BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

Complaint Case No.476 of 2010

Date of Institution: 16.11.2010

Date of Decision:   21.04.2016

Kunal Aggarwal son of Sh. V.K. Aggarwal, resident of House No.8592/5 Railway Road, Ambala City.

                                                                                                                                                               ……Complainant.

Versus

1.       M/s Bajaj Probiking, SCO 22-23, Sector 8-C, Madhya Marg Chandigarh through its Senior Manager.

2.       M/s Hind Motors Ltd., 9-Industrial Area, Phase-I, Chandigarh through its Manager/Prop.

3.       M/s Norton Motors, Capital Chowk, Ambala Cantt through its Manager/Prop.

4.       Bajaj Auto Ltd. Mahalunge, MIDC, Chakan Pune-410501.

                                                                                       ……Opposite Parties.

Complaint Under Section 12 of the Consumer Protection Act.

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PURHPSNEDER KUMAR, MEMBER.         

Present:       Sh. V.K. Aggarwal, Adv. counsel for complainant.

                   Sh. S.R. Bansal, Adv. counsel for Ops No.1,2 &4.

                   Sh. Rishi Gupta, Adv. counsel for OP No.3.

ORDER.

                    Present complaint under section 12 of the Consumer Protection Act, 1986 as amended upto date (hereinafter called as ‘the Act’) has been filed by the complainant alleging therein that  he purchased a 200 CC Pulser Motorcycle from OP No.1 on 19.11.2008 in a sum of Rs.70,585/- and delivery of the vehicle  was given by OP No.2. At the time of delivery, there was scratch mark on mudguard and also there was braking problem in the bike.  The defects were brought in the notice of OP No.2 who assured that  the mudguard will be changed and the braking problem will itself function properly after sometime. It has been alleged that on first service mudguard were not changed despite request. The OP No.2 represented that brakes are being upgraded but on trial the brakes were found rather more defective and were not functioning at all without applying front disc break, the read drum brakes were not working and were unable to stop the vehicle as per requirement. On 02.04.2009, though the complainant was very cautious but met with an accident as another vehicle came in front of the  motorcycle  by taking a sudden turn and on applying brakes, the vehicle of complainant reacted improperly and as a result of which the vehicle skid &  fell down and complainant received multiple and grievous injuries. On 26.04.2009, the vehicle was taken to OP No.3 for necessary repairs and to remove the defects in the vehicle due to which the accident took place. Complainant has alleged that about 20 vehicles were lying in the workshop of Op No.2 with complaints of non-functioning of brakes, heating up of engine etc.. It has been alleged that the OP No.2 has played a fraud with complainant as they put handle of 180 CC on the motorcycle of complainant instead of his 200 CC bike.  Front shocker were not functioning despite pointing out that fluid of the shocker had leaked but Ops not bothered. It has been alleged that one of the Mechanic of OP No.3 pointed out that there is an inherent defect in the vehicle and OP No.3 is not capable of handling these heavy vehicles, neither they have any experienced staff. Then again the complainant had to take the vehicle to OP No.2 but of no avail.  Hence, the present complaint seeking relief as per prayer clause.

2.                Upon notice, Ops appeared through their respective counsels.  Ops No.1,2 & 4 filed joint written statement raising preliminary objections qua  non-maintainability of complaint under the provisions of  Consumer Protection Act.  On merits, it has been urged that the present complaint is not covered in the consumer dispute because of accidental repair and  the complainant has filed the present complaint without  mentioning any specific date and time of the alleged defects. It has been further contended that  complainant never visited the workshop of the OP No.2 for any kind of repair.  The vehicle stands out of warranty as per terms & conditions of the warranty clause since the accidental job was carried out by OP No.3 with the insurance company but the insurance company has not been impleaded as a party in the complaint though the same was necessary party for proper adjudication of the case. In the end, prayed for dismissal of the complaint with costs.

                   Op No.3 tender his reply raising preliminary objections qua non-maintainability of complaint and the complainant is not a consumer. On merits, it has been submitted that answering OP received the vehicle after accident for repair as the driver was driving the motorcycle in question in a rash and negligent manner. It has been admitted that the vehicle was brought to their workshop on 16.04.209 but denied that the vehicle was taken to their workshop for 14/15 times and that they have no experienced staff for repairing the vehicle in question. It has been denied that answering OP ever asked the complainant to take the vehicle to OP No.2 for repair whereas the workshop of OP No.3 is duly approved workshop of Bajaj Autos Ltd. for repairing such vehicles.  Rest of the contents of complaint have been denied and prayed for dismissal of the complaint with costs.

3.                To prove his contention, complainant tendered his affidavit Annexure CX alongwith documents as Annexures C-1 to C-9 and closed his evidence whereas on the other hand, counsel for Ops No.1,2 & 4 tendered affidavit of  Sh. Rahul Sharma,  Sales Manager as Annexure RY and closed their evidence.  Counsel for OP No.3 tendered in evidence affidavit of Sh. Rochak Mittal as Annexure RX alongwith documents as Annexures R-1 to R-3 and closed the evidence.

4.                We have heard the learned counsels for the parties and gone through the record very carefully. The main grievance of the complainant is that    the motorcycle in question was defective from the day of taking its delivery  i.e. 19.11.2008 but despite assurance of the Ops, the defects of mudguard & brake system not removed by the Ops. The counsel for complainant has argued that  the complainant taken the motorcycle many time to the workshop of Ops  but  the Ops failed to remove defects from the vehicle. 

                   On the other hand, counsel for Ops argued that  there was no fault in the vehicle  rather the complainant was rash & negligent in driving the vehicle  and caused the alleged accident and the complaint is not maintainable under the provisions of Section 13(1)(c) of the Consumer Protection Act  which says that “ where the complainant alleges a defect in the goods which cannot be determined  without proper analysis or test of the goods,  the District Forum shall after obtaining a sample of goods, send it to appropriate laboratory with a direction that such laboratory make such analysis or test with a view to find out whether  such goods suffer from any defect, alleged in the complaint or from any other defect.”  The counsel for the Ops also relied upon case law reported in CPJ 2006(II)page 143 (N.C)  titled as Dagadu Bhairu Bhosale Vs. Scooter India Ltd. etc.  wherein it has been reported that “in the absence of an expert report,  the Forum cannot determine the defect in the goods.”

5.                The complainant in support of his contention has placed on record various documents viz. quotation dated 19.11.2008 qua the bike in question (Annexure C-1), payment receipt by Ops (Annexure C-2 & C-3), Sale Delivery Certificate (Annexure C-4) & job cards (Annexure C-5 to C-8). Besides it, the complainant has also tendered his affidavit (Annexure CX) in evidence whereby he has submitted that the vehicle in question is having some inherent defect and because of which he has to suffer lot of mental agony, physical as well as monetary loss.  But from the documents Annexures C-1 to C-8 placed on record by the complainant, it is nowhere proved that the vehicle was having any manufacturing defect. Besides it, the complainant was having options to file affidavit of any Engineer/Expert/Technical person to substantiate his case  or  to seek help of the Court for appointing a Local Commissioner qua ascertaining out the defects of the vehicle in question but nothing of such sort has been done by the complainant rather he has filed a lengthy complaint which too on the face of it seems to be a vexatious and without any substance.

                   In view of the above discussion, we are of the view that there is no deficiency in service on the part of the Ops rather they were prompt in providing good services  as and when complainant went to the OP’s workshop as a gesture of goodwill. As such, the complainant has miserably failed to prove any deficiency on the part of the Ops. Hence, we have no option except to dismiss the present  complaint and thus the same is hereby dismissed with no order as to costs.  Copies of this order be sent to the parties concerned free of costs. File be consigned to the record room after due compliance.  

ANNOUNCED:21.04.2016                                               Sd/-

                                                                             (A.K. SARDANA)

              PRESIDENT                 

                                                                                        Sd/-

 (PUSHPENDER KUMAR)

                                                                                       MEMBER