Karnataka

Belgaum

CC/385/2013

Shashidhar S Hiremath - Complainant(s)

Versus

Gotadki Motore - Opp.Party(s)

V B Malannavar

16 Mar 2015

ORDER

(Order dictated by Shri. V.S. Gotakhindi, Member)

ORDER

          The complainant has filed the complaint u/s. 12 of the C.P. Act, against the O.Ps. alleging deficiency in non service/repair of motor cycle.

          2) The O.Ps. filed objection stating that they have resigned from the dealership of Yemha motors and not having any business establishment in address shown by the complainant. Further the O.P. submits that they have not knowledge in regards to purchase of the motor cycle-Yemaha RX 100 at Rs.18,000/-. These O.Ps. have denied that complaint intent to renovate the motor cycle and approached the O.Ps. garage and O.Ps. carried out the repairs and replaced the relevant part and O.Ps. charged Rs.33,498/- on 19/4/2011 and works carried as per the serial number shown in the workshop bill. The O.ps. also denied the redelivery of motor cycle in the month August 2011 after carrying out second repair but there was again defect in oil tank etc., These O.Ps. also denied that they refused to carry out the repair works of the motor cycle and in the month may 2012 he brought the vehicle to the workshop etc.,

3) The complainant and O.Ps. have filed their affidavits and certain documents are produced.

          4) We have heard the learned counsel for the complainant and O.Ps. and have perused the records.

5) Now the point for our consideration is that, whether the complainant has proved any deficiency in service on the part of the O.Ps. and that the complainant is entitled to the reliefs sought?

6) Finding on the point is in Negative, for the following reasons.

REASONS

          7) The complainant in the present case had already filed a complaint No.440/2012 which was subsequently withdrawn by the complainant with the permission to file a fresh one on the same cause of action against the O.Ps. and the said application was came to be allowed on 18/1/2013. The present complaint is filed by the complainant making the other O.Ps. who were necessary parties to the complaint.  There is no dispute that the complainant had taken the vehicle to the garage of O.Ps. to carry out the necessary repair works. The complainant alleged that he has purchase the motor cycle Yamaha RX-100 from one Sri. Francis for a sum of Rs.18,000/- on 8/8/2010 and his name appearing in the resiteration certificate. The complainant alleges the O.P. is the owner of motor cycle situated at Belgaum and the complaint was intended to renovate by refitting, alterations and to put new spare parts etc., The complainant approached the O.Ps. and agreed to carry out the work with an agreement between the parties for approximate cost of Rs.19,000/- to 20,000/- which includes relevant parts. The complainant handed over the motor cycle O.P. on 10/2/2011 under our job card and paid Rs.10,000/- as earnest money. The complainant further submits on 19/4/2011 the O.ps. after carrying out the necessary work handed over the motor cycle to the complainant and as per the invoice bill from No.1 to 113 and total charge of Rs.33,498/- and also additional advance payment of Rs.10,000/- for the work done. The complainant further submits without any objection took the vehicle by paying necessary charges but after taking delivery of the motor cycle, the complainant found that work is not carry out properly and there was petrol tank leakage, engine leakage etc., and once again complainant took the motor cycle O.Ps. garage with an understanding the carryout the work and handed over the motor cycle. The complainant further submits that in the month of August 2011 on second time the vehicle was redelivery to the complainant after carrying necessary work but again shod the same problem. The complainant further submits that since his mother was hospitalized he could not take motor cycle take the garage there was no person to look after the and takecare of his mother. The complainant submits that again he took the motor cycle to O.Ps. garage but O.Ps. refused to repair the said motor cycle. On 28/4/2012 the complainant issued legal notice through the counsel to repair or refund the entire amount received the carryout the repair but O.ps. did not replied to the legal notice. The O.ps. requested the complainant on telephone asking him to get to vehicle for repairs in the month May 2012 and agree to carry out the work.  Therefore the complainant left over the vehicle as there was no alternative for him. The complainant further contended he has incurred Rs.5,000/- towards travelling as he is a resident of Bagalkot and travel several times to O.Ps. workshop and prayed to direct the O.Ps. to carry out the work and refund the amount as prayed etc.,

8) The O.Ps. filed objection stating that they have resigned from the dealership of Yemha motors and not having any business establishment in address shown by the complainant. Further the O.P. submits that they have not knowledge in regards to purchase of the motor cycle-Yamaha RX 100 at Rs.18,000/-. These O.Ps. have denied that complaint intent to renovate the motor cycle and approached the O.Ps. garage and O.Ps. carried out the repairs and replaced the relevant part and O.Ps. charged Rs.33,498/- on 19/4/2011 and works carried as per the serial number shown in the workshop bill. The O.ps. also denied the redelivery of motor cycle in the month August 2011 after carrying out second repair but there was again defect in oil tank etc., These O.Ps. also denied that they refused to carry out the repair works of the motor cycle and in the month may 2012 he brought the vehicle to the workshop etc., The O.Ps. further contended that the complainant has raised the complaint almost after one year of service/repair of motor cycle and the same is required to be maintain for every three months and this has not been done by the complainant and the O.P. have provided best of their service and as the vehicle is parked in their garage the O.Ps. contended in their objection that the parking charge of Rs.15/- per day for non picking of vehicle by the customer in time and prayed to dismiss the complaint.

9) The complainant has produced the workshop bills for the work carried out by the O.P. and on the other hand, the O.Ps. have also filed the documents and certain photographs to show that the vehicle is kept idle in the workshop and also have produce the Insurance surveyor valuers report. We have heard the argument of both the counsels and perused the records and documents. The first and foremost point to be considered that the vehicle is purchased directly from the O.P’s, Even though they were proprietor and selling the motor cycles of Yamaha make. The complainant in his complaint at para No.1 himself have contended that he has purchased the vehicle from one Sri. Francis Nobert Cornileo for a sum of Rs.18,000/- which is second hand motor cycle which is revealed through registration of certificate issued by R.T.O. and the first party is Mr. Francis and same is transferred to said complainant and name is appearing in the said certificate. It is not in dispute that the complainant brought the vehicle to the O.Ps. garage for the repairs and accordingly the O.Ps. carried out the necessary repairs as agreed between the parties on 10/2/2011 and necessary charges were paid by the complainant. But it is to be noted that for the necessary charges the O.Ps. have already issued a bills and also that the complainant use the said vehicle for some months and again for the reason mentioned in the complaint.  The complainant took the vehicle to the O.Ps. for re-repairing for the said vehicle and accordingly it is also to be seen that the O.Ps. have repaired the same and handed over to the complainant after second time also. The complainant has alleged the work was not carried out properly even after second time took the vehicle to the O.Ps. and parked with garage of the O.P. and did not take delivery of the same. The O.Ps. at time of argument submits that they are ready to the vehicle even today and also submits that the vehicle is in good running condition and road worthy, to show that the O.Ps. have produced the insurance surveyor report wherein Sri. Vinod Bhatkande who is a licenced surveyor and valuer and loss assessor at unnumbered para in his report have mentioned that the motor cycle is in running condition and no major abnormal sound heard and the parts requested for are inspected by him. The O.Ps. have also submitted the photographs of the alleged motor cycle in disputes to show that it is parked in their garage for ready delivery, but the complainant has not turned up to take the delivery of the vehicle in their position. One point to be considered is that as motor cycle is manufactured in the year 1989 and Sri. Francis purchased the same and his name entered as per the registration certificate is in the year 1989 and thereafter the said complainants name is registered as transport to on 18/8/2010 by R.T.O. Bagalkot. As motor cycle is of year 1989 make the first party have already used and run the motor cycle for not less than 21 years and upon that the O.Ps. contention that they have already resigned from the dealership but however as they use to deal in the said Yamaha motor cycle have carried out the repair in good faith. Therefore as the O.Ps. in good faith have carried the repair of motor cycle and also that at present the said vehicle is in ready position to be delivered to be complainant but it reveals that the complainant is not interested in the taking delivery of the said vehicle which is lying idle in the garage of the O.Ps. and also that even is contesting the said complaint is not coming forward to have a good dialogue with the O.P. it shows the conduct of the complainant that his not interested in the said vehicle and have alterlly failed to prove any deficiency in service on the part of the O.P. that they have fail to carry out necessary repairs to the said motor cycle in question. However the complainant is at liberty to take the delivery of the motor cycle in dispute which is with the O.P. and in a ready condition and upon that the O.Ps. as submitting are ready to hand over the same to the complainant. The prayer of the O.Ps. that Rs.15/- per day parking charges for the vehicle to be paid by the complainant is hereby not proper to be allowed.

          10) Accordingly, following order:

ORDER

          The complaint of the complainant is hereby dismissed.

          However, the complainant is at liberty to take the delivery of the said vehicle from the O.Ps. custody as it is, within 15 days from the date of  said order, and O.ps. shall delivery the same with due acknowledgement for the delivery, if complainant approached There is no order as to costs.

  (Order dictated, corrected and then pronounced in the open Forum on: 16^th March 2015)

          Member                    Member                    President.

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