Kerala

Kasaragod

CC/11/159

Vasantha - Complainant(s)

Versus

The Area Manager(Services) Bajaj Pvt.Ltd, Services Department - Opp.Party(s)

Madavan Malankad, Kasaragod

30 Aug 2013

ORDER

 
Complaint Case No. CC/11/159
 
1. Vasantha
S/o.Kunhikanna, R/at. H.No.3/82, Kachery House, Po.Kinningar
Kasaragod
Kerala
...........Complainant(s)
Versus
1. The Area Manager(Services) Bajaj Pvt.Ltd, Services Department
Mumbai, Pune 4111035
Pune
Maharashtra
2. The Managing Director
Zain Arcade, Chandragiri Road, Kasaragod
Kasaragod
Kerala
3. The Chairman
Bajaj Auto Ltd, Akrudi, Pune 411035
Pune
Maharashtra
............Opp.Party(s)
 
BEFORE: 
 HON'BLE MRS. JUSTICE P.RAMADEVI PRESIDENT
 HONABLE MRS. Beena.K.G. MEMBER
 
PRESENT:
 
ORDER

                                                            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/

                                             SENIOR SUPERINTENDENT

 
 
 

 
 
[HON'BLE MRS. JUSTICE P.RAMADEVI]
PRESIDENT
 
[HONABLE MRS. Beena.K.G.]
MEMBER

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