KERALA STATE CONSUMER DISPUTES REDRESSAL   

  COMMISSION  VAZHUTHACADU  THIRUVANANTHAPURAM

                                  APPEAL  NO: 907/2005

      JUDGMENT DATED: 10-12-2010

  PRESENT

JUSTICE SHRI.K.R. UDAYABHANU               : PRESIDENT

SHRI. S. CHANDRAMOHAN NAIR                  : MEMBER

1.      M/s Focuz Motors,

(Formerly Benz Motors)

NH 47, Kavanadu.P.O,

Kollam, Keraa.

2.      M/s Focuz Motors

(Formerly Benz Motors),

Focuz Towers, Edappally,                        : APPELLANTS

Kochi.

3.      Tata Motors,

(Formerly Tata Engineering &

Locomotive Co. Ltd.)

Mumbai.

(By Adv. M/s Menon & Menon)

          Vs.

S, Brahmanandan,

Vighnamathara Veedu,

Puthenthura.P.O,                                       : RESPONDENT

Neendakara, Kollam.

(By Adv.Sri.C.S.Rajmohan)

                                       JUDGMENT

SHRI.S. CHANDRAMOHAN NAIR : MEMBER

The order dated:29/7/2005 of CDRF, Kollam in OP.275/04 is being assailed in this appeal by the opposite parties.  As per the impugned order they are under directions to pay to the complainant a sum of Rs.13,571.5 with 9% interest from the date of order till date of payment along with a further direction to deliver a brand new battery to the complainant after taking back the service battery and to pay a sum of Rs.5000/- as compensation and Rs.500/- as cost.

2.      The brief facts of the case are that, the complainant had purchased a new model 407/27 Benz City Rider for a sum of Rs.4,44,534/- from the 1^st opposite party on 28/2/2003.  The vehicle is manufactured by the 3^rd opposite party.  The 2^nd opposite party is the authorized dealer of the vehicle from whom the complainant had purchased the vehicle.  The main allegations are that the opposite parties had violated the warranty conditions and had extracted charges from the complainant for each and every spare part replaced and also the labour charges incurred therein.  The complainant had to yield to the unfair and illegal demands of the 1^st and 2^nd opposite parties and he was in a helpless condition which compelled him to pay the amounts for getting the vehicle repaired.  The other allegation of the complainant is that though the battery of the vehicle became defective on 6/4/2004, the opposite parties did not attend to the request of the complainant though the opposite parties were having mobile service for emergent situations.  The complainant has also a case that the battery was defective and apart from giving the service battery the opposite parties were negligent and deficient in replacing a brand new battery which according to the complainant is unfair trade practice.  Alleging the above, complaint was filed praying for directions to refund the price of the vehicle and other reliefs which amounted to Rs.5.lakhs.

3.      The opposite parties 1 and 2 filed joint version contending that the complaint was not maintainable and that the 1^st opposite party was only an authorized service centre and the 2^nd opposite party only was the dealer of the 3^rd opposite party who was the manufacturer of the vehicle and that if the vehicle suffered from manufacturing defect, the manufacturer, 3^rd opposite party alone could be held liable.  However it was also contended that the complainant did not bring the vehicle for service during 5000 Kms, 15000 Kms, 35000 Kms and 40000 Kms to the authorized service centre and that the complainant himself had violated the warranty conditions and hence the complainant was not entitled to any of the reliefs prayed for in the complaint.

4.      The 3^rd opposite party also filed version raising the identical contentions raised by the 1^st and 2^nd opposite parties.

5.      The evidence consisted of the oral testimony of the complainant as PW1 and Exts.P1 to P10.  On the side of the opposite parties, the General Manager of the 1^st and 2^nd opposite parties was examined as DW1.  It is based on the said evidence that the Forum below passed the impugned order.

6.      Heard both sides.

7.      Learned counsel for the appellants vehemently argued before us that the Forum below was not correct in passing the impugned order in as much as that there was no evidence adduced by the complainant to show that the opposite parties were liable to pay the amounts directed by the Forum below.  It is his very case that the complainant has failed to prove manufacturing defects and also that the complainant had not produced the vehicle for routine repairs before the 1^st opposite party or any other authorized workshop of the 3^rd opposite party.  He has also argued before us that the direction of the Forum below to refund the amount of Rs.13,571.50 cannot be held justifiable as they have collected only the price of the replaced items during the course of repairs of the vehicle.  It is the still further contention of the appellants that the complainant had not contacted them for mobile service on 6/4/2004 and the allegation that the opposite parties failed to respond to the mobile service helpline is not correct and it is also contended that the 1^st appellant/opposite party had offered the complainant a new battery and it was the complainant who did not turn up to take the new battery after giving back the service battery.  Hence it is his very contention that the appeal is liable to be allowed and the order of the Forum below is set aside.

8.      On the other hand, the learned counsel for the respondent/complainant supported the findings and conclusions of the Forum below and argued before us that the opposite parties were negligent, deficient and had committed unfair trade practice in collecting the repair charges and the price of the repaired items when there was a specific warranty condition that they would not collect any money for the items repaired during the warranty period.  It is also his case that the complainant had requested many a times for the supply of a new battery and he was ready and willing to give the service battery that was given by the opposite parties.  Thus, he advanced the contention that the appeal is liable to be dismissed with compensatory cost.

9.      On hearing the learned counsel for the appellants, respondent and also on perusing the records, we find that it is the admitted case of the parties that the complainant had purchased the vehicle from the 1^st and 2^nd opposite parties which is manufactured by the 3^rd opposite party and that the vehicle had been taken to the workshop of the 1^st opposite party for service and the repairs.  The complainant would say that the vehicle had the warranty of 3 years or 300000 Kms which ever is earlier and it was during the warranty period that the vehicle was taken to the opposite parties for the defects noted.  It is also seen that the opposite parties had collected charges towards the spare parts and labour charges as per Ext.P6 and P7 series.  It is also seen that the Forum below had deducted the charges of certain items which could not be included towards charges for the warranty period.  The amount arrived at after deduction is Rs.13,571.  On a perusal of Ext.P4, warranty conditions, we also find that the same reads as follows:-

“Our obligation under this warranty shall be limited to repairing or replacing, free of charge, such parts of the vehicle which, in our opinion, are defective, on the vehicle being brought to us or to our dealers within the warranty period.”

10.    In such a condition it cannot be found that there was anything unjustifiable or illegal in the order of the Forum below directing the opposite parties to refund the sum of Rs.13,571.50 to the complainant with interest from the date of order.  But the case of the complainant that he was not given a new battery inspite of his request for the same after returning the service battery is not supported by any evidence.  The opposite parties though   in the version has stated  that they were ready and willing to give the new battery provided the complainant returns the service battery is not disputed by the complainant.  In such a situation the direction of the Forum below to deliver a brand new battery and a sum of Rs.5000/- cannot be upheld.  The said directions are set aside.  However the order for costs of Rs.500/- is sustained.

In the result the appeal is allowed in part with the modification indicated above, thereby the opposite parties are directed to refund the sum of Rs.13571.50. with 9% interest from the date of the order of the Forum below till the date of payment with cost of Rs.500/-.  In the nature and circumstances of the present appeal the parties are directed to suffer their respective costs.

S. CHANDRAMOHAN NAIR : MEMBER

JUSTICE K.R. UDAYABHANU: PRESIDENT

VL.