Telangana

Mahbubnagar

CC/08/60

A.Laxmanna S/o Shantanna - Complainant(s)

Versus

The Manager, Bajaj Auto Ltd., - Opp.Party(s)

Sri B.Chandra Shekar Rao

11 Dec 2008

ORDER

BEFORE THE DISTRICT CONSUMER FORUM AT MAHABUBNAGAR

Thursday, the 11^th day of December, 2008

 

                                                              Present:- Sri M.Rama Rao, B.A.,LL.B., President

     Sri P.Venkateshwara Rao, B.com., LL.B., Member

       Smt.B.Vijaya Kumari, M.Sc. B.Ed., C.C.P., Member

 

                                                                            C.C.NO. 60  Of   2008

Between:-

A. Laxmanna S/o Shanthanna, R/o H.No.42-52, Sainagar Colony, Wanaparthy, Mahabubnagar District.  

                                                                                              … Complainant

And

1. The Manager, Bajaj Auto Limited, Service Department,

    Akurdi, Pune – 411035.

2. The Manager, Sree Manjunatha Motors, Wanaparthy.                                                                                                                      … Opposite Parties

 

 This C.C. coming on before us for final hearing on 10-12-2008,  in the presence of Sri B. Chandra Sekhar Rao, Advocate, Wanaparthy for the complainant and Sri V. Vignaneshwar Sharma, Advocate, Mahabubnagar for the opposite parties  and having stoodover for consideration till this day, this Forum delivered the following:  

 

O R D E R

(Sri P.Venkateshwara Rao, Member)

 

1.        This is a complaint filed on behalf of the complainant under section 12 of Consumer Protection Act, 1986 seeking a direction to the opposite parties to replace the vehicle i.e., Pulsar DTS-I Motor Cycle and award the damages of Rs.2,00,000/- to the complainant. 

 

2.     The complaint averments are as follows:-  The opposite party No.1 is the manufacturer and service department of Pulsar DTS-I Motor Cycle and the opposite party No.2 is the authorized dealer of OP.1 to sell the Bajaj Motor Cycles and equipments in Wanaparthy area.   As such the complainant purchased the Bajaj Pulsar DTS-I Motor Cycle on     2.11.2007 under Frame No.MD2-DHO-H22PC324107 and Engine No.DHG-BPB-62177.   Soon after the purchase, the vehicle was not running properly and it was making improper sound in the engine.   The complainant taken the vehicle to OP.2 for rectifying the defect for several times, where OP.2 checked up and tried to convince the complainant stating that the defect was rectified, but in fact, the defect was not rectified.   So, the complainant lastly on 1.2.2008 had been to OP.2 with the vehicle for rectification of the defect but OP.2 has not responded properly to the complainant.   The vehicle at present is in the custody of OP.2.   As such the complainant made to issue legal notice as the problem was still the same.  Since the defect was not rectified the complainant could not register the vehicle under the Transport Authority.   The complainant’s livelihood is on the said vehicle as he is an agent in medical business.  He lost his income of Rs.20,000/- per month due to non working of the vehicle and he suffered mentally and physically due to deficiency in service on the part of OPs.    Since the vehicle was not working properly and its defect was not rectified, the OPs are liable to replace the vehicle and the complainant is entitled for the damages of Rs.2,00,000/- for the loss caused by OPs as he suffered mentally and physically due to the irresponsible acts of OPs and for their deficiency in service.  Hence the complaint.   

 

3.     The opposite parties filed counter with the following averments:-  It is true that the opposite party No.1 is the manufacturer and service department of Pulsar DTS-I Motor Cycle and the opposite party No.2 is the authorized dealer of OP.1 to sell the Bajaj Motor Cycles and equipments in Wanaparthy area.   As such the complainant purchased the Bajaj Pulsar DTS-I Motor Cycle on 2.11.2007 under Frame No.MD2-DHO-H22PC324107and Engine No.DHG-BPB-62177.   It is false to aver that soon after the purchase, the vehicle was not running properly and it was making improper sound in the engine.    Further it is also false to aver that OP.2 tried to convince the complainant stating that the defect was rectified.  There is no necessity to convince the complainant.    It is also false to aver that on 1.2.2008, the complainant had been to OP.2 with his vehicle for the rectification of the defect but OP.2 had not responded properly to the complainant.   It is false to aver that the complainant could not register the vehicle due to the above problems.    The opposite party is not aware about the earning and loss sustained by the complainant and it is false that he suffered with mental agony.    It is false to aver that since the vehicle was not working properly and its defect was not rectified, the OPs are liable to replace the vehicle and the complainant is entitled for the damages of Rs.2,00,000/- for the loss caused by OPs and that he suffered mentally and physically due to the irresponsible acts of OPs and there is deficiency of service by OPs.    Admittedly the Pulsar two wheeler motor cycle was purchased by the complainant on 2.11.2007 and after extensively and continuously using the same for more than 7 months, the present complaint is filed in June, 2008.  In fact the OPs have given two years free warranty service to the vehicle to take care of operational problems of vehicle after sale and it will be expiring in this case on 2.11.2009.  Therefore there is no need for the complainant to rush and file this frivolous complaint and it is a premature complaint.   That the main grievance of the complainant is noise from the engine.   In fact when it was brought for service, the same was attended and the vehicle delivered and problems may arise out of wrong use and handling of the vehicle that itself would not prove that the vehicle is having manufacturing defect.   There is no deficiency of service on the part of OPs and the complainant did not establish any defect except noise from the engine, which was attended at the time of servicing itself.   Moreover while riding the vehicle, the engine is going to make some minimum noise and therefore to say that there should be total silence while running the vehicle is impossible even to imagine for that is not correct.   Hence the allegation is devoid of merits on the technical sense nor should it be taken seriously because the complainant’s main intention is to harass the OPs and to extract from them whatever maximum possible.    That during the warranty period as and when the vehicle was received for any service, the same was affected to the full satisfaction of the complainant which the complainant has deliberately concealed in this complaint.   Even now if the vehicle has any problem, the OPs can attend it.  But after using the vehicle in a rough and careless manner and creating problems by its own act now this complaint is filed for certain reliefs to gain wrongfully.   Furthermore, if any manufacturing defect is there in the vehicle, the same has to be proved with an expert report or opinion.    But in this case, the complainant has not submitted any expert report or opinion in support of his contention.    Further it is submitted that the OPs are reputed manufacturer and dealer respectively and their endeavour always is to see a satisfied customer with the vehicle which he has purchased vis-à-vis the services provided to it from time to time.     The OPs therefore submit that this is a frivolous case filed with ulterior motive and hence the complaint is liable to be dismissed with costs.   Hence the OPs are entitled for exemplary damages of Rs.10,000/- each for filing this false case. 

 

4.  The complainant filed his affidavit and got marked Exs.A-1 to A-6.

 

5.  The opposite parties filed affidavit and did not file any documents. 
6.  The opposite parties filed written arguments.

 

7.  The point which falls for consideration is whether the complainant is  

entitled to the reliefs as prayed for?

 

8.      The facts which are not in dispute are that the opposite party No.1 is the manufacturer and service department of Pulsar DTS -I Motor cycle.  OP.No.2 is the authorized dealer of OP.No.1 to sell the above said cycle motors.  The complainant purchased the above said cycle motor on  02-11-2007 from OP.No.2.

 

9.      The brief case of the complainant is that the motor cycle which was purchased by him from OP.No.2 is not running properly and it was making improper sound in the engine.  OP.No.2 severally checked and tried to rectify the defect, but it was not rectified and OP.No.2 told that it is a purely manufacturing defect and it cannot be rectified.  Hence the opposite parties are liable to replace the motor cycle with a new one.  Due to chronic problems the complainant sustained monetary loss of Rs.2,00,000/-.    Therefore he is also entitled for the same.

 

     On the other hand the contention of the opposite parties is that the complainant is using the vehicle without any trouble.  The noise from the engine was attended when the motor cycle was brought for service.  It is a common problem and it will arise out of wrong use and handling of the vehicle.  The opposite parties have given 2 years warranty period to take care of all problems in the motor cycle.  The warranty period will expire on 02-11-2009.  The complainant not made any visit or complaint to the opposite parties for the alleged problem.  Therefore filing the complaint before the warrantee period is a premature and hence liable to be dismissed. 

 

10. The very contention of the opposite parties is that there is no defect in the motor cycle supplied to the complainant.  The complainant alleges that there is noise from the engine.  The complainant did not file any material before us to substantiate his case that there is a noise or other problems in the motor cycle.  There is no dispute with regard to Exs.A-1 to A-3 i.e., purchase bills, invoice and owner’s manual respectively.  It is evident from Ex.A-4 that the complainant got issued legal notice to the opposite parties on 27-3-2008 and the same was served on OP.No.1 vide Ex.A-5 and it was returned as unclaimed by OP.No.2 vide Ex.A-6.  The complainant relied upon Ex.A-3 to establish that the opposite parties severally attended the defects in the motor cycle.  Ex.A-3 is the owner’s manual.  It reveals that the opposite parties have given warrantee in respect of the subject motor cycle.  It is mentioned in it at page No.25 that “Every possible care and precaution has been taken to ensure quality in respect of the material and workmanship in the vehicles manufactured by us.  Bajaj Auto Limited will repair or replace at their Authorized Workshops, free of charge, part or parts thereof as may be found, on examination, to have manufacturing defect within a period of 2 years or 30,000 Kms., whichever occurs earlier from the date of sale”.  It is further noted that no claim for exchange or repair can be considered unless the customer produces the owner’s manual in original to enable that dealer to verify the details.  To avail the benefit of warranty availing of initial four free services and nine paid services are mandatory.  We observed the unused coupon under Ex.A-3 pertaining to 3^rd and 4^th free service.  It is clear that the complainant not chosen even to get 3^rd and 4^th free services to his motor cycle from the opposite parties.  Without discharging his part of duty he cannot blame the opposite parties for deficiency of services.  There is no explanation from the complainant that why he has not produced the motor cycle for the required free services even.  The opposite parties admitted that still there is a warranty period so that the complainant can approach and get repair of his motor cycle.  The complainant not filed any material before us to show that due to manufacturing defect only there is a noise in the engine.  Therefore we hold that the complainant is failed to establish with cogent evidence that there is a manufacturing defect and it cannot be rectified.  As such there is no alternate remedy except to direct the opposite parties to replace with new motor cycle.  In light of the warranty period we are of the considered opinion that firstly the complainant has to discharge his part of duty by producing the motor cycle before OP.No.2 as per the terms and conditions laid under Ex.A-3 and make written complaint about the problem in his motor cycle to OP.No.2, so that he can discharge his part of duty by attending all the problems and rectifying the defects to the full satisfaction of the complainant to meet the ends of the justice.  The complainant failed to establish that he has undergone sufferance for the acts of the opposite parties, so that he is entitled for Rs.2,00,000/- towards damages.  Therefore we are of the opinion that the complainant is not entitled for any lump sum under damages as he failed to establish his case of deficiency in service on the part of the opposite parties.  We are fully agreeing with the contention of the opposite parties that the complainant has filed the complaint prematurely without discharging his part of duty.  Therefore the complaint is a premature one and devoid of merits and liable to be dismissed.  We are not inclined to award any amount towards costs.

 

11. In the result, the complaint is dismissed with a direction to both the parties to discharge their part of duties as observed above and to bear their own costs.

 

        Typed to dictation, corrected and pronounced by us in the open Forum on this the 11th day of December, 2008.           

 

        

 MEMBER                                MEMBER                              PRESIDENT 

 

      Appendix of evidence

       Witness examined

 

For complainant: Nil                                                 For opposite parties:  Nil

Exhibits marked for Complainant:-     

 

Ex.A-1:        Sales Certificate, dt.26.9.2007.

Ex.A-2:        Tax Invoice, dt.26.9.2007.

Ex.A-3:        Owner Manual Book.

Ex.A-4:        Copy of Legal Notice along with Postal Receipts, dt.27.3.2008.

Ex.A-5:        Served Acknowledgement Card.

Ex.A-6:        Unserved Postal Cover with Acknowledgement.

 

Exhibits marked for OPs:-   

 

     - Nil-

 

By the Forum:

     - Nil-

                                                                                                                                                                                                                            PRESIDENT

Copy to:-

1. Sri B. Chandra Sekhar Rao, Advocate, Wanaparthy for the complainant.
2. Sri V. Vignaneshwar Sharma, Advocate, Mahabubnagar for OPs.