Sri.Siddegowda, President 1. This complaint is filed under section 12 of the Consumer Protection Act 1986, against the Opposite party to direct the Opposite party to replace the side shield to the motor cycle with cost of Rs.1,000/- and compensation of Rs.10,000/-. 2. The case of the complainant is that he has purchased the Motor Cycle bearing No.KA-11-S-7525 from the Opposite party on 07.10.2008 and on 27.09.2008 he got serviced the vehicle and took to his house and when observed he found that the side shield covering battery side shield box (Air filter side) has been damaged near the bolt fixing place. Therefore, on 29.09.2008 and on 01.10.2008 he approached the Opposite party with motor cycle and informed the damage and to change the side shield and they told that the side shield is of fiber and the broken piece would be searched and if available it will be fixed. Thereafter, he approached the Hero Honda Showroom, Bangalore through phone and they told to approach the Opposite party and they would inform to change the side shield. Therefore, again when he approached, the Opposite party, refused to comply. Then he sent letter dated 03.10.2008 to the Opposite party for the rectification and the Opposite party by means of letter dated 10.10.2008 refused to replace the side shield, stating that somebody trying to commit theft of battery had broken. But it is a false defence and at the time of service, the Opposite party men have made this negligence. Therefore, the Opposite party has committed deficiency in service. Hence, this complaint. 3. The Opposite party has filed version disputing that the complainant purchased the motor cycle on 07.10.2008 and left the motor cycle for service on 27.09.2008 and it is denied that the complainant noticed that the battery side shield box bolt and nut were broken and the side shield was placed without putting the bolt and nut and on 29.10.2008 and on 01.10.2008, the complainant brought to the notice of the Opposite party about the damaged side shield and Opposite party informed that it is of fiber and if it is traced they will place it. Though the complainant sent letter dated 03.10.2008 and requested for the replacement of side shield, the Opposite party has replied that somebody might have broken the side shield. After attending the service, the motor cycle was handed over to the complainant in good condition; after satisfying himself about the service he has taken delivery of the vehicle by putting signature to the job card. The Opposite party is responsible for breaking of the side shield during service. The same might have occurred out side for which the Opposite party is not responsible. The job card falsifies the contention of the complainant. There is no merit in the complaint which contains the false allegations. The Opposite party has not committed any deficiency in service and complaint is to be dismissed with costs. 4. During trial, the complainant has filed affidavit and produced the documents Ex.C.1 to C.4 and complainant is examined. The Managing Partner of the Opposite party is examined and has produced the documents Ex.R.1 & R.2. 5. We have heard both sides. 6. Now the points that arise for our considerations are:- 1. Whether the Opposite party has committed deficiency in service? 2. Whether the complainant is entitled to the relief sought for? 7. Our findings and reasons are as here under:- 8. Though the Opposite party has disputed the date of purchase of the motor cycle, it is an admitted fact that the complainant purchased the motor cycle bearing No.KA-11-S-7525 on 07.08.2008. It is an admitted fact that the first service to the motor cycle was done on 19.08.2008. It is an admitted fact that the motor cycle was left for second free service on 26.09.2008 and not 27.09.2008 as pleaded by the complainant. It is an admitted fact that on 27.09.2008 after service by paying the oil charges as per the receipt Ex.C.4 on 27.09.2008, the Opposite party delivered the motor cycle and the complainant took possession of the delivered motor cycle and went to the village. The grievance of the complainant is that in the village on 27.09.2008 he found that the side shield was broken near fixing the bolt nut which covers battery side shield box and thereafter he approached the Opposite party on 29.09.2008 and again on 01.10.2008 and informed about the damage to side shield of the motor cycle and replace and they told that they would search the broken piece and paste it if it is traced and after approaching the South Zone of Hero Honda Showroom, Bangalore, he approached the Opposite party, but the Opposite party refused and so he sent a letter on 03.10.2008 as per Ex.C.2 and Opposite party sent reply letter as per Ex.C.3. 9. Now according to the contention of the complainant, at the time of servicing the vehicle, the mechanic of the Opposite party has damaged the side shield cover by over tightening and again have just fixed, but according to the Opposite party somebody have damaged the side shield cover in order to commit theft of battery and therefore is not liable to replace the side box shield cover. 10. Now, the burden is on the complainant to prove that the side box shield cover was damaged by the mechanics of the Opposite party during service on 26th and 27.09.2008. According to the complainant, he noticed only in the village after taking delivery of the vehicle about the damage to the side box shield cover. According to the complainant, on 29.09.2008 and 01.10.2008 he approached the Opposite party with motor cycle and the Opposite party told that in case the broken piece is traced it would be pasted, but it has caused external view of the vehicle and sought for replacement of the side shield by sending the letter Ex.C.2. The Opposite party had sent reply Ex.C.3 denying the same and pleaded that somebody have damaged while attempting to commit theft of the battery and it is common by the thieves. The Opposite party has produced Ex.R.1 the service job card and Ex.R.2 is the warranty registration cum service record, as per these records, motor cycle was left for second service on 26.09.2008 and oil change was made after service. In Ex.R.1 though the delivery date as fixed on 26.09.2008, admittedly the complainant has taken to the delivery of the motor cycle on 27.09.2008 by paying the bill of oil charges as per Ex.R.4. According to the evidence of the complainant while taking back the motor cycle from the Opposite party Showroom he did not verify and only on 28.09.2008 morning he found the damage to the side shield cover without the bolt. He has deposed that he does not know that it is the responsibility of the owner to verify any defect in the vehicle. In the complaint, it is not definitely stated when he found the damaged side shield, what he has stated is that he took to vehicle on 27.09.2008 after by getting service to the house and when observed he found the damage to the side shield near the bolt fixing position. So, under these circumstances. There is contradiction in the evidence of the complainant, there is no conclusive evidence whether the side shield box cover was damaged in the showroom of the complainant by the mechanics at the time of effecting the service. Because, he has not at all brought to the notice of the Opposite party about these damage at the time of delivery of the motor cycle, as deposed by the complainant. There is also possibility of damaging the side shield cover in order to commit theft of the battery of the motor cycle. Because, the complainant has admitted while traveling the motor cycle after taking delivery of the motor cycle to his village there was no sound of the battery box cover and he did not notice the damage of the box near the bolt place. If actually it was just fixed, without bolt, the side shield cover would definitely cause sound while riding due to shaking. So, for any damage to the shield cover out side after the delivery of the vehicle by the Opposite party providing second service, the Opposite party cannot be made liable without cogent proof. Therefore, the complainant has failed to prove that the Opposite party has committed deficiency in service. 11. The complainant has sought for direction to the Opposite party to replace the side shield cover with cost of Rs.1,000/- and also compensation of Rs.10,000/-. But in view of our finding, the complainant is not entitled to the relief sought for and there is no merit in the case. 12. In the result, we proceed to pass the following order; ORDER The complaint is dismissed. However, there is no order as to costs. (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 23rd day of January 2009). (PRESIDENT) (MEMBER) (MEMBER)
