BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 03/02/2011

Date of Order : 27/08/2012

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 70/2011

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the facts of the complainant's case are as follows :-

The complainant purchased a Bajaj Pulsar – DTS – Fi Motor cycle from the 2^nd opposite party on 12-05-2008 for Rs. 82,368. Two years or 30,000 kms. warranty was provided to the vehicle. On 15-01-2010, abrupt switching off of the vehicle occurred and it was brought to the notice of the 2^nd opposite party's service centre at Ayyappankavu. Though the defect occurred during the warranty period, they collected Rs. 1,776/- towards repairing charges. Again, the very same complaint persisted and the vehicle was given to the service centre on 29-04-2010. The fuel filter was replaced and they collected Rs. 1,993/-. But the complaint was not rectified. The complaint repeated on 24-05-2010. The starter assembly was replaced by the service centre of the 2^nd opposite party at Muvattupuzha. Again on 29-07-2010, the vehicle was entrusted with the service centre. It was returned only on 02-08-2010, after replacing several parts by collecting Rs. 2,440/-. Again, the very same complaint was repeated on 28-09-2010. The vehicle was returned on the next day, but the defect was not cured. At present, the vehicle is not in a running condition. The vehicle was entrusted with the service centre at Muvattupuzha. The recurrence of the very same complaint of abrupt stopping is due to the manufacturing defect of the vehicle supplied to the complainant. That is evident from the fact that the 2^nd opposite party failed to rectify the defect even after repeated repairs. The complainant is entitled to get refund of the price of the vehicle ie. Rs. 82,360/-. He is also entitled for the refund of Rs. 66,361/- which was collected from the complainant towards repairing charges for the defect occurred within the warranty period. He is also entitled for Rs. 10,000/- towards compensation for the mental agony and hardships suffered by him due to the recurring defects of the vehicle. Hence his complaint.

2. The version of the opposite parties is as follows :-

As per the warranty issued by the 1^st opposite party, the vehicle had warranty of 2 years or 30000 kms. whichever occurs earlier. The complaint filed by the complainant is beyond the warranty period and it is not maintainable. On 15-01-2010, the service centre received the vehicle when the vehicle had covered 15125 kms. and apart from the routine repairs, he had not made any complaint about abrupt switching off of the vehicle. On 29-04-2010, the service centre received the vehicle along with the normal wear and tear the complainant highlighted the problem of inner tube bend, which was caused due to an external impact/fall of the vehicle. The inner tube bend was the cause of side pulling. On 20-05-2010, the service centre received the vehicle at 18203 kms. Normal repairs were done and the vehicle is in perfect running condition. On 29-07-2010, the service centre accepted the vehicle for repairs. The vehicle had covered 19077 kms., there was nothing abnormal about the complainant's vehicle and levying of Rs. 2,440/- is normal to the work undertaken by the 2^nd opposite party. There is no manufacturing defect in the complainant's vehicle. The complainant has no cause of action against the opposite parties.

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

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

1. Whether the complainant is entitled to get refund of the price of the motor cycle from the opposite parties?

2. Whether the complainant is entitled to get refund of Rs. 66,361/- which was collected from the complainant towards repairing charges during the warranty period?

3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- Admittedly, the complainant purchased a motor cycle from the 2^nd opposite party on 12-05-2008 at a price of Rs. 82,360/- evidenced by Ext. A2. The 1^st opposite party manufacturer had provided warranty for 2 years or 30000 kms., whichever occurs earlier evident from Ext. A3. Ext. A1 series goes to show that the vehicle was taken to the workshop of the 2^nd opposite party for rectification of the defects on the following occasions :

Exhibits	Commodity/Item	Date
A1 (a)	Degreasing charge	02-08-2010
A1 (b)	Periodic service charges. Engine Flushing. Chain Cleaning. Fork Oil change. Fluid replace. Recarbonizing full. Consumables. 36314004-Kit Fork oil (160 M.. D6101498-Rasher. D1101064 – Gasket exhaust. DK101003 – Gasket Cylinder. DK141007 – Filter Fuel. DK191011 -Clutch cable. DS161096 – Cap camshaft. DA20W50 - Oil 20W50 DAABARI – Oil Supplement 50 ML bar CABF – Brake fluid.	0                             002-08-2010
A1 (c)	One way clutch O/H	02-06-2010
A1 (d)	DH101163 – Roller clutch DH101533 – Bush – Spring starter. D1101109 – Bush for spring STA DK101596 – Spring starter clutch DV101042 – Gasket cover mas.	24-05-2010
A1 (e)	Period service charges Chain and sproket change Consumables 36DK0024 – Kit chain SPKT KIT. DJ151088 – Wheel damper DK141006 – Hose fuel R9 – short DK141007 – Filter fuel	30-04-2010
A1 (f)	Periodic service change Fork overhaul. Chain cleaning. Fluid replace Fork oil change Consumables 356311808 – Refil fork oil 300 ml. 35DV0007 – Kit steering done D6101498 – washer DK141007 – Filter fuel DK181050 – Cage top bag stag DK101051 – Cage bearing STE-DTH CABF – Brake fluid CAC20M50 – Gear oil	15-01-2010

6. Exts. B1 to B4 are the job order prepared and maintained by the opposite parties which reads as follows :-

Serial No.	Exhibits	Date	Nature of defect
	B1	15-01-2010	Paid service, Oil change, General checkup, Fork O/H, Chain Cleaning, Fluid change RR, Front fluid checkup, Re-Teflon, Fork oil change.
	B2	29-04-2010	Full service only, Fuel leak check – Petrol tube, General checkup, Chain and sproket replace, Oil top up, Side pulling check, Re   Teflon.
	B3	20-05-2010	Tool kit, Key & Key chain, Engine guard.
	B4	29-07-2010	Paid services, Oil change, Flush, Supplement, Missing check, Petrol filter change, Chain cleaning, Accelerator cable, Clutch cable and Cam lever change, Fork oil and fluid change, Battery charging, Check regulator, General checkup, De carbonizing full, De greasing.

7. According to the complainant, the vehicle suffers from inherent manufacturing defects. The opposite parties maintain that the vehicle is in perfect running condition. It is to be noted that neither expert opinion is on record to substantiate the contentions of the complainant nor to prove the present condition of the vehicle, which was not warranted by either parties. Ext. A3 is an incomplete document, both the parties failed to produce the warranty terms and conditions in this Forum in full which puts the position ill at ease. So, we are not to decide conclusively on merits. However, every right has a remedy constitutionally the demand of repair charges and the payment of the same during the warranty period amounts to unfair trade practice not to say unconstitutional.

8. Our decision is relied squarely on the celebrated decision of the Hon'ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Another (2006) 4 SCC 644). Since, the remedy is met follows the above decision. The repair alone is called for not a refund of the price. In a case of consumer redress matter, the consumer is always considered 'king' but not master.

9. In the result, we partly allow the complaint and direct as follows :

1. The opposite parties shall jointly and severally refund the repair charges levied during the period of warranty from the complainant with 12% interest p.a. till realisation.

2. The opposite parties shall jointly and severally rectify the abrupt switching off of the vehicle to the satisfaction of the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 27^th day of August 2012.

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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