Karnataka

Gadag

CC/23/2014

Vasant.M.Jakali - Complainant(s)

Versus

The Propriator, Channamma Automobiles. - Opp.Party(s)

B.B Magadi

16 Aug 2016

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Parties (herein after referred in short as OPs) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OPs. 

 

2.  The brief fact of the case is that the Complainant purchased a Bajaj Discovery 100 CC Motor Cycle from Ops on 20.01.2014 by paying Rs.54,064/-, the vehicle bearing No.KA-26 TR-493 which is on road price of the vehicle. But, the Ops received a total amount of Rs.56,050/- towards vehicle and also the advertisement published by the Company says that the mileage of the vehicle 87 KM per liter. Further, Complainant alleged that the vehicle started giving trouble immediately after the purchase, the vehicle does not run properly in first and second gear and also the engine stop offenly and there is starting problem, the fuel gaze was not working the Complaint of the vehicle informed to the OP, the OP took up the vehicle for repair and returned to the Complainant saying that the problem had been rectified, but the motor cycle was in same condition as it was the again Complainant informed the same Complaint of its vehicle severally to the OP. But the OP could not rectify the problems, on the first service of the vehicle. The OP made the routine service, but the prior problem of the vehicle was not rectified, finally on 25.03.2014 the OP again took the motor cycle to rectify the problem but the vehicle is still with the OP. The problem of the vehicle had been not rectified. Hence, it is a unrectified problem. Motor cycle is having a manufacturing defect, the Complainant sent a legal notice to the Ops to exchange the defective motor cycle with a new one. The OP had not replied to the notice.

 

3.      Further Complainant alleges that the OP had received Rs.1,986/- excess amount from the Complainant towards the vehicle. The Complainant had prayed that this Hon’ble Forum to order the OP to exchange the defective vehicle with a new one or refund the whole amount of Rs.56,050/- collected by the OP and excess amount of Rs.1,986/- andRS.50,000 towards mental agony and harassment, Rs.25,000/- towards the compensation and other order that the Forum deems fit.   

 

4.      The predecessor on the seat registered the Complaint and notice was issued to OPs. The OPs appeared before the Forum and filed Objection on behalf of OP No.1 and 2.

Brief facts of the Written Version of OPs:

The Ops have denied most of the averments made in the Complaint and admitted that Complainant had purchased the vehicle from the Ops and the Ops had denied that the vehicle started giving the problem and automatically shutting down of an engine. Further, it has stated that vehicle is in a good condition at the time of delivery.

 

5.      The vehicle when runs in a long route without changing its gear its consumption will be 1 liter fuel for 87 KM. But he had denied that consumption of vehicle is 57 KM per liter.

 

6.      An amount of Rs.1,986/- collected from the Complainant as alleged that excess amount the OP had denied and stated that this amount is of accessories fitted to the vehicle and further stated that the fuel gaze is working properly.

 

7.     Further the Ops stated that issues like mileage is the sole grievance of the Complainant and the other Complaints like gear problem simply included in the Complaint to make feel that there is an issue in the vehicle even today. It is an extensive view. Further Ops states that the mileage started to shows only the capacity of the engine, but never granted any types of rider under any condition.

 

8.      Further, Ops submits that Motor Cycle is an assembly of various complex, mechanical engineering parts/components with engine of latest technology, every customer gets an owner’s manual which contents do’’s and don’’t of the vehicle for the better use and performance, many time the vehicle get repaired by road-side mechanics who spoils the alignment of the vehicle and the customer put the blame on manufacturer in this case Complainant had not taken proper care of the vehicle. Further, Ops stated that once the vehicle is delivered to the customer that OP do not have any control or knowledge that how the vehicle is used. Hence, the Ops states that he had not made any unfair trade practice. Hence, OP had fails to dismiss the Complaint it costs.   

 

9.      On the back ground of the above said pleadings, the Complainant himself examined before this Forum as CW-1 and produced 15 documents. They are:

1) EX C1 Quotation

2) EX C2 Tax Invoice,

3) EX C3 to C6 Cash Paid Receipt,

4) EX C7 Cover Note,

5) EX C8 Cash Paid Receipt,

6) EX C9 Notice,

7) EX C10 and C11 Postal Receipts

8) EX C12 Postal Acknowledgement,

9) EX C13 Letter

10) EX C14 Vehicle Acknowledgement,

11) EX C15 Owner’s Manual.

On the other hand, OP No.1 filed a Chief Affidavit and submits that he had sweared this affidavit on behalf of the OP No.2 and the documents produced by OP got marked EX. OP1.

1. EX OP1 Owner’s Manual   

 

10.    On the basis of above said pleadings, oral and documentary evidence, the following points arises for adjudications are as follows:   

1.     2.   3.	Whether the Complainant proves that the vehicle in question is having manufacturing defect?   Whether the Complainant proves that the OP had practiced the unfair trade?    Whether the Complainant is entitled for relief as sought?
4.	What Order?

 

Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Affirmative,

Point No.3 – Partly Affirmative,

Point No.4 – As per the final order.

                

R E A S O N S

 11.  POINT NO.1 and 2:  As both points are inter related hence taken together for common discussion to avoid the repetition of fact, evidence. On perusal of pleading, evidence coupled with the documents on record with respective parties. It is the case of the Complainant alleging untrade practice by the OP, deliver a defective motor cycle. The Complainant purchased a Bajaj Discovery M-100 CC two wheeler from the OP on 20.01.2014 bearing engine No.AZWDH 44022 and Chessie No.MD2-A57-A21-DWH-34545. The said vehicle was purchased by paying an amount of Rs.56,050/-. It is an undisputed fact and had been admitted by the Ops.

 

12.     When the Complainant started to ride his vehicle the vehicle started giving trouble in first and second gear, the vehicle was not running properly and there was starting trouble and also there is a huge drop in the mileage, the Complainant informed the OP about the trouble of the vehicle, the OP took the vehicle for repair and delivered back to the Complainant saying that the problem had been rectified. But, when the Complainant started to ride the vehicle, the vehicle was in same condition as it was, again the OP took the vehicle for repair and delivered back in the same condition, the Complainant oftenly visited the workshop of the OP for rectification of the trouble of the vehicle, but the OP opened the seal engine of the vehicle and changed one of its bearing and the OP took the trail of the vehicle. But the problem was not rectified, on 25.03.2014 the Complainant left the vehicle in the Ops workshop and asked him to replace with a new vehicle till the date the OPs had not came forward to rectify the problem, nor exchanged it with a new one. The vehicle is still lying in the workshop of the OP. This is the Complaint of the Complainant. Whereas the learned counsel of the OP objected the Complaint and stated that if a vehicle run on a long route without changing its gear, the consumption of the vehicle will be one liter for 80 KM and also objected that the gear problem are simply included to make it feel that there is an issue in the vehicle.

 

13.     The learned counsel for the Complainant filed an Application for appointment of Commissioner for an Expert to examine the vehicle and to file a Report. The OP acknowledged the same and suggested the name of an Expert to examine the vehicle which had been agreed by the Complainant also. As per the suggestion of Ops one Mr.Madhusoodan Madhavrao Lokhande appointed as a Court Commissioner for examination of the vehicle. After examination he had filed his report stating that the vehicle was inspected on 23.11.2015 which was lying in the Ops garage at 4.30 PM in the presence of the both the parties and he had reported that:

 

1) Wobbling and knocking sound      

    After test ride we found that vehicle gets wobbling and vibrates and produced knocking sound at the speed of 40 – 50 KMs/hrs. in top gear.

 

2. Poor Mileage:

    The mileage of the vehicle is below 50 KMs/liter

3. Fuel gauge is not working properly:  

and stated that the manufacture of the motor cycle of this model has been stop by the manufacturer. By this it is very much clear that the Motor Cycle in question is having manufacturing defect and the vehicle is in a warranty period and it is the duty of the OP to rectify the problems to the satisfaction of its customer (Complainant), but the Ops failed to do so nor the OP had rectified the problem of the vehicle, nor he had exchanged it with a new one. Whereas the vehicle was in the warranty period, the vehicle started giving trouble within a very short period of purchase. Hence, we are on an opinion that the OP had committed untrade business practice and committed deficiency in service. Hence, we answer positively to both the points.        

    We rely upon the citation cited below:

III (2016) CPJ 250 (NC), National Consumer Disputes Redressal Commission, New Delhi. (Satyam Automobiles Pvt. Ltd. V/s Mukesh Singh and Another). It reads as under:

“Consumer Protection Act, 1986 – Sections 2 (1) (f), 2 (1) (g), 21 (b) – Motor Vehicle – Manufacturing defect – Engine replaced – Warranty period – Deficiency in service – District Forum directed replacement of vehicle – State Commission dismissed appeal – Hence revision – Engine of vehicle has been replaced within aj short period of one year from date of purchase – Petitioner also paid Rs.11,600 to respondent No.1 during warranty period – Inherent defect in vehicle proved – Impugned order upheld”. 

                     

 14.  POINT NO.3:  In the light of the above discussion, it is clear that the OP had committed unfair trade practice. Hence the Complainant is liable for relief as per the final order. Hence, we answer the Point No.3 is partly affirmative.

 

15.   POINT NO.4:   For the reasons and discussion made above and finding on the above points, we proceed to pass a following:  

//ORDER//

1. The OPs are directed to refund the amount of Rs.58,036/- (Rupees fifty eight thousand thirty six) along with an interest @ 6% p.a. from 25.03.2014 to the Complainant.
2. The Ops are directed to pay a compensation of Rs.5,000/- (Rupees five thousand) towards mental agony and harassment made and RS.2,000/- (Rupees two thousand) towards the litigation charges.
3. The Ops are directed to comply this order within thirty days failing which Ops liable to pay an interest @ 12% p.a. for Rs.58,036/- from 25.03.2014, till realization to the Complainant.  
4. Send the copies of this order to the parties free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 16^th day of August, 2016).

 

 

 Member                   Member                 President