Date of Filing     05.01.2021

                                                                                                             Date of Disposal: 12.08.2024

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

BEFORE TMT. Dr.S.M. LATHA MAHESWARI, MA. ML, Ph.D (Law),                                         …….PRESIDENT

               THIRU.P.VINODH KUMAR, B.Sc., BL.,                                                                             ...….MEMBER-I

RBT/CC.No.72/2024

THIS MONDAY, THE 12^th DAY OF AUGUST 2024

Mr.S.Vivekanandan,

S/o.P.M.Senguttuvan,

No.79, Kamaraj Colony,

Burma Nagar,

New Washermenpet,

Chennai 600 081.                                                                                         ......Complainant.

                                                                            //Vs//

1.M/s.Jawa Motorcycle India,

   Rep. by its Director,

   Classic Legends Private limited,

   1^st Floor, D1 Block,

   Plot No.18/2, MIDC, Chinchwad,

   Pune 411 019, Maharashtra, India.

2.M/s. Phoenix motors,

   Rep. by its Manager,

   No.15/6, Besant Avenue Road,

   (Elliots Beach Road,

   Adyar, Chennai 600 020.                                                               .…..Opposite Parties.

Counsel for the complainant                                        :    M/s.L.Prabhakar, Advocates.

Counsel for the 1^st opposite party                               :    M/s.Shivakumar, Advocate.

Counsel for the 2^nd opposite party                              :     Exparte.

This complaint has been filed in DCDRC, Chennai (North) as CC.No.54/2021 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as RBT/CC.No.72/2024 and this complaint coming before us on various dates and finally on 09.07.2024 in the presence of M/s.L.Prabhakar, counsel for the complainant and M/s.Shivakumar, counsel for the 1^st opposite party and 2^nd opposite party was set exparte for non appearance and upon perusing the documents and evidences of both sides this Commission delivered the following

ORDER

PRONOUNCED BY TMT.Dr.S.M. LATHA MAHESWARI, PRESIDENT

1. This complaint has been filed by the complainant u/s 35 of the Consumer Protection Act, 2019 alleging deficiency in service in selling the defective vehicle to the complainant along with a prayer to direct the opposite parties to replace the Jawa 42 model comet red bike single Abs bike with a new bike of the same model, to pay a sum of Rs.1,00,000/- towards compensation for the mental agony and hardship caused to the complainant along with cost.

Summary of facts culminating into complaint:-

2.It was the case of the complainant that he purchased a Jawa 42 model comet red bike single Abs bike with Engine No.NAE-KL018987 and Registration No.TN 03 AB 6295 of the 1^st opposite party from the 2^nd opposite party on 07.03.2020 vide invoice No.672. It was submitted that from the day of purchase of the motorcycle he had been facing various mechanical problems which the 2^nd opposite party was unable to rectify.  The complainant had approached the 2^nd opposite party for several times to rectify the same but till today the problems persisted and the 2^nd opposite party was unable to rectify the defects since the same was manufacturing defects. Within few day of purchase on March 2020 the complainant had faced starting trouble in his bike. Subsequently complainant approached the 2^nd opposite party in person and it was informed to him that the said defects were due to battery problem.  Hence the 2^nd opposite party provided temporary old battery and promised to give new battery soon, but till date the opposite party neglected to provide a new battery. On 11.08.2020 unfortunately he encountered the same starting problem.  Since the complainant could not start the bike he carried his bike through Tata Ace to the 2^nd opposite party Service Centre at Besant Nagar, with lot of mental agony and physical strain.  It was informed to him by the 2^nd opposite party Service Personnel that the problem had occurred due to fuel injector and they cleaned and installed the same fuel injector. On 21.08.2020 and 28.10.2020 again complainant encountered the same starting trouble. So the complainant approached the 2^nd opposite party service centre at Besant Nagar where he was informed that it occurred due to timing problem in engine and assured to rectify the same.  But it was not fully rectified and the complainant has been experiencing the same kind of problem again and again and the vehicle’s power and pickup also got weekend.  On 11.11.2020 again the complainant experienced the same engine obstruction problem while driving, hence he handed over his bike to the 2^nd opposite party service centre at Besant Nagar to rectify the engine pickup and timing chain problem, as informed to him and the same was alleged to have been rectified by the 2^nd opposite party. The 2^nd opposite party delivered the bike to him on 27.11.2020 but the very next day morning when he was ready to depart to office he found that his bike engine oil completely leaked on ground. When he contacted the 2^nd opposite party service centre through mobile regarding the oil leaking issue, the 2^nd opposite party informed that they could able to take the bike for service after Diwali holidays only.  But till date the defects were not fully rectified even after seventh time of service and the bike was still under the possession of 2^nd opposite party service centre at Besant Nagar. The complainant had driven only 1035 kilometres so far. The complainant had great financial loss and damages besides hardship, mental tension, trauma and inconvenience on account of deficiency of service of 1^st opposite party in manufacturing a defective bike since the defects persists even after several services by the 2^nd opposite party and on account deficiency of service of 2^nd opposite party in repairing the bike. Thus he sought for the complaint to be allowed.

Crux of defence made by the 1^st opposite party:-

3. The 1^st opposite party filed version disputing the complaint allegations contending inter alia that the bikes manufactured by them pass through stringent quality checks and road trials before the actual commercial production starts and the vehicles were marketed only after being approved by the Automotive Research Association of India, PUNE. Complainant has made misconceived and baseless allegations of manufacturing defects in the motorcycle without relying on any expert report from a recognized and notified laboratory under Section 38(2) of the Consumer Protection Act 2019. Complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act as there was neither any manufacturing defects proved in the motorcycle in question nor any deficiency in service being established against the 1^st opposite party. Complainant had taken delivery of the motorcycle after being completely satisfied with the condition of the vehicle and its performance.  It was submitted that the motorcycle was delivered after carrying out Pre-Delivery Inspection by the dealer. The motorcycle purchased by the complainant was a well established product in the market and over a period of years, the consumers were using the product and the complainant had taken delivery of the motorcycle after being satisfied with the condition of the motorcycle and its performance. After being dispatched to the authorized dealer of the 1^st opposite party, the respective dealers were required to carry out pre-delivery inspection of all new vehicles before selling it to the customers.  As per the scheduled services or for any repairs, the complaints of the customer were recorded in the job card which do not imply admission of any defects in the vehicle, but a mere representation of the customer’s grievances on the said vehicle. Vehicle as attended by the dealers/service centres fully comply with the warranties, assurances and specifications, provided for it by the manufacturer regarding quality and performance of the vehicle.  Hence, there could not be any complaint of deficiency of service against the 1^st opposite party by the complainant and the complaint deserves to be dismissed with cost. The onus lies on the complainant to show that the reliefs as contemplated under section 39 could be given for the defect in goods supplied or deficiency in service provided to the complainant.  In the present case, it was crystal clear that there was no manufacturing defect in the goods purchased by the complainant. It was submitted that as per the 1^st opposite party’s records, the subject vehicle was not reported for servicing until 12.08.2020, hence the averments that the complainant faced starting trouble within few days of purchase and approached the 2^nd opposite party was denied as false and untrue. It was submitted that on or around 12.08.2020 the complainant brought the vehicle to the 2^nd opposite party at 376km for second service, wherein only scheduled servicing was done and no complaints of fuel injector were reported by the complainant or observed by the service centre.  It was denied that the vehicle was reported for starting problem on 21.08.2020 it was submitted that the vehicle was next reported on 08.09.2020 at 615km, for scheduled free service and replacement of lambda sensor under warranty.  It may be noted that the complaints of vehicle’s power and pickup weakening, were never reported by the complainant during servicing.  The averments of the complainant that the vehicle encountered starting problem on 28.10.2020 and the 2^nd opposite party informed that it was due to timing problem in engine are strictly denied.  In fact as per the 1^st opposite party’s records the vehicle was not reported for serving until 04.11.2020 at 870ms for scheduled free service wherein fuel filter, fuel gauge flange bolt and ASM tendioner were replaced under warranty and subsequently timing chain was replaced during servicing done at 996 km on 28.11.2020 under warranty.  It may be clarified that the vehicle was reported for servicing on or around 09.02.2021 at 1058km wherein the alleged issues were rectified by replacing AMS tensioner, timing chain, rear shock absorbers, AMS cylinder head and balancer shaft.  Thereafter after resolving the purported complaints, the vehicle was taken to the complainant’s place by the service centre, however, the complainant refused to take delivery, for reasons best known to him.  The service centre had repeatedly sent reminders including a letter dated 19.03.2021 informing him that his vehicle was ready for delivery and requesting him to collect the same, but the complainant had neglected to take back the vehicle as a result the vehicle was still at the workshop.  The subject motorcycle till 04.08.2021 has covered approx 1100 kms, had the motorcycle not been road worthy it would not have run for 1100 kms in a span of 16 months.  As per opposite party’s records on or around 12.08.2020 the complainant brought the vehicle to 2^nd opposite party at 376kms for second free service wherein only scheduled servicing was done and no complaints of fuel injector were reported by the complainant or observed by the service centre.  Next the vehicle was reported on 08.09.2020 at 615km, for scheduled free service and replacement of lambda sensor under warranty. Thereafter the vehicle was reported for servicing on 04.11.2020 at 870km for scheduled free service wherein fuel filter, fuel gauge flange bolt and ASM tensioner were replaced under warranty and subsequently timing chain was replaced during serving done at 996km on 28.11.2020 under warranty.  Lastly the vehicle was reported for serving on or around 09.02.2021 at 1058 km wherein the alleged issued were rectified by replacing ASM tensioner, timing chain, rear shock absorbers, ASM cylinder head and balancer shaft. Thus they sought for the dismissal of the complaint.

4.  On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A16 on their side. On the side of 1^st opposite party proof affidavit was filed and submitted documents marked as Ex.B1 & Ex.B2 on their side. Despite service of sufficient notice the 2^nd opposite party did not appear before this commission to file any written version and hence he was called absent and was set ex-parte on 11.10.2021 for non filing of written version within the mandatory period as per the statute. Advocate Commissioner Report was marked as Ex.C1 as court document.

Points for consideration:-

1. Whether the complaint allegations with regard to the existence of manufacturing defects in the vehicle purchased by the complainant from the opposite parties had been successfully established by him by admissible evidence?
2. To what reliefs the complainant is entitled?

Point No.1:-

            5. Heard both learned counsels appearing for the parties.

6. The learned counsel appearing for the complainant argued that even from the initial stage of purchase of the vehicle, the vehicle was giving various problems for which the complainant has to approach the Service Centre several times.  He relied upon the Job Cards to show that he had approached the 2^nd opposite party’s Service Centre who was the Authorized Service Personnel of the 1^st opposite party.  He elaborately argued that every time when the vehicle stopped due to starting problem which occurred due to low battery he had approached the Service Centre.  Inspite of rectification done by the Service Centre the vehicle could not be completely made a free defective vehicle.  He submitted that every time the vehicle had to be towed to the service centre for carrying out the repairs as the vehicle did not start. Thus, relying upon the opinion of the expert filed before this Commission he sought for the complaint to be allowed as prayed for.

7. On the other hand, the 1^st opposite party disputed the complainant allegations and the report filed by the Surveyor stating that the Surveyor is not an qualified person to examine the defects in the vehicle. It is submitted by him that only the vehicle was sent to the Service Centre for availing the free services and repairs were done at the time. Thus submitting that the vehicle was now made ready after the repairs were rectified and it is only the complainant who refused to take delivery he sought for the complaint to be dismissed.

8. We perused the pleadings and material evidences produced before this commission and also the report filed by the expert.

9. Vide Ex.A13 the complainant had filed proof of the vehicle towed by the 2^nd opposite party’s service person after the vehicle failed to start on 28.10.2020.  This clearly shows that the vehicle suffered with some battery problem or some other inherent defect of the parts which made the vehicle inoperable.  This evidence was not disputed by the opposite party and the same has to be taken for consideration in deciding the issue as to defect in the vehicle.

10. Further the opposite parties themselves had admitted that when the vehicle was reported for servicing on 09.02.2021 at 1058 km the following issues were rectified

Replacing ASM tensioner,

Timing chain,

Rear shock absorbers, 

ASM cylinder head and balancer shaft.

Therefore it could be prima facia found that the vehicle suffers with various problems.

11. The expert opinion was disputed by the 1^st opposite party only on the ground that the person who carried the inspection was not an Authorized person to inspect the vehicle.  This Commission could not accept the said objection as the person appointed by this commission to inspect the vehicle was a B.E. Graduate having Special Diploma in Marine & Special Diploma in Fire Insurance and was an Insurance and Loss Assessor for Fire, Marine Cargo, Motor and Marine Hull etc.  He possesses an IRDA License No.SLA/121420.  Therefore this commission is of the view that he possesses sufficient knowledge in Motor vehicle parts and could be very well considered as an expert in accordance with the provision of Consumer Protection Act, 2019 to inspect a two wheeler.

12. The expert report clearly provides that the battery was missing in the vehicle, vehicle is not road in a worthy condition and also some other engine parts were missing and the entire vehicle was in a rusted condition without proper maintenance by the 2^nd opposite party. Further on verification of the vehicle history he stated that parts like Lambda sensor, fuel filter, tensioner assy, timing chain etc had been changed in the warranty period but opined that there was starting problem even after changing those parts. Finally it was concluded by him that the vehicle was found to have manufacturing defects.  He was also of the opinion that the vehicle was poorly maintained by the 2^nd opposite party and at present requires to replace frame, electrical and mechanical parts which was even exceed the value of the vehicle.  Thus it is clearly established that the complainant allegations that the vehicle was not in road worthy condition due to manufacturing defects was proved by an expert report.

13. Further, the Job cards produced by the complainant as well the admissions made by the 1^st opposite party makes this commission to presume and to hold that the vehicle suffers with manufacturing defects even in the absence of an expert report as the 1^st opposite party themselves admitted that even when the vehicle reported for free service fuel filter, fuel gauge, flange bolt and ASM tensioner were replaced on 04.11.2020 and subsequently timing chain replaced on 28.11.2020 under warranty.  It amply proves that within a short span the parts of the vehicle has been changed and again on 09.02.2021 when the vehicle was reported in 1058 kms, ASM tensioner, timing chain, rear shock absorbers, ASM cylinder head and balancer shaft were replaced.

14. Though it is contended by the 1^st opposite party that the vehicle had run around 1100 kms and hence could not be considered as a defective vehicle, we could find that the vehicle’s several parts has been replaced during these periods due to the defects that arose in the vehicle.

15. The present complaint was filed on 25.01.2021.  However, the letter sent by the 2^nd opposite party was dated 19.03.2021 informing the complainant that the vehicle was ready which aspect clearly shows that the opposite parties had acted only after the receipt of notice from this Commission after filing of the complaint.

16. Thus for the above reasonings we are of the view that the vehicle delivered to the complainant suffers with manufacturing defects. 

17. The Judgment relied upon by the complainant rendered by the National Consumer Disputes Redressal Commission in Nuzhat vs Dee Dee Motors Private Limited & Anr.2019 SCC Online NCDRC 1691 defines the manufacturing defect as a “defect which persistently comes up and cannot be rectified even after attempts made by the dealer” so these are two basic criteria that the commission looks at while deciding cased pertaining to defective vehicles, besides the job cards and the opinion of an expert. The said decision clearly applies to the present facts of the case to establish the manufacturing defect of the vehicle.  Therefore this commission comes to a conclusion that the 1^st opposite party had committed deficiency in service in delivering a defective vehicle to the complainant.  The 2^nd opposite party only being a Service Centre could not be held liable for supply of defective vehicle to the complainant.  Thus we answer the point accordingly in favour of the complainant and as against the 1^st opposite party.

Point No.2:-

18. As we have held above that the deficiency in service on the part of 1^st opposite party has been clearly established we direct them to replace or to refund the cost of vehicle Rs.1,23,671/- within eight weeks from the date of receipt of copy of this order.  Further we award Rs.50,000/- towards compensation for the mental agony and hardship caused to the complainant by the act of the opposite party and also award Rs.10,000/- towards litigation expenses.

In the result, the complaint is dismissed against the 2^nd opposite party and partly allowed against the 1^st opposite party directing them

a) To replace the Jawa 42 model comet red bike single Abs bike Engine No.NEA-KL018987 Registration No.TN 03 AB 6295 with a new bike of the same model or refund a sum of Rs.1,23,671/- (Rupees one lakh twenty three thousand six hundred seventy one only) to the complainant within eight weeks from the date of receipt of copy of this order;

b) To pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for the mental agony and hardship caused to the complainant;

c) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards litigation expenses to the complainant;

d) Amount in clause (a) if not paid within eight weeks from the date of receipt of copy of this order, interest at the rate of 12% per annum will be levied on the said amount from the date of complaint till realization.

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this 12^th day of August 2024.

       Sd/-                                                                                                                     Sd/-

 MEMBER-I                                                                                                       PRESIDENT

List of document filed by the complainant:-

List of documents filed by the 1^st opposite party :-

   Sd/-                                                                                                                              Sd/-

MEMBER-I                                                                                                           PRESIDENT