BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 17/10/2011

Date of Order : 30/01/2013

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 569/2011

Between

And

O R D E R

A. Rajesh, President.

1. The complainant purchased a fortunner Toyota Vehicle from the 2^nd opposite party on 24-09-2009. 36 months or 100000 km. warranty was provided for the vehicle. The complainant plied the vehicle only for 14000 kms. till the date. While so, the vehicle was entrusted with the 2^nd opposite party on 12-09-2011 for servicing. They have done some repairing works. Though the repairing works were carried out within the warranty period, the 2^nd opposite party collected Rs. 38,307/- towards repairing charges. The 2^nd opposite party insisted on payment of the above amount for delivery of the vehicle. The above said act of the 2^nd opposite party amounts to deficiency in service. The complainant sent a letter dated 13-09-2011 to the 1^st opposite party in this regard. But they have not taken any steps to redress the grievance of the complainant. The complainant is entitled to get refund of Rs. 38,307/- along with interest at the rate of 18% p.a. from the date of payment till realization together with costs of the proceedings. This complaint hence.

2. The version of the opposite parties :-

The complainant purchased the vehicle from the 2^nd opposite party with 36 months or 1,00,000/- km. warranty. The manufacturer warrants that it will either repair or replace any Toyota supplied part, which is found defective in material or workmanship under normal use except those items listed under the head, what is not covered in the warranty booklet within a period of 36 months or 100000 km. whichever comes first. On 14-09-2011, the complainant entrusted the vehicle with the 2^nd opposite party in connection with some complaint in the clutch of the vehicle. It was found that the clutch disk of the vehicle was worn out due to clutch riding of the same. It was intimated to the complainant that flywheel, clutch cover assembly and clutch disc assembly of the vehicle has been totally damaged beyond repair and has to be replaced and the labour charges would come to Rs. 38,307/-. At the instance of the complainant, the same was replaced. It is specifically stated in the warranty booklet itself that worn clutch lining as a normal maintenance service which all the vehicles require and the maintenance of the same shall be done only at the owner's expense and is not covered under the warranty. The complainant is not entitled to get any amount as prayed for.

3. No oral evidence was adduced by the complainant. Exts. A1 to A3 were marked. The witness for the opposite parties was examined as DW1. Exts. B1 to B4 were marked. Heard the counsel for the parties.

4. The points that arise for consideration are as follows :-

1. Whether the complainant is entitled to get refund of the repairing charges of Rs. 38,307/- from the opposite parties?

2. Whether the opposite parties are liable to pay costs of the proceedings to the complainant?

5. Point No. i. :- It is not in dispute that the complainant purchased the vehicle in question from the 2^nd opposite party. It is also not in dispute that the warranty for 36 months or 100000 km., whichever comes first has been provided by the manufacturer. According to the complainant, during the warranty period, the opposite parties collected a sum of Rs. 38,307/- towards repairing charges, which is against the warranty terms and he is entitled to get refund of the same. The opposite parties maintain that the repairing carried out on the vehicle is not covered under the warranty and the complainant is not entitled to get refund of the amount.

6. Ext. A1 invoice issued by the 2^nd opposite party goes to show that the following parts were replaced and the following amounts were received:

Description	Price in Rupees	Labour charges in Rupees
Fly Wheel sub-assembly	22,372.96	923.76
Cover Assembly clutch	7,640.48	-
Disc Assembly clutch	6,746.68	-
Total	36,759.68	923.76

Grand Total Rs. 37,683.44

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7. Now the question would arise, whether the repair works of the vehicle is covered under the warranty or not? While rejecting the claim of warranty of the complainant, the opposite parties relied on the following clauses in Ext. B4 warranty booklet.

“Maintenance is at owner's expense Engine tune-up lubrication, cleaning and polishing, replacement of filters, coolant, spark plugs, v-belts, bulbs, fuses, worn wiper blades, worn brake pads and lining or worn clutch lining are some of the normal maintenance services all vehicles require.”

8. During evidence, DW1 the witness for the opposite parties deposed that the wording “worn clutch lining” used in the above referred clause of warranty clause does not find a place in Ext. B2 appointment and walk around check sheet and Ext. B3 job card prepared by the 2^nd opposite party while receiving the vehicle for repairs. In that case, the repairs carried out by the 2^nd opposite party on the vehicle is not covered under the heading “maintenance is at owner's expense” in Ext. B4 warranty book.

9. In the above circumstances, we are only to hold that the repairs carried out on the vehicle is covered under normal warranty and the opposite parties are liable to rectify the same free of costs. Since, the complainant has paid the amount to the 2^nd opposite party. The 2^nd opposite party s liable to refund the same. We close the proceedings in this complaint with a direction to the 2^nd opposite party to refund Rs. 37,683.44 being the amount collected from him towards cost of the parts and labour charges.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in the open Forum on this the 30^th day of January 2013.

Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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