THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.

C.C.198/2013

Dated this the 28^th day of April 2017

                     (Smt. Rose Jose, B.Sc, LLB.                         :  President)

                          Smt.Beena Joseph, M.A                           : Member

                          Sri. Joseph Mathew, MA, LLB                : Member

ORDER

Present: Beena Joseph, Member:

            This petition was filed on 10.05.2013.  The gist of the complaint is that complainant had purchased a Motor bike from 1^st opposite party on 24.07.2012 obtaining loan and it was registered and bearing number KL- 11-AN 732.   After the purchase of the bike , it has a manufacturing complaint  that, if the gear is change 1^st to second, it become neutral and the above complaint was informed to the 2^nd opposite party but no action and there by complainant issued letter dated 06.04.2013 to the 1^st opposite party but there was no action on their part.  The bike was purchased by paying Rs.70,000/- after obtaining loan from financial institution.  Because of the above action of the opposite parties complainant have requested the redressal agency and distress the defect was pointed out in the guarantee period and then no action.  Therefore it is respectfully prayed that the  Hon’ble Forum may pleased to direct the opposite party to replace the above motor bike and grant compensation of Rs.10,000/-.

            Notice issued to both parties both of them appeared and both parties filed separate version.

            1^st opposite eparty filed version stating the following contentions.  The complaint is false frivolous vague and vexatious in nature and has been filed to injure the interest and reputation of the opposite party.  Therefore the complaint is liable to be dismissed as per section 26 of the Act.  The 1^st opposite party admits the purchase of SZR Yamaha Motor Bike from 2^nd opposite party on 24.07.2012.  The above vehicle was delivered to the complainant after  pre delivery inspection to the satisfaction of the complainant and there was no manufacturing defect to the Motor bike as alleged by the complainant.   The opposite party provided warranty to the bike for a period of two years or 30000 KM whichever occurs earlier as per  the terms of warranty, the same is extended only to the extent of certain parts that are found to have manufacturing defect and not to the complete motor bike. The 1^st opposite party undertakes to repair and replace the parts that are found to have manufacturing defect within the warranty period and duly discharged its responsibility in this regard.  Further no liability lies upon the opposite party for claims on those parts of the bike that have been subjected to mishandling or negligent treatment by the user.  As per the policy of opposite party all the jobs to be done on the bike are done only after opening a Job card and all the complaints or suggestions of the customer are entered in the Job card by the attending person and engineer.  It is submitted that whenever a Motor cycle was brought for a routine free service and normal check - up and every time the Motor cycle was delivered to the complainant to the satisfaction of the complainant.  As per the records of 1^st opposite party, the free service of the above vehicle was availed on 23.08.2012, 22.09.12 and 29.11.12. A bear perusal of above job card shows that Motorcycle was brought for routine free service and general service only and there was no complaint regarding any defect as alleged in the complaint.  The 1^st complaint with respect to the gear shifting was reported during the fourth free service dated 30.01.2013.  The motor cycle of the  complainant was thoroughly inspected in the presence  of the complainant and no problem was found and the motor cycle was delivered to the complainant after routine service and after finding the motor cycle perfect running condition as per the specification.  The above complaint was again alleged by him during the 5^th service dtd.30.01.13, the motor cycle was again properly inspected in the presence of complainant and no problem was found.

            However only to make the gear more smooth spring stopper lever was replaced.  There after the complainant  and engineer  of 2^nd opposite party took a test  drive of the motor cycle and it was found that complainant was not applying appropriate force while shifting the gear from 1^st to 2^nd gear.  Subsequently complainant was also erudite to shift from 1^st gear(which is down)to the second gear(which is up).  And the between them there is neutral and thereafter the bike was delivered to the complainant after general and routine services and after finding the Motor cycle in perfect running condition as per the specification of the opposite party.  Had there been any manufacturing defect in the motor cycle of the complainant, the bike of the complainant would have not run more than 11308 km from the date of purchase or within 6 months.  The complaints of the complainant were duly and promptly attended by the opposite party and the motor bike does not suffer any inherent defect.  For which the complainant could be benefitted by the Forum.  The copy of Job cords and owner’s manual are annexed hereto.  The instant complaint with respect to the gear shifting problem is nothing but an afterthought of the complainant to mislead the forum by fabrication and concreting facts which never existed and to have illegal gains from the opposite party through the Forum.  It is denied for want of knowledge that the complainant ever informed the alleged problem to the opposite party vide letter dated 06.04.2013.  However it is submitted that after the reception of notice from the Forum, the Engineer of the opposite party visited the complainant’s residence on 07.06.2013 for inspection of the motor bike but complainant refused and become adamant for replacement of bike with a new one.  The national Commission has held that the manufacturer cannot be held liable for the claims falling outside the scope of the warranty.  Where complainant’s were duly and promptly attended the complaint has not produced any evidence support to show that he has suffered inconvenience.  Hence the petition is liable to be dismissed.  The grievance of the complainant are duly attended by the 2^nd opposite party to the satisfaction of the complainant.

            The complainant has not produced any report of expert as defined under section 2(1)(a) of the Act.  This was upheld by the State and National Commission.  There is no privity of contract with the 1^st opposite party and the complainant.  This opposite party does not sell any motor cycle to any individual customer.  The 1^st opposite party sells the motor cycle to their authorized dealers only.  The dealer sales agreement  governs the relationship between the 1^st opposite party and its dealers.  This is a principal to principal basis so the 1^st opposite party cannot be held liable to the acts and omissions on the part of 2^nd  opposite party.  In view of the aforesaid the complainant against 1^st opposite party is liable to be dismissed.  The present complaint is liable to be dismissed in as manufacturing defect the complainant is raising false and  frivolous  claims with sole motive of harassing this opposite party, and injuring their reputation.  In view of the facts stated above the complainant is not  entitled to get replacement with a new one or refund the cost of the motor cycle or compensation or cost whatsoever.  It is denied that the motor cycle of the complainant is suffering any manufacturing defect whatsoever.  Therefore it is prayed that the Hon’ble Forum may be dismissed this petition without cost.

            Version of second opposite party contents the following facts.  2^nd opposite party denied the allegations and averments  of the complainant.  The complaint is not maintainable either in Law or on facts hence it is liable to be dismissed.  Regarding the purchase of the bike manufactured by 2^nd opposite party who is the authorized agent of 1^st opposite party, and warranty, free service etc. are admitted. But denies the statement of financial assistance obtained by the complainant.  The allegations regarding manufacturing defect of the vehicle stated in the Para -2 of the complainant is denied.  The 2^nd opposite party is not aware about the letter dated 06.04.2013 which send to 1^st opposite party regarding the inaction of the 2^nd opposite party.  The vehicle sold out by the 2^nd opposite party is a brand new one manufactured by 1^st opposite party, which is well known for its world class technology, expertise and quality.  Opposite party sold out the vehicle is devoid of any kind of defects either as manufacturing or otherwise and the contra statements are intended only ulterior motive only. The complainant should be put strict proof of his contentions.  There was no deficiency of service or unfair trade practice on the part of this opposite party.  Hence the 2^nd opposite party is not liable for any prayers of the complainant .  It is therefore humbly submitted that the complaint may be dismissed as devoid of any merits, without cost of this opposite party.

            In this matter complainant filed affidavit and examined as PW1 and Exts.A1 to A7 marked.  Ext.A1 is the booking Form.  Ext.A2 is the receipt issued by 2^nd opposite party.  Ext.A3 is the letter issued by complainant to 1^st opposite party dated 09.02.2013, Ext.A4 is the service record of the vehicle of the complainant.  Ext.A5 series is the receipt issued by 2^nd opposite party regarding service Ext.A6 is the copy of RC,  Ext.A7 is the payment statement of Finance.

            2^nd opposite party filed affidavit and examined as RW1 Ext.B1 to B6 marked.  Ext.B1 Job card dated 24.07.12. Ext.B2 Job card dated 22.09.12 Ext.B3 Job card dated 29.11.12, Ext.B4 is Job card dated 10.12.12, Ext.B5 is Job card dated30.01.13, Ext.B6 is Job card dated 05.04.13.

Points to be considered.

1. Whether the petition is maintainable or not?
2. Whether the vehicle is having any manufacturing defect?
3. Whether there is any service deficiency or illegal trade practice adopted by opposite party?
4. If yes, what are the reliefs?

     In this matter all the points stated above are interlinked which required common discussion.  So it can be considered together.  The complainant’s allegation is that the vehicle which he had purchased from 2^nd opposite party was having manufacturing defect.  In order to prove the same he is resorting the help of Ext.A1 to A7.  Ext.A1 & A2 are the receipts of payment of cash to the purchase of Motor Bike.  Ext.A3 is the  letter complaining  against the slip of gear to the 1^st opposite party.  Ext.A4&A5 are service record of vehicle and its payment receipts.  Ext.A6 is the RC and Ext.A7 is the bank statement.  In order to prove the same the above documents are insufficient.  There was no attempt on the part of the complainant to obtain any expert evidence or report to prove his contentions.  On the other hand the opposite party herein produced the Job cards of the complaint’s vehicle, which shows that the above vehicle was periodically serviced by the opposite parties as per the specification in the manual.  All these times complainant has no grievance about the manufacturing defect of the vehicle.  The complaint of the vehicle was stated in the affidavit alone by the complainant that too without any backing document.  While the complainant was cross examining by 2^nd opposite party he had stated that the above vehicle was completed 16000 KM now and he was unwilling to examine the vehicle by an expert, and he was unaware about the gear system of the vehicle.  This clearly shows that complainant herein is unaware about the basis of riding the Yamaha vehicle in order to find out a manufacturing defect of the vehicle there must be some expert checking and their reports are essential.  In this case there was no attempt on the part of the complainant to establish the case by getting expert report.  Complainant herein admitted that now the vehicle plyed up to 16000 km.  A vehicle, which having manufacturing defect could not ply 16000 km.  All the Job cards Ext.B5 & B6 there was no allegation with respect to the gear slipping.  All Job cards shows that the above vehicle was seen delivered to the complainant after rectifying the complaints to the complainant’s satisfaction.

            On the basis of the above discussion we come into a conclusion that there was no manufacturing defect to the vehicle number KL -11- AN 732 owned by the complainant herein.  Hence there is no merit in this complaint.

            In the result the above petition is dismissed without cost.

Dated this 28^th  day of April 2017.

Date of filing: 10.05.2013.

SD/-MEMBER                                              SD/-PRESIDENT                      SD/- MEMBER

APPENDIX

Documents exhibited for the complainant:

A1. The booking Form of the vehicle

A2. Receipt issued by 2^nd opposite party dtd.18.07.2012.

A3. The letter issued by complainant to 1^st opposite party dtd.09.02.2013.

A4.The service record of the vehicle of the complainant

A5.Series is the receipt issued by 2^nd opposite party regarding service.

A6. The copy of R.C.

A7. The payment statement of Finance.

Documents exhibited for the opposite party:

B1.Job card dated 24.07.2012.

B2.Job card dated 22.09.2012.

B3. Job card dated 29.11.2012.

B4. Job card dated 10.12.2012.

B5. Job card dated 30.03.2013

B6. Job card dated 05.04.2013.

Witness examined for the complainant:

PW1. Venu.K.k.(complainant)

Witness examined for the opposite party:

RW1. T.V.Mohammed( Service Manager of OP2)

                                                                                                                              Sd/-President

//True copy//

(Forwarded/By Order)

SENIOR SUPERINTENDENT