BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 30th day of July, 2009

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDU SOMAN MEMBER

C.C No.02/2009

Between

Complainant : Suresh Madhavu,

Kollamparambil House,

Kadanadu P.O.

Kottayam District.

(By Adv: V.K Shaji)

And

Opposite Parties : 1. M/s. Andreas Stihl Private Ltd.,

Delhi Warehousing Complex,

Gut No.2337/B/01,

Behind Pune Trading Centre,

Wagholi Tal. Haveli,

Pune – 412207, India.

2. Kannikkatt Trading Company,

Kannikkatt Building,

Market Road, Thodupuzha East.

(By Adv: Shiji Joseph)

O R D E R

SRI.LAIJU RAMAKRISHNAN(PRESIDENT)

Complainant purchased a chain saw for cutting wood from the 2nd opposite party on 03.04.2008 by paying an amount of Rs.54,900/-. He availed loan from bank in self employment scheme for the purchase of the same. 2nd opposite party is the manufacturer of the machine. The opposite party offered a warranty of 6 months at the time of the purchase. On 04.09.2008 the machine became defective and so the complainant approached the opposite party for repair with warranty card. The opposite party requested to come after two days. When the complainant approached after two days they directed the complainant to pay Rs.15,000/- as service charge. When the petitioner asked about the warranty of the machine, the opposite party abused him and told that the machine would be returned only after giving money. Then the complainant constrained to issue a lawyers notice. But the opposite party never replied for the same and the machine is not yet repaired. Hence the petition is filed.

2. As per written version of the 2nd opposite party, the complainant is not a consumer as stipulated by the Consumer Protection Act, because the complainant was hiring the machine to various persons for profit. It is admitted that the machine was purchased by the complainant from the 2nd opposite party and the cost of the machine was also paid by him. The machine stopped while working, is also correct, but it is not due to the manufacturing defect of the machine. The machine was damaged due to the wrongful operations by some unexperienced persons. The chain saw is a 2 stroke engine run by petrol as fuel. In 2 stroke petrol engine along with fuel 2 T engine oil has to be added for getting lubrication. This is a mandatory condition before its operation. This was instructed to the complainant at the time of giving the machine. The person who runs the machine did not add 2 T oil to the petrol, hence the piston was seized due to lack of 2 T oil. The damage due to unrecommended fuel etc., is not covered under the warranty. It was specifically written in the warranty card. So the complainant was asked to remit the repair charges, but the complainant was not ready for that. Two occasions the complainant brought the machine for repair, both occasions the complainant paid the amount for repair. The service engineer of the 2nd opposite party and the service engineer of the company inspected the machine and found that the machine was run without using lubricant oil. So there is no deficiency in the part of the opposite party.

3. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

4. The evidence consists of the oral testimony of PW1 and Exts.P1 to P4 marked on the side of the complainant and the oral testimony of DW1 and DW2 and Exts.R1 to R4 marked on the side of the opposite parties.

5. The POINT:- Complainant purchased the chin saw from the 2nd opposite party for the purpose of cutting wood by availing loan from the Bank. But it became defective within the warranty period. As per the opposite party, it is not due to any manufacturing defect of the machine. So the complainant has to pay Rs.15,000/- for the repair of the machine. The complainant was examined as PW1. As per PW1, the machine was defective several times within the warranty period and it was repaired by the opposite party several times. Ext.P1 is the bill issued for the machine for Rs.54,900/- dated 08.04.2008. Ext.P2 is the warranty card issued from the 1st opposite party for six months. The machine is given for repair at 2nd opposite parties office, Ext.P3 is the receipt given for the same. Complainant issued a Lawyers notice regarding the matter which is marked as Ext.P4. The machine became defective after 3 days of the date of purchase. It was suddenly stopped while working on 04.09.2008. The complainant was using the machine by filling oil mixed petrol in the engine. The machine became defective only because of the low mechanical quality of the machine. The OP2 was examined as DW1. The instruction manual of the machine is marked as Ext.R1. OP2 deposed that the complainant came to OP2 for repairing the machine 3 times. Last time the complainant came to the OP2 by the complaint of engine struck. The job cards issued by the OP2 is marked as Ext.R2 series. But on 03.05.2008, the complainant approached with a complaint of clutch, it is only because of the machine operated without releasing the hand break. The engine became defective due to clutch complaint. The engine became struck due to non availability of oil. The reply issued to the Lawyers notice is marked as Ext.R3. The mechanic from the 1st opposite party inspected the machine and certified that the machine became defective, not due to mechanical complaint. The  certificate is marked as Ext.R4. The machine was inspected by the mechanic after one month. The mechanic of the 2nd opposite party was examined as DW2. As per DW2, the clutch complaint will happen if the machine uses without releasing the hand break. The machine will seize due to that. The complainant finally approached DW2 with the machine for starting complaint. When it was opened it understood that there is no oil mix in the petrol, so the engine became seize. It can be examined through checking the petrol in the tank. 10 to 12 chain saw's are repairing every day by DW2.

The only dispute is that whether the machine is having mechanical defect as alleged by the complainant or due to the improper use of the complainant. It is admitted by the opposite party that the machine was defective even within the warranty period and they have repaired this more than 3 times. As per Ext.R2 series the machine was repaired on 13.06.2008 due to the complaint of sound problem and the machine not stops while switch off. Then on 03.05.2008 again the machine was repaired by opposite party as per Ext.R2(b) for clutch complaint and on 04.09.2008 the complaint written is starting problem as per Ext.R2 series. As per DW1 and DW2, the machine became defective only because the complainant is not using oil with petrol and there is no lubrication in the engine and the engine seized. The machine was opened by the mechanic only after one month of the complaint and it is understood that the petrol is not mixed with oil. If the machine is working without releasing the hand break, so there is complaint of clutch and engine. As per DW2 even though the machine starts without releasing the hand break the chain saw will not work, but the engine will heat and so the operator can understand the defect. But DW1 also deposed that the engine problem can be caused by due to dust particles and due to overload. As per PW1 the machine was used with due care. So we think that the mechanic of the opposite party opened the machine only after one month of the complaint and they certified that the complaint is not due to manufacturing defect which is also a gross deficiency in service from the opposite party. But it is admitted by the opposite party that the machine became defective several times within the warranty period as per Ext.R2(series). So the opposite party is duly responsible for repairing the machine with free of cost. It is not proved by the opposite party that the complainant was using the machine without proper care.

Hence the petition allowed. The opposite parties are directed to repair the defect of the Chain saw purchased from the 1st opposite party by the complainant within 15 days with free of cost and pay Rs.1,500/- for the cost of this petition otherwise the amount will carry an interest of 12% from the date of default.

Pronounced in the Open Forum on this the 30th day of July, 2009.

Sd/- SRI. LAIJU RAMAKRISHNAN(PRESIDENT)

Sd/-

SMT. SHEELA JACOB(MEMBER)

Sd/-

SMT. BINDU SOMAN(MEMBER)

APPENDIX

Depositions :

On the side of Complainant :

PW1 - Suresh Madhav

On the side of Opposite Parties :

DW1 - Jassin Varghese

DW2 - Ajith Kumar

Exhibits:

On the side of Complainant:

Ext.P1 - Copy of Bill for Rs.54,900/-

Ext.P2 - Warranty card, dated 08.04.2008.

Ext.P3 - Receipt, No.T 688

Ext.P4 - Copy of Lawyers Notice dated 03.10.2008.

On the side of Opposite Parties :

Ext.R1 - Instruction Manual

Ext.R2 series (a-c) - Job Cards dated 13.06.2008, 03.05.2008 and on 04.09.2008.

Ext.R3 - Reply issued to the Lawyers Notice dated 10.10.2008

Ext.R4 - Certificate dated 16.10.2008.