Kerala

StateCommission

A/16/261

ASAD A A - Complainant(s)

Versus

BAJAJ AUTO LTD - Opp.Party(s)

RAVIKRISHNAN N R

27 Jun 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTAHCADU THIRUVANANTHAPURAM

 

APPEAL NUMBER 261/16

JUDGMENT DATED : 27.06.2019

 

(Appeal filed against the order in CC.No.76/2013

 on the file of CDRF, Kollam)

PRESENT

HON’BLE JUSTICE SRI.K.SURENDRA MOHAN               : PRESIDENT

SRI.T.S.P.MOOSATH                                        : JUDICIAL MEMBER

SMT.BEENA KUMARI.A                           : MEMBER

 

APPELLANT

        Asad.A.A, Azad Manzil, Kalavayal, Oyoor, Kollam

 

                        (BY Adv.Sri.Ravikrishnan.N.R)

 

                                        VS

RESPONDENTS

1. Bajaj Auto Limited, Alirdi, Pune – 411 035

 

2. The proprietor, Sarathy Bajaj, Pallimukku, Kollam

 

(R1 & R2 byAdv.Sri.C.S.Rajmohan)

 

 

 

JUDGMENT

SRI.T.S.P.MOOSATH                ; JUDICIAL MEMBER

The complainant in CC.No.76/2013 of the Consumer Disputes Redressal Forum, Kollam, in short, the district forum has filed the appeal against the order passed by the district forum by which the complaint filed by him was dismissed.

 

        2. The averments contained in the complaint are in brief as follows. On 15.10.2010, complainant had purchased a Bajaj Auto 3 Wheel vehicle, RE445 MAX DSL bearing Reg.No.KL 24 C 2352 from the second opposite party, At the time of purchasing the said vehicle, the second opposite party expressed that this vehicle is a newly introduced model and if there is any discomfort/inconvenience, mechanical defect is caused by the use of the vehicle, the first 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 defects rendering the vehicle unworthy of use. Complainant approached the second opposite party and he made the complainant to believe that all the defects will be rectified after effecting the free service. At the 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, the second opposite party has procured huge amounts by way of additional expenses from the complainant. After the completion of third free service 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 second opposite party assured the complainant that the vehicle will be replaced with a brand new one as and when new load of vehicle arrives. In addition to the mandatory service periods, the second 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 second opposite party demanded the complainant to bring the said vehicle to the second opposite party’s show room for replacement with a new vehicle. Accordingly the complainant handed over the vehicle to second opposite party, but so far the second opposite party has not been replaced with the new vehicle. Second opposite party made the complainant to believe that for this purpose all the necessary steps were done by him in consultation with first opposite party. The above said act of first and second 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.

 

        3.     The opposite parties filed version raising the following contentions. The compliant is barred by limitation The auto rickshaw was purchased by Smt.Ancy on 20.09.2010 and after using the same for two years and five months, the complaint is filed. Mover over 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 opposite parties. The Bajaj Auto three wheeler vehicle bearing Reg.No.KL 24C/2352 was not purchased by the above complainant from the second opposite party. The above three wheeler vehicle was purchased by Smt.Ancy.A, AnzadManzil, Kalavayal, Oyoor, Kollam from the second 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 second opposite party. A trail run was also made by the present complainant in the presence of an executive of the second opposite party. The present complainant was satisfied with the vehicle and thereafter Smt.Ancy purchased it from the second opposite party. There is no manufacturing defect to the vehicle delivered to Smt.Ancy. The allegation that in the event of any discomfort, or inconvenience, mechanical defect caused by this vehicle, the second opposite party had agreed to replace the vehicle is false. At the time of the delivery of the above vehicle, the second 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 second opposite party had made the complaint to believe that the defects of the vehicle will be rectified after effecting the free service is also false. The second opposite party never made any such assurance and there is no reason or 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 second opposite party or to any of its service agents at any point of time. The allegation that the second opposite party has procured huge amount by way of additional expenses from the complainant is also false. The second 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 second opposite party the present complainant brought the vehicle to the show room of the second opposite party for replacement of it with a new one is false. The second 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 second 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 first opposite party is also false. The above vehicle was handed over to the second opposite party on 02.05.2012 for service with complaints of clutch and gear and the vehicle was properly and effectively attended by the service engineers of the second 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 turn up to accept the same, after remitting service expenses. Though the second opposite party contacted the complainant as well as Smt.Ancy over telephone  on several occasions for taking back the vehicle from the service centre of the second opposite party, no one turned up to accept the vehicle. Then on 14.06.2012 second 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 turn up to take the vehicle. There is no deficiency in service or unfair trade practice on the part of opposite parties. The complainant is liable to pay compensatory costs to the opposite parties for dragging them into this Hon’ble Forum by filing a false and frivolous complaint.

 

        4.     PW1 and PW2 were examined and Exts. P1 to P8 were marked on the side of the complainant. DW1 & DW2 were examined and Exts.D1 to D9 were marked on the side of the opposite parties. The report and the mahasar prepared and produced by the expert commissioner were marked as Ext.X1, X1(a). Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the complainant has filed the present appeal.

        5.     Heard both sides. Perused the records.

        6.     According to the complainant he purchased a Bajaj Auto three wheeler vehicle from the second opposite party on 15.10.2010 and from the very inception of the use of the vehicle complainant felt that the gear box of the vehicle was having multiple defects which he informed to the second opposite party and second opposite party promised to replace the auto rickshaw with a new one as and when new load of vehicle arrive. It is the case of the complainant that as directed by the second opposite party he produced the vehicle in the show room of the second opposite party 06.02.2012, but so far the second opposite party has not replaced the auto rickshaw with a new one. Alleging deficiency in service and unfair trade practice on the part of the opposite parties the complainant has filed the complaint to direct the opposite parties to replace the auto rickshaw with a new one and to pay compensation and costs to him. According to the opposite parties the complainant purchased the auto rickshaw on 20.09.2010 and not on 15.10.2010. From Ext.P7, the copy of the registration particulars of the vehicle it can be seen that the date of delivery of the vehicle is  15.10.2010.
The   opposite parties denied the allegation of the complainant that he had noticed the defects to the functioning of the gear of the vehicle and it was informed to the second opposite party and the second opposite party agreed to replace the auto rickshaw with a new one. They denied the allegation of the complainant that he has noticed defects to the functioning of the gear of the vehicle and it was informed to the second opposite party and second opposite party agreed to replace the auto rickshaw with a new. They denied the allegation of the complainant that as directed by the second opposite party complainant produced the auto rickshaw before them on 06.02.2012. It is contended by the opposite parties that the claim of the complainant is barred by limitation the complainant purchased the auto rickshaw on 15.10.2010. The warranty was for two years but the complaint was with the claim of the complainant is barred by limitation. In the compliant it is stated that the cause of action for the complainant to file compliant has arisen on 15.10.2010, the day on which the complainant has purchased the vehicle and on 23.02.2013, the day on which the complainant had sent notice to the opposite parties and on subsequent days. The counsel for the appellant submitted that the finding of the district forum that the complaint is barred by limitation is not correct. He relied on the decision of the Hon’ble Supreme Court reported in 2005 (10) SCC 51 wherein it was held that cause of action means every fact, which if traversed would be necessary for plaintiff to prove in order to support his right to a judgment of a court. He also relied on the decision of the Hon’ble Supreme Court reported in AIR 1970 SC 1059 wherein it was held that the cause of action which gives rise to action gives occasion for and forms the foundation to the suit and not a specific date which is pleaded, in the cause of action column, in the complaint. It is submitted by the counsel for the appellant that District forum ought to have calculated the cause of action from the date on which the vehicle was entrusted with the second respondent for replacement due to the manufacturing defect of the same, as per the their, assurance. The submission made by the counsel for the appellant regarding the calculation or determination of the cause of action for the complainant for filing the compliant is correct. But the question to be considered is whether there is evidence in support of the allegation of the complainant that the second opposite party agreed to replace his auto rickshaw with a new one and as directed by the second opposite party, on 06.02.2012 he entrusted the vehicle with them for replacement of the same with new vehicle but so far they have not replaced the vehicle with a new one. If the complainant has succeeded in proving that allegation it has to be considered that the cause of action for the complainant to file. The compliant had arisen on 06.02.2012 and that the claim of the complainant is not barred by limitation, even though in the complaint it is stated that the cause of action for the complaint had arisen on 15.10.2010, the day when he purchased the auto rickshaw and on 23.02.2013, the day when he sent notice to the opposite parties. The opposite parties denied the allegation of the complainant that from the very inception of the use of the auto rickshaw he found that there were defects to the gear box, he informed the matter to the second opposite party and they promised to replace the auto rickshaw with a new one. They also denied the allegation of the complainant that on 06.02.2012 he entrusted the auto rickshaw with the second opposite party as required by the second opposite party on the promise that it will be replaced with a new auto rickshaw, but they failed to do so. It is the case of the opposite parties that on 02.05.2012 the complainant brought the auto rickshaw to the second opposite party to carry out some repairs and those repairs were carried out for an amount of Rs 2943/- and it was informed to the complainant but he did not care to pay the amount and to take the auto rickshaw. As found by the district forum there is no documentary evidence to prove the case of the complainant that he noticed defects to the gear box at the very inception of the use of the auto rickshaw and when he informed the matter to the second opposite party they promised to replace the auto rickshaw with a new one and as required by the second opposite party he entrusted the auto rickshaw with them on 06.02.2012 for replacement the auto rickshaw with a new one. Exts.D1 to D4 shows that some minor repair works were done to the auto rickshaw. Ext.D4 shows that on 04.05.2012 repair works for Rs 2943/- were done to the auto rickshaw. In support of the claim of the complainant that he had entrusted the auto rickshaw with the second opposite party on 06.02.2012 as required by the second opposite party on the assurance of replacement of the auto rickshaw with a new one, he had produced Ext.P1, the copy of the notice sent by him to the second opposite party which is dated 23.02.2013. To that notice the second opposite party had sent Ext.D7 reply notice dated 30.03.2013 denying the allegation of the complainant. Exts.D5 & D6 shows that the second opposite party has sent notice letter Ancy who had paid the amount to the second opposite party asper Ext.P4, stating that the repair works of the auto rickshaw entrusted with them on 02.05.2012 were over and the vehicle was ready for delivery on 04.05.2012 and Rs 2943/- was to be given for those works. As per Ext.P4 the amount for the vehicle was received by the second opposite party from Ancy. PW1 deposed that Ancy is his daughter. More over the address shown in the complainant and Ancy is one and same. So the contention of the complainant that he has not received Ext.D5 notice / letter cannot be believed. In these circumstances on the basis of the oral evidence of PW1 alone it cannot be found that as required by the second opposite party he had entrusted the auto rickshaw with them on 06.02.2012 on the assurance of the second opposite party that it would be replaced with a new one and they have not done as promised. As found by the district forum the complainant failed to prove his claim of entrustment of the vehicle  with the second opposite party on 06.02.2012 for replacement of the same with a new one as directed by the second opposite party. Considering all these facts the district forum found that the claim of the complainant is barred by limitation. We consider that there is no ground to interfere the said finding of the district forum.

 

        7. The case of the complainant is that on 15.10.2010 he purchased the auto rickshaw from the second opposite party and from the very inception of its use he found damages to the gear box of the vehicle and when he intimated to the second opposite party he promised to replace the auto rickshaw with a new one. According to the complainant as directed by the second opposite party he entrusted the auto rickshaw with them on 06.02.2012 for the replacement of the vehicle with a new one, but the second opposite party have not done the same as promised. As stated above, there is absolutely no evidence in support of the said allegations of the complainant. Exts.D1 to D3 shows that some minor repairs were done to the auto rickshaw. In Ext.D4 which is dated on 02.05.2012 the defect noticed is ‘gear tight’ and ‘clutch tight’. It is the case of the second opposite party that the complainant entrusted the vehicle with them on 02.05.2012 to carry out the repairs and the vehicle was ready for delivery after repairs on 04.05.2012. But the complainant was not ready to take back the vehicle. In Ext.D5 letter the second opposite party stated that the repairing works of the vehicle were over by 04.05.2012 and even after repeated reminders to take the vehicle after payment of Rs 2943/-, the bill amount, the complainant did not turn up to take delivery of the vehicle and they requested the complainant to settle the bill amount of Rs 2943/-and to take delivery of the vehicle within five days. As stated above the contention of the complainant that he has not received Ext.D5 letter cannot be believed. From Exts.D4 & D5 it has to considered that the complainant entrusted the vehicle with the second opposite party on 02.05.2012 to carry out some repairs and they have carried out the repairs for Rs 2943/-, but the complainant did not take back the vehicle, even after informed by the second opposite party.

 

        8.     In order to prove that the auto rickshaw was having manufacturing defects the complainant relied on Ext.X1 and X1(a), the Report and mahasar prepared by PW2, the expert. The opposite parties filed objection to the report and mahasar prepared and submitted by the expert commissioner stating that he is not qualified and he is not competent to assess the damages of the vehicle and he has not checked defective parts of the vehicle and his report that there were manufacturing defects to the vehicle is made without any basis. PW2, the expert has not produced any certificate showing his qualification. PW2 deposed that he was conducting Uthradam Auto Care, but he admitted that he has not taken any license for the same. Further on a perusal of the report it can be seen that the report is prepared by him in a careless manner. In Ext.X1 even the date of filing of the report is not mentioned. Ext.X1 is in the form of a mahasar prepared by an ordinary prudent man by seeing a vehicle which was kept in the workshop of OP2. In Ext.X1 it is stated by the expert that there were manufacturing defects to the vehicle, but he has not stated about the nature and type of examination conducted by him. PW2 also has not stated anything about those aspects and he stated that he had driven the vehicle and he found that there were defects to the gear box, machine, clutch and disc of the vehicle. The expert has no case that he had checked / inspected those parts. In Ext.X1 it is stated by the expert that since it was the first demo vehicle, he was satisfied that there were manufacturing defects. In cross examination PW2 deposed that when a vehicle is used for demonstration, a sticker will be pasted on the vehicle, but he has not seen any such sticker on the auto rickshaw inspected by him. It has to be noted that even the complainant has no case that the second opposite party had sold him a vehicle which was used for demonstration and the vehicle given to him was a not new one. On going through Ext.X1, X1 (a) and the deposition given by PW2 it can be seen that no reliance can be placed on the evidence of the expert since his evidence was merely an opinion unsupported by any reasons. So on the basis of Exts.X1, X1(a) and the deposition of the PW2 it cannot be found that the vehicle was having manufacturing defects. Considering all these aspects the district forum found that the complainant failed to prove any deficiency of service or unfair trade practice on the part of the opposite parties and hence the complaint was dismissed. Considering the entire evidence, we are of the opinion that there is no reason / ground to interfere with the finding and the order passed by the district forum. So the appeal is to be dismissed.

                    In the result, the appeal is dismissed.

 

                Parties are directed to suffer their respective costs.

 

JUSTICE.K.SURENDRA MOHAN             : PRESIDENT

 

 

T.S.P.MOOSATH      : JUDICIAL MEMBER

 

 

BEENA KUMARI.A                           : MEMBER

 

       

 

 

 

 

Be/

 

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

 VAZHUTAHCADU

THIRUVANANTHAPURAM

 

APPEAL NUMBER 261/16

JUDGMENT DATED :27.06.2019