Consumer Complaint No. : PDF/156/2008
Date of filing : 22/July/2008
Date of decision : 13/March/2009


1. Smt. Sangeeta Girish Tambe, )
Lokpriya Nagari, 3rd Floor, )
Bldg. C/15, Vishrantwadi, )
Dhanori Road, Pune – 411 015. )… COMPLAINANT

: Versus :

1. M/s. Ashwini Wheels, )
Authorised Sales & Service Dealers, )
‘Kinetic’, Karan Prestige, 2034, Tilak Road,
Opp. Janata Sahakari Bank Ltd., )
Pune – 411 030. )
)
2. Mr. Ravi Shetty, Assistant Manager, )
(Sales), Incharge of Sales :- )
M/s. Kinetic Eng.Co.Ltd., )
Showroom of M/s. Ashwini Wheels )… OPPOSITE PARTIES

*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*
Per : Mr. Gaikwad, President Place : PUNE

// JUDGMENT //


This is a complaint, alleging deficiency in service on the part of the Opposite Parties. The facts lie in a very narrow compass.

[2] The Complainant had purchased Kinetic ZX-Zoom/NOVA-135/ZING/BLAZE on 30/1/2007 for an amount of Rs.56,833/-. She had borrowed a loan from her Banker-Bank Of Baroda. She had paid an amount of Rs.55,000/- by Demand Draft dtd. 29/01/2007. The remaining price was paid in cash. The vehicle in question was delivered to the Complainant on 31/01/2007.

[3] It is the allegation of the Complainant that the Opposite Party No.2 had represented the Complainant that the Company is running its show-room in the name and style of the Opposite Party No.1. As such, at the instance or behest of the Opposite Party No.2, the Demand Draft was paid in the name of CWRYSALIS FINANCIAL SERVICES PVT.LTD.. According to the Complainant, the delivery of the vehicle was received by her at about 7.45 p.m. on 30/01/2007.

[4] The allegations leveled against the Opposite Parties are to the following effect.

1.Immediately after taking the delivery of the vehicle, the Complainant had realized that the handle of the bike was not working properly.

2.Oil was spilling out from the down side. The vehicle in question was sent to the Opposite Party No.2. After carrying out the necessary repairs, the Complainant was given the custody of the vehicle. The Opposite Party No.2 had sent its mechanic at the residence of the Complainant.

3.The third grievance is about the rear shokobser. The same was found torn. Oil was spilling out from it. Despite this, the Complainant drown the same vehicle for two to three hours. She found that there were mechanical problems in the bike which had not been sorted out by the Opposite Parties. She gave the vehicle to the show-room for carrying out the repairs. The Engineer from the head-office was called. He had examined the bike. He had pointed out that the bile was ‘faulty’ in ‘front assembly’. After about eight days, after driving the bike for about 20 to 30 kilometers, the Complainant found that there was petrol leakage. Her request for replacing the bile was rejected by the Opposite Party. She went to the Company and had contacted one engineer, by name, Mr. Desai. It is her allegation that in the presence of the Complainant, the said Mr. Desai had informed the Opposite Party No.2 that the workshop of the Opposite Party No.1 is not proper. The necessary tools are also not available in the workshop. The vehicle in question is there in the custody of the Opposite Party since that day till today.

[5] The Complainant therefore prays that she be paid the cost of the vehicle or she be given replacement of new vehicle in place of the old one. She has also prayed that a compensation of Rs.20,000/- be awarded to her.

[6] The Opposite Parties have appeared and they have filed their common written version on the record. The Opposite Party No.2 specifically pleads that the Manufacturer of Kinetic Blaze Scooter is Kinetic Motor Company Limited and not M/s. Kinetic Engineering Co.Ltd.. That Kinetic Motor Company Ltd. is not impleaded as the Opposite Party. The complaint is therefore bad for non-joinder of necessary party. The rest of the factual aspects have been disputed by the Opposite Party No.2. It is pleaded that the Opposite Party No.2 has Quality Control Checking Unit in its Company. Obviously, after having satisfied that the bike in question is road-worthy, a certificate to that effect is issued by the Quality Control. The vehicle was purchased on 31/1/2007. It was within a period of warranty for about one year from the date of purchase. The routine check-up was carried out on 03/03/2007. All the problems that were alleged by the Complainant had been sorted out. The vehicle in question is ready in all respects. The Complainant was contacted and was requested to take the custody of the vehicle after 03/03/2007. There was no co-operation on the part of the Complainant. She had refused to take the bike. It is under such circumstances, bike in question is in the custody of the Opposite Party No.2. It is therefore prayed that the contentions of the Complainant that the vehicle has any mechanical/manufacuturing defect is denied in toto. It is therefore prayed the complaint be dismissed with cost.

[7] We have heard both the Learned Advocates, who have appeared on behalf of the parties. The main contention of the Complainant is that the vehicle in question has certain manufacturing defect. In order to understand the case of the Complainant, we have succinctly refered to the allegations made by the Complainant. Now all these allegations regarding spilling of the oil or petrol, the handle of the bike being tight and all other things appear to be very superficial in nature. If there was any problem in the rear shokobser that could have been done away with by giving the custody of the vehicle to the showroom. If all these efforts which are made by the Complainant are appreciated, it will not detain us to come to the conclusion that all of them collectively are superficial in nature. One cannot on the basis of these allegations come to the conclusion that there is any inherent manufacturing defect to the vehicle.

[8] It is in that background these allegations were required to be supported by examining some or other expert in this regard. The application was already filed by the Opposite Party praying that the vehicle be sent to an authorized examiner namely, to the A.R.A.I. and the report from it be obtained. For the reasons best known to the Complainant, this recourse was not taken by the Complainant. We do not mean to say that evidence of an expert is sine-quanon or is a condition precedent before coming to the conclusion that the vehicle has any such manufacturing defect. What we could gather is that even if all these allegations are collectively appreciated, they appear to be superficial in nature. By giving the vehicle for carrying out the necessary repairs, the defects, if any, could be rectified by the Opposite Party. That seems to have happened precisely in this case. The vehicle was repaired during the first check up by end of 3/3/2007. The Complainant was requested to collect the vehicle from the showroom. She had declined to accept the vehicle for the reasons best known to her. The facts however remain that in the absence of any such inherent manufacturing defect, one cannot ipso-facto come to the conclusion that the vehicle has any such defect. The Complainant was expected to discharge the initial burden. The same could have been discharged by prepondence of probability. In the absence of any other evidence, excepting the interested testimony of the Complainant, having regard to the nature of the defects pointed out by her in the complaint, we are inclined to hold that the vehicle in question prima-facie does not suffer from any inherent mechanical defect.

[9] During the course of the arguments, on behalf of the Complainant, the reliance is placed on the case reported in AIR-2008 (NOC) 2260 (NCC) in the matter of Nachiket P. Shirgaonkar V/s. M/s. Pandit Automotive Ltd., Pune & Anr.. We have gone through the head note of that reported case. It is observed by the Hon’ble National Commission that the principle of res ipsa loquitor can be raised in favour of the Complainant. In a given case, having regard to the facts and attended circumstances, one can certainly take in aid the aforesaid maxim. In the present case, however, the allegations made by the Complainant are specific. They are prima-facie superficial in nature, defect, if any, can be rectified by carrying out the repairs. The aforesaid maxim therefore cannot be taken in the assistance by the Complainant. In addition to that the Learned Advocate for the Complainant was requested to file on the record the detail judgment delivered by the Hon’ble National Commission in that Revision Petition No. 3519 of 2006 decided on 25/2/2008. The same is not made available to us.

[10] In the result, therefore we are inclined to hold that in the absence of any inherent manufacturing defect, it is not possible to accept the contentions raised by the Complainant. The complaint is therefore deserves to be dismissed. The same is accordingly dismissed. The Opposite Party is further directed to entrust the vehicle in question in the custody of the Complainant by end of this month.

Hence the following order :-

// ORDER //

The complaint is dismissed.
No order as to costs.