KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                   VAZHUTHACADU    THIRUVANANTHAPURAM

       APPEAL  NO. 743/12

          ORDER DATED:16/11/2013

(Appeal filed against the order in CC No.520/2010 on the file of CDRF, Ernakulam, dt: 28.11.2011)

PRESENT

SRI.K.CHANDRADAS NADAR                     :                              JUDICIAL MEMBER

SMT. SANTHAMMA THOMAS                   :                              MEMBER

M/s. MICO BOSCH Ltd.,

R/by M. Anup Kumar,

Commercial Manager,

MCM Building,

38/232, N.H. By pass,

Palarivattom, Kochi-24                                        --                                APPELLANT

(By Adv. Sri. P.Raveendran)

V/s.

1.Shri.E.V. Alias,

Edayat House, Ayavana P.O.,

Muvattupuzha

(By Adv. Sri. Tom Joseph)

2. Managing Director,

Mahindra & Mahindra Ltd.,

Gate way Building,

Appolo Building, Appolo Bunder,

Mumbai – 400039

(By Adv. Sri. Sunil C.G. & Othrs)

3. M/s. T.V. Sundaran,

Iyengar & Sons Ltd., Post Box No. 1891,

National Highway, Kaloor, Cochin-17          --                                     RESPONDENTS

(By Adv.Sri. S. Laila)

                                                                        ORDER

SMT. SANTHAMMA THOMAS    :    MEMBER

This appeal is directed against order dated 28//11/2011, passed by District Consumer Disputes Redressal Forum, Ernakulam, in CC No.520/2010, whereby the appellant was directed to pay a sum of Rs.12,848/- with interest @ 9% per annum from the date of complaint till realization and also pay Rs.1,000/- towards costs of the proceedings in the Forum.

2.        The appeal, according to the office report, is barred by time.  The appellant has filed an application under Rule 8(4) of the State Rules for condonation of the said delay.  It has been stated that complaint was decided ex-parte and the appellant had no information or knowledge about the complaint as well as the order passed therein.  For the first time, on 15.02.2012 the appellant became aware of the impugned order when he received the order by post.  Thereafter immediately the appellant approached and entrusted the matter with an advocate in Ernakulam, but only on 20/03/2012 the said advocate returned the file requesting the appellant to file the matter in Hon’ble Commission.  Subsequently the matter was entrusted with an advocate in Thiruvananthapuram but however due to internal procedural delay of the appellant head office, Bangalore,  final copies of complaint and other relevant documents were handed over only by 13/08/2012.  Official delays and lack of sufficient manpower at Thiruvananthapuram had contributed to the delay.  It is evident that there was a delay of 194 days after the receiving the original order.  We are, however, satisfied that a reasonable explanantion for the delay in filing the appeal has been furnished by the appellant.  Hence, delay is condoned.

3.        Appellant is the 3^rd respondent in the Lower Forum and the complainant in the Lower Forum is the first respondent in this appeal.  The 2^nd & 3^rd respondents in this appeal were the 1^st & 2^nd respondents in the Lower Forum.  Brief facts 1^st respondent entrusted his Mahindra Bolero Jeep bearing Reg. No. KL-17F-5445 to the 3^rd respondent for a complaint of missing and low pulling power on 27-08-2010.  The 3^rd respondent traced out the problem to fuel system, more specifically to the fuel injection pump.  They advised the 1^st respondent to replace the component and this defect occured well within the warranty period of 18 month, from the date of purchase, i.e. 29-05-2009.  According to 3^rd respondent, they have noticed water entry in the entire fuel system including FIP, firdrl filter, diesel lines and diesel tank.  They changed the diesel filter and fuel lines as well as cleaned the diesel tank.  The fuel injection pump was removed and forwarded to the authorized service centre of the said proprietary item whom  is the appellant.  Appellant dismissed the claim under B1 warranty piolicy on the ground that the damamge to the fuel pump was caused by the entry of water indicating rash and negligent driving.

4.        It was concluded that 2^nd respondent shall not be made liable as the warranty on proprietary items such as fuel injection pump has been excluded under their liability under B1 warranty policy.  They take refuge under B1 warranty policy more precisely on note 4 of the said booklet at page 17 and holds that the manufacturer of the said component alone could be held liable on manufacturing defect of the said component.  Appellant was absent during the proceedings and hence due to lack of any conclusive evidence the Ld. Lower Forum decided the matter against the appellant considering the claim of the 1^st respondent has to be upheld and appellant are accountable for the same.

5.        However, instead of remanding the impugned order back to the Ld. Forum considering the fact that the appellant did not had an opportunity to bring forward his contentions, we thought it prudent in the interest of justice to decide the appeal on merit, on the basis of materials available on record.  After hearing both the parties at length and on going through the materials on record, we find that the 1^st respondent did not raise any concerns of his complaints to the authorized dealer i.e. 3^rd respondent, during any of the services provided for the  vehicle during the period of 6 services which included both paid and free within an interval of services for 5006 km to 32512 km.  Usually such details will be recorded in the service booklet put in this case even such records are absent and nothing is contained here in the booklet submitted as evidence.  There is no evidence on record that any complaint about defect in the vehicle was made to them during the previous services and 3^rd respondent declined to rectify the same. 

6.        Similarly, in the contention raised by the 3^rd respondent it was stated there was a water entry in the entire fuel system including FIP, diesel filter, diesel lines and diesel tank, which was a matter disregarded by theLower Forum and hence it has to be constructed that the 1^st respondent voilated terms and conditions of the warranty.  1^st respondent does not have substantial proof to prove that it was a defect of the component and not his negligence which caused the defect.  Further, the 1^st respondent failed to gather or try to submit expert technical opinion regarding the defect.

            In the result, we set aside the impugned order of the Lower Forum and hold that the complainant of 1^st respondent had no merit and the 1^st respondent failed to prove any deficiency in service on the part of the appellant and therefore the appeal is allowed but witout any cost.

SANTHAMMA THOMAS    :            MEMBER

K.CHANDRADAS NADAR  :             JUDICIAL MEMBER

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