IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 352/08 DATED 03.02.2009<br /> ORDER<br /> <br /> Complainant Shivananda Murthy, S/o Shekar Shetty, , D.No.4301, Lokanayaka Nagara, Mysore.<br /> (By Sri.B.S.Sidda Naika., Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Manager, Palace Honda, Balaji Motors, No.229, 1st Main, 2nd Stage, Gokulam, Mysore.<br /> 2. The Manager, Palace Honda, Balaji Automobiles, No.2906, 1st Main, New Kantharaj Urs Road, Mysore.<br /> (By Sri.B.Santhosha, Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 07.11.2008<br /> Date of appearance of O.P. : 15.01.2009<br /> Date of order : 03.02.2009<br /> Duration of Proceeding : 18 DAYS<br /> <br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief is, that he has purchased a Palace Honda Motorbike from the first opposite party on 16.05.2007 for a sum of Rs.40,700/- with warranty for 2 years or 24000 Kms. Running. On 01.09.2008 when the vehicle run for 19500 kms and within two years developed manufacturing defects. In such a cases, it is the duty of the opposite parties to repair it free of cost, but despite that charged him Rs.3,218/- for repairing a defect noticed in the said vehicle. The opposite parties are also authorized service agencies of manufacturer and during free services also, the opposite parties have collected charges from him amounting to Rs.1,025/- on the occasion of 5 free services. Therefore, contending that the motorbike sold to him by the opposite parties is having manufacturing defect has prayed for a direction to the opposite parties to refund the service and repair charges, they have collected and also to direct the opposite parties to replace the old bike with a new one in the alternative to refund Rs.41,000/- to him with damages of Rs.5,000/- for his mental agony and to award cost of Rs.50,000/-.<br /> <br /> 2. The opposite parties have appeared through their advocate. The second opposite party has filed version and the counsel for the first opposite party has filed a memo stating that both the opposite parties are sister concern and that the first opposite party adopts the version filed by the second opposite party. The opposite parties in their version admitted to have sold the vehicle to the complainant with a warranty of 24 months or 24000 kms whichever event occur earlier. It is further contended by them that they have done 5 free services without charging anything and when the complainant gave the vehicle for 6th service, they found some problem in the carburetor and when they examined it, they found that problem had occurred due to prolonged use of adulterated petrol, and therefore stated that they have replaced the carburetor with a new one and they have charged for it and denied that the carburetor had any manufacturing defect. Further repeating that all other services have been done freely without charging anything except for the consumables and denying all other allegations have prayed for dismissal of the complaint.<br /> <br /> 3. In the course of enquiry into the complaint, the complainant and one Srinivasan for opposite parties have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced copies of the job cards issued by the opposite parties for having serviced the vehicle in question and a copy of the legal notice issued to the opposite parties. Heard the counsel for both the parties and perused the records.<br /> <br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the vehicle sold by the opposite parties to the complainant is having manufacturing defect and that the opposite parties have caused deficiency in their service in charging for replacement of parts?<br /> 2. To what relief, the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : Answered in part in the Affirmative.<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The fact that the complainant purchased a motorbike from the opposite parties on 16.05.2007 with a warranty period of 24 months or 24000 kms of running, whichever event happens earlier is not in dispute. Further, it is also not in dispute that the opposite parties have done 5 free services as narrated in para 3 of the complaint by charging not more than Rs.175/- on each services which will be dealt with later. On the 6th service as stated by the opposite parties when they checked the vehicle found some defect in the carburetor and therefore on thoroughly examining it, found that carburetor had damaged and they had to replaced it and they have contended that carburetor had been damaged because of long use of adulterated petrol and that damage occurred, because of the fault of the complainant and therefore they are not liable to replace that carburetor free of cost and thus they have further stating that they have not caused any deficiency in their service have prayed for dismissal of the complaint.<br /> <br /> 7. The complainant has produced 5 job cards, during which the vehicle was subjected to free service. In these job cards as could be seen the opposite parties have not charged for anything except charging the complainant for change of engine oil and gare oil and for replacement of certain consumables worth not more than Rs.20/-. Therefore it cannot be said that the opposite parties during these 5 services have charged the complainant for anything except for consumables. It is further to be noted, during these 5 services, the complainant did not complain of any manufacturing defect and the opposite parties have also did not notice any manufacturing defects, as such according to the complainant, he only came to know the manufacturing defect at the 6th service wherein as admitted by the opposite parties, the carburetor had damaged. But, plea of the opposite parties that carburetor was damaged because of use of adulterated petrol cannot be accepted in the absence of any test report or proof. The fact that the carburetor had damaged within the warranty period since has been accepted by the opposite parties, it is for them to prove that it had damaged because of the long use of adulterated petrol. Even the contention of the opposite parties that the complainant has used adulterated petrol cannot be believed, because a middle class person who purchased a two wheeler by investing his hard earned money, will always be interested to keep it road worthy as long as he could maintain it for his personal use and will not venture to spoil the vehicle by such methods. The petrol vendors selling adulterated petrol at many outlets is not uncommon in our society and that will not be within the knowledge of the complainant and therefore even assuming for a while that the carburetor had damaged, because of the use of the adulterated petrol cannot be attributed to the complainant and it was not within his knowledge. Even otherwise, as already stated by us, the opposite parties have not proved by any experts opinion or reports that the carburetor had worn out because of the involvement of this complainant. Therefore when such a damage had happened within the warranty period, the opposite parties are bound to account for it, and replace it free of cost.<br /> <br /> 8. Further, the opposite parties at the time of 6th service on 01.09.2008 in their bill have charged Rs.671/- for replacement of unit comp CDI. The opposite parties have not said anything regarding this item but replaced it by charging the complainant. It is not their case that unit is subject to ware and tare and consumable one and therefore they have charged it. Therefore, when the vehicle was subjected for attending for defects and when opposite parties conceded the defects and replaced certain parts, they should specify whether the replaced parts are consumables or non-consumables. As the opposite parties have not said about the unit comp CDI, we have no other option but to hold that the said unit has worn out within the warranty period and is a manufacturing defect and that should have been replaced free of cost. Thus, the complainant has been able to prove the deficiency of opposite parties so far as charging him for replacement of 2 items with labour charges of Rs.54/- and Rs.27/- respectively, except charges charged by the opposite parties on the 6th service towards charge of engine oil and gare oil and few consumable articles. For which, the opposite parties are entitled to charge. As the result, we answer point no.1 accordingly and hold that the complaint deserves to be allowed in part. With the result, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The opposite parties shall jointly and severally are directed to pay Rs.2,879.12 to the complainant within 30 days from the date of this order, failing which they shall pay interest at 8% p.a. from the date of this order till the date of payment.<br /> 3. The opposite parties shall also jointly and severally pay Rs.500/- towards the cost of this complaint to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 3rd February 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br />