DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 19th day of January 2024
Filed on: 02/11/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C. No. 410/2019
COMPLAINANT
Nidhin Alexander K, Kadhaliyil House, Sundaragiri Road, Kalamassery-683 104
Opposite Party
Managing Director, JBK Motors, Pulinchodu Junction, Aluva.
(Adv. George Cherian Karipparambil, Karipparambil Associates, H.B. 48, Panampilly Nagar, Kochi 682 036)
F I N A L O R D E R
D.B. Binu, President.
A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 12 (1) of the Consumer Protection Act, 1986. The complainant gave his Bajaj Pulsar 200 (registration KL 42 A 8108) for service to the opposite party on 24.05.2019 due to battery draining and starting issues. The service center identified engine issues, took two weeks for repair, and returned the bike on 10.06.2019, assuring all issues were resolved. However, the complainant faced brake issues and subsequent starting troubles. The bike stopped functioning on 18.06.2019. Two mechanics addressed a fuse issue, but problems persisted. The bike was again serviced on 15.10.2019, with additional costs for part replacements. After discussions with the general manager, all service was done free of cost, and a new battery was provided. However, the bike stopped functioning again on 23.10.2019. The complainant seeks a full refund and Rs. 6 Lakhs in compensation.
2) Notice
The Commission sent notice to the opposite party, which was acknowledged by them, and the opposite party filed their version.
3) THE VERSIONS OF THE 1ST, 2ND, AND 3RD OPPOSITE PARTY
The opposite party asserts that the consumer complaint is not maintainable either legally or factually, claiming they are neither the manufacturer nor the dealer of the Bajaj Pulsar 200 bike, and the complainant is not its owner. They also state that the complainant has never brought the bike to their service center and there are issues with the joinder of parties in the complaint. They claim the bike, a 2007 model, was extensively used and poorly maintained, with service mainly at unauthorized workshops. The bike was allegedly first entrusted to them on 10.06.2019, showing significant engine wear and a high odometer reading. The opposite party denies the complainant's version of events regarding the bike's service history and issues. They provide details of the service provided on the bike, including engine work, and claim all charges were paid by Mr. Sarath. The opposite party also denies the complainant's allegations regarding the battery and fuse issues, stating these allegations are false and unsupported by evidence. The opposite party asserts there was no negligence, deficiency in service, or unfair trade practice on their part, and hence the complainant's claim for refund and compensation is not valid. They argue that the reliefs sought are exaggerated and baseless. The opposite party suggests that the complaint lacks bona fides, is experimental in nature, and constitutes an abuse of the court's process. They propose that the complaint should be dismissed with compensatory costs awarded to them under Section 26 of the Consumer Protection Act, 1986.
4) Evidence
The complainant did not file a proof affidavit, but he submitted four documents along with the consumer complaint, which were marked as Exhibits A-1 to A-4.
Exhibit A-1: Tax Invoice {Spare Parts} (Series)
Exhibit A-2: Tax Invoice {Labour}(Series)
Exhibit A-3: Tax Invoice
Exhibit A-4: Tax Invoice {Spare Parts} (Series)
The opposite party filed a proof affidavit and one document. The complainant did not cross-examine the opposite party.
5) The main points to be analyzed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant.
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
In this case, the complainant filed a complaint under Section 12(1) of the Consumer Protection Act, 1986, seeking a full refund and compensation of Rs. 6 lakhs from the opposite party. The complainant alleged issues with his Bajaj Pulsar 200 bike after it was serviced by the opposite party.
We have also heard from Adv.George Cherian Karippaparambil, the learned counsel representing the opposite party. His argument is summarized as follows:
- The complainant handed over his two-wheeler, a Pulsar 200 (KL 42 A 8108), for servicing to the opposite party on 24.05.2019 due to issues with battery draining and difficulty in starting.
- The service advisor from the opposite party indicated engine-related problems and took two weeks to repair the battery and engine. The bike was returned on 10.06.2019 with assurances that all issues were resolved.
- However, the complainant experienced problems with the brakes while driving home. On 18.06.2019, the bike stopped working altogether.
- After reporting these issues, two mechanics visited the complainant's home, attributing the problem to a fuse, and fixed it.
- Despite this, the bike again faced starting issues. The opposite party took the bike back for repairs on 15.10.2019. The complainant was informed about the need to replace the MC kit and another part for additional costs. However, the complainant demanded to stop all work.
- The complainant then contacted the general manager of the opposite party, after which they completed the work at no cost and provided a new battery. Yet, on 23.10.2019, the bike stopped functioning again.
The opposite party's response is as follows:
- They contend that they are neither the manufacturer nor the dealer of the Bajaj Pulsar 200 bike in question and that the complainant is not the owner of the bike.
- They claim the complainant never brought this bike to their service center and the bike, a 2007 model, had extensive usage, presumed to have covered at least 1.5 lakh kilometers.
- The opposite party argues the complaint lacks legal standing, as the complainant is not a consumer, and no consideration was received from them. They question the maintainability of the complaint.
- The bike was first brought to them on 10.06.2019 for various service requirements. They detailed the services provided and the charges paid by Mr. Sarath. They deny allegations regarding battery and fuse issues as false.
- They request the dismissal of the complaint, citing absence of the complainant in proceedings, lack of proof, and the non-joinder of necessary parties.
The Commission is considering issues regarding the maintainability of the complaint, negligence or deficiency of service by the opposite party, whether the two-wheeler is defective, and related reliefs and costs. The opposite party's arguments, supported by Exhibit B1, suggest no negligence or deficiency in service. They also argue that there is no evidence of any manufacturing defect in the bike. The case thus leans towards dismissal, with possible costs awarded to the opposite party.
Throughout the majority of the proceedings, the complainant was not present. The complainant did not submit any proof affidavit. On 29.06.2022, the Commission observed that the complainant was absent, lacked legal representation, and had not submitted a proof affidavit. Despite being given several chances, the complainant consistently neglected to provide a proof affidavit. Consequently, the Commission marked the four documents submitted with the consumer complaint as Exhibits A1 to A4. In contrast, the opposite party submitted a proof affidavit and an additional document. Additionally, the complainant did not cross-examine the opposite party.
The Commission issued notice to the complainant on 16-12-21 for appearance and to file a proof affidavit. However, the complainant has not appeared and has not submitted a proof affidavit so far.
In the catena of decisions, it has been established that the burden of proof lies with the complainant to demonstrate negligence or deficiency in service by presenting evidence before the commission. Mere allegations of negligence are insufficient to support the complainant's case. Consequently, the complainant has failed to prove any deficiency in service or negligence on the part of the opposite parties.
In the case of SGS India Ltd Vs. Dolphin International Ltd 2021 AIR SC 4849 held that:
“19. The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service. In a Judgement of this Court reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. 4 , this court held that the burden of proving the deficiency in service is upon the person who alleges it. “
- Deficiency in Service: The complainant alleged various issues with his bike following the service provided by the opposite party, including battery and starting problems. However, the opposite party has submitted a detailed account of the services performed and the charges paid by Mr. Sarath. They also denied allegations regarding battery and fuse issues as false. The burden of proving deficiency in service lies with the complainant, and they have failed to provide sufficient evidence to establish such deficiency.
- Negligence and Manufacturing Defect: The complainant did not provide any concrete evidence to prove negligence on the part of the opposite party or any manufacturing defect in the bike. The opposite party, on the other hand, provided a detailed account of the services performed on the bike and denied any negligence or deficiency in service. In the absence of substantial evidence to the contrary, it cannot be concluded that there was negligence or a manufacturing defect.
- Absence of the Complainant: Throughout the majority of the proceedings, the complainant was not present and did not cross-examine the opposite party. The Commission issued notice for the complainant's appearance and submission of a proof affidavit, but the complainant failed to comply. This further weakens the complainant's case and credibility.
In light of the above analysis and the legal principles outlined, the complainant has failed to prove any deficiency in service, negligence, or manufacturing defect on the part of the opposite party. The burden of proof squarely rested on the complainant, and their failure to provide substantial evidence or attend the proceedings has weakened their case.
After careful consideration, the case presented by the complainant is considered without merit. As a result, the following orders have been issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. These issues (i to iv) are found unfavourable to the complainant. Consequently, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this 19th day of January 2024
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded by Order
Assistant Registrar
APPENDIX
Complainant’s evidence
Exhibit A-1: Tax Invoice {Spare Parts} (Series)
Exhibit A-2: Tax Invoice {Labour}(Series)
Exhibit A-3: Tax Invoice
Exhibit A-4: Tax Invoice {Spare Parts} (Series)
Opposite party’s evidence – Documents are not marked as exhibits
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