State Consumer Disputes Redressal Commission
Suzuki Motorcycle India Pvt. Ltd. vs Vaman S. Gaitonde & Another on 6 August, 2024
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI-GOA
In the matter of First Appeal 28 of 2022 in Consumer Complaint
10 of 2020.
Before: Adv. Mrs. Varsha R. Bale, Officiating President
Adv. Ms. Rachna Anna Maria Gonsalves, Member
Suzuki Motorcycle India Pvt. Ltd,
Plot Number-1, 2nd Floor,
Nelson Mandela Road,
Vasant Kunj, Delhi-110070. ....Appellant
V.
Mr. Vaman S. Gaitonde,
Aged about 41 years, son of late
Bachelor, R/o House No. T-5,
Shivsagar Apartment,
Ansabhat, Mapusa, Bardez, Goa.
Presently residing at H.No.779, Bambordem,
Moira, Bardez-Goa. ....Respondent-1
B. N. Thakur - Auto Service LLP,
Authorised Suzuki Dealer
Saldanha's Kieran Apartment,
Duler Main Road- Mapusa,
Bardez- Goa. (P.C. 403 507) ....Respondent-2
Adv. Shri. Omkar Parab present for Appellant.
Adv. Shri. D. P. Agni present for Respondent-1.
Adv. Shri. Jatin Ramaiya present for Respondent-2.
1
DATE: 06/08/2024
JUDGMENT
[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]
1. This Judgment and Order shall finally dispose off FA/28/2022 filed by the Appellant to assail the Judgment and Order dated 02/05/2022 passed by District Commission, North wherein the District Commission, North was pleased to direct the Appellant herein and Opposite Party-2 herein to replace a motor scooter owned by Opposite Party-1 herein and to also pay compensation of Rs.10,000/- towards mental agony and harassment caused by them towards the Opposite Party-1 herein and also pay Rs.2,000/- as cost of litigation.
2. For sake of brevity the Appellant herein was Opposite Party-2 and the Respondent-1 herein was the original Complainant and Respondent-2 herein was Opposite Party- 1 before District Commission, North in CC/10/2020.
3. The brief facts are as follows:
A. The Contention of Appellant is:
i. That Respondent-1 had purchased the concerned vehicle from the Appellant in the month of September 2018 and after the purchase the vehicle was brought to the service centre on 27/10/2018, 23/01/2019 and 24/04/2019 wherein general service was done on the vehicle and no problem was raised by Respondent-1.
ii. That the issue as alleged by Respondent-1 in terms of self start of the vehicle was only on three occasions after having rode the vehicle for about 6170 kms on 24/05/2019, the same was brought to the dealer alleging self-start problem for the first time and the dealer duly inspected the vehicle and found it to be normal. Therefore 2 on 22/06/2019, the Respondent-1 after riding the said vehicle for about 6756 kms brought the vehicle to the dealer a second time alleging self start issue and the dealer got the battery of the vehicle inspected by the battery manufacturer and after finding the same okay refitted the battery in the said vehicle. Respondent-1 then for the third time after 6 months gap on 04/01/2020 having rode the vehicle for about 11,435 km brought the same to the dealer alleging self-start issue, the battery of the said vehicle was rechecked and found okay and so the Respondent-1 took back the vehicle without raising any issue.
iii. It is pertinent to note that during the period between 22/06/2019 and 04/01/2020, the said vehicle was sent to the service centre twice i.e. on 01/08/2019 and 28/01/2019 but no problem qua the battery or self-start was ever raised.
iv. In furtherance to the aforesaid, the Respondent-1 filed a complaint before District Commission, North alleging deficiency in services on behalf of the Appellant and the Appellant filed the Written Statement and Affidavit in Evidence after application for setting aside ex-parte order was allowed.
v. The District Commission, North its Judgment and Order dated 02/05/2022 wherein the District Commission, North was pleased to direct the Appellant herein and Respondent-2 to replace the motor scooter owned by Respondent-1 and pay compensation of Rs.10,000/- towards mental agony and harassment caused by them towards the Respondent-1 herein and also pay Rs.2,000/- as cost of litigation.
vi. In pursuant to their contention the Appellant stated that the present Appeal is being filed for the following reasons:3
That the District Commission, North failed to appreciate that the Respondent-1 has not been able to prove any deficiency of service on behalf of Appellant and hence was not justified in passing the Impugned Order against the Appellant on the basis of vague allegations.
vii. That the District Commission, North failed to take into consideration the precedent set by Hon'ble National Commission in terms of the alleged defect regarding starting problem in the said bike. It is also settled position in law as held in Maruti Vs. Hasmukh Lakshmichand, III (2009) CPJ229 (NC) wherein the Hon'ble National Commission has clearly defined manufacturing defect as a defect as a result of which the vehicle cannot function and result in a complete and total breakdown.
viii. That the District Commission, North has failed to appreciate the information availed from dealer that the concerned vehicle had already been in use since September 2018 and has already covered 11,435 kms as of January 2020 and that Respondent-1 had not raised any issue which may affect the functioning/running of the vehicle and hence the Appellant cannot be held liable in absence of any manufacturing defect in the vehicle.
ix. That in terms of deficiency in service misrepresentation and cheating on part of the Respondent-2 and the District Commission, North has failed to appreciate that Respondent-2 is an authorized dealer of the Appellant and not its agent and that the Hon'ble State Commission in Intercard (India) ltd. Vs. Mercedes Benz India Pvt. Ltd. Anr. (R.P.C No. 599 of 2015) upheld the Order of the Hon'ble National Commission in Mercedes Benz India Pvt. Ltd and Anr. Vs. Intercard India Ltd (First Appeal No. 100 of 2009) where it was conclusively held that the authorized dealers 4 are not the agent or distributor of the manufacturer and it was further held that the relationship between the manufacturer and the dealer was on principal-to-principal basis and the manufacturer could not be held liable for the misrepresentation if any, made by the authorized dealer.
x. That the District Commission, North has not appreciated the documents placed on record in its letter and spirit and interpreted the same contrary to contents thereof.
The Appellant prayed that:
a) The Appeal is dismissed.
b) That the Impugned Judgment dated 02/05/2022 passed by District Commission, North be set aside.
B. The Contention of Respondent-1 is:
a) That the Respondent-1 had purchased the Suzuki Access bike for his personal use to facilitate travelling to various court as he was assured by the Manager/In-charge Appellant had that the bike is extremely good and the vehicle was working normally for a period and was serviced as prescribed by the company regularly at the Company/Authorize service station with Opposite Party-1 on regular basis. That till the second free servicing or till the bike ran for Rs.2,753 kms, the bike was working normal but somewhere at the end of February 2019, the bike suddenly stopped near Mandovi Bridge while the proceeding from Complainants office to Panjim court and Respondent-1 could not understand as to the cause of it and panicked as he was getting late for the court hearing and pushed the said vehicle off the road and tried to electrically start the vehicle, but in vain as the Respondent-1 had a ligament tear and had to beg someone to help to kick start the said vehicle, as it was difficult for 5 him even to walk and the vehicle started after three or four attempts of kick start.
b) Thereafter Respondent-1 called the Appellant and narrated the incident to the Appellant and was told and assured by Appellant that it was a minor thing and that it happens to many bikes when they are new and there was nothing to worry as the vehicle was now starting and running and the Appellant would look into it once it is brought to the service station for servicing.
c) Later on somewhere in mid March 2019 when Respondent-
1 furnished the vehicle would not start and many of the advocates/friends gathered around to watch the Respondent-1 frantically trying to start the said vehicle. Respondent-1 felt humiliated and after many attempts the said vehicle started. That at the time of 3rd servicing (24/04/2019) the Respondent-1 narrated the problem to the Opposite Party-1 (service centre) and the service manager said that they would do the needful and if there was any problem they would replace the defective parts free of cost and after the said servicing Respondent-1 was assured while collecting the vehicle that the vehicle was fully repaired and the problem would never recur in future.
d) However at the end of May 2019 at around 9.30-9.45pm the Respondent-1 left his office for home but the said vehicle refused to start and had to call his brother to pick him thus leaving the vehicle at office that night. The following day Respondent-1 came to office along with his brother and tried to electronically start the vehicle but did not start and after only 4-5 attempts, the said vehicle started the same problem kept recurring in the month of June and July and every time Respondent-1 went to the service station, he was told that it was due to rains and 6 moisture sometimes there is carbon or moisture formed and it becomes difficult to start.
e) Thereafter on 01/08/2019 the Respondent had booked an appointment for servicing his 4th free servicing with the Appellant and the Service Manager informed Respondent-1 that they would repair the same and there would be no complaint in future. However, that same evening the Service Manager informed Respondent-1 that the vehicle was repaired and there is no problem at all. On going to the service station and upon checking and doing the payment Respondent-1 tried to start the vehicle and the problem still continued and noticed that the screws under the seat were left without tightening at all and some were missing, leaving the seat dangerously loose with a high probability of severing it away from the frame and throwing the rider off it, causing a serious accident. The Respondent-1 being annoyed confronted the service manager who could not answer and disrespectfully disappeared without any solution and refused to help Respondent-1. On contacting the owner Mr. P. Thakur, Respondent-1 informed him about the carelessness and deficiency in service to which Respondent-1 was assured that the matter would be looked into and the needful with would be done. Later on that same day 01/08/2019 Mr. P. Thakur informed Respondent-1 that as per information received from the service manager, the vehicle had a battery problem and Opposite Party-1 would replace the battery at their cost. Thereafter, after some days Respondent-1 received a call informing him to visit the service station in order to check the battery of his vehicle and without any hesitation gave the vehicle to the service station and was very pleased with the owner for giving such a service.
7f) In October 2019, the said vehicle refused to start even after many attempts and as the Respondent-1 was getting late for work, he had to take his old Hero Pleasure bike in order to reach court and later when the Respondent-1 approached the Appellant he narrated the incident and informed them that new battery was installed and rechecked and still incidents vehicle not starting were taking place the Appellant asked for the service record book and told the Respondent-1 to get vehicle for service on 28/10/2019 and at that time the Appellant will do full servicing of the said vehicle and check why the vehicle is not starting but until 28/10/2019 the Respondent-1 had to face such incidents thrice and after the said servicing the vehicle worked properly, but however the same problem cropped up again the vehicle would not even kick start.
g) Then at around Christmas the same incident occurred again and thereafter on 27/12/2019 , the vehicle refused to start but started after four-five kick starts . The Respondent No1 booked an appointment on 07/01/2020 for 6th paid servicing and reported all such things and informed d that the vehicle had been driven for only 11, 435 kms and after doing the payment and checking and starting the vehicle it started and as he was proceeding out of the Service station, the vehicle stopped and after trying to start the said vehicle did not start and so Respondent-1 had to push the vehicle back to the service station and called the owner Mr. P Thakur who again assured the Respondent-1 that after necessary repairs to rectify the malfunction, the Service Manager of the Appellant would call Respondent-1 and till date the said vehicle is with the Appellant .
h) In pursuant to the aforesaid the Respondent-1 stated that the Appellant has not informed the status of the said 8 vehicle to Respondent-1 and that whatever defects were there should have been resolved much prior in time, but instead of Respodent-1 was harassed and had to face humiliation every now and then. The Respondent-1 further stated that the Appellant was duty bound to remove all the defects of the vehicle within free service period but they however failed, and neglected to perform their bounden duties.
i) Therefore being aggrieved the complaint was filed before the District Commission North and the Respondent-1 prayed:
a) That the Complainant is entitled to an Order directing the Opposite Parties to either replace the said vehicle with a roadworthy one.
Or That the Complainant is entitled to an Order directing the Opposite Parties to replace whatsoever/whichever parts are requested for the said vehicle at their (Opposite Parties) over cost and
b) The Opposite Parties-1 and 2 jointly and severally be directed to give additional 4 "free services" from the date of Order.
c) The Opposite Parties-1 and 2 jointly and severally be directed to pay the sum of Rs.12,000/- as compensation and damages towards the mental agony, humiliation and inconvenience caused or sufferings he has had to undergo.
d) The Opposite Parties-1 and 2 jointly and severally be directed to pay litigation charges/cost to the Complainant of Rs.2,000/-
9The District Commission North, by its Judgment and Order dated 02/05/2022, was pleased to partly allow the complaint with certain reliefs.
The Respondent-1 further stated that the Appellants are well aware of the defects in the said vehicle and were incompetent to rectify the defects and after going through the Appeal Memo and the Written Arguments filed by the Appellant, the Respondent-1 denied the contents thereof which are or maybe contrary to or inconsistent with the complaint and appeal and pursuant to the aforesaid the Appellant have unreasonably filed the appeal before this commission.
C. The contention of Respondent-2 is:
i. That the Complainant is a practicing advocate having office at Mapusa and the Opposite Party-1 is a Private Limited Company and authorized dealers and distributors for the Suzuki Access 125 two wheelers having a showroom at Duler Mapusa Bardez Goa, and that Opposite Party-2 is manufacturer of various models of Suzuki Access 125 two wheelers.
ii. That the Complainant had approached Opposite Party-1 at the showroom at Duler Goa and was presented with a brochure describing the various aspects features and advantages of the two wheeler brand "Suzuki Access 125"
by the Manager/In-charge who had assured the Complainant that the performance of the said bike is extremely good and the features mentioned in the brochure are true and correct and thus believing Manager/In-charge of Opposite Party-1 and purchased the same "Suzuki Access 125"by paying the requisite price amount and also opted for extended warranty amount to the Opposite Party-
1. 10 iii. That the said bike "Suzuki Access" scooter bearing frame no. MB8DP11 AJJ8016114 and engine no. AF216009150 and registered with Mapusa R.T.O in the name of the Complainant in September began suffering various problems around a year after its purchase and the Complainant further alleged vide the said complaint that the Appellant herein had failed to rectify the defects and repair the said scooter/bike and that the service manager of the said Appellant was not serious in resolving the disputes of the said complaint. Thereafter the Complainant further alleged that despite fixing the said scooter, the problems were not resolved and the Complainant filed a complaint on 31/01/2020 before District Commission North, Porvorim Goa.
iv. The Respondent-2 filed their Written Version in response to the said complaint on 23/06/2020 and denied the averments and allegations made by the Complainant. As stated by the Respondent-2 that at that relevant point of time, the advocate fell ill and as a result of the same the said advocate was constrained to miss various hearings before the District Commission, North and consequently the matter proceeded Ex-parte and the Respondent-2 remained unrepresented for the remainder of the hearings. That various points for determination were framed by the District Commission, North in terms of the said complaint and Complainant led evidence by filing Affidavit-in- Evidence of its witness but the Respondent-2 could not lead evidence due to the absence of the advocate. Thereafter the District Commission, North heard Oral Arguments on behalf of the Complainant and Suzuki India and due to the absence of the advocate the Respondent-2 could not canvass any submissions.
v. The District Commission, North was pleased to pass Judgment and Order dated 02/05/2022 granting reliefs 11 and directed the Appellant herein and Opposite Party-2 herein to replace the motor scooter owned by Opposite Party-1 herein and to pay compensation of Rs.10,000/- toward mental agony and harassment also to pay Rs.2,000/- as cost of litigation. Thus being aggrieved by the said Impugned Judgment and Order, the same is challenged on the following grounds:
a) That the Impugned Judgment and Order is unsustainable since the same was decided without hearing the contentions of the Appellant.
b) That the District Commission North, has failed to appreciate the averments made by the Appellant in its Written Version and that no manufacturing defects and/or deficiency in services on the part of the Appellant.
c) That the District Commission North, has failed to appreciate that the Appellant has duly serviced the said scooter belonging to the Respondent from time to time and that there was no lapse on the part of the Appellant and has erroneously observed that the said scooter owned by the Complainant was defective and that the Appellant had not serviced and rectified the purported defects of the said scooter and the Appellant was therefore liable to replace the said scooter with a new scooter.
The Respondent-2 prayed that:
a) The present Appeal be allowed thereby quashing and setting aside the Judgment and Order dated 02/05/2022 passed by District Commission North in CC/10/2020.
b) Dismiss the Consumer Complaint No. CC/10/2020 passed by District Commission, North, at Goa at Porvorim.12
Documents relied upon by the parties before this Commission were the same documents before District Commission, North.
Arguments were heard by Adv. Shri. D. P. Agni on behalf of Respondent-1 and Adv. Shri. Jatin Ramaiya on behalf of Respondent -2 and All the parties submitted that they have no objection to the Officiating President hearing Final Oral Arguments.
Adv. Shri. Jatin Ramaiya presented the brief facts before this Commission and indicated that the Written Version has been looked into by the District Commission despite the fact of having being marked Ex-parte and that the District Commission has further gone ahead and made observations leased on the Written Version.
He placed reliance on Tata Motors Ltd Vs. Sharad and Ors. in Revision Petition No. 2340 of 2009 wherein the Hon'ble National Commission in paragraphs 19 and 20 and specifically in paragraph 21, wherein the vehicle had run about 35000 km in the first year and as per admission of the learned Counsel for the Respondent during arguments, had run more than 90,000 km. Obviously, no case is made out for replacement of the vehicle at this stage. Had there been any serious manufacturing defect, it would not have been possible to run the vehicle for so many kilometers.
He also further pointed out that it is not the case of the Complainant the everyday the Vehicle was not starting. He submitted before this Bench that No Expert Report has been produced. He further submitted that the Complainant failed to establish and prove that the vehicle suffered from any defect and that that the material findings of the 13 District Commission are based on presumptions and assumptions.
Adv. Shri. D. P. Agni agued on behalf of Respondent-1 and briefly touched upon the facts that the Vehicle was purchased on 12/09/2018 and the problem arose in Feb 2019 i.e. 5 months after the purchase and further drew attention to paragraph 12, Paragraph 44 of the Complaint, He then elaborated the instances and the many occasions that the said bike had stopped and enumerated them as follows: February 2019, March 2019, 24/04/2019, May end 2019, June 2019, July 2019, 31/07/2019, 01/08/2019, 30/08/2019, 07/10/2019, 16/11/2019, 27/12/2019 and 04/01/2020. He further submitted before this Commission that since then the said bike is with the service station, and on 07/01/2020 the Vehicle stopped and on 07/01/2020 the Vehicle stopped in the service station itself.
He further added that there is not correspondence to show that the service station called the Complainant to take back the Vehicle.
Heard Arguments and ongoing through the entire material on record we observed:
1. That the Complainant was aggrieved by the bike not starting on several occasions as demonstrated in the Complaint. But what we also noticed was that no where has the Complainant placed on record any Expert witness.
The Complainant also failed to collect his bike from the service station.
2. Also that no cogent credible and adequate evidence is placed on record by the Complainant/Respondent-1 supported by the opinion of an expert that the vehicle suffered from inherent manufacturing defect.
143. Another observation that this bench made was that the Appellant herein was marked Ex parte and we question on what basis did the District Commission make observations.
4. In terms of the kilometres run as per the records we in our considered opinion find that the complainant is not entitled to receive a replacement of the vehicle and the Advocate for the Appellant placed reliance on this Shri. Omkar Gupta Vs. TVS Motor Co. Ltd and Anr of this very State Commission. Also the Complainant ought to have made attempts to contact the service centre after he had last given the said vehicle but no such attempt was made.
5. We also observed that the Appellant had duly serviced the said vehicle of the Respondent from time to time and there is no deficiency.
6. Also no manufacturing defects are evident or established then how can deficiency be pointed at the Appellant and Respondent-2. It is also settled position in law as held in Maruti Vs. Hasmukh Lakshmichand, III (2009) CPJ229 (NC) wherein the Hon'ble National Commission has clearly defined manufacturing defect as a defect as a result of which the vehicle cannot function and result in a complete and total breakdown and hence the Appellant herein cannot be held liable in absence of any manufacturing defect.
7. On the point of the said vehicle stopping frequently we are surprised that the said bike even covered 11,435 kms and hence the allegations made by Respondent-1/ Complainant do not appear realistic at all.
8. We also find that the District Commission, North in its order is devoid of any justification whatsoever interms of 15 replacement of motor scooter which we find quite in paradox that the said bike had run 11,435 kms and we are incomplete agreement with the Judgment of the Hon'ble National Commission in Tata Motors vs. Sharad and Ors. In Revision Petition No.2340 of 2009. Further that the District Commission has gone out of its way to observe that the said Vehicle was defective and has infact treated the allegations of Complainant/ Respondent-1 as the "Gospel Truth" Also the judgments relied on by the Respondent-1 /Complainant do not come to his aid.
Also that the Appellant duly serviced the said scooter belonging to Respondent-1/Complainant from time to time and we find no lapse on the part of the Appellant in terms of negligence. We find that the District Commission, North has failed to apply its mind completely and arrived in conclusively with the Order.
Therefore in light of the aforesaid discussion we pass the following:
ORDER
1. The Appeal is allowed and the Order dated 02/05/2019 passed by District Commission, North in CC/10/2020 is hereby quashed and set aside.
2. Record and Proceeding in CC/10/2020 to be sent back to the District Commission, North.
3. Proceedings closed.
[Adv. Mrs. Varsha R. Bale] Officiating President [Adv. Ms. Rachna A. M. Gonsalves] Member KK 16