DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 27th day of November, 2023.
Filed on: 25/08/2020
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C. C. No. 237/2020
COMPLAINANT
Benny George, S/o. George, Thadickal House, Aanaviratti P.O., Kambiline, Devikulam, Idukki.
VS
OPPOSITE PARTY
The Manager, M/s Peringat Motors, Ernakulam Road, Aluva, Ernakulam.
(Rep. by Adv. George Cherian Karippaparambil, Karippaparambil Associates, HB 48, Panampilly Nagar, Kochi 682036)
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that the complainant's case revolves around their ownership of a Yamaha Saluto RX motorbike with registration number KL 68-9817. They claim that after purchasing the bike, they regularly serviced it at an authorized service center. On a specific occasion when they brought it in for an oil change, they were convinced to have some cables replaced as well. After this service, the bike developed abnormal sounds, and the service center informed them that an engine inspection would take three days. Due to issues with the engine repair work, the complainant had to spend an extra money to prevent oil leakage and the engine work, leading to their consumer complaint.
2). Notice
The Commission issued a notice to the opposite party, which was duly received by them. The opposite party submitted their version.
3). THE VERSION OF THE OPPOSITE PARTY.
The opposite party is neither the manufacturer nor the dealer of the two-wheeler sold to the complainant, making the consumer complaint against them not tenable under the Consumer Protection Act, 2019.
The manager mentioned in the complaint is just a paid employee of Peringhat Motors and has no personal liability. Furthermore, there are no allegations against the manager in the complaint, so they should be dismissed from the case.
The complainant has misused their two-wheeler by not following the manufacturer's service instructions, thereby defaulting on periodic services and rendering themselves ineligible for warranty benefits.
The complainant had brought their two-wheeler for various services at the opposite party's service center, and the necessary repairs were made. The complainant expressed satisfaction with the service on multiple occasions.
The opposite party deny the allegations of engine oil leakage and additional repairs being done at another service center, stating that all repair work at their service center was carried out by company-trained personnel. The complainant is making false claims for financial gain.
In conclusion, the opposite party submitted that there is no merit in the consumer complaint and requests its dismissal.
4) . Evidence
The complainant submitted a proof affidavit, and similarly, the opposite party also filed a proof affidavit. However, no documents were presented or marked as evidence. Additionally, the complainant did not engage in cross-examination of the opposite party's statements or evidence.
5) The main points to be analysed in this case are as follows:
i) Whether there is any deficiency in service or unfair trade practice from the side of the opposite party to the complainant?
ii) If so, whether the complainant is entitled to get any relief from the side of the opposite party?
iii) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
According to the compliant, subsequent to purchasing the motorcycle, they consistently availed of services at an authorized service center. During one particular visit for an oil change, they were persuaded to replace certain cables as well. Following this service, the motorcycle began experiencing unusual sounds. When the service center examined the issue, they indicated that an engine inspection would necessitate a three-day period. Due to complications arising from the engine repair work, the complainant incurred expenses of Rs. 2,200 to address oil leakage and Rs. 4,100 to rectify the engine work. These events form the basis of their consumer complaint.
The counsel for the opposite party submitted that they, being merely the manager and an employee of M/s Peringhat Motors, hold no personal liability and should not be included in the case, as there are no specific allegations against the manager in the consumer complaint. They cite a Supreme Court case (Yogesh Aggarwal Vs. Aneeja Consultancy and Others) IV (2021)CPJ 9(SC) to emphasize that employees are not personally liable. Additionally, they state that M/s Peringhat Motors is neither the manufacturer nor the seller of the disputed two-wheeler.
They argue that the consumer complaint is without merit and should be resolved in their favour. The complainant is criticized for omitting vital details such as the purchase date and location of the two-wheeler, and whether its warranty had expired. The opposite party also highlights the lack of both documentary and oral evidence to back the complainant's claims of defects in the two-wheeler.
The opposite party strongly denies the allegations of defects following the service of the two-wheeler, noting the complainant's failure to meet the burden of proof as mandated by the Consumer Protection Act, 2019. They further point out the complainant's inability to present expert evidence or personal testimony to establish the alleged defects.
Consequently, the opposite party argues that the issues should be decided in their favour and the complaint should be dismissed, with them being awarded the costs.
This case comes before the Commission under the Consumer Protection Act, 2019. The complainant alleges deficiencies in the service provided by the opposite party concerning their Yamaha Saluto RX motorbike.
- The complainant's case revolves around their ownership of a Yamaha Saluto RX motorbike with registration number KL 68-9817. They claim that after purchasing the bike, they regularly serviced it at an authorized service center. On a specific occasion when they brought it in for an oil change, they were convinced to have some cables replaced as well. After this service, the bike developed abnormal sounds, and the service center informed them that an engine inspection would take three days. Due to issues with the engine repair work, the complainant had to spend to prevent oil leakage and the engine work, leading to their consumer complaint.
- The opposite party, in their response, contends that they are neither the manufacturer nor the dealer of the two-wheeler sold to the complainant. They argue that the manager mentioned in the complaint is just a paid employee of Peringhat Motors and has no personal liability. Furthermore, there are no allegations against the manager in the complaint, so they should be deleted from the case. The opposite party also asserts that the complainant has misused their two-wheeler by not following the manufacturer's service instructions, rendering themselves ineligible for warranty benefits. They deny the allegations of engine oil leakage and additional repairs being done at another service center, stating that all repair work at their service center was carried out by company-trained personnel. The opposite party argues that the complainant is making false claims for financial gain.
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 party.
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. “
After a thorough examination of the arguments and evidence presented by both parties, this Commission makes the following findings:
Issue No. (i): The opposite party's specific claim is that they are solely the manager and an employee of M/s Peringhat Motors, with no personal liability. Importantly, there are no allegations against the manager in the consumer complaint. The legal precedent established by the Hon'ble Supreme Court of India in the case of Yogesh Aggarwal Vs. Aneeja Consultancy and Others, reported in IV (2021) CPJ 9 (SC), clearly establishes that an employee is not personally liable. Furthermore, M/s Peringhat Motors neither manufactures nor sells the two-wheeler in question to the complainant. From any perspective, it is evident that the consumer complaint lacks merit. Consequently, Issue No. 1 should be decided in favor of the opposite party.
Issues No. (ii) & (iii):: The complainant deliberately omitted details regarding the date and place of purchase of the two-wheeler. Additionally, the complainant failed to disclose whether the warranty had expired. There is a notable absence of both documentary and oral evidence to substantiate any defects in the complainant's two-wheeler. The complaint alleges defects in the two-wheeler following service by the opposite party. However, these allegations are explicitly and unequivocally denied by the opposite party. Since the opposite party refutes these defect claims, the complainant was required to adhere to the provisions of the Consumer Protection Act, 2019, which mandates the burden of proof for alleged defects. Despite ample opportunities, the complainant has failed to meet this mandatory requirement, thereby failing to substantiate the alleged defects in their two-wheeler after it was serviced at the opposite party's service center. Consequently, there is no merit in the complainant's assertion that their two-wheeler has defects. The complainant neither presented expert evidence nor provided their own oral testimony to establish these alleged defects in their two-wheeler. Thus, Issue Nos. (ii) and (iii) should be decided in favour of the opposite party.
Furthermore, despite receiving notice from this Commission, the complainant remained absent throughout the proceedings. Although no documents were marked, the opposite party filed a proof affidavit. Since the complainant did not cross-examine the opposite party, their evidence stands uncontroverted.
After careful consideration, it has been determined that the complainant's case lacks merit. The issues above mentioned (i) to (iii) have also not been resolved in the complainant's favour. Consequently, the following orders are issued.
ORDER
Based on the aforementioned circumstances, the Commission has determined that the contentions raised by the complainant lack merit. As a result, the complaint is dismissed. No cost.
Pronounced in the Open Commission on this the 27th day of November, 2023.
Sd/-
D.B.Binu, President
Sd/-
V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/By Order
Assistant Registrar p/
Despatch date:
By hand:
by post:
C.C. No. 237/2020
Order date: 27/11/2023
