BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 2nd February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C. No.138/2013
(Admitted on 20.05.2013)
Mr. Roque Serrao,
S/o Bonaventure Serrao,
Aged 38 years,
Residing at Neerude,
Badaga Yekkar,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri KP)
VERSUS
1. M/s Ballal Auto Agency,
Mahaveer Building,
Bendoor, Mangalore 575002.
Represented by its authorized signatory
2. M/s Piaggio Pvt Ltd,
101 B/102, Phenoix,
Bund Garden Road,
Opp.Residency Club, Pune 411001.
Represendted by its authorized signatory
…..........OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 & No.2: Sri MRB)
ORDER DELIVERED BY HON’BLE MEMBER
SRI T.C. RAJASHEKAR:
- 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against opposite parties claiming certain reliefs to replace Cylinder and Piston Assy Kit or alternately pay Rs.5,485/, to pay Rs.25,000/ towards loss of income and to pay compensation of Rs.10,000/.
2. In support of the above complaint Mr. Roque Serrao filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C5 as detailed in the annexure here below. On behalf of the opposite party Mr. Nagesh P (RW1) Works Supervisor, also filed affidavit evidence and not replied the interrogatories served on him and produced documents got marked at Ex.R1 to R3 as detailed in the annexure here below.
The brief facts of the case are as under
We have perused the complaint and the version of the parties. This dispute is with regard to not properly repair the complainant’s when given for repair. The complainant alleges that he had purchased an Auto rickshaw (hereinafter called ‘the vehicle’) for eking livelihood. On Jan 2013 he gave his vehicle for repair to attend the compliant of starting trouble and the opposite party no 1 repaired the vehicle by replacing the cylinder and the piston assembly. Again on 08.03.2013 the same problem crops up and the opposite party no 1 again replaced the cylinder and the piston assembly. But after sometime again during the second week of April 2013 same problem cropped up. On informing the opposite party no 1 he suggested for reboring again to be done, the opposite party no 1 has not done the proper repair in the previous occasion and hence the problem cropped up again and again. Hence alleges deficiency in service from the part of the opposite parties. The opposite party no 1 contended that the problem with the vehicle is due to mixing of the fuel and overheating. They have done a proper repair and the complainant has been informed about the problem. These are being the facts of the dispute in resolving it we consider the following
POINTS FOR ADJUDICATION
We have considered the evidence produced by the parties and the documents on file. The admitted facts are. The vehicle of the complainant was given for repair on 03.01.2013 and on 08.03.2013 for the same problem and the major parts replaced are also same. Again the vehicle taken to opposite party no 1 for the same problem. It is admitted that the opposite party refuse to repair free of cost on request by the complainant. The running kilometers reading in different time is also admitted. It is denied that due to not proper repairing of the vehicle has given same problem again and again and there is deficiency in service. It is also denied that the repeated defect is due to fuel mixing and the overheating of the engine as contended by the opposite party no 1. These are being the facts of admissions and the denials in our opinion the following points may be considered for resolving this dispute.
- Whether the complainant is a consumer under Consumer Protection Act 1986?
- Whether the opposite party proves that the problem in the vehicle is due to fuel mixing and overheating but not because of poor service?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have carefully examined the pleadings of the parties and the evidence lead. The opposite party not replied the interrogatories served by the complainant. The documents filed are considered and the submissions heard. We answered the above points as under:
- In the affirmative.
- In the negative.
- In the affirmative.
- As per delivered order.
REASON
POINT NO 1: The EX-C 1 & 2 and the EX-R 1&2 established the complainant has given his vehicle for repair and the opposite party has repaired it. The opposite party no 2 is the manufacturer of the vehicle. There is relation of consumer and the service provider between the complainant and the Opposite parties. Hence the answer is in the affirmative.
POINT NO 2: The specific case of the complainant is the vehicle given for repair is not properly repaired by the opposite party and hence there was same problem twice within a short span. The vehicle once rebored should serve for at least 60,000 kilometers but whereas within a span of 3245 kilometers the vehicle faced the same problem. On Jan 2013 the opposite party has replaced the Cylinder and the Piston Assembly and again on 08.03.2013 also the opposite party had replaced the Cylinder and the piston Assembly. Again in the second week of April 2013 vehicle faced the same problem and the opposite party suggested to go for reboring but refused to do it on free of cost. The opposite party no 1 contends that the problem is due to mixing of fuel and overheating of the engine. Opposite submits that, in April 2013, the supervisor and the work in charge who inspected the said vehicle on representation of the complainant observed that the fly wheel fan cover of the vehicle was broken and opined that it is due to apparently the bore Piston on account of overheating of engine. The cylinder and the piston assembly kit fitted are correctly replaced and there was no manufacturing defect in the cylinder and the piston assembly kit. Relying on this finding the opposite party claims there is no either manufacturing defect or service defect. Now it is the burden of the opposite party to prove that because of fuel mixing and overheating the problem is faced in the vehicle hence the point no 2 taken for consideration.
2. Even though the opposite party no1 claimed that the vehicle was inspected by the in charge supervisor and the supervisor certified that the cylinder and the piston assembly kit fitted properly and there is no manufacturing defect in the cylinder and the piston assembly kit and the problem is due to overheating of engine. The opposite party not examined the supervisor or produced any documents to that effect. It is also not documented that the fuel mixing caused the fly wheel fan cover breaking due to the overheating and the result is damage of the cylinder and the piston assembly. A suggestion also made through interrogatories by the complainant in Q no 3 & 4 and 11 to negate the opposite party contention that the frequent problem with engine is due to fuel mixing and the overheating, but the opposite party refrain from answering interrogatories. In interrogatories Q no 10 of the opposite party served to the complainant, the complainant in his reply affidavit affirmed that he is using Indian oil petrol but not poor quality. Hence we are not in a position to accept the contention of the opposite party no 1. Hence we are of the opinion that the opposite party not proved their case as per point no 2. Hence the point no 2 in the negative.
POINT NO 3: In the background of the above discussion we hold the opposite party no 1 has not proved that the frequent problem in the vehicle engine is due to fuel mixing causing the overheating of the engine and hence liable for the improper service of the complainant’s vehicle. The complainant had prayed for a direction to opposite party to replacing the Cylinder and the Piston assembly or in alternative to refund of ₹ 5485/ paid for the unsuccessful job done by the opposite party no 1. In the situation of the deficiency in service being happened in the year 2013, it is presumed that the complainant by this time might have gone for alternative arrangement, we think fit the alternative prayer may be considered. The complainant is entitled to get an amount of ₹ 5485/ with interest of 9% per annum from the date of complaint till the date of payment and ₹ 15000/ as compensation for mental agony and the loss of income and an amount of ₹ 8000/- as litigation expenses. The opposite party no 2 is the manufacturer and the there is no specific relief payed against the opposite party no 2. Also it seems the defect happened after the warranty period is over as the complainant not claimed any warranty in his complaint. In our opinion the opposite party no 2 should be discharged from the liability. Hence we answered the point no 3 in the affirmative.
POINT NO 4: In the result of the forgoing discussion and the adjudication we deliver the following
ORDER
The complaint is allowed. The opposite party no 1 shall pay the complainant an amount of ₹ 5,485/ (Rupees Five thousand Four Hundred Eighty Five only) with an interest of 9% per annum from the date of complaint till the date of payment and an amount of ₹ 15,000/ (Rupees Fifteen thousand only) towards compensation and ₹ 8,000/ (Rupees Eight thousand only) towards litigation expenses. The opposite party no 2 discharged from the liability.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by member, revised and pronounced in the open court on this the 2nd February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. Roque Serrao
Documents marked on behalf of the Complainant:
Ex.C1: 03.01.2013: Invoice
Ex.C2: 08.03.2013: Invoice
Ex.C3: 17.04.2013: Copy of notice sent to OP
Ex.C4: : Postal acknowledgment
Ex.C5: : Postal acknowledgment
Witnesses examined on behalf of the Opposite Party:
RW1 Mr. Nagesh P, Works Supervisor
Documents marked on behalf of the Opposite Parties:
Ex.R1: Copy of the job card dated 03.01.2013
Ex.R2: Copy of the job card dated 08.03.2013
Ex.R3: Copy of the lawyer’s reply notice
Dated: 02.02.2017 MEMBER
