Date of filing: 14.05.2019
Date of order: 18.08.2022
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, VELLORE AT VELLORE DISTRICT
PRESENT: THIRU. A. MEENAKSHI SUNDARAM, B.A.B.L., PRESIDENT
THIRU. R. ASGHAR KHAN, B.Sc. B.L., MEMBER – I
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER - II
THURSDAY THE DAY OF 18TH AUGUST 2022
ONSUMER COMPLAINT NO.18/2019
M. Mohammed Zunaith,
S/o. Mohammed Ali,
No.36, Nehruji Nagar,
1st Street,
Arakkonam – 631 003,
Vellore District. …Complainant
-Vs-
1. M/s. Shree Shakthi Motors,
Rep. by its Proprietor,
No.1, Ramdoss Nagar,
Sholingur High Road,
Arakkonam – 631 001,
Vellore District,
Tamil Nadu, India.
2. M/s. India Yamaha Motors (P) Ltd,
A-3, Dadri Main Road,
Surajpur Industrial Area,
Noida – 201 304,
Uttar Pradesh. …Opposite Parties
Counsel for complainant : Thiru. M. Mohammed Zunaith
(Party in Person)
First opposite party : Set Exparte on 19.9.2018.
Second opposite party : Tr. A. Srinivasan, exparteon 21.11.2019.
ORDER
SELVI. I. MARIAN RAJAM ANUGRAHA, M.B.A., MEMBER - II
This complaint has been filed under Section 12 of Consumer Protection Act 1986,
1. The case of the complainants are briefly as follows:
The complainant purchased a Yamaha Motor Bike, Model R.V3, Blue with Engine No.G3K5E0003237, from the first opposite party on 02.04.2018. The complainant faced some defects like the engine switched off automatically while holding the clutch at the speed of 50 to 60 kmph, and other problems like engine abnormal noise, burning smell, gear stuck. These problems started to occur from the date of purchase itself. The complainant intimated the said issues to the first opposite party, who assured to rectify the same during the first service. But the defects were not resolved. The complainant states that the first opposite party had claimed to have informed the second opposite party, the manufacturer of the vehicle for warranty details and asked the complainant use the said bike until the replacement from the second opposite party. Further the complainant states that there was no response from both the opposite parties about the replacement, but on enquiry the first opposite party asked the complainant to handover the bike for repair, and that it would be rectified during the second service by the first opposite party. But he continued to face issues. The complainant has also lodged a complaint through Yamaha customer care on 24.11.2018, but the same was closed on 17.12.2018 without solving any of his bike issues. The complainant states that on 26.12.,2018 the first opposite party asked the complainant to bring his bike for repair, but even after the services, nothing was resolved and the bike still had the same issues.
The petitioner states that he made a written representation on 11.01.2019 to both the opposite parties, but they have wilfully and wantonly not responded. Thus, the complainant submits that the second opposite party have manufactured a defective product and sold it to the complainant and that the first opposite party does not have qualified service person to repair the said bike. Due to this the petitioner was put to great hardship, irreparable loss, mental agony and stress. Thus on 21.02.2019 the complainant sent a legal notice to the both the practice and they replied on 05.03.2019 with false and frivolous notice. Hence this complaint.
2. The written version of the second opposite party is as follows:
It is submitted that the instant complaint is false, frivolous, vague and vexation and has been made to injure the interest and reputation of this opposite party. Therefore, the complainant is liable to be dismissed in limine. The complainant purchased a Blue colour Yamaha R15 V3 bike from first opposite party on 23.03.2018. It is submitted that the said vehicle was delivered after completing the process of Pre-Delivery inspection for the entire satisfaction of the complainant. No defect was alleged by the complainant at the time of taking delivery of the vehicle. The second opposite party has provided a warranty for a period of 2 years or 30,000Kms whichever is earlier from the date of sale. As per the terms of the warranty the same is extended only to certain parts of the vehicle that are found to have manufacturing defect within the warranty period. This opposite party will duly discharge its responsibility in this regard. But no liability exists for claims on those parts of the motorcycle that have been subjected to mishandling or negligent treatment or by accidental damages by the user. The opposite party is only liable to replace and repair the defective part and not to replace the motorcycle with a new motorcycle. It is pertinent to note that warranty coverage provided by this opposite party is applicable only, the complainant avails all the free services, paid services or any type of repair only from the authorised dealer or service centre of this opposite party. in case the customer gets his vehicle repaired or serviced from any other person, there will be a breach in terms of warranty and thus this opposite party is not liable for the damages caused.
This opposite party finds that the contents of this instant complaint would reveal that the complainant has suppressed material facts that are extremely relevant to the adjudication of this complaint. It is vehemently denied that the vehicle purchased by the complainant suffers from any defect as alleged in the complaint. The complainant approached the first opposite party for the first-time free service of the vehicle on 22.04.2018 vide job card no 3704. During which the complainant neither raised any complaint regarding engine getting switched off, while holding clutch at a speed of 50 – 60 kmph nor any alleged complaints on abnormal noise, burning smell. Gear struck. The service engineer of the first opposite party duly examined and carried out the service of the vehicle and the complainant took delivery of the vehicle after his full satisfaction on 22.04.2018. Even during the second free service i.e. on 23.07.2018, no alleged defects or complains were made by the complainant. On 26.12.2018 the complainant for the first time during the paid service alleged problems of abnormal noise from engine, burning smell, hard gear shifting. These problems were resolved by replacing the cylinder head assembly. Post this complainant took delivery of the vehicle to his complete satisfaction without any protest or demur. But despite providing prompt service, the complainant issued a false and frivolous prompt service, the complainant issued a false and frivolous legal notice dated 14.02.2019 and upon receipt of the same this opposite party got the motorcycle examined on 23.02.2019 in the presence of the complainant, and took test ride and took the delivery of the vehicle being satisfied. Thus, it is submitted that the motorcycle does not suffer from any such alleged defects as alleged by the complainant. Accordingly, the present complaint is false, frivolous and vexation in nature and it has been done to harass the opposite party to illegally gain at the cost of this opposite party. The complainant has failed to provide any expert opinion to substantiate the allegation made on the complaint, and that this is not maintainable and liable to be dismissed. That no cause of action has arisen in favour of the complainant and thus the complainant is not entitled to any relief or costs or compensation.
3. Proof affidavit of complainant filed.Ex.A1 to Ex.A11 were marked.Written argument of complainant filed. Oral arguments of both sides heard.
4. The Points that arises for consideration are:
1. Whether there is any deficiency in service on the part of the opposite
parties 1 &2?
2. Whether the complainant is entitled for relief as claimed in the
complaint?
3. To what other relief, the complainant is entitled to?
5. POINT NO. 1&2: The complainant purchased a Yamaha Motor Bike, Model R.V3, Blue with Engine No.G3K5E0003237, for Rs.1,25,000/- from first opposite party on 02.04.2018. The invoice was marked as Ex.A1. Thereafter the said bike facing some defect in engine. It automatically switched off at the speed of 50 to 70 kmph and while moving the bike from station and the engine noise was abnormal, with burning smell, the Gear also get struck while shifting the gear. This happened even during the date of purchase itself. The complainant intimated the same to the first opposite party, and they assured to rectify the said defect, but the same was not resolved. The complainant repeatedly averred the first opposite party to rectify the defects because this may cause for accident while driving. The first opposite party informed the complainant that his complaint to second opposite party the manufacturer and claiming warranty for replacement of new bike, but there was no response from both opposite parties. The petitioner was asked to have rectify the bike with first opposite party for replacing, accordingly he did so with first opposite party. But the said problem was not solved. Thus the complainant lodged a complaint on customer care. It was dated on 17.12.2018. Without resolving any of his bike issues. On 26.12.2018 the first opposite party asked the complainant to moving his bike and first opposite party received the bike. The complainant visited the first opposite party office 3 times from 26.12.2018 to 08.01.2019. The first opposite party assured the complainant that the problem was solved and asked the petitioner to drive. After driving the complainant realized thus nothing was solved and the vehicle still had the same issues. The complainant made a written representation on 11.01.2019 to both opposite parties, they received but no reply. The second opposite party have manufactured defective product and sold it to the customer through the first opposite party. Due to which the petitioner was put to great hardship, loss and put to mental agony and also the petitioner sent a legal notice 21.04.2019. The both opposite parties received the lawyers notice and gave a reply on 05.03.2019 false for but not replaced with new vehicle. Therefore, the complainant has no other option except filing this complaint. Per contra the second opposite party in their written version stated that the complainant purchased a Yamaha Motor Bike, Model R.V3, Blue with Engine No.G3K5E0003237, on 23.03.2018 from first opposite party. The said motorcycle was delivered to the complainant after completing the process by PDI to the entire satisfaction.
The Hon’ble forum issued notice to both opposite parties but both opposite parties did not appear, therefore called absent set Exparte. Subsequently the second opposite party filed set aside application along with written version. The set application is also dismissed on 09.06.2022 CMP NO. 86/2019, as against which they have not preferred any appeal or revision as on date. To prove the case the complainant filed proof of affidavits as marked Ex.A1 to Ex.A11. Though the second opposite party filed the written version, they did not appear before this forum to establish this case,
STATE CONSUMER DISPUTES REDRESSAL COMMISSION OF
TELANGANA AT HYDERABAD
Manish Gupta S/O. Sri OM Prakash
( vs )
- M/S. In Line 4 Motor Pvt. Ltd.,
“It is not always necessary for the Consumer to give expert testimony though if he does so it will add to the weight of the evidence”.
when the complainant subsequently raised the issue of manufacturing defect, the burden of proof shifted to the manufacturer to prove that their product does have manufacturing defect That this vehicle did not have inherentant manufacturing defect., the same was rendered in
In view of the above said judgement the burden of proof was shifted to the opposite parties, but the opposite parties did not choose to appear before this Hon’ble forum. Therefore this forum has no other option that to accept the contention of the complainant, that there is a manufacturing defect in the vehicle. Hence these point Nos. 1 and 2 are decided in favour of the complainant.
6. Point No.3: As we have decided in point Nos. 1 and 2 that there is a deficiency in service on part of the first and second opposite parties. The second opposite party is hereby directed to pay Rs. 1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) the cost of the vehicle and first and second opposite parties are jointly or severally directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation for deficiency in service and metal agony and also to pay a sum of Rs. 10,000/- (Rupees Ten Thousand only) towards cost to the complainant. This point No.3 is also answered accordingly.
7. In the result this complaint is partly allowed. The second opposite party is hereby directed to pay Rs. 1,25,000/- (Rupees One Lakh and Twenty Five Thousand only) the cost of the vehicle and first and second opposite parties are jointly or severally directed to pay a sum of Rs.1,00,000/- (Rupees One Lakh only) as compensation for deficiency in service and metal agony and also to pay a sum of Rs. 10,000/- (Rupees Ten Thousand only) towards cost to the complainant, within one month from the date of receipt of this order, failing which the above amounts shall carry interest at the rate of 9% per annum from the date of receipt of this order to till the date of realization.
Dictated to the steno-typist transcribed and typed by her corrected and pronounced by us in the open Commission on this 18th AUGUST 2022.
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
LIST OF COMPLAINANT SIDE DOCUMENTS:
Ex.A1. –02.04.2018 - Vide Invoice No. 2800006
Ex.A2. – 24.11.2018 - Complaint No. IC-41425-W4R2
Ex.A3. – 14.02.2019 - Office copy of the lawyer’s notice
Ex.A4. – 21.02.2019 - Office copy of the lawyer’s notice and reply to
Opposite party
Ex.A5- 05.03.2019 - Reply notice
Ex.A6. - Acknowledgement
Ex.A7. - Insurance copy.
Ex.A8- - - Copy of R.C. Book.
Ex,.A9- 26.12.2019 - Copy of Job card.
Ex.A10- - - Copy of Service and warranty handbook..
Ex.A11- 23.02.2018 – Copy of Yamaha Protection Plus certificate.
LIST OF OPPOSITE PARTY SIDE DOCUMENTS: -NIL-
Sd/- Sd/- Sd/-
MEMBER – I MEMBER – II PRESIDENT
