COMMON ORDER
SMT. RAMADEVI.P : PRESIDENT
The above cases are tried jointly and a common order is passed.
Briefly stated the facts of the cases are that the complainants purchased Bajaj Autorikshaw RE445M from Ist opposite party the dealer of Bajaj vehicles. 2nd opposite party is the manufacturer and 3rd opposite party is the service centre. The vehicles are hypothecated to NMG Bank, Mogral Puthur Branch. At the time of purchase of the above vehicles the opposite party made a representation that this particular model vehicle is having a diesel engine and claimed 36 Km/lr and many other advantages . On believing the words of the opposite parties the complainants purchased the vehicles. But later the complainants came to know that the promised features were not seen and the performance of the vehicles are poorest. To the surprise of the complainants at the beginning itself the vehicles sensed engine defects, shock absorber not giving good results, full body vibration, overheating of wheel drum, joint complaint fork complaint etc. When it was brought to the notice to the opposite parties their response was that this is a new model vehicle fully trained expert mechanics are not available and thereby the repairs were delayed. The vibration sound is so horrible that passengers once travelled never hires this model vehicle. This vehicle never gave comfort either to the driver or to the passengers. The complainant reported the above defects to the Ist opposite party but his response was unsatisfactory and behavior was very crude and irresponsible. Many times repairs were delayed or not repaired at all and thereby the complainants suffered much and they sent a lawyer notices to the opposite parties for replacement of their vehicle alleging manufacturing defects on vehicles. But on receipt of the notices the opposite parties neither complied the legitimate demand in the notice nor sent any reply to the notices. Hence this complaints are filed for necessary reliefs.
2. The opposite parties filed same version in all the cases. In their version they denied all the allegations made against them by the complaints. The opposite parties submits that there is no manufacturing defect in the vehicle and the opposite parties given free services as per terms and conditions of warranty as and when the vehicle brought to the opposite parties. It is further submitted that the vehicle is used for more than one year and according to the opposite parties the complainants misused the vehicles by excessive loading and continuous use thereby the complainants breahed the warranty conditions. In spite of such misuse of the vehicle the necessary service are offered from time to time. Due to such misuse of the vehicle, as per warranty terms and conditions the vehicle goes out warranty and is not eligible for any free service. However as a gesture of goodwill the services were rendered to the complainant’s vehicle. According to opposite parties the complainants used to repair the vehicle from outside agencies thereby they used duplicate parts to the vehicle and there is no manufacturing defect in the vehicles. It is further submitted that while taking delivery of the vehicle the complainant had taken necessary trials of the vehicle and upon checking and only upon satisfaction that the vehicle is perfectly Ok the complainant has taken the delivery of the vehicle. According to the opposite parties the complainants concealed the material fact before the Forum that the services rendered by opposite parties without submitting the owner’s manual. Therefore the complainants are not entitled to get any relief and the complaint is liable to be dismissed.
3. After considering the facts of the case the following issues raised for consideration
1. Whether the vehicles have got any inherent manufacturing defect or not
2. If so what is the relief , cost and compensation?
4. Here the complainants examined as PW1in all cases and Exts.A1&A2 series marked and expert is examined as PW2 and Ext.C1 marked. On the side of opposite parties DWs 1&2 are examined and Exts.B1to B10 marked.
5. The Ist issue is regarding the manufacturing defect of the vehicle. The specific case of the complainants are that the vehicle has got manufacturing defects . According to the complainants at the beginning of the purchase itself the vehicles sensed engine defects and horrible vibration sound and overheating of wheel drum etc were seen and the defects continued and the defects were not permanently repairable. That is why according to the complainant is a manufacturing defect.
6. The opposite parties contended that due to overloading and extensive and continuous use of the vehicle has caused some defect and the same is repaired by the opposite parties by free of cost. These defects are not manufacturing defects and those defects are not in permanent nature.
7. In order to prove the case of the complainants they had taken out an expert commission. The commissioner had filed his report as Ext.C1. The Expert has noted many defects in the vehicles. He reported that clutch is not working properly, engine vibration, premature wear out of tyres, joint complaint , high noise of engine, high vibration etc. According to the expert the existing defect in the vehicle fall under the definition of inherent manufacturing defect. He has also given the definition of inherent manufacturing defect, that means the defects which cannot be cured or repaired by the manufacturer even after several repeated attempts. The opposite parties filed objections to Ext.C1 report. According to the opposite parties the commissioner failed to report about the service availed by the complainants, maintenance of the vehicle expired warranty etc. The opposite parties further stated that the expert is failed to report that what tools has used to inspect the vehicle to arrive at a conclusion that the vehicle has got inherent manufacturing defect. According to opposite parties expert report will prove the extensive and continuous use of the vehicle by the complainant since the vehicle completed an average of 35000 kms on 15/12/2011 and fuel average is 35km/lr even after more than one year. Moreover the opposite parties stated that the commissioner was extended his limit and his report is a biased one. Complainants had not filed any objections to Ext.C1.
8. Here the question raised is whether the report of the Expert can be acceptable as such?
As per the report of the commissioner he noted most of the vehicles covered more than 35,000 km. If the alleged defects were not curable or if the vehicle has got an inherent manufacturing defect how the complainants plied 35,000kms ? The report is silent about the tools used by the expert to come to the conclusion that the vehicles have got inherent manufacturing defect. Considering the above facts we cannot hold that the vehicle has got inherent manufacturing defect.
The fitness certificate issued by DW2, RTO shows that the vehicles are fit for use. That mean the defect in the vehicles are repairable.
9. The specific contention of the opposite parties is that due to overloading and extensive use of the vehicle and lack of proper maintenance the defect may occur and the defects are not a manufacturing defect. Here we cannot accept the above contention of the opposite parties since the defect is not in a single vehicle. The same defects are noted in a batch of vehicles of the same brand. We cannot believe that all vehicles were plied by overload and extensive use and lack of proper maintenance. Here the complainants stated in their complaints that RF445M Bajaj Models lounged across country and it reported several complaints from every part of the country and it is reliably understood that the vehicle is being withdrawn by company from the market. The opposite parties answered to the above statement that they introduced a modified model of this vehicle. That means the model of vehicles which are the subject of dispute is now not in the market.
10. The learned counsel appearing for the opposite parties submitted that the complainants took delivery of the vehicle with full satisfaction after plying the same. That may be true but the defect may be found subsequently.
11. The another complaint of the complainants is the failure to give proper services by the opposite parties. Complainants stated that opposite parties delayed the repair or sometimes not repaired at all. This statement of complainants will not lie since the complainants failed to produce the owner’04/05/1968s manual before the Forum. In the absence of the owners manual we cannot say what repairs have been done and the nature of repairs. That is why we cannot hold that the defects of the vehicle are not curable. Here the opposite parties will not get any advantage of non production of owner’s manual by the complainants since the defects pleaded in the complainant tallies with the defects noted by the expert. That means we are of the opinion that the vehicle has got some manufacturing defects but the same are not inherent manufacturing defects. Moreover the opposite parties failed to prove that the vehicle is defect free.
12. We have examined the entire material on record and given considerations to the arguments advanced by both the counsels before us. It is however made out from the facts on record and also admitted by the complainants that each vehicle plied an average of 35000kms till 15/12/11. Here the complainant is not eligible for replacement of the vehicle. But regarding the manufacturing defect of the vehicle the complainants are entitled for compensation for mental agony and sufferings.
Therefore the complaints are allowed in part and the opposite parties are jointly and severally directed to extend the warranty of the vehicles for another period of one year and opposite parties further directed to pay Rs. 10,000/- to each complainants for mental agony and suffering and Rs.2000/- to each complainants towards cost of the proceedings. Time for compliance is 30 days from the date of receipt of copy of the order.
Exts:
A1-Lawyer notice(similar in all cases)
A2 series- cash bills(similar in all cases)
B1 to B10- copy of RC book of all complainants
C1- Commission report
all cases complainants examined as PW1
PW2-Praveenchandra Shetty- Expert
DW1- Sandeep Krishnan.R-Op.NO.2
DW2-P.T.Eldho-RTO,Kasaragod
Sd/ Sd/
MEMBER PRESIDENT
eva /Forwarded by Order/
