BEFORE THE DIST. CONSUMERS DISPUTES REDRESSAL FORUM; DHARWAD.

DATE: 19/08/2016        

PRESENT:

1) Shri B.H.Shreeharsha        : President

2) Smt.M.Vijayalaxmi              : Member 

Complaint No.:  91/2016 

Complainant: Shri Manjunathgouda Ishwargouda Nargund,

    Age:45 Years, Occ: Pigmy Collector,

    R/o: Adargunchi, Tq:Hubballi.

         ( Rep.By Shri R.G.Naidu.Adv)

V/s

Respondent/s:  1)  The Managing Dictor,

    TVS Company,

    Post Box No-4,

    Harita, Hosur-635109,

    Dist:Krishnagiri,

    State:Tamilnadu

2) The Managing Director,

   Vijayalaxmi Auto Engineering (Hubli) Pvt Ltd,

   Authorized TVS Dealers,

    Gokul Road, Hubli-580030.

         ( Rep.By Shri R.R.Nadgir.Adv)

O R D E R

By: Shri. B.H.Shreeharsha: President.

1)The complainant has filed this complaint claiming for a direction to the respondent to replace new motorcycle along with compensation of Rs;1,65,000/- towards damages other expenses cost of the proceedings and to grant such other relief.

Brief facts of the case are as under:

2.       The case of the complainants is that complainant  has purchased TVS Star City plus ES (MA) from Respondent No 2 manufactured by R-1  for Rs:58000/-.  As per the service manual the complainant left for 1st service with the respondent No.1 on 26/10/2015 as the defects have been arise in the new vehicle.  The respondent No.2 without observing the defects returned the vehicle. Again on 12/12/2013 it is left for service, by water service returned the same without attending the defects.  Again on 9/1/2016 finally the complainant handed over the vehicle to the respondent No.2 under acknowledgement No.1963. After lapse of sufficient gap no response from the respondent No. 2, hence complainant repeatedly approached respondent-2 on 23/1/2016 and on 29/1/2016 repeatedly but on one or other pretext respondent no.2 did not attend and set right the defects till this day the motor cycle is with the respondent no.2 .  The complainant being a pigmy collector purchased the same for his personal work due to non-delivery of the vehicle by the R-2 the complainant put to heavy monitory loss and also subjected to mental harassment. Thereafter the complainant demand for replacement of the vehicle for that also R-2 did not heeded.  At the instance of Respondent no.2 the complainant subjected to heavy loss which amounts to deficiency in service by the respondent’s .Hence the complainant filed the instant complaint praying for the relief as sought.

3.            In response to the notice issued by this Forum the   respondent appeared and contest the matter by filing detailed written version.  The respondents No.1 & 2 to admits the written version in the same line contending that the very complaint filed by the complainant is false ,vexatious, frivolous as such it is not maintainable either on law or on facts and pray for dismissal of the same.  While the respondent No.1 submits the relation between the respondent No.1 and 2 is Principal to Principal. Hence after delivery of the vehicle to the Respondent 2 all the liabilities whichever within the ambit of warranty it is the responsibility of the R-2, to answer for the same.  While the respondents admits the purchase of the motor cycle in question from respondent 2 manufactured by the R-1.  While the respondents denied from date of purchase, the vehicle in question is suffering from defects.  Among such other admissions and denials the answering respondents denied all the complaint averments in to and put the complainant to strict proof of the same. While the respondents admits the approach of the complainant for service as per the user manual accordingly the same was attended by the R-2.  At the second service the complainant came with complaint that there is sound in the gear box while the vehicle was running. And the same was also attended and returned to the complainant. Once again the complainant came with same complaint on 3^rd time it was also attended by replacing the required spare parts as per the warranty clause the R-2 replaced clutch assembly and drive shat assembly driver with free of cost as it is in the coverage of free service warranty. While the R-2 replaced other 3 gasket kits though it costs above Rs: 780/- & out of coverage of warranty the R-2 did not claim the charges but replaced the same free of cost. Again the complainant with a master mind to have a new vehicle by way of replacement on 9/1/2016 approached R-2 and left the vehicle.  Since the parts were not available with R-2 for immediate replacement same were got by R-2 by indenting through R-1 and replaced and get it set right. Thereafter the complainant did not turn up and took the vehicle from R-2 in spite of repeated intimation to the complainant.  Still the vehicle with respondent No.2 The complainant without ascertaining whether R-2 has set right or not,   sue moto issued notice to respondents calling upon to replace the vehicle on 13/2/2016 which was suitably replied by the respondents intimating the complainant the vehicle was ready as on 4/2/2016 in spite of repeated intimation through Phone calls the complainant did no heed and took the delivery of the same.  In spite of intimation and reply the complainant did not turn up and left the vehicle in idle in the garage of R-2.  The complainant without taking due course and without knowing whether the vehicle has been set right or not or still the defects were persist sue moto filed the instant complaint with sole intention to harass the respondent and to grab.  Further the respondent denied all other complaint averments that the complainant suffered financial loss, hardship, a loss of earnings and income.  Further the respondent denied the deficiency in service as alleged and prays for dismissal of the complaint with cost.

    On the said pleadings the following points have arisen for    consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

4.     The complainant and respondents have admits sworn to evidence affidavit relied on documents. Complainant filed notes of arguments.  Respondents relied on citations.  Heard. Perused the records.

    Citations relied by the Complainant: Nil

   Citations relied by the Respondent No.2

1. 2006 (1)CPJ 92 NC- Shivaprasad paper Industries               

     Vs. Senior Machinery company.

2. CDJ 2006 (cons.)Case No.504-Chandeshwar Kumar   

     Vs. Tata Engineering Loco Motive Co.Ltd.,

3. CDJ 2008 (Cons.) Case No.055- Tata Engineering Loco

     Motive Co.Ltd & Another Vs. Sunil Bhasin & Another.

4. Chhattisgarh State Commission Case – National Garage  

     Vs.Subrat Saha

5. (2014)CJ 212 (N.C.)-Tata Motors Vs. Rajesh Tyagi &     

     Another

6. (2015)CJ 40(N.C.)-Piaggio Graves Vehicle Pvt.Ltd. &  

           Another Vs.Ramakanta & Others.

Finding on points is as under.

1. In Negative.

2. In Negative.

3. As per order

R E A S O N S

P O I N T S 1 & 2

5.      Ongoing through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the facts that the complainant has purchased the motor vehicle from R-2 manufactured by Respondent No.1.

       Now it has to be determine whether the respondent hacommitted deficiency of service? If so, for what relief the complainant is entitle.

         Since the facts have been revealed in detail which    

    requires no repetition.

6.      Crux to be determine whether the motorcycle in question is suffering from defects which could not be set right and the alleged defects still persists as alleged by the complainant. 

7.       The very case of the complainant is that there is sound in the gear box while vehicle was running hence he approached R-2 several times but the R-2 without properly attending the same returned the same as it is. Finally the complainant left the vehicle with respondent No2 on 9/1/2016 thereafter in spite of repeated visit the R-2 did not attended and drag on either one or other pretext.  So the respondents have committed deficiency in service. 

8.         While it is the case of the respondent No-2 that in usual course as per user manual the complainant for the first time approached R2 for the free service without any complaints and same was serviced and returned. Again the complainant approached R-2 for second service with complaint that sound in the gear box and same was attended and returned. Again complainant approached the R-2 during that time in order to set right the same the R-2 replaced clutch shaft assembly drive shaft assembly driver with free of cost which was comes within warranty coverage while gasket kit which costs Rs:780/- which do not comes within warranty coverage hence  it is charged but charges were not claimed and deliver the vehicle to the complainant.  Again on 9/1/2016 the complainant approached R-2 with same grievance so in order to set right the same as the spare parts were not available with R-2 got the same from R-1 Tamilnadu and set right by taking some time for transportation of the spare parts from Tamilnadu.  Thereafter in spite of intimation the complainant did not turned up and took delivery of the same with master mind to have replacement of new motor cycle without knowing whether defects have been set right or not.  Thereafter the complainant without knowing the defects sue moto issued notice and the same was suitably replied.  Thereafter the complainant filed instant complaint without knowing the facts whether the respondent have set right or not and without knowing still the defects is persists or not.  In support of this contention R-2 relied on Ex.R2- 1to 4. Perusal of the same reveals Respondents have timely attended the problems of the complainant as contended by the respondents. 

9.      It is the complainant who approached this Forum praying for relief of replacement of the vehicle contending that there is defect in the vehicle. But the complainant nowhere either in his pleadings or in his evidence did not revealed the vehicle in question is suffering from manufacturing defects. When the complainant who approached this Forum praying for relief burden lies on the complainant to establish the allegation and alleged deficiency of service by the respondents.  It is also the case of the complainant he finally left the vehicle with respondent no.2 on 9/1/2016 for repair. Further it is also the case of the complainant after left it on 9/1/2016 on several times he approaches R-2 during that time he was sent back on one or other pretext without attending. It is also the case of the complainant that finally he got issued notice to the respondent on 30/2/2016 calling upon the respondent to replace the new one and to reimburse the loss. For this notice the respondent replied on 3/3/2016 intimating the facts in detail and also prior to the notice immediately after the vehicle get ready on 4/2/2016 they have intimated the complainant to take the vehicle which was set righted and also of the facts the complainant was intimated through telephone.  The facts of the reply notice Ex.C-7 were not disputed by the complainant either in pleadings or in his evidence. 

10.        As discussed supra when the complainant has approached this Forum he must establish his case by appulsive and cogent evidence but not produced.  Except oral allegations the complainant did not adduced expert evidence to establish his case before this Forum to show the vehicle in question is suffering from defects and are of manufacturing defects.  That apart even after reply notice Ex.C-7 the complainant did not made attempts to verify the vehicle or to obtain expert opinion. Perusal of Ex.R2-4 job card dtd. 9/2/2106 reveals to that day the vehicle has run 3518 K.Mtr. within a span of about 4 months. Perusal of Ex.R2 1 to 4 Job cards reveals are of usual service job cards and problems were minor and have been attended by the respondent-2.  By this it is evident and certain that defects were repairable one and are set righted. 
11.      When the complainant sought for replacement of the vehicle in such an instance heavy burden lies on the complainant to establish the vehicle is suffering from manufacturing defects which could not be set right by ordinary repair.  Then only the complainant is entitle for replacement of the vehicle.  But in the instant case situation is not in such a hasty position and also complainant not adduced any expert evidence to establish the vehicle is suffering from non-repairable defects.  Added to it subsequent to R2 -4 service Job Card the complainant did not approached the respondent and inspected the vehicle and ascertain whether the defects persist or not. Hence the complainant utterly failed to establish the vehicle in question is suffering from irreparable defects and suffering from manufacturing defects. The respondents in support of their case and the complainant is not entitle for relief as sought by him, the respondent relied on citations which have been cited above and perusal of those citations are all supports the case of the respondents and not entitlement of complainant for replacement of new vehicle. However as discussed supra at most the complainant is only entitle for repair and replacement of the parts free of cost if the defects have been arose within warranty period and replicable parts covers warranty coverage if not complainant is only entitle for repair on payment of cost if the defects were not within the ambit of warranty.  Hence looking into the evidence on record the complainant utterly fail to establish his case and entitlement for replacement. Pro conta on the other side the respondents have established they have not committed any deficiency of service as alleged by the complainant. Hence the complainant is not entitle for any reliefs much less the relief as sought except to take delivery of the vehicle from the custody of the Respondent No.2 . However the R-2 is directed to not to charge any service charges on the job cards Ex.R2 -4 and not to charge any parking charges for all these days and to do only free water service while delivering the same when the complainant approached R-2 for delivery.

In view of the above discussions we have arrived and proceed to held issue.1 and 2 in negatively and accordingly.

Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

                                            Order

 Complaint is dismissed.  No order as to cost. The   respondent No.2 is directed deliver the motor cycle from custody to the complainant whenever approaches as per the observation made and to deliver the vehicle under proper acknowledgement.

(Dictated to steno, transcribed by her and edited by us and   pronounced in the open Forum on this 19^th day of August 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

GDB