Karnataka

Kolar

CC/7/2016

Sri.C.Manjunatha - Complainant(s)

Versus

The Proprietor, Shree Kamakshi Bajaj - Opp.Party(s)

Sri.H.V.Ramesh

12 Sep 2016

ORDER

Date of Filing: 01/03/2016

Date of Order: 12/09/2016

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, D.C. OFFICE PREMISES, KOLAR.

 

Dated: 12^TH DAY OF SEPTEMBER 2016

PRESENT

SRI. R. CHOWDAPPA, B.A., LLB…..    MEMBER (In-charge President)

SMT. A.C. LALITHA, BAL., LLB           ……  LADY MEMBER

CONSUMER COMPLAINT NO :: 07 OF 2016

Sri.C.Manjunatha,

S/o. Chikkanappa,

Aged About 46 Years,

R/at: Doddakadathur Village,

Kasaba Hobli, Malur Taluk,

Kolar District.

 

(Rep. by Sriyuth.H.V. Ramesh, Advocate)                      ….  Complainant.

 

- V/s -

1) The Proprietor,

Shree Kamakshi Bajaj,

R/at: No.70/1, M.B.Road,

Sulthan Thippasandra,
M.B. Road, Bye pass,

Kolar-563 101.

 

2) The Managing Director,

Bajaj Auto Limited, Akurdi,

Pune-411 035, Maharastra State,

India.

(Both Ops are Rep. by Sriyuth.A.Srinivasa, Advocate)       …. Opposite Parties.

-: ORDER:-

BY SMT. A.C. LALITHA, LADY MEMBER

01.   The complainant having submitted this complaint Under Section 12 of the Consumer Protection Act, 1986 has sought relief of issuance of directions to the OP Nos.1 & 2 to take back the defective vehicle “DTS Discover 100 4G ES” two wheeler vide Engine No.84191 model Bajaj Auto Discover 100 4 G ES, Black Gold MCM Decal and to hand-over the new good conditioned vehicle, as well, Rs.1,50,000/- towards loss of mental, physical and financial and any other reliefs as this Forum deems fit.

 

02.   The facts in brief:-

(a)    It is contention of the complainant that, being teacher at primary school at Arasanahalli Village Lakkur Hobli, Malur Taluk, he purchased “DTS Discover 100 4G ES” two wheeler vide Engine No.84191, Model Bajaj Auto Discover 100 4G ES, Black Gold MCM Decal from OP No.1 for a sum of Rs.58,857/- on 28.08.2015.  And got the same 1^st service from OP-1 within a month from the date of purchase.  Same time he noticed problem in the engine of the vehicle and the same was brought to the notice of OP-1 and they assured to rectify the defect in 2^nd service.

 

(b)    Further it is contended that, since the defect continued even after 1^st service he noticed some noise from the engine while starting of the vehicle and also the vehicle would stop suddenly.  OP-1 was again assured to set right in 2^nd service.  Thus he got examined the said vehicle to another Automobile Engineer, he identified the problem is due to manufacturing defect.  Same was immediately intimated to OP-1 and requested to replace the vehicle, but OP-1 was refused to replace the said vehicle.

 

(c)    Further it is contended that, he got issued legal notice through his learned counsel, which was duly served on OP-1 and was no reply.

(d)    It is also contended that, the said two wheeler valued at Rs.58,857/-, he availed hand loan from his well wishers to purchase the said two wheeler with the interest of 3%.  And that, he had paid Rs.25,000/- as interest to the well wishers.  Since OP-1 had sold defective vehicle to him, he had suffered mentally, physically and financially.  And by refusing replacement of the said defective vehicle OP-1 had rendered deficient in service.

 

(e)    So contending the complainant has come up with this complaint on hand to seek above set out reliefs.

 

(f)     Along with the complaint, he has submitted the following documents:-

(i)       Copy of Motor vehicle policy

(ii)      Copy of cash receipts No.2

(iii)    Copy of the cash bill

(iv)     Copy of service receipts No.2

(v)      Copy of notice issued to the Ops

(vi)     Copy of postal receipt Nos.2

(vii)    Copy of the acknowledgment

(viii)   Copy of the letter to the post master.

 

03.   After issuance of notices, both the Ops have put in their appearance through their said learned counsel and submitted written version.

 

04.   The Ops have put in written version resisting the claim of the complainant in toto.

(a)    OP-1 admits the purchase of the said two wheeler and 1^st service availed by the complainant.  He specifically contends that, the 1^st service was availed on 01.10.2015 at a reading of 500 kilometers and the 2^nd service was to be availed within 240 days from the date of purchase according to free warranty services as per owner’s manual.  But the complainant was not availed 2^nd service, hence negligence is in the part of complainant itself and thus prayed for dismissal.

 

(b)    It is contended that, the complainant had not availed services of vehicle with in stipulated period and had never report any such defects to the notice of OP-1.  And that he has come up with complaint after expiry of warranty period and thus this complaint is not maintainable.  For this relied on orders of Hon’ble Maharashtra State Commission and Hon’ble Delhi State Commission in M/s. Gadre’s & M/s. Surya Agroils.

 

(c)    It is specifically contends that, complainant had not submitted expert report or opinion as required Under Section 13 of the Consumer Protection Act, 1986 with regard to defect as alleged.

 

(d)    It is further contends that, even though there was no defect in the said vehicle, by the receipt of legal notice of complainant one Mr. Waseem, Senior Service Engineer and Tanveer, Head Mechanic of OP-1 visited to complainant’s house and checked the vehicle on 04.01.2015 and found the said problem is due to breakage of sprocket bearing and damage of damper rubber.  And advised complainant to leave the vehicle for service at Malur show room and they will get it done under warranty itself.  But the complainant has not come for service as their advice.  Thus dismissal of the complaint has been sought.

 

(e)    On behalf of the Ops, the learned counsel appeared for Ops have submitted below mentioned documents and citations in different dates:-

(i)       Owner’s Manual

(ii)      Copy of legal notice issued by complainant

(iii)    Copy of reply notice

(iv)     Postal receipt.

(v)      Postal acknowledgement.

 

(i)       (1992) CPJ 279 (NC)

 

05.   The very complainant has submitted his affidavit evidence.  And on behalf of OP-1 Sri.H.S. Pradeep Babu has submitted his affidavit evidence.  Both counsel have submitted their respective written arguments.

 

06.   On 03.09.2016 heard the oral arguments as advanced by the learned counsel appearing for both sides.

 

07.   Therefore the points that do arise for our consideration in this case are:-

1. Whether the Ops could be held guilty of deficiency in service with regard to the said two wheeler “D.T.S Discover 100 4G ES two wheeler vide Engine No.84191, model Bajaj Auto Discover 100 4 G ES, Black Gold MCM Decal?

2. If so, to what relief the complainant is entitled to?

3.  What order?       

 

08.   Findings of this District Forum on the above stated points for the following reasons are:-

POINT 1:-    In the Affirmative

POINT 2:-        The complainant is held entitled to refund of the cost of the said two wheeler in a sum of Rs.58,857/- with compensation of Rs.25,000/- together with interest @ 9% per annum over this sum from 01.03.2016 being the date of complaint till realization for being recovered from the Ops jointly and severally after making handover the said defect vehicle to OP-1 in the existing condition.

 

POINT 3:-    As per the final order

                    for the following:-

 

REASONS

POINT Nos.1 & 2:-

09.   To avoid repetition in reasonings and as these points do warrant common course of discussion, the same are taken up for consideration at a time. 

 

(a)    The learned counsel appearing for Ops has placed reliance and principles enunciated in (1992) CPJ 279 (NC) reads thus:-

“Held: we are not satisfied that the above observations of the State Commission are correct.  If the closet was of substandard quality, then the defect could be proved only by laboratory test.  In laboratory, it could be found if the material used in the manufacture of the closet in question was of substandard quality or not or it could withstand a weight up to 465 kgs. As claimed by the manufacturers before the State Commission.  Without such a test, no conclusion can be reached about the quality of the material used in the manufacture of the disputed closet.  Therefore, the State Commission was not right in not sending the pieces of the broken closet for laboratory analysis or test.

 

As noticed earlier, we are not convinced with the complainant’s averment that the closet crumbled under her on account of some manufacturing defect.  It had been in use of five or six years and at least, for three years by the complainant and her family members prior to the incident.  The complainant is only of moderate build.  Therefore, we are very doubtful that the closet in question would collapse under her weight.  Therefore we do not think it necessary to remand the case to the State Commission for getting the pieces of broken closet tested in the laboratory. 

(b)    OP-1 has specifically contends that, there was no defect at all in the vehicle in Para-4 of written version.  Very surprisingly in Para-14 of written version it is contended that, Sri.Waseem, Senior Service Engineer, and Tanveer, Head Mechanic, had visited to complainant’s house on 04.01.2015 and given report about the said vehicle as there was/is problem with sprocket bearing breakage and damage of damper rubber and assured to be get it done within warranty service.

 

(c)    And also the learned counsel appearing for Ops submits at the time of oral arguments that, even now they are ready to rectify the problem of the defect vehicle.  So it clears that, the said vehicle is defective.

 

(d)    When Sri.Waseem, Senior Service Engineer was opined that, there is problem in the said vehicle, very surprisingly how Ops has contended that, the complainant had not come up with any expert report and not came for service would be the question?  The said vehicle was purchased on 28.08.2015, 1^st service was done on 01.10.2015.  The said engineer of Ops had identified the defect on 04.01.2015.  Hence no doubt within a warranty period and in a very short period from the date of purchase the problem occurred.  The defect did continue and on approach being made to OP-1 to rectify the same.  So what compliance the OP-1 had made?  It was only an eye wash and not the sincere effort with commitment to the repair the said defect two wheeler to see that it was to remain error free.

 

(e)    No doubt the said vehicle is defective and within warranty period.  When the very Ops Engineer Mr. Waseem has opined that, there is defect in the vehicle, hence there is no need for any laboratory test etc., as relied on the above said citation.  And hence the principles enunciated in (1992) CPJ 279 (NC) are not applicable to the case on hand.

 

(f)     Therefore it is evident that, because of the inherent defects in the said vehicle the same resulted in giving such problems within short period (warranty period) itself.

 

(g)    Since the vehicle is defective and it was the OP-1 who sold it and as it was OP-2 who manufactured, thus Ops rendered deficient in service.  Therefore now we proceed to assess the quantum of relied to be granted.

 

(h)    It is a fact that, on 28.08.2015 the complainant by paying a sum of Rs.58,857/- did purchase the said vehicle.  As because of defective in view of the report of Senior Engineer of OP-1 Sri.Waseem this vehicle has become totally useless, the complainant cannot be blamed for it.  Therefore both the Ops are accountable.

 

(i)     So we are of the definite opinion that, even if we do direct the Ops to rectify the defect or replace the vehicle the very defect might recur.  Hence to put an end to the controversy we are of the opinion as hereunder:-

 

(j)     The complainant has claimed a sum of Rs.1,50,000/- towards loss of mental, physical and financial, which cannot be granted, for which there are no satisfactory evidence.  However it is indisputable aspect that because of the said defective vehicle the complainant had suffered.  Therefore we quantify the compensation in a sum of Rs.25,000/- and we round-of the said price consideration of Rs.58,857/-.  Thus this complainant is entitled to total compensation of Rs.83,857/- together with interest @ 9% per annum from 01.03.2016 being the date of the complaint till realization have to be recovered from OP Nos.1 & 2 jointly and severally on a condition that, within 30 days from the receipt of the copy of this order complainant shall hand-over the said defective  vehicle as in existing condition to OP-1.

 

POINT 4:-

10.   We proceed to pass the following:-

ORDER

(01)  For foregoing reasons this complaint stands allowed with costs of Rs.2,500/- against OPs as hereunder:-

(a)    The complainant is entitled to receive Rs.58,857/- price of the said two wheeler he paid and compensation of Rs.25,000/- together in total of Rs.83,857/- together with interest @ 9% per annum from 01.03.2016 being the date of the complaint till realization for to be recovered from OP Nos.1 & 2 jointly and severally on a condition that, within 30 days from the receipt of the copy of this order the complainant shall hand-over the said vehicle to the OP-1 as in existing condition.

 

(02)  Send a copy of this order to both parties free of costs.

 

(Dictated to the Stenographer in the Open Forum, transcribed by him, corrected and then pronounced by us on this 12^th DAY OF AUGUST 2016)

 

 

 

LADY MEMBER                              MEMBER(In-charge of President)