JUDGMENT

            That the complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service and use of defective motor cycle.  Hence prays for to order the respondents to replace the defective motor cycle along with the compensation of Rs.84,684/- and to award cost.

             Brief averments of the Complaint are;

            2.  That the complainant alleged that he had purchased Glamour D.R.S.Cast Cycle Motor from Respondent on 19-09-2014 bearing Chassis No. MBLJA.06 AGDGM 16132 Engine No. JA-06JDGM-19602 that the vehicle purchased is registered as Registration No. KA-37/X8260.  That as per the invoice, the said cycle motor costs at Rs.54,426/-.  The complainant further alleged that the respondent No.2 has received on road price at Rs.78,000/- from him.  That the respondent No.2 has received the price of the cycle motor from complainant in presence of Hanumanth S/o: Yankappa Hiremani, R/o: Kushtagi and Umesh S/o: Katti R/o: Kushtagi.  The complainant further alleged that Respondent No.2 had not issued the purchase receipt, on enquiry by the complainant respondent No.2 informed that R-1 will issue the purchase receipt.  After taking the purchase receipt from Respondent No.1, it was known that, the Respondent No.2 has collected excess price than the show-room price as shown under the invoice.

            That the complainant further alleged that the respondent No.2 delivered the cycle motor to him on 19-09-2014.  After using of the said motor cycle, the complainant has suffered back pain and the doctors advised the complainant to change the vehicle.  Hence the complainant requested the R-2 to replace the cycle motor in the last week of January – 2015 but the R-2 refused to replace the defective motor cycle on ground that the motor cycle model is 2013, that the complainant further alleged that he was healthy, prior to use of defective cycle motor bearing model of 2013 by use of this defective motor cycle the complainant has incurred medical expenses of Rs.25,000/-.  R-2 received excess price of Rs.24,684/- and mental and physical torture and loss of convenience of Rs.35,000/- in total to the tune of Rs.84,684/-.  The complainant further alleged that the R-1 and R-2 refused to replace the cycle motor during warranty period.  Hence R1 and R2 have committed the deficiency in service towards complainant.  The complainant further alleged that he also suffered mental torture due to deficiency of service and use of defective motor cycle.  Hence prays for direction to order the respondents to replace the defective motor cycle along with compensation amount of Rs.84,684/- and award costs of the proceedings as prayed above.

            3.  The Forum after admitting the complaint, the notice was issued to the opponents.  The opponent No.1 appeared before the Forum along with their counsel and filed vakalat and written version to the main petition.  In pursuance of issuance of notice to respondent
No. 2, the OP No.2 have not appeared before the Forum and he has been placed exparte.

            4.  The objections of the opponent No.1 are as under;

            That the complainant is bad in law and not maintainable either in law or on facts and is liable to be repelled in limini that what herein not admitted by this respondent is deemed to have been specifically denied by him and the complainant is put to strict proof of the same.

            That the respondent No.1 further submitted that the para No. 1,2,3,4,5 and 6 of the complaint are all false and vehemently denied by him and the complainant is hereby called upon to strict proof of the same. 

            The respondent No.1 submitted that, the contents of the para No.2 that, the complainant the Glamour DRS CAST Motor cycle from respondent No.2 on 19-04-2014 bearing Chassis No. MBLJ 064 G DGM 16132, Engine No. JA 06 JDGM-19602 is not true and correct, further allegation in the said para that, the vehicle purchased is registered Its Registered No. KA 37 A 8216 is not true and correct.  Further allegation in the said para that, as per invoice the said motor cycle cost at Rs.52426/- is not true and correct.  Further allegation in the said para that, the Respondent No.2 has received on Road price at Rs.78000/- from the respondent is all false and complaint is hereby called upon to strict proof of the same.  Further allegation in the said para that, the Respondent No.2 Received the price of the Motor cycle from the complaint in the presence of Hanumantha son of Yenkappa Hiremani, resident of Kushtagi, and Sri Umesh son of Katti resident of Kushtagi is all false and vehemently denied by this respondent and complainant is hereby called upon to strict prop of the same.

            The respondent No.1 further submitted that, in fact this respondent has not at all received any excess amount from the complainant.  Further this respondent has not at all violated any agreements; further this respondent has not at all forced the complainant to purchase the vehicle.  Under these circumstances the question of deficiency of service does not arise.  Further admittedly vehicle is in good condition.  There is no mal functioning or mal designing by the company.  Under these circumstances the complaint has no locus standi to replace the vehicle, and further in all angle complainant has no locus standi to use the said vehicle as defective one.  On that count also the complaint itself is not maintainable and is liable to be rejected.  Further it is also submitted here that, the said designed vehicle is circulated all over the territory of India as well as abroad and also further the said vehicle model is designed and manufactures as per the convenience of the rider, and therefore the said vehicle is well reputed vehicle and worldwide accepted one, and therefore the say of the complainant is created, concocted and for claiming the false and illegal claim without any cogent document or reasoning filed the present complaint.  On that count also the complaint is itself liable to be rejected. 

The respondent No.1 further submitted that, the calculation made in para No.4 of the complaint is created for the purpose of illegal claim.  On this count also the claim of complaint is liable to be rejected, as the same is assumption and presumption and not based on the sound principles of law.

Hence, prays for the dismissal of the complaint with exemplary costs.

            5.  On the basis of the above pleadings, the following points have been framed;

POINTS

1.  Whether the complainant proves that there is deficiency in service in not replacing the said vehicle and has sustained mental torture by use of defective motorcycle?

2. Whether the complainant is entitled for the relief sought for?

3. What order?

6.  To prove the case of the complainant, the complainant himself examined as PW1 and has got marked documents as per Ex.A.1 to Ex.A.7 and closed their side of evidence.  The Respondent No.1 did not lead any evidence after granting sufficient time, the evidence is taken as closed.  Documents were not produced and closed their side of evidence.

7.  Heard the arguments of counsel for the complainant and the Respondents and perused the records.

8.  Our findings on the above points are as under;

Point No. 1 :  In Negative

Point No. 2 :   In Negative

      Point No. 3:   As per final Order for the following

REASONS

9.  POINT No. 1 and 2:  As these two issues are interconnected each other.  Hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

            10.  On perusal of the pleadings, evidence coupled with documents of respective parties on record, the respondent No.1 in his written version has contended that the complainant has not purchased the said vehicle from OP No.2 and is not registered with registration No. KA-37/A8216.  To prove the case of the complainant, the PW1 has reiterated the complaint averments in his examination in chief and in support of his case he has produced the documents pertains to the above said vehicle.  i.e., Sale Certificate, which is marked as Ex.A.2, Insurance which is marked as Ex.A.3 and the R.C. pertaining to the above said vehicle marked as Ex.A.4 and retail invoice which is marked as Ex.A.1.  i.e., Ex.A.1 to Ex.A.4 clearly reveals the name of the complainant that he has purchased the above said vehicle from Respondent No.2 and he is the owner of the above said vehicle.  To substantiate the same that PW1 has produced the Retail Invoice, Ex.A.1, which has been purchased by the complainant.  So also on perusal of Ex.A.1, the Retail Invoice, it is crystal clear that only amount of Rs.54,426/- has been collected from the complainant.  But PW1 has deposed that the respondent No.2 has collected excess price amount than the show room price to the tune of Rs.24,684/-.  But to prove this, the complainant has not produced any other cogent and corroborative evidence except putting suggestions to that R-2 has collected the excess amount and the said suggestions have been categorically denied by the Respondent No.1.  Further the complainant averred and deposed that he has suffered from back pain after using the said motorcycle and the doctors advised the complainant to change the vehicle and has incurred medical expenses of Rs.25,000/-.  Therefore, on the perusal of Ex.A.8, the Medical Certificate issued by the doctor of Primary Health Center, Hanumasagar, Tq: Kushtagi that the complainant is suffering from low back ache and he is under treatment with him.  This certificate is not enough to prove that, he is suffering from the low back ache due to driving of the above said vehicle and the doctor has not mentioned that due to driving of this vehicle he is suffering from low back ache.  As far as his medical expenses that the complainant has incurred Rs.25,000/-.  But to substantiate the said medical expenses there is no cogent documents have been produced by the said complainant and it is unbelievable with respect to low back ache, it has been caused due to driving of the above said vehicle and has incurred Medical Expenses to the tune of Rs. 25,000/-

            11.  Further, with respect to the mental torture due to deficiency of service and use of defective motor cycle.  But to prove the defective motorcycle and mental torture the complainant has not produced any other cogent and corroborative evidence except alleging to that.  The complainant has no where averred or deposed any damage or defect in the above said vehicle so the question of replacing the vehicle with a new vehicle does not arise here.  On the contrary as per the oral evidence coupled with documentary evidence, the complainant has failed to prove that he has sustained mental torture due to deficiency of service and use of defective motorcycle.

            Hence in the light of above observation, the complainant failed to prove deficiency in service.  Hence in the light of above observation we constrained to hold issue No.1 and 2 in the Negative.

12.  POINT No. 4 :- Hence, in the result, we proceed to pass the following;

ORDER

1. The complaint against OP No.1 and 2 is hereby dismissed without cost.

2. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 29^th day of December 2015.

                                                // ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.