BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.F.A.No.974/2008 AGAINST C.C.No.1028/2007 DISTRICT FORUM-III, HYDERABAD.
Between:
S.Narayana Chary
S/o.late Krishnama Charyulu
Occ:Private Employee, age 48 years,
R/o.Plot No.60, Arunodayanagar,
Road No.8, Bhagyanagar
Hayathnagar, Hyderabad-500 028. Appellant/Complainant
And
1. M/s.Kinetic Engineering Limited
Rep. by its Managing Director
D-1, Block, Plot No.18/2
Chinchwad, Pune-411 019.
2. Area Service Manager,
M/s Kinetic Engineering Limited,
DGP’s residence, 1-2-593/5,
2nd floor, Gagan Mahal Colony,
Domalguda, Hyderabad-500 029.
3. M/s.Sehgal Motors (P) Ltd.,
Rep. by its Proprietor/Managing Director,
11-6-192, Public Garden Road,
Nampally, Hyderabad-500 001. Respondents/ Opp.parties
Counsel for the Appellants: Mr.Y.V.Narasimhacharyulu
Counsel for the Respondents: Mr.P.Raghavendra Rao R1 to R3.
QUORUM: SRI SYED ABDULLAH, HON’BLE MEMBER.
AND
SRI R.LAKSHMINARASIMHA RAO, HON’BLE MEMBER
.
TUESDAY, THE TWENTY EIGHTH DAY OF DECEMBER,
TWO THOUSAND TEN
Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)
***
1. The unsuccessful complainant is the appellant. The complaint was dismissed on the premise that the complainant could not establish any manufacturing defect in his Kinetic Honda manufactured by the opposite party no.1 and sold by the opposite party no. 3.
2. The facts of the case are that the appellant had purchased Kinetic Honda of GF Laser model from the respondent no.3 on 04-06-2005 for a consideration of Rs.54,000/- of which the appellant paid the initial amount of Rs.36,000/- and the balance amount of Rs.24,000/- was financed by M/s ICICI Bank. The appellant had got registered the vehicle with the registering authority concerned whereof on 4-06-2005 it was assigned number AP 29H 2848. The appellant had got service of the vehicle free of cost for the first and second time. The appellant’s grievance is that the respondent no.3 had charged him for the third and fourth service and cancelled the 5th service and the vehicle constantly posed problems whereby he was aften compelled to take it on tow to the respondent no.3. The appellant sought for refund of the cost of the vehicle.
3. The first and second respondents have filed common counter wherein it has been contended that the appellant had not brought the vehicle within the specified time of warranty for the fourth service after the first three service was provided on 6-10-2006, 9-02-2006, 4-12-2006. It is contended that the appellant had brought the vehicle after lapse of 9 months, i.e., on 08-09-2007 for which the respondent no.3 issued estimate of the repair that was ignored by the appellant who had taken away the battery of the vehicle leaving the vehicle at the workshop of the respondent no.3. It is contended that the appellant had not got sufficient engine oil in the motor cycle and he had been negligent in taking care for proper maintenance of the vehicle.
4. The third respondent no.3 has contended that the appellant brought the vehicle to them for the fourth service in a dead condition. It is contended that the respondent no.3 has brought to the notice of the appellant the requirement of the repairs. It is contended that on 8-09-2007, the vehicle was brought after a lapse of 10 months in dead condition and that the oil in the engine was found to be 200ml. The appellant had not evinced any interest in getting the repairs carried.
5. The appellant has filed his affidavit and the documents, ExA1 to A8. The respondents got marked ExB1 to B6.
6. The District Forum after considering the evidence on record and the pleadings put forward opined that the complainant could not prove that there was manufacturing defect to the Kinetic Honda and dismissed the complaint.
7. Aggrieved by the order of the District forum, the appellant filed the appeal contending that the District Forum did not appreciate the facts of the case in correct perspective. It is submitted that the District Forum ought not to have received the written arguments filed by the respondents after the call work and that it ought to have seen that the respondent has not delivered the vehicle which was handed over to it on 8-9-2007 till the date of filing of the appeal.
8. The points for consideration are:
1. Whether Kinetic Honda suffered from any manufacturing defect?
2. Whether the respondents rendered deficient service in regard to the service of Kinetic Honda?
3. to what relief?
9. POINT NO1: The appellant had purchased Kinetic Honda from the respondent no.3 on on 04-06-2005 for a consideration of Rs.54,000/-. The third respondent had issued invoice dated 4-07-2005 for Rs.49,500/-. The amount of Rs.54,000/- includes the interest charged by the ICICI bank on the amount of Rs.24,000/- which was financed on the vehicle. The appellant had not disputed the sale consideration of the vehicle. The appellant had got the service of the vehicle for the first time on 6-10-2005 and for the second time on 9-02-2006. The gate pass and cash service bill dated 28-12-2006 for Rs.222/- and the job cards dated 6-10-2005, 9-02-2006 and 8-09-2007 evidence the service of the vehicle. In the owner’s manual at page number 63, it is mentioned that on each of free service oil is required to be changed. The first free coupon provides for free service of the vehicle which include oil change, on or before 30 days from the date of sale or 1000 kms of operation of the vehicle, whichever is earlier. The second free service coupon is operative on or before 75 days from the date of sale or 2500 kms of operation of the vehicle whichever occurs first and it excluded the oil change free of cost, where necessary. The third free service coupon operates on the same terms as that of the second free service coupon except that the period of time is stated as “ on or before completion of 150 days from the date of sale or 5000 kms of operation of the vehicle whichever occurs first”. The appellant had no grievance insofar as the first three service coupons and rendering of service free of charge to the vehicle.
10. The warranty is provided for repair or replacement of those parts which suffer from manufacturing defects. In the owner’s manual, the circumstances under which the warranty becomes void have been mentioned and those circumstances include, the sale of the vehicle to another person during the warranty period, the failure of the vehicle due to misuse, improper lubrication, over loading , lack of maintenance, improper preservation of vehicle, non-availing of the service in stipulated time, carrying out the repairs by unauthorized persons etc., The respondents refer to the improper lubrication and the non-availing of the service by the appellant within stipulated time to contend that the warranty became void.
11. The respondent no.3 had not specified as to what are the repairs to be carried out to the vehicle. Copy of the estimate said to have been issued to the appellant has not been filed. The job card dated 8-09-2007 is the only document to know the repairs that are required to be taken up for the vehicle. Battery requiring charging and repair of the clutch cable are the only repairs mentioned in the job card. Except making an endorsement that the vehicle was brought in dead condition, the respondent no.3 had not mentioned in the job card as to what are the parts required to be replaced and what parts of the vehicle require a repair. The appellant addressed letter dated 23-11-2007 to the respondent no.3 complaining of non delivery of the vehicle. The respondent no.3 made an endorsement in the job card dated 8-09-2007 that the appellant had taken with him on 8-11-2007 the battery of the vehicle. The appellant has not denied the fact nor did he make a mention of it in the letter addressed to the respondent no.3.
12. The respondent no.3 has contended that on 8-09-2007 the appellant had brought the vehicle in dead condition and subsequently its service engineer inspected the vehicle and found that the vehicle was being run without sufficient engine oil because of which the some parts of the engine were damaged. The contention of the respondent no.3 is not supported by filing the affidavit of the service engineer or his report. The respondent no.3 has noted in the job card dated 8-09-2007 that the vehicle was brought in dead condition with clutch cable problem. The respondent no.3 had made an endorsement in the job card that the appellant had taken the battery with him on 8-11-2007.The appellant states that the respondent no.3 used to return the vehicle after a month after the delivery date on each occasion it was given for the service. The respondents point out that the appellant had brought the vehicle for the fourth service after lapse of 9 months. Both parties had accused each other for the present condition of the vehicle.
13. The appellant failed to prove that there was manufacturing defect in the vehicle and the respondents failed to establish that the vehicle was run without sufficient engine oil. The respondent no.3 in its counter has pleaded that the vehicle was repaired by 7-11-2007 on which date the appellant had taken the battery of the vehicle with him and the respondent no.3 requested the appellant to deposit certain amount for carrying out the repair of certain engine parts. It is not known which repairs had been undertaken and what engine parts need to be repaired. The respondents no.1 and 2 pleaded that the estimate of expenses was given to the appellant and the appellant kept the vehicle unattended with the respondent no.3. No copy of the estimate of expenses is filed either by the respondent’s no.1 and 2 or by the respondent no.3. Taking in to consideration of the facts and circumstances, we are of the opinion that the repairing charges should be borne by the appellant and the respondents in ratio of 75:25.
14. In the result, the appeal is allowed. The order of the order of the District Forum is set aside. Consequently, the complaint is allowed. The respondents are directed to repair and return the vehicle on receipt of 75% of the costs incurred for the repairs. No costs.
MEMBER.
MEMBER.
Dt.28-12-2010
KMK*
