State Consumer Disputes Redressal Commission
Anil Kumar Pandey vs Bajaj Auto Ltd. on 20 June, 2011
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION
PANDRI, RAIPUR
Appeal No.138/2011
Instituted on 01.03.11
Anil Kumar Pandey, S/o Late Shri Ambika Pandey,
J-794, Janta Colony, Gudiyari,
RAIPUR (C.G.) ... Appellant.
Vs.
1. Bajaj Auto Ltd., Akurdi,
PUNE (MAHARASHTRA)
2. Om Automobiles, Jeevan Beema Marg, Pandri,
RAIPUR (C.G.) ... Respondents.
PRESENT: -
HON'BLE JUSTICE SHRI S.C. VYAS, PRESIDENT
HON'BLE SMT. VEENA MISRA, MEMBER
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES: -
Shri K. Anandani, for appellant.
Shri Naveen Ahuja, for respondents.
ORDER
Dated: 20/06/2011 PER: - HON'BLE JUSTICE SHRI S. C. VYAS, PRESIDENT Feeling aggrieved by order of District Consumer Disputes Redressal Forum, Raipur (hereinafter called "District Forum" for short) of dismissal of complaint case No.391/07, dated 31.01.2011, the complainant has preferred this appeal, under section 15 of the Consumer Protection Act 1986.
2. In nutshell the facts of the case as per the complainant / appellant herein are that he purchased a Bajaj Discover 125 cc motorcycle from the respondents / OPs on 25.01.07 and manufacturing warranty of one year was granted by the OPs against any // 2 // manufacturing defect in the vehicle. The allegation of the complainant is that right from the very beginning the motorcycle was having the problem of engine knocking, heating of engine, unable to carry load of two passengers and stop functioning on heating. The vehicle was shown to the OPs / respondents for 6-7 times for curing these defects, but when the defects persisted, then a complaint was sent to the Higher Office of the Company at Bhopal and also to respondent No.1, the manufacturer at Pune. Manufacturer responded and requested the complainant for leaving the vehicle for a day at Service Centre, but even after this exercise, the defects could not be cured. Then again complaints were made and again the vehicle was left at the Service Centre for two days then it was informed that the engine of the motorcycle would require to be opened. In spite of these exercises, the defects could not be cured, though the vehicle was under warranty period. Therefore replacement of the vehicle was demanded on the ground of manufacturing defects or in alternative refund of cost of the vehicle and compensation for mental agony Rs.10,000/- was also demanded.
3. The OP No.1 in its reply denied the allegations of the complainant in respect of any manufacturing defect. It has been averred that after having used the vehicle continuously for eight months, complaint before District Forum was filed on false grounds.
// 3 // Warranty of four free services and nine paid services was granted by the manufacturer from the date of purchase. Such warranty services were available even after the date of filing of the complaint, so there was no necessity of filing complaint before District Forum, even during the warranty period, without any valid reason and without any proof that the vehicle is suffering from any inherent manufacturing defect. No report of any expert has been filed to show that such defects are there in the vehicle. It has also been asserted that as and when the vehicle was brought for free service, during warranty period, then it was attended and minor defects, which were found, have been cured. It was functioning properly and the defects have only generated because of negligent use of vehicle by the complainant and because of handling by some roadside mechanic for some kind of service, which revealed at the time of service in the Service Centre and it was found that there was misalignment which was later on set right by the Company. It has also been submitted that after availing free services, other services during warranty period have not been availed and only on the ground that some minor defects have generated, on account of improper maintenance of the vehicle, the complaint has been filed, which is liable to be dismissed.
4. OP No.2, in its separate reply has categorically denied the allegations leveled against it and averred that there was clear-cut // 4 // mention in the owner‟s manual that if on account of use of adulterated fuel or bad quality of fuel, defects are generated in the vehicle then there will be no warranty against such defects. There were as many as four free services and nine paid services under the warranty granted by the manufacturer, but after availing free services, receiving the vehicle in good condition and giving certificate to that effect and after running the vehicle for more than 6000 kms during such services, after long gape, false allegations have been leveled by the complainant without any merits. As per Job Card, total running of the vehicle was more than 3000 kms and no such complaints were ever lodged by the complainant, during free services, that the vehicle was stopping on the way after being heated or that it is unable to carry load of two passengers. Thus, the allegations leveled by the complainant have been totally denied.
5. During the course of hearing of the consumer complaint, the District Forum had tried to obtain expert opinion on the request of the complainant, firstly by referring the matter to the Engineering College and thereafter to some other Mechanic, because the Engineering College had denied to conduct any test of the vehicle, on the ground that necessary equipments are not available with the Engineering College for such tests. Then request was made by the complainant for sending the vehicle to the workshop of the OPs and after considering // 5 // all aspects, including the convenience of the complainant, M/s. Vandana Automobiles, G.E. Road, Raipur was requested to get the vehicle examined by their mechanic and to submit report. Report of mechanic Bhaskar Rao Bawankar was then received in a sealed cover and later on Bhaskar Rao Bawankar has also filed his affidavit. He was also cross-examined through questionnaire by the complainant. Said mechanic, after examination of the vehicle found that the vehicle is not having any manufacturing defect or mechanical defect. Minor defects, which were there, were on account of improper maintenance of the vehicle and on account of some external circumstance. The entire engine of the vehicle was cleaned by the mechanic and was test driven up to 77 kms. The complainant also conducted such test drive along with two passengers and then supplied satisfaction certificate.
6. This report as well as other material, available, were taken into consideration by the District Forum and then the allegations of manufacturing defects in the vehicle was not found proved, so the complaint has been dismissed by the impugned order.
7. We have heard arguments advanced by both parties and perused the record of the District Forum.
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8. We find that before District Forum, apart from affidavit of the complainant, Anil Kumar Pandey, affidavit of one mechanic Hiralal Yadav was also filed. Said Hiralal Yadav claimed that he is a mechanic, who repairs motorcycles for last twenty years and is capable of opening and refitting of engine. He has simply checked the motorcycle by driving and found that the motorcycle was having low pickup. The engine was giving sounds, whereas the vehicle of a good company, usually does not generate such sound from the engine in first 7 to 10 years. It has been opined by him that some parts are required to be replaced in the vehicle, after opening the engine and after such repairing the vehicle can be set right. Apart from it, the complainant in his another affidavit has further averred that the vehicle was also shown by him to mechanic Md. Israil, who has also given list of few parts to be replaced in the vehicle.
9. Thus, it appears that the complainant in his own affidavit leveled allegation of mechanical defects and manufacturing defects in the vehicle and in support thereof has filed affidavit of mechanic Hira Lal Yadav and has also shown the vehicle to one more mechanic. We find that mechanic Hira Lal Yadav had not even opened any part of the vehicle and had simply driven the vehicle up to some distance and then expressed his opinion that the vehicle needs repairing and replacement of few parts. There appears nothing on the basis of which // 7 // it can be said that he has got any academic qualification or experience of repairing Bajaj Discover 125 cc motorcycle, on the basis of which he can be treated as expert mechanic of such vehicle, whereas mechanic Bhaskar Rao Bawankar, who was appointed on the request of the complainant, by the District Forum, has filed along with his report his Training Certificates and Experience Certificates. From these certificates, it appears that he had undergone training in the maintenance and repairs of Pulsar vehicle, manufactured by Bajaj Auto Ltd. and successfully completed the Course, so certificate was granted. He was rated at „A‟, during such training. The details of pre and post training evaluation of the technician have also been filed. Apart from that training, earlier also he had undergone Motorcycle Expert Course training and has successfully completed such course. Similarly, some other courses, which were conducted by the Bajaj Auto Ltd., from time to time, were successfully completed by him. He had undergone such courses since 1999 to 2005 and completed successfully as many as 5-6 courses. Apart from it, he has got day to day experience in dealing with Bajaj Vehicles, so we find that he is a person having sufficient experience and has got appropriate technical knowledge in respect of examining motorcycles, assessing their defects and to remove the same. He is working with M/s. Vandana Automobiles for last twenty years, since 1989 and during that period in a year, on an average, 16000 vehicles are being maintained, repaired and services by him, during // 8 // warranty period, as per his affidavit, and thereafter so he can safely be said to be an expert in his field and so his opinion is dependable.
10. In his report, Mr. Bhaskar Rao Bawankar, has stated that when he opened the vehicle, then it was found that the vehicle has been brought in closed condition, which was not working and the warranty period had also expired by that time. In presence of both parties and their advocates, with the consent of the complainant, dated 24.09.09, he had opened the vehicle and found that speedometer was recording running of the vehicle as 25,227 kms, front and rear wheels were having lesser air pressure than the prescribed air pressure and petrol tank was having 500 ml petrol, which was even below than the usable reserve capacity 1.2 ltr. From external examination, it was found that clutch wire was not adjusted properly. The battery was not in OK status, lights and indicators were properly functioning. When the engine was opened, then it was found that in the oil chamber, there was fresh and unused red colour lubricant oil, which was indication that after change of oil, the vehicle has not at all been used and was directly brought to the workshop, so the colour of the oil has not been changed, because it changes even in single circulation in the engine. It has been opined by the mechanic that probably the vehicle was dealt with some other unskilled mechanic earlier. On inspection of Head Block, it was found that both the spark plugs were having thick layer // 9 // of carbon and impurities and oil was also found near both spark plugs. Then some portion of the petrol, which was available in the petrol tank, was extracted in a clean pot and when it was smelled then it revealed that it was having specific smell of kerosene oil. It was further confirmed by filter paper test that the fuel was adulterated and was having mixture of kerosene oil. The fuel meter was checked, which was found properly functioning, air-filter was completely chocked and had become black, which showed that the air-filter was not regularly cleaned at a regular interval. It was also found that air- screw was tempered with and because of such tempering and because of choked air-filter, the standard percentage of air and fuel which should be 9:1 was not available to the engine. Then the engine was taken to the engine room, which was free from pollution and gradually each and every part of the engine were separated, examined and it was found that each and every part of the engine were fully functional, were at their place and were of proper dimensions. Thus, there were no defects in any part of the engine or in any of the assembly. There was no defect either mechanical or manufacturing anywhere in the vehicle and thereafter he cleaned each and every part of the engine and then refitted them to their original place and shape, then the engine was fitted in the vehicle, which was tested by the mechanic as well as by the complainant and was found free of any trouble. It was also opined by him that as the vehicle was not having any mechanical or // 10 // manufacturing defect, so it run for more than 25000 kms. It was found that the spark plug has not been changed even after 10000 kms run, clutch plate has also not been changed after 12000 kms run of the vehicle and the air-filter was also not changed after 10000 kms run of the vehicle. On account of these and on account of improper maintenance & negligent use of the vehicle, use of adulterated fuel and other articles, defects might have been generated.
11. From this report, we find that a qualified mechanic, in presence of both parties and their advocates, has thoroughly examined each and every part of the engine very minutely and then came to the conclusion that it was not having any mechanical defect or manufacturing defect. The complainant has also provided satisfaction note dated 29.10.09, copy of which is available at page No.144 in the record of the District Forum. It has been certified by him that his vehicle has been repaired to his satisfaction, as per the terms of the warranty. This certificate has been signed by him.
12. Thus, from this report of the mechanic and for want of any other report of mechanic in support of the allegation that the vehicle was having any manufacturing defect, it is difficult to believe the allegation of the complainant that the vehicle was having such defects.
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13. We have also gone through the Job Cards, copies of which have been filed. From these Job Cards, it appears that when the vehicle was firstly brought to the workshop of respondent No.2 after sale, for first free warranty service on 16.02.07, then there was only one complaint that there was some kind of noise at the time of decreasing speed of the vehicle. At that time, engine oil was changed and servicing was performed and everything was found appropriate and satisfaction certificate was also given by the complainant. On second occasion, on 31.03.07, when the vehicle was brought for second free service, by that time it had run up to 1653 kms. At that time complaints were that the head bolt was loose and there were some knocking and chain was to be set. These defects were removed, other servicing was to be performed, handle was also set, though there was no complaint in that regard and then satisfaction certificate was provided by the complainant. On third occasion of service, on 05.06.07, the vehicle was brought after run of 4379 kms, then there was complaint that sounds were coming from the engine, battery water was to be checked and engine was also noising, again engine oil was changed and everything was set to the satisfaction of the complainant and a certificate to that effect was granted by the complainant. Free goodwill service was also provided on 25.01.07, after run of 4668 kms of the vehicle. By that time, there were merely two complaints that there were some sound from the meter and the chain was also producing sound. No // 12 // complaint was there in respect of the engine. Meter was changed, chain was also set and the complaints were attended to the satisfaction of the complainant, who gave certificate to that effect also. Lastly on 06.08.07 for fourth free service, the vehicle was brought, when the vehicle has already run 2209 kms after fitting new meter, whereas the earlier meter was having reading of 4668 kms, thus the total run was 6877 kms. At that time also, there was no complaint regarding any problem in the engine or regarding any noise, coming from anywhere. There was complaint of brake light and knocking of the engine, all such complaints were attended, loose parts were fitted tightly and were set. Satisfaction certificate was given by the complainant.
14. Thus, from the Job Card also, it appears that there were only few minor complaints at the time of availing free services and all those minor complaints were properly attended by the Workshop and defects were removed. When there are only complaint of some minor defects, which can be cured by repairing then it can hardly be said to be a case of replacement of the vehicle or for making allegations of manufacturing defects or mechanical defect.
15. This Commission in the case of Mrs. Tara Devi Kedia Vs. Hyundai Motors India Ltd. & anr., 2009 (3) CGLJ 17 (CCC), has considered similar matter, relying upon pronouncement of Hon‟ble National // 13 // Commission in the case of M/s. Tata Engineering & Locomotive Co. Ltd. & anr. Vs. M. Moosa, 1994 (3) CPR 395, wherein Hon‟ble National Commission has held that "if no manufacturing defect has been pointed out in the vehicle, some defects did occur and as noticed earlier, the contention of the dealer is that as and when the vehicle was brought for free service or maintenance service the defects were rectified", then "the manufacturer cannot be ordered for replacement of the vehicle or refund of its price, merely because some defects (not manufacturing defect) which can be rectified or defective part can be replaced". In this regard, reliance can also be placed on the recent pronouncement of Hon‟ble National Commission in the case of Scooter India Ltd. Vs. Manjulaben Kiritbhai & ors., III (2010) CPJ 235 (NC), wherein it has been held that unless manufacturing defect pointed out and proved, the manufacturer cannot be asked to replace the vehicle. It has also been held that "the onus to prove the allegation is on the person who alleges it. Section 13 of the Consumer Protection Act, 1986 provides that the complainant, who alleges defects in the goods, has to prove it and where the defects cannot be determined without proper analysis or tests, then, the same can be proved by getting the Report of an Expert."
16. Thus, we find that the District Forum has not committed any error in dismissing the complaint of the appellant for want of any // 14 // expert report in favour of allegations of manufacturing defect and relying upon the report of the expert appointed by the District Forum, we affirm the findings recorded by the District Forum and find no substance in this appeal, therefore the same is dismissed. No order as to cost.
(Justice S.C. Vyas) (Smt. Veena Misra) (V.K. Patil)
President Member Member
/06/2011 /06/2011 /06/2011