CDRF Wayanad Civil Station,Kalpetta North consumer case(CC) No. 196/2001
Anil kumar
...........Appellant(s)
Vs.
Bajaj Auto Ltd,Pune Bajaj Auto Ltd,Cochin Hindustan Business Corporation,Calicut
...........Respondent(s)
BEFORE:
1. K GHEEVARGHESE 2. SAJI MATHEW
Complainant(s)/Appellant(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
OppositeParty/Respondent(s):
ORDER
BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, WAYANAD, KALPETTA. O.P. NO.196/2001 Dated this the 6th day of December 2007. PRESENT:- Sri. K. Gheevarghese, M.A, L.L.B. - President. Smt. Saji Mathew, B.A, L.L.B. - Member. Anil Kumar, S/o Thomson, : Vadkkumkaraputhan Veedu, : Poothanam Colony, Pulpally, : Complainant. Wayanad District. : 1.Bajaj Auto Limited, : Akurdi, Pune 411 035. : : 2.Bajaj Auto Limited, : Kerala Regional Office, Krishnkripa, : Opposite Parties. 39/3584, KSN Menon Road, : Cochin-682 016. : : 3.Hindustan Business Corporation, : East Nadakkavu, Calicut. : Complainant by :- Sri. T.M. Rasheed, Advocate, S. Bathery. Opposite Parties by:- Sri. P. Anupaman, Advocate, Kalpetta. ORDER By Sri. K. Gheevarghes, President: The complaint filed under section 12 of the Consumer Protection Act. The complaint in brief is as follows. The Complainant, the unemployed person purchased Bajaj 4 stroke single cylinder engine Autorikshaw. The Engine No. AAM BGM 52572 chassis No.AAF BGM 35107. The vehicle was purchased from the Opposite Party No.3 and registered at Regional Transport Officer, Wayanad bearing No.KL 12 B 1281. From the beginning onwards the Autoriksahw shows different complaints. The vehicle could not be run continuously beyond short distance. (Contd ..... 2) - 2 - The engine heated fastly, the petrol consumption is very high. The consumption of engine oil raised near about one litre per day. The piston is very weak and crank is shaking. The several defects of the vehicle was informed the Opposite Party No.3, as per the direction of the dealer the services were also done in time. At the time of service several minor repairs were carried out. However the vehicle was not free from defects which were born out in manufacture. The Complainant realised model RE 4 stroke Engine as several manufacturing defects and the particular mode of production of the vehicle was stopped by the Company. As an unemployed, the purchase of the vehicle was with bunches of expectations. The Complainant was forced to push in to the depth of monetary lose. The bank loan which already availed for the purchase of the vehicle was multiplied with interest. Since the production of the vehicle was stopped, the availability of the spare parts also became so difficult. The Complainant prayed for a direction to give back the purchase price of the Autorikshaw Rs.72,000/- with 18% interest till the date of payment from 18.12.2001, Rs. 10,000/- towards expenses. The Complainant is to be given Rs.25,000/- for the mental agony and difficulties. The Opposite Parties filed version on their appearance. The Opposite Parties No.1 and 2 admitted the sale of vehicle. The relief claimed by the Complainant is unsustainable. According to the Opposite Parties No.1 and 2 the Complainant misused vehicle. The vehicle was used roughly and extensively if any defects caused to the vehicle. It was only due to the mis-management of it. The defects developed due to the improper and rough use of vehicle cannot be turned as manufacturing defects. Above all the minor complaints which were noted and informed at the time of free service were rectified. The vehicle was covered 5700 km during the period of 6 months. It reiterates the rough use of the vehicle. There is no deficiency in service (Contd.. .....3) - 3 - on the part of the Opposite Parties No.1 and 2. Apart from that the vehicle was used for commercial purpose as a result the complaint is not maintainable under the provisions of Consumer Protection Act. The warranty period was consumed. The purchase of the vehicle effected on 18.04.2001. The service available for the Complainant was fully used. Filing the complaint beyond the limit of warranty period is not maintainable. The Opposite Parties No.1 and 2 further reiterated that the vehicle was delivered only after a thorough check up. At the instant of delivery, the Complainant was fully entitled for rejecting the vehicle .This itself shows the vehicle was in good conditions. The Opposite Parties cannot assure, whether the Complainant was in use of the vehicle as per the instructions and stipulations given by the Opposite Parties. No expert opinion is brought out by the complainant. The use of the vehicle for 5700 km normally manipulate wear and tear to a limited extent. What all repairs required by the Complainant, those were done freely upon the warranty. The manufactures warranty extended to the replacement of such part or parts that were found defective on examination. Three free warranty services and two paid services were given to the vehicle, based on conditions. The 4 stroke Rikshaw is a newly developed Rikshaw with high technical features it is different from 4 stroke engines. Regarding the fuel consumption the vehicle keeps up standard range. The fuel consumption is related to different reasons. The consumption of fuel absolutely subjective, it differs from driver to driver and surface to surface. The same vehicle will show different range of oil consumption in different places depending on the driving style weight of load and other things. If any shortage in millage if evented that cannot be raised as a ground for the replacement of the vehicle. The Complainant prayer towards the lose of financial and mental lose are purely imaginary. The complaint is filed to harras the Opposite Parties. The Complaint is to be dismissed with cost. (Contd....... 4) 4 - The Opposite Party No.3 averred that they are only the dealers of M/S Bajaj Auto Ltd Akurdi, Pune manufacatured of Bajaj vehicle including Autorikshaws. As a dealer the liability vested on them is to rectify the defects. The warranty does not cover replacement of vehicle. Necessary repairs were done by the dealer and it also includes replacement of defective parts. The allegations of the Complainant that the vehicle showed trouble from the very beginning is denied by the Opposite Party No.3. The allegations of excess petrol consumption of engine oil one litre per day, weak piston, shaking crank and defective clutch are denied by the Opposite Party No.3. The defects noted by the Opposite Party No3 were rectified by the full satisfaction of the Complainant. Since the vehicle became defective within the short period of 6 months it shows that the vehicle was used extensively. The Complainant is not entitled for any relief as sought for. The warranty period is only four months from the date of delivery, the warranty was extended till 03.09.2002. It was undertaken to rectify the defect during that period. Points which are to be considered are: 1.Whether the vehicle sold to the Complainant is having defect in manufacture?. 2.Relief and cost. Point No.1:- The Complainant is examined as PW1. It is deposed that the engine was heated excessively, the clutch was raising the consumption of oil was too much and there was no normal pulling. The vehicle was taken to the dealer in several occasions. The photocopy of the RC is the Ext. A1. The Ext.A2 series 9 in numbers shows the bill towards the repair. The copy of the warranty certificate is Ext.A3. The vehicle was also repaired from the other work shop. Ext.A4 series 8 in numbers are the bills showing the payment given towards repair. The Ext.A5 are the (Contd........ 5) 5 - receipts. According to the Complainant the warranty was extended due to the combined strike of the 4 stroke Autorikshaw owners of Bajaj make in front of the office of the Opposite Party No.3. It is to be considered that the warranty was extended till September 2002. The Commissioner inspected the vehicle twice Ext.C1 and C2 are the commission report. According to the report of the Commissioner the engine of the vehicle is very weak valve setting are not proper, the piston and piston rings are weak. The engine is having very poor compression, the engine is to be overhauled to make it in running conditions. The clutch system is very defective. The defected clutch when functions causes over heating excess oil consumption low pulling capacity. The inspection of two vehicle KL 12 B 1281 and KL 12 B 854, the connected matter was carried out and the report was filed. No objection to the commission report was filed by the Opposite Parties No.1 and 2. The Service Manager of the Opposite Party No.2 is examined as OPW1. The OPW1 deposed that there were complaints in large extent about the 4 stroke type of Autorikshaw. The customers ceased to purchase the 4 stroke vehicle as admittedly stated by the OPW1. It is further testimonied when thousand of 2 stroke vehicles were sold only one 4 stroke vehicle was sold from Trivandrum. It is to be presumed that the vehicle sold to the Complainant is defective in manufacture. The reports of the Commissioner Ext.C1 and C2 up held the defect the point No.1 is found in favour of the Complainant. The vehicle sold to the Complainant is having defect in manufacture. Point No.2: The Complainant was in use of the vehicle and run the vehicle for a distance of 5700 km. The Complainant prayed for the refund of the price given to the Opposite Parties with 18% interest from 18.04.2001 till the payment. The proportionate deduction from the price of the vehicle in inturn of the use of vehicle is required. When the complaint was filed the vehicle (Contd........ 6) - 6 - already covered a distance of 5500 km or 120 days. Regarding the stipulations of the warranty no document was produced by the Complainant to show that the warranty was extended. How ever in connected case OP .195/01 the extension of warranty was admitted. In Mahindra and Mahindra Lmited V/S Mahesh Sukthanker (2004 (2) CPR 49). The Honorable National Commission held that the proportionate deduction is to be there for use of the vehicle. The vehicle was used only for the run of 5700 kms and is also admitted by the Opposite Party No.3. The warranty was extended to 03.09.2002. The complaint is filed within the warranty period. The Opposite Party No.3 is the dealer. The service in free of cost was stated to be given to the Complainant during the warranty period. The manufactures are liable for selling the particular type of vehicle which is born with defects in manufacture. In the result Rs. 72,000/- (Rupees Seventy Two thousand only) is to be paid to the Complainant with 12% interest from the date of filing of the complaint till payment by the Opposite Parties No.1 and 2. The Complainant is also entitled for the compensation of Rs.5,000/- (Rupees Five thousand only) along with the cost of Rs.2,000/- (Rupees Two thousand only) The Opposite Parties No.1 and 2 are directed to give the Complainant this amount within one month from the date of receiving this order. In case of any failure on the part of Opposite Parties No.1 and 2, the Complainant can execute this order according to the provisions of law. Pronounced in open Forum on this the 6th day of December 2007. PRESIDENT: Sd/- MEMBER: Sd/- /True Copy/ PRESIDENT, CDRF, WAYANAD. - 7 - APPENDIX Witnesses for Complainant: PW1 Anil Kumar. Complainant. Witnesses for Opposite Parties: OPW1. C.M. Mathew. Service Manager. Exhibits for Complainant: A1. Certificate of Registration (Photo copy) dt:08.05.2001. A2.Series Bill. (9 in numbers) A3. Copy of Warranty Certificate. A4.Series Bill. A5.Series. Bill. A6.Series. Bus ticket. A7. Acknowledgment. C1. Commission Report. dt:11.10.2002. C2. Commission Report. dt:29.12.2003. Exhibits for Opposite Parties: Nil. PRESIDENT, CDRF, WAYANAD. Compared by: M/-
