O R D E R
(By Sri S. Bhaskara Rao, Member on behalf of the Bench)
1. Seeking a direction for refund of the amount paid by him for purchasing two wheeler or alternatively directing the opposite parties to provide a new motor cycle which gives 45 kmp per liter and also damages and costs, the complainant filed this complaint against the opposite parties.
2 According to him he purchased Mahindra Duro B5 111 from 2nd opposite party on 26.03.2011 for Rs. 48,700/-. At the time of purchase the opposite parties informed that the said motor vehicle would give mileage of 45 km per liter and they provide 8 free services in regular intervals.
3 After purchasing the vehicle he used the vehicle for few days and found the mileage as guaranteed by opposite parties was not given. But it was giving a mileage 20-35 km per liter. Immediately he brought the vehicle to the service station of the 1st opposite party whose engineers informed him after one or two free services it gives more mileage. Satisfied with the said assurance, he waited for said period. He got the vehicle serviced for two times but there were no improvement in mileage and more over it was giving troubles in smooth running. He was approaching the 2nd opposite party every day and he paid amounts for services even though the said vehicle is under warranty period. The 2nd opposite party did 6 free services but still there is no improvement in the condition. Then he showed the vehicle to private mechanic. He tested and found there is inherent defect in the vehicle and the vehicle would not give more than 26 kms per liter. Thus according to the complainant there is deficiency of service on the part of opposite party as the vehicle did not give the assured mileage and on account of the same, he suffered mental agony. Thus he sought refund of costs of the vehicle together with interest or alternatively a new vehicle in the place of old vehicle.
4 The 2nd opposite party remained exparte and the 1st opposite party filed written version denying the material allegations in the complaint. According to them the vehicle was returned in working condition by 1st opposite party. Thus the act of taking the vehicle to a private mechanic amounts to unauthorized servicing which is against the terms and conditions of the warranty. The allegation that there is inherent defect in the vehicle is without any basis. The vehicle was re-delivered to the complainant in running condition by the 1st opposite party. Further according to 1st opposite party the complainant has not availed all the services as per the service warranty terms and conditions and thus it amounts to failure and non observance of instructions given in the owners manual. Thus according to them the vehicle of the complainant is in perfect running condition. According to warranty they undertook to repair or replace free of charge, within a period of 24 months from the date of the sale or running of 20,000 kms whichever is earlier, all such parts except plastic, rubber items & proprietary parts like battery, spark plug, bulbs, tyre and tube which upon their examination will reveal to be having manufacturing defect to the entire satisfaction of the manufactures. The warranty excludes any loss or damage due to normal wear & tear for the parts such as clutch shoes, brake shoe, variator roller, drive belt, one way clutch and cylinder piston etc. All parts failing due to manufacturing defect and coming under the above terms of the warranty should be sent to Mahindra Two Wheelers Limited, Pithapuram through any of their authorized outlet duly accompanied by way of proper warranty of claim form. According to warranty replacement of vehicle is not at all warranted. Thus the main contention of the 1st opposite party is that there is no defect as alleged by the complainant and on the other hand, the complainant has not followed the instructions given in the owners manual.
5 Now the points for determination are:
- Whether there is any deficiency of service on the part of the opposite parties?
- If so, whether the complainant is entitled for the amounts sought by him
- To what relief?
6. Point No.1: The complainant to substantiate his case filed his chief affidavit and got marked the receipt issued by the 2nd opposite party as Ex.A1, the receipts for Rs. 220, Rs. 440/-, Rs. 250/-, Rs. 340/-, Rs. 225/-, Rs. 200/- respectively as Exs. A2 to A7 and private mechanic certificate as Ex.A8.
7. The opposite parties did not adduce any evidence.
8 As seen from the complaint and chief affidavit of the complainant and also the documents marked on its side it would go to show that inspite of his approaching the opposite parties for rectification defect in the vehicle purchased by him they have not properly attended to it and as such he approach a private mechanic who issued Ex.A8 certifying the defect in the engine and it is giving poor mileage.
9 As seen from Ex.A8 the said certificate is said to have been issued by Munwar Basha, Basha Auto Works, Ramasomayajulu Street, Kakinada. Though the complainant chose to file such a certificate, admittedly he has not filed any affidavit of the said Munwar Basha supporting the said certificate. For that matter even the name of this mechanic is not disclosed by the complainant at the first instance in the complaint.
10 As seen from the written version of 1st opposite party they would provide 8 free services in regular intervals. But the complainant failed to avail all the 8 services and on other hand chose to approach a private mechanic which is against the conditions of warranty.
11 During the pendency of proceedings it appears the complainant again approached Varsha Motors, Rajahmundry, who issued the job card on 20.05.2014. As there is no supporting material evidencing the complainant adhering to the terms and conditions of the warranty and also for not filing the affidavit of the mechanic issued by Ex.A8, it can be said the complainant failed to produce sufficient material to sustain his claim. Though the opposite parties did not adduce any evidence, as it is primary burden is on the complainant, he must produce satisfactorily evidence showing the deficiency of service on the part of opposite parties which is lacking in this case. Hence this point is answered against the complainant.
12. Point No.2: As this Forum finds there is no deficiency of service on the part of opposite parties, the complainant is not entitled for any amount. Hence this point is answered accordingly.
13. Point No.3: In the result the complaint is dismissed in the circumstances without costs.
Dictation taken by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 23rd day of January, 2015.
Sd/- xxxx Sd/- xxxxxxx
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant :
PW1: Sri Shaik Karimulla [Complainant ]
For opposite parties: NIL
DOCUMENTS MARKED
For complainant:-
Ex.A1 26.03.2011 Receipt for Rs. 30,000/- issued by the Aarush Motors to the complainant [original]
Ex.A2 28.04.2011 Receipt for Rs. 220/- issued by the Aarush Motors to the complainant [original]
Ex.A3 02.06.2011 Receipt for Rs. 440/- issued by the Aarush Motors to the complainant [original]
Ex.A4 02.06.2011 Receipt for Rs. 250/- issued by the Aarush Motors to the complainant [original]
Ex.A5 30.11.2011 Receipt for Rs. 340/- issued by Sai Durga Auto Spares [original]
Ex.A6 30.11.2011 Receipt for Rs. 225/- issued by the Aarush Motors to the complainant [original]
Ex.A7 20.11.2011 Receipt for Rs. 2000/- issued by the Aarush Motors to the complainant [original]
Ex.A8 Mechanic Certificate issued by Basha Auto Works, Kakinada [original]
For opposite parties:- NIL
Sd/- xxxx Sd/- xxxxxxx
MEMBER PRESIDENT
