The case of the complainant, in a nutshell, is that the O.P.No.1 is a authorized dealer as well as service centre of Yamaha Motor at Alipurduar. The complainant being attracted with the lucrative advertisement of O.Ps purchased one Yamaha Fazer Bike bearing Chasis No. ME 145SO11A2036218, Engine No. 45S1036157 on 05/05/10 from the City Auto Centre at Cooch Behar. After purchase of said motor bike the Office of City Auto Centre was closed and as such the O.P.No.1 has done all servicing of the said bike regularly.
Thereafter on 15/05/15 the complainant noticed that the Engine of the bike was not to it’s appropriate quality as a result he went to O.P.No.1 and narrated him this fact and after checking of the said bike the mechanic of O.P. No.1 suggested the complainant that the Block-Piston of the Bike was damaged but due to lack of parts, the O.P.No.1 did not change the Block Piston. Thereafter on 20/05/15 the complainant went to the show room of the National Motors, Dealer of Yamaha Motor India Ltd. Siliguri and purchased all the parts as mentioned by O.P.No.1. The complainant again went to the work shop of O.P.No.1 for changing the Block Piston of the bike and after changing the same the Bike handed over to the complainant and he paid Rs.2658/- to O.P.No.1.
It is further case of the complainant that after few days the complainant noticed various defects in his bike and he again visited the work shop of O.P.No.1 and he requested to repair the defects but he did not repair the bike. Thereafter the complainant lodged written complain over the matter to the O.Ps through mail on 03/07/15 and on 06/07/15. The O.Ps sent a reply mail and requested the complainant to prove some details to proceed further. On the same days the complainant provides the details which was required and on 08/07/15 the O.Ps sent another mail and informed the complainant that they will report within 48 working hours. The O.Ps called the complainant over telephone on 09/07/15 and requested him to visit the Falakata Yamaha Work Shop on 11/05/15 with his bike. Thereafter on 11/05/15 the complainant visited the said Work Shop and the O.Ps checked his bike and found the defects in the Bike as stated by the complainant in his written complaint.
The further case of the complainant is that the complainant made several correspondences for removing the defects of the bike but the O.Ps did not remove the defects as such the complainant is unable to ply his bike and the same is lying in his custody like a toy. On 22/07/15 the complainant received a letter vide Ref No. CC-IC-19136-D9Z6 dated 15/07/15 issued by the O.P.No.2 and in that letter the O.P.No.2 invite the complainant knowing fully well that his bike not in a possession to travel almost 150Kms. The O.Ps caused deficiency in service and as such they should liable to compensate the complainant.
Hence, this case filed by the complainant with a prayer that the O.Ps may be directed to pay Rs. 90, 000/- for his mental agony and suffering and correspondence costs etc. and also prayed for a sum of Rs. 10, 000/- towards litigation cost and the O.Ps may be directed to repair the said Bike.
Appearance made on behalf of the O.Ps before this Forum and filed separate W/Vs wherein categorical denials are made against the complaint. The O.P side raised some legal points denying the prayer of the complainant and prayed for dismissal of this case with huge costs.
The complainant filed some documents in support of his case.
The complainant and the O.Ps have filed evidence on affidavit.
The complainant as well as the O.Ps have also filed written argument in support of their respective cases.
We have gone through the materials on record very carefully and also perused the documents which are lying on record and also heard arguments of the parties.
In this context, the following issues are necessarily come up for consideration to reach just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s.2 (1)(d)(i)(ii) of Consumer Protection Act ?
- Is the case bad for mis-joinder of parties?
- Has this Forum jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- To what other relief/reliefs the complainant is entitled?
DECISION WITH REASONS
All the points are taken up together for consideration for the sake of convenience and brevity as all are inter linked to each other.
On perusal of the materials available on record admission came out from both sides that the complainant has purchased the Yamaha Fazar Bike Chasis being No. ME 145 SO 11A2036218, Engine No.45S1036157 on 05/05/2010 from YAMAHA City Auto Center, Cooch Behar (Annexure-‘A’). O.P.No.1 (R.N.Auto, New Town, Madhav More, Alipurduar) is the authorized dealer as well as Service Centre of Yamaha Motors. After purchase necessary servicing were done by O.P.No.1 time to time.
As per Para-5 of the written argument submitted by the complainant it is revealed that warranty period of purchase of the Bike has already been expired. After expiry of the warranty period the complainant noticed that engine oil of his bike was not up to the appropriate quantity. As such he approached to O.P.No.1 to remove the defect and O.P.No.1 checked the bike and opined that “Block Piston” of the bike was damaged.
Para-6 of the written argument submitted by the complainant speaks that as per instruction of O.P.No.1 the complainant purchased the parts from National Motors, Siliguri which is the authorized dealer of Yamaha Motors India Ltd. on 20/05/2015.
Para-7 of the written argument submitted by the complainant indicates that necessary repairing of the vehicle was done by the O.P.No.1 on 30/05/2015 and the bike was handed over to the complainant and the complainant made payment to O.P.No.1 amounting to Rs.2,685/-.
Therefore, negotiations/transactions centering the bike have gone between the complainant and the O.P.No.1 and after the warranty period no responsibility is lying over the shoulders of the remaining O.Ps resulting which the case is bad for mis-joinder of parties.
Now, we have to consider as to whether the complainant is a consumer by way of availing of service on consideration u/s. 2(d)(ii) of the C. P. Act or not ?.
Complainant was a consumer of O.P.No.1 by availing service on consideration in respect of repairing his bike till O.P.No.1 did not repair. But the O.P.No.1 repaired the bike and handed over the same to the complainant and the complainant made payment to O.P.No.1 to that effect amounting to Rs.2,685/-. Responsibility has come down from the shoulders of the O.P.No.1, as soon as when payment was made to him by the complainant for repairing his bike.
Mere subsequent negotiations/transactions with the O.P.Nos. 2 & 3 do not create the right of consumer as the consideration for availing of service is absent here. If the complainant attend to O.P.No.2 along with his bike as per advise of Falakata Yamaha Workshop and avails of service of O.P.No.2 on consideration. (i.e. fixing payment or by making part payment or promised for payment of repairing charge etc.) in that event the complainant could be treated as a consumer.
Considering the residential address of both the complainant and the O.P.No.1 and the claim amount of this Fora has both jurisdiction to try this case inspite of that we are unable to consider the complainant as consumer due to absence of consideration for availing of service here and as such there is no question of deficiency in service on part of the O.Ps.
Thus all the points are disposed of accordingly.
The instant case failed to achieve it’s success on contest.
Hence, for ends of justice, it is;-
O R D E R E D
that the instant case be and the same is dismissed on contest but without costs.
Let a copy of this final order be sent to the concerned parties through registered post with A/D or by hand forthwith for information and necessary action.
Dictated & Corrected by me
