BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

 22^nd DAY OF SEPTEMBER 2015

O R D E R

SRI. P.V SINGRI, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Party (herein after referred as OP) with a prayer to direct the OP to pay him a sum of Rs.1,50,000/- and damages @ Rs.500/- per day from the date of purchase of the Autoriksha till the date of realization with costs.

2. The brief averments made in the complaint are as under:

The complainant purchased a Autoriksha from the OP on 23.07.2013.  After purchasing the Autoriksha, the complainant obtained necessary permission from RTO and NOC from the Petroleum and Explosives Safety Organization for installation of LPG.  The said vehicle was hypothecated with Vinayaka Investments.  The said Autoriksha is also duly insured with Sriram General Insurance.  Since from the purchase of the said Autoriksha bearing No.KA-01-AC-6809 it was not in a good condition and the same has been delivered to the complainant by the OP without proper checking/inspecting.  The complainant brought to the notice of the OP about the defect in the Autoriksha on several occasions but the said defect was never rectified.  Whenever the complainant visited the OP with the Autoriksha for rectifying the mistakes, he was made to sit for a day and end of the day hurriedly repair his vehicle and deliver to the complainant stating that the defect has been attended to.  However the defects persisted.

The complainant again on 28.09.2013 visited the OP for checking up the Chassis of the Autoriksha and the OP checked the vehicle and issued the written endorsement stating that there is a little fault in Chassis alignment, however the same is not due to the fault of the OP.  When OP failed to set right the defect in the Autoriksha despite repeated visits the complainant finally got issued a legal notice dated 05.10.2013 to the OP to replace the said Autoriksha with a good Autoriksha or pay him a sum of Rs.1,50,000/- and damages @ Rs.500/- per day from the date of purchase together with interest.  Despite service of notice, the OP failed to reply to the said notice and also failed to replace the said Autoriksha with a new Autoriksha.  Thus there is a deficiency in service on the part of the OP.

For the aforesaid reasons, the complainant prays for an order directing the OP to pay him a sum of Rs.1,50,000/- together with damages @ Rs.500/- per day from the date of purchase along with interest @ 24% p.a with cost of the litigation.

3. The OP in response to the notice issued, appeared through their advocate and filed their version contending in brief as under:

The OP is only an authorized dealer of the said vehicle and without the manufacturer being made as a party this complaint is bad in the eyes of law.  As such, the complaint is liable to be dismissed for non-joinder of necessary and proper party.  The complainant has filed this complaint with a malafide intention to harass the OP and also to make some quick money in the process thereby bring a bad name to the OP.  The Autoriksha in question does not suffer with any defect as alleged by the complainant.  The very fact that the Autoriksha is still in the custody of complainant and the said vehicle till today is able to run the same and till today the vehicle is in a good running condition and does not suffer with any manufacturing defects.  There is no cause of action to file the complaint since the said Autoriksha does not suffer with any manufacturing defects.

It is false to allege that the complainant has been delivered with the said Autoriksha without checking/inspecting properly.  The complainant has brought the said vehicle to the OP only once for the purpose of servicing that too when the vehicle had run 3260 Kms., as on 04.09.2013.  However, the first service was to be done within 1000 Kms.  As a goodwill gesture, the said vehicle was taken for first service and thereafter the complainant did not turn up at all to the service centre.  As such the warranties on this vehicle ceases since the mandatory services are not got done through this OP.

The complainant has not lodged any complaint regarding the alleged defect with this OP at any time.  For the first time, the complainant has raised the problem regarding the Chassis alignment.  There is no Chassis problem in the said vehicle and it is only a story weaved by the complainant.  The complainant never lodged any complaint with this OP on 28.09.2013 and this OP has not issued any written endorsement stating that there is a little problem in Chassis alignment.  The alleged endorsement has been created and fabricated by the complainant for the purpose of filing this complaint.  The complainant did not furnish the copy of the said endorsement to the OP for the veracity of the contents of the alleged endorsement.  Due to rush of work, the OP could not reply to the legal notice got issued by the complainant.  The non issuance of the reply should not be construed as admission on the part of the OP that the vehicle suffers from any defect.  Looking from any angle, the complaint is not maintainable and the same is liable to be dismissed.

For the aforesaid reasons, the OP prays for dismissal of the complaint with exemplary costs of Rs.10,000/- payable to the OP.  

4. On the rival contention of both the parties, the points that arise for our determination in this case are as under:

        5. The complainant to substantiate the allegations made in the complaint filed his affidavit by way of evidence and also written arguments.  The OP in support of their case filed affidavit evidence of one Shashikant R. Atre, Service Manager.  The OP also submitted their written submission.

6. Perused the allegations made in the complaint, the averments made in the version, the affidavit evidence of both the parties, documents filed by both sides in support of their respective contentions and other materials placed on record.  Heard the oral arguments advanced by the Learned Advocate appearing for both the parties.

7. Our answer to the above issues are as under:

REASONS

8.  Admittedly the complainant purchased a Autoriksha bearing registration No.KA-01-AC-6809 from OP M/s. Khivraj Motors, the authorized dealers of Bajaj Autoriksha on 23.07.2013.  The R.C of the said Autoriksha stands in the name of the complainant and has been duly insured.  The complainant is running the said Autoriksha after obtaining necessary permission from the R.T.O.  The complainant alleges that he was delivered with a defective Autoriksha by the complainant and the said Autoriksha was not performing well from the very next day of taking delivery of the same.  He further alleges that, he brought to the notice of the OP regarding the defects in the Autoriksha several times, however the defects were never rectified by the OP and the defects in the Autoriksha persisted.  He further alleges that on 28.09.2013 when he lodged the complaint to the OP for checking the Chassis, the OP checked the Chassis and issued a written endorsement stating that there is little fault in alignment of the Chassis.  Therefore, it is contended by the complainant that the Autoriksha is defective since from the beginning.  Therefore, he prays for an order directing OP to replace the same or pay him the price of the Autoriksha amounting to Rs.1,50,000/-.

9. The first and foremost objection which the OP raised was that the complaint is bad for non-joinder of necessary party since the complainant has not made the manufacturer of the Autoriksha as one of the parties to the complaint.  The Learned Advocate for the OP argued that the complaint is liable to be dismissed at the threshold since the complainant has failed to make manufacturer of the Autoriksha as one of the party to the complaint.  He further argued that the OP is only an authorized dealer and he is not responsible for manufacturing defects, if any, in the said Autoriksha.  He further submitted that the manufacturer of the Autoriksha alone is answerable to the manufacturing defects, if any, in the Autoriksha.  Therefore, he submitted that the complaint suffers for non-joinder of necessary party to the complaint.

10. Against this the Learned Advocate for the complainant placed reliance on a judgment rendered by Himachal Pradesh State Consumer Disputes Redressal Commission, Shimla in case between Khem Raj Sharma Vs. Ashok Kumar Sharma and Co., reported in Consumer Protection judgment II (2008) CPJ at page.141 argued that the complaint is very well maintainable even without making the manufacturer of the Autoriksha as a party.  He further argued that in view of the principle laid down in the above said authority, the manufacturer of the Autoriksha is not at all a necessary party or a proper party to the complaint and OP alone is answerable to the defects noticed in the Autoriksha.  Perused the judgment referred supra.

11. The Hon’ble State Consumer Disputes Redressal Commission, Himachal Pradesh at para.10 of the judgement has opined as under;

Faced with this situation, Mr.Sharma raised another plea that the impugned order deserves to be upheld as the complaint was bad for non-joinder of manufacturer of the TV set in question and according to him on this ground the appeal deserves to be dismissed.  We find no substance in this submission.  Manufacturer does not deal with the customer directly.  Rather it appoints its authorized agents, wholesalers, stockists and dealers, through whom it is in contact with the customers like appellant in the present case.  Moreover, this controversy has been set at rest by the National Commission vide its various decisions.  Between the customer and dealer, manufacturer no where figures.  Whatever manufacturer has to do it is with his dealer/agent/distributor/wholesalers etc.  As such, submission of Mr.Sharma is liable to be rejected.

12. In the instant case on hand, the complainant nowhere alleges that the Autoriksha in question had any manufacturing defect at the time of taking its delivery.  After taking delivery of the vehicle, the complainant has run the same for more than 3000 Kms within two months of period and he also did not allege that the said vehicle developed any serious manufacturing defects subsequently.  The only defect which has been alleged by the complainant is certain problem in the Chassis alignment.  Again the complainant does not allege that the problem in Chassis alignment is a manufacturing defect.  Therefore, in view of the facts and circumstances of the case, we are of the opinion that the manufacturer of the said vehicle is not a necessary party to the present complaint.

13. The complainant alleges that he was delivered with the defective vehicle by the OP and the said vehicle was not performing well from the day one of its delivery.  Except alleging that the said vehicle was defective the complainant does not specifically mentioned as to the nature of the defects he noticed in the said vehicle.  Neither he says that there was defect in the engine or in the breaks or in the clutch.  Though the complainant alleges that he took the vehicle to the OP several times and complained about the defects, the same was not attended by the OP properly and the defects persisted, however, the complainant did not mention the day or dates on which he took the vehicle to the OP.  The complainant has not produced any documentary evidence to substantiate his allegations that he visited the OP with the vehicle several times and lodged complaint about the alleged defects in the vehicle.  In absence of any documentary evidence it cannot be believed that the complainant took the vehicle to the OP several times and complained about any defect.

14. The Learned Advocate for the complainant to substantiate his allegations that the said vehicle was defective heavily relied upon an endorsement dated 30.09.2013 alleged to have been issued by one Ajay Kumar working in the OP.  The complainant failed to explain as to the designation of the Ajay Kumar in the OP and whether he was an authorized mechanic working in the Opposite party.  The Learned Advocate for the OP denied the issuance of any such endorsement by any of the responsible person in the OP and argued that the said endorsement is a concocted document only for the purpose of filing the present complaint.

15. Carefully perused the said endorsement dated 30.09.2013.  In the first place the said endorsement is not in the letter head of the OP, secondly there is no evidence to show that Ajay Kumar, the signatory of the said endorsement is working in the second party.  The said endorsement is not happily worded and does not convey the correct message as to the defect in the said vehicle.  However, with some difficulty it can be made out that after examining the vehicle the mechanics have found that there is little problem in the Chassis alignment, however the said problem is not due to the fault on the part of the OP.  Further it is stated in the said letter that according to the technician the said problem in the Chassis alignment is due to driving the vehicle with heavy load, more than 3 passengers and running it in the pot holes.  Assuming that the said endorsement is issued by any responsible person in the OP even then it cannot be said that the said vehicle had any Chassis alignment problem at the time of delivery.  It is apparent from the said letter that after more than 2 months from the date of the delivery the problem in the Chassis alignment has been noticed and according to the mechanics the problem in alignment of the Chassis is due to over loading and running the Auto in the pot holes.  Therefore, the said problem in Chassis alignment cannot be attributed to either manufacturing defects or due to mishandling of the vehicle by the dealer (OP).

16. It is also pertinent to note here that the complainant has taken the vehicle for first servicing on 04.09.2013 as per his own document produced along with the complaint.  The OP has produced the job card of the first service of the said Autoriksha conducted on 04.09.2013.  While tendering the said vehicle for the first free servicing, there is no mention of any defect in the said vehicle by the complainant.  The copy of the warranty card produced by the OP discloses that the complainant was to avail the first free service at 750 to 1000 Kms or 30 days from the date of sale whichever occurs earlier.  Admittedly the complainant has not availed the first service either within 30 days of delivery or between 750 to 1000 Kms.  The job card produced by the OP shows that when the complainant tendered the said vehicle for first service, the said Auto had already run 3260 Kms.  Admittedly the complainant has not tendered the said vehicle for the second free service within 75 days or 4500 to 5000 Kms whichever occurs earlier.  It has been clearly mentioned in the service coupons that the customer has to avail all services/oil changes to get benefit of warranty.  Thus it is abundantly clear that if at all the complainant desires to get benefit of warranty he has to avail all services/oil changes as provided in the warranty card.  Admittedly the complainant has not availed all the services/oil changes as prescribed in the warranty card.  Under these circumstances the complainant cannot get the benefit of the warranty of one year also provided to the said Autoriksha.

17. As already mentioned above, even at the time of first service availed by the complainant, he did not lodge any complaint to the OP regarding any defect in the said vehicle.  Complainant also not produce any documentary evidence to substantiate his allegations that he lodged several complaints to the OP regarding the alleged defects in the vehicle prior to the issuance of the alleged endorsement dated 30.09.2013.  More over the alleged Chassis alignment problem is not because of any manufacturing defect but because of over loading and driving the Autoriksha in the pot holes as stated in the said endorsement.  Thus looking from any angle, we do not find any reasons to believe that the complainant was delivered with a defective vehicle by the OP.  It appears that the alleged defects have occurred in the vehicle due to over loading etc.  Moreover the complainant also cannot get benefit of the warranty since he has failed to avail all the service/oil changes as warranted in the warranty card.

18. For the aforesaid reasons, we are of the opinion that the complainant is not entitled for any of the reliefs claimed in the complaint.  The order could not be passed with-in the stipulated time due to heavy pendency.  In the result, we proceed to pass the following:   

  O R D E R

The complaint filed by the complainant U/s.12 of the Consumer Protection Act, 1986 is dismissed.  No order as to costs.

Furnish free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 22^nd day of September 2015)

MEMBER                            MEMBER                    PRESIDENT

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Witnesses examined on behalf of the complainant dated 14.02.2014.

1. Sri.Selvaraj

Documents produced by the complainant:

Witnesses examined on behalf of the Opposite Party dated 10.03.2014.

1. Sri.Shashikant R Atre

Documents produced by the Opposite party:

MEMBER                            MEMBER                    PRESIDENT

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