DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the   13th day of January, 2023

Present : Sri.Vinay Menon V., President

            : Smt.Vidya A., Member                       

            : Sri.Krishnankutty N.K., Member                                                

                                                                              Date of Filing: 11/11/2019

CC/261/2019

         Shajahan

         S/o Abdul Shukkur

Kambrathchalla, Muthalamada P.O.      

         Chittur Taluk, Palakkad Dist.                              -     Complainant

          (By Adv. M.R.Manikantan & Adv. Sandhya.V)

                                                           V/s

  1.     M/s Classic Motors

          No.15/156-1, Ardra Arcade

Punkunnam, Puzhakkal Road    

          Thrissue – 680 002

   2.    M/s Classic Legends

          1^st Floor, MIDC, Chindwad

          Pune, Maharashtra – 411 019                               -     Opposite parties

          (Opposite parties by Adv. Saji Mathew,

Denu Joseph & Shijo Kuriakose)

O R D E R

          By Smt. Vidya .A Member

    1.   Pleading of the complainant in brief 

      The complainant purchased a Jawa Motor Cycle from the 1^st opposite party on 24/07/2019 for a sum of Rs. 1,70,550/- and an additional amount of Rs. 30,000/- was paid for tax and insurance.  Within few days of its purchase itself the complainant noticed a humming noise from the motor cycle.  This matter was intimated to the 1^st opposite party and they assured to attend the problem at the time of 1^st service.  Believing their words, the complainant entrusted his motor cycle with the 1^st opposite party for service.  Even after service, the same problem persisted and he contacted the manufacturer through their customer support portal and they informed that they have escalated the issue with the opposite parties and it will be resolved soon.

                         The complainant has not so far received back the vehicle from the opposite parties after curing the defect.  The complainant apprehends that the vehicle is having manufacturing defect.

                         The complainant who is a business man has to travel a lot and for that purpose, he purchased the vehicle.  But he did not get the desired results and had to hire other vehicles for his travel causing further financial liability.  The inaction from the part of the opposite parties is deficiency in service and unfair trade practice.  Complainant caused the issuance of the registered Lawyer notice demanding to replace the vehicle with a new one or to refund its value together with compensation for the mental agony and hardships suffered by him.  Eventhough the opposite parties received the notice; they did not care to send reply or resolve the issue.

                         So this complaint is filed to direct the opposite parties (i) To replace the vehicle with a new one of the same brand or its value along with other expenses incurred by him, (ii) To pay a compensation of Rs. 1 lakh for mental agony suffered by complainant, for the deficiency in service and unfair trade practice on the part of the opposite parties and for loss of time and energy, (iii) Cost of the litigation and such other reliefs which the complainant prays from time to time.

2.  Complaint was admitted and notices were issued to the opposite parties.  The opposite parties entered appearance and filed their version.

3.  The 1^st opposite party contends that on getting a complaint from the complainant regarding noise emanating from the vehicle, they examined the vehicle.  On examination, they found that the vehicle is not having any issue as alleged by the complainant.  It was explained to him that whatever sound emanates is quite normal and cannot be considered as manufacturing defect.

                         The vehicle was brought to their service centre on 21/08/2019 for 1^st service and at that time the vehicle had run 937 Kms.  This issue with respect to sound was thoroughly examined by their technicians and they could not find any problem.  After service, the vehicle was accepted by the complainant upon recording satisfaction and signing the job card.  The service was completed in a day and this was intimated to the complainant; but he came only after few days and took the vehicle after having fully satisfied about the performance.

                         On 25/09/2019, the complainant again brought the vehicle alleging the same issue.  At that time the vehicle had run 1686 Kms.  On examination, they could not find any problem.

                         The vehicle is ready for delivery to the complainant and his stand that he will only accept a new replacement vehicle cannot be accepted.  Upon receipt of the legal notice, they contacted the complainant and asked to take the vehicle since it has no substantial issues.

                         There is no Deficiency in service on the part of the opposite party and the complainant is not entitled to the reliefs claimed.  The complaint has to be dismissed with their cost. 

4.  The 2^nd opposite party also raised more or less same contentions as that of the 1^st opposite party.

5.  From the pleadings of both parties, the following points arise for consideration:

1. Whether the complainant had succeeded in providing that his vehicle suffers from any manufacturing defect?
2. Whether there is any deficiency in service on the part of opposite parties?
3. Whether the complainant is entitled to the reliefs claimed?
4. Reliefs as cost and compensation.

6.   The opposite parties filed IA 25/20 for the appointment of an Expert Commissioner to inspect the vehicle and it was allowed.  An Expert Commissioner was appointed from the panel submitted by the opposite parties and later he expressed his inability to execute the work.  So another person was appointed from the panel.  But the opposite parites did not take any steps to issue notice to the Expert Commissioner even after sufficient time being given, their chance was forfeited.  Complainant filed proof affidavit and Exts. A1 to A5 (A2 in Series) were marked from his side.  The opposite party did not file proof affidavit and their evidence closed.   

        Point No: 1

7.  Complaint pleadings are to the effect that the complainant purchased a Jawa Motor Cycle from the 1^st opposite party on 24/07/2019 on payment of Rs. 1,70,550/-  Within few days of its purchase itself, he noticed a humming noise emanating from the vehicle and intimated this to the 1^st opposite party.  The 1^st opposite party assured to attend the issue during the vehicle’s first service and believing this, the complainant entrusted his vehicle with them.  But even after service, the same problem persisted.   

8.   The complainant produced the Tax Invoice issued by the 1^st opposite party dated 24/07/2019 showing the purchase of the vehicle.  Ext. A2 (Series) is the e-mail communications between the complainant and the Jawa customer care on 14/09/2019, 25/09/2019 and 12/10/2019.  The e-mail communications from the customer support states that they have escalated the issue to the relevant team.  

9. The 1^st opposite party in their version contended that the vehicle was brought to their service centre for 1^st service on 21/08/2019.  At that time the vehicle had run 937 Kms.  Their technicians examined the sound issue raised by the complainant; but could not find any defect.  The complainant took the vehicle on being completely satisfied about the performance of the vehicle.  The complainant again approached their service centre on 25/09/2019 alleging that the vehicle is having humming sound from the engine.  At that time the vehicle had run 1686 Kms and on inspection, the technicians could not find anything unusual.

10. Other than the submissions regarding manufacturing defect in the vehicle, no attempt was made from the part of the complainant to prove this.  There was no move from the part of the complainant to get the vehicle inspected by an expert to find out the defect.  It is settled position of law that the onus to prove that there was manufacturing defect is on the complainant. 

11. Even though the opposite parties filed an application to appoint an expert to inspect the vehicle and the Commissioner was appointed, they did not take any further steps. [As counter to the IA 25/20, filed by opposite parties to appoint the Commissioner, the complainant’s submission is that there is no need to inspect the vehicle by an expert and the relief sought by the complainant is to replace the vehicle with a new one of the same brand or its value.  Further they state that “Inspection of vehicle by an expert is an unnecessary exercise that too by an expert at the instance of the petitioner/opposite parties would cause prejudice to the complainant”].

12. Such a stand taken by the complainant is totally incorrect.  The relief for replacing the vehicle or refund of the amount can be allowed only in a case where manufacturing defect is proved with the support of an expert’s report.  Here the complainant has failed to prove the manufacturing defect in the vehicle.  Point No: 1 is found against the complainant.

Point No: 2

13. Regarding the question of deficiency in service on the part of the opposite parties, as per their version they completed the service of the vehicle within a day when it was brought to their service centre.  The complainant took the vehicle back at the 1^st instance on being completely satisfied with its performance and recorded satisfaction by signing the relevant portion of the job card.  When the vehicle was brought the second time on 25/09/2019 alleging the same issue; they inspected but could not find any problem.  According to them the complainant refused to take delivery of the vehicle even after their repeated requests.  He was adamant in getting the vehicle replaced by a new one.

                 Eventhough they countered the complainant’s allegations in their version, the opposite parties failed to file proof affidavit or mark any supporting documents.

14. In the absence of any evidence on the part of opposite parties, we are constrained to accept the contention of deficiency in service on the part of opposite party put forth by the complainant.  The opposite parties could have very well proceeded with the commission application to prove their contention.  Further if they stick on to their stand that the vehicle is in perfect condition, they could have very well approached this Commission for directing the complainant to take back the vehicle asking him to report its condition after using it for few months.  But they did not do anything.  So there is a deficiency in service on the part of the opposite parties in not returning the vehicle after service.

Point No: 3 & 4

15. During argument, the complainant’s counsel submitted that the vehicle is still with the opposite party.  The complainant would have definitely suffered mental agony as he could not use the newly purchased vehicle even for few months.  Further this caused financial liability in approaching the Commission for Redressal of his grievance.  The opposite parties are jointly and severally liable to compensate the complainant for that.  Since the complainant failed to prove the manufacturing defect in the vehicle, we are not inclined to allow the prayer for replacing the vehicle or for refunding its cost.

      Resultantly the complaint is allowed in part.

      We direct the 1^st opposite party

1. To conduct thorough examination of the vehicle to find out any defect.
2. Do necessary services and repairs and replace the defective parts, if any free of cost.
3. To make the vehicle in perfect working condition and issue a certificate to the complainant to that effect.

The opposite parties are jointly and severally directed to pay Rs. 25,000/- for their deficiency in service, Rs. 20,000/- as compensation for the mental agony and financial loss suffered by the complainant and Rs. 10,000/- as cost of the litigation.

The opposite parties are directed to comply with this order within 45 days from the date of receipt of the copy of this order, failing which the opposite parties shall pay to the complainant Rs.250/- per month or part thereof until the full and final settlement of this order.     

Pronounced in the open court on this the 13th day of January, 2023.

                                                                                            Sd/-

                                                                                    Vinay Menon V

                                                                               President

                                                        Sd/-

               Vidya.A

                              Member 

                                                                                             Sd/-   

                                                                                  Krishnankutty N.K.

                                                                                            Member

APPENDIX

Documents marked from the side of the complainants

Ext. A1 – GST Invoice dated 24/07/2019 issued by the 1^st opposite

               party.

Ext. A2 – E-mail communications by the complainant from 22/08/2019

               to 15/10/2019.

Ext. A3 – Service Invoice dated 31/08/2019.

Ext. A4 – Service acknowledgement receipt dated 25/09/2019.

Ext. A5 – Lawyer notice dated 23/10/2019.

Documents marked from the side of opposite parties: Nil 

         Witness examined from the complainant’s side: NIL

          Witness examined from the opposite parties side: NIL

Cost- Rs. 10,000/-    

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.