BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT THIRU. K. DHAYALAMURTHI,B.SC. MEMBER – II CC. 62 / 2002 MONDAY THE 18TH DAY OF APRIL 2011 K. Vasudevan, S/o. Kubendiran, No.6, Arumuga Mudali Street, Salavanpet, Vellore – 632 001. … Complainant. -Vs – 1. The Managing Director, L.M.L Ltd., C 10, Panki Industrial Estate, Kanpur – 208 022. 2. The Manager, L.M.L World, No.10, Arani Road, Vellore – 632 001. … Opposite parties. . . . . . This petition coming on for final hearing before us on 12.4.2011, in the presence of C.G. Sridhar, Advocate for the complainant and Thiru. V.R. Thiruvengadam, Advocate for the opposite party-1 and Thiru. S.Srinivasan, Advocate for the opposite party-2 and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant purchased a New Red Colour L.M.L Energy two wheeler from the 2nd opposite party on 30.11.2000 vide Engine No.E 52 TG 007700, Reg. No.TN-23-F-2526 for a sum of RS.47,277/- From the inception of purchase of aforesaid vehicle, gives versatile troubles and poor consumption mentioned herewith a) Heavy Engine noise when driven at more that 50 k.m. speed b) Poor painting c) Shock absorber frequent failure. d) Gear Box problem along with Engine oil spray. e) Wrong position of Dua Seat Assembly and Fuel Tank due to which man’s tactical being hurt. Which is endangerous to life f) Cluth Problem. g) While running often engine stops. h) Fluctuation of fuel consumption from 38 km to 45 km per liter. In the company’s leaflet of the 1st opposite party it is clearly mentioned that the fuel consumption will be 65 k.m. / PL and it is also published in the Newspaper. Based on this advertisement and in good faith only the complainant purchased the aforesaid vehicle. Hence, the complainant approached the 2nd opposite party to rectify the defects. Even though the 2nd opposite party serviced the aforesaid vehicle on several times the aforesaid defects could not be rectified. Hence, the 2nd opposite party informed the 1st opposite party on several occasions regarding the problem of the complainant’s vehicle and other customer’s vehicle to rectify the same with no avail. Thereafter the complainant approached the Senor Engineers of the 1st opposite party when they visited the show room of 2nd opposite party and informed the aforesaid defects and also requested to rectify the same which arose with in few days form the date of purchase of the aforesaid vehicle. Even thought the Service Engineers of the 1st opposite party assured to rectify the defects, when they conducted the rectification camp they failed to do the same. The vehicle is not giving proper fuel consumption and also present with above mentioned defects and the vehicle is not in accordance with the provisions of the advertisement. In the month of April 2001, September 2001 and January 2002 the 1st opposite party had conducted the rectification service camp at the 2nd opposite party’s showroom which were carried out by their service engineers Mr. Udai Shankar and Mr. Sirnivasan. Since the defects could not be rectifiable from the inception of purchase of the aforesaid vehicle, the opposite parties are bound to replace the said vehicle or refund the cost of the vehicle. The 1st opposite party is the manufacturer of the aforesaid vehicle and the 2nd opposite party is the authorized dealer in Vellore area, both are liable to pay the claim amount. Therefore the complainant prays this Forum to direct the opposite parties to replace the aforesaid defective vehicle otherwise to refund the sum of Rs.47,277/- which they had taken towards the value of the vehicle with interest at 18% p.a. from the date of purchase of the vehicle till the date of realization along with registration charges and to pay a sum of Rs.25,000/- towards damages and to pay a sum of Rs.2500/- towards the cost of this complaint. 2. The averments in the counter filed by the 1st opposite party is as follows: This complaint is one of the eight exactly similar complaints filed by eight different complainants residing at different places, in the city of Vellore and surrounding areas separated from each other by distances ranging from 5 to 40 kms. However it is strange that they are having same grievances, as put forth in the respective complaints, which reveal that all these complaints are motivated for extraneous reasons at the behest of vested interests. Such complaints cannot be allowed by this Forum and should be dismissed in limini. The opposite parties denies such of them as have not been expressly admitted herein. The averments and allegations made in para-1 of the complaint are not true. The allegations regarding to items (a) to (h) are all false. Trained the mechanics of the opposite party No.2 at Kanpur as well ass at Bangalore to attend to the servicing of Motor cycles namely Energy and Adreno. The vehicles when sold by the dealer are given six free services and if only the customers availed of those six free services there will not be any problem at all. It is not true to state that the vehicles developed heavy engine noise when driven at more than 50 kms speed. The complainant is raising the point for the 1st time even though he had an opportunity to do so when he had six free services. The poor paining alleged in item (b) is not true. The opposite parties have the best paining shop in India for the Motorcycles. They fit the best shock absorber namely Escrots and Gabriel to their Motorcycles, so there is frequent failure of shock obserber is false. There is gear box problem. No specific problem is mentioned. All motorbikes of international standard have similar designs of the fuel tank and dual seats and the allegation of the man’s testicel being hurt in only an imagination. No body knows what the clutch problem is and it is only a misleading allegation. There is no chances of the engine stopping while running, if it happens, it only shows that the driver does not operate the clutch and gears properly. Fluctuation of Fuel consumption from 38 kms. To 45 kms per liter is again not true. If there is any fluctuation of fuel consumption the same could have been rectified by tuning the carburetor during the free services 3. The averments and allegations made in para-2 of the complaint are not true as made out. The consumption of fuel at 60 + 5 kms per litre is true subject. However, to norms and guidelines given in the rider’s manual provided that the complainant had maintained the vehicle in accordance with preventive maintenance schedule given in the manual. The consumption also depends on (a) quality and quantity of fuel (b) road and traffic condition (c ) steady speed between 40 to 45 kmph (d) driving habits of the customer. Therefore it is not true to state that the vehicle gives only 38 to 45 kms per litre. The averments made in para-3 and 4 of the complaint are false. It is not true to state that the defects persisted even after several services. Apart from the above, the service engineers visit the dealers workshop every month to attend to specific complaints, if any of any particulars customer. However this complainant never brought any such specific complaint to the knowledge of the opposite party. As already stated in reply to para-2 mileage is dependent on certain factors which remain in the hands and domain of the complainant and the opposite party can demonstrate this aspect in presence of any independent technical personnel. The allegation that the vehicle is not giving proper fuel consumption is not only vague but misleading, incorrect and is denied and complainant is put to strict proof of the same. Therefore it is false to state that the service engineer failed to rectify the defects. The averments made in para – 5 of the complaint are not true. It is not true to state that the service engineers admit the defects and evading to replace the defective vehicles. The complainant never made any claim for the replacement of the vehicle or return of the money and the averments made in para under reply are wrong and only an after through and are denied. The averments made in para-6 of the complaint are not true. It is not true to state that there existed defects in the 100 c.c. bikes energy and adreno and they were withdrawn from the market within a span of one year because of the defect could not be rectified. As a mater of fact, the opposite party has upgraded and introduced new products including bikes of 110 cc in conformity with the competition in the market. Still 100 cc bikes are produced and marketed across the country, it is again false to state that due to severe scarcity of essential parts, the vehicle are grounded. The 2nd oposite party who is in league with the complainants, are deliberately creating artificial scarcity by not stocking the spares in sufficient quantity. The averments and allegations made in para-7 to 9 are not true. That the contents of para-7 to 9 of the complaint are wrong and incorrect as made out and are denied. The statement that in the company leaflet fuel consumption is given as 65 mkpl is not correct. In the leaflet, it is specifically written that the said mileage would vary between 60 + 5 depending upon actual riding condition and it is also apparent that the complainant appears to have lot of confusion and wrong noting about the method of calculating average, as it is universally acknowledged that, in so far as petrol is concerned which is a highly volatile substance which evaporates at high rate, simply putting the petrol in the fuel tank and after few days, making a guess work as to the total mileage covered is not the way to do it, and therefore the kind of allegation regarding mileage are totally wrong, illogical and meaningless and are denied emphatically. There is no legal or factual basis for claim for damages of Rs.25,000/- for alleged physical and mental strain. The physical and mental strain is only imaginary and even now the complainant is running the vehicle. The complainant has not made out a case for replacement of the vehicle or refund of Rs.47,277/- with interest at 18% p.a. The complainant is not entitled to a sum of Rs.25,000/- towards alleged damages for physical and mental strain and his not entitled to a cost of Rs.2500/- towards 4. His remedy if any is to go to the Civil Court since elaborate enquiry and evidence both oral and documentary have to be gone into to arrive at the truth. The complainant and several others have been setup by the opposite party No.2 between whom and the answering opposite party, there is enmity for the last about six months. The strained relation started when the 2nd opposite party wanted the supply of the vehicles and spare parts on credit basis. The Opposite party No.2 deliberately antagonized the customers and scared away the service engineers of the answering opposite party, by adopting coercive and criminal force and has instigated them to file this kind of false complaints in concert with others. The complainant is not entitled to replacement or refund of price as it is not permissible under the law, the Sale of goods Act 1930 which forms part of contract of sale of the vehicle. Hence this complaint is to be dismissed. 5. The averments in the counter filed by the 2nd opposite party are as follows; This complaint is not at all maintainable either in law or on facts of the case. The 2nd opposite party is a dealer of the vehicle under the 1st opposite party who is the manufacturer of the vehicle. For above 50 years, the 2nd opposite party is dealing the Motor vehicle business with good will and ambitions in Vellore area. It is true that the complainant purchased the complaint mentioned vehicle from the 2nd opposite party herein. The defects and troubles mentioned in the complaint are only the manufactur9ing defects and the 1st opposite party alone is solely liable and responsible for the same second opposite party, already informed the defects of the vehicle to the 1st opposite party. But the first opposite party neither heard the complaint nor gave any response for the same. It is not their duty to see whether the 2nd opposite party’s mechanics are well trained or not. Even the 1st opposite party’s service engineer has spoiled a LML bike belongs to other customers as they were trained to that extent. The 1st opposite party’s service engineer Mr..Udai Shankar had accepted to replace the shock absorber during their last service camp at Vellore. The 1st opposite party should have advertised or announced at the time of sale, that the 1st opposite party’s vehicle would be sold only after having got special operational training to drive these wonder bikes. The 1st opposite party could not accuse this 2nd opposite party, when the fault is one the part of the 1st opposite party. The 1st opposite party conducted several service camps at the 2nd opposite party’s place not as routine but only to identify and solve the technical snags, but all are vain. 1st opposite party discontinued the production of 100 cc Adreno and Energy bikes due to technical snags. It is vague to pass on the claim on the opposite party that they have not sufficient stock of the spare parts. Many times, the 2nd opposite party had sent the messages to the 1st opposite party to deliver the spare parts but the 1st opposite party’s Engineers had brought the spare parts personally after the lapse of one month. It is not true that the 1st opposite party is not supplying the vehicle and it spare parts under the credit basis and for the same, the enmity arose between the 1st and 2nd opposite party are absolutely false and frivolous. 6. The 2nd opposite party already advised the 1st opposite party on several times, to solve the 100 cc Adreno and Energy bikes customer, since the defects are all only the manufacturing defects when the 1st opposite party launched the 110 cc vehicles. It is not to state that the 2nd opposite party deliberately antagonized the customers and scared away the 1st opposite party’s service engineers by man handling. 2nd opposite party confidently believes that the 1st opposite party should rectify all the snags of 100 cc bikes and the customers would be very happy. Even though 2nd opposite party informed and pressured the 1st opposite party to satisfy the customers, the 1st opposite party cannot hear the repeated request. Subsequently the 1st opposite party admitted their manufacturing defects of 100 cc bikes and directly taken back a vehicle from the 2nd opposite party’s customer namely Mr.K.Varadaraja, Polur T.V.Malai district and refunded the cost of the vehicle for a sum of Rs.47723/- vide D.D. No.884271, dt.4.7.02 obtained by the State Bank of India, Thousand light Branch, Chennai in favour of Mr.K.Varadaraja. This fact is spread in the market and after that all the 100 cc bike customers were approaching the Forum for their remedies. The 2nd opposite party is now also keeping the spare parts worth of Rs.4 to 5 lakhs. The 2nd opposite party purchased the spare parts as per invoice NO.700006138, dt.20.2.02 for a sum of Rs.9,196/- and invoice No.7000729, dt. 12.3.2002 for a sum of Rs.2992/-. Hence, the defects pointed out by the complainant are only manufacturing defects and for the same, the 1st opposite party is solely liable and responsible for replacement of the vehicle or to refund the cost of the vehicle. The 2nd opposite party is not legally liable to refund or replace the vehicle, it is therefore, prayed that this Forum be pleased to dismiss the above complaint against this opposite party. 7. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite parties? (b) Whether the complainant is entitled to the reliefs asked for?. 8. Ex.A1 to Ex.A4 were marked on the side of the complainant and no documents were marked on the side of the opposite parties. Proof affidavit of the complainants and Proof affidavit of the opposite parties have been filed. No oral evidence let in by either side. 9. POINT NO. (a): It is admitted facts of the parties that the complainant purchased a New Red Colour L.M.L. Energy two wheeler from the 2nd opposite party on 30.11.2000 vide engine No.E 52 TG 007700 Reg. No.TN-23-F-2526 for a sum of Rs.47,277/- The 2nd opposite party is a dealer of the vehicle under the 1st opposite party who is the manufacturer of the vehicle. 10. According to the complainant from the inception of purchase of aforesaid vehicle, gives the following troubles and poor consumption: a) Heavy Engine noise when driven at more that 50 k.m. speed b) Poor painting c) Shock absorber frequent failure. d) Gear Box problem along with Engine oil spray. e) Wrong position of Dua Seat Assembly and Fuel Tank due to which man’s tactical being hurt. Which is endangerous to life f) Cluth Problem. g) While running often engine stops. h) Fluctuation of fuel consumption from 38 km to 45 km per liter. Even though the 2nd opposite party serviced the aforesaid vehicle on several times the aforesaid defects could not be rectified. In the month of April 2001, September 2001 and January 2002 the 1st opposite party had conducted the rectification service camp at the 2nd opposite party’s showroom which were carried out by their service engineers Mr. Udai Shankar and Mr.Sirnivasan. In spite of that the vehicle was brought to the Authorized Service Station of the 2nd opposite party herein, the defects cannot be cured at all and therefore there is deficiency in service on the part of the opposite parties herein. 11. The contention of the 1st opposite party that the Adreno Motor Cycle which was bought by the complainant had no manufacturing defect at all, in any of its parts, since the above vehicle passes all the tests, prescribed by the vehicle Research and Development Organization, Ahamadh Nagar. The vehicles when sold by the dealer are given six free services and if only the customers availed of those six free services there will not be any problem at all. The complaints (a) to (h) are made at the instigation of the 2nd opposite party who is enimically disposed towards the 1st opposite party. The consumption also depends on (a) quality and quantity of fuel (b) road and traffic condition (c ) steady speed between 40 to 45 kmph (d) driving habits of the customer. The complainant never brought any such specific complaint to the knowledge of the opposite parties. Therefore there is no deficiency in service on the part of the opposite parties. 12. Admittedly, the complainant has driven the vehicle for about 20-months from the date of the purchase. The complainant herein has not produced any independent evidence of any technically qualified person to establish any kind of inherent defects in the parts in the vehicle. There is also no reason explained on the side of the complainant herein, even though the 1st opposite party is ready and willing to check the vehicle, even during the pendency of this complaint, why the complainant herein has failed to offer his vehicle for check up with the 1st opposite party herein. In the above stated circumstances the counsel for the 1st opposite party argued that the failure on the part of the complainant, to offer his vehicle for check up, with the 1st opposite party, even though the 1st opposite party is ready and willing to check up the vehicle will go to show that there is no inherent defects in the vehicle as stated by the complainant in this complaint. The above argument by the counsel for the 1st opposite party is quite acceptable and convincing. The burden is heavy upon the complainant alone, to prove the contention that the vehicle purchased by him has got manufacturing defect. But, in this case, there is no expert evidence or any independent evidence to prove his contention as to the manufacturing defect in the vehicle as stated by him in his complaint. 13. In this connection, the counsel for the 1st opposite party refers the following decision :- I. 1998 (3) CPR – 152 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELHI. Vindo Bhagat .vs.. General Motors (i) Ltd & Anr Wherein the Hon’ble State Consumer Disputes Redressal Commission, New Delhi is held that, “Consumer Protection Act 1986 – Sections 2 (1) (f) and 17/12 – complainant purchased Opel Astra Car – Defects – Letters to opposite party – No response – complaint – Nature of defects could be determined by expert with help of scientific instruments – Complainant declined to have car inspected by technically qualified person – Case of complainant cannot be accepted on so called admission or on principle of res ipsa loquitor”. II. I (2000) CPJ – 54 MADHYA PRADESH STATE CONSUMER DISPUTES REDRESSAL COMMISSON, BHOPAL H.M.T. LIMITED & ANR Versus SMT. JUBEDA BEE Wherein the Hon’ble MADHYA PRADESH STATE CONSUMER DISTPEUS REDRESSAL COMMISSION IS HELD THAT (i) Consumer Protection Act 1986 – Section 15 – Appeal – Section 2 (1) (f) – Manufacturing Defect – Expert Evidence – Tractor – Purchased – Complaint filed alleging defects – allowed by District Forum – Appeal – No expert evidence adduced – Manufacturing defect not established. In the present case, the absence of expert evidence, as to the defects in the vehicle, the complainant herein cannot be said to have proved his case of deficiency in service on the part of the opposite party herein. The above ruling cited by the counsel for the 1st opposite party is squarely applicable to the facts and circumstances of this case. 13. The counsel for the 1st opposite party also argued a C.C bike which is to be driven by an individual and in many cases by a number of individuals depends for its performance and longevity as a week as a maintenance needs on numberous factors which never remain in the hands or control of the manufacturer or Dealer and remain in the hands or control of the domain of the person who drives the vehicle. Such factors are (i) the level of skill and expertise possessed and applied by the person (s) who drive (ii) the level of his / their understanding, adherence to and applying the guidelines / instructions laid down by the manufacturer for driving the vehicle, in the relation to its start, upkeep and maintenance, speed levels, shifting of gears, giving rest to engine for cooling off after continuous driving for one hour at a stretch, the proper air pressure in the tires, carrying of load, use of good quality petrol and lubricant, change of engine oil at recommended intervals, quality of such an oil, the congestion on the roads, the condition of roads, etc. Therefore, the performance of the vehicle can be viewed on all the above aspects. Had there been any defect, as stated by the complainant in his complaint, it would not be taken 20 months for the complainant herein, to come forward with this complaint. If really, there was any defect in the vehicle, as stated by the complainant herein from the date of its purchase, he would have approached this Forum immediately, when that had not been done, we have come to the conclusion that the complainant herein has not clearly proved the case of deficiency in service, on the part of the 1st opposite party herein as stated by him in his complaint. 14. The counsel for the 1st opposite party also argued that the 2nd opposite party had fallen out with the 1st opposite party herein, due to connivance discard and the 2nd opposite party alone had set up this complainant herein to file this false complaint as against the 1st opposite party. Except the averments in para -5 of their counter, the 2nd opposite party also have not filed any documents to show that even though the 2nd opposite party informed the 1st opposite party as to the defects in the vehicle, the 1st opposite party neither heard the complaint nor gave any response for the same. Except stating in para-7 of their counter by the 2nd opposite party that the 1st opposite party’s Engineer Sri. Udhayasankar alone had accepted to replace the shock observer during the last service camp at Vellore there is no proof for the sale on the side of the 2nd opposite party herein. 2nd opposite party also had not taken any steps to examine Mr.Udhayasankar to prove that aspect. There is also no proof on the side of the 2nd opposite party herein, as to the contention in para – 12 of their counter that the 1st opposite party herein had refunded the cost of the amount of the vehicle to a customer in the area after admitted the defects in the vehicle. There is also no proof on the side of the opposite party-2 herein as stated in para-17 of their counter, as to that the 1st opposite party herein admitted manufacturing defects in their 100 CC bikes and directly taken back the vehicle from the customer by name K. Varadharajan of the Triruvannamalai District. Except the above contention there is no proof for the same on the side of the 2nd opposite party herein. Therefore the above arguments by the 1st opposite party is quite acceptable. 15. Taking all the facts into consideration and in view of the contentions in the complaint, as well as in the proof affidavit and from the documents filed on the side of the complainant, and from the contentions in the counter and proof affidavit filed on the side of the 1st opposite party and from the documents filed by the opposite parties herein and in view of the decision referred to by the counsel for the 1st opposite party herein, we have no hesitation to come to the conclusion that the complainant herein has not clearly proved his contention, as to the deficiency in service on the part of the 1st opposite party herein. Hence we answer this point (a) as against the complainant herein. 16. POINT NO : (b) In view of our findings on point (a), since, we have come to the conclusion that the complainant herein has not clearly proved the deficiency in service on the part of the opposite parties herein. We have also come to the conclusion that the complainant is not at all entitled to any relief asked for by him, in this complaint. Hence we answer this point (b) also as against the complainant herein. 17. In this result this complaint is dismissed. No Costs. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 18th day of April 2011. xxxxxxxxx MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1- 30.11.00 - X-copy of Invoice. Ex.A2- -- - X-copy of R.C. Book. Ex.A3- -- - X-copy of life tax receipt. Ex.A4- -- - X-copy of Insurance Certificate. Opposite parties’ Exhibits: .. Nil .. xxxxxxxxx MEMBER-I MEMBER-II PRESIDENT.
| | [ Hon'ble Tmt G.Malarvizhi, B.E] MEMBER[ Hon'ble Thiru A.Sampath, B.A., B.L] PRESIDENT[ Hon'ble Tr K.Dhayalamurthy, Bsc] MEMBER | | 
