DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 26^th day of February, 2024

                          Filed on: 03/09/2019

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member

Smt.Sreevidhia.T.N                                                                 Member                                                        

CC NO. 336/2019

Between

COMPLAINANT

Vishnu R., S/o. N. Radhakrishna Pillai, Qtrs. No. 84/4, Type 3, MES Quarters, Kataribagh, Naval Base P.O., Kochi 682004.

VS

OPPOSITE PARTIES

1. Rajiv Bajaj, Managing Director, Bajaj Auto Ltd., Akrudi, Pune 411035.
2. Denny T.F., Service Manager, Popular Motor Corporation, 40/2808A, NH Bypass, Near Pipeline Junction, Ernakulam 682024.

(OP No. 1&2 Rep. by Adv. George Cherian Karipparambil, Karipparambil Associates, H.B. 48, Panampilly Nagar, Kochi 682 036)

FINAL ORDER

Sreevidhia T.N., Member:

1. A brief statement of facts of this complaint is as stated below:

The complainant had purchased a Bajaj Pulsar Bike RS200 from the 1^st opposite party on March, 2019. The bike is registered as KL43 L9134. From the date of purchase of the vehicle itself the complainant had noticed certain complaints on the bike meter, engine and on the parking light of the vehicle. There are moisture content on the bike meter and parking light. Another problem of the vehicle was that sometimes the engine was turn off when the vehicle was on moving. So the vehicle stops while running. The complainant had reported the above issues to the Sales Personnels and they assured that they will clear the issues on the first service of the vehicle. On 25/03/2019 the vehicle had its free service. But the opposite party had charged Rs.903.50 for changing the meter and parking light of the vehicle. After two days of the 1^st service of the vehicle, the ‘engine turn off’ the problem was still occurring. The complainant had again reported the issues to the opposite parties and the opposite parties told the complainant that they will rectify the issues in the 2^nd free service of the vehicle.

On 04/07/2019, the complainant had entrusted his vehicle to the service centre of the opposite parties for 2^nd free service. The opposite party had charged Rs.902/- for the 2^nd free service. After the 2^nd service, the service centre personnels told that the issue was resolved. After some days the same complaint persisted and hence the complainant called the respective technician and Customer Relationship Manager and told them that the issues related to the engine of the vehicle is not resolved so far. They told the complainant to come to the showroom of the opposite party for checking the said complaints. They also told to the complainant to keep the vehicle for one day to check the complainant’s vehicle. After one day the complainant had received back the vehicle but the complaint was not rectified by the opposite parties. The complainant thinks that the vehicle of the complainant has a manufacturing defect and for the opposite party had committed deficiency in service towards the complainant. Hence this complaint.  

2. Notice :

Notice was issued to the opposite parties from this Commission on 23/09/2019. Upon notice 1^st and 2^nd opposite party appeared before the Commission and filed their version jointly.

3. Version of opposite parties

The complaint is not maintainable under law. There is a well done precedent of the Hon’ble National Commission in EID Pary case, wherein it was categorically held that whenever any person alleges any manufacturing defect the same has to be proved with an expert report or opinion. There is no cogent or convincing evidence in the complaint regarding the defects of the vehicle. The complaint has no locus standi to file the present complaint and hence the same is liable to be dismissed.

It is important to notice that the complainant’s vehicle has met with the accident. If the vehicle met with an accident it goes out of warranty as per the terms and conditions of the warranty explained in the Owners’ Manual of the vehicle. Whenever the complainant has given the vehicle for service the same was collected with satisfaction, which itself proves that the complaint filed by the complainant is false and frivolous.

The complainant has brought the vehicle on 25/03/2019 for 1^st service at odometer reading of 721 kilometers. At that time the service requirement of the complainant were only 1^st service, oil change, chain sound, kit vibration and clutch play adjust which were promptly attended by the 2^nd opposite party. The allegation of defect in engine was not raised by the complainant at the 1^st service. Complainant offer test ride taken the bike endorsing satisfaction of service. The tax invoice for Rs.666/- dated 04/07/2019 would show that the complainant was charged only for consumables and Rs.236/- for labour charges. The complainant is completely silent about the kilometer reading of the vehicle, especially when he is claiming deficiency in services. There had been any problem in the vehicle, either the vehicle should not have been taken by the complainant at the time of delivery and even while taking the Registration papers the complainant should have lodged any complaint. The services availed at the time of 1^st and 2^nd services and use of the vehicle in kilometers are shown below:

          In 18 day the vehicle has run 721 kilometers means per day 80 kilometers. This defies the defect in the vehicle.

          Neither there is any manufacturing defect, nor there is any deficiency in service and hence the complaint is liable to be dismissed.

4. Evidence:

Evidence in this complaint consists of the documentary evidence filed along with the complaint which are marked as Exbt. A1 to A4. The complainant has not filed proof affidavit in this case.

On 02/02/2021 1^st opposite party filed IA 33/2021 to delete 1^st opposite party from the party array. 2^nd opposite party also filed IA 32/2021 to delete 2^nd opposite party from the party array. Since the complainant is absenting continuously objection on I.A. 32/2021 & 33/2021was not filed by the complainant. Hence this Commission issued a notice to the complainant to appear before the Commission and to file objection if any in the two IAs filed by the opposite parties ad for hearing the above two IAs. After serving the notice the complainant has not turned up and the Commission decided to consider the two IAs after taking the evidence from both sides and the case posted for evidence of the complainant to 03/06/2023. Complainant has not filed proof affidavit in this case. Since the complainant is not interested to appear before the Commission and to adduce further evidence or to file proof affidavit, the evidence of the complainant was closed on 03/06/2023.

Opposite party filed 3 documents along with the version which are marked as Exbt. B1 to B3. No oral evidence from the opposite parties.

5. Issues:

1. Whether any deficiency in service or unfair trade practice is proved from the side of opposite parties towards the complainant?
2. If so, reliefs and compensation?

For the sake of convenience we have considered Issue no. (1) (2) together. On verification of the documents filed by the complainant it is seen that 6 documents were filed along with the complaint.

Document No. 1 is a copy of RC book of the vehicle. Document No. 2 is a copy of the tax invoice dated 06/03/2019 for Rs.1,43,331/- (purchase invoice). Document No. 3 is the copy of tax invoice dated 25/03/2019 for the vehicle’s 1^st free service. As per the said bill opposite party has charged Rs.903.60 from the complainant. Document No. 4 is a copy of the tax invoice dated 04/07/2019 for the vehicle’s 2^nd free service. As per the said bill opposite party has charged Rs.666/- from the complainant. Document No. 5 is the tax invoice for Rs.236/- dated 04/07/2009 for 2^nd free service. Document No. 6 is the tax invoice for Rs.902/- dated 04/07/2019 for 2^nd free service of the vehicle.

          The case of the complainant is that from the date of purchase of the complainant’s bike there were complaints on the bike like moisture content on the bikes meter and parking light. The complainant also alleges that there was mis-functioning of the engine. The complainant states that when the vehicle had its free service on 25/03/2019 the opposite party had changed the meter and parking light of the vehicle and the opposite party had charged Rs.903.50 from the complainant.

On a bare perusal of Exbt. A2 (1^st free service tax invoice) dated 25/03/2019 the Commission observed that the opposite party had charged Rs.903.60 from the complainant but as per the bill it is not revealed that the meter and parking light of the vehicle was changed at the 1^st free service.

The complainant was continuously absent since 02/02/2021. The Commission issued a notice to the complainant on 07/01/2022 and 13/03/2023 to appear before the Commission and to file objection if any on the two IAs (IA No. 32/2021 and IA No. 33/2021) filed by the opposite parties No. 1 & 2 for deleting the opposite parties from the party array.

The notice sent to the complainant on 13/03/2023 is seen served on 23/03/2023. Despite several chance given to the complainant to proceed the case and to give further evidence, the complainant has shown no interest in doing so.

Due to the complainant’s persistent absence and lack of evidence to prove the manufacturing defects of complainant’s vehicle, the Commission has no choice but to dispose the complaint based on the available evidence.

In the catena of decision it has been established that the burden of proof was with the complainant to prove the deficiency in service or negligence by presenting evidence before the Commission. More allegations of negligence are insufficient to support the complainant’s case.

In the case of SGS India Ltd. Vs. Dolphin International Ltd. 2021 AIR SC 4849 held that “The onus of the proof of deficiency in service is on the complaint in the complainants under the Consumer Protection Act, 1986. I is the complainant who had approached the Commission, therefore without any proof of deficiency the opposite party can’t be held responsible for deficiency in service.

Moreover the complainant did not submit a request to appoint an expert to inspect the vehicle to find out the manufacturing defects of the vehicle. In a judgment of the Hon’ble National Commission in Dr. K. Kumar Advisor (Engineering) Maruti Udyog Ltd. Vs. Dr. A.S. Narayana Rao & another held that the importance of expert evidence in proving manufacturing defects. If the complainant is appeared before the Commission, the Commission should have instructed the complainant to present expert proof to support the claims of the complainant. Without such proof the complainant’s allegations remain unsubstantiated.

The complainant has not provided any evidence to show that the complainant’s vehicle has some engine mis-functioning problem, engine turn off problem etc.

Based on the aforementioned circumstances the Commission has determined that the contentions raised by the complainant lack. The issues No. 1& 2 are found not in favour of the complainant. Consequently the complaint is dismissed. Hence there is no need of disposal of the above mentioned I.A. s.

Pronounced in the Open Commission this the 26^th day of Febreuary, 2024.

Sreevidhia.T.N, Member

D.B.Binu, President

Forwarded/by Order

Assistant Registrar

Appendix

Complainant’s evidence

Exhibit A1: Copy of the RC book of the vehicle

Exhibit A2:           Copy of tax invoice dated 06/03/2019 for Rs.1,43,331/-

Exbt. A3:    Copy of tax invoice dated 25/03/2019

Exbt. A4:    Copy of the tax invoice dated 04/07/2019

Opposite party’s evidence

Exbt. B1:    Copy of job card

Exbt. B2:    Copy of instant feedback form

Exbt. B3:    Copy of job card

Despatch date:

By hand:     By post                                                  

kp/

CC No. 336/2019

Order date:  26/02/2024