Karnataka

Belgaum

CC/41/2014

Suryakant B Bhavi. - Complainant(s)

Versus

The Manager. Jagajampi Auto Pvt Ltd. - Opp.Party(s)

R.B. Rawoot.

18 Apr 2016

ORDER

(Order dictated by Shri. B.V.Gudli, President)

ORDER

          The complainant has filed the complaint u/s. 12 of the C.P. Act, against the O.Ps. alleging deficiency in service for non reimbursement of cost of the defective vehicle.

          2) The O.P. No.1 filed objection to the main petition and the O.P.No.2 adopted the objection of the O.P.No.1.

3) The complainant and O.Ps. have filed their affidavits and certain documents are produced. 

          4) We have heard the learned counsel for the complainant and O.Ps. and have perused the records.

5) Now the point for our consideration is that, whether the complainant has proved any deficiency in service on the part of the O.Ps. and that the complainant is entitled to the reliefs sought?

6) Finding on the point is in Negative, for the following reasons.

REASONS

          7) The complainant filed this complaint alleging deficiency of service on the part of the O.Ps. alleging that, the complainant is a Legal Practitioner at Belgaum and on 7/7/2009 purchased Avenger DTSi 200 bike from the showroom of opponent No.1 by paying Rs.64,606/- and same is registered at RTO Belgaum, bearing vehicle No.KA-22 EC-6696 and the vehicle is of Auto start manufactured by O.P.No.2. The complainant further alleges that he used the vehicle daily and runs the same for 15 to 20 kms. On 22/7/2009 after purchase of vehicle, when the complainant was 10kms away from the house the vehicle stopped and did not restart immediately the complainant called opponent No.1 and the mechanic of opponent No.1 took the vehicle to the showroom and repaired the same. The complainant further alleges that again on 18/8/2009 when along with the family of the complainant went to watch the movie at the time of returning to the home late night the vehicle started giving problem and the family of the complainant was to go with the auto to Home and on next day the complainant  forced to call opponent No.1 to refund the money of the vehicle by taking it back as the vehicle is giving problem. The complainant further alleges that due to the said problem in the vehicle complainant was made to suffer mentally and financially and on several occasions that is on 7/9/2009, 30/9/2009, 21/10/2009, 19/11/2009, 5/12/2009 and on 22/12/2009 the vehicle gave same problem of starting and it was informed to opponent No.1 and opponent No.1 sent the mechanic and same was repaired after 20 days by keeping the vehicle in the showroom of opponent No.1. The complainant further alleges that in the month of January 2010 and in the month of July 2010 and in the month of August 2013 the vehicle continued the same problem for every two months or three months and in the month of August 2013 the complainant was called upon to changed the battery by opponent No.1., as the battery was within warranty it was came to changed by the dealer etc. Hence the complainant faced the problem in the vehicle, sent a legal notice to opponent No.1 and 2 and the opponents replied to the legal notice by giving evasive reply and being aggrieved by the opponents complainant filed the complaint claiming compensation and reimbursed the amount of the vehicle etc. ,

8) The O.Ps. filed objection stating that that the complaint is not maintainable and same is time barred and filed beyond the limitation period as per the C.P. Act and the complaint is false frivolous and vexatious and deserved to be dismissed. The opponent No.1 further contends and states that the para No.1 of the complaint are true and correct as to opponent No.1 is authorized dealer of Bajaj Auto and opponent No.2 is manufacture of two wheelers and complainant purchased the motor bike as alleged in the complaint from the opponent No.1 on 7/7/2009 etc., The opponent No.1 further contends and denies that the complainant hardly used the vehicle and that on 22/7/2009 the vehicle did not restart when there was problem and the opponent No.1 sent the mechanic and vehicle was taken to the showroom and on 18/8/2009 when the complainant was returning from watching movie with the family the vehicle did not start and on next day mechanic of opponent No.1 repaired the vehicle with the assurance that the vehicle will not give problem and on 7/9/2009, 30/9/2009, 21/10/2009, 19/11/2009, 5/12/2009 and on 22/12/2009, the vehicle repeatedly suffered with problem and the mechanic of opponent No.1 could not trace the defect in the vehicle and kept for 20 days etc. The opponent No.1 further denied that on 8/1/2010 One Mr. Rahul Hawaldar who is a Engineer of opponent No.2 was sent and the complainant was fault to the showroom of the opponent and after solving the defect in the vehicle and the vehicle was handed over to the complainant. The opponent No.1 contends that it is true and correct that complainant was asked to change the battery as the complainant was using the battery since four years and the life of the battery would get expired and due to which the complainant was having starting problem and opponent No.1 asked the complainant to replace the battery. The opponent No.1 further denies that even after replacement of the battery with the old one and in the month of September 2013 the same problem was continued and the vehicle was repaired and handed over to the complainant etc., The opponent No.1 admits the issuance of the legal notice but denies the replies was given falsely and evasively and the opponent contends that due to misshandling of the vehicle by the complainant the complainant had faced the problems and there is no manufacturing defect in the vehicle and whenever the vehicle was brought to the opponent No.1 showroom it was attended and repaired, and with ill-motive the complainant is seeking reimbursement of the amount of the vehicle and prays to dismiss the complaint.

9) The complainant and the opponents have filed their affidavit and written argument. The complainant has produced documents and prayed to exhibit the same and documents are exhibited and show in the annexure. On the perusal of the facts and the documents there is no dispute in regards to the purchase of the vehicle from the opponent No.1. But as alleged by the complainant there was starting problem in the vehicle and it was continued many a times from the date of purchase and same were attended by the opponent No.1 due to which the complainant suffered mentally and financially. After going through the allegations no doubt there were several problems in the vehicle and same were attended, but after July 2010 till August 2013, the complainant neither in the complaint nor in the affidavit as alleged that the vehicle was having problem, this gap of two and half years probably, as we notice from the documents produced by the complainant there was no problem in the vehicle. The documents so produced before the forum are the letter addressed on 11/1/2010, the report on attendance in regards to the battery, the letter dated 19/12/2013 and 23/12/2013, wherein we can notice that the letter addressed on 23/12/2013 was the reply to the legal notice given by the complainant seeking reimbursement of the amount of the vehicle with compensation of Rs.10 lakhs, wherein we can read at unnumbered second para “In this regard we have inspected attended – tested this vehicle thoroughly and vehicle is running normally and it is roadworthy” and at para No.3 and 4 of the reply letter which reads as “by our letter dated 20/12/2013 we have informed you to take the delivery of the vehicle (copy attached). “However we request you to advise your client to take vehicle at earliest”. By this reply one can say that the vehicle was road worthy and same was attended and also that the opponent No.1 requested the complainant to take the vehicle.

10) No doubt that there was defect in start of the vehicle and same was attended by the opponent No.1, but it is the case of the opponent that there is no inherent manufacturing defect in the vehicle and upon that the vehicle is attended whenever there was starting problem and in the month of August 2013 the complainant was advise to change the battery and accordingly the same was changed by the complainant. The complainant as per the allegations has not proved that there is inherent manufacturing defect by any expert opinion. After going through the letter dated 11/1/2010 the vehicle of the complainant was attended by officer Rahul Hawaldar at Belgaum and the vehicle was tested and confirmed OK and demonstrated the same to the complainant and requested to take the delivery of vehicle. Since from this date till the year 2013 the complainant did not complaint in regards to the problems in the vehicle and there are no documents coming forth before the forum during this period the complainant was faced problem in the vehicle. The complainant claimed the reimbursement of the amount paid while purchasing the vehicle from opponent No.1, but the complainant cannot claim the reimbursement without proving any manufacturing defect in the vehicle and upon that as alleged in the complaint, the opponent No.1 has attended and repaired the vehicle whenever the problem arised in the vehicle. The opponent No.1 has produced the citation reported in I (2010) CPJ 235 (NC) between Classic Auto mobile V/s. Lila Nand Mishra and anothers reads as;

          “…. No expert evidence produced to prove manufacturing defect in the vehicle”

The relevant para of the decision reads as one has to produced expert evidence to prove manufacturing defect in the vehicle, in the present case on hand the complainant has failed to produce expert evidence and failed to prove the manufacturing defect. Hence on this count the complainant as not entitled to claim the reimbursement of the amount paid to purchase the vehicle and as prayed.

11) The another defence of the opponent No.1 is that the complaint filed by the complainant is time barred. Looking to the facts alleged by the complainant the opponent No.1 attended the vehicle of the complainant which was brought for the repairs which was month of January 2010, which can be seen through the letter produced by the complainant himself and after a gap of 2 and half years the complainant alleged the defect in starting of vehicle and was in the year 2013 August. But during this the complainant neither complaint of any defect and used the vehicle. The vehicle which was brought in the year 2013, there was a change of battery and the reply shows that the vehicle was tested ok and the complainant took the vehicle for his use. Therefore looking to the allegation and objection and documents we are of the opinion that the complainant fail to prove manufacturing defect in the vehicle and also failed to prove deficiency in service on the part of the opponents. And so also the complaint filed in year 2014 is beyond the limitation prescribed in the act and the complaint is time barred. No doubt that the complainant has suffered some defects in the vehicle same were attended by the opponents. Hence the complainant is not entitle for reimbursement of the amount of the vehicle nor the compensation as claim in the complaint. Accordingly, following order:

ORDER

          The complaint is dismissed. No order as to costs.

           (Order dictated, corrected and then pronounced in the open Forum on: 18^th April 2016)

          Member                    Member                    President.

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