IN THE CONSUMER DISUTES REDRESSAL FORUM, PATHANATHITTA

Dated this the 25^th day of May, 2010.

Present : Sri. Jacob Stephen (President):

Smt. C. Lathika Bhai (Member)

                                                  Sri. N. Premkumar (Member)

O.P.No.28/05 (Filed on 23.02.2005)

Between:

Mammen Mathew,

Madathilethu House,

Poovathoor.P.O.,

Koipuram (Via),

Koipuram Village,

Thiruvalla Taluk.

(By Adv. G.M. Iduculla)                                                  .....     Complainant

And:

1.     M/s. Bajaj Auto Ltd.,

Rep. by its General Manager,

M/s. Bajaj Auto Ltd.,

Akurdi,

Pune – 411 035,

Mahararashtra State.

2.     The Dy. General Manager (Service),

Bajaj Auto Ltd., Akurdi,

Pune, Maharashtra – 411 035.

3.     M/s. Geo Automobiles,

Rep. by its Proprietor,

Geo Automobiles,

Pathanamthitta.

(By Adv. T. Harikrishnan)                                               .....     Opposite parties.

O R D E R

Sri. Jacob Stephen (President):

                   The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                   2. The complainant’s case is that the complainant is a church priest and an owner of Bajaj Caliber 115 Motor Cycle.  The said vehicle was purchased on 3.3.04 for his own use from the 1^st opposite party through their authorised agent, the 3^rd opposite party for Rs.38.350/-.  The vehicle shown various manufacturing defects right from the purchase onwards.  The major complaints noted by the complainant are overheating of the engine and gearbox.  There is also over sound from the engine and gearbox while riding and shifting the gear.  low pulling and mileage is also less.  Rust is also seen on the rim, silencer and all over the body in all chromium plated parts and screws.  The vehicle completed around 11000 km.  The complainant regularly serviced the vehicle as per the instructions given in the owner’s manual at the 3^rd opposite party’s service centre.  As per the demand of the complainant and as per the directions of the 3^rd opposite party, the service engineers of the 3^rd opposite party repaired the vehicle on 30.3.04, 4.5.04, 9.8.04 and 13.10.04.  But the said manufacturing defects were not rectified.  In the meantime, the complainant complained through 2^nd opposite party regarding the said manufacturing defect.  As per the instructions of the 2^nd opposite party, the service engineers of the 3^rd opposite party again done the same kind of mechanical works.  The manufacturing defects noted were not curable and are subsisting even after the repairs.  The vehicle is having a warranty for two years and up to 40000 kms.  Therefore, the opposite parties are duty bound to rectify the defects of the vehicle and compensate for the loss and damages caused to the complainant.  But they have not turned up to redress the grievances of the complainant irrespective of the request made by the complainant and on the legal notice issued to the opposite parties on 1.11.04.  The above said act of the opposite parties is a clear deficiency of service.  The opposite parties are liable to the complainant for the loss, damages and mental agony caused to the complainant.  Hence this complaint for an order directing the opposite parties either to replace the vehicle or to return Rs.38,350/-, the price of the vehicle, along with compensation of Rs.10,000/- for the expenses incurred by the complainant for the repair and Rs.50,000/- as compensation for mental agony along with cost of the proceedings.

                   3. Opposite parties entered appearance and filed their version with the following contentions:-  Opposite parties admitted the sale of the vehicle to the complainant.  The complainant had filed this complaint after one year from the purchase of the vehicle and after using it for one year.  If there have been any manufacturing defect how the vehicle would have run so far.  So this complaint is filed only on the basis of wrong assumption.  Opposite parties admitted the warranty of the vehicle.  The warranty is valid up to 3.3.04 and the warranty is not expired on the date of filing of this complaint.  So the vehicle can be attended for any problems as warranty is in force.  Therefore, the complaint is premature.  The date of repairs noted in the complaint is the routine periodical maintenance under the warranty conditions and said repairs are not made in connection with any specific complaints to the vehicle.  The defects pointed out by the complainant is imaginary, baseless and in without bonafides.  The service engineers never find any complaint in the vehicle as alleged by the complainant.  On every occasions when the complainant brought the vehicle for periodic service the service engineers of the 3^rd opposite party attended to the vehicle with utmost care.  The allegation of low mileage is false as the mileage shows 88 km. per litre in a test ride on 25.11.04 on the vehicle of the complainant.  According to the opposite parties, there is no manufacturing defect to the complainant’s vehicle and the complainant’s lawyer’s notice is also properly replied with all relevant facts.  Therefore, opposite parties prays for the dismissal of the complaint, as there is no deficiency of service from their part.

                   4. On the basis of the above pleadings, the following points were raised for consideration:

(1)              Whether the complaint is maintainable before this Forum?

(2)              Whether the reliefs sought for in the complaint are allowable?

(3)              Reliefs and Costs?

           5. The evidence of this case consists of the oral deposition of PWs.1 and 2 and Exts.A1 to A7 and B1. After closure of evidence, both sides heard.

          6. Point Nos.1 to 3:-  The complainant’s allegation against the opposite parties is that the Bajaj Caliber 115 Motor Cycle manufactured by the 1^st and 2^nd opposite parties purchased for Rs.38,350/- by the complainant from the 3^rd opposite party on 3.3.04 is having manufacturing defects and other complaints such as overheating of engine and gearbox, over sound from engine and gear box while riding and shifting the gear, less pulling and low mileage and rust on rim, silencer and other parts of the vehicle.  The said facts were noticed at the time of purchase itself.  The defects were brought to the notice of the opposite parties on several occasions and the vehicle was repaired by the 3^rd opposite party several times also.  But they have not taken any steps to rectify the defects so far irrespective of the complainant’s request and as per the complainant’s legal notice to the opposite parties.  According to the complainant, he had used the vehicle and serviced the vehicle as per the instructions in the owner’s manual.  The vehicle is having a warranty for two years or 40000 kms. which ever occurs earlier.  Since the vehicle had run only 11000 kms. and prescribed warranty period is not expired,  the opposite parties are duty bound to rectify the defects or to replace the vehicle.  In the circumstances, opposite parties are liable to the complainant.

          7. In order to prove the complainant’s case, the complainant had filed a proof affidavit narrating his case along with certain documents.  On the basis of the proof affidavit, the complainant was examined as PW1 and documents produced were marked as Exts.A1 to A7.  Ext.A1 is the cash receipt dated 3.3.04 for Rs.38,350/- issued by the 3^rd opposite party to the complainant at the time of purcahse of the motor cycle in question.  Ext.A2 is the photocopy of the R.C. Book of the complainant’s motorcycle.  Ext.A3 is the photocopy of the legal notice dated 1.1.04 issued to the 1^st opposite party.  Ext.A4 is the postal receipt of Ext.A3.  Ext.A5 is an inspection report dated 7.11.05 issued by PW2 in respect of the inspection conducted by him on the vehicle.  Ext.A5(a), (b) and (c) are three photographs of the motor cycle taken from various angles.  Ext.A6 is the photocopy of the driving licence of the complainant.  Ext.A7 is the owner’s manual of the vehicle (page No.23 of Ext.A7).  One witness, the maker of Ext.A5 report, is also examined for the complainant as PW2.

          8. The opposite parties contention is that the vehicle of the complainant has no complaints either manufacturing or otherwise as alleged by the complainant.  The vehicle was properly serviced during of regular services.  The service engineers never found any alleged defects complained by the complainant.  On getting the legal notice, the service engineers of the 3^rd opposite party conducted a thorough inspection on the vehicle on 25.11.04 and found that the vehicle is perfectly all right.  This complaint is filed on the basis of wrong assumptions.  According to the opposite parties, now the vehicle had run about 40000 kms. and how the vehicle had run this much kilometers with the alleged manufacturing defects.  The opposite parties also submitted that the complainant has not adduced any expert evidence to substantiate the complainant’s allegations.  In order to prove the complainant’s case against the opposite parties, they have cross-examined PWs.1 and 2 and one document is marked as Ext.B1 through PW2.  Ext.B1 is a letter dated 11.3.06 of PW2 sent to this Forum stating his inability to execute the commission order issued by the Forum in I.A.259 A/05 directing him to ascertain the condition of the vehicle in question.  Apart from the above evidence, opposite parties have not adduced any other evidence.

          9. On the basis of the contentions of the parties we have perused the entire materials on record.  There is no dispute regarding the purchase of the motorcycle and its periodical services.  The only disputes between the parties is that the motorcycle purchased by the complainant is having manufacturing defects and other complaints right from the purchase of the vehicle and the said complaints were not rectified by the opposite parties.  According to the opposite parties, they have not found any of the defects alleged by the complainant and the warranty period is not expired till the filing of the complaint and even if any complaints are found which can be rectified as per the terms of the warranty.  Opposite parties also contended that the complainant had not adduced any expert evidence to show that the complainant’s vehicle is having manufacturing and other defects and the vehicle have already completed 40000 kms.  So, according to the opposite parties how the said vehicle had run 40000 kms. with the alleged manufacturing and other complaints.

          10. The complainant has not produced any evidence except Ext.A5 report of PW2 for proving his case.  Ext.A5 is prepared by PW2 on the basis of the complainant’s request and it is not based on any order of this Forum.  However, Ext.A5 is the only material with regard to the complaints of the motorcycle.  But Ext.A5 cannot be relied on the following points:-

(1)   The 1^st point is that Ext.A5 is not prepared on the basis of an order 

      of this Forum.

(2)   The 2^nd point is that the person who had prepared Ext.A5, PW2,  

      was appointed as a commissioner by this Forum as per the order     

       in I.A.259A/05. But he had not accepted the order of this Forum  

        and surrendered the order stating his inconveniences in executing  

        the order of this Forum by Ext.B1 letter.

(3)   The 3^rd point is that he had inspected the vehicle on 2.10.05 and in

      his report he had stated that he prepared the report in the presence   

       of the opposite parties and after discussion with the opposite  

       parties.  But the complainant had failed to establish these facts  

       and also failed to take out a new commissioner for ascertaining 

        the defects of the vehicle even after the filing of Ext.B1 by PW2.   

        All the above said circumstances compelled this Forum to 

        discard Ext.A5.

         11.  Moreover the evidence shows that the mileage of the vehicle is 88 km. per litre.  It is admitted by the complainant in cross-examination as follows:- “25.11.2004- Â Service Engineers HmSn¨t¸m100 ml. petrol- \v 8.8 km. HmSn¨ncp¶p”  There is also no allegation against the opposite parties in their service.

                   12. In the circumstances, the allegations of the complainant is not supported with any expert evidence.  Moreover, it is admitted that the vehicle in question had already run 40000 kms. If there would have been any defects, as alleged by the complainant, the vehicle could not have run this much kilometers.  In view of the above discussions, it is clear that the complainant had failed to prove his case.  Hence we find that this complaint is not allowable and the opposite parties has not committed any deficiency of service and hence this complaint is liable to be dismissed.

                   12. In the result, this complaint is dismissed.  No cost.

                   Declared in the Open Forum on this the 25^th day of May, 2010.

                                                                                                      (Sd/-)

                                                                                                Jacob Stephen,

                                                                                                   (President)

Smt. C. Lathika Bhai (Member)           :         (Sd/-)

Sri. N. Premkumar (Member)              :         (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Mammen Mathew:

PW2  :  Manu. N.

Exhibits marked on the side of the complainant:

A1     :  Cash receipt dated 3.3.04 for Rs.38,350/- issued by the 3^rd opposite party 

             to the complainant.

A2     :  Photocopy of the R.C. Book of the complainant’s motorcycle.

A3     :  Photocopy of the legal notice dated 1.1.04 sent by the complainant to the 

             1^st opposite party. 

A4     :  Postal receipt of Ext.A3. 

A5     :  Copy of inspection report dated 7.11.05 issued by PW2 to the 

             complainant.

A5(a), (b) & (c)     :  Photographs (3 Nos.) of the motor cycle taken from

                                  various angles. 

A6     :  Photocopy of the driving licence of the complainant. 

A7     :  Owner’s manual of the vehicle (page No.23 of Ext.A7).

Witness examined on the side of the opposite parties:  Nil.

Exhibits marked on the side of the opposite parties:

B1     :  Letter dated 11.3.06 issued by PW2 to the President, CDRF, 

             Pathanamthitta.

                                                                                             (By Order)

                                                                                     Senior Superintendent.

Copy to:-  (1) Mammen Mathew, Madathilethu House, Poovathoor.P.O.,

            Koipuram (Via), Koipuram Village, Thiruvalla Taluk.

(2)  General Manager, M/s. Bajaj Auto Ltd., M/s. Bajaj Auto Ltd.,

            Akurdi, Pune – 411 035, Mahararashtra State.

(3)  The Dy. General Manager (Service), Bajaj Auto Ltd., Akurdi,

             Pune, Maharashtra – 411 035.

(4)   Proprietor, M/s. Geo Automobiles, Pathanamthitta.

       (5) The Stock File.