IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Saturday the 25thday of March, 2023.
Filed on 11.03.2022
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt.C.K.Lekhamma, B.A.L, LLB (Member)
CC/No.50/2022
between
Complainant:- Opposite parties:-
Sri. Tejas.S 1. Bharat Yamaha
S/o Saji.J V.342. A, Bharath Building
Edappana, Muttar Perumthuruthy, Ezhinjillam.P.O
Kuttanad, Alappuzha-689574 Thiruvalla-689107
(Adv.Girish Kumar &
Murali Krishna)
2. The manager
Bharath Yamaha, V.342 A,
Bharath Building, Perumthuruthy
Ezhinjillam.P.O,
Thiruvalla-689107
(Adv. M.G.Reshu for Ops 1 &2)
3. India Yamaha Motor Pvt. Ltd
A-3, Industrial Area, Noida-
Dadri Road, Surajpur 201306
Dist. Goutham Budh Nagar
Uttar Pradesh
(Adv. Azad Babu & Ancy Antony))
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.35 of the Consumer Protection Act, 2019.
1. Material averments briefly stated are as follows:-
On 9/7/2021 complainant purchased a Yamaha Motor cycle from the 1st opposite party for Rs.1,46,700/-. The vehicle was registered as KL.66-C-5960. 2nd opposite party is the manager of 1st opposite party and the 3rd opposite party is the manufacturer. From the very beginning of the use of the motor cycle complainant was disappointed with the performance. The 1st service was on 17/8/2021 after completion of 570 kms. Thereafter after completing 2788 kms the vehicle was entrusted for the 2nd service on 11/11/2021. On 13/11/2021 complainant visited the opposite party to collect back the motor cycle after 2nd service. Complainant while riding the vehicle and reached near Changanassery it began to show poor performance and service defect. The vehicle moved without applying acceleration and complainant was unable to ride it. While the motor cycle is in neutral stage heavy sound occurred while changing the gear the matter was informed to the 1st opposite party and they directed to produce the vehicle at their showroom. However since senior technician was not available, he was sent back.
2. Thereafter on 23/11/2021 complainant came to the showroom and the vehicle was kept there as per the direction of the opposite parties. After one week when the complainant reached the opposite party to collect back the vehicle they informed that the sensor of the vehicle has sustained serious damage and spare parts is not available. They required 15 days time for repairing the vehicle. After 20 days when complainant reached the showroom 2nd opposite party informed that one sensor is repaired and another sensor is also necessary for repairing the vehicle and it was assured that the vehicle will be delivered soon after service. Though complainant approached the 1st opposite party several times the vehicle was not delivered. Complainant came to know that there is certain engine problem to the vehicle “throttle body and sensor complaint”.
3. Opposite parties are not returning the vehicle after service in time. This amounts to deficiency in service and negligence . Complainant had suffered damage due to the deficiency of service and he is entitled for compensation. Hence the complaint is filed for giving a direction to the opposite parties to replace the vehicle with a new one or to pay 1,46,700/- and to pay an amount of Rs. 1 lakh as compensation.
4. Opposite parties 1 and 2 filed a version mainly contenting as follows:-
Complaint is filed suppressing material facts. The complaint is bad for non joinder of necessary parties since manufacturer is not made a party. The averment that complainant was disappointed with the performance of the motor cycle from the very beginning etc are false. Complainant got the vehicle well conditioned with perfect performance from the showroom and he satisfactorily used the same after the periodical free services. The averments that the motor cycle showed poor performance after the 2nd service while applying acceleration and was unable to ride etc. are false. The allegation that there was sound at the time of shifting gear is also false.
5. When the complainant brought the motor cycle for the 2nd free maintenance and service it was rendered with utmost care and caution to the best satisfaction. Accordingly the complainant took back the motor cycle with the best performance and never raised any complaint for days together. After many days of 2nd service of about two weeks later complainant approached the service centre of the opposite parties and complained of some unwanted sound on acceleration of the vehicle. The service supervisor after inspecting the motor cycle noted a damage occurred in the screw fitted in the throttle body. The technician ascertained the damage that the screw was seen broken and got rusted due to the careless handling of the same by the complainant. The factum of damage to the said screw due to some unwanted and inexperienced repairing on the part of the complainant was detected and the same was informed to the complainant then and there. Complainant admitted that he got the motor cycle repaired by a mechanic in a repairing centre nearby his residence. Complainant himself took the risk of the damage occurred in the throttle body of the motor cycle by repairing in the local workshop. It was informed that the said unit is a very important part to be replaced and since the year ending process is going on it will take a few days to arrange the same from the manufacturer. Opposite party immediately made arrangement by placing order for a new throttle body unit and accordingly replaced the same with a new one. After the maintenance, the vehicle was subjected to test driving and it was found functioning properly. Thus the vehicle was made available for re-delivery at the service centre. The matter was explained to the complainant. Opposite parties informed to the complainant of the maintenance cost and the labour charge. The complainant declined to take back the vehicle after proper maintenance and service. Thereafter this complaint is filed with ulterior motives. There is no deficiency in service or unfair trade practice on the part of these opposite parties and hence the complaint may be dismissed with cost.
6. Additional 3rd opposite party filed a version mainly contenting as follows:-
The complaint is false, frivolous , baseless and vexatious. It is filed suppressing material facts. As per the records complainant purchased the vehicle on 9/7/2021 from 1st opposite party. It was delivered to the complainant after completing the process of pre-delivery inspection to the entire satisfaction of the complainant. This opposite party has no direct dealing with the complainant and it is sold through dealers. This opposite party has provided a warranty for a period of two years or 30000kms whichever is earlier from the date of sale to the original purchaser only. It is available only for any manufacturing defect of certain parts.
7. Complainant had approached the 1st opposite party on 17/8/2021 and on 13/11/2021 for availing 1st and 2nd free service. Service engineers of the 1st opposite party duly performed general service on the motor cycle and called upon the complainant to take the delivery of the motor cycle who being completely satisfied with the performance of the motor cycle and services took delivery on 17/8/2021 and 13/11/2021 respectively. On 23/11/2021 complainant approached 1st opposite party raising issue in the acceleration of the motor cycle. The issue was recorded by the job card dtd. 23/11/2021 and the motor cycle was duly inspected. It was noticed that the idling adjusting screw of the motor cycle was damaged. It was informed to the complainant that the damage caused was not because of any manufacturing defect and so it is not covered under warranty. After repairing complainant refused to accept delivery of the motor cycle to avoid payment of the cost of repairs instead a legal notice was issued. Thereafter this complaint was filed.
8. Had there being any manufacturing defect in the acceleration / throttle body of the motor cycle the motor cycle could not have run for 2788kms and more than 4 months. Hence it is crystal clear that there is no manufacturing defect. The complaints of the complainant were duly and promptly attended every time by the opposite party. Since there is no deficiency of service the complaint may be dismissed with cost.
9. On the above pleadings following points were raised for consideration:-
1. Whether there is any deficiency of service from the part of opposite parties as alleged?
2. Whether the complainant is entitled to get an order to exchange the vehicle or in the alternative entitled to realize an amount of Rs. 1,46,700/- from the opposite parties as prayed for?
3. Whether the complainant is entitle to realize an amount of Rs. 1 lakh as compensation from the opposite parties?
4. Reliefs and cost.?
10. Evidence in this case consists of the oral evidence of PW1 and 2 and Ext.A1 to A4 from the side of the complainant and the oral evidence of RW1 and Ext.B1 to B3 from the side of the opposite parties. Ext.C1 Commission report was also marked.
11. Point No. 1 to 3
PW1 is the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A4.
12. PW2 is working as AMVI at Cherthala. On 27/12/2022 he inspected the vehicle no.KL.66-C -5960 and prepared a report it is marked as Ext.C1. It was inspected at the show room of 1st opposite party. The vehicle had run 3046 kms. Engine repair and replacing of sensors were not done at the time of inspection. The throttle body was found replaced. 1st and 2nd services were done at the authorized service centre. On examination it was found that the vehicle had manufacturing defect.
13. RW1 is the service manager of 1st opposite party. He filed an affidavit in tune with the version and marked Ext.B1 to B6.
As per Ext.A2 invoice dtd . 9/7/2021 PW1, the complainant purchased a Yamaha Motor cycle for Rs. 1,46,700/-. The vehicle had a warranty for a period of two year or 30,000kms whichever is earlier. Additional 3rd opposite party is the manufacturer, 1st opposite party is the authorized dealer and the 2nd opposite party is the manager of 1st opposite party. The vehicle had its 1st free service on 17/8/2021 at the 1st opposite party which was uneventful. On 13/11/2021, it was produced before the 1st opposite party for its 2nd service. According to PW1 when he was riding the vehicle after the 2nd service done on 13/11/2021, it started showing poor performance due to service defect. It was stuck at Changanassery town and could not move due to nonfunctioning of the vehicle. When it was started it moved without acceleration and he was unable to ride the same. When contacted the 1st opposite party it was informed that the technician is not available. On 23/11/2021 the vehicle was produced before the 1st opposite party and thereafter though several email communications were done the vehicle was not returned and it is still lying with 1st opposite party. Hence the complaint is filed on a contention that the vehicle supplied to PW1 had manufacturing defect and there was deficiency of service from the part of opposite parties. Complaint is filed for giving a direction to the opposite parties to replace the vehicle with a brand new one or in the alternative to pay the bill amount of Rs. 1,46,700/-. Complainant is also seeking an amount of Rs. 1 lakh as compensation. Opposite parties 1 and 2 filed a version admitting the sale for Rs. 1,46,700/-. According to them the vehicle had no defect. PW1 was satisfactorily using the same. After the 2nd service when the vehicle was produced it was noticed that there was some problem with throttle body. Since it was to be obtained from the manufacturer some delay occurred. It is alleged that the problem of throttle body occurred since complainant produced the vehicle before unauthorized workshop. The vehicle is kept ready at their workshop. However since they demanded maintenance cost and labour charges, PW1 left without taking delivery and thereafter this complaint is filed with false allegations. 3rd opposite party filed a version admitting the sale and contenting that the vehicle had no manufacturing defect. They reiterated the contentions in the version filed by the opposite parties 1 and 2 after getting feedback from 1st opposite party. Complainant got examined as Pw1 and marked Ext. A1 to A4. As per the request of the complainant an AMVI was appointed to inspect the vehicle. He inspected the vehicle on 27/12/2022 and prepared a report. AMVI was examined as PW2 and the report is marked as Ext.C1. From the side of opposite parties 1 and 2 the service manager of 1st opposite party was examined as RW1 and Ext.B1 to B3 were marked. Relying upon the oral evidence of PW1 coupled with documents marked the learned counsel appearing for the complainant pointed out that the complaint is proved as per law and so complainant is entitled to get the reliefs sought in the complaint. Per contra the learned counsel appearing for opposite parties 1 and 2 contended that the throttle body problem occurred due to the rash handling of the vehicle and service done in unauthorized workshop. A screw was found rusty which indicates that the vehicle was handled by technicians of outside agency. The delay of changing the spare parts occurred due to non availability of the same and they had to obtain the same from the manufacturer. It was contended that the vehicle was kept ready and when it was informed to the complainant he was reluctant to pay the maintenance charges and the cost of spare parts. Hence according to them there was no deficiency of service from their part and so the complaint is only to be dismissed. Additional 3rd opposite party who is the manufacturer though filed a version running into several pages did not participate the trial either by cross examining witnesses from the side of the complainant or adducing any evidence. As held by the Hon’ble Supreme Court in AIR 1999 SC 1441(Vidhyadhar Vs Manikrao)
“WHERE a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”
14. The fact that PW1 purchased the vehicle on 9/7/2021 by paying an amount of Rs. 1,46,700/- is admitted and it is also proved by Ext.A2 invoice. It is also admitted by the additional 3rd opposite party in their version that the vehicle is having a warranty of 2 years or 30,000 kms whichever is earlier. The 1st service done on 17/8/2021 was uneventful and the problem started after the 2nd service which was done on 13/11/2021. According to PW1 after the 2nd service he collected the vehicle and while he was riding the same through main central road towards Changanassery he was unable to ride the same properly. It was getting stuck and when the vehicle was started it moved without acceleration. Though he informed the matter immediately at the 1st opposite party it was informed that the technician is not available and so he produced the vehicle before the 1st opposite party on 23/11/2021. Though it was asked to PW1 that the throttle body unit became damaged due to rash driving and production before a unauthorized workshop it was denied by him. On 23/11/2021 when the vehicle was produced before the 1st opposite party it was noticed that the throttle body unit screw is damaged and broken.
15. RW1 is the service manager of 1st opposite party. He filed an affidavit and got examined as RW1 and marked Ext.B1 to B3. Ext.B1 was produced as a service history of 17/8/2021. But it is noticed that it was the service history dtd. 23/11/2021. which was marked as Ext. B3. It is noticed that Ext.B 1 and B3 are one and the same and Ext.B2 is the service history of 13/11/2021. From Ext.B1 and B2 it is noticed that there was defect in the throttle body and it was replaced. It is alleged by opposite parties 1 and 2 that after changing throttle body they demanded maintenance charge and cost of spare parts and PW1 declined to pay the same and left without collecting the vehicle and thereafter filed the complaint. However RW1 is silent about the labour charges and cost of spare parts and the so called bill is also not produced to prove the same. It is true that during cross examination PW1 admitted that 1st opposite party had informed him about the labour charge and it was not paid. It is to be remembered that the vehicle had a warranty of two years or 30000 kms whichever is earlier and it is admitted in the version of additional 3rd opposite party. The vehicle was purchased on 9/7/2021 and the problem occurred on 23/11/2021 which is within the warranty period. From Ext.B1 job card it is seen that the odometer reading was 2851. So it is pellucid that the vehicle was given for repairs on 23/11/2021 within the warranty period and it is not known why PW1 has to pay for the spare parts when the warranty coverage is not over.
16. As per the request of complainant PW2 AMVI was deputed to inspect the vehicle. Accordingly on 27/12/2022 he inspected the vehicle at the promises of 1st opposite party and prepared Ext.C1 report. At the time of inspection the odometer reading was 3046 kms. At the time of inspection the throttle body unit was found replaced. Engine repair was not done and the sensors were not replaced. PW2 stated that the repairs were done within the warranty period. There was no rusting occurred to a screw near the engine which was the main allegation of 1st opposite party. PW2 stated that the vehicle had manufacturing defect. In Ext.C1 report it is stated that “It can be assessed that the vehicle delivered to the customer has manufacturing defects. Even now the showroom/dealership haven’t rectified the issue even after the replacement of throttle body unit, test drive of 195 kms. I assume that the service done by the dealership is poor.” It is noticed that though such a report was filed none of the opposite parties had cross examined the witness. So the evidence of PW2 stands unchallenged. From the oral evidence of PW2 coupled with Ext.C1 report it is crystal clear that the vehicle had manufacturing defect and though it was entrusted at the 1st opposite party on 23/11/2021 the defect was not rectified. Though 1st opposite party contended that they had changed the throttle body and the vehicle is lying idle since PW1 was not ready to pay the maintenance cost and amount of spare part. Evidence on record shows that the work was done within the warranty period. So it is not known why PW1 has to pay for the same. Ext.A3 and A4 shows that several email correspondence were done between additional 3rd opposite party and the complainant. It is to be remembered that PW1 purchased the vehicle on 9/7/2021 by spending a huge amount of Rs. 1, 46,700/-. If a person is buying a motor cycle by spending about Rs. 1, 46,700/- he is expecting good service from the dealer / service centre. The evidence on record shows that PW1 was unable to get proper service from the opposite parties. PW1 is seeking an order to replace the vehicle or in the alternative to return Rs. 1,46,700/- which was paid for purchasing the vehicle. Admittedly the vehicle was purchased on 9/7/2021 and the 1st service done on 17/8/2021 was uneventful. The problem started after the 2nd service which was done on 13/11/2021. So it can be seen that the vehicle had no defect for more than 4 months ie, from 9/7/2021 to 13/11/2021. In said circumstances no order can be given to replace the vehicle with a new one or to repay the cost of the same. However opposite parties can be directed to make the vehicle road worthy condition free of cost. Since the defects occurred within the warranty period.
17. Complainant is seeking an amount of Rs. 1 lakh as compensation from the opposite parties. Evidence on records shows that the vehicle was entrusted for service on 23/11/2021 and thereafter it is lying with the opposite party. Opposite party contended that some delay occurred due to the non availability of spare parts from the manufacturer and after getting the same it is kept ready for delivery. It was informed PW1 and he did not take delivery of the vehicle since there was some amount to be paid as service charges and cost of spare part. As stated earlier the amount to be paid is not mentioned in the version and bill is also not produced. The complaint is seen filed on 11/3/2022. Even now also the vehicle is lying idle with the 1st opposite party. From 23/11/2021 onwards PW1 is unable to use the vehicle. Ext.C1 report shows that after replacement of throttle body unit the vehicle had run 195 kms for test drive. PW2 has opined that the service done by the dealership is poor. . In said circumstances complainant is entitled for compensation and we are limiting the same to Rs. 25,000/-. These points are found accordingly.
18. Point No. 4:-
In the result complaint is allowed in part.
a) Opposite parties are directed to make the vehicle bearing Reg No. KL.66-C-5960 belonging to P W1 in a road worthy condition and hand over the same to him.
b) Complainant is allowed to realise an amount of Rs. 25,000/- as compensation from the opposite parties jointly and severally.
c) Complainant is allowed to realise an amount of Rs. 5000/- as cost from the opposite parties jointly and severally.
The order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 25th day of March, 2023.
Sd/- Sri.S.SanthoshKumar(President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-Evidence of the complainant:-
PW1 - Thejas. Saji (complainant)
PW2 - Anoop .S(witness)
Ext.A1 - copy of RC Book
Ext.A2 - Copy of Invoice.dtd. 9/7/2021
Ext.A3 - Copy of Letter
Ext.A4 - Copy of Reply
Ext.C1 - Commission Report
Evidence of the opposite parties:
RW1 - Rajesh.P.M(witness)
Ext.B1 - Copy of Job Card dtd. 23/11/2021
Ext.B2 - Copy of Job Card dtd.13/11/2021
Ext.B3 - Copy of Job Card dtd. 23/11/21
///True Copy ///
To
Complainant/Oppo.party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Comp.by:
