Delhi

West Delhi

CC/10/316

Sandeeep khorana - Complainant(s)

Versus

Bajaj auto ltd - Opp.Party(s)

11 Aug 2017

ORDER

CONSUMER DISPUTES REDRESSAL FORUM (WEST)

GOVERNMENT OF NCT OF DELHI

150-151 Community Centre, C-Block , Janak Puri, New Delhi – 110058

Date of institution: 05.05.2010

Complaint Case. No.316/10 Date of order:11.08.2017

IN MATTER OF

Sandeep Khorana S/o Sh. I.S. Khorana R/o 149 Rashi Apartments, Plot No.3 , Sector -7 , Dwarka, New Delhi-1100 75. Complainant

VERSUS

1. M/s Bajaj Auto Limited, Akurdi, Pune-411035.

Opposite party no.1

2. M/s Royal Automobiles authorized Dealer of Bajaj Auto Limited through its proprietor Rohtak Road , Peeragarhi, New Delhi.

Opposite party no.2

3. M/s Yadav Scooters and Service Station, RZ-L-1, Main Road, Mahavir Enclave, New Delhi.

Opposite party no.3

ORDER

R.S. BAGRI,PRESIDENT

Shri Sandeep Khorana named above here in the complainant has filed the present consumer complaint under section 12 of the Consumer Protection

Act herein after in short referred as the Act against M/s Bajaj Auto Limited and others herein after in short referred as the opposite parties for directions to the opposite parties to replace motorcycle bearing registration no. DL-4-SBK-7276 with a new motorcycle and in alternative refund of Rs. 62,032/- cost of the motorcycle with interest @ 24% p.a. from the date of purchase of the motorcycle , pay Rs. 2,00,000/- as compensation for mental pain , agony and damages suffered by the complainant and legal expenses.

Briefly case of the complainant is that he purchased a motorcycle ebony black color Bajaj Pulsar 180CC UG-III bearing chasis no. MD2DHDJZZRCA25068 , engine no. DJGBRA32538 and registration no. DL-4-SBK-7276 hereinafter referred as “the bike” from M/s Royal Automobiles the opposite party no. 2 manufactured by the opposite party no. 1 vide invoice no. 18950 dated 07.05.2008. The complainant soon after purchase of the of the bike found that performance and comfort of the bike was not to the level as claimed by the opposite parties no. 1 and 2. Shockers were not functioning properly and once engine warmed up an unusual sound started coming from the engine of the bike. RPM meter of the bike was also not accurate. The bike had great deal of vibration and pick up and average of the bike was low. The complainant took the bike at service station of the opposite party no. 2 at Peeragarhi , New Delhi. The bike was mechanically

Inspected The above problems were admitted except defect of front shockers. The opposite party no. 2 after mechanical inspection of the bike advised the complainant to use the bike in same condition and assured the complainant that the bike would start performing. The complainant half-heartedly brought the bike in the same condition.

That the complainant approached M/s Yadav Scooters and service station the opposite party no. 3. They inspected the bike and admitted all the above mentioned problems but replied in the tune of the opposite party no. 2. The opposite party no. 3 asked the complainant to visit its service station for first service of the bike and also assured that all the problems would be completely rectified. The complainant took the bike to the opposite party no. 3 for the first service. The opposite party no. 3 again replied in the same tone and assured that the problems shall be rectified once the first service is done. When the complainant was taking test drive after first service found job done by the opposite party no. 3 was not satisfactory. The complainant pointed out the defects to the opposite party no. 3. Who assured that after running the bike for another 150 kms the bike would start performing .

That even after running the bike for about 200 kms performance of the bike did not improve and unusual sound of the engine of the bike

became more prominent. Even pick up as well as average of the bike deteriorated. Therefore, the complainant visited the opposite party no. 3 several times for rectification of the defects of the bike but the opposite party no. 3 failed. The opposite party no. 3 on repeated requests of the complainant made few attempts to rectify the front shockers but there was no improvement . Therefore, the complainant requested for replacement of the shockers. But the opposite party no. 3 did not bother.

That in July 2008 the complainant approached area service manager of the opposite party no. 1 and informed him of the problems faced by him. On his intervention the opposite party no. 3 replaced front shockers of the bike in August 2008. The problems of unusual sound from engine performance, pick up and average etc. persisted. When the opposite party no. 3 failed to rectify the defects the complainant approached other authorized service centers of the opposite party no. 1 namely M/s Suri Automobiles, Virender Nagar, New Delhi and M/s Dewan Motors, Mahvair Enclave, New Delhi. They refused to repair the bike on the pretext that as the bike was serviced and repaired by the opposite party no.3 since beginning, therefore, it is responsibility of the opposite party no.3 to correct and repair the bike. Therefore, the complainant again approached area sales manager of the opposite party no. 1 in November 2008. Who advised the complainant to get the bike repaired from M/s Deewan Motors authorized service center of the opposite party no. 1. But even after several attempts M/s Deewan Motors also failed to rectify the defects of the bike and eventually refused to attend bike on the ground that the defects are irreparable. During attempts to rectify the defects M/s Deewan Motors, Nawada, New Delhi changed several parts of the bike like crank, scissor-gear, clutch plate and time chain etc. at expenses of the complainant. The complainant having no other option again approached the opposite party no. 3 . Who changed piston kit/ block. The complainant after facing so many problems in the bike asked area manager of the opposite party no. 1 for replacement of the bike. But he refused.

That on 09.04.2009 the complainant made complaint at customer service of the opposite party no. 1. On 14.04.2009 he received call from the customer service of the opposite party no. 1. Who asked the complainant to take the bike to M/s Deewan Motors, Mahavir Enclave, New Delhi. The complainant received an e-mail from the customer care even before getting the bike inspected stating as under :-

“ This is with reference to your request registered as Customer Reference Number is CR-6889. We understand your issue is resolved and hope you are happy with our service . For any further assistance please call us at 18002332453 (Toll Free) or send an email at Assuring you the best service at all times”

That the complainant on 01.05.2009 again approached area service manager of the opposite party no. 1 who directed the complainant to take the bike at M/s Deewan Motors, Mahavir Enclave. The complainant got the bike inspected at M/s Deewan Motors. They also admitted the defects. They replaced some parts on his expenses. But showed their inability to repair the bike. The complainant in mid June 2009 again visited the area service manager of the opposite party no. 1 who asked the complainant to get the bike inspected at M/s Bagga Link Service, Karol Bagh, New Delhi. They admitted the problems. But despite several attempts showed inability to rectify the problems. Thereafter the complainant took the bike at regional office of the opposite party no. 1 and approached the area service manager and requested him to inspect the bike. He along with other official inspected the bike. They both admitted the defects. They advised the complainant to sell the defective bike and purchase a new one. Therefore, the complainant got evaluation of the bike from an authorized dealer of the opposite party no. 1 . Who offered less than 1/3^rd of actual cost of the bike. The complainant on 09.07.2009 again send e-mail to the chairman of the opposite party no. 1 with a copy to the customer care of the defects of the bike with request to replace the bike. But to no effect. There is manufacturing defect in the motorcycle. Therefore, the complainant on 18.11.2009 send legal notice to all the opposite parties. The opposite parties gave evasive reply. Hence the present complaint for directions to the opposite parties to replace motorcycle bearing registration no. DL-4-SBK-7276 with a new motorcycle and in alternative refund of Rs. 62,032/- cost of motorcycle with interest @ 24% p.a. from the date of purchase of the motorcycle , pay Rs. 2,00,000/- as compensation for mental pain , agony and damages suffered by the complainant and legal expenses.

After notice the opposite parties no. 1 and 3 filed joint reply admitting that the complainant purchased the bike on 07.05.2008 and asserted that the complaint is filed on 03.05.2010 after lapse of a period of about two years. This fact is sufficient to falsify the allegation of the complaint that the bike is giving problem from the very beginning and has manufacturing defect and had it been so the bike would not have run so far and so long. Whenever the bike of the complainant was received for any service the same was effected to the full satisfaction of the complainant. The complainant has not come to the Forum with clean hands. The opposite parties no. 1 and 3 during services observed that even the minor problems arose only because the complainant has not maintained and used the bike properly. The complainant has failed to submit any expert report or opinion to show manufacturing defect as required under section 13 of the Act. Even then the opposite parties are ready to rectify minor problems as a goodwill gesture. It is further asserted that once the vehicle is taken delivery by the complainant the opposite parties had no control or knowledge as to how the bike was used and whether the tips given in the owners manual were followed or not by the complainant. The opposite parties denied all other allegations of the complaint and prayed for dismissal of the complaint.

The opposite party no. 2 also filed separate reply while contesting the complaint that the bike was brought at workshop of the opposite party no. 2 only on 27.06.2008 for miscellaneous repairs and bike had traversed a distance of 4345 k.ms. within a period of 50 days about 90 k.ms. per day. Thereby signifying that the bike had been extensively driven and had there been any manufacturing defect in the bike the same would not have been so extensively driven in a short period of less than two months. The complainant has failed to show that he availed first four services within stipulated period within 500-750 k.ms. or 30-45 days, within 2000-2500 k.ms. or 240 days, within 4500-5000 k.ms. or 240 days 7000-7500 k.ms. or 240 days whichever is earlier and thereafter on every 2500 k.ms. or 75 days whichever is earlier. The complainant has also failed to give details of date, month and year of bringing the bike for repair at the workshop and produce job card. Which is sufficient to discard version of the complainant. It is asserted that there is no inherent manufacturing defect in the bike . All other allegations of the complaint are vehemently denied.

The complainant filed rejoinders to the replies of the opposite parties controverting stand of the opposite parties and reiterated his stand taken in the complaint. The complainant once again prayed for directions to the opposite parties.

When Sh. Sandeep Khorana complainant was asked to lead evidence in support of his version he filed affidavit narrating facts of the complaint. The complainant also relied upon warranty certificate and registration certificate of the bike , invoice no. 18950 dated 07.05.2008 , cash memos dated 05.12.2008, 29.12.2008 , 07.02.2009 of free service, 06.03.2009, 09.03.2009 , 28.03.2009, 04.05.2009, 05.05.2009, 12.05.2009, 06.06.2009, 20.11.2009 of free service, 16.02.2010 of free service, letter dated 09.04.2009 written by the complainant to the opposite party no. 1, letters dated 09.04.2009 and 14.04.2009 written by the opposite party no. 1 to the complainant, letters dated 14.04.2009 and 09.07.2009 written by the complainant to the opposite party no. 1, letters dated 09.07.2009, 29.07.2009 and 30.07.2009 written by the opposite party to the complainant, letters 05.09.2009 and 11.01.2010 written by the complainant to the opposite party no 1, letters dated 11.01.2010 and 21.01.2010 written by the opposite party no. 1 to complainant, legal notice dated 16.11.2009 sent by the complainant to the opposite parties and reply dated 19.01.2010 of the legal notice dated 16.11.2009.

When the opposite parties were asked to lead evidence they filed affidavit of Sh. T.P. Chauhan, Supervisor and Sh. Anil Kumar Jain , Manager narrating the facts of the replies.

We have heard learned counsel for the parties and have gone through the material on record carefully and thoroughly. Learned counsel for the complainant argued that from the complaint, affidavit and documents the complainant has been able to prove that there is manufacturing defect in the bike , therefore, the opposite party no. 1 being manufacturer be directed to replace the bike with a new bike of the same model and make and in default refund cost of the bike and also pay compensation on account of mental, physical and financial harassment suffered by the complainant due to unfair trade practice and deficiency in service on part of the opposite parties.

On the other hand learned counsel for the opposite parties argued that except affidavit of the complainant there is no cogent and convincing material on record to prove manufacturing defect of the bike , unfair trade practice and deficiency in service on the part of the opposite parties. The complainant is required to prove manufacturing defect. But he has failed to prove that there is any manufacturing defect in the bike. He further argued that manufacturing defect could be proved by laboratory examination or examination by an expert of the bike as required under section 13(1)( O) a and 13 (2) of the Act. But the complainant failed to get the bike examined from an expert and in absence of expert report it cannot be held that there is manufacturing defect in the bike. In support of his arguments he relied upon case law reported as M/s E.I.D Perry (India) Ltd. Vs Baby Benjamin Thushra 1992(1) CPJ 279 and Voluntary Organization In The Interest of Consumer Education and Ors. Vs M/s Maruti Udyog Ltd. and Ors. Vs 1992(1)CPJ page 274 wherein Hon’ble National Commission has observed that without report of laboratory under section 13(1)(O) and 13(2) of the Consumer Protection Act it cannot be held that the material used in manufacturing of the goods is of sub standard and there is manufacturing defect.

Therefore , there is no merit in the complaint . The same fails and is hereby dismissed.

Order pronounced on : 11.08.2017