| Final Order / Judgement | DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA C.C. No. 239 of 06-09-2018 Decided on : 30-05-2019 Shivam Goyal S/o Gobind Goyal R/o #192, Ward No. 47 Veer Colony, Bathinda. …... Complainant Versus Bajaj Auto Limited, Akurdi, Pune 411035 through Managing Director Raja Motors, authorized dealer for Bajaj Auto Limited, Goniana Road, Bathinda, through Proprietor/Partner/Authorized Signatory/GM/Branch Manager/MD
.......Opposite parties
Complaint under Section 12 of the Consumer Protection Act, 1986. Quorum : Sh. M.P.Singh Pahwa, President Smt. Manisha Member Present : For the complainant : Sh. N. K Batta, Advocate. For the opposite parties : Sh. Shanky Jindal, Advocate. O R D E R M. P. Singh Pahwa, President Shivam Goyal, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Bajaj Auto Ltd., and another (here-in-after referred to as 'opposite parties'). Briefly stated, the case of the complainant is that the opposite party No. 1 is the manufacturer company of various Bikes including Pulsar RS 200. Opposite party No 2 is dealer of opposite party No. 1 at Bathinda. The complainant got booked bike on 29-1-2018 with opposite party No. 2 and deposited earnest money/token money of Rs 10,000/- vide receipt No. 3724. The opposite party No. 2 assured delivery of the vehicle within 15 days. Accordingly, the complainant purchased Pulsar RS 200 for a sum of Rs 1,35,560/- vide invoice No. 1426 dated 13-2-2018 from opposite party No 2. It is alleged that since the date of purchase, there was starting problem in the bike. The complainant immediately approached opposite part No. 2 and told the problem. The opposite party No. 2 asked the complainant to bring the bike in the workshop/showroom of opposite party No. 2. The complainant brought the bike in the workshop/showroom of the opposite party No. 2. The opposite party No. 2 revealed that there are company mechanic in the workshop. They will check the bike and inform the complainant about defect, if any. They took the bike with them to resolve the problem and issued Job card No. 9933 dated 28-5-2018. to complainant. On 1-6-18 opposite party No. 2 intimated the complainant that they had repaired the bike and assured that there will be no problem in future. The opposite party No. 2 charged Rs 1330/ vide invoice/bill No. 1484 dated 1-6-2018 from the complainant. It is further pleaded that after few days from taking the bike from opposite party No. 2 when complainant drove the bike, there was same problem with the bike. There was again starting problem. The complainant took bike to opposite party No. 2. This time they revealed that there is a manufacturing defect in the bike and they will approach/contact opposite party No. 1 regarding this defect. Accordingly, complainant left the vehicle in the workshop of opposite party No. 2 for replacing the same with new one as assured by the opposite parties as being manufacturing defect which cannot be rectified. The opposite party No. 2 issued Job card No. 1809 to the complainant. It is alleged that the vehicle is still having manufacturing defect and opposite parties are adamant not to replace the vehicle or refund its price despite repeated requests and mails. It is further pleaded that complainant has been mentally harassed by the opposite parties and he could not ply the bike. He had to arrange a separate vehicle. On this backdrop of facts, the complainant has filed this complaint claiming Rs. 20,000/- as cost of litigation, replacement of bike or refund of its price i.e. Rs. 1,35,560/- with interest and Rs. 50,000/- as compensation for mental sufferings. Upon notice, the opposite parties appeared through counsel and contested the complaint by filing joint written reply. In written reply, the opposite parties raised legal objections that the present complaint is not maintainable. That the complainant has got no locus-standi and cause of action to file the complaint. That the complainant has not come to this Forum with clean hands and has concealed true and material facts. As per opposite parties, true facts are that the complainant approached opposite party No. 2 for purchase of Pulsar RS 200 Motorcycle and purchased the same with his own wish, fully knowing about its features, on 13-02-2018. After purchasing the motorcycle in question, the complainant came to the workshop of opposite party No.2 for its first free service. At that time, reading of the motorcycle was only 554 Kms. The opposite party No.2 serviced the motorcycle and complainant was fully satisfied with the same. Thereafter, on 28-05-2018, complainant approached opposite party No.2 regarding some minor starting problem. The opposite party No.2 rectified the same. This problem occurred due to usage of poor quality of petrol. The problem was rectified by the opposite party No.2. The vehicle was handed over to the complainant in okay condition. The complainant signed the Satisfaction Voucher dated 01-06-2018. Thereafter, complainant never approached the opposite parties for any defect, rather sent some emails on false facts. However, officials of opposite parties contacted the complainant telephonically but he did not give proper reply. The complainant has not produced any expert report to prove any manufacturing defect. The complainant is not using the motorcycle properly. Kilometers reading is very less as per company instructions and he wants to get refund of the amount of motorcycle by hook or crook. The last legal objection is that the complaint is false, frivolous and vexatious to the knowledge of the complainant. On merits, the opposite parties have reiterated their stand as taken in legal objections and detailed above. After controverting all other averments of the complaint, the complainant has prayed for dismissal of complaint. In support of his complaint, the complainant has tendered into evidence his affidavit dated 6-9-2018 (Ex. C-12)bill (Ex. C-1), photocopy of Insurance (Ex. C-2), photocopy of registration certificate (Ex. C-3), photocopy of repair bills (Ex. C-4 to Ex. C-6), photocopy of job sheet (Ex. C-7) and photocopy of e-mails (Ex. C-8 to Ex. C-11). To rebut this evidence, the opposite parties have tendered into evidence affidavit dated 2-11-2018 of Rajesh Makkar (Ex. OP-1/1), photocopy of vehicle history (Ex. OP-1/2), photocopy of satisfaction voucher (Ex. OP-1/3), photocopy of Job Card (Ex. OP-1/4), photocopy of free service guide (Ex. OP-1/5) and closed the evidence. The learned counsel for the opposite parties have also submitted written arguments. We have heard learned counsel for the parties and gone through the written arguments of the opposite parties and the record. The learned counsel for the complainant has submitted that the material facts are not in dispute. It is admitted that complainant purchased the vehicle in question on 13-2-2018. The complainant has asserted that there was starting problem in the vehicle and he approached the opposite party. The complainant has placed on record Job Card (Ex. C-7) and repair bills (Ex. C-4 to Ex. C-6). These documents prove that he took the vehicle to the opposite party firstly on 26-3-2018 when the vehicle has run only 554 Kms and then on 28-5-2018 when the vehicle has run 1134 Kms. The complainant has also pleaded that there was starting problem from the beginning. The complainant sent repeated mails dated 28-8-2018, 25-8-2018 and 31-8-2018 to the opposite parties, copy of which is Ex. C-8, Ex. C-9 and Ex. C-11 respectively. Therefore, it is proved that vehicle was repeatedly taken to opposite parties and complaints were repeatedly made. This fact leads to the inference that there was some manufacturing defect, otherwise complainant was having no reason to take the vehicle to the opposite parties. The opposite parties failed to resolve the issue. It is to be inferred that there is some manufacturing defect which is not curable. Hence, the complainant is entitled to the reliefs claimed for. In support of his submissions, learned counsel for the complainant has cited R.P. No. 958 of 2008 decided on 29-11-2007 case titled M/s. Hyundai Motors India Ltd., Vs. M/s. Affiliated East West Press (P) Ltd., and another On the other hand, learned counsel for the opposite parties after reiterating his stand as taken in written version has submitted that complainant has alleged manufacturing defect in the vehicle but no expert evidence is brought on record to prove this fact. The manufacturing defect cannot be held proved only on mere allegations. The documentary evidence will prove that there is no manufacturing defect or any other defect. Moreover, the opposite parties never denied to provide service as per warranty terms and conditions. The vehicle was purchased by the complainant on 13-2-2018. The complainant has placed on record Job Sheet (Ex. C-5) dated 26-3-2018. There is no complaint regarding any starting problem as alleged. The history reveals service done on 28-5-2018 at 1134 Kms. Again there was no complaint regarding starting problem, Of course the complainant has placed on record one Job Card (Ex. C-7) but from this document also, it cannot be inferred that complaint made complaint regarding starting problem. The opposite parties have placed on record letter dated 1-6-2018 from the complainant to opposite party No. 2 wherein complainant has admitted that after taking road trial and inspecting vehicle thoroughly, he is fully satisfied with the repair/replacement of parts and do not have any complaint regarding performance of vehicle. The complainant has rather expressed satisfaction with the service as well as with the vehicle even after about four months from the date of purchase. Had there been any manufacturing defect as alleged by the complainant, he was not to express satisfaction. He was also to raise this issue with the service centre. Of course vide Job Card dated 21-7-2018 (Ex. OP-1/4), complainant, complained about starting problem first time but it was observed that it was due to petrol mix and it was also remarked in the Job Card. As the complainant has failed to prove any manufacturing defect, he cannot claim refund of the price or replacement of the vehicle. To support these submissions, learned counsel for the opposite parties has relied upon :- (i) 2015 (3) CLT 93 case titled R.C. Grover Vs. Tata Motors Ltd., and another (ii) 2007(1) CPJ 379 case titled Chandeshwar Kumar Vs. Tata Engineering Loco Motive Co. Ltd., We have carefully gone through the record, case law cited by learned counsel for the parties and have considered the rival contentions. The admitted facts are that the complainant purchased vehicle in question from opposite party No. 2 on 13-2-2018. It was manufactured by opposite party No. 1. The complainant has alleged that since the date of purchase, there was starting problem in the bike. The complainant has relied upon Job Card dated 26-3-2018 (Ex. C-5), but in this Job Card there is no reference of any starting problem. The second Job Card is dated 1-6-2018 (Ex. C-4) at 1134 Kms. Again there is no reference of any starting problem in this document. Therefore, it can be safely presumed that there was no starting problem for a period of four months from the date of purchase. Had there been any starting problem, as alleged by complainant, he was to raise this matter on the very first service on 26-3-2018 and then on 28-5-2018. The opposite parties have produced on record copy of letter Ex. OP-1/3. It is dated 1-6-2018. In this letter, the complainant has rather expressed his satisfaction with the repair/replacement of the parts after taking road trial and inspection of the vehicle. He has rather admitted the problem came due to poor quality of petrol and repair of the vehicle is okay. Again at the cost of repetition, the complainant was not to admit that vehicle is in okay condition if he was not satisfied with the service. Of course in the Job Card dated 21-7-2018, complainant reported about starting problem but it was observed by servicing agency that it was due to petrol mix. No other Job Card is brought on record by the complainant after this date. The complainant has also not produced any expert evidence to prove any manufacturing defect in the vehicle. It is well settled that manufacturing defect cannot be held proved on the basis of mere allegations. The case law cited by learned counsel for the complainant is not applicable due to distinguishable facts. As the complainant has failed to prove any manufacturing defect, therefore, he is not entitled to replacement of vehicle or refund of its price. Resultantly, this complaint fails and is hereby dismissed with no order as to costs. The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost. File be consigned to the record room. Announced : 30-05-2019 (M.P.Singh Pahwa ) President (Manisha) Member
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