F.A.No.564 OF 2011 AGAINST C.C.NO.110  OF 2010 DISTRICT FORUM-II VISAKHAPATNAM

Between:

Mr.Kaparapu Pothuraju
S/o Ganga Raju R/o 39-8-11/2

Flat NO.64, GF-1, Muralinagar,
Visakhapatnam

                                                                Appellant/complainant

                A N D

1.     M/s Bajaj Auto Ltd.,
        rep. by its Managing Director
        Akurdi, Pune-035

2.     M/s Varun Motors Ltd.,
        rep.by its Managing Director
        H.No.10-50-22/1, Siripuram Junction
        Viskhapatnam-003

                                                        Respondent/opposite parties

Counsel for the Appellant                      M/s V.Chaitanya Latha

Counsel for the Respondent                   M/s Indus Law Firm

          QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER

                                                AND

SRI THOTA ASHOK KUMAR, HON’BLE MEMBER

MONDAY THE SEVENTEENTH DAY OF SEPTEMBER

                                TWO THOUSAND TWELVE

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                                ***

1.                     The unsuccessful complainant is the appellant. He filed the complaint before the District Forum seeking for replacement of Bajaj motor cycle with a new motor cycle or in the alternative for refund of `46,008.64 and `661/- and for payment of `1,00,000/- towards compensation and costs.

2.             The appellant purchased the vehicle on 10.04.2009 from the first respondent for consideration of `52,000/- on availing loan from Bajaj finance, Vishakapatnam and the vehicle was allotted registration number AP 31 BA 7298. The appellant purchased the vehicle to give it as a gift to his son-n-law and from the beginning the pick-up of the vehicle was poor and when it was taken for second service, the second respondent informed the appellant on 10.09.2009  that the clutch plates of the vehicle were to be replaced for which the appellant paid an amount of Rs.661/-. On 14.11.2009  the clutch plates of the vehicle were again  replaced on 14.11.2009 free of cost .The second respondent informed the appellant that the vehicle suffered from manufacturing defect.

3.             The second respondent informed the appellant on 12.01,2010 that the clutch plates of the vehicle would be replaced before 18.01.2010 which the second respondent had not replaced. The appellant got issued notice to the respondents and the respondents failed to give reply to the notice and return the vehicle to the appellant.

4.             The second respondent resisted the claim on the premise that the appellant used the vehicle for 28 days and 743 kms prior to first service and for about 84 days and 2,500 kms prior to second service.  The vehicle reported 4695 kms at the time of third servicing  and the in the job card the problem was noted as burning of clutch plates which are not covered by warranty. The appellant paid an amount of `661/- and taken delivery of the vehicle on 10.09.2009 without raising  any protest.

5.             During the fourth service on 14.011.2009 at 6967 kms on examination of the vehicle , it was found that clutch plates of the vehicle were burnt out and at request of the appellant and as good will gesture, the second respondent replaced the clutch plates free of cost. The second respondent had not informed any time to the appellant that there was manufacturing defect in the vehicle. On 12.01.2010 the appellant complained of low pick up of the vehicle and on examination it was found that the clutch plates were burnt and the appellant insisted for replacement of the clutch plates for free of cost. On denial by the second respondent, the appellant left the vehicle at the service center of the second respondent and got issued notice dated 20.01.2010 for which reply was given on 12.03.2010.

6.             It is contended that the clutch plates are consumable items and they are not covered by warranty . The second respondent explained to the appellant the reason for burning out of the clutch plates and their being not covered by the warranty cover and request of the appellant is contrary to the terms of warranty. The appellant had not produced any expert’s evidence and he is not entitled to any relief.

7.             The appellant filed his affidavit and the docuents,ExA1 to A17 whereas the Manager (Law) of the second respondent had filed his affidavit and the documents,ExB1 to B11.

8.             The District Forum dismissed the complaint on the premise that the vehicle ran for considerable distance; there is no manufacturing defect in the vehicle; burning out of clutch plates is due to wear tear and it is beyond the scope of warranty which cannot be a ground for the appellant to claim for refund of the cost of the vehicle or replacement of the vehcie.

9.             Aggrieved by the order of the District Forum, the complainant has filed appeal contending that the District Forum erroneously observed that the vehicle covered 80,543/- kms as on 12.01.2010 within 9 months of its purchase whereas the mileage covered by the vehicle is 8543 kms and that the District Forum failed to consider the choking up, mileage and pick up were  seen from the beginning  and that the model was a failure on account of which the respondents stopped manufacturing the vehicles of the same model.

10.            The points for consideration are:

i)             Whether the vehicle suffered manufacturing defect?

ii)           Whether the clutch plates are covered by the warranty cover?

iii)          Whether the respondents rendered deficient service?

iv)         To what relief?

v)            

11.           POINTS NOs.1 to 3:   The disputes between the parties are in regard to the problems the vehicle Bajaj Motor Cycle posed within one year of its purchase. The appellant purchased the vehicle on 10.04.2009 from the second respondent which was manufactured by the first respondent. The appellant complained of low pick up whereas the second respondent would submit that on examination of the vehicle it was found that the problem was burning out of clutch plates which are not covered by the warranty certificate.

12.            The warranty provided for the vehicle is for a period of two years or 30,000 kms whichever event occurs earlier. The vehicle was taken for four times for servicing and each time the problem reported by the appellant and those found on its examination by the mechanic of the second respondent are noted in the job cards. The problems noted in the job cards are reproduced hereunder:

        1.     Dated: 7.5.2009  -       Engine Oil replacement, Auto Glym.

        2.     Dated:04.09.2009 -     Brake Oil, Mileage lo (48), Engine oil R/p

        3.     Dated:10.09.2009 - General Service, Engine Oil R/p    
        L/B.L/checkup, Kick start check up

        4.     Dated:14.11.2009  -    General Service, Pickup Low DL/NW

        5.     Dated:12.01.2010  -    Pickup low checkup, Horn sound checkup

13.            The job cards would show that there was no consisting problem regarding the low pick up as was reported by the appellant. The vehicle covered a distance of 743 kms  in 28 days by the date of first servicing and 743kms in 84 days as on the date of second servicing.  The problem of low pickup as persistently complained by the appellant in the complaint is not found even in the job card on the occasion of the third servicing. The vehicle covered distance of 4695 kms by the date of third servicing and  the problem in regard to the clutch plates was found for the first time by the second respondent during the third servicing of the vehicle.

14.            As the clutch plates are not covered by the ambit of  the warranty, the second respondent replaced them with new clutch plates for `661/- paid by the appellant. The appellant sought for the amount on the premise that the clutch plates are replaced within the warranty period. It is to be noted that each and every part needed to be replaced will not  be replaced free of charge within the warranty period. Those items of the vehicle which are exclusively covered by the scope of warranty would be replaced free of charge within warranty period.

15.            Clutch plates are excluded from the scope of warranty coverage. As such the appellant cannot seek for refund of the amount spent for replacement of clutch plates done during third servicing within the warranty period.  The problem of clutch plates cropped up during the fourth servicing on 14.11.2009.   This time, however the second respondent replaced them free of charge on the request of the appellant as a good will gesture. As such the only persistent problem was  with the clutch plates which are beyond the scope and ambit of warranty inasmuch as the vehicle surpassed the  warranty period.

16.            It is settled law that the vehicle can be ordered to be replaced only on proof thereof by the purchaser of the vehicle. The appellant tough contended that there was manufacturing defect in the vehicle , he had not paid much focus on the aspect and did not examine any expert to the effect. As such the relief for replacement of the vehicle cannot be granted. The appellant failed to show that the complaint of poor pick up of the vehicle was made during the first servicing, second servicing and the third servicing of the vehicle. The burning out of the clutch plates is not covered by the warranty cover and only as a good will gesture  the second respondent replaced the clutch plates during the fourth servicing of the vehicle. In absence of contractual liability, the second respondent cannot be found fault with for charging the appellant for replacement of the clutch plates of the vehicle.

17.            The typographical mistake crept in mentioning the distance covered by the vehicle as 89543/- instead of 8,453/- in the order of the District Forum has not in any manner affected the finding inasmuch as specific finding  was returned in regard to  failure of the appellant to prove the deficiency in service alleged by the appellants as under:

Moreover, Ex.A5 Owners Manual consisting warranty certificate at page 28 to 31 clearly shows that the vehicle warranty was for 2 years or 30,000 kilometers whichever occurs earlier from the date of sale.   It also makes it clear at point 2 part ‘c’ in page 30 that parts subjected to clear wear & tear like Clutch Plates, BrakeShoes, Chain, Sockets, fork, Oil Seal, Spark Plug, Control Cables, Brake Pads” are excluded from the scope of warranty replacement.    Inspite of this the Complainant filed this complaint wholly based on the defective working of the Clutch Plates which was only the natural result of daily wear and tear.    As such, we hold that the wear and tear of the Clutch Plates doesn’t amount to a manufacturing defect and as such, the claim put forth by the Complainant is misconceived and untenable on all counts and so the complaint itself becomes liable to be dismissed.  

18.            The District Forum has not committed any factual or legal error in arriving at the conclusion that there was no deficiency in  service on the part of the respondents. We do not find any merit in the appeal.

19.            In the result, the appeal is dismissed confirming the order of the District Forum. The parties shall bear their own costs.

                                                                                MEMBER

                                                                                MEMBER

                                                                           Dt.17.09.2012

KMK*

                                                OK