KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 335/2009

                              JUDGMENT DATED:20-09-2010

PRESENT

SMT. VALSALA SARANGADHARAN              : MEMBER

SRI. M.V. VISWANATHAN                        : JUDICIAL MEMBER

SRI.M.K.ABDULLA SONA                       : MEMBER

1.      Mr. Unnikrishnan Nair.B,

Manager, Royal Motors,

Valiya Kavala, Vaikom.P.O,

Kottayam District.

                                                          : APPELLANTS

2.      The Manager (Service),

Bajaj Auto Ltd.,

IVth Floor, Manjooran Estate,

Cheranalloor Road, Bypass Jn.,

Edappally, Kochi-24.

(By Adv:Sri.George Cheriyan Karippapparambil)

          Vs.

Mr. Shaji,

Padinjarevaipel (H),

Karipadam.P.O,                               : RESPONDENT

Thalayolaparambu,

Kottayam District.

(By Adv:Sri.Renganathan)

                                             JUDGMENT

SHRI.M.V. VISWANATHAN : JUDICIAL MEMBER

Appellants were the opposite parties and respondent was the complainant in CC.111/08 on the file of CDRF, Kottayam.  The complaint therein was filed alleging deficiency of service on the part of the opposite parties in effecting repairs to the vehicle which was purchased by the complainant from the opposite parties.  The opposite parties entered appearance and filed written version denying the alleged deficiency of service.  They contended that the complaint as filed is not maintainable; that the alleged defect in the vehicle occurred due to the improper use of the vehicle by the complainant; that the warranty provided for the vehicle will not cover rusting and corrosion to the vehicle; that there was no manufacturing defect for the vehicle; that the complainant was bound to pay the repair charges.  Thus, the opposite parties prayed for dismissal of the complaint.

2. Before the Forum below Exts.A1 to A7 documents were marked on the side of the complainant.  No evidence was adduced from the side of the opposite parties.  Based on the evidence on record, the Forum below passed the impugned order directing the 1^st opposite party to repair the vehicle free of cost and thereby to make the vehicle in a road worthy condition.  Opposite parties 1 and 2 were made jointly and severally liable to pay Rs.10,000/- as compensation with cost of Rs.1000/-.  Hence the present appeal by the opposite parties therein.

3. We heard both sides.

4. The learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He relied on Ext.A7 owner’s manual and argued for the position that the rusting to the parts of the vehicle is not covered by the warranty and that the defect in the vehicle occurred due to the improper and negligent use of the vehicle by the complainant.  It is further submitted that no expert evidence or opinion is available to substantiate the case of the complainant regarding deficiency of service on the part of opposite parties 1 and 2.  Thus, the appellants prayed for setting aside the impugned order dated:29/4/2009 passed by CDRF, Kottayam in CC.111/08.

5. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below.  He much relied on A2 job card issued by the 1^st opposite party/dealer and authorized repairer of the motor cycle which was purchased by the complainant.  It is also submitted that the defects in the vehicle occurred during the warranty period and that the opposite parties were bound to cure the defects in the vehicle, that the demand for repair charges would amount to deficiency of service. Thus, the respondent prayed for dismissal of the present appeal.

6. There is no dispute that the complainant purchased Bajaj Motor Cycle manufactured by the 2^nd opposite party Bajaj Auto Limited and the said purchase was effected through the 1^st opposite party, approved dealer of Bajaj Auto Limited.  Ext.A7 is the owner’s manual issued by the opposite parties to the complainant.  The warranty conditions are also prescribed in A7 owner’s manual.  As per the said warranty the vehicle purchased by the complainant is having warranty for two years or 30,000. Kms which ever occurres earlier.

7. Admittedly the vehicle had covered only a distance of 19,930 Kms and that the vehicle developed the defects before the expiry of the warranty period of 2 years.  Ext.A2 job card dated:12/3/2008 would make it clear that the vehicle was produced before the 1^st opposite party/dealer for effecting repairs during the warranty period.  The case of the opposite parties that the complaint is not maintainable and that the complaint has been preferred after two years of purchase of the vehicle and so the claim is barred by limitation etc. are not sustainable.  It is to be noted that the complaint in CC.111/08 was preferred before the expiry of the period of limitation prescribed under Sec.24A of the Consumer Protection Act, 1986.  Admittedly the vehicle was purchased on 4/5/2006.  The said vehicle had the warranty up to 4/5/2008.  The complainant/consumer will get further period of 2 years from the expiry date of warranty.  If that be so, the claim preferred in the year 2008 is within the stipulated time.  So, the complaint as filed is maintainable in law.

8. The Forum below considered the defects noticed in A2 job card and also the warranty conditions.  The Forum below has rightly held that the defects noted in A2 job card are not excluded by A2 owner’s manual cum warranty.  So, the case of the opposite parties that the defects noticed in A2 job card are not covered by the warranty cannot be upheld.  The appellants/opposite parties were legally liable and bound to effect the repairs to the vehicle free of cost.  The demand of Rs.8,500/- as the estimated cost for effecting repairs cannot be upheld.  The aforesaid action on the part of the opposite parties would amount to deficiency of service.  It is also to be noted that the documentary evidence adduced from the side of the respondent/complainant is sufficient to uphold the case of the complainant regarding deficiency of service.  So, the Forum below is perfectly justified in directing the 1^st opposite party/dealer cum approved repairer of the vehicle to effect necessary repairs and to make the said vehicle in a road worthy condition.

9. Admittedly, the respondent/complainant entrusted the vehicle with the 1^st opposite party on 12/3/2008 for the purpose of repairing or replacement of the damaged parts and thereby to make the said vehicle in a road worthy condition.  Admittedly the aforesaid vehicle is in the possession and custody of the 1^st opposite party.  They were not ready to effect the repairs and hand over the same to the complainant.  Thus, for the last 2 years the complainant has been deprived or prevented from using the vehicle which he purchased on 4/5/2006.  The Forum below has rightly directed the opposite parties 1 and 2 to pay compensation to the complainant for the inconvenience suffered by the complainant.  The compensation of Rs.10,000/- awarded by the Forum below can be treated as just and reasonable considering the inconvenience and discomfort suffered by the complainant and also the deficiency of service on the part of the opposite parties.  The Forum below can also be justified in awarding cost of Rs.1000/- towards the litigation expenses.  Thus, in all respects the impugned order passed by the Forum below is to be upheld.  Hence we do so.

In the result the appeal is dismissed.  The impugned order dated:29/04/2009 passed by the CDRF, Kottayam in CC.111/08 is confirmed.  As far as the present appeal is concerned, the parties are directed to suffer their respective costs.

M.V. VISWANATHAN : JUDICIAL MEMBER

VALSALA SARANGADHARAN: MEMBER

M.K.ABDULLA SONA : MEMBER

VL.