Date of Filing:28/03/2011

        Date of Order:22/06/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  22^nd DAY OF JUNE 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO. 616 OF 2011

K. Krishna Prasad,

# 59, 12^th Cross,

Kanaka Nagar,

R.T. Nagar (post),

BANGALORE-32.                                                                 ….  Complainant.

V/s

M/s. Khiviraj & Bajaj,

No.2 & 11, 100’ Road,

HAL 2^nd Stage, Indira Nagar,

BANGALORE-38.

Rep. by its Manager.                                                          …. Opposite Party.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Party to pay Rs.94,050/-, are necessary:-

          On 20.08.2010 the complainant purchased from the opposite party on the auspicious day of Varamahalakshmi Vratham by borrowing a loan of Rs.53,000/- through M/s. Bajaj Finance and paying Rs.31,650/- the down payment, in all paying Rs.94,050/- the Bajaj Avenger two wheeler.  On that day the opposite party’s the water cleaning motor was under repair and hence the opposite party asked the complainant to come on the following day and pick-up.  As it was an auspicious day the complainant took the vehicle to water service station near Ambedkar college and while cleaning the vehicle it was noticed damage to silencer, front brake lever, throttle grip cap (handle), right side bumper and right side indicator (back) and pillion rider seat rest’s rod and it shows that either it was damaged one or used by someone else and the back side rim also some what been bent and it was tried to be repaired.  Immediately the complainant went to the opposite party who agreed to change some parts but due to the closing hours of their showroom they asked the complainant to come on next day.  On the next day when the complainant took the vehicle they behaved improperly and fixed the silencer from a defected vehicle and when the complainant questioned they behaved rudely.  Thereafter the complainant contacted Mr. Sheshadri of the opposite party on 22.08.2010 and explained to him the facts and recorded his conversation, and on the next day the complainant contacted Mr. Thirumala and his voice was also recorded.  Hence the complainant wrote to the opposite party on 26.08.2010.  The opposite party did not give any reply on 03.09.2010.  Mr. Rajesh Barunda the manager of the opposite party contacted the complainant on phone and explained the matter and tried to compromise with the complainant and at the same time his voice was also recorded.  But the opposite party did not agreed to exchange the vehicle as it was already registered in the complainant’s name.  The opposite party cheated by giving a damaged vehicle by fixing duplicate parts.  Whenever the complainant visited the opposite party several time, they were asking the complainant to come next time.  Hence the complainant is fed up.  Hence the complaint.

2.       In brief the version of the opposite party are:-

          The opposite party is a reputed dealer of M/s. Bajaj Auto Limited.  It is an admitted fact that the complainant purchased the vehicle in question but it is not on 20.08.2010 but it is on 17.08.2010.  He had taken delivery of the vehicle on 17.08.2010.  He has chosen the vehicle from the showroom.  He has come up with this case after seven months.  In the notice he has stated that there are some scratches, but now he is saying there is damage.  After the purchase of the vehicle the complainant has not at all brought the vehicle even for regular maintenance service to the opposite party as per the terms and conditions of the warranty.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the parties have filed their respective affidavits.  Certain photographs are also filed.  The arguments were heard.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is deficiency in service/unfair trade practice?
2. What Order?

5.       Our findings are:-

Point (A) & (B)         :           As per the final Order

                                      for the following:- 

-:REASONS:-

Point A & B:-

6.       Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the complainant had obtained Rs.53,000/- loan from M/s. Bajaj Finance, paid Rs.31,650/- the down payment, in all he paid Rs.94,050/- and purchased the Bajaj Avenger 220 DTS-I Motorcycle bearing engine No.PDGBTD00098 and Chassis No.MD2DGPDZZTCD00075 from the opposite party who is the dealer of the said vehicle.  The complainant has stated that he had purchased the vehicle on 20.08.2010 that is the auspicious day of Varamahalakshmi Vratham, but the opposite party contends that the complainant had taken delivery of the vehicle on 17.08.2010.  Neither of the parties have produced the R.C. of the vehicle.  Without registration of the vehicle before the RTO no vehicle can come to the road without paying insurance no vehicle can come to the road.  

7.       Both the complainant and the opposite party has produced the tax invoice dated: 17.08.2010.  The tax invoice produced by the complainant reads thus:-

In this tax invoice in the column “customer’s signature” it is blank; checked by it is blank it does not say on what day the vehicle has been taken possession by the complainant.  This is very much important to know.

8.       The opposite party has produced the same copy of the said tax invoice.  In this tax invoice on the cross mark at the customer’s signature the complainant signature is there, but who has checked the vehicle is not stated. Without checking the vehicle the vehicle cannot be delivered to anybody.  Hence it means on 17.08.2010 the vehicle was not delivered to the complainant as rightly contended.  RC number is concerned, when it was registered is not at all stated.  Hence it lies ill on the mouth of the opposite party to say that the vehicle has been delivered to the complainant on 17.08.2010, on selecting from the Godown of opposite party.  According to opposite party the complainant selected to purchase the vehicle and took delivery.  Without registration it cannot be delivered.  Without vehicle being taken to RTO it cannot be registered.  Hence it cannot be believed. 

9.       The opposite party has produced the alleged gate pass with respect to the said vehicle dated: 17.08.2010.  This gate pass also does not contain the signature of any person with respect to HP smart card:-

Here the signature of the Manager found in this is totally different from the signature of the manager found in the tax invoice.  How this could happen?  There is no answer.  Further in this gate pass only on the cross mark at the customer’s signature the signature of the complainant is there according to the opposite party.  The signature found in the tax invoice and in this gate pass appears to the necked eye is of different persons, it is not made by the same person at the same time.  If the signatures are made on 17.08.2010 on both these documents by the complainant it would have been the same signature without any sort of variation, but it varies? how?  In the gate pass K. Krishna Prasad the “K” in both are different, in the gate pass Krishna Prasad is together signature, but in the tax invoice Krishna and Prasad are two different writings how?  This clearly goes to show that the complainant’s signature had been taken on blank papers and these documents have been concocted as rightly contended.  Anyway the person who has signed as manager in gate pass and the person signed in the tax invoice are totally different, and it is further the signature found in the version and in the affidavit is by one Abdul Majeed, but his signature is not there in the gate pass and in the tax invoice.  The persons who have signed in the gate pass or in the tax invoice have not come and filed any affidavit to state that the vehicle was delivered to the complainant on 17.08.2010.

10.     The complainant has stated that on the auspicious day of Varamahalkshmi Vratham that is on 20.08.2010 the water cleaning motor of the opposite party was under repair, hence the opposite party wanted the complainant to come on the following day to take delivery of the vehicle and when he took the vehicle to some other water cleaning service station near Ambedkar college there he came to know that the silencer, front brake lever, throttle grip cap (handle), right side bumper and right side indicator (back) and pillion rider seat rest’s rod are damaged and this he was not knowing earlier.  This is a negligent act and unfair trade practice committed by the opposite party and when he took the vehicle to the opposite party as stated supra it was a closing hours and opposite party asked the complainant to take the vehicle on the next day.  On the next day he took it and they have changed the silencer from the defective vehicle, when he questioned they behaved rudely.  There is nothing to disbelieve the said allegation made by the complainant.  The opposite party never stated that on 20.08.2010 its water cleaning motor was in order.  How can the complainant came to know that the water cleaning motor of the opposite party was out of order on 20.08.2010?  Unless he had gone to the opposite party and took the vehicle on 20.08.2010 he would not have known this.  That means the opposite party had delivered a damaged vehicle to the complainant.

11.     It was contended by the learned counsel for the opposite party that in the notice issued on 26.08.2010 the complainant has not stated about the damage caused to the vehicle, but has stated only scratches to the vehicle.  In any event the complainant is not a legal man, but the complainant has stated in the notice thus

“I find out some scratches on it viz., Silencer, Front brake lever, Throttle grip cap (handle), Right side bumper and right side indicator (back) and pillion rider seat rest’s rod and it shows that, either it may be damaged one or it may be used by someone previously and the back side rim also some what bent and it was also tried to get repaired, but it slightly known when we had touched with our hands.  In this regard, when I contacted you, in the beginning you refused to agree the same, but later you had agreed to replace the parts which were having scratches”

This clearly goes to show that the damaged parts were there in the vehicle and it was delivered to the complainant.  The opposite party has not replied to this notice from 26.08.2010 till day! why?  Hence an adverse inference has to be drawn regarding this. 

12.     Further the complainant has stated and sworn to in the affidavit thus:-

“Further, as stated in para-4 of its version, if those averments are true and correct, how the employees of the said Firm viz., one Sheshadri on 22.08.2010 (with Mob. No.9900563399), Thirumala on 23.08.2010 (with Mob. No.9880629447) and Rajesh Baronda on 03.09.2010 (with Mob. No.9036010621) had agreed the deficient service given by this opposite party in my case and it is very clear from our conversations and they themselves had agreed their mistakes.”

That means that Mr. Sheshadri of mobile No.9900563399, Thirumala of mobile No.9880629447 and Mr. Rajesh Baronda of mobile No.9036010621 of the opposite party had agreed that they had delivered this damaged vehicle to the complainant and agreed to replace the parts but now they have changed their colours.  This has not been challenged by the opposite party nor denied by the opposite party nor Mr. Sheshadri, Mr. Thirumala and Mr. Rajesh Baronda have filed any affidavit denying these statements made by the complainant.  Hence an adverse inference has to be drawn against the opposite party as rightly contended.  Even the photographs of the vehicle clearly establishes there is some damage to the parts.  It is an unfair trade practice committed by the opposite party.  Hence under these circumstances if we direct the opposite party to change the Silencer, Front brake lever, Throttle grip cap (handle), right side bumper and right side indicator (back) and pillion rider seat rest’s rod of the vehicle in question by replacing it with a brand new defectless parts within 30 days we think that will meet the ends of justice.  Hence we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Allowed-in-part.
2. The opposite party is directed to replace Silencer, Front brake lever, Throttle grip cap (handle), right side bumper and right side indicator (back) and pillion rider seat rest’s rod of the vehicle in question with a brand new defectless Silencer, Front brake lever, Throttle grip cap (handle), right side bumper and right side indicator (back) and pillion rider seat rest’s rod parts within 30 days from the date of the order.
3. The opposite party is also directed to pay Rs.2,000/- to the complainant towards cost of this litigation.
4. The opposite party is directed to comply with the order as ordered at Serial No.2 above and send the amount as ordered at Serial No.3 above through DD by registered post acknowledgment due to the complainant and submit the compliance report to this Forum with necessary documents within 45 days.
5. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
6. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 22^nd Day of June 2011)

MEMBER                                           MEMBER                          PRESIDENT