IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOLLAM
DATED THIS THE 22ND DAY OF MARCH 2016
Present: - Smt. G.Vasanthakumari, President
Adv. Ravisusha, Member
Adv.M.Praveen Kumar, Member
CC.No.76/2013
Azad.A.A : Complainant
Azad Manzil
Kalavayal
Oyoor
Kollam
[By Adv.Anoob.K.Basheer, Kollam]
V/S
1. Bajaj Auto Ltd : Opposite parties
Alirdi.Pune -411035
India
2. Proprietor
Sarathy Bajaj
Pallimukku
Kollam
[By Adv. Adarsh.S, Kollam]
ORDER
ADV. RAVISUSHA, MEMBER
Complainant’s case is that on 15/10/2010, complainant had purchased a Bajaj Auto 3 wheel vehicle, RE445 MAX DSL bearing registration No.KL 24 C 2352 from 2nd opposite party. At the time of purchasing the said vehicle, 2nd opposite party expressed that since this vehicle is a newly introduced model and if there is any discomfort/inconvenience, mechanical defect caused by this vehicle, the 1st opposite party will replace the same. Based on this assurance the complainant took the delivery of the vehicle. From the inception of its use, the complainant felt that the gear box of the vehicle was having multiple defect rendering the vehicle unworthy of use. Complainant approached 2nd opposite party. At that time running condition, fuel efficiency of the vehicle was very poor and underperforming which is against the assurance guaranteed by both opposite parties. Even during the period of free services, 2nd opposite party has procured
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huge amount by way of additional expenses from the complainant. After the completion of 3rd free services the running and engine condition of the said vehicle was same as it was before the service. After noticing the defects of the vehicle especially the defects of gear box, the 2nd opposite party assured to the complainant that the vehicle will be replaced with a brand new one as and when new load of vehicles arrives. In addition to the mandatory services periods, the 2nd opposite party attended and made some temporary repairs to the said vehicle. It is crystal clear the said vehicle is having manufacturing defects.
On 06/02/2012 the 2nd opposite party demanded the complainant to bring the said vehicle to the 2nd opposite party’s showroom for replacement with a new vehicle. Accordingly the complainant handed over the vehicle to 2nd opposite party, but so far 2nd opposite party has not been replaced with the new vehicle. 2nd opposite party made the complainant to believe that for this purpose all the necessary steps were done by him in consultation with 1st opposite party. The above said act of 1st and 2nd opposite parties amounts to unfair trade practice and deficiency in service. The cause of action for this complainant has arisen on 15/10/2010 the day on which the complainant had purchased the said vehicle, and on 23/02/2013 the day on which the notice was sent to the opposite parties. Hence filed this complaint.
Opposite parties filed version contending that the complaint is barred by limitation. The auto rickshaw was purchased by Smt.Ancy on 20/09/2010 and extensively using the same for 2 years and 5 months, this complaint is filed. Moreover the opposite parties provided two years free warranty service to the vehicle purchased by Smt.Ancy. In addition to that the mechanical defect of the auto rickshaw alleged is not correct. The above complainant is not a customer of the above opposite parties. The Bajaj auto 3 wheeler vehicle bearing Reg.No.KL24C/2352 was not purchased by the above complainant from the 2nd opposite party. The above 3 wheeler vehicle was purchased by Smt.Ancy.A, Anzad Manzil, Kalavayal, Oyoor, Kollam, from the 2nd opposite party on 20/09/2010 and not on 15/10/2010 as alleged.
The vehicle was purchased by Smt.Ancy after the pre delivery check –up made by the 2nd opposite party. A trail run was also made by the present complainant in the presence of an executive of the 2nd opposite party. The present complainant was satisfied with the vehicle and thereafter Smt.Ancy purchased it from the 2nd opposite party. There is no manufacturing defect to the vehicle delivered to Smt.Ancy. The allegation that in the event of any discomfort,
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inconvenience, mechanical defect caused by this vehicle, the 2nd opposite party had agreed to replace the vehicle is false. At the time of purchase of the above vehicle, the 2nd opposite party never made any assurance of replacement of the vehicle in the event of any mechanical defect or discomfort or inconvenience caused by the vehicle. The allegation that from the inception of its use, the gear box of the vehicle was having multiple defects and same is rendering the vehicle unworthy use is absolutely false. The customer or the present complainant never made any such complaint before the dealer as alleged above. Allegation that the 2nd opposite party had made the complainant to believe that the defects of the vehicle rectified after effecting the free service is also false. The 2nd opposite party never made any such assurance and there is no reason of occasion for the same. Allegation that the running conditions and fuel efficiency of the vehicle sold to Smt.Ancy is very poor is also false. Regarding the lesser fuel efficiency as well as the weak performance of the vehicle, nothing was complained or noticed by the complainant or Smt.Ancy to the 2nd opposite party or to any of its service agents at any point of time. The allegation that the 2nd opposite party has procured huge amount by way of additional expenses from the complainant is also false. The 2nd opposite party never committed any violation to the service condition described in the manual. Allegation that even after completion of free services, the defects of the vehicle were not cured is also false. Allegation that the vehicle sold to Smt.Ancy is having manufacturing defects is absolutely false. Allegation that on 06/02/2012 as per the demand of the 2nd opposite party the present complainant bring the vehicle to the show room of the 2nd opposite party for replacement of it with a new one is false. The 2nd opposite party never directed the complainant or the owner of the vehicle to produce it for replacement on 06/02/2012 or any other date. The allegation that the 2nd opposite party made the complainant to believe that for the purpose of replacement of the vehicle all necessary steps were done by them in consultation with the 1st opposite party is also false. The above vehicle was handed over to the 2nd opposite party on 02/05/2012 for service with complaints at clutch and gear and the vehicle was properly and effectively attended by the service engineers of 2nd opposite party. The vehicle was ready for delivery after service on 04/05/2012. The service bill amount was Rs.2,943/-. Even though the vehicle was ready for delivery after service, the complainant or its owner did not turned up to accept the same, after remitting service expenses. Though the 2nd opposite party contacted the complainant as well as Smt.Ancy over telephone on several
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occasions for taking back the vehicle from the service centre of the 2nd opposite party, but no one turned up to accept the vehicle. Then on 14/06/2012 2nd opposite party was forced to issue a registered notice for settling the service bill of the vehicle as well as for the delivery of the serviced vehicle. The above registered notice was accepted by Smt.Ancy, but she did not turned up as requested by the 2nd opposite party. No delay was caused by them in servicing the above vehicle. There is no deficiency in service or unfair trade practice on the part of opposite parties. The complainant is liable to pay compensatory cost to the opposite parties for dragging them into this Hon’ble Forum by filing a false and frivolous complaint.
Points :- (1). Whether the complaint is barred by limitation?
(2). Whether the vehicle has any manufacturing defect?
(3).Whether there is any deficiency in service or unfair trade practice on the part of opposite parties?
(4). Reliefs and cost?
The complainant’s case is that he purchased a Bajaj Auto 3 wheeler vehicle from 2nd opposite party and at the time of purchase the 2nd opposite party expressed that since this vehicle is a newly introduced model, if there is any manufacturing defect caused to the vehicle, the 1st opposite party will replace the same. From the very beginning the gear box of the vehicle was having multiple defect. The complainant approached 2nd opposite party. Then the 2nd opposite party made the complainant to believe that all the defects will be rectified after effecting the free services. From the beginning itself the running condition, fuel efficiency of the vehicle was very poor. Moreover the 2nd opposite party has charged huge amount by way of additional expenses. After noticing the gear box defects, the 2nd opposite party agreed to replace the vehicle. Thus on 06/02/2012 the complainant brought the vehicle to 2nd opposite party but so far they have not replaced the vehicle with a new one. Hence this complaint.
Opposite parties main contentions are that the compliant is barred by limitation. Further the vehicle is having no manufacturing defect and there is no deficiency in service or unfair trade practice on their part.
Evidence in this case consists of the oral testimony of PW1 and PW2 on the complainants side and DWs 1 and 2 from the opposite parties side and documentary evidence of
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Ext.P1 to P8 series and Exts X1 and X1(a) from the complainant,s side and Exts D1 to D9 from the opposite party.
According to the opposite party the complainant purchased the vehicle on 20/09/2010 and after using the vehicle for 2 years and 5 months, filed this case. Opposite parties contention is that after the expiry of warranty period it is not the duty of the manufacturer to replace the vehicle or its parts. Hence the complaint is barred by limitation.
Here the complainants allegation is that from the very beginning of the vehicle’s use , he felt the gear box was having multiple defect and immediately informed the 2nd opposite party and even after completion of the free services, the running and engine condition and the gear box’s condition was defective and on 06/02/2012 the complainant brought the vehicle to the 2nd opposite party’s showroom on the assurance from 2nd opposite party to replace the vehicle. According to the complainant delay was due to the assurance given by the 2nd opposite party to get the vehicle replaced, but surprisingly no letter has been particularly indicated inorder much less within the limitation. Here the opposite parties provided two years free warranty service to the vehicle. According to the complainant’s date of purchase, the warranty period expired on 15/10/2012. This case filed only on 30/11/2013 (after the warranty period) alleging manufacturing defect of the vehicle.
The counsel appearing for the opposite party produced two decisions. Once is M/s Kerala Agro machinery Corporation Ltd V/s Bijoy Kumar Roy and others decided by The Hon’ble Supreme Court. In which the Hon’ble Supreme Court held that when a claim has been made or filed beyond the period of limitation, has no relevancy and there is no relevancy in proceedings the complaint.
Here the complainant is claiming defects from the inception of its use. But the claim has been filed beyond 2 years after the defects were pointed out. Here the complainant failed to produce any letter, indicating the defects, given to the opposite parties. Another decision produced is M/s Surya Agroils Vs M/s Allied Motors Ltd and others. In which the Hon’ble State Commission, Delhi held that when the complaint itself is made after the period of warranty, there was no question of any performance of service by the appellant.
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Considering the above two decisions, we agree with the submissions made on behalf of the opposite parties that the claim of the complainant is barred by limitation. The 1st point is found accordingly.
2nd point to be decided is that whether there is any manufacturing defect on the vehicle?.
The only evidence before us is Ext.X1, X1(a) the report prepared by PW2 (expert). PW2 not produced his qualifying certificate or his license for conducting Uthradam Auto care institution for establishing as an expert. More over a perusal of his report we can see that the report is prepared very carelessly especially Ext.X1 (a). Even though as per the expert opinion there is a manufacturing defect on the vehicle, since the case is not filed within the warranty period, this case does not exist.
On perusal of Ext.P4.Invoice bill dated 01/07/2011, Ext.D2 (job card dated 21/02/2012) Ext.D3 (Job card dated 05/04/2012) and Ext.D4 (Job card dated 02/05/2012) reveals that except Ext.D4, the complainant never raised complaint to gear box. In Ext.D4 the repairing expense is only Rs.2423. So we cannot find out defect in gear box before the date of Ext.D4 .
The complainants case is that on 06/02/2012 the 2nd opposite party demanded the complainant to bring the vehicle to the 2nd opposite party’s show room for replacement with a new vehicle. But for proving this pleading, there is no documentary evidence before us. Opposite party 2 produced Ext.D2, D3 and D4 job cards. Ext.D2 dated 21/02/12 the defect noted is Speedo meter not working and estimated cost mentioned is Rs.100/-. In Ext D3 the job card there is no serious defect is noted. In Ext.D4 dated 02/05/2012 the defect noted is gear tight and clutch tight. Opposite party’s contention is that the vehicle was ready for delivery after service but the complainant was not ready to take back the vehicle. Hence issued Ext.D5 letter .Ext.D5 letter is sent within the warranty period. Ext.D5 was issued in the name of Anzy. In Ext.P4 the amount for the vehicle received from Anzy, PW1 deposed that Anczy is the daughter of the complainant. Moreover the address shown for the complainant and Anzy is one and the same. So the pleading of the complainant that Ext.D5 notice never received by the complainant cannot be believed. Ext.D5 issued within the warranty period. The complainant could have sent reply to Ext.D5 demanding replacement of the vehicle. Moreover from the evidence of PW1 we can see that the auto rickshaw (the public carrier vehicle) was driven by another person. Then the complainant does not become a consumer.
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On considering the entire evidence, we are of the view that there is no deficiency in service or unfair trade practice on the part of the opposite parties.
In the result, the complaint fails and hence the same is dismissed but without cost.
Dated this the 22nd day of March 2016.
G.VASANTHAKUMARI:Sd/-
ADV.RAVISUSHA: Sd/-
ADV.M.PRAVEENKUMAR: Sd/-
Forwarded/by Order
Senior Superintendent
I N D E X
PW.1:-Azad.A.A
PW.2:-Ratheesh R
DW.1:- Dileep .S
DW.2:- Manoj
Ext.P.1:-Advocate notice
Ext.P.2:-Postal receipts dated 23/02/2013
Ext.P.3:-Acknowledgement card
Ext.P.4:-Invoice bill
Ext.P.5:-Insurance premium
Ext.P.6:-Permit copy
Ext.P.7:- Copy of R.C book
Ext.P.8:-Service bill of opposite party 2
Ext.D.1:-Authorization letter
Ext.D.2:- Job card dated 21/02/2012
Ext.D.3:- Job card dated 05/04/2012
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Ext.D.4:- Job card dated 02/05/2012
Ext.D.5:-Letter issued by opposite party 2 dated 14/06/2012
Ext.D.6:-Postal receipt 14/06/2012
Ext.D.7:-Reply notice dated 30/03/2013
Ext.D.8:-Postal receipt dated 01/04/2013
Ext.D.9:-Postal acknowledgement card dated 02/04/2013
X.1:-Expert report
