IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 10th day of May, 2022.
Filed on 20.10.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A.L, LLB (Member)
In
CC/No.250/2021
between
Complainant:- Opposite party:-
1. Sri.Abdul Nazar 1. The CMD, Yamaha Motors
Safa, Alissery Ward Co. Ltd, A-3 Industrial Area
Alappuzha-688001 Noida –Dadri Road, Surajpur
Gautham Budh Nagar
2. Abdul Kareem Sameer Uttar Pradesh-201306
Kochu Puthukattukulam
Vellakinar Ward 2. The Head of office
Alappuzha-688001 Yamaha India Regd. Office
(Adv. Vishwabhadran) 1st Floor, The Great Eastern
Centre-70 Nehru Place, Behind
IFCI Tower New Delhi-110019
3. The Officer in charge
Yamaha Motor India, Customer
Care, Yamaha Motor India Pvt.
Ltd., Gautham Budh Nagar Uttar Pradesh-201306
4. Yamaha India Ltd, Area Office
Suburban Complex, 1st Floor,
Mamangalam, Palarivattam
Ernakulam-682025
5. The Director in Charge, Shinrai
Automobiles, Authorized
Yamaha Dealer, 10/494,
Near Wytefort Hotel, Maradu
Kochi-682034
6. The Head, Shinrai Automobiles
Pvt. Ltd, Head Quarters-Suit
No’s 205,206, 2nd Floor,
Pioneer Tower, Marine Drive
Kochi-682031
7. Sri. Venu.K.Nair
Manager (Operation)
Shinrai Yamaha, NH-47
Maradu.P.O, Kochi (Adv. Azad Babu for Ops 1 to4)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly discussed are as follows:-
On 28.08.19 complainant purchased a Yamaha Saluto YC 125 CC bike for Rs.68,566/- from the 5th opposite party M/s Shinrai automobiles Pvt.Ltd., Kochi. An amount of Rs.6171/- as tax, Rs.5130 as insurance and Rs.6364/- being fitting / service charges were also collected from him. The vehicle was registered as KL 04 AP 5427.
2. Within a year of purchase rusting started in several portions of the vehicle, especially in the front fork assembly and silencer pipe. On 22.06.2020 when the vehicle was serviced at M/s Ayirath motors, Haripad it was informed. Though it was assured that they will rectify the defect after service and it was done. However after 2 weeks the rusting again appeared on the front fork assembly and when informed it was assured that it will be rectified at the time of next service on 25.08.2020. Though after service the rusting had disappeared after about two weeks again it appeared. When contacted, the company officials directed the complainant to contact the authorized service centre at Haripad and that they will replace the fork assembly. When he contacted M/s Ayirath motors the reply was that no spares are available. On 19.09.2020 complainant took the vehicle to M/s Evergreen Yamaha, Alappuzha and informed the problem. But it was replied that spares are not available. Hence on 17.10.2020 complainant took the vehicle to M/s Shinrai motors, Cochin from where also he got a reply that spares are not available.
3. On 02.07.21 a sound appeared from the axle of the vehicle and on 10.07.21 the axle was completely cut off and there was complaint for clutch also. Though complainant sent a message on 17.07.21 to the service centre Ernakulam there was no reply. When contacted, the service centre requested the complainant to transport the vehicle to Cochin and accordingly he transported the vehicle to the dealer at Cochin spending Rs.3,000/- and entrusted the same on 28.07.2021. Complainant personally explained the problems with respect to the motor cycle. On 05.08.21 complainant was informed that the works have been completed. However the front fork assembly was not replaced. This is a manufacturing defect and hence it will repeat again. On 11.08.21 complainant sent a notice requesting to provide another bike without any defect. Though the notice was received there was no positive response. On 14.09.21 it was informed that they had completed the works and the bike is ready for delivery. On 18.09.21 complainant received an email including an invoice dated 05.08.21 for Rs.968/-. Since the request of the complainant has not considered he has not taken delivery of the bike.
4. It is learned that company which had launched the model only in May 2015 has discontinued the model since November 2019 just only 4 years after the launch. It is learned that company was compelled to withdraw the bike due to wide spread complaints of manufacturing defects. The vehicle was not having the features which were offered at the time of purchase. It appears that complainant was cheated by the company by selling a defective vehicle which caused mental agony and disappointment. Hence the complaint is filed for giving a direction to the opposite parties to refund Rs.86,231/- being the amount remitted for purchasing the vehicle, Rs. 50,000/- as taxi fare, Rs.2,50,000/- as compensation and Rs.1 lakh as cost.
5. Opposite parties 1 to 4filed a version mainly contenting as follows:-
The complaint is false, frivolous, vague and vexatious. The contents of the complaint would reveal that complainant had suppressed material facts. As per the records available complainant had purchased Yamaha Saluto YC 125 CC motor cycle from 6th opposite party on 28.08.19. It was delivered after completing the process of pre delivery inspection. This opposite party is selling the vehicle to dealers and the relationship between company and dealers is on principal to principal basis. This opposite party had provided a warranty to the motor cycle for a period of 2 years or 30,000 Kms whichever is earlier. The warranty is extended only to the extent of certain parts that are found to have a manufacturing defect and not to the complete motorcycle. This opposite party is only liable to replace and repair the defective part and not to replace the motorcycle with a new one. The warranty coverage provided by all free services, paid services or any type of repair during the warranty period only from the authorized service centers.
6. During the year 2020, complainant approached opposite parties and reported the issue of rust in front shockers of the motorcycle alleging that it is a manufacturing defect. However rust is not a manufacturing defect. It can occur while parking in open area in heavy rainy season. He was requested to approach an authorized service centre. Accordingly on 02.08.2021 the vehicle was produced before the authorized service centre of the 1st opposite party. The service engineer of 6th opposite party duly examined the vehicle and after enquiry it was revealed that rust occurred since the motorcycle is exposed to extensive humidity and heavy rain. The service engineer performed service of motor cycle and replaced the clutch cable and accelerator cable. Rusting of the metal parts is a natural phenomenon. After satisfying with the service, complainant took delivery of the motorcycle on 02.08.2021. However after 2 weeks again it was informed that rusting again occurs. These opposite parties offered one year free service including 3 service coupons and 2 free washing coupons.
7. On 19.09.2020 complainant approached Evergreen Yamaha, Alappuzha and on 17.10.2020 approached Shinrai motors alleging issue of rusting and replacement of front fork assembly. The allegation of noise/ sound from the axle is only an afterthought.
8. As per the settled law if there is any deficiency in service by the dealer or the authorized centre manufacture is not liable. The vehicle is not having any manufacturing defect and so there is no deficiency of service from the part of these opposite parties. Hence there is no cause of action against these opposite parties and hence the complaint may be dismissed with exemplary cost. Opposite parties 5 to 7 remained exparte.
9. On the above pleadings following points were raised for consideration:-
- Whether there is any deficiency of service from the part of opposite parties as alleged?
- Whether the complainant is entitled to get an order to realise an amount of Rs.86,231/- from M/s Shinrai motors as alleged?
- Whether the complainant is entitled to realise an amount of Rs.3,00,000/- being the taxi fare and compensation as alleged?
- Reliefs and cost?
10. Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A13 from the side of the complainant. Opposite parties have not adduced any evidence either oral or documentary.
11. Point No.1 to 3
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A13.
12. On 28/8/2019 as per Ext.A1 bill PW1, the 1st complainant purchased Yamaha Saluto YC 125 CC bike from the 5th opposite party M/s Shimrai automobiles pvt. Ltd., Maradu by paying an amount of Rs. 68,566/-. It was registered at the RTO office Alappuzha as Reg. No. KL.04.A-P-5427. While PW1 was using the same within one year from the date of purchase the vehicle started showing signs of rusting on some parts especially in front fork and silencer pipe. The matter was informed at the authorised dealer at the time of service. Though after service the rusting disappeared, after about 2 weeks it was noticed again. On 10/7/2021 the axle of the vehicle broke and when informed 1st opposite party requested to produce the same before the 5th opposite party who is the authorized service centre. When PW1 again complained he was advised to produce the bike at the authorized service centre which is at Maradu. Accordingly PW1 produced the bike before the 6th opposite party in a goods auto by spending an amount of Rs.3000/-. Though PW1 contacted frequently the vehicle was not yet repaired and returned. PW1 sustained heavy loss due to the defects of the vehicle. Hence the complaint is filed for returning an amount of Rs.86,231/- being the price of the vehicle, claiming Rs.50,000/- being the taxi fare incurred by PW1 when the motor cycle was in the workshop and Rs.2,50,000/- as compensation on account of mental agony. He is also claiming an amount of Rs. 1 lakh as cost. Opposite parties 1 to 4 filed a joint version admitting the sale. According to them they are the manufacturers of the vehicle and prior to sale pre-delivery inspection is done on all vehicles and only after satisfying the efficiency the vehicle will be delivered to the authorized dealer. The relationship between manufacturer and the dealer is principle to principle basis and any deficiency in service of the dealer will not make them liable. It was also pointed out that on getting the complaint they contacted the authorized service centre and it was noticed that rusting occurred due to the climatic conditions and it was not a manufacturing defect. Hence according to them they are not liable to compensate the complainant and so the complaint is only to be dismissed. Opposite parties 5 to 7 remained exparte. PW1 filed an affidavit in support of their contentions and marked Ext.A1 to A13. Opposite parties 1 to 4 though filed a version did not participate in the trial either by cross examining PW1 or by adducing any evidence.
13. It is alleged that the vehicle purchased by PW1 is having manufacturing defect. However it is noticed that PW1 has not taken out any commission to inspect the vehicle through an expert such as Motor Vehicle Inspector to prove that the vehicle is having any manufacturing defect. From Ext.A3 photograph produced by PW1 it is seen that some part of the vehicle has become rusty. In the version it is alleged that rust occurred not because of any manufacturing defect and if the motor cycle is exposed to highly humid environment and left in open area in extreme rain parts may become rusty. In the version it is contented that on getting the complaint prompt action was taken by the authorized dealer of the opposite parties 1 to 4 and so there is no deficiency of service. Along with the version opposite party has produced an e-mail dtd. 15/9/2021 sent to the complainant stating that they are ready to replace the new shocks. Besides that they had also offered one year free service through issuing AMC(Annual Maintenance Contract) at the nearest service station. Through AMC 3 free service coupons and 2 free washing coupons were also provided. They had also offered 5% discount for the parts and lube used and 5% discount on the extra labour applied. Hence it can be seen that on getting the complaint prompt action was taken by the manufacturer. So it is seen that when complaint was raised regarding the motor cycle manufacturer had taken necessary steps to cure the defect. It is true that now the vehicle is lying at the work shop of the authorized dealer ( 5th OP). However 5th opposite party remained exparte and so the present condition of the motor cycle which is lying with the 5th opposite party is not known. The learned counsel appearing for the complainant pointed out that the company discontinued the model due to the defects of the vehicle. But except the contention no evidence is available to show that the model was discontinued due to the defects. If the product is a slow moving one manufacturer discontinues the same since it will not be profitable for them. Here in this case the evidence on records shows that the vehicle had some rust in certain parts especially in the fork and silencer. Opposite parties 1 to 4 had agreed to replace the fork and had also offered discount in the service and spare parts which is revealed from e-mail dtd. 15/9/2021 produced along with the version. In said circumstances it cannot be held that there is deficiency of service. Pw1 has produced Ext.A7 which is a receipt dtd. 30/9/2021 by which an amount of Rs. 50,000/- was received from him being the taxi fare from Alappuzha to Harippad. However the person who issued the receipt one Sri. Ramesh Kumar is not seen examined as a witness. Moreover it is seen that an amount of Rs.50,000/- is allegedly paid no revenue stamp is affixed. Ext.A7 is a photocopy. In said circumstances Ext.A7 cannot relied upon.
14. The fact that PW1 purchased the vehicle on 28/8/2019 as per Ext.A1 invoice is admitted. From the evidence of PW1 coupled with Ext.A3 photograph it is seen that the fork of the vehicle has become rusty. As admitted by PW1 in the complaint when it was produced before the authorized service centre the rust was removed. However it again appeared. As discussed earlier when the complaint was noticed by the manufacturer they had offered to change the fork and had also offered discount in spare parts and labour. From the evidence of PW1 it is seen that now the vehicle is lying with the 5th opposite party who is an authorized service centre. The present condition of the bike is not known since 5th opposite party remained exparte. Though Pw1 alleged that the vehicle is having some manufacturing defect no expert evidence is available except his oral interested testimony. As per the settled law if there is no manufacturing defect no order can be passed to replace the vehicle or to return the price of the same. Considering the entire evidence in this case we are of the opinion that opposite parties can be directed to rectify the defects pointed out by the complainant and return the same in road worthy condition. It is true that since the vehicle is not available PW1 may not be able to use the same for going to office. But without sufficient evidence we are unable to award huge amount such as Rs.50,000/- shown in Ext.A7 being the conveyance expenses. As per Ext.A1 the price of the vehicle is only Rs. 68,566/-. But the complainants are claiming an amount of Rs. 86,231/- being the price of the vehicle, Rs. 50,000/- as taxi fare, Rs. 2,50,000/- as compensation and Rs. 1lakh as cost. It is not known why in the complaint such huge amounts are claimed without any basis. Considering the entire evidence on record we are of the opinion that opposite parties can be directed to cure the defect and return the bike on road worthy condition. Besides that complainant is not entitled to claim any compensation since he could not prove any deficiency of service from the part of opposite parties. Only because opposite party remained exparte a complaint cannot be allowed without considering the facts and circumstances. These points are found accordingly.
15. Point No:4:-
In the result complaint is allowed in part.
A) Opposite parties are directed to return the motor cycle bearing Reg. No. KL 04 – AP-5427 in road worthy condition free of cost to the complainant.
B) Complainant is allowed to realize an amount of Rs.2000/- as cost.
The order shall be complied within one month from the date of receipt of this order
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 10th day of May, 2022.
Sd/-Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Abdul Nazar .A (Complainant)
Ext.A1 - Vehicle Sales Invoice
Ext.A2 - Copy of Certificate of Registration
Ext.A3 - Photograph of the vehicle
Ext.A4 - Letter
Ext.A5 - Letter from complainant to Opposite party
Ext.A6 - Copy of Receipt dtd.28-7-2021
Ext.A7 - Copy of Receipt dtd.30/9/2021
Ext.A8 - Copy of Acknowledgment
Ext.A9 - Job card invoice
Ext.A10 - Registered Letter dtd 11-8-21
Ext.A11 - Acknowledgment Card Copies
Ext.A12 - Copy of Service Record
Ext.A13 - Photos &Information of the vehicle
Evidence of the opposite parties:-Nil
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-