ORDER

SRI.H.R. SRINIVAS.  PRESIDENT

1.     This is the Complaint filed by the Complainant against the Opposite Parties (herein referred to as OPs) under section 12 of the Consumer Protection Act 1986 for the deficiency and negligence in service in damaging the oil sump of the bike and for recovery of the cost of the said oil sump Rs.50,000/- along with interest at 18% per annum on the same and Rs.50,000/- as compensation for incurring expenses for travelling mental agony and anguish and for costs and for such other reliefs as the Hon’ble District Commission deems fit.

2.     The brief facts of the complaint are that; complainant purchased the motorcycle manufactured by OP-1 and getting service of the same with OP-2. He purchased Yamaha 7ZF R3 bearing No.KA-09 HL-2811 in the year 2016 with chassis No.ME1RH1018G0002103 and engine No. H402E0021370 The same was left with the 2^nd OP for service on 26.10.2018. While changing the oil, the mechanic one Ajith hammered the oil filter to remove the O-Ring spanner from it.  While tightening the drain bolt back he over tightened drain bolt to an extent that the oil started leaking from the sump.  It is due to the mechanic’s negligent the oil sump got cracked, when the same was brought to the notice of the service center, he denied to accept the mistake. The supervisor Shivakumar failed to give proper answer for the damage.  The same was brought to the notice of the owner of the service center Mr Prabhu. He also did not give the proper information. The same was brought to the notice of the regional supervisor YAMAHA India Mr.Ashwin, who promised that the problem would be solved.  When he visited the service center again he was blamed by the service center authorities as the damage has happened by him only while going over a speed bump or over a pot hole which is not at all true.  The damage was not at all mentioned in the job card or was intimated to him when the bike was left for service with OP. If there was any damage to the oil sump due to the negligence of the complainant while riding, before giving to the service the same should have been mentioned in the job card and would have been intimated to the complainant.

3.     While conversing with the service center people the mechanic suggested him to get the gas filling done to the damaged area of the sump and that they will bear the cost of the same.  If the gas filling was done to the damage area of the sump oil might have start to leak again and engine might seized which would cost him Rs.1,50,000/- for the new engine. Hence he demanded the service center to replace the oil sump with a new one.  Due to the damage caused to the oil sum by OP-2 service center, he could not ride the bike without oil.  He had to leave the bike with service center for the oil sump to come and was waiting for Prabhu or Ashwin to solve the problem.  No intimation was given by them regarding the new sump. Hence he visited the service on 31.10.2018 and came to know that new oil sump has arrived. 

4.     Since Mr Prabhu denied accepting the mistake on their part, he was left with no other alternative to get the new oil sump fitted by paying the cost of it.  He suffered inconvenience due to the negligent act of the OP-2 who has not at all done a professional work, whereas complainant a professional had to travel by taxi to his office for about 4 days by spending money from his pocket and used UBER for purpose of travel to office, and to the service center. He suffered mental trauma, stress due to the same.  He visited 2 times to the OP-2 service center but Op-2 never rectified the problem which shows negligence and deficiency of OP-2. He had to issue a legal notice on 13.11.2018 which was served on Ops. OP-2 has given a reply on 23.11.2018 denying all the allegation made and hence complaint prayed to allow the same.

5.     Upon the service of notice, OP-1 and 2 remained absent. After wards OP-2 by making an application got the exparte order set aside and filed the version. Upon the service of notice, OP-1 and 2  remained absent. OP-2 after wards by making an application got the exparte order set aside and filed the version. In the version it is contended that the complaint is not maintainable either in law or on facts. That the complainant left his vehicle for paid servicing on 26.10.2018. After receiving the bike the estimate was given and complainant was further informed that the complainant will be informed that if any further broken or parts to be replaced after checking thoroughly the vehicle and in fact, informed the complainant about the oil sump leakage /damages. When sought for remedy he was advised to replace the oil with a new one for which complainant agreed and as the same was not available immediately, order was placed and the stock received on 30.10.2018 and repair was effected and bike was delivered to the complainant on 31.10.2018.

6.     It has denied that, the mechanic Ajit hammered the oil filter to remove “O” ring filter and while tightening, he over tightened, a same as the result, the oil started leaking.  There was no necessity for the mechanic to do so as there was no instructions and request by the complainant to change the oil and hence the said part was not at all meddled.  It has also denied that, after leaving the vehicle for service, there was leakage in the oil sump, as otherwise the same would have been reported to him immediately in the job card.

7.     The same has been denied as false and since after through check up they informed the complainant the leakage in the oil sump.  It has denied all the allegations made in the complaint and further contended that the damage caused to the oil sump is not by the act of OP or his men whereas the complainant is to blamed for the said damage as it would happen due to over speed over the bump or over a pot hole and it is usual that the oil sump may be damaged as the YAMAHA YZF R3 which is a sport vehicle has a low ground clearance when compared to other vehicle.  Even the road hump or a stone hit can cause damage to the sump area.

8.     It has denied that the leakage has not been mentioned in the job card or was not intimated to the complainant whereas, it is contended that at the time of receiving the vehicle for general service, only the outer damage would be informed and the damage part and the problem faced by the customer would be mentioned on the job card and with respect to oil sump damage or some other interior damage, would be informed later and for repair of the same, approval of the complainant or the customer would be obtained.

9.     With respect to the complainant’s vehicle the oil sump damage by noticed by the at the service center while carrying out general servicing, and immediately it was informed to the complainant on the same day of receiving the vehicle i.e. 26.10.2018 and on the request of the complainant only, order for a new oil sump was placed.  They have not at all suggested for gas filling for the damaged oil sump.   It is further contended that  as a goodwill gesture when OP noticed there is a problem in the disc brake assembly, the same was replaced free of cost. Even 10% discount on the spare parts and 10% on the labour charges were given to the complainant.

10.   The complainant requested them to bring the oil sump defect under the warranty and to give the same at free of cost for which they refused stating that the warranty period for the bike is over and for exterior damage it cannot help. Being aggrieved by the same, has filed the complaint and prayed the commission to dismiss the same.

11.   In order to prove the case, both the parties have filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1) Whether the complainant has proved deficiency in service on the part of the Opposite Parties?

2) Whether the complainant is entitled to the relief prayed for in the complaint?

12.   Our answers to the above points are:-

POINT NO.1 & 2 :    In the Negative

                                For the following.

REASONS

POINT No.1:-

13.   On perusing the complaint, version, documents, evidence filed by both the parties, and the answers to interrogatories, it becomes clear that, that the complainant left the vehicle for service with OP-2. OP-2 also raised the job card wherein it is not specifically mentioned regarding the damage caused to oil sump. Whereas, it has mentioned all other items including coolant leakage and oil not to be changed.  It is not explained properly by the complainant as to when there was no request for change of oil from his end, what is the requirement for the mechanic Ajit to meddle with the oil sump.

14.   When oil was to be changed, by usual course would be to drain out the old oil in the sump for which they have to remove the nut and then drain out all the used oil and clean the sump and the oil tank, and then to put new oil.  When the complainant has not at all requested and OP has not at all changed the oil for the bike, there was no necessity for OP or its mechanic to meddle with the oil sump.

15.   Though the complainant in the photos has stated that there was ground clearance of nearly one foot to the oil sump, that alone cannot be taken into consideration that there is no possibility of the vehicle hitting the road hump or a stone or going over a pot hole. It is quite natural that to in Bangalore city where the road is full of humps, pot holes. Complainant might have hit the road hump with a high speed or might have gone down over a pot hole and thereby the said oil sump might have got damaged. 

16.   If at all the complainant was so sure that, Mr.Ajit opened the “O” ring of the sump to remove the oil and then over tightened the same there by caused damage to the oil sump, then what prevented the complainant to examine the said person before this Commission, even at the cost of he becoming hostile witness. Even if it is assumed that he was treated hostile, then this Commission would have drawn the proper inference as to what value can be given to his evidence.  The same has not been ventured by the complainant.

17.   Under the circumstances, the defence of OP that the vehicle might have hit the road hump or a stone or pot hole highly probabalizes that the damage to the oil sump has  caused due to the same. Absolutely no evidence is adduced by the complainant to prove the deficiency of service or negligence in carrying out the service to the vehicle except trying to draw a inference that if at all there was any leakage/damage to the oil sump, the same would have been mentioned in the job card.

18.   It is true that, the job card do not mention the leakage or breakage of the oil sump. It is the specific case of the OP that the same was detected after a thorough examination of the vehicle and the same was informed the complainant who authorized them / gave approval to replace the same, for which, they have carried out the replacement with a new one by placing the order for the oil sump as the same was not readily available in the store and obtained the same from the manufacturer and got it after four days and fitted to the vehicle on 31.10.2018.   In view of this, there is no evidence whatsoever to prove the deficiency in service and negligence on part of OP-1 and 2 and answer the POINT NO.1 IN THE NEGATIVE. In the result complainant is not entitle any of the relief claimed in the complaint. We answer POINT NO.2 ALSO IN THE NEGATIVE and pass the following:

ORDER

1. The complaint is hereby dismissed. No order as to cost.  

2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 17^th day of December 2021)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the RC

Ex P2: Photographs regarding the damage to the oil sup and other parts.

Ex. P3: Copy of the Job card

Ex P4: Copy of the Trip details for hiring the cab.

Ex P5: Copy of the bill for purchasing the oil.

Ex P6: CD

Ex P7: bill for having repaired the vehicle.

Ex P8: Copy of the Legal notice.

Ex P9: Copy of the reply given by the OP

Ex P10: Copy of the certificate filed U/S 65(B) of the Indian Evidence Act.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri TM Prabhu. Managing Partner of OP-2.

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Job card

Ex R2: Certificate issued by resident service engineer byname Vetrivel.V.

Ex R3: Positive photos (3 Nos.)

Ex R4: CD

Ex R5: Brochure

Ex R6: Copy of the Tax Invoice

Ex R7: Copy of the oil sump purchase Invoice.

Ex R8: Copy of the service charges bill.

Ex R9: Positive photo in respect of showing oils ump drain bolt and oil filter.

Ex R10: Copy of the Owner’s manual.

Ex R11: Copy of extract Google search.

Ex R12: Copy of the reply notice.

Ex R13: Acknowledgements.

MEMBER                        PRESIDENT

RAK*