D.O.F. 15.09.2009

                                            D.O.O. 31.10.2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR

Present:   Sri. K. Gopalan                                     :        President

                Smt. K.P. Preethakumari                     :         Member

                Smt. M.D. Jessy                                    :        Member

Dated this the 31^st day of October, 2011.

C.C.No.246/2009

Rajesh P.,

S/o. M. Gopalan,

Thykkath House,                                                  :         Complainant

Muzhappilangad P.O., Kannur

(Rep. by Adv. T.P. Sajeevan)

1.  Manager,

     KVR Vehicles,

     KVR Building,                                                

     Thana, Kannur.

(Rep. by Adv. B.P. Saseendran)

2.  The Regional Service Manager,

      Bajaj Auto Limited,

      Poona, 411035

3.  The Service Manager,

     Bajaj Auto Limited, 229/A-23,

     2^nd Floor, Vasudevan Complex,

     Opp. HDFC Bank, Palarivattom,

     Ernakulam, Cochin 682 025.

(2 & 3 represented by Adv. T.P. Sabu)

O R D E R

Smt. K.P. Preethakumari, Member.

          This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace the old vehicle with a new one with ` 15,000 as compensation with cost.

The brief of the complainant’s case is that he purchased a Bajaj Platina two wheeler from 1^st opposite party on 02.06.09 and on the same day itself, it is seen that the back wheel is not functioning as usual.  Due to some personal inconvenience with respect to his job, he was able to contact opposite parties only on 26.06.09 and handed over the vehicle since the mechanic represented that the vehicle has to undergo first service.  The vehicle was returned to the complainant on the same day evening and they charged ` 190 eventhough it is first free service.  Soon after 3 days the rear tyre of the vehicle was punctured and the same was informed to the show room and they insulted the complainant instead of doing proper service.  Again on 20.07.09 the tyre was punctured and entrusted the vehicle to the complainant curing the defect to the tyre.   The complainant had received the vehicle only after five days and the Manager represented to the complainant that the back wheel was replaced with a new one.  The opposite party has not given the invoice to the complainant.  They had given a receipt for ` 20,000.  The complainant had availed an amount of  ` 21,000 as loan from the Bajaj Auto Finance after receiving 36 cheques as security.  Later on 01.08.09, the same complaint was repeated and the vehicle was entrusted to the opposite party.  Later on the complainant contacted the Manager and wanted to replace the vehicle along with ` 15000 as compensation.  But the Manager requested time for consulting with the higher authorities and requested to keep the vehicle with them for one week for verifying the defect.  But the complainant is not amiable for the same.  So the complainant issued a lawyer notice on 07.08.09.  But they kept mum eventhough they have received notice.  The opposite parties have cheated the complainant by delivering a defective vehicle and because of these the complainant has suffered so much of mental as well as financial difficulties and hence the opposite parties are liable to replace the vehicle and to pay compensation.  Hence this complaint.

The opposite parties appeared and filed their version in response to the notice issued by the Forum.

The 1^st opposite party filed version admitting that the complainant purchased a Bajaj Platina Alloy 5 Spk two wheeler from them.  The 1^st opposite party denied the averment that the wheels of the bike were not properly rotating.  The 1^st opposite party further admits that the complainant entrusted his bike for service but denied the allegation that the opposite party done it by receiving 190 as cost.  Rs.190 was charged by opposite party as the charge for oil filled in the bike at the time of service and not as service charge and it is very specifically stated in the manual.  The 1^st opposite party denies the allegation that on 30.06.09, the rear side wheel was found puncture and when the complainant took the vehicle to the show room a scant regard was shown to him etc.  The 1^st opposite party always keeps very decent approach towards the customers and doing their work with utmost sincerity and loyalty.  The 1^st opposite party further denies the allegation that the vehicle sold by concealing manufacturing defects and hence the opposite party is not liable to compensate and to deliver a new vehicle to the complainant.  The 1^st opposite party was always perfect in service, whenever the complainant approached the opposite party and the opposite party is ready to replace the wheel of the vehicle if it has any manufacturing defect. It is not correct to say that the opposite parties had insulted the complainants, and not issued the invoice, and opposite party received 36 cheque leaves etc.  The 1^st opposite party admits the receipt of lawyer notice of the complainant and soon after getting the notice the show room Manager; visited the complainant and offered sincere service to the vehicle.  There is no deficiency of service on the part of opposite party.  The alleged defects are not due to any manufacturing defect and the defects are due to improper and unscientific usage of the vehicle through rough roads and hence the complaint is liable to be dismissed.

The 2^nd and 3^rd opposite parties also filed version admitting that the complainant had purchased the Platina two wheeler on 02.06.09 and contended that the complainant is using continuously and extensively the same.  The complaint is a pre-mature complaint since the vehicle has a 2 year free warranty service for any after sale service and any issue in the problem could have been taken care for first instance itself.  So the complaint is liable to be dismissed.  The complainant is using the vehicle. The complainant’s vehicle admittedly obtained all the true warranty services as and when it was brought for the services as per the Owner’s Manual.  During periodical services the cost of the oil change has been charged as per the terms and conditions of warranty.

The puncture has occurred due to nail entering the rear tyre and it is not manufacturing defect and unnecessarily filed the complaint and the complaint is liable to be dismissed.  The 2^nd and 3^rd opposite parties are ready to inspect the vehicle and ready to replace any component, if required as a gesture of good will and the need of entire replacement of the vehicle is unjustified.  The complainant has not come before the Forum with clean hands, because he has not mentioned the fact that whenever he brought for any service, the same was provided by the opponents.  Moreover, there is no deficiency of service on the part of 2^nd and 3^rd opposite party and hence the complaint is liable to be dismissed. 

Upon the above contentions the following issues have been raised for consideration

1.                           Whether there is any deficiency of service on the part of opposite parties?

2.                           Whether the complainant is entitled to any relief?

3.                           Relief and cost.

The evidence in the above case consists of the oral testimony of PW!, PW2 and DW1 and Exts. A1 to A8 and B1 to B5.

          The crux of the complainant’s case is that due to manufacturing defect the rear wheel of the vehicle is wobbling while plying and the defect was noticed by him on the next day of its purchase and occurred puncture several times and the opposite parties were not ready to replace the same even after repeated request made by the complainant.  In order to prove his case PW1 and PW2 were examined and Exts such as certificates of registration, Insurance cover note, tax license, receipt issued by KVR vehicles dated 02.06.09, tokens issued by 1^st opposite party, copy of lawyer notice, Owner’s Manual and demand notice from financier etc were produced by the complainant.  In order to disprove the case DW1 was examined and documents such as copy of job card dated 20.06.09, service details dated 26.06.09, AD dated 20.06.09, service details dated 13.07.09 and specimen copy of Owner’s Manual etc were produced.

          The purchase of the vehicle was admitted by opposite parties.  But they denied the averments that it has manufacturing defect.  Admittedly the vehicle was purchased on 02.06.09.  According to the complainant he felt wobbling of rear wheel and he approached the opposite party on 26.06.09 and they have done free service and charged ` 190 and that was admitted by opposite party.  Ext.B2 is the bill dated 26.06.09 for      ` 190 and it shows that ` 190 is the price of oil and is charged from the complainant as per warranty condition.  The 1^st opposite party has produced Ext.B1 job card.  But the complainant denied the document and contended that opposite parties have no such habit of issuing job card and they used to issue token like Ext.A5 and used to taken back at the time of delivery of the vehicle.  Moreover the customer’s signature in Ext.B1 is entirely different from that of the complainant in vakalath, affidavit, complaint etc.  Similarly Ext.B3 and B4 lacks signature of customer and all these documents were kept by 1^st opposite party in their custody.  So these documents cannot be considered as genuine documents.  It is admitted that the opposite parties had not issued any reply to the Ext.A6 lawyer notice, which was issued by the complainant within two months of purchase of the vehicle.  The complainant contended that in the meantime he had requested to the opposite party several time for curing the defect of wobbling of rear wheel or to replace the vehicle.  The opposite party has to give due consideration when a customer is issuing a lawyer notice within two months of purchase of a two wheeler.  But they have not even responded to the above notice.  In a way non-responding to the legal notice is an admission of the allegation of the complainant.  So in such case the complainant has no other way except to approach the Forum.  It is also seen that the complainant has filed the complaint within 3 months of purchase of the vehicle.  The complainant represented before the Forum that the opposite parties have purposefully evaded from their responsibility without heeding the words of the complainant to rectify the defect of wobbling the rear wheel.

          The opposite parties main contention is that the complainant has not taken any steps to prove that the vehicle has manufacturing defect.  But if the opposite parties have done all the needful for the complainant for redressing the grievance, this contention of the opposite party can be regarded as a genuine one.  But considering the facts and circumstances of the case, this contention was put forwarded by opposite parties to evade from their liability to cure the defects of the vehicle of a poor consumer.  In such a circumstances it is very much become necessitated to consider the purpose of the Consumer Protection Act.  The Act is envisaged for the better protection of poor consumers and not to protect the multinational companies who were evading their duty towards a customer.  Considering the facts and circumstances of the case we feel that put forwarding high technicalities without doing the acts which they are legally bound to do is only to defeat the very purpose of the Act.  So the non-issuance of reply to notice, non-issuance of proper job sheet etc are grave deficiency of service on the part of opposite parties. The consistent case of the complainant is that the rear wheel was wobbling and punctured several times and it was brought before the opposite party for 5 times and soon after service, the problem of wobbling of rear wheel exists.  Moreover according to the complainant, the opposite party represented to them that they have changed the rear wheel.  But the documents produced by opposite party shows that they had changed only the tube of the rear wheel.   So according to the complainant the opposite party had exploited the ignorance of the complainant so this type of tendency of the opposite parties have to be curtailed.  Moreover mere denial that there is no manufacturing defect on the basis of the lacunae on the part of the complainant will not wipe out the liability of the opposite parties.  PW2, who is a pillion rider, for once deposed that “h­n-bn Rm³ Hcp Znhkw bm{X sNbvX-t¸mÄ A\p-`-h-ap-­m-bn-«p-­v.  Xe-tÈcn SuWn km[\w hm§n hcp-t¼mÄ ]cm-Xn-¡m-csâ bike Ib-dn-bn-cp-¶p.  150 aoäÀ bm{X sNbvX-t¸mÄ ssk¡nÄ ]pfªp Ifn-¨n-cp-¶p.  lc-Pn-¡m-c-\m-bn-cp¶p hml\w HmSn-¨n-cp-¶-Xv.  hml-\-¯n \n¶v Cd-§-W-sa¶v ]d-ª-t¸mÄ hml\w \nÀ¯n.  t\m¡p-t¼mÄ ]nd-Inse SbÀ ]©-dm-bn-cp-¶p.” This also substantiate the case of the complainant.  The complainant contended that he is not using the vehicle now due to wobbling of rear wheel.  Moreover the opposite parties contended that the tyre of the vehicle was punctured due to the entering of the nail to the tyre and also because of the negligent use of the complainant.  But they have not produced any documents to prove this contention.  Ext.A7 is the Owner’s Manual and according to opposite party as per this the complainant has entrusted the vehicle only twice.  But the complainant contended that the opposite parties used to issue token like A5, when he was entrusting the vehicle for repair. So we are of the opinion that there is grave deficiency of service on the part of opposite parties for which they are liable to compensate the complainant by repairing the vehicle as motorable conditions without any defect of wobbling or like other defects along with ` 500 as cost of the proceedings and order passed accordingly.

          In the result, the complaint is allowed directing the opposite parties to repair the vehicle as motorable conditions without any defect of wobbling or like other defect along with ` 500 (Rupees Five Hundred only) as cost of the proceedings within 30 days of receipt of the notice, in default the opposite parties are liable to replace the vehicle and the complainant can execute the order as per the provisions of Consumer Protection Act after the expiry of 30 days.

                         Sd/-                           Sd/-                      Sd/-                        

     President                    Member                 Member

APPENDIX

Exhibits for the Complainant

A1.  Copy of R.C.

A2.  Copy of Insurance Policy.

A3.  Copy of tax paid receipt.

A4.  Copy of receipt for ` 20,000.

A5.  Copy of token issued by Bajaj Auto Ltd.

A6.  Lawyer notice dated 07.08.09.

A7.  Owner’s Manual.

A8.  Demand notice.

Exhibits for the opposite party

B1.   Service details dated 20.06.09.

B2.   Bill dated 20.06.09.

B3.   Acknowledgement dated 20.06.09

B4.   Service details dated 13.07.09.

B5.   Owner’s manual.

Witness examined for the complainant

PW1.  Rajesh

PW2.  Sugunan V.K.

Witness examined for opposite party

DW1. Ajesh Joseph

      /forwarded by order/

                                                                     SENIOR SUPERINTENDENT