation of manufacturing defects.  It is the held that the burden is on the complainants to prove the allegation of manufacturing defect and as the same is not proved, the complaint  was dismissed.  In that reported order a portion of the para 10 at 463 is relevant that reads as under.

        Once supplied in good condition, subsequent defects which might have developed in the Charkhas will not fasten the appellant with any liability.  Such a defect as has been apprehended by the Panchayat Raj Adhikari in his report might have occurred on account of lack of knowledge or training in operation thereof.  Moreover, daily wear and tear could also be responsible for such defects.  Be that as it may, the fact remains that the complainants who are under an obligation to prove their version failed to bring on record cogent piece of evidence.  It was not the burden of appellant to prove that the Ambar Charkhas supplied to the complainants were of good quality and standard rather it was the other way round.  The primary onus lay upon the complainants to prove their case and only in that event the appellant would have been under an obligation to rebut the complainants’ case of there being some defect in their Charkhas.

       If the above principles are applied to the case on hand, it can be stated that admittedly the complainant has taken delivery  of vehicle from opposite party No.2 in good working condition.  Therefore the above principles apply to this case also.

21. Apart from the above the opposite parties have relied on various decisions also to buttress their contention said above. They are

(1) III (1999) CPJ 566 (NC)

(2) II (1992) CPJ 279 (NC)

(3) III (2014) CPJ 39 (State Commission Chandigarh)

(4) I (2011) CPJ 63 (NC)

(5) I (2022) CPJ 66 (NC)

As the aforesaid decision  almost laydown the same principle that to prove manufacturing defect expert report/evidence has to be produced.

22. If the above principles are applied to the facts of the case, it can be said that in the case on hand except the affidavit evidence of complainant no other evidence, including the evidence of an expert is produced by the complainant.  Though the complainant has produced number of documents such as proforma, invoice, insurance policy, service payment receipts, warranty book, copy of legal notice etc., with a list along with complaint he has not produced any report of an expert to justify his allegation that the vehicle in question had the defects set out in the complainant and that they are manufacturing defects.  Thus the complainant has failed discharge his burden of proving that the vehicle has defects much less manufacturing defect.  In this context it may not be out of place to refer to the decision of the Hon’ble State Commission Haryana reported in III (2015) CPJ 6 (Haryana) wherein at para 8 it is observed that

        More so, the complainant has miserably failed to show that there is manufacturing defect in the car.  It is well settled preposition of law that in the absence of any expert report it cannot be said that there was any mechanical defect.  Reference to this effect can be made to opinion of Hon’ble National Commission expressed in case title Ashok Leyland Ltd., V/s Gopal Sharma, II (2014) CPJ 394 (NC)=2014 (2) CPC 215 and opinion of Hon’ble National Commission in case titled Mr. Anil Mittal Vs/ Skoda Auto India Pvt. Ltd., decided on 18.07.2014.

       In the light of the above, we hold that the complainant failed to prove that the vehicle had defect set out in the complaint which amounts to manufacturing defect that warrants either replacement or repayment of the price by the opposite parties.

23. Further, the next contention taken by the opposite parties also need discussion.  They contend that if really the vehicle had such defect the complainant would not have used it at all.  It was contended that the very fact that the complainant has been using the vehicle even now indicates that there is no such defect at all.

24. This contention taken appears to be true.  This is because nowhere in the complaint or in the affidavit evidence it is stated that the vehicle has rendered itself useless.  It is also not averred that the vehicle is in the garage or workshop.  At the same it is nowhere stated that the complainant has not been using the vehicle at all.  Therefore the presumption is that the complainant has been using the vehicle even now.  Perhaps without any problem.  The reading of the complaint shows that as on the date of complaint 09.08.2016 the (less than a year) the vehicle had run to a distance of 5221 Kms (para 7 of the complaint). So, when the vehicle had run to a distance of 5221 KM within a period of one year it cannot be said that there is manufacturing defect.  It is more so when the complainant has not produced expert report or evidence of an expert to prove the allegation of manufacturing defect.  Had there been any manufacturing defect the two wheeler vehicle would not have run 5221 KM in less than one year at all.  There may be some defects which may be repairable and then curable.  But the complainants have not proved the manufacturing defect. The resultant position is that the complainant failed to prove that the vehicle in question had manufacturing defect which warranty replacement or repayment the price, to that extent the complaint fails.

25. Notwithstanding the above, coming to the aspect of deficiency in service it appears that the complainant has made out a case.

26. It is the case of the complainant that the opposite party No.2 has failed to resolve the issues in spite of repeated requests.  There may not be a manufacturing defect in the vehicle.  But when the vehicle was brought with a complaint of having some issues like heating near the seating area, the body of the rider getting heat at thigh and back leg of portion while riding for a period of 30 minutes in traffic, vibration and noise etc., etc.,.  It is the duty of the opposite party No.2 to render services to the satisfaction of the customer.  It is averred in the complaint at paragraph No.7 page 3 that there was E-mail correspondence between the complainant and the opposite party No.2 from 24.03.2016 to 05.06.2016 about the non-resolution of the above defects complained by the opposite party No.2.  It is not as if these complaints were brought to the notice of the opposite party No.2 out of the warranty period.  The hard copy of the first E-mail communication dated 24.03.2016 sent by the complainant produced by ink page No.31 shows that the complainant has written about the   various issues in the problem.  It is also stated that issues which are mentioned therein were hoped to be resolved during the second service when the vehicle was at a run of 4100 kilometers.  That was not done.  The opposite party No.2 instead had replied to that e-mail on 24.03.2016 by calling for certain particulars which were furnished by the complainant on the same day through e-mail.  All these copies of e-mail have been produced by the complainant.  The e-mail communication dated 31.03.2016 sent by the complainant shows that he has received vehicle from the service center in the morning hoping that the issues have been resolved.  But the issues with regard to front fairy vibration/noise is coming after few kilometers ride which has not been resolved.  So the complainant has requested to refund the amount by saying that no repairs are needed.  This shows the frustration of the complainant  after being fed up with the attitude of the service centre.  In fact 5 reminders were sent till 05.06.2016 but of no avail.  All these e-mail communications are found at document No.6 produced by the complainant.  Not only this the complainant has got a legal notice also issued as per document No.8 dated 14.06.2016 to both the opposite parties.  The track consignment details of the postal department shows that the said notices were served upon the opposite parties.  But the opposite parties have not even bothered to give reply to the complainant.  This shows the adamant attitude of the opposite parties in treating the customers.  The warranty period was still in force as on the above dates.  Therefore it was the duty of the opposite parties to see that all the issues raised by the complainant are properly attended to by rendering good service.  That has not been done.  Not only  that they have  not even bothered to reply to the notice issued by the complainant.  This shows that there is a shortcoming or inadequacy in the performance of  their work  as a service provider.  This amounts to deficiency in service.  Accordingly, we answer point No.1 partly in the affirmative holding that though the complainant has not proved that there was a manufacturing defect in the vehicle, he has proved that there is deficiency in service.

27.   POINT Nos.2 and 3:-   In the light of the discussions made above holding that there is deficiency in service on the part of the opposite parties in not rendering proper service though there is no proof of manufacturing defect, it is necessary to now discuss about the reliefs to which the complainant is entitle too.

28. Since the defects in the vehicle were brought to the notice of the opposite party No.2  the service center during the warranty period  itself, it was their duty to attend to those defects in the proper manner and resolve all the defects in order to make the vehicle 100% functional ensure and hassle free drive in traffic.  But the opposite party No.2 as already stated above has not attended to it.  Therefore  opposite party No.2 is directed to secure the vehicle to the workshop from the complainant and attend to all the defects which are brought to its notice by the complainant and to repair the same by removing all the defect and make the vehicle 100% functional without any defect.  It is also further directed that on being requested by the opposite party No.2 the complainant shall make the vehicle available to the opposite party No.2 within a reasonable time to enable opposite party No.2 carry out the above directions by carrying out repairs.

29. In spite of bringing the above defects to the notice of the opposite parties they have not bothered to set them right.  Despite many e-mail communication and legal notice issued to opposite party No.2 has not taken pains in resolving the issues in the vehicle.  This must have certainly caused lot of mental and physical stress, harassment, inconvenience all resulting in mental agony.   For this the opposite parties are liable to compensate the complainant.  Therefore under this head we award a sum of Rs.25,000/- to be paid by the opposite party to the complainant.

30. This attitude of the opposite party No.2 in not attending to the repairs has driven  the complainant to file this complaint in the year 2016 and has been attending this case till now in order to take the same to a logical end.  Hence, we award a sum of Rs.5,000/- as cost of litigation payable by the opposite parties to the complainant.  Accordingly, we answer point No.2 partly in favour of the complainant and proceed to pass the following final order.

-:ORDER:-

The complaint filed by the complainant Sri. Lakshmikanth Bhat u/s 12 of the Consumer Protection Act is allowed in part as under.  The complaint filed complaining manufacturing defect in the vehicle is dismissed as not pressed.

However the opposite party No.2 is directed to secure the vehicle to the workshop from the complainant and attend to all the defects which are brought it its notice by the complainant and to repair the same by removing all the defects by replacing the spare parts where ever required free of cost and make the vehicle 100% functional without any defect.  The complainant shall make the vehicle available to the opposite party No.2  when requested by opposite party No.2 within a reasonable time to carry out the above directions by effecting all necessary repairs the 1^st opposite party shall ensure that opposite party No.2 carry out the above directions.

     The complainant is also entitle to receive a sum of Rs.25,000/- (Twenty five Thousand)  only  from the opposite parties as compensation towards mental agony undergone by him.

   The complainant is also entitle to receive a sum of Rs.5,000/-  (Five thousand) only  from the opposite parties being the cost of  litigation. 

The opposite party shall comply with the above direction within 30 days from the date of order.

  Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the open Forum on 20^th  day of January 2020)                                            

  (L.Mamatha)                             (D.R. Venkatasudarshan)     

     Member                                                President.  

  //ANNEXURE//

Witness examined for the complainant side:

Sri. Lakshmikanth Bhat .K, who being the complainant has filed his affidavit.

Witness examined on behalf of the Opposite Parties:

Sri. Girish Koushik, Manager in Popular Motor Corporation has filed his affidavit on behalf of opposite party Nos.1 & 2.

List of documents filed by the complainant:

1. Copy of the Pro-Forma invoice No.003773.
2. Copy of the New Vehicle Delivery Note.
3. Copy of the Insurance Policy which is issued by the New India Assurance Co. Ltd.,
4. Copy of the service payment receipt, which is issued by the opposite party No.2 to the complainant.
5. Copy of the service payment receipt, which is issued by the opposite party No.2 to the complainant.
6. Copy of the warranty book, which is issued by opposite party No.1 to the complainant.
7. Copy of the E-mails between the complainant and opposite parties in respect of query of said motor cycle.
8. Copy of the SMS between the opposite parties and complainant in respect of query of motor cycle.
9. Office copy of legal notice dated 14.06.2016 to the opposite party Nos.1 and 2.
10. Original copies of the postal receipt dated 14.06.2016.
11. Computerized copy of served the said notice to opposite party No.2.
12. Computerized copy of served the said notice to opposite party No.1.

List of documents filed by the opposite parties:

• Nil -