IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the 11^thday of February, 2022

Present:  Sri. Manulal V.S. President

Smt. Bindhu R. Member

Sri. K.M. Anto, Member

C C No. 38/2019 (filed on 22-03-2019)

Petitioners                                         :  1)   NayanaChandran,

                                                                   D/o. Ramachandran,

                                                                   W/o. Jyothish,     

                                                                   Kochuputhoor House,Vazhappilli,

                                                                   Changanacherry – 686103.

                                                             2)   Jyothish Chandran,

                                                                   S/o. Jagadeesh Kumar,

                                                                   Kochuputhoor House,Vazhappilli,

                                                                   Changanacherry – 686103.

                                                                   (Adv. Vivek Mathew Varkey)

                                                                   Vs.    

Opposite Parties                               :  1)    Manager,

                                                                   Royal Motors,

                                                                   Nattakam, Royal Tower,

                                                              Opp. Govt. College, Nattakom P.O.

                                                                   Kottayam – 686013.

                                                                   Regd. Office Address-

                                                                   Kerala Auto Mobile Manjeri

                                                                   Malappuram – 676121.

                                                                 2) Managing Director,

Bajaj Auto Limited.

Regd. Office Address:

                                                                   Mumbai – Pung Road,

                                                                   Akurdi, Pune – 411035.

                                                              3)  Proprietor,

Popular Motor Corporation 146/A,

                                                                   NF Gate, Thripunithura – 682301.

                                                           (For Op1, 2 and 3, Adv. Avaneesh V.N.)

O  R  D  E  R

Sri. Manulal V.S. President

The case is filed under Section 12 of the Consumer Protection Act, 1986.

The 1^st complainant is the wife of the 2^nd complainant.  The complainant had purchased a Bajaj Pulsar NS200 sparking Black with Grey-BS-IV (00JL088M) (Engine No.JLYCKK35296, Chasis No.MD2A36FY4KCK05974) motor bike from the authorized showroom of the 2^ndoppositeparty by paying an amount of Rs.1,04,568/-.  The complainant had paid Rs.9,186/- for insurance premium and Rs.10,457/- towards road tax.  The opposite parties after registration of the vehicle in the name of the 1^st complainant handover the vehicle to the complainant on 30-01-2019.  It is alleged in the complaint that from the first day of purchase itself, there was a vibration on the vehicle and the engine of the vehicle was not responding while the accelerator throttle is used and the vehicle shows the engine missing.  When these complaints are informed to 1^st opposite party, the service engineer of the 1^st opposite party intimated that all these problems would be rectified at the time of 1^st free services.  However when the vehicle was returned to the complainant after carrying out 1^st free service on 13^th February, 2019, the above said defects were not cured by the 1^st opposite party.  When the complainant intimated the same to the service engineer it was informed that the said defects can be cured only by replacing the carburetor of the vehicle and carburetor is not ready stock and it can be replaced when the carburetor is available.  Thereafter when the complainant contacted the 1^st opposite party, they asked to handover the vehicle to rectifying the defects.On 20^th February, 2019 vehicle was entrusted to the 1^st opposite party.  But at that time they did not issue the job card to the complainant.  On 23-02-2019 the vehicle was handed over to the complainant without rectifying the defects.  Though the defects were not cured by the 1^st opposite party, the vehicle started to stop while riding.  Thereafter, as per the direction of the 1^st opposite party the vehicle was entrusted to the 3^rd opposite party for rectifying the defects.  It is alleged in the complaint that on 07-03-2019 when the husband of the 1^st complainant reached to the service centre of the 3^rd opposite party as directed by them to take delivery of vehicle, he did not take delivery of vehicle as the complaint is remained and rectified.  When the complainant refused to take the delivery of the vehicle, the 1^st opposite party brought the vehicle to the service centre.  Though the husband of the complainant send an e-mail to the 2^nd opposite party, who is the manufacturer stating all the complaints of the vehicle there was no response from the 2^nd opposite party.  It is alleged in the complaint that the complaints of vehicle is due to the manufacturing defect of the vehicle and the demand of the complainant is to replace the vehicle with new one was in vain.  Hence this complaint is filed praying for an order to refund Rs.1,27,331/- to the complainant along with cost and compensation.

          Upon notices, opposite parties appeared before the Commission and filed version, admitting the purchase of vehicle by the complainant.   It is stated in the version that the allegation in the complaint that from the 1^st day itself the vehicle shows vibration and engine missing are false.  Nobody intimated any complaint with respect to the vehicle to the service engineers.  The vehicle was brought to the service center of the 1^st opposite party on 14-02-2019 after covering 750 Kms.  And at that time, the complaints which were cited by person who brought the vehicle was inspected by the service technician and found that the vehicle had no defect and it was returned to the customer.  The service engineers of the 1^st opposite party never assured the replacement of carburetor. 

          The allegation in the complainant that the vehicle was brought to the workshop at Changanacherry as demanded by the 1^st opposite party was false.  As a responsible service agent the 1^st opposite party will definitely issue job car for every vehicle when entrusted by customer.  Even for checkup also, the details will be entered into the job card.  It is admitted in the version that the vehicle was entrusted to the workshop of the 3^rd opposite party in a riding condition.  The husband of the complainant complained that he heard an unusual sound from the vehicle and he had some doubt about the performance of the vehicle.  Subsequently, the technicians of the 3^rd respondent inspected the vehicle and found that the petrol was mixed with dust.  The dust was thrown out through silencer while riding and hence the sound was occurred.  The technician of the 3^rdopposite party cleaned the tank and allied parts and they checked the vehicle thoroughly and did not find out any unusual thing.  When after 2 days the 3^rd opposite party contacted the husband of the complainant, he told to them that due to a pre-planned business trip, he was out of station and will be returned after one week.  After one week 1^st respondent demanded they pick up the bike from the custody of the 3^rd opposite party.  On 07-09-2019 one of service personnel of the 1^st opposite party went to the service center of the 3^rdoppositeparty and at that time, the husband of the complainant was present there.  The technicians of the 3^rd opposite party narrated about the checkup and vehicle was handed over to him.  At that time, the husband of the complainant told to the service persons of the 1^stoppositeparty that he have to go for an emergency work with respect to his job and requested the service personnel to take the vehicle to their Kottayam workshop and assured that he will pick the vehicle from the Kottayam workshop.  The husband of the complainant also conducted a test drive for a few kilometers and satisfied with vehicle.Believing his words, the service personnel from the 1^st opposite party got the vehicle to the service centre of the 1^stopposite party at Kottayam.    The journey was smooth and there was no problem to bike and the matter was intimated to the husband of the complainant.  When the Manager demanded to take back the vehicle from showroom, husband of the complainant replied that he will come only by next day.  But the husband of the complainant or anybody did not come to the showroom to collect the vehicle.  The husband of the complainant intimated that he will not take the vehicle and demanded to change the vehicle alleging the vehicle has manufacturing defect. 

It is submitted in the version that the vehicle is in custody of the 1^stopposite party in their workshop.  It is further submitted in the version that after availing the service of the 1^st opposite party, the complainant and her husband turned against them.  It is admitted that the husband of the complainant had sent an e-mail to the 2^nd respondent and after that the 2^nd respondent had made a call to the husband of the complainant and intimated that as per their knowledge the vehicle has no problem at all.  The said call was made after the inspection of the vehicle by the engineers of the 2^nd opposite party.  Though the 1^st respondent contacted several times, the complainant and her husband demanded to take the vehicle, they did not turned around.  The vehicle has not defect at all.  The allegation that the engine of the vehicle has got complaint is absolutely false.  It is averred in version during free warranty period as and when the vehicle was received any service, the same was provided effectively to full satisfaction of the complainant, which the complainant has deliberately concealed in the complaint.  The 1^st respondent has no connection with financial arrangement between the 1^st complainant and finance company.  Now the vehicle with 1^st respondent with idle condition.  The respondents are not liable for any sort of damages caused to vehicle due to the aforesaid situation.  There is no deficiency of service from the part of opposite parties.

          Evidence in this case consist proof affidavit of 1^st complainant and Ext.A1 and A2 from their side.  Jayakrishnan C.N., who is the service manager of the 1^st opposite party filed proof affidavit in lieu of chief examination for and on behalf of 2^nd and 3^rd opposite party also and got B1 to B6 were marked.

          On evaluation of complaint, version and evidence on record, we would like to consider following points.

1. Whether there is no deficiency in service or unfair trade practice from the part of the opposite parties?
2. If so, what are reliefs?

For the sake of convenience, we would like to consider point No.1 and 2 together.

Point No.1 and 2

          There is no dispute on the fact the complainant had purchased a Bajaj Pulsar NS200 sparking Black with Grey-BS-IV (00JL088M) (Engine No.JLYCKK35296, Chasis No.MD2A36FY4KCK05974) vehicle from 1^stopposite party on 24-01-2019, which is manufactured by the 2^nd opposite party. The complainant had paid an amount of Rs.1,04,568/- for the price of the vehicle and Rs.9,186/- for insurance premium and Rs.10,457/- for road tad.  The specific case of the complainant is that the vehicle started to showvibration and engine missing.  According to the complainant, when she informed this complaints to the 1^st opposite party, the service engineer of the 1^st opposite party assured that all these complaints would be rectified at the time of 1^st free services.  However these complaints were not rectified after the 1^st free service and the service engineer informed her that these defects can be cured by replacing the carburetor of the vehicle.  Therefore, the vehicle was entrusted to the 1^st opposite party on 20-02-2019 for rectifying the defect.  But the 1^st opposite party returned the vehicle without rectifying the defect.  Thereafter as per the direction of the 1^st opposite party, the vehicle was entrusted to the 3^rd opposite party for rectifying the aforesaid defect.  On 07-03-2019 when the husband of the 1^st complainant inspected the vehicle, he came to learn that the defects of the vehicle was not rectified by the opposite parties.  According to the complainant, these defects of the vehicle could not be rectified as the vehicle has suffering from inherent manufacturing defect.

          The complaint was resisted by the opposite parties contenting that the vehicle has no manufacturing defect at all.  On inspection, the technician of the 3^rd opposite party found that the petrol was mixed with dust and the petrol tank and allied parts were cleaned by the technicians of the 3^rd opposite parties.  Normally when the dust mixed with petrol there will be a tendency to throw the dust from the engine and hence the sound was occurred.  It is submitted by the opposite parties that during the free warranty period as and when the vehicle was received for any service the same was provided effectively to the full satisfaction of the complainant.

          On perusal of Ext.B1, which is the job card issued by the 1^st opposite party on 14-02-2019, we can see that the vehicle was entrusted to the 1^st opposite party for 1^st free service at a mileage of 750 kms.  It is recorded in Ext.B1 that there is a body vibration on vehicle on that days.  The vehicle had been entrusted to the 1^st opposite party within a week from the 1^st free service, complaining the body vibration.  Ext.B2 is the job card issued by the 1^st opposite party to the complainant on 21-02-2019.  It is further recorded in B2 that there is a complaint of chain sound and missing complaint to the vehicle.  On perusal of B2, we can see that the body of the vehicle was resetted by the 1^st opposite party and chain sound was lubricated and further carburetor was changed by the 1^st opposite party under warranty conditions.  It is admitted by the opposite parties that the vehicle was entrusted to the 3^rd opposite party for rectifying the defects.  According to the opposite parties, when they inspected the vehicle, they found the reason that petrol is mixing with the dust and they had cleaned the petrol tank and allied parts to cure the defects.  However they did not adduce any evidence to show that which were the repair works done by them to cure the defect.  It is pertinent to note that the opposite parties submitted in the version that the opposite parties would issue job card for every vehicle which was entrusted to them by the customer and all details will be enter in the said job card.  However though they had produced job card issued on 14-02-2019 and 21-02-2019 which were issued by the 1^st opposite party, they did not produce any job card which is generated by the 3^rd opposite party in respect of vehicle of the complainant.  Though the opposite parties contented that the vehicle had picked from the 3^rd opposite party service center to the service center of the 1^st opposite party by a technician of the 1^st opposite party they did not even disclose the name of such technician and did not produce any evidence to show that the vehicle had a smooth performance without any complaint during that journey.  Though the complainant alleged manufacturing defect in the vehicle she did not produce any evidence to prove the same.  The complainant did not take any steps to get inspected the vehicle by an expert commission to prove the defects of the vehicle. In a Pithora of case which were held by Hon’ble National Commission that whenever any person alleges manufacturing defect, the same has to be proved with an expert opinion.  Here in case on hand, there is no evidence before us to prove that the vehicle of the complainant has suffering inherent manufacturing defect.

          On a close evaluation of evidence on records, we can see that the vehicle had complaint of body vibration and engine missing within the short span from the purchase.  Admittedly, the vehicle was in the custody of the 1^st opposite party.  The above stated complaints were occurred within the coverage of warranty which was offered by the 2^nd opposite party to the complainant.  The 2^nd opposite party is under an obligation to rectify the defect which were occurred to the vehicle during the coverage of the warranty.  Normally the dealers of the manufacturer firstly repaired the vehicle within the period of warranty and subsequently claim the case and alleged expense incurred for the same from the manufacturer.  As an authorised dealer of the manufacturer, the 2^nd and 3^rd opposite parties are under an obligation to rectify the defects of the vehicle during the warranty period at free of cost.  Here in case on hand Ext.B1 to B5 proves that the vehicle had complaints of body vibration and missing of engine within the warranty period.  The opposite parties are jointly and severally liable to rectify the defects under the terms and conditions of the warranty policy.  Considering the nature and circumstances of the case, we hereby direct the opposite party 1 and 2 to rectify the defect of the vehicle Bajaj Pulsar NS200 sparking Black with Grey-BS-IV (00JL088M) bearing register no. KL-33 L 2067 in a good road worthy condition within the 30 days from the date of receipt of this Order.

          The opposite parties 1 to 3 are directed to pay Rs.2,000/- as litigation cost to the petitioner.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 11^th day of   February,  2022.

Sri. Manulal V.S. President             Sd/-

Smt. Bindhu R. Member                 Sd/-

Sri. K.M. Anto, Member                 Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Copy of marriage certificate

A2 – Copy of delivery certificate

Exhibits marked from the side of opposite party

B1 – Job card dtd.14-02-2019

B2 – Job card dtd.21-02-2019

B3 – Tax invoice dtd.14-02-2019 by Royal Motors

B4 – Tax invoice dtd.22-02-2019 by Royal Motors

B5 -  Copy of counter foil

B6 – Copy of counter foil issued by 1^st opposite party

                                                                                                By Order

                                                                                            Assistant Registrar