Date of filing:- 25/09/2010

Date of Order:-13/05/2015

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM(COURT)

BARGARH.

                                                                       CONSUMER COMPLAINT NO. 70 of 2010

Bijaya Kumar Lath S/o. Late Dasarath Prasad Lath, R/o. Bhatli Road, Near Agrasen Chowk, P.O./P.S./Dist. Bargarh.

... ... ... Complainant.

•                                                                                      V e r s u s -

1. M/S. Syndicate Motors, N.H.6, Bargarh, P.O./P.S./Dist. Bargarh-768028.

2. M/S. Yamaha Motor India Sales Pvt.Ltd., A-3, Surajpur Industrial Area, Noida Dadri Road, Surajpur-201306 (U.P.) India.

3. Balaji Auto Point, N.H.6, Bargarh, P.O./P.S./Dist. Bargarh, Representatives through Proprietor Paresh Agrawal.

... ... ... Opposite Parties.

Counsel for the Parties:-

For the Complainant:- Sri. A.K. Dash, Advocate with others Advocates.

For the Opposite Party No.1(one)

and No.3(three):- Ex-Parte.

For the Opposite Party No.2(two):- Sri S.S.Sukla, Advocate with others Advocates.

-: P R E S E N T :-

Miss. Rajalaxmi Pattnayak ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.

Smt. Anjali Bahera ..... ..... ..... ..... ..... ..... ..... ….. ….M e m b e r.

Sri. Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... ... ...M e m b e r.

Dt.13/05/2015 -: J U D G E M E N T :-

Presented by Miss R. Pattnayak, President.

Brief facts of the case of the Complainant is that he had purchased a Yamaha G-5 Motor cycle bearing Regd No. OR-17G-2993 Engine No. 5TSC-016278 and Chasis No. MEISTSOC-992016288 from the Opposite Party No.1(one) on Dt 29/10/2009 for Rs.47,300/-(Rupees forty seven thousand three hundred)only. According to the Complainant the vehicle started giving problem in the clutch and gear within few days of its purchase. The Complainant immediately reported the matter to the Opposite Party No.1(one) who consoled him by saying that gradually it will be removed after one servicing. But in-spite of continuous three servicing, the defects of the vehicle could not be removed. During the 4^th servicing, the mechanic of Opposite Party No.1(one) opined that there was defect in the engine of the vehicle. The mechanic opened the same and inserted some new parts in to if for which the complainant had to pay a sum of Rs.500/-(Rupees five hundred )only to the Opposite Party No.1(one). In spite of the repair, the same problem started again for which the Complainant requested several times the Opposite Party No.1(one) with respect replacement of a new vehicle as the vehicle has manufacturing defect. But the O.P No.1(one) avoided him on many pretests. So the Complainant on Dt.17/09/2010 reported this matter to the Opposite Party No.2(two) through message on Email but the Opposite Party No.2(two) also put a deaf ear to the grievance of the complainant. As the alleged defects were neither rectified to the satisfaction of the complainant nor a new vehicle was replaced, the Complainant filed this Complaint before this forum with a prayer to direct the Opposite Parties to replaced the defective vehicle with a new one along with compensation alleging deficiency in service on the part of Opposite Parties.

In support of his case the Complainant filed some documents.

Notice were duly served upon the Opposite Parties. Opposite Party No.2(two) appeared and filed his version on Dt.11/08/2011 along with Affidavits but Opposite Party No.3(three) and Opposite Party No.1(one) did not choose to contest in this case and became set ex-parte on Dt.08/01/2014 and Dt.31/10/2012 respectively.

Opposite Party No.2(two) admitted through his version that the Complainant had purchased the vehicle from his authorized dealer i.e. Opposite Party No.1(one). The warranty of the vehicle was valid for two years or 30,000 KM of operation which ever is earlier from the date of purchase to the original purchaser only. So the liability of the Opposite Party No.2(two) is in accordance with the terms and condition of the warranty extended by it and he can not be liable for the claim falling out side the scope of the warranty. It is further submitted by Opposite Party No.2(two) is that clause-10 of the warranty booklet clearly provided that Noise, Vibrations, Oil seepage which do not effect the performance of the motorcycle are normal phenomenon of the motorcycle and are not covered under warranty. Further it is submitted by the Opposite Party No.2(two) is that as per the owner's manual of the motorcycle, the Complainant had avail all the free and paid services as per the schedule provided to Opposite Party No.2(two). The Complainant has himself placed service record which crystal clears that the Complainant availed the second service on Dt.09/02/2010 and that time no Complaint was reported by the complainant. Thereafter the complainant did not avail the 3^rd service and came to avail the fourth service on Dt.06/07/2010 i.e. after approximately 150 days of previous service in utter disregard of the terms and conditions and services schedule provide in the owners manual of the Opposite Party No.2(two). That by not availing the service on time the complainant had violated the terms and conditions of the warranty stipulated by the Opposite Party and is one of the mandatory requirements under the owners manual to avail the warranty benefits. It is further submitted by Opposite Party No.2(two) that there is no evidence of any manufacturing defect in the said vehicle and the complainant has not filed any expert opinion report to satisfy his allegation made in the Complaint. The learned counsel cited various judgments of Hon'ble Kerala state Commission, Delhi State Commission, West Bengal State Commission, National commission, Himachal Pradesh state commission in favour of his argument that he is only liable if there is any evidence of expert opinion regarding manufacturing defect. Hence prayed for dismissal of the Complaint case as there is no deficiency of service and unfair trade practice have been committed by the Opposite Party No.2(two). In his version the Opposite Party No.2(two) with out admitting any liability or defect submitted that he is ready if the Hon'ble forum allowed him to checkup the motor cycle to the complainant and also he will replace the parts of the motor cycle if any found defective.

In support of his case the Opposite Party No.2(two) filed certain documents in support his case.

Heard the matter and perused the documents available in the case record. On perusal of the copy of the free service record of the vehicle filed by the complainant we have noticed no such defect in the vehicle has been Complained of by the Complainant. Only 1^st,2^nd and 4^th free services were availed by the complainant and thereafter 3^rd 5^th , 6^th free services were not availed by the complainant. Apart from this there is also no report of expert opinion in support of the allegation to show that the vehicle actually from the initial stage of purchase had shown manufacturing defects for which it should be replaced by a new vehicle or the cost price should be refunded. We were also not shown any documentary evidence nor adduce any oral evidence to substantiate his allegation made in the Complaint. Simply because the vehicle was required to be brought to the service station for curing some defects it can not held positively that it was having some manufacturing defects. For proving the fact of manufacturing defect, expert opinion is necessary which is lacking in the present case. Therefore the prayer for replacement of the vehicle with a new one cannot be allowed. On this point the decisions filed by the Opposite Party No.2(two) reported in 99(2005) CLT 13 (CDC) of Hon'ble State Commission, Odisha in M/s Tirupati Motors and others Vrs Kanan Kumari Dash, holds good.

However the forum will be consider for the repair of the vehicle because Opposite party No.2 submitted in his written version that the Complainant was charged for Rs.500/-(Rupees five hundred)only for Yamalube, Gasket and Oil seal as it was not covered under the warranty period but the Complainant submitted that the Opposite party No.1(one) took Rs.500/-(Rupees five hundred)only for replacement of some new parts. Although Notices were duly served on the Opposite Party No.1(one) and 3(three) they did not appear and will fully disobey of the forum order which clearly discloses that if they do not have any regards to the court proceeding how they would take care to the problem of the customers. Though the Complainant was not filed any documents but the letters sent through mail discloses that the Complainant might have facing some problems in the vehicle. And also the absence of presence of O.P. No.1(one) and No. 3(three) brings weightage to some part of the versions of the Complainant that the vehicle shown some defects. If there is no problem why the Complainant will come to the court to file the litigation. When a person buys a Motorcycle he expects that it would be functional and run smoothly without giving any trouble for a reasonable time in any case under warranty period. So it is the duty of the opposite parties to take care of after sale service when a complaint has been made by the purchaser within warranty period which has not taken place in the case of the complainant.

                                                                                                     - O R D E R -

   Since the Opposite Party No.2(two) at para-15(fifteen) of the Affidavit of evidence and at para-13(thirteen) of the written version voluntarily agreed that, if the Forum allowed then they will completely check-up the motor cycle and will replace the parts of the motor cycle, if any found defective.

So they all are directed to complete check-up the motor cycle and will replace and provide the parts of the motors cycle if any found defective free of charge, within one months of the date of order.

Case is disposed off accordingly.

Typed to my dictation

and corrected by me.

 (Miss Rajlaxmi Pattnayak)

P r e s i d e n t.

                                                                            I agree,                                                                         I agree,

                                                            (Sri Pradeep Kumar Dash)                                             ( Smt. Anjali Behera)

                                                                      M e m b e r.                                                                   M e m b e r.