BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO. 235/2016

Date of filing 17/12/2016

Dated 14^th day of August, 2018

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K.PRESIDENT

The complainant has filed this Complaint u/s 12 of Consumer Protection Act, 1986 against the Opposite Parties (herein after referred in short as OPs) seeking direction to OPs to replace a new bike in place of the defective bike provided by the O.Ps. Company or take back this defective bike and pay back the money and Rs.1,00,000/- towards compensation and damages to the complainant and any other reliefs as the Forum deems fit under the circumstances of the case.

2.    The brief fact of the case are as follows:

The complainant purchased the Mahindra Centuro Two Wheeler bearing Engine No.UPEDG-016997 and Chassis No. MCDKG11B14D1613438 from O.P.1 Company i.e., Mahindra Two Wheelers Ltd on 04/09/2013 by paying an amount of Rs.54,000/- with a great expectation that bike will him and complainant family a lot in future. Complainant took delivery of the bike from Keerthi Motors, Bagalkot but tax invoice is raised by Shree Krishna Motors, Bijapur i.e., O.P.2. The copies of the Tax Invoice and Bills are produced as Document No.1 to 04 and copy of the RC Book is produced as Document No.5.  Complainant further stated that motor cycle started giving problem after three months of purchase. Unusual sound started coming from the engine and pick up of the bike was very low. Complainant given for the repair to the Keerti Motors which is authorized service centre for the Mahindra two Wheelers in Bagalkot. Complainant asked about the solutions to the problems, the representative of the showroom replied that he will repair it properly. The said showroom had given the bill for Rs.2000/- for changing the spare parts and as a service charge. Complainant asked the about warranty for the spare parts of the bike, O.P. denied the same and given harsh reply you should pay the money first and take your bike to house.  Complainant paid the entire amount demanded by O.P. After one week of the repair bike again started facing same problem.

Complainant further submitted that again given the bike for repair to the Keerthi Motors and given complaint to the O.P.1 about the problems of the bike. One Mr. Vinay, Service Engineer of O.P.1 came and tried to solve the problems but he could not able to do it properly. Service Engineer once again assured the complainant to bring the bike for next service at that time repair will be done properly.  Complainant came back with utter disappointment.  Complainant had sent a number of Emails to O.P.1 customer care unit but they did not replied in a positive manner. The copies of the print out of the e mails are produced as Documents No.6 to 8.  O.P.1 company is very negligent in giving service to its customers. Another showroom for Mahindra Two Wheelers in Bagalkot called as Guled Motors i.e., O.P.3. The complainant started giving his bike in that showroom as it is an authorized service centre of O.P.1 two wheelers. Complainant went to the show room for the first time, he explained all the problems of the bike to the executive of the service centre. After hearing the problems of the bike he assured the complainant that they will solve all the problems. O.P3. has replaced many spare parts of the bike and repaired it, they charged the complainant a sum of Rs.2,000/-. But the bike again started giving trouble to the complainant immediately after one week as the O.P.3 have not done the repair properly. Complainant went to O.P.3 and asked about the same.  O.P.3 replied very harshly, it shows that O.P. representatives and mechanics are not good enough to repair a bike which manufactured by O.P.1 or the bike manufactured by O.P.1 company is defective one. The copies of the bills given by the O.P.3 are produced as Document No.9 to 11 and Complainant submitted that on 22/10/2016, the complainant again given his bike for the repair for the same earlier problems to the Guled Motors O.P.3. O.P.3 has sent message to the complainant stating that Rs.8,000/- is needed for the bike repair if you are ready to pay the same we will repair your bike. The copy of the print out of the message is produced as Document No.12. The complainant has got issued legal notice dated 07/11/2016 to all O.Ps. herein calling upon them to replace a new bike in place of the defective bike provided by them or take back this bike and pay back money given by the complainant at the time purchase or repair this bike properly within 15 days from the date of this notice. O.Ps.1 and 2 having served with legal notice have not at all replied, O.P.3 called the complainant and told him to take back his bike by paying Rs.8,000/- for which complainant denied. The copies of the legal notice, postal acknowledgement are produced as document No.13 to 14 and complainant further submitted that a reply notice dated 06/12/2016 is sent by O.P.3 denying the entire allegation. The copy of the Reply notice is produced as Document No.15. Hence, the complainant constrained to file this Complaint seeking direction to OPs to replace a new bike in place of the defective bike provided by the O.P. or take back this defective bike and pay back the money given by the complainant. Rs.1,00,000/- towards compensation and damages to the Complainant and any other reliefs as the Forum deems fit under the circumstances of the case. 

3.      After receipt of notice, Ops appeared through his counsel and filed objection denied the entire contents of the Complaint are all false and vexatious. The same is not tenable in law or on facts. OP No.1 submits that a leading manufacturer of two wheeler bikes and is one of the renowned Two Wheeler Companies in the Country. The Mahindra Centuro is one such vehicle brand which is manufactured by the O.P.1. The Centuro is a leading vehicle in its class and in the year 2013 was awarded the Two Wheeler of the year. O.P.3 is a dealer authorized by the O.P.1 to carry our services, repairs and maintenance of the vehicles manufactured by the O.P.1. O.P.1 contended that complainant has purchased the Mahindra Centuro on 4.9.2013 bearing Engine No.UPE-DG016997 and Chassis No. MCDKG11B14D1613438 is a well established product in the market and over period of years. The two wheeler purchased by the complainant had a warranty period of two years and such warranty was inter alia subject to the condition that the vehicle had to be serviced periodically as per the recommended service schedule and that such services had to be availed of only at the authorized service centre of the O.P.1. A copy of the terms of warranty is furnished as Exhibit 1. It is also relevant to note that the warranty would be valid only till the vehicle ran 30,000 K.M. even if it had not completed two years. For that matter, any automobile would remain in good condition only when periodically serviced and maintained as advised by the manufacturer.  The periodically maintenance schedule as recommended by the O.P.1 is furnished as Exhibit 2. Complainant’s vehicle would not be eligible for any warranty claims, the complainant claims that he has taken the vehicle to the 2^nd O.P. for repairs, such a claim is self serving as the 2^nd O.P. no longer operates and the complainant has not furnished any document to evidence that services were availed of from the 2^nd O.P. The complainant has gone on to state in the complaint that after the O.P.2 was shut down, he has got his vehicle repaired at various service centres in Bilagi, Ilkal and Bijapur. O.P.1 contended that any service availed of by unauthorized service centres would disentitle warranty claims. The complainant has claimed that he visited the O.P.3 sometime in the year 2015 and availed of its services for repairing the recurring problems in his two wheeler.  The complainant also claims that the O.P.3 did not issue a proper invoice and gave the payment receipt in a plain white paper. Such claims of the complainant are wholly erroneous and false. O.P.3 obtained dealership in Bagalkot only on 06/03/2016 and as such the complainant has not obtained any service from O.P.3 prior to 6.3.2016. The complainant visited the O.P.3 on 8/6/2016 and complained of certain problem in the engine. Despite not being eligible for the warranty, out of goodwill, the O.P.3 has carried out repairs without insisting for payment. Copy of the job card No.126 for the repairs carried out on 08/06/2016 is furnished as Exhibit 3. A copy of the job card No.342 for the works carried out on 18/10/2016 is furnished as Exhibit 4. The complainant has with a mala fide intention, not disclosed in his complaint the services that were availed of on 08/06/2016 and 18/10/2016. The complainant was unwilling to pay the amount and as such O.P.3 was unable to deliver the vehicle to the complainant. The vehicle in question has already run more than 40,000 kilometers and as such is not eligible for any warranty.  The complainant is not entitled for any relief at the hands of this court and the instant complaint is liable to be dismissed by imposing heavy costs.

4.     O.P.2 counsel filed objection and denied all the averments in the complaint. It is true that the complainant and had purchased Mahindra Centruro Two Wheeler on 04/09/2013 from Keerthi Motors who was the Sub-Dealer of the Mahindra Company. It is also true that the Invoice has been issued by the O.P.2, the Keerthi Motors was a Sub-Dealer and the same has been approved by the O.P.1 but not by the present O.P.2. For the sake of convenience the O.P.1 is i.e. the company had given directions to the O.P.2 to issue Tax Invoice and sale certificate. The said Keerthi Motors was an Authorised service station for Mahindra Two Wheelers. At para 4 of the complaint it is alleged that the complainant has got repaired his bike within three months from the date of purchase and accordingly paid an amount of Rs.2,000/- for the same to Keerthi Motors. The complainant has not adhered to the service schedule as recommended by the O.P.1 and complainant has not availed any free services or the paid services as required. Complainant must be put to strict proof of the same, that without there being any documentary evidence, it is crystal clear that the said Bike didn’t had any problems as alleged by the complainant. O.P.2 further contents of the para 5 are totally denied by the present O.P. and are also nowhere concerned. It is very particular to note that the said bike started giving problems after 3 months from the date of sale and accordingly was got repaired. Within one week same problems were continued with the Bike and again for the second time the bike was handed over for repairs to the Keerthi Motors and also a complaint was raised before the O.P.1. As per Annexure No.6 of the complaint, it is very clear that the communication and complaint was made by the present complainant on 26/03/2014 which is more than 6 months from the date of purchase. O.P. contents para 6 the said Sub-Dealership of Keerthi Motors was cancelled by the O.P.1 i.e. Company itself. It is false to say that the complainant has got his bike repaired at authorized service stations located at Bilagi, Ilkal and Bijapur and also has incurred an amount of Rs.18,000. It is relevant to note that the complainant has not produced a single scrap of document or paper to prove the above contentions and contents of paras No.7,8,9, 10, 11, 12, 13 and 14 are nowhere concerned to the O.P.2 and there being no reasons to make the present O.P.2 as a party in the present O.P.2 as a party in the present complaint, has caused unnecessary, undue inconvenience and hardship to the O.P.2. Hence, O.P. prays that this complaint has to be dismissed with costs.    

5. O.P.3 counsel filed objection and contents of complaint are all false and baseless and O.P.3 denied it in toto. Except those that are specifically admitted.

O.P.3 further contents that the complainant was purchased a Mahindra Centuro Two Wheeler bearing Engine No.UPEDG-016997 and Chassi No. MCDKG11B14D1613438 from O.P.No.1 Company on 04/09/2013 by paid amount of Rs.54,000/-. O.P.3 also not known about payment of Rs.2,000/- for repair expenses from O.P.No.2. It is true that the O.P.No.2 Motors was closed. It is not known to the O.P.3 that complainant was giving the bike for services and repairs in authorized service center in Bilagi, Ilkal and Vijaypur and complainant paid amount of Rs.18,000/- for bike repair. O.P.3 contends that the complainant had sent number of mails to the customer care and also tried for calling to the toll free number of the company and O.P.3 further contends that in the year 2015 the complainant had approached to showroom of O.P.3 i.e. Guled Showroom started in Bagalkot and complainant give his vehicle to repair to showroom of this O.P.3 and O.P.3 had charged Rs.2,000/- for repair. There is no transaction between the complainant and O.P.3, so there is no negligence or deficiency of service on the part of O.P.3. Complainant had given his bike on 22.10.2016 for repair to O.P.3 showroom for problems of the bike. O.P.3 informed to the complainant about the expenses of the repairing because the company has not authorized to this O.P.3 and not granted sufficient spare parts to this O.P.3’s showroom to replace the guaranteed spare parts. The complainant’s vehicle was beyond warranty and therefore the O.P.3 did not oblige for a free repair as demanded by the complainant. It is false to contend that the O.P.3 had answered to the complainant in harass manner and using abusing languages against the complainant.  It is false to contend that on 04/11/2016 one of the representative of the O.P.3’s showroom had called the complainant and told to take the bike that as they are not going to repair the old bike, as the service center is for new bike only and the complainant O.P.3 had already repaired the complainant’s bike and informed to the complainant to receive the vehicle from O.P.3’s showroom, but till today the complainant had not approached the O.P.3 showroom and not received the motor vehicle and there is no limitation and cause of action arisen to file the present complaint Hon’ble Forum and the complainant suppressing the material fact had filed the complaint. O.P.3 is no way concern for the present transaction as the complainant has purchased motor cycle from O.P.2 who is sub Dealer. Hence, O.P.3 prays that this complaint has to be dismissed with costs.

6.      To prove the case of the complainant, tendered affidavit evidence and placed following documents: 

1. The copy of the Tax Invoice and Bills.

2. The copy of RC Book.

3. The copies of the print out of the emails.

4. The copies of the Bills given by the O.P.3.

5. The copy of the print out of the message.

6. The copies of the Legal Notice, Postal

    Acknowledgement.

7. The copy of the Reply Notice sent by O.P.3.

7. OPs tendered affidavit evidence and O.P.1 placed following documents:

1. Copy of the terms of warranty.
2. The periodical maintenance schedule as recommended by the O.P.1.
3. Copy of the Job card for the repairs carried out.
4. Copy of the job card for the works carried out on 18/10/2016.

8.      On perusal of Complaint and documents, the following point is essential and will arise for our consideration:-

1. Whether the complaint is barred by limitation U/s. 24 (A) of C.P. Act 1986 ?

2. What order?

        9.    Our findings on the above points are as under:

          Point No.1:-         Affirmative,

          Point No.2:-         As per the final order;

-: R E A S O N S :-

          10.    POINT NO.1:- The complainant has filed the instant complaint that the two wheeler motorcycle manufactured by the O.P.No.1 is defective and that the authorized service provider of O.P.No.1. O.P. have rendered and that the deficiency service while repairing the defective motors cycle. Complainant had bought a Mahindra Centuro Two wheeler bearing Engine No. UPEDG-16997 and Chassis No.MCDKG11B14D1613438 from O.P.1 Company i.e., Mahindra Two Wheelers Ltd. on 04/09/2013 by paying an amount of Rs.54,000/- and also submitted that motor cycle started giving problem to the complainant after three months of purchase. An unusual sound started coming from the engine and pick up of the bike was very low. Complainant gave it for the repair to the Keerti Motors which is authorized service centre for the Mahindra two Wheelers in Bagalkot. Complainant purchased the said vehicle on 04/09/2013 and warranty period of two years. Said vehicle started giving problems after 3 months of purchase actual cause of action arises from the date of 2013 but complainant issued legal notice through advocate on 07/11/2016 after laps of 3 years.

     11. In view of citation reported in CPJ (2015) 691 (NC) the important points reads as hereunder:

               “ii) Limitation correspondence reminder legal notice etc. do not extend the time.”

In view of citation reported in I (2016) CPJ 190 (NC) National Consumer Disputes Redressal Commission, New Delhi (Jansatta Sahkari Awas Samiti Ltd. V/s Kone Elevators India Pvt. Ltd. & Another). It reads as hereunder: 

                “(i) Consumer Protection Act, 1986 – Sections 24A, 21 (a) (i) – Limitation – agreement executed to install lifts – Non-installation – Accrual of cause of action – Cause of action arose when two letters sent by opposite party insisting on complainant to place purchase order for supply of missing part from site – complainant’s plea that cause of action arose when legal notice sent to opposite party cannot be accepted – Merely sending a notice does not constitute a cause of action nor does it extend period of limitation – As no application for condonation of delay has been filed there is no occasion to examine whether there was sufficient cause for delay or not – Complaint is time barred.”

         Above citations is issuance of legal notice do not extend the time. Hence we hold that present complaint is barred by law of limitation and as such complaint. Hence, we answer to Point No.1 as affirmative.

12.  POINT NO.2:  On the basis of the findings given on the Point No.1, we proceed to pass the following:

//ORDER//

1. The Complaint of the complainant is dismissed for want of limitation.
2. No order as to costs.
3. Send the free copies to both the parties.

(Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 14^th day of August, 2018).