C.F. CASE No. : CC/2012/78
COMPLAINANT Aloke Kumer Biswas,
S/o Amullya Kr. Biswas resident of
Mujaffarpur Colony, P.O. Bethuadahari,
P.S. Nakashipara, Dist. Nadia
Vs –
OPPOSITE PARTIES / OPs: 1) Proprietor,
S.S. Auto Authorised Dealer
Palpara More, Bhatjangla,
P.O. Bhatjangla, Krishnagar
P.S. Kotwali, Dist. Nadia
2) Managing Director,
Bajaj Auto Ltd.
Akurdi, Pune 411035
PRESENT : SHRI PRADIP KUMAR BANDYOPADHYAY, PRESIDENT
: SMT REETA ROYCHAUDHURY MALAKAR, MEMBER
: SHRI SHYAMAL KUMAR GHOSH, MEMBER
DATE OF DELIVERY
OF JUDGMENT : 18th February, 2014
: J U D G M E N T :
The brief facts of the case is that the complainant purchased one Bajaj Discover motor cycle bearing Engine No. JZUBUF 38047 and Chasis No. MDZDSJZZZUPF40371 on 03.10.11 from OP No. 1 on payment of consideration money of Rs. 53,169/- and to that effect the OP No. 1 issued the receipt. In the instant case the OP No. 2 was a mother company. After purchasing the same, the said motor cycle created various problems such as gear problem, jerking problem, starting problem etc. The complainant informed the matter to the OP No. 1 for solving the problem but after 4th servicing the problem was not solved. The complainant requested the OP No. 1 to take proper steps but the OP No. 1 has failed to do it. Thereafter, the complainant sent a letter to the OPs No. 1 & 2 for settlement of disputes on 02.09.12. The OP No. 1 also sent a letter to the complainant on 13.09.12 and assured him to solved the problem within few hours. But the OP No. 1 has failed to do it. The complainant further stated that the OP No. 1 sold defective motor cycle and for getting proper relief the complainant has filed the instant case before this Forum.
The OPs No. 1 & 2 both filed written version stating, inter alia, that the case was a premature compliant as the warranty period was going on. They also stated that no expert report / opinion was submitted before the Forum. Actually, the alleged motor cycle was manufactured with the help of latest technology and with assemble of sophisticated parts. The complainant was not able to handle and drive the same properly. Moreover, the complainant did not read the guide book for getting the best performance from the said motor cycle. So the complainant should not be allowed to take advantage for his own wrong. So the complaint is liable to be dismissed with cost.
POINTS FOR DECISION
Point No. 1: Is the complainant a consumer as per provision of C.P. Act, 1986?
Point No.2: Are the OPs guilty of deficiency in service?
Point No. 3: What relief the complainant is entitled to get?
DECISION WITH REASONS
All the issues are taken up together for the sake the brevity and convenience. The record gives indication that the complainant in substantiating his claim submitted certain documents viz., vat invoice, money receipt dated 03.10.11 & 21.10.11, letter dated 02.09.12 written by the complainant regarding various problems of the motor cycle, receipt for free service, receipt for paid service, warranty certificate, receipt for repairing charges paid by the complainant.
It has become settled by a catena of decisions of Hon'ble Supreme Court, Hon'ble National Commission & Hon'ble State Commission that whenever a person approaches the jurisdiction of the Forum for the purpose of having any relief, he is under obligation to prove himself to be a consumer. In the instant case the complainant purchased one Discover motor cycle bearing No. JZUBUF 38047 and Chasis No. MDZDSJZZZUPF40371 on 03.10.11 from the OP No. 1 Auto on payment of consideration money of Rs. 53,169/- and the malfunctioning of the said motor cycle is the subject matter of this proceeding. Since the complainant bought the motor cycle from the OP No. 1 and OP No. 2 is the manufacturing company of the same, in view of the status of the complainant and his relationship with the respective OPs, he must be found and held to be consumer in terms of the provision of Section 2(1)(d) of the Consumer Protection Act, 1986 for the purpose of this proceedings.
It appears from the letter dtd. 02.09.12 it is clear that the complainant informed the matter regarding malfunctioning of motor cycle in question in the office of OP No. 1 & 2 both. From the letter dtd. 13.09.12 written by Kuntal Chakraborty for and on behalf of OP No. 1 Auto, it is clear that the motor cycle in question suffered from carborator and starting problem and for that reason the OP No. 1 Auto undertook to solve the problem within few hours and to that effect the complainant was requested by them to come to their workshop. The complainant, by way of affidavit clearly stated that he went to the office of OP No. 1 on 21.09.12 but the OP No. 1 refused to do any repair work of the motor cycle in question. Both the OPs No. 1 & 2 argued that the expert report or opinion is highly required from the end of the complainant which is clearly revealed from the joint reply submitted by OP Nos. 1 & 2 on 27.11.12. But on behalf of the complainant, Sri Kajal Roy as a motor cycle mechanic (PW-2) stated in his evidence-in-chief that he examined the motor cycle bearing No. WB 52M / 4313 Bajaj Discover thoroughly and he understood that the said motor cycle suffered from various troubles such as gear problem, starting problem, jerking problem etc. Sri Kajal Roy has successfully completed the training programme on motor cycle basic course from 24.05.04 to 29.05 2004 conducted at Kolkata which is clearly revealed from the certificate issued by Bajaj Auto Ltd. on 29.05.04. So from this document it is clear that he is not a lay man but he acquires valuable knowledge and experience form the concerned company. On the other hand, OPs have several opportunities to produce expert evidence on their behalf for challenging the expert opinion on behalf of the complainant. But the OPs neither submitted any scrap of paper nor produced any expert witness / evidence for challenging the same.
From the warranty certificate it is clear that the vehicle is warranted for two years or 30,000/- kms whichever occur earlier from the date of sale. In the instant case the motor cycle was sold on 03.10.11 and the said motor cycle run 6635 kms which is clearly revealed from the receipt of the first paid service. So as per terms and conditions, the warranty period would be continued up to two years i.e., 02.10.13 and from the above analysis in details it is crystal clear that the motor cycle in question suffered from malfunctioning on and from 02.09.12 which is within the warranty period and as per our view this case is not a premature one as the cause of action arose on 02.09.12 and the instant case was filed on 01.10.12. Moreover, the OPs have failed to file any scrap of paper / evidence by which we may come to conclusion that the complainant took the advantage for his own wrong.
Having regard to the circumstances and materials of the record we are of the considered view that the dealer i.e., OP No. 1 is liable to compensate the complainant for deficiency in service on their part.
As regards the prayer for replacement of the vehicle by a new one we find that the complainant travelled more than 6000 kms and at this stage it would not be just and proper to pass an order for replacement of the motor cycle by a new one or refund the amount of purchase. But having regard to the defect in motor cycle and harassment suffered by the complainant for the deficiency in service on the part of the OP No. 1, S.S. Auto, we are of the considered view that it should be the duty of OP No. 1, S.S. Auto to repair the motor cycle in question thoroughly with the fruitful discussion of the OP No. 2 i.e., the manufacturer. Moreover the OP No. 1 dealer should pay the compensation of Rs. 2,000/- and litigation cost Rs. 1,000/- to the complainant. Thus, the complaint accordingly succeeds.
Hence,
Ordered,
That the CC/2012/78 be and the same is allowed on contest against the OP No.1 with cost of Rs. 1,000/- and dismissed against OP No. 2.
That the OP No. 1, S.S. Auto/dealer is directed to repair the motor cycle thoroughly with the fruitful discussion with OP No. 2 manufacturer within 45 days from the date of order positively. The OP No. 1 is also directed to pay compensation of Rs. 2,000/- and litigation cost of Rs. 1,000/- to the complainant within 45 days from the date of order failing which the amount will carry interest @ 7% p.a. till realization.
Let a copy of this judgment be delivered to the parties free of cost.
