By Sri. MOHANDASAN  K, PRESIDENT

The Complaint in short is as follows: -

1.   The complainant purchased an autorickshaw Bajaj Maxima Z DIESEL Passenger from the opposite party for Rs.1,89,000/-. The vehicle was delivered to the complainant on 02/06/2018  and on 03/06/2018 itself while the vehicle was driving it appeared missing, white smoke from the silencer and also it appeared exorbitant jerking.  The vehicle was not able to carry passengers and so he took the vehicle to the first opposite party on 05/06/2018. The first opposite party had not availed insurance coverage to the vehicle to till that day. The engineer of the first opposite party examined the vehicle and replaced nosil and then returned vehicle to the complainant.  But on the next day also the same complaint repeated and then the first opposite party advised to take the vehicle to the second opposite party and from there the pump and nosil were replaced.  Except the problem of jerking the other complaints rectified during that occasion.  The complainant submitted that it was assured the complaint of jerking will be rectified within one month after getting due advice from the company. But within few days of use the front fork of the vehicle became defective and the clutch also.  In total the vehicle was not in a running condition and also jerking sound was increased. 

2.    The complainant informed these defects to the opposite party and then it was assured the defect will be solved during the first service and accordingly the complaint took the vehicle to the opposite party for service on 21/06/2018 when the vehicle was covered 300 km and actually the first service of the vehicle is stipulated to be carried out on or before 1000kms.  At that time the shock absorber replaced and also front fork was reconditioned.  The opposite party assured that they had taken steps to solve the issue of shortage of mileage, excess sound and also gear slipping. But the complainant submits that the same complaint remained within one week of use of vehicle thereafter.  Subsequently the complainant approached the opposite parties and then it was sold that they cannot rectify the defect of the vehicle.  The complainant approached for the next service while crossing the vehicle nearly 3300kms instead the service stipulated to be undergone in between 5000-5500kms.  The complainant submitted that the vehicle is idle and not able to carry passengers and there by the complainant has lost the income for his livelihood.  The complainant submits that he availed the loan for purchasing the vehicle.

3.     The complainant submits that,  the complainant availed the loan from the bank and he is liable to remit the bank loan as 48 installments of 4500/- rupees.  The complainant submits that he has no income from the vehicle, but the interest upon the loan is cumulating.  All these bitter experience and hardship caused to the complainant due to the manufacturing defect of the vehicle.  The opposite parties committed deficiency in service and unfair trade practice by selling defective vehicle to the complainant. 

4.       The complainant submitted that, he caused a lawyer notice on 24/10/2018, but the reply of the opposite party was utter falsehood.  Hence the complainant alleges deficiency in service and unfair trade practice against the opposite parties.   It is submitted that the opposite parties collected the cost of the vehicle including insurance premium, but even at the time of delivery insurance was not availed to the vehicle.  Hence the complainant submits that he suffered a lot of in convenience and hardships.  The submission is that if any accident was caused during the  days  before  availing insurance  to the vehicle the condition of the complainant will be too bad which cannot be imagined. 

5.      Hence the prayer of the complaint is to take back the vehicle KL-71-E-9631 autorickshaw and to refund the cost of Rs. 1,89,000/- along with expenses met by the complainant towards the maintenance of the vehicle as Rs.50,000/- and compensation of Rs.  50,000/- along with cost of the proceedings. 

6.      On admission of the complaint notice was issued to the opposite parties and opposite party entered appearance and filed version in detail denying the entire averments and allegations in the complaint. 

7.    The opposite parties admitted that the complainant approached the first opposite party on 01/06/2018 and he purchased the vehicle from the opposite party and the vehicle was delivered on 02/06/2018 itself.   At the time of delivery, the technicians of the opposite party duly and thoroughly examined the vehicle and also instructed the complaint about the speed control of the vehicle within in the two service periods.  The opposite party admitted that on 05/06/2018 the complainant approached the first opposite party with certain complaints but on examinations by technician of the opposite party, they could not find out any complaint as alleged by the complainant.  But the complainant stick on his allegations and for pleasing the customer the first opposite party advised the complainant to take the vehicle to the second opposite party for better examination of the vehicle. The first opposite party denied the allegation that the nosily was replaced by the first opposite party.  The vehicle was insured at the time of purchase itself and the same was handed over to the complainant. The opposite party denied the averment that the complainant approached the first opposite party on 07/06/2018.  But the opposite party submitted that the complainant approached the opposite party on 12/06/2018 as per advice of 05/06/2018. On that day the vehicle was examined by the technicians of second opposite party and found that the clear no defects as alleged by the complainant.   At that time also for the satisfaction of complainant the smoke pipe was tuned the shock absorber was fitted with extra bush. Subsequently the complainant did a test drive and a full satisfaction certificate was issued to the opposite party. The averment that the opposite party had assured consultation with company   about the jerking is baseless. 

8.     The opposite party submitted that, the complainant approached the opposite party on 21/06/2018 and on that day the complainant was taken in the vehicle as traveller in the back seat and on test drive, he made comment that “ഈ വാഹനം വാങ്ങിക്കേണ്ടിയില്ലായിരുന്നു, Bajaj Compact വാങ്ങിച്ചാൽ മതിയായിരുന്നു.”  Moreover, at that time the opposite parties attended the vehicle and replaced relevant spare parts freely which may cause the defect if any as alleged by the complainant.  The vehicle was also duly serviced on that day.   The complainant was duly instructed about the use of the vehicle by the technicians during that occasion also. 

9.      The opposite parties denied the averment that they told to the complainant that they cannot repair the vehicle anymore. The complainant availed vehicle service while crossed 3300kms but the service is to be availed within 75 days or in between 5000 and 5500kms.  So, the submission is that the service was availed on a belated date.  The opposite party denied the allegation that the vehicle has got exorbitant jerking and also not in a driving condition. 

10.     The opposite parties submitted that the vehicle purchased by the complainant is most accepted vehicle among consumers. There is no another complaint received against the vehicle alleging manufacturing defect.  The company is well known in the field of three wheelers.  The complainant purchase vehicle is Bajaj Maxima 2 which is the BSIV version of Bajaj Octima. The vehicle is available in the market from 2012 onwards and have a satisfactory history among the consumers. 

11.   The opposite parties further submitted that the complainant raising these complaints with ulterior objects.  The complainant approached the opposite party on 28/05/2018 and as per his request, quotation for Rs. 2,25,000/- was issued to him.  Thereafter on01/06/2018 while he came to the showroom, he could to see Bajaj compact vehicle and he expressed his willingness to purchase the same.    At that time, he expressed his willingness to refund the amount paid Rs. 1,80,000/-, but the opposite party denied the same and the complainant conceded to purchase the present vehicle.  The opposite party submitted that the complainant raised these issues while he contacted over phone also when he caused lawyer notice to the opposite party.  Hence the submission of the opposite party is that the mental attitude of the complainant is not use the present vehicle and the same is the cause behind filing this complaint.  It is submitted that the opposite party is not liable for the financial loss or inconvenience caused to the complainant.  The allegation of manufacturing defects is totally baseless and the complaint is liable to establish the manufacturing defect of the vehicle. Hence the prayer of the opposite party is to be dismiss the complaint with cost to the opposite party. 

12.   The complainant and opposite parties filed affidavit and documents.  The documents on the side of complainant marked as Ext A1 to A8. The commissioners report marked as Ext.C1.  The opposite parties filed documents and it is marked as Ext. B1. Ext. A1 is proforma invoice dated 31/05/2018. Ext. A2 is copy of tax invoice dated 01/06/2018. Ext. A3 is copy of insurance policy valid from 06/06/2018 to 05/06/2019 issued by National insurance company. Ext. A4 is copy of lawyer notice dated 24/10/2018.  Ext. A5 is postal acknowledgement. Ext. A6 is copy of reply notice dated 21/12/2018. Ext. A7 is copy of relevant page of bank pass book. Ext. A8is copy of permit dated 29/06/2018. Ext. B1 is copy of printout revealing vehicle in bound and seizure documents status. 

13.   Heard complainant and opposite parties, perused affidavit and documents.  The following points arise for consideration: -

1. Whether there is manufacturing defect to the vehicle.
2. Whether there is deficiency in service on the part of opposite parties.
3. Relief and cost.

14.Point No.1 to 3: -

       The allegation of complainant is that the vehicle purchased from the first opposite party is defective one and thereby the opposite parties are liable to refund the cost paid to the opposite parties and also entitled to get back the cost spent on repairing the vehicle and also compensation and cost. 

15.    It appeared that the complainant approached the opposite party immediately after the purchase of the vehicle.  The opposite party   duly attended the grievance of the complainant. But the complainant is not satisfied with the vehicle since he alleges manufacturing defect to the vehicle.  The allegation is that there is exorbitant jerking and also white smoke coming from the vehicle which is not normal one. 

16.    Now the question is whether the complainant could establish the vehicle has got manufacturing defect.  The opposite party submitted that, according to the technicians there is no defect as alleged by the complainant to the vehicle.  They contended that the complainant is liable to establish the manufacturing defect to the vehicle. But the complainant did not take proper steps to establish the manufacturing defects.  It is relevant to note that the complainant filed this complaint on 14/02/2019 and the opposite parties filed version on 20/01/2020.  Then subsequently the parties filed affidavit and documents.  Meanwhile the complainant filed an IA 561/2022 on 26/07/2022 to appoint an expert commissioner to examine the alleged manufacturing defect of the vehicle.  Considering the interest of justice, though it was highly belated one it was allowed and an expert commissioner Mr. Ravi Varma EradiV.P, Assistant Motor Vehicle Inspector SRTO, Nilambur was appointed. He prepared the report on 17/02/2023 after examination of vehicle and the same was filed before the Commission. Subsequently the complainant filed an application on 21/06/2023 to set aside the report for getting a further report from the side of the commissioner.  Considering the same the Commission dismissed the prayer since the process taken by the complainant was highly belated. 

17.    Now it appears from the report filed by the expert commissioner that the vehicle at the time of inspection as part of Commission process there was no fitness certificate to the vehicle and no insurance coverage.  Hence the commissioner reported that he could not examine the vehicle after driving the vehicle.   According to him, at the time of examination the vehicle has covered 57,277kms and the vehicle was kept parked at the front of the registered Owners residence.  The submission of the Commissioner is that vehicle is currently not in a condition to be driven or tested on a public road since the vehicle is having an expired certificate of fitness and expired insurance.  It is reported the commissioner that the RC owner of the vehicle was not available at the time of inspection of the vehicle, but the father of the RC owner who is in custody of the vehicle submitted before the Commission that the vehicle is having complaints and issues such as excessive jerking, handle bar vibration, left side pulling etc from the day of purchase itself.   The opposite parties submitted before the commissioner that as per the request from the part of complainant many parts including the shock absorber, wheel bearing, engine mounts, fuel system components, suspension components, fork components, oils seals were replaced by the dealership under the warranty during the service.

18.   Now it can be seen that though there is serious allegation of manufacturing defect to the vehicle but complainant could not prove the same properly. The opposite parties duly responded to the grievance of the complainant and did all the service under the warranty.  In the absence of proper evidence of manufacturing defects, the prayer of the complainant cannot be allowed.   In the light of above facts and circumstances we find that the complainant is failed to establish the manufacturing defect of the vehicle and so the complaint stands dismissed.

19.   The question of third issue, hence does not arise.  The complaint stands dismissed. 

Dated this 28^thday of November, 2023.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER

APPENDIX

Witness examined on the side of the complainant                      : Nil

Documents marked on the side of the complainant                    : Ext.A1to A8

Ext. A1 : Copy of  proforma invoice dated 31/05/2018.

Ext. A2 : Copy of tax invoice dated 01/06/2018.

Ext. A3 : Copy of insurance policy valid from 06/06/2018 to 05/06/2019 issued by

                National insurance company.

Ext. A4 : Copy of lawyer notice dated 24/10/2018. 

Ext. A5 : Postal acknowledgement.

Ext. A6 : Copy of reply notice dated 21/12/2018.

Ext. A7 : Copy of relevant page of bank pass book .

Ext. A8 : Copy of permit dated  29/06/2018.

Witness examined on the side of the opposite party                   : Nil

Documents marked on the side of the opposite party                 : Ext. B1

Ext. B1 : Copy of  printout  revealing  vehicle in bound and seizure  documents status.

Ext. C1 : Report of  Commissioner.

MOHANDASAN K., PRESIDENT

PREETHI SIVARAMAN C., MEMBER

MOHAMED ISMAYIL C.V., MEMBER