By Sri. MOHANDASAN.K, PRESIDENT

The complaint in short is as follows:-

1.         The complainant purchased a motor cycle, Bajaj Platina 100 ES from the opposite party for Rs.51,571 /- as per invoice dated 14/12/2017.  He purchased the vehicle with financial assistance of Muthoot capital service. The vehicle has registered as KL 71 E 3822. At the time of purchasing the vehicle it was assured warrantee for two years or up to 30,000/- kilometer and three free services. The opposite party had assured 100-kilometer mileage for the vehicle.  The complainant had purchased motor cycles from the opposite party prior to purchase of this vehicle. Hence the complainant purchased   the present motor cycle from the opposite party as a satisfied consumer.  But even within 10 days of purchase of vehicle it appeared excessive heat, low pulling and also exorbitant smoke.  The complainant approached the opposite party and then assured that it will be alright after first free service. Believing the words of the opposite party on 15/01/2018 he approached the opposite party for the first free service and thereby he changed oil after remitting 411/- rupees and paying rupees 70/- as labour cost. But thereafter within few days itself the complaints of vehicle again appeared and so contacted the opposite party. Then the assurance was that it will be all right after second free service. Then on 10/04/2018 the complainant approached the opposite party for the second free service and paid Rs.411/- for the oil change and paid Rs.70/- towards labour cost. There after use of certain days the defects to the vehicle found not subsided and so the complainant again approached the opposite party and then it was said that it may be due to the defect of petrol using in the vehicle and he was advised to use petrol of Reliance. Thereafter the complainant was using petrol of reliance but the issue was not resolved. The opposite party said that it will be all right after third free service.  He approached the opposite party for the third service on 22/10/2018 remitting 411/- rupees for oil changing and rupees 70 for labour cost. But the defects of the vehicle were not rectified and the opposite party changed the engine valve of the vehicle and assured that there will not be further defect to the vehicle.  But the complainant submits that even after that the defect was not corrected. It appeared exorbitant heat to the engine and fog and appeared fire from the vehicle. Subsequently on approaching the opposite party, it was directed to leave the vehicle at work shop and accordingly the vehicle was entrusted with the opposite party on 13/11/2018.  The complainant thereafter submitted a written complaint to the opposite party on 14/11/2018, but the manager Mr. Sudheer of the opposite party refused to receive the complaint and returned the same to the complainant.

2.         The complainant alleges deficiency in service and defect to the vehicle. Even after expiry of three free services the defects of the vehicle stand not rectified. Hence the prayer of the complainant is to replace the vehicle or refund the vehicle cost of Rs. 51,571/- along with road tax 4,126/- and insurance amount of rupees 2,535/-. The complainant further prays for Rs.40000/- on account of mental agony and the finical loss sustained due to availing special conveyance facility and on account of inconvenience, hardships and cost of the proceedings.

3.         On admission of the complaint notice was issued to the opposite parties and the opposite parties entered appearance and filed version.

4.         The opposite parties admitted that the complainant purchased vehicle from the opposite parties on 14/12/2017 as stated in the complaint. It is also admitted that there was warrantee for two years or 3000 kms along with three free services and had assured 100-kilometer mileage.  The opposite parties admitted that the complainant had purchased   one Bajaj discover bike and one Bajaj platinum bike prior to the vehicle involved in the complaint.  But the rest of the allegations in the complaint are specifically denied by the opposite parties. The opposite parties submitted that the first service of the vehicle was done on 15/01/2018 while the vehicle covered 865 kilometers. That time no defect was reported by the complainant. The oil changing and other services were done duly. The complainant has not reported that there was over heating or exorbitant smoke or low pulling power etc.  The third service was done on 22/10/2018 and then only the complainant stated there is over heat from the engine and black smoke from the vehicle. But there was no allegation of black smoke, engine heat like complaints. The vehicle was properly working and the only suggestion from the complainant was to make available slow working of the vehicle. The opposite party specifically denied the averment that there was over heat from the engine and thereby black smoke and reduced pulling power.   The complainant never had complaint about black smoke or engine heat. The averment that on 22/10/2018, while the vehicle was brought for third free service, it was asked to examine the smoke, and on examination it was found that bad quality petrol was using by the complainant and was advised to use reliance petrol from Nilambur is not correct and so denied.  But after third service on 05/11/2018 it was noted black smoke and on examination it was found some defects due to use of bad oil and consequently rinse and valve of the vehicle was changed and also head casket, oil seal and cylinder casket were changed. The vehicle was handed over to the complaint after verifying there is no any sort of defect to the vehicle and conducted test drive of the vehicle.

5.         Thereafter the complainant felt satisfaction.  But within few days the complainant approached the opposite party supervisor Mr. Sudheer along with his lawyer and threatened stating that the complaint is to be accepted by the opposite party and behaved in rough manner towards Mr. Sudheer. The complainant along with two other persons and lawyer approached the opposite party and threatened Mr. Sudheer and as a result Mr. Sudheer expressed his willingness to resign from the job and the higher officials directed him to file a complaint before the police. But he restrained from doing the same. Later, 13/11/2018 the complainant brought his vehicle to the compound of the opposite party and threatened Mr. Sudheer and left the vehicle in the compound after threatening the staff. Since no job card was prepared, the vehicle was retained in the go down with the permission of the higher officials and the opposite party have no authority to do any maintenance work as claimed by the complainant.  The opposite party had contacted the complainant to take back the vehicle. But the complainant asked to provide new pulsar vehicle and the present vehicle is not suitable for the time and the family of the complainant also insisted him for a new model vehicle. So, the opposite party could not satisfy the complainant and thus the vehicle is laying in the compound of opposite party.

6.         The opposite party submitted that the vehicle has no any sort of complaint, which has been certified by the motor vehicle inspector. The vehicle has shown to the complainant and his representative on 11/12/2019 and nobody has stated that the vehicle has got any sort of defect.  The opposite party is ready and willing to rectify the defect of the vehicle if any is pointed out. There is no reason to keep the vehicle within the compound of the opposite party from 13/11/2018 and the opposite party have no any right to keep the vehicle without even a job card. The motor vehicle inspector had asked about the job card but it was revealed to him that the complainant left the vehicle in the compound of the opposite party. The opposite party had sent messages to the complainant for taking back the vehicle. Moreover, it has also informed that the complainant is liable to pay demurrage to the opposite party for keeping the vehicle in the compound of the opposite party. Since the complaint is pending before the Commission   the opposite party has not issued notice for demurrage. The vehicle of the complainant was involved in the flood along with other vehicles. But this vehicle was without proper documents with the opposite party.  Only the copy of complaint filed before this commission is the document to keep the vehicle in the compound of the opposite party. Hence the submission of the opposite party is that there is no deficiency in service on the part of the opposite parties, but the complainant filed this complaint with ulterior and avaricious motive.  Hence the complaint is liable to be dismissed with cost of the opposite party.

7.         The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A19.  The opposite party did not file any document.  Ext. A1 is copy invoice dated 14/12/2017. Ext. A2 is tax license dated 15/12/2017. Ext. A3 is copy of RC. Ext. A4 is copy of insurance policy issued by HDFC erg dated 17/12/2017. Ext. A5 is copy of driving license No. 10/6799/197 dated 12/05/2017. Ex.t A6 is copy of owner’s manual relevant page regarding warranty. Ext. A7 is copy of tax invoice reveals free service dated 14/12/2017. Ext. A8 is copy of first free service invoice dated 15/01/2018. Ext. A9 is second free service invoice dated 10/04/2018. Ext. A10 is third free service invoice dated 22/10/2018. Ext. A11 is copy of job card Ext. A12 is copy of written complaint issued to MR. Sudheer Ext.A13 is   copy of notice termination of agreement of higher purchase nil dated      Ext. A14 is    copy of letter issued by Muthoot Capital to RTO/ Insurance company regarding termination of loan agreement dated 15/01/2018 Ext. A15 is copy of loan closure letter dated 13/11/2018 Ext. A16 is copy of receipt issued by KVR automobile dated 13/12/2017 for Rs.21540/- Ext. A17 is copy of repayment schedule list   Ext. A18 is photo copy of photo of the vehicle KL 71 E 3822. Ext. A19 is copy of job card 2464. No documents produced on the side of opposite parties.

8.         Heard the parities, perused affidavit, and documents. The following points arise for consideration: -

1. Whether the vehicle is a defective one
2. Whether there is deficiency in service on the party of the opposite parties

3) Relief and cost

9.         Points 1 ,2 & 3

             The Complainant submitted that the vehicle purchased form the opposite party has undergone 3 free services duly but the vehicle has got some defects as stated in the complaint. Though he approached the opposite parties for the rectification of the defects, the opposite parties could not rectify the defect of the vehicle and the vehicle is with the opposite parties for the last 3 years i.e., from 13/11/2018 onwards. The complainant prayed for the refund of cost of the vehicle Rs.51571/- along with road tax 4126/- and insurance amount of Rs.2,535/- in addition to that the complainant prayed compensation of Rs.40,000/-and also an amount of 40,000/-towards cost of the proceedings. The complainant produced Ext. A1 to A19 to prove his case.

10.      The grievance of the complainant is that the vehicle has got inherent defect.  But the complainant has not taken steps to prove the defect of the vehicle. The complainant filed an application to examine the vehicle and accordingly the AMVI of Nilambur appointed as the expert commissioner in the matter. The commissioner filed a report and copy of the same is marked as Ext. A12. The complainant filed objection on commission report and submitted that the commissioner examined the vehicle without serving proper notice to the complainant. Hence the Commission directed the commissioner to examine the vehicle after due service of notice to the complainant. Accordingly, the commissioner filed a second report on 27/08/2021 after due service of notice to the parties. The commissioner produced documents to show the continuous effort to give due notice to the complainant. It appears the complainant was willfully evading service of notice of inspection and also presence at the time of examination by the expert commissioner. The Commissioner filed his report before this Commission on 31/08/2021. The report of the commissioner concludes as follows: - 

“ …. വാഹനം  പരിശോധിച്ചതിv  വാഹനത്തിന്‍റെ ബാഹ്യ രൂപത്തിന്‍റെ  അവസ്ഥ (External Appearance) തൃപ്തികരമായി കÙ¤  . ബോഡി  ഭാഗങ്ങളിv  തുരുമ്പ് ഒന്നും  ക¨Ùത്താനായില്ല . വാഹനം  സ്റ്റാര്‍ട്ട്‌  ചെയ്ത് പരിശോധിച്ചതിv   വാഹനത്തിന് സ്റ്റാര്‍ട്ടിങ്ങ് ട്രബിളോ അമിത പുകയോ  എÕ¢നിv  നിന്നുള്ള  അപശബ്ദങ്ങളോ കാണപ്പെ

1. v   റx തൃപ്തികരമായിരുന്നു.  ആവശ്യമില്ലാത്ത ശബ്ദങ്ങw  ഒന്നും ഉള്ള

തായി കÙ¢ല്ല. ഐഡിv  റണ്ണിലോ ഫുw ത്രോട്ടിലിലോ  പുക കൂടുതലായി കÙ¢ല്ല . തുടര്‍ന്ന്‍  d¢-k¬x റൈഡറെ കൂട്ടി  ഞാu പത്ത് കിലോമീറ്റര്‍  ദൂരം വാഹനം ഓടിച്ചു നോക്കിയതിv  വാഹനത്തിന്‍റെ  പ്രകടനം തൃപ്തികരമായി കÙ¤,

 .

      നിഗമനം

       എന്‍റെ പരിശോധനയിv   KL 71 E 3822 നമ്പt മോട്ടോt  സൈക്കിളിന്  നിലവിv 

 തകരാറുകw  ഒന്നും  ഇല്ലെന്നു  മനസ്സിലാക്കുന്നു .

      അറിവിലേക്കും  അനന്തര നടപടികള്‍ക്കായി  സമര്‍പ്പിക്കുന്നു  “. .

The report of the expert commissioner establishes that there is no merit in the allegation of the complaint. As part of attempt to verify the veracity of complaint, this Commission instructed the opposite party to produce the vehicle before the Commission. Though the opposite party brought the vehicle before the commission the complainant was not prepared to examine the vehicle whether the defects has been rectified or not as contended by the opposite party as well as the expert commissioner.  Subsequently this Commission instructed the complainant to take a test drive of the vehicle availing suitable person for the complainant. The complainant conducted test drive in accordance with the direction. Thereafter the opposite party filed an application to cross examine the person who assisted the complainant during the test drive and accordingly directed to appear before the commission. But the said person was not turned up before the Commission but submitted a statement that he is not physically fit to appear before the commission and so he may be allowed to examine through online. But the said person was not available for the same.

11.       It appears from the document’s produced by the complainant that he could not establish the allegation that the vehicle is defective as contended in the complaint and affidavit. On the other hand, the report of the expert commissioner establish that the allegation of the complainant is baseless. The opposite parties submitted that the complainant was a customer of the opposite party and he had purchased two motor cycles prior to the present one and he was a good customer of the opposite party.  Considering the fact, the opposite parties provided due services on all the three occasions while the complainant approached the opposite parties. The opposite parties submitted that the expert has not reported any defect to the vehicle and if at all reported any defect, they are prepared to rectify the defect of the vehicle. The opposite parties submitted that they are not liable to keep the vehicle with them from 13/11/2018 onwards. It is further contended; in the case of complainant the opposite parties are entitled for demurrage from the complainant. The opposite parties had sent message to take back the vehicle also. So, on examination of the averments in the affidavits of both the complainant and the opposite parties, it appears the averment of the opposite parties are more trust worthy.  The complainant failed to establish the defect of the vehicle as claimed. Hence the complainant is not entitled any relief as stated in the complaint.

12.       It is an admitted fact there was dispute between complainant and opposite parties and that is why the complainant left the vehicle at the premises of opposite parties on 13/11/2018. Thereafter the vehicle was involved in the flood occurred during 2019 and the vehicle was duly attended by the opposite parties.  It is specifically submitted by the opposite parties that the vehicle is defect free and road worthy. In addition to that they have expressed their willingness to rectify any defect if it is proved duly. It is a fact that warranty period has been expired. So, it will be just and reasonable to pay the repair cost if at all required further repairs at present. Considering the facts and situation in the complaint it will be proper from the side of opposite parties to ensure the vehicle is in a road worthy condition while releasing the vehicle to the complainant. The complainant is entitled to take back the vehicle from the opposite party without any liability towards demurrage.   With the above observation the complaint stands dismissed.  The parties will suffer the cost.

Dated this 24^th day of April, 2022.

APPENDIX

Witness examined on the side of the complainant: PW1

Documents marked on the side of the complainant: Ext.A1to A19

Ext.A1: Copy invoice dated 14/12/2017.

Ext.A2: Tax license dated 15/12/2017.

Ext A3: Copy of RC.

Ext A4: Copy of insurance policy issued by HDFC erg dated 17/12/2017.

Ext A5: Copy of driving license No. 10/6799/197 dated 12/05/2017..

Ext.A6: Copy of owner’s manual relevant page regarding warranty.

Ext.A7: Copy of tax invoice reveals free service dated 14/12/2017.

Ext A8: Copy of first free service invoice dated 15/01/2018.

Ext A9: Second free service invoice dated 10/04/2018.

Ext A10: Third free service invoice dated 22/10/2018.

Ext.A11: Copy of job card. 

Ext.A12: Copy of written complaint issued to MR. Sudheer.

Ext A13: Copy of notice termination of agreement of higher purchase nil dated. 

Ext A14: Copy of letter issued by Muthoot Capital to RTO/ Insurance company.

               regarding termination of loan agreement dated 15/01/2018.

Ext A15: Copy of loan closure letter dated 13/11/2018.

Ext A16: Copy of receipt issued by KVR automobile dated 13/12/2017 for Rs.21540/-

Ext A17: Copy of repayment schedule list  

Ext A18: Photo copy of photo of the vehicle KL 71 E 3822.

Ext A19:  Copy of job card 2464.

Witness examined on the side of the opposite party: Nil

Documents marked on the side of the opposite party: Nil

     VPH