By. Sri. Chandran Alachery, Member:
The complaint is filed Under section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite parties to take back the motor Bike XCD 135 DTS Si with all expenses and compensation of Rs.60,000/- and to pay a compensation of Rs.40,000/- for financial loss and mental agony and the cost of the proceedings.
2. Brief of the complaint:- By advertisement and due to the compulsion of opposite party No.2, the complainant purchased a Motor Bike XCD 135-DTS Si from opposite party No.1 on 23.07.2009 and registered with Register No. KL 12 D 8160. The opposite party No.1 arranged hire purchase from opposite party's sister concern M/s Bajaj Auto Finance Limited, Chakkorathkulam, Kannur road, Calicut and spent a total amount of Rs.54,500/- including tax and insurance. The opposite parties assured 2 years warranty for the Bike. After the purchase, the complainant noticed some kind of vibration and horrible sound from the engine. It was informed to opposite party No.1 and at the time of each service. Four free services made on 14.08.2009, 19.10.2009, 31.12.2009 and 19.04.2010 respectively. The defect in the vehicle still remain incurable and the complainant is not in a position to ride the vehicle with peace of mind. On enquiry, the complainant understood that this series of vehicles manufactured by opposite party No.2 were utter failure and of several complaints. The display and self starter, wiring kit are also defective. The complainant sent registered Lawyer Notice to opposite parties on 04.12.2010 but not settled. Aggrieved by this, the complaint is filed.
3. On receipt of complaint, Notices were issued to opposite parties and opposite parties appeared before the Forum and filed version. In the version opposite parties contented that there are no manufacturing defect to the Bike and all material allegation in the complaint are denied. The opposite parties contented that the complainant filed complaint only on 30.05.2011 after the extensive use of vehicle for about 2 years. The Job Card signed by complainant will prove that the Bike had no complaint. The complainant used the vehicle without proper service extensively. According to the opposite parties, there is no deficiency of service and the complaint is only on experimental basis.
4. On going through the complaint, version and documents, the Forum raised the following points for consideration:-
1. Whether there is any deficiency of service on the part of opposite parties?
2. Relief and Cost.
5. Point No.1:- In addition to complaint, the complainant filed proof affidavit and produced documents. The complainant is examined as PW1 and documents are marked as Ext.A1 to A5 and Ext.C1 and C2 are also marked. Ext.A1 is the Service Book, Ext.A2 is the Copy of Lawyer Notice dated 04.12.2010, Ext.A3 is the Postal Receipts dated 07.12.2010. Ext.A4 series are the Acknowledgment Cards dated 07.12.2010, 13.12.2010. Ext.A5 is the Reply letter dated 27.12.2010. Commission Report of Commissioner is marked as Ext.C1 and C2. On verification of Ext.C2 report, the Forum found that the Commissioner noticed certain defects and the wear is noticed in the piston. The wear is noticed only in one side of the bore and piston. It is not due to lack of engine oil. The wear may be due to any misalignment of the engine. The commissioner stated that the particular series of engine have some manufacturing defect which leads to the knocking sound and over heating from the early stage itself. The commissioner who stated that this model of motorcycle is not available in the market. Similar complaints have been reported at a different places against this vehicle. It is understood that the manufacturer had stopped the vehicle production and selling this model of Bajaj XCD 135 series. The opposite parties filed objection in Ext.C1 report and I.A 244/2011 is filed to set aside the commissioner report and new Expert Commissioner was appointed. New commissioner filed Ext.C2 report. The findings of the commissioner as per Ext.C2 is described above. On going through the report, the Forum under stood that there is manufacturing defect in the motorcycle of complainant with model XCD 135 series. The complainant purchased the vehicle on 23.07.2009 and the complaint is filed on 31.05.2011 within the warranty period of 2 years. The complainant is examined as PW1. PW1 was not cross-examined by the opposite parties and rebut the evidence. PW2 is the Expert Commissioner and in cross-examination, nothing is brought out by the opposite parties in favour of them. PW2 is Assistant Motor Vehicle Inspector having qualification of Auto mobile engineering diploma. The Forum found that the expert is skilled and have adequate knowledge of the subject. The ruling AIR 1999 SC 3318, the Honorable Supreme Court stated that in Expert evidence, it is necessary that the expert must be skilled and has adequate knowledge of the subject. This decision will not affect this case since in this case, the expert is a skilled person. The defect of the vehicle is not cured till now. The contentions of the opposite parties that the complaint concealed kilometer reading , extensive use of vehicle for almost 2 years, lack of proper service etc will not lie since the commissioner clearly stated that XCD 135 DTS series model Bikes have manufacturing defects and the manufacturer stopped the production of such model Bikes. By analyzing the commission report and other evidences, the Forum found that there is manufacturing defect in the vehicle in dispute. Moreover there is no cogent and convincing evidence in favour of opposite parties to disprove the case of complainant. Hence the Forum found that there is deficiency of service from the part of opposite parties. The Point No.1 is found accordingly.
6. Point No.2:- Since the Point No.1 is found in favour of complainant, the complainant is entitled to get the cost and compensation. The Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite parties are directed to pay Rs.54,500/- (Rupees Fifty Four Thousand and Five Hundred Only) being the value of vehicle to the complainant along with Rs.1,000/- (Rupees One Thousand Only) as compensation and Rs.1,000/-(Rupees One Thousand Only) as cost of the proceedings. The complainant is directed to return the defective old bike to the opposite parties on receipt of the above amount. The opposite parties are directed to comply the Order within 30 days from the date of receipt of this Order, failing which the opposite parties are directed to pay 12% interest per annum thereafter.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 30th day of September 2014.
Date of Filing:31.05.2011.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX
Witness for the complainant:-
PW1(Proof affidavit). Noufal. Complainant.
PW2. Bijumon. K. Motor Vehicle Inspector.
Witness for the opposite parties:-
OPW1. Naveen. Sales Executive, KVR Motors.
OPW2. Joseph. K. J. Manager, KVR Motors, Calicut.
OPW3. Ambareesh. S. Das. Service in Charge, KVR Motors, Kalpetta.
Exhibits for the Complainant:-
A1. Owners Manual
A2. Copy of Lawyer Notice. Dt:04.12.2010.
A3. Postal Receipts(2 Nos).
A4. Acknowledgment Cards(2 Nos).
A5. Reply Letter. Dt:27.12.2010.
C1. Commissioner Report. Dt:28.10.2011.
C2. Commissioner Report. Dt:28.02.2012.
Exhibits for the Opposite Parties:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
