KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM
APPEAL NO.213/13
JUDGMENT DATED :30.08.2014
(Appeal filed against the order in OP.No.1474/2004 on the file of CDRF, Thrissur order dated :24.08.2012)
PRESENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
SRI.V.V.JOSE : MEMBER
Bajaj Auto Ltd,
Krishnakripa, 39/3584,
KSN Menon Road, Kochi,
Having present address at
4th Floor, Manjooran Estate,
Edappally Bye pass Junction, APPELLANT
Edappally.P.O, Kochi – 24
(By Adv.Sri.S.Reghu kumar)
Vs.
1. Sasi.P.S
Palathumthalakkal house,
P.O.Mulayam,
Thrissur District
Pin – 680 751
2. Proprietor, RESPONDENTS
M/s.Sitaram Auto Sales and Service,
Building NO.V/708/A,
Diwan Narayana Menon Road,
Pattuarikkal,
Thrissur – 680 001
(R1 by Adv.Sri.R.S.Kalkura)
(R2 by Adv.Sri.Unnikrishnan.V)
JUDGMENT
SRI.K.CHANDRADAS NADAR : JUDICIAL MEMBER
Appellant was the second opposite party in OP.No.1474/2004 in the CDRF, Thrissur. The first respondent was the complainant. He bought a Bajaj RE 4 Stroke Auto rickshaw from the first respondent the dealer of the second respondent manufacturer for Rs.68,433/- on 18.09.2000. The allegation is that he actually submitted quotation for two stroke auto rickshaw. He was persuaded to purchase four stroke vehicle. After purchase within a period of ten months the engine had been repaired three times. The bearing of the clutch shaft got damaged and gear star broke. The seat clutch also got damaged and due to that the engine had to be overhauled and repaired. As the defects occurred continuously it became impossible for the complainant to run the vehicle. When the complainant requested to change the engine to two stroke one, the first respondent demanded Rs.30,000/- to do so. Since it was not possible for the complainant to pay the money, he kept the vehicle at the respondent's service centre. Alleging deficiency in service the complainant sought refund of the price of the vehicle.
2. Before the Consumer Forum the appellant, second respondent remained exparte. The first respondent contended that it was incorrect to say that the complainant gave quotation for two stroke auto rickshaw initially. The first respondent also denied the related allegations. The complainant purchased the four stroke A/F auto on his own choice and had fully utilized the vehicle. The complaint is filed after the warranty period. The complainant actually used the vehicle in a rough and careless manner without heeding the instructions in the user manual. He ultimately left his vehicle at the workshop of the first respondent expecting the repair work to be done free of cost. He is not entitled to free repair as warranty period had expired. There is no deficiency in service on the part of the respondents. The complainant is not entitled to get refund of the price of the vehicle.
3. Before the Consumer Forum the complainant gave evidence as PW1. Exts.P1 to P5 were marked on his side. The report of the expert commissioner was marked as Ext.C1. The respondents adduced no evidence. The Consumer Forum apparently relying on Ext.C1 ordered payment of the amount shown in Ext.P1, (purchase price) Rs.5000/- as compensation and cost of Rs.500/-. The second opposite party manufacturer of the vehicle is challenging the correctness of the order. The only question that arises for consideration is whether the order of the Consumer Forum can be sustained.
4. Even as per the allegations in the complaint the auto rickshaw in question was purchased on 18.09.2000 for a sum of Rs.68,433/-. Ext.A1 evidences this purchase. It can be seen from Ext.A3 issued by the first opposite party the dealer from whom the vehicle was purchased that on 29.03.2004 the vehicle was left at the workshop apparently for repairs and admittedly the complainant never returned to claim the vehicle. It is quite evident from Ext.C1 report that at the time when the vehicle was left at the service centre. the kilometer reading was 44,616 kms. The allegations in the complaint are raised in the background of the above facts. The allegations as seen already are that within six months after purchase the engine of the vehicle had to be repaired three times. Bearing of the clutch shaft etc got damaged and the engine had to be overhauled and repaired. So the indirect allegation is manufacturing defect of the vehicle. At the same time no evidence is adduced to prove that in fact the engine of the vehicle had to be repaired three times within a period of six months and related allegations. The consumer forum was of the view that the expert commissioner has reported that at the time of inspection, it was very much possible to identify manufacturing defects in the vehicle irrespective of its age. So the Consumer Forum itself noticed that the commissioner had not arrived at the conclusion that the vehicle had in fact any manufacturing defect. It is also pertinent to notice that manufacturing defect is alleged after the vehicle had run 44,616 kms.
5. Coming to Ext.C1, the commissioner found that the front end clutch shaft support needle roller bearing in the original design was modified with bronze bush bearing. The commissioner also relied on the failure of the first opposite party to produce the job cards despite direction to produce the same. The commissioner seems to think that modifications of the type mentioned above would have been done to address the problem of repeated bearing failures. But opined that the modification is not scientific and may sometimes cause major problems during service and affect the mileage of the vehicle. The auto rickshaw was inoperative for more than five years and some major overhauling was required to make the auto rickshaw back to working condition. Hence he could not conduct any running test. But he observed that the engine was dismantled and subjected to majoroverhauls a number of times. Relying on the owners manual, the commissioner observed that all the free services were done at the authorized service centre respectively at 661 kms, 2500 kms and at 5085 kms. He also observed that the complainant had not done paid services at the authorized service centre namely the first opposite party. But argues that service centres do not often update the entries relating to the services. That this observation is baseless is evident from the deposition of the complainant himself. After stating that the vehicle was more than 15 years old at the time of inspection and on the condition of the vehicle at the time of inspection, One can not scientifically assess whether the auto rickshaw was roughly operated or not at a point of time which was five years back the commissioner observed as follows. ‘It is very much possible to identify manufacturing defects in vehicles irrespective of their age . But if the vehicle is older the service history of the vehicle together with the condition of the vehicle at the time of inspection must be analysed to make a realistic conclusion". The above conclusion of the commissioner is no authority for the proposition that this vehicle actually suffered from manufacturing defects. According to the commissioner the auto rickshaw in dispute was purchased on 16.05.2001. This is quite contrary to the allegations in the complaint and even the chief affidavit of the complainant and actually there is no dispute that the vehicle was purchased on 18.09.2000. The report on the whole shows that the commissioner is biased in favour of the complainant. He went to the extent of finding fault with the first respondent when the evidence of the complainant himself shows that the first respondent can not be blamed for non - production of job cards.
6. As PW1 the complainant admitted that he took the vehicle to the first respondent, authorized service centre only for free services. He specifically admitted that paid services were not done at the service centre of the first respondent. He further admitted that he made alterations in the vehicle to his liking. He further admitted that the vehicle had run 44,616 kms. The first respondent had done free service for the vehicle correctly. Job cards are intended to note the defects when the vehicle is taken for repair. So the commissioner blamed the first respondent for on production of job cards without any basis, The complainant specifically admitted that he used the vehicle till 2004 it is true that he denied the suggestion that the vehicle was not run in accordance with the instructions in the owners manual.
7. With these admissions of the complainant himself and the observations in the commissioner's report it can not at all be said that any manufacturing defect to the vehicle is proved. The complainant himself is to be blamed for his failure to take the vehicle to the authorized service centre and the consequences of the alterations made elsewhere. Yet the Consumer Forum allowed refund of the price of the vehicle that too after the vehicle was freely plied for more than three years and 44,616 kms apparently without the existence of any manufacturing defect. So the order of the Consumer Forum is not sustainable. The complainant is not entitled to the reliefs sought for.
In the result appeal is allowed. The order of the Consumer Forum Thrirsur in Op.NO.1474/2004 dated 24.08.2012 is set aside. The complaint is dismissed. However if the complainant / first respondent expresses his willingness in writing to get the vehicle overhauled and put back into running condition, the first respondent shall carry out the necessary overhauling and repair and charge the complainant for the services to be rendered. The parties are directed to bear their costs in this appeal.
K.CHANDRADAS NADAR : JUDICIAL MEMBER
V.V.JOSE : MEMBER
Be/
KERALA STATE
CONSUMER DISPUTES
REDRESSAL COMMISSION
SISUVIHARLANE
VAZHUTHACAUD
THIRUVANANTHAPURAM
APPEAL NO.213/13
JUDGMENT
DATED :30.08.2014
BE/
