Andhra Pradesh

Chittoor-II at triputi

CC/87/2016

Appani. Niranjan Reddy, S/o. A.Munikrishna - Complainant(s)

Versus

The Bajaj Auto Ltd., represented by the Managing Director - Opp.Party(s)

A.Nivedita

11 Oct 2017

ORDER

Filing Date: 05.07.2016

Order Date:11.10.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

WEDNESDAY THE ELEVENTH DAY OF OCTOBER, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.87/2016

 

 

Between

 

 

Appani Niranjan Reddy,

S/o. A.Munikrishna,

Hindu, aged about 25 years, Student,

2-88/6, Nethaji Nagar,

Tiruchanur,

Chittoor District,

Andhra Pradesh.                                                                               … Complainant.

 

And

 

 

1.         The Bajaj Auto Ltd.,

            Rep. by its Managing Director,

            Akurdi,

            Pune – 411 035.

 

2.         The Sri Ram Enterprises,

            Rep. by its Manager,

            Authorised Dealer for Bajaj Auto Ltd.,

            D.No.19-3-1K, Renigunta Road,

            Tirupati,

            Chittoor District,

            Andhra Pradesh.                                                                   …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 27.09.17 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.C.Reddeppa, counsel for complainant, and Sri. G.Guru Prasad, counsel for opposite parties 1 and 2, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section –12(1) of C.P.Act 1986, by the complainant against the opposite parties 1 and 2 for the following reliefs 1) to direct the opposite parties 1 and 2, to replace the two wheeler of the complainant with a new one, 2) to direct the opposite parties 1 and 2, to pay Rs.1,00,000/- towards damages for the supply of improperly built and technically degraded two wheeler and for unlawful attitude of the opposite parties 1 and 2,  3) to direct the opposite parties to refund the amount mentioned in tax invoice and also installment amount of Rs.3560/- with interest at 18% p.a., 4) to direct the opposite parties 1 and 2, to return the insured amount of Rs.3036/- along with interest at 18% p.a. or to transfer the same to the vehicle to be replaced, 5) to direct the opposite parties to pay the costs of the complaint, and to pass such other orders or further reliefs, as the Forum deems fit and proper in the circumstances of the case.    

            2. The brief averments of the complaint are:-  That the complainant being a student, purchased ‘Bajaj Pulsar RS 200 BSIII’ two wheeler for Rs.1,40,300/- on 20.04.2016 from opposite party No.2. The vehicle is under temporary registration bearing No.AP-03-UZ-TR-7972. He paid Rs.76,000/- as down payment, and the Indus Ind Bank released Rs.85,000/- on financing the vehicle, which is to be repayable by the complainant within 24 equal monthly installments at Rs.3,560/-. The complainant also insured his vehicle with New India Assurance Company Ltd., for one year by paying premium amount of Rs.3,036/-. The tax invoice of the opposite party No.2, has mentioned the cost of the vehicle as Rs.1,22,427/-. The down payment amount also mentioned as Rs.56,687/-. The complainant has paid the 1^st installment of Rs.3,560/- to the finance bank. Opposite party No.2 has arranged the bank and insurance company.

            3.  Within 30 days after purchasing the vehicle, the complainant observed that there is leakage of engine oil, problem in front wheel suspension, doom sound, front wheel disk sound, and low mileage of 29 to 30 k.m. per liter, as against 60 k.m. per liter, as assured by opposite party No.2, high noise in the engine and also the vehicle used to stop abruptly while running. All these problems developed within one month from the date of purchase of the vehicle and within the warranty period. Therefore, the complainant further contended that the vehicle is assembled one and having manufacturing defects. He handed-over the vehicle to the opposite party No.2 for about 6 times i.e. on 23.04.2016, 27.04.2016, 05.05.2016, 13.05.2016, 20.05.2016 and 30.05.2016, the same was recorded in the audio and vedio CD and photos also enclosed along with the complaint, but the opposite party No.2 failed to rectify the problems. The complainant further contending that, as the opposite party No.2 failed to rectify the problems and also refused to replace the vehicle with new one, there is deficiency in service on the part of the opposite parties, and there is manufacturing defect in the vehicle. The opposite parties, financing bank and the insurance company, were colluded with each other and refused either to rectify the problems or to replace the vehicle. Hence the complaint.

            4.  Opposite party No.1 (Manufacturer) filed its written version contending that opposite party No.1 is the manufacturer of the vehicle in question. As per the warranty conditions, every possible care and precautions are taken, to ensure quality in respect of the material and workmanship in manufacturing the vehicle. Warranty is for two years or 30,000 k.m., whichever is earlier from the date of purchase. Opposite party No.1 shall not be liable for replacement of tyres and tubes, battery and spark plugs etc. but undertakes either to repair or replace the defective parts during the warranty period. The customer can avail three free services and four paid services at every 5000 k.m., or 120 days whichever is earlier, without any lapse from the authorized dealer. The warranty is not applicable for some items like breaks, clutch, cleaning of fuel system, engine tune-up or such other adjustments and other items which are mentioned under items 1 to 18 under part-C of the manual of the vehicle. That there is no averment in the complaint that the vehicle sustained any manufacturing defects, for which the complainant is entitled for replacement during the warranty period, and no proof is filed in this regard. There is no liability on the part of the opposite party No.1, to answer the demands of the complainant. Warranty period is still in force, complainant can avail free services and paid services to keep the vehicle in good condition. There is no manufacturing defect in the vehicle and prays the Forum to dismiss the complaint with costs against the opposite party No.1.

            5.  Opposite party No.2, authorized dealer filed its written version contending that the complainant on 20.04.2016 purchased ‘Bajaj Pulsar RS 200 BS-III’ two wheeler from opposite party No.2 for Rs.1,22,427/-, as per invoice No.R0063 dt:21.04.2016. Vehicle is registered with life tax etc. for Rs.11,150/-. The vehicle is also insured with New India Assurance Company Ltd. on payment of premium of Rs.3,036/-. The allegations regarding leakage of engine oil, doom sound etc. were not informed to this opposite party. Opposite party No.2 is not aware of the Audio and Vedio CD. The allegations of no mileage, high noise etc., are false. That on receipt of customer complaint, opposite party No.2 deputed their service advisor to the house of the customer and requested the complainant to give the vehicle for service and to rectify the problems if any in the vehicle, but for the reasons best known to the complainant, he refused to handover the vehicle to the service centre. The Area Service Manager was also deputed to the house of the complainant, but in vain.   

            6.  Only on one occasion i.e. on 12.05.2016, the complainant approached opposite party No.2. He never brought the vehicle to opposite party No.2 on other dates mentioned in the complaint. It is absolutely false that the vehicle is an assembled one. The vehicle is within the warranty period of two years or 30,000 kms, whichever is earlier from the date of purchase i.e. on 21.04.2016. That the complainant did not follow the maintenance instructions to get optimum performance as laid down in the manual for checkup fuel, spark plugs, air filter, engine oil, breaks clutches, tyre, air pressure etc. The complainant has not followed the free service guidelines without lapse as well as paid service from opposite party No.2, for keeping the vehicle in good condition. The first service was done on 12.05.2016 and no other services were taken by the complainant subsequent to 12.05.2016 even after lapse of 120 days. As per service schedule of the manufacturer, the vehicle is got to be serviced for every 120 days or 5000 kms, whichever is earlier from the date of previous service. Without availing services, the complainant cannot claim amount or made allegations for replacement of the vehicle. There is no proof or evidence to show that the vehicle suffered from manufacturing defect. There is no deficiency in service on the part of the opposite party No.2. Complainant is not entitled for the reliefs sought for and prays the Forum to dismiss the complaint with costs.

            7.  In support of the complainant, he himself filed chief affidavit as P.W.1 and got marked Exs.A1 to A8. For the opposite parties R.W.1 filed chief affidavit and reported no document on their behalf. Both parties have filed their written arguments respectively, which are part and parcel of the record.

            8.   Now the points for consideration are:-

            (i).  Whether the motorcycle bearing No.AP-03-UZ-TR-7972, is having any

                  manufacturing defect?  

            (ii).  Whether there is deficiency in service on the part of the opposite parties    

                   1 and 2 as alleged?

            (iii). Whether the complainant is entitled for the reliefs sought for?

            (iv). To what relief?

            9.  Point No.(i):-  In order to prove the alleged manufacturing defect in the vehicle bearing No.AP-03-UZ-TR-7972, burden lies on the complainant. Apart from this allegation, the complainant also made some allegations such as opposite party No.2 has collected Rs.1,40,300/- towards the cost of the vehicle and issued tax invoice for Rs.1,22,427/-. Similarly, in respect of down payment also another allegation is made that he has paid Rs.76,000/- as down payment, but it was shown as Rs.56,687/- by the opposite party No.2. All these allegations were not established by the complainant. In support of his case, the complainant filed Ex.A1 tax invoice dt:21.04.2016, in which cost of the Pulsar vehicle in question was mentioned as Rs.1,22,427/-. Ex.A4 Motor Vehicle Cover Note issued by The New India Assurance Company Ltd. dt:21.04.2016, in which insured’s estimated value of the Pulsar vehicle in question was mentioned as Rs.1,22,427/-. So, there is no proof that the complainant has paid Rs.1,40,300/- towards cost of the vehicle in question. So far as manufacturing defect is concerned, the allegations made by the complainant is that within 30 days after purchase of the vehicle, it started giving troubles, as such he has taken the vehicle to opposite party No.2 for about 6 times i.e. on 23.04.2016, 27.04.2016, 05.05.2016, 13.05.2016, 20.05.2016 and 30.05.2015, but no proof or any iota of evidence is filed to show that he has produced the vehicle before opposite party No.2 on any of the above said dates. He has mentioned that the same is recorded in audio and video CD under Ex.A7. Ex.A7 consists of two CDs, one is audio and another is video. I have watched and verified both the CDs, but nowhere either in audio or in video CDs identity of the vehicle is established. Similarly, complainant also filed Ex.A8, which consists of 16 photographs, covered audio CD in Ex.A7. None of the 16 photographs discloses the identity of the vehicle by showing its temporary registration No.AP-03-UZ-TR-7972. Therefore, no reliance can be placed on Ex.A7 (two CDs) and Ex.A8 (16 photographs). The defects that were made specifically in respect of the vehicle were termed as engine oil leakage, front wheel suspension problem, low mileage, doom sound and front wheel disk sound. According to opposite party No.2, the vehicle was produced before opposite party No.2 only on one occasion i.e. on 12.05.2016. Thereafter, the vehicle was not produced before opposite party No.2 for effecting three free services and four paid services, as shown in the service manual or service schedule.

10. During the pendency of the proceedings, complainant filed I.A.No.28/2017 for reopening the case, for the purpose of examining the vehicle bearing No.AP-03-UZ-TR-7972 with an automobile expert, and also filed I.A.No.29/2017 praying the Forum to appoint an expert in mechanical or automobile engineer in S.V.Government Polytechnic College, Tirupati, to examine the vehicle bearing No.AP-03-UZ-TR-7972 and for his report, but nowhere in those two I.As, the complainant mentioned that there is manufacturing defect in the vehicle, but he stated that certain mechanical defects are there. Both those I.As were dismissed on merits on 09.06.2017, on the ground that he has not sought for appointment of expert to find out whether there is manufacturing defect in the vehicle. So far as mechanical defects are concerned, they can be rectified by opposite party No.2, and there is no need to replace the vehicle. After those petitions were dismissed, no other petition is filed to refer the vehicle to any expert for ascertaining whether there is any manufacturing defect in the vehicle. Thus, we are holding that the complainant failed to produce any cogent evidence to prove that there is manufacturing defect in the vehicle, warranting replacement of the vehicle.

            11.  In the absence of any such cogent evidence and also on failure of establishing the identity of the vehicle under Exs.A7 and A8 (CDs and photographs), and also in the absence of evidence that the complainant produced the vehicle in question before opposite party No.2 for about 6 times on the dates mentioned in the complaint, it cannot be said that the complainant has make-out a case for establishing manufacturing defect. In this connection, the learned counsel for opposite parties relied on a decision reported in II (2006) CPJ 143 (NC) – Dagadu Bhairu Bhosale Vs. Scooter India Ltd. & Anr., wherein the facts are – that the complainant purchased a chassis of three wheeler on which a body was got fitted from a private fabricator. Once he started plying the vehicle, he found difficulty in starting the vehicle. It was his case that there were several manufacturing defects in the vehicle, which were neither removed by the opposite party, nor were they willing to replace the vehicle, hence the complaint was filed before the District Forum, who after hearing the parties, dismissed the complaint. An appeal filed before the State Commission met with the same fate, hence this revision petition before the Hon’ble National Commission, wherein their Lordships held that there was no evidence brought on record of any person qualified to state so, that the vehicle had manufacturing defect. Their Lordships further found that the chassis was purchased on 21.01.1991 by paying the requisite amount and it carried a warranty for three months or 7500 kms., whichever is earlier. The receipts brought on record are largely of consumables to begin with like nut-bolts, gear oil, battery pacers (which are replaced under warranty clause), differential oil, etc. Since these are not covered under the warranty, we also see no merit in this claim of the petitioner. Without going into the question of limitation, we find petitioner has failed to prove that there was a manufacturing defect in the chassis supplied by the respondents. Hence revision petition is dismissed.  He also relied on another decision reported in II (2016) CPJ 57 (NC) – N. Balraj Vs. Agile Phototechniks (I) Pvt. Ltd. & Ors. – in this case, the facts are that the complainant / appellant – proprietor of firm M/s. Sri Jyothi Colour Lab, was running it for his self-employment. A quotation was given by opposite party Nos. 1 and 2 / respondent Nos. 1 and 2 on 12.01.2004 for an amount of Rs.18,65,781/- for one equipment and another equipment for an amount of Rs.4,18,379/-. On the inducement of the opposite parties 1 and 2, the complainant had approached the opposite party No.5 / respondent No.5, i.e. ICICI Bank for loan facility and the bank had agreed to advance loan to a tune of Rs.17,13,120/- and that he agreed to take loan of Rs.1,95,989/- and Rs.5,00,000/- to purchase the equipments. The complainant has purchased the equipment by availing the loan from ICICI bank and paid installments from 22.04.2004 upto 22.02.2005. The equipments were delivered after lot of persuasion. However, the equipments never worked from the date of installation. A protest was made with the opposite parties for their mis-representation that the equipments supplied are new one for which they agreed to replace with new equipment. A letter dated 18.04.2005, was addressed in this regard. The opposite parties 1 and 2 did not replace the equipment. Alleging deficiency on the part of opposite party / respondent, complainant filed complaint before State Commission. Opposite parties 1 and 2 resisted complaint and submitted that complainant is not a consumer and goods are purchased for commercial purpose. Opposite party No.5, resisted the complaint stating that the complainant had defaulted in payment of installments after 22.02.2005. In order to avoid loan repayment the complainant set up false allegations. The Hon’ble State Commission after hearing both sides dismissed the complaint. Hence, appeal before the Hon’ble National Commission. Their Lordships National Commission also dismissed the appeal holding that the complainant failed to produce any evidence to the effect that there was any manufacturing defects in the machinery or machinery was second hand and upheld the order of the State Commission.

            12.  The facts of the above two decisions are applicable to the case on hand on the ground that though the complainant made allegations that Bajaj Pulsar motorcycle bearing registration No.AP-03-UZ-TR-7972, is having manufacturing defect and that it is assembled one and that it gave troubles right from 23.04.2016 i.e. 3 days after purchase of the vehicle, but no scrap of paper is filed to prove that the vehicle has either any manufacturing defect or gave troubles on the allegations of oil leakage, low mileage, front wheel suspension problem, doom sound, front wheel disk sound etc. In the absence of evidence from the competent person or qualified expert to the effect that there was any manufacturing defect in the vehicle in question, the complainant’s allegations cannot be accepted. Under the above circumstances, we are of the opinion that the complainant failed to establish the manufacturing defect in the vehicle. Accordingly this point is answered.

            13. Point No.(ii):-  In order to prove the allegation, the complainant did not place any material before this Forum except Ex.A1 Tax Invoice dt:21.04.2016, Ex.A2 Temporary Certificate of Registration dt:21.04.2016, Ex.A3 Sale Certificate, which shows that the vehicle was delivered to the complainant on 21.04.2016, Ex.A4 Motor Vehicle Cover Note (insurance cover note) issued by The New India Assurance Company Ltd. dt:21.04.2016, Ex.A5 is legal notice, Exs.A7 and A8 which are already discussed supra i.e. two CDs and 16 photographs respectively, failed to prove that he has brought the vehicle before opposite party No.2 for 6 times on the given dates above for rectifying the defects. Though opposite party No.2, has specifically mentioned in its written version, evidence affidavit and also in written arguments that except on 12.05.2016, the complainant did not bring the vehicle to opposite party No.2 at any point of time. As per the manual, the vehicle is got to be serviced for every 120 days. The vehicle is within the warranty period of two years or 30,000 kms., from the date of purchase, whichever is earlier. That the complainant did not follow the maintenance instructions to get optimum performance as laid down in the manual for checkup fuel spark plugs, air filter, engine oil, breaks clutches tyre, air pressure etc. The complainant has not followed the free service guidelines without lapse as well as paid service from opposite party No.2, for keeping the vehicle in good condition. The 1^st service is done on 12.05.2016 and no further services were availed by the complainant later on, even after lapse of 150 days. As per service schedule of manufacturer, the vehicle is to be get serviced for every 120 days or 5000 kms. run, whichever is earlier, but he failed to follow the service conditions. For these allegations, the complainant has not made any proper answers. In Ex.A7 CDs, CD No.2 which is a video CD shows that one Sri Ram and another person from Bajaj Company attended on the vehicle (no registration number is visible / displayed), and they asked the complainant to handover the vehicle to them, for which the complainant refused to handover the vehicle. So, the contents of CDs 1 and 2 under Ex.A7 also did not support the case of the complainant in respect of establishing the identity of the vehicle. Without producing the vehicle before opposite party No.2, subsequent to 12.05.2016, as contended by opposite party No.2, the complainant cannot make any such allegations that the opposite parties have either refused to effect the services or refused to replace the vehicle. Ex.A7 CDs shows the date as 09.06.2016, but the allegations in respect of troubles said to have been developed in the vehicle were up to 30.05.2016. Without handing-over the vehicle to opposite party No.2 for getting rectified the minor defects, if any, the complainant is not supposed to make allegations against the opposite parties. Under the above circumstances, we are of the opinion that the complainant did not file any evidence such as job cards or the evidence that he has produced the vehicle on the given dates before the opposite party No.2 for rectification etc., we are unable to convince with the case of the complainant and hold that the complainant failed to establish that there is deficiency in service on the part of the opposite parties 1 and 2. Accordingly, this point is answered.

            14. Point No.(iii):-  In view of the discussion held on points 1 and 2, and that since the complainant failed to establish that there is manufacturing defect in the vehicle and also failed to establish that there is deficiency in service on the part of the opposite parties 1 and 2, the claim made against the opposite parties 1 and 2 by the complainant cannot be sustained, and therefore, the complainant, in our opinion is not entitled for the reliefs sought for against the opposite parties 1 and 2. Accordingly this point is answered. 

            15.  Point No.(iv):-  In the light of the above discussion and in view of the decisions of the Hon’ble National Commission, referred to above and also in the absence of any cogent evidence to establish the alleged manufacturing defect in the vehicle and also complainant’s failure in proving the deficiency in service on the part of the opposite parties, the complainant is not entitled for the reliefs sought for and complaint therefore is liable to be dismissed.

            In the result, complaint is dismissed. No order as to costs.                             

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 11^th day of October, 2017.

 

       Sd/-                                                                                                                      Sd/-                                  

Lady Member                                                                                                      President

 

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Appani Niranjan Reddy (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: R. Saketh Ram (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Customer copy of Tax Invoice issued by the opposite party No.2. Dt: 21.04.2016.
	True copy of Form C.R. Tem (Temporary Certificate of Registration) issued by the AP Transport Department in favour of complainant. Dt: 21.04.2016.
	True copy of Form-21 i.e., Sale Certificate issued by the opposite party No.2 of company i.e., Sri Ram Enterprises. Dt: 21.04.2016.
	Original copy of Insurance issued by the New India Assurance Company Limited in favour of the complainant. Dt: 21.04.2016.
	Office copy (Photo copy) of Legal Notice issued by the complainant to the opposite party along with 3 postal receipts. Dt: 10.06.2016.
	Served acknowledgement card.
	C.D’s i.e., Audio and Vedio of Opposite Party No.2.
	Photographs in Original(16 in Number) containing the vehicle defects 8 in Number.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

-NIL-

 

 

                                                                                                                                      Sd/-

                                                                                                                      President

    

     // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

         

 

Copies to:-     1.  The complainant.

                        2.  The opposite parties.