DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 30th day of June, 2018
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
C.D Case No. 26 of 2016
Sri Chinmaya Rout
S/o Jayanta Kumar Rout
At: Gabasahi
Po: Bhadrak
Ps: Bhadrak
Dist: Bhadrak
……………………. Complainant
(Versus)
1. The Proprietor
M/S Shankar Bajaj
At: Charampa, H.H- 5
Po: Charampa
Ps/Dist: Bhadrak
2. Bajaj Auto Ltd.
Akurdi, Pune
Maharastra, 411035
…………………………..Opp. Parties
Advocate for Complainant: Mr. Aditya Kumar Nayak & Others
Advocate for O.Ps: Mr. Prakash Chandra Adya
Date of hearing: 16.08.2017
Date of order: 30.06.2018
SRI BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of a petition/complaint filed by the complainant alleging deficiency of service and unfair trade practice.
That the complainant is the resident of above mentioned address and for his personal convenience, he selected to purchase a Bajaj Pulser 220 SF (Sports Bike) being influenced by the advertisement made in printing and electronics media by the O.Ps. However the complainant purchased the said motor cycle from OP No. 1 on 19.03.2015, bearing Engine No- DK/CEH75432 and Chesis No- MD2A13E/7ECH83119 for a sum consideration of Rs 90,470/-. The said sports bike was registered with RTO Bhadrak. Just after 3 days from the date of purchase, the engine of the said bike generated excessive heat while in running mode at 30 to 40 KM per hour and also a noisy sound came from the engine. Further the bike did not take the speed more than 40 KMs per hour because of poor pickup and the fuel consumption was much more than what is mentioned in the user’s manual and many problems were noticed. The complainant immediately rushed to OP No. 1, the authorized dealer of OP No. 2, where he narrated the problems in details and requested to remove the defects but the OP No. 1 consoled that all the problems would disappear and would be corrected at the time of 1st service of the bike. Therefore the complainant availed 1st servicing of the bike on 25.05.2015 where the staff in charge of service center, after through checking, intimated that all those problems/defects in the bike cannot be corrected as those defects exist since manufacturing and OP No. 1 assured to intimate OP No. 2 about the defects on behalf of complainant. Apart from above, complainant has also intimated OP No. 2 through toll free number/customer care and also written intimation through E-mail. In responding to telephone call and E-mail, OP No. 2 intimated the complainant to bring the bike to M/S Suraj Bajaj, Cuttack where the servicing engineer would take up inspection of the bike for eradication of defects. The servicing engineer retained the bike from 07.10.2015 12.10.2015 for inspection and observation. After thorough inspection of the vehicle it was intimated by Suraj Bajaj, Cuttack that the bike bears some manufacturing defects which cannot be rectified and verbally assured to replace the defective bike with new one within 15 days but no result was yielded. More over while the bike was under inspection it was detected that the tyres of the bike were also defective which was replaced by MRF tyres Ltd. After elapse of about 7 months when the O.Ps did not take any step in spite of repeated approach, the complainant, as a last resort, served a notice upon the O.Ps to replace the defective bike with new one or to refund the value of the bike with interest failing which the complainant would take shelter in the appropriate count under the provisions of relevant Act and Law. When the O.Ps did not turn up in spite of legal notice, awaiting for a period of nearly 6 months, the complainant raised this dispute praying for replacement of defective vehicle along with cost and compensation for mental agony and harassment.
O.Ps resisted the claim of the complainant and contested the case. In the written version so submitted, O.Ps have challenged the maintainability of the case in the present form due to gross violation of warranty conditions by the complainant. It is further stated by the O.Ps that according to the stipulated warranty conditions the complainant had to avail free service within 30 to 40 days or 600 to 750 KMs running whichever comes earlier. But the complainant has brought the bike to the workshop of OP No. 1 on 20.05.2015 which is after 60 days from the date of purchase violating the warranty conditions. Secondly at the time of availing 1st free service, no defect was detected nor the complainant raised any defect. O.Ps have also objected in stating that the complainant has never come to OP No. 1 just after 3 days from the date of purchase nor has disclosed about any defect existing in the motor cycle. The complainant has taken false plea and fabricated a story which is frivolous and concocted. Had there any defect in the disputed bike, the complainant would have mentioned in the job card and would have raised the same at the time of 1st free servicing. This makes crystal clear that the allegation made by the complainant is false, fabricated, frivolous and concocted. Hence all the allegations brought in the complainant are denied by the O.Ps.
We have gone through the complaint, written version of O.Ps, perused materials on record and observed as detailed below.
Admittedly the complainant has a Bajaj Pulser motor cycle (bike) from OP No. 2 having its shop/showroom at Dahanigadia, Bhadrak under Bhadrak Municipality for a sum consideration of Rs 90.470/- on 19.03.2015. Apart from this all other allegations dealt in the plaint are disputed by the O.Ps.
1. In the complaint, the complainant has alleged that the just after 3 days from the date of purchase the bike in dispute gave rise to many defects such as abnormal rise in engine temperature while running in 30/40 KM speed, noisy sound comes from the engine etc. which was reported to OP No. 1 who wanted to inspect the bike through his available mechanics. After an inspection the defects as was noticed could not be rectified for which OP No. 1 advised complainant to contact the company personels over phone using customer care/Toll Free number and accordingly the complainant reported the matter to the company (OP No. 2). OP No. 2 quickly responded and advised to take the vehicle to Cuttack where further inspection of the bike was to be taken up by company mechanic. Accordingly the complainant arranged to make the case bike available at Cuttack where inspection was taken up and after through inspection of all aspects, the technical personal OP N. 2 intimated him on 12.10.2015 that the bike is having manufacturing defect which cannot be rectified hence needs replacement with new one but till date no action for replacement of bike has been initiated by the O.Ps.
On the contrary O.Ps in objecting the contentions of complainant stated that the complainant has neither come to OP No. 1 nor has come brought the bike for inspection in the workshop. The complainant has taken false plea to put the O.Ps in unnecessary problems with malafide intention. Secondly the O.Ps have also raised that the complainant has neither made any complaint with the manufacturing company (OP No. 2) nor has advised by the O.Ps to make the case bike available at the service centre of Suraj Bajaj at Cuttack for inspection. The O.Ps have neither made any commitment nor assured to replace the case bike with a new one. It is also argued by O.Ps that the 1st free service was to be availed by the complainant within 30 to 40 days from the date of purchase of the bike or within 500 to 750 KM running as stipulated in the warranty conditions but the complainant violating the above warranty condition after 62 days from the date of purchase. In addition to above submission O.Ps have also raised that at the time of availing free service on 20.05.2015 the complainant should have mentioned the defects as alleged/mentioned in the complaint which makes the entire picture clear that the complainant has taken false plea in this dispute and has plotted a false story which after through and does not bear any truth.
Perused the materials on record. The job card furnished by the O.Ps reveals that the complainant has availed 1st free servicing on 20.05.2015, i.e. after twenty days of the scheduled time as per warranty conditions mentioned in the user’s manual. Simultaneously it is also mentioned in the warranty conditions that the 1st servicing shall be taken up within 500 to 750 KM running. In the present case the complainant has availed 1st servicing when the bike had covered running of 540 KM. It also observed that no where it is mentioned that the 1st free service shall be availed within 30 to 40 days or 500 to 750 KMs whichever is earlier. Hence the plea taken by the O.Ps does not hold good. It is also a fact that the complainant has not, at the time of availing 1st free service, raised the problem what is mentioned in the complaint. Complainant has alleged to have noticed the defects, as discussed in foregoing paragraphs, after 3 days from the date of purchase but did not mention those problems in the job card, issued by OP No. 1 and acknowledged by complainant, gives rise to the doubt that the complainant has made false allegation against the O.Ps. But the job card issued by OP No. 1 on dt. 24.07.2015 at the time of 2nd free service contains those defects what are discussed in the original pleadings. Hence, may be of late, the complainant has raised the problems within 4 months from the date of purchase which is coming within the warranty period. In view of the above discussions both the complainant and O.Ps have much or less taken false plea and the intensity of mistake/negligence of O.Ps weighs more comparatively to that of the complainant.
2. In course of hearing complainant proposed to refer the case bike to a technically qualified personal for inspection of the bike for thorough inspection and opinion. Accordingly the Forum passed an order to place the case bike with the M.V.I, Bhadrak for necessary inspection and opinion thereof. Both the parties were also directed to attend the inspection with their technical experts to offer their views and opinion at the time of inspection which has been completed on dt. 29.03.2017. This Forum has also given opportunity to both the complainant and O.Ps to comment on the findings of M.V.I Bhadrak but none of them have filed any objection/comment on the report. The said report reveals that the allegation of excess fuel consumption and abnormal hike in temperature could not be proved as the average fuel consumption rate was around 50 KMPL approximately on National Highway and the temperature of engine oil was measured as 81 degree centigrade which is within the safe lime. Apart from this the headlight illumination of the case bike was poor, performance of shock absorber seems to be hard and less bouncy, during high acceleration the engine of the case bike makes a knocking noise. From the above findings of the inspector of motor vehicles, Bhadrak, it is observed that maximum allegation of the complainant are proved to be true.
3. The complainant has raised that just after few day within the same week of purchase of the bike, multiple defects cropped up and those defects have been mentioned in the job card and free service availed on 24.07.2015 when could not be rectified the defects in 1st free service. When the defects were persisting after two services within four months it was believed by the complainant that there exists the manufacturing defects as told by the mechanics engaged in free service and the mechanics inspected the vehicle/bike at M/s Suraj Bajaj, Cuttack. In addition to that the complainant claimed replacement of the defective bike with new one with reference to the discussion of Hon’ble National C.D.R Commission in Revision Petition No. 4089 of 2012 decided on dt. 07.03.2017 and in Revision Petition No. 3798 of 2007 decided on 16.11.2017.
In challenging the pleadings of complainant, O.Ps stated that no manufacturing defect was there but whatever defects have been cropped up as raised by the complainant at later stage should not be counted as manufacturing defects. It is further submitted that the opinion obtained from inspector of motor vehicles in the office of RTO Bhadrak is not fair and correct. Hence the opinion of MVI does not have any value to be counted as a valid document relying on which decision can be taken. In addition to that the O.Ps have also cited the decision of Hon’ble National Commission in first appeal No. 75 of 1994 wherein it is held that “The manufacturer cannot be ordered to replace the vehicle or refund its price money because some defects appears which can be rectified or defective parts can be replaced”. In another appeal petition of vide No. 209 of 1991 decided on 23.09.1992, the Hon’ble National Commission has held that “in a complaint when it is alleged that the article in question suffers from manufacturing defect, it is necessary to send the said article for laboratory examination”.
In contradicting the above decisions, the complainant has cited two decisions of Hon’ble National Commission in Revision petition No. 3789 of 2007 decided on 16.11.2017 wherein it is held that. “It is duty of the opposite parties to take steps to remove defects and provide vehicle to the complainant in a Road-Worthy condition” and in another revision petition No. 4089 of 2012 decided on 07.03.2017, the Hon’ble National Commission has held that “Manufacturing defects must be proved by expert opinion.”
On perusal of materials on record it is observed that the complainant has raised the defects in both the free servicing but OP No. 1 has not mentioned the same in the job card of 1st free servicing deliberately with an intention to avoid replacement of bike or defective parts but in second free service, OP No. 1 was bound to mention the defects in job card when complainant became rigid. The inspection report of the MVI, Bhadrak reveals that the defects which were noticed in 2nd free service and rectified, as claimed by O.Ps, are still persisting as on 29.03.2017 which is after two years of purchase. As the defects were detected within a quarter from the date of purchase which falls within 2 years warranty period, the O.Ps are liable to replace the defective parts and provide vehicle to complainant in a “Road-Worthy” condition.
4. As regards deficiency of service, the complainant has, time and again, met OP No. 1 for either rectification of defects or replacement of the defective bike with new one and has also intimated OP No. 2 repeatedly for quick redressal of the grievances but none of them responded to his claim just after their 1st inspection even they did not feel it wise to respond the complainants notice issued through his advocate which amounts to deficiency of service and unfair trade practice. On the other hand O.Ps objected that there was not a single instance of negligence in providing service to the complainant. The complainant has taken false plea as to he has visited the O.Ps with the bike time and again and has not adduced any evidence in support of his pleadings for which the complaint filed by the complainant is liable to be dismissed.
On perusal of materials on record, it is found that the complainant has not adduced any evidence in support of his allegation to the effect that the O.Ps taken up inspection of the case bike at Bhadrak and Cuttack and manufacturing defects exists in the case bike. In absence of any material evidence this Forum held the complainant is lying. But it is a fact that there were some defects existing in the bike which were mentioned in the job card of 2nd free service and at the later stage confirmed by the inspector of motor vehicles, Bhadrak in his report dt. 29.03.2017. Hence the O.Ps were found negligent in not responding the complainant in spite of advocates notice and have grossly failed to rectify the defects.
In view of the above facts and circumstances and taking the materials on record into consideration it is held that both the O.Ps are much or less responsible for such dispute. Hence it is ordered;
ORDER
In the result, the complaint be and the same is allowed in part on contest. O.Ps are directed to rectify the defects existing in the bike in replacing the defective parts as specified in the report of MVI, Bhadrak together with cost of litigation of Rs 5,000/- within 30 days from the date of receipt of this order.
This order is pronounced in the open Forum on this day of 30th June, 2018 under my hand and seal of the Forum.
