IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 12th day of August, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 86/2018 (filed on 03-05-2018)
Petitioner : Libin Babu,
S/o. Babu P.K.
Erupatharayil (H)
Kavalam North P.O.
Alappuzha.
(Adv. Libin Babu)
Vs.
Opposite Parties : (1) Royal Motors,
Royal Tower,
Near Govt. Polytechnic College,
Nattakom, Kottayam,
(2) The Manager,
Royal Motors, Royal Tower,
Near Govt. Polytechnic College,
Nattakom, Kottayam,
(For Op1 and 2, Adv. Avaneesh V.N)
O R D E R
Sri. Manulal V.S. President
The complaint is filed under Section 12 of the Consumer Protection Act, 1986.
Case of the complainant is as follows:
Complainant purchased a motor cycle of model Bajaj Pulsor 150DTS -1,KHI Ebony black with red Decal bearing engine no.DHZWHK16746 for an amount of Rs.80,900 from the first opposite party on 29-3-2017. Complainant paid Rs.19,000/- as down payment and for the remaining amount he sought finance from HDFC Bank Ltd . The said motor cycle was handed over to the complainant from the showroom of the first opposite party at Laikkadu, Perunnai. The said vehicle was registered with the authorities as having registration no. KL-66-A-4475. From the very first periodic service, the complainant was disappointed with the poor performance of the motor cycle and it did not meet the performance offered by the manufacturer. When the complainant intimated the same to the second opposite party, he convinced the complainant that after two or three services the performance would become better. But even after the third service there was no improvement in the performance of the motor cycle but showed some defects. When it was intimated to the second opposite party he suggested to replace some spare parts. Even though the complainant was reluctant for the same as per the direction of the first opposite party, the technicians of the second opposite party replaced some parts such as cylinder kit, Clutch base, timer chain etc. But the defect was not cured. Thereafter the complainant came to know that the opposite parties had done the replacement using old spares instead of using new spare parts. When the complainant reported that to the opposite parties they denied that and made him to believe that they would change the engine head. After two days they returned the vehicle to the complainant stating that they had replaced the engine head. When the complainant rode the vehicle, he came to know that the defects were not cured and opposite parties made false promise to him.
Aggrieved by the act of the opposite parties the complainant returned the vehicle to the first opposite party and demanded to replace the vehicle, which was denied by the opposite parties. The request of the complainant to close the finance by the opposite parties, if they are not willing to replace the vehicle also denied by the opposite parties. On 23-1-2018 the complainant sent a legal notice to the second opposite party. On 9-8-2018 the opposite party sent a reply notice denying the averments and also demanded to take back the vehicle which was kept at the premises of the showroom at Nattakom.
According to the complainant he had suffered a lot with regard to the defects of the vehicle. The opposite parties charged money by ensuring to cure the defects though it was the duty of them to cure the defects without money as service to be rendered as free services. The acts of the opposite parties amounts to deficiency in service and unfair trade practice. Hence this complaint is filed by the complainant praying for an order to direct the opposite parties to replace the vehicle with a new one or to take back the vehicle by closing the finance by the opposite parties and to pay Rs.10,000/- as compensation.
Upon notice opposite parties appeared before the commission and filed version contending as follows:
Complainant has purchased a Bajaj Pulsor 150 DTS-1motor bike on 29-3-2017 from the first opposite party. Thereafter the vehicle was extensively and continuously used by the complainant for over one year. Now the vehicle covered 17000/Kms. The vehicle has no defect at all. The second respondent never assured the complainant after two or three services that the performance would be better. At the time of the second service the complainant has complained about a sound and vibration of the vehicle when it is in a speed over 100 kms. Then the second opposite party advised the complainant that the vehicle has 150 cc engine and due to that the vibration and sound happened. Though the complainant pointed out some complaints in the second and third services the second opposite party rectified those complaints.
It is submitted in the version that at 14,829km complainant came for the paid service and at that time there was no complaint about the performance of the vehicle. On 14-11-2017 in 16825 km complainant came with the vehicle and complaint about the engine sound. At that time service personal after opening the engine checked the engine and gasket was changed in order to avoid leakage from the engine. After the check-up they found no abnormalities in the functioning. In 16245 Km he came to the service centre and told that a tappet sound from the vehicle and again engine was inspected. But no problem was detected. At that time chain and sprocket was changed. The clutch base was never changed by opposite parties.
The allegations in the complaint that the opposite parties changed the clutch base, engine head and had done the replacement using the old spare instead of new one are false .In 9346km the complainant told that the vehicle had only low pulling. Then the opposite parties changed the cylinder block piston under warranty. In December last the complainant came to the workshop with the vehicle and demanded to replace the vehicle. When the second responded denied the same, the complainant went away after leaving the vehicle in the workshop of the first opposite party. It is submitted in the version 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. There is no manufacturing defect for the vehicle. Now the vehicle is in the workshop of the first respondent in good condition, if the vehicle is not in regular use, it will affect the engine and allied parts including the tyres and battery. There is no deficiency in service or unfair trade practice from the side of the opposite parties.
Complainant filed proof affidavit in lieu of chief examination and marked exhibits A1 to A7. Expert commission report is marked as exhibit C1. Complainant filed argument note. Heard both the parties.
On evaluation of complaint, version and evidence on record we would like to consider the following points.
(1 )Whether there is any deficiency in service on the part of the opposite parties?
(2) If so what are the reliefs and costs?
Point number 1 and 2
There is no dispute on the fact that the complainant has purchased a Bajaj Pulsor 150 DTS-1motor bike on 29-3-2017 from the first opposite party. Exhibit A1 proves that the said vehicle is registered with motor Vehicle authorities vide
registration number KL-66-A-4475. It is proved by exhibit A2 that the complainant has paid Rs.80,900/- to the first opposite party as the price of the said vehicle. According to the complainant he had paid Rs.19,000/- as down payment and for the remaining amount he sought finance from HDFC Bank Ltd.
The specific case of the complainant that from the first service, he was disappointed with the poor performance of the vehicle and it did not met the performance offered by the producers. It is submitted by the complainant that even after the third service there was no improvement in the performance but the motor cycle showed many defects. In order to rectify the defects though the second opposite party replaced cylinder kit, clutch base, timer chain engine head etc but the defects was not cured. The complaint was resisted by the opposite parties on the ground that the vehicle had no defect at all and the vehicle was extensively and continuously used by the complainant for over one year. It is submitted by the opposite parties that at the time of the second service the complainant has complained about a sound and vibration of the vehicle when it is in a speed over 100 kms. The reason for that is the vehicle has 150 cc engine and due to that vibration and sound has happened. Another complaints pointed out by the complainant in the second and third services were rectified by the second opposite party. According to opposite parties at 14,829km complainant came for the paid service and at that time there was no complaint about the performance of the vehicle. On 14-11-2017 in 16825 km in order to rectify complaint about the engine sound, service personal checked the engine after opening the engine and gasket was changed .Usually in every check-up after opening the head of the engine, gasket should be changed in order to avoid leakage from the engine . After the check-up they found no abnormalities in the functioning. In 16245 Km to cure tappet sound from the vehicle and again engine was inspected. But no problem detected. At that time chain and sprocket was changed due to wear and tear. It is admitted in the version that in 9346 km to rectify the low pulling of the vehicle the cylinder piston block was changed under warranty. The clutch base was never changed by opposite parties.
In order to prove his case complainant filed petition to inspect the vehicle by an Expert Commissioner. The same was allowed and R.G. Rejikumar who is a consulting engineer and valuer, surveyor and loss assessor is appointed as an expert commissioner in this case.
After examining the vehicle the expert commissioner filed his report before this commission and same was marked as exhibit C1. In C1 expert commissioner has reported that after riding the vehicle 15 kms through a rough, terrain, normal road as well as steep slanting road he was unable to identify any kind of Engine
damage or other sorts of issue as alleged in the complaint. He further reported that the vehicle meet the performance as offered by the producer and new spare parts for Cylinder kit, clutch base, timer chain were to work perfectly and engine head was replaced and there was no uneven sounds at the time of riding. He categorically reported that the vehicle seems to be in perfect working condition. The complainant neither filed objection to the C1 commission report nor to adduce any evidence to discredit ExhibiC1 commission report. On a thought full evaluation of the evidence on record we are of the opinion that the complainant failed to prove any defect in the vehicle and whether the vehicle has not met the performance as offered by the producer. The manufacturer of the vehicle is liable only if any imperfection and inadequacy in the performance of the vehicle due to any manufacturing defect persist. . Here in case on hand the manufacturer of Bajaj Pulsor 150 DTS-1motor bike is not a party to the litigation.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. It is pertinent to note the in the version as well as in proof affidavit the opposite parties submitted that the vehicle is in the workshop of the first respondent in good condition, if the vehicle is not in regular use, it will affect the engine and allied parts including the tyres and battery. Considering that admission made by the opposite parties we dismiss the complaint with a direction to the opposite party to handover the vehicle to the complainant without levying any charges like demurrage charges etc. The complaint is dismissed.
Pronounced in the Open Commission on this the 12th day of August, 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 registration certificate (KL-66-A-4475)
A2 – Copy of retail invoice dtd.29-03-17
A3 – Copy of E-mail communication
A3(a) whatsapp image of vehicle parts
A4 – Lawyers notice dtd.23-01-18 to the second opposite party
A5- Postal receipt
A6- Postal acknowledgement card
A7 – Reply notice (Lawyers notice)
Commission report
C1 – Report submitted by R.G. Rejikumar
Exhibits marked from the side of opposite party
Nil
By Order
Assistant Registrar
