IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 30th day of December, 2021
Filed on 08.07.2019
Present
1. Sri.S.Santhosh kumar.Bsc.LLB(President)
2. Smt. Sholly.P.R ,LLB (Member)
In
CC/No.173/2019
Between
Complainant:- Opposite parties:-
Sri.Saju..K 1. M/s Bajaj Auto Ltd
Srambickal House Bajaj Head Office, A.K.U.R.D.I
Ponga.P.O, Alapppuzha Pune-411035
(Adv. Shalon Salus) (Party in person)
2. The Popular Motor Corporation
Paravoor, Punnapra.P.O
Alappuzha
(Adv. B.Somanatha Kurup)
O R D E R
SMT. SHOLY.P.R (MEMBER)
Complaint filed u/s 12 of the Consumer Protection Act, 1986
1. Brief facts of complaint in short are as follows:-
The complainant is using bajaj Platina bike with Reg.No. KL.66-A-6596. The said bike was bought from bajaj showroom located at Paravoor, by paying Rs.20,000/- as down payment and the EMI was Rs. 2342/- and 23 EMI’s were paid correctly. During May, 2018, huge amount of smoke was coming from the silencer and the bike was shown to the service center located near iron bridge, Alappuzha. As per the service manager’s direction, the engine head was unpacked and cleaned. The engine valve and head were cleaned and Rs.1127.50/- was charged for the repair. Further services were done at iron bridge service centre. But after the said incident, bike’s mileage went down. After that on 25/6/2019 smoke came again from the silencer and was shown at the same service centre. Then they said to pay Rs.1600/- for repairing the engine and refitting. The complainant was using Bajaj boxer from 2003 onwards.
The defect of the Platina bike is a manufacturing defect thus the amount paid as purchase value of the vehicle has to be refunded or the bike has to be replaced with a new one. Rs.25,000/- has to be paid as compensation for the physical and mental agony.
2. Version of the 1st and 2nd opposite party is as follows:-
The complaint is not maintainable. The complainant purchased the two wheeler on 18/8/2017 and not on 19/8/2017 as alleged in the complaint. He purchased the Bajaj Platina 100ES Motor Cycle with warranty of 30,000 Kms or two years whichever is earlier. But he approached this Hon’ble Forum with allegation of manufacturing defect only on 6/9/2019 after two years and hence the complaint is based by limitation under the Consumer Protection Act and hence is liable to be dismissed in- liminae.
Moreover the subject matter motor cycle had completed all the periodical services and had successfully completed the warranty mileage of 30,000 Kms without any complaint or defect and hence the complainant has no locus standi to approach this Court alleging manufacturing defect to the vehicle. Even after the free services as offered, 2nd opposite party is always rendering their earnest services to the complainant’s vehicle without fail and hence the complainant’s allegation of deficiency in service is also false.
The complainant produced the vehicle on 5/7/2019 after running 32,844KM with allegation of black smoke at the Town Service Center of second opposite party but did not allow to inspect, repair and cure the defects any. Since the vehicle is remaining in the limited space of the Service Centre , Service Manager allowed his workman to inspect the vehicle and repaired and that was duly informed to the complainant but the vehicle is remaining in the service centre. One of the staff of 2nd opposite party also approached the complainant in person and informed him that the vehicle already repaired and had to pay Rs.1,441/- repairing charges and take back the vehicle.
Though the complainant is alleging manufacturing defects to the vehicle he did not made any attempt to obtain an expert opinion to prove his allegation and hence the above complaint is highly vexatious and filed without any bonafides and is devoid of any merit. The complainant has made false and baseless claim in the complaint without any cogent and valid grounds. The company approached this Forum after using the vehicle carelessly and extensively driving without sufficient engine oil causing damage to the oil seal and cylinder head gasket.
Complainant is not entitled for any of the reliefs prayed for on the ground of being barred by limitation outside the warranty and devoid of any merits. Therefore may be pleased to dismiss the complaint with a finding that it is a most vexatious, evasive and devoid of any merit and experimental one for unlawful gain.
3. On the above pleadings following points were raised for consideration.
1. Whether there is any deficiency in service on the part of opposite parties?
2. Whether the complainant is entitled to get an order to replace the bike with a branded new one or in the alternative whether he is entitled to get refund to purchase price along with interest?
3. Whether the complainant is entitled to realize an amount of Rs.25,000/- as compensation?
4. Reliefs and Costs?
Evidence in this case consists of oral evidence of PW1 and PW2 and Ext.A1 to A7 and Ext.C1 from the side of complainant and the oral evidence of Rw1 and Ext.B1 and B2 from the side of opposite parties.
4. Point No. 1 to 3:-
PW1 is the complainant in this complaint he Filed an affidavit in tune with the complaint and got marked Ext.A1 to A7. During cross examination Ext.B1 , B1(a) and B1(b) were marked.
PW2 is the expert commissioner (AMVI) in this case and got marked Ext.C1.
RW1 is the works manager of 2nd opposite party. He filed an affidavit in tune with the version and got marked Ext.B2.
Complainants case is that he had purchased a motor bike, Bajaj Platina having Reg. No. KL.66 – A- 6596 from 2nd opposite party on 18/8/2017 as per Ext.A3 invoice. The motor cycle was manufactured by 1st opposite party. According to the complainant he had selected the said motorcycle because the same was comfortable and economical to use and he has been using another brand of same company since 2003. He also submitted that he had purchased the vehicle availing loan from Bajaj Finance by paying Rs.20,000/- as down payment and further paid EMI of 23 months for Rs.2342/- each installment.
While so, during may 2018 huge amount of smoke was coming from the silencer and the vehicle was shown to the authorized service centre of bajaj at Irumbupalam, Alappuzha, there the engine head was unpacked and cleaned and repairs the engine valve and head and charged Rs.1127.50/- from the complainant. Further routine services were done at the said service centre. But the complainant contented that after the above said incident the vehicle shows its mileage down. On 25/6/2019 also the said vehicle was shown to the service centre since on that day smoke came from the silencer again. The complainant strongly alleged that defect occurred on the bajaj platina is manufacturing defect. Accordingly he filed this complaint for getting an order for replacing the vehicle or to refund its purchase price and compensation. In the meantime the counsel engaged for and on behalf of the complainant filed a petition seeking amendment of relief portion because of some discrepancies occurred in the complaint since the CC case was filed by the complainant in person. Eventhough the same was allowed, it was not seen carried out in the complaint. In this circumstances it is pertinent to note that the alleged defect was occurred within a short span of time of purchase the vehicle ie, within 9 months from purchase which an ordinary man cannot be bear such a situation especially he being used the vehicle for his livelihood. Further it is to be noted that Ext.C1 the report submitted by PW2, Expert commissioner deputed by this Commission on application of the complainant for inspection and ascertaining the defects and present condition of the vehicle in question, categorically reported the manufacturing defect of the vehicle in question. The sufficient portion of the report is that, “ Engine repairs conducted this early stage indicates quality of vehicle delivered suspicious. Burning of spilled lubricant oil to combustion chamber accounted the emission of fumes from the exhaust. This occurred because of faulty gasket and defective valve train system. In the light of the above mentioned points I assumed that the vehicle delivered to the registered owner was having manufacturing defects from the factory level itself.”
In the said circumstances we would have consider the observation of Hon’ble Supreme Court in C.N.Anantharam Vs. M/s Fiat India Ltd & othrs. ( Special Leave petition (c) Nos. 21178 – 21180 of 2009) reported in AIR 2011 SC 523, in which the Hon’ble Court disposed of the petitions with a direction additional to that of Hon’ble National Commission that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle, the petitioner will be entitled to refund of the price of the vehicle and the life time tax and EMI along with interest @ 12% per annum and costs, as directed by the State Commission.
Here in the particular case, the independent expert commissioner reported in Ext.C1 that the defect noted in the vehicle in question is due to manufacturing defect of the said vehicle. Moreover no contra evidence was adduced by the opposite parties for disproving the same. Hence the complainant is entitled to replace the defective Bajaj Platina Motor Cycle with a branch new one or in the alternative he is entitled to refund its purchase value. In the said circumstances it can be seen that , there was deficiency of service from the part of opposite parties, so PW1 is entitled for compensation also. Considering the facts and circumstance, we limit the compensation for Rs.10,000/- from the Opposite Parties.
5. Point No.4.
In the result, complaint stands allowed in part in the following terms:-
A. Opposite Parties are directed to replace the defective Bajaj Platina Motor Bike with a branch new vehicle or in the alternative refund the purchase value of the said vehicle i.e., Rs.50,900/- (Rupees Fifty thousand and Nine hundred only) to the complainant.
B. Opposite parties are liable to pay compensation Rs.10,000/- (Rupees Ten thousand only) to the complainant.
C. Complainant is entitled to recover Rs.5,000/- (Rupees Five thousand only) as cost of the proceedings from the Opposite Parties.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 30th day of December, 2021.
Smt. Sholy.P.R(Member)
Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Saju.S.K(Complainant
PW2 - Anoop.P.(Expert Commissioner)
Ext.A1 - Copy of RC book
Ext.A2 - Copyof Cash Receipt dtd.17/8/2017
Ext.A3 - Tax Invoice dtd. 18/8/2017
Ext.A4 - Copy of Statement of Account
Ext.A5 - No objection Certificate
Ext.A6 - Tax Invoice dtd. 28/5/2018
Ext.A7 - Job Card dtd. 25/6/2019
Ext.C1 - Commission Report
Evidence of the opposite parties:-
RW1 - Adarsh.A
Ext.B1series- Letters
Ext.B2 - Vehicle History
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
