Andhra Pradesh

Chittoor-II at triputi

CC/78/2016

Kaikara Balasubramanyam, S/o. K.Subbaiah - Complainant(s)

Versus

Sri Gopal Automobiles, Rep. by its proprietor - Opp.Party(s)

C.Vijaya Kumar

21 Jul 2017

ORDER

Filing Date: 08.08.2016

Order Date:21.07.2017

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

 

FRIDAY THE TWENTY FIRST DAY OF JULY, TWO THOUSAND AND SEVENTEEN

 

 

 

C.C.No.78/2016

 

 

Between

 

 

Kaikara Balasubramanyam,

S/o. K.Subbaiah,

Hindu, aged 42 years,

D.No.5-57, NTR Colony,

Puttur,

Chittoor District,

Andhra Pradesh.                                                                               … Complainant.

 

And

 

 

1.         Sri Gopal Automobiles,

            Rep. by its Proprietor,

            House of Heros,

            19-3-13(M), Renigunta Road,

            Tirupati.

 

2.         The Zonal Manager,

            Hero Motor Corporation Ltd.,

            294, 2^nd Floor, 6^th Main, HAL 2^nd Stage,

            Indira Nagar,

            Bangalore – 560 038.

 

3.         The Regional Manager,

            Hero Motor Corporation Ltd.,

            306 & 307, Govardhanam Complex,

            Opp. PWD Ground MG Road,

            Vijayawada – 520 002.                                                       …  Opposite parties.

 

 

 

 

            This complaint coming on before us for final hearing on 14.07.17 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.C.Vijaya Kumar, counsel for complainant, and Sri. S.Zakeer Hussain, Sri.O.Prasad, counsel for opposite parties, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, by the complainant  against the opposite parties 1 to 3 for the following reliefs 1) to replace the vehicle Maestro Scooter bearing No.AP-03-BP-7748 with new vehicle or 2) alternatively to pay Rs.50,000/- towards damages and for mental agony suffered by the complainant, and 3) to pass such other and further reliefs as the Hon’ble Forum deems fit and proper in the circumstances of the case.  

            2.  The brief averments of the complaint are:-  That the complainant purchased the Maestro Scooter bearing Engine No.JF32AAGEG02992 with Chassis No.MBLJF3LABEGG03489 on 31.07.2014 for Rs.55,000/- i.e. Rs.49,060/- being its cost and another sum of Rs.5,940/- towards accessories and other charges with a warranty of 5 years.

            3.  The problem started in the vehicle after third service. The problem that was noticed is that the vehicle stops abruptly and it won’t start, later occasionally it starts and produces big sound. On complaint, opposite party No.1 attended the vehicle on 01.07.2015 and collected Rs.330/- and delivered the vehicle back, but the problem continues. The vehicle underwent 4^th service on 29.10.2015 and 5^th service on 16.12.2015. Even after that the problem continues due to which the vehicle was carried to opposite party No.1 in Auto or in a carriage vehicle.

            4.  On 24.12.2015 the same problem repeated. The opposite party attended on the vehicle and delivered back on 26.12.2015. Even after that the problem repeated on 05.01.2016. Again the vehicle was handedover to opposite party No.1 on 25.02.2016. The opposite party No.1 wrote a letter to the complainant on 15.03.2016 with false allegations. The vehicle is with opposite party No.1. That the mechanics of opposite party No.1 informed that there is manufacturing defect in the vehicle. He further contended that the opposite party No.1 knowing well that there is manufacturing defect in the vehicle, sold the vehicle to the complainant without disclosing the defects, as such there is deficiency in service and gross negligence on the part of the opposite parties. The complainant got issued notice to the opposite parties on 23.05.2016 calling upon the opposite parties to replace the vehicle. Having received the said notice, opposite party No.1 alone gave reply with false allegations. Hence the complaint.

            5.  Opposite party No.1 filed its written version and the same is adopted by opposite parties 2 and 3, denying parawise allegations in the complaint. They further contended that the complainant has purchased the vehicle in question from opposite party No.1 and the same was got serviced at Sri Ganesh Automobiles, Puttur. As such Sri Ganesh Automobiles is a necessary party to the proceedings. As per the complaint averments, the vehicle is used for business purpose, so the complainant is not a consumer. The workshop bills disclose that only oil was changed and water service is effected, except that no other amount mentioned in the said bills. The bills merely discloses only regular services, which can be done at free of cost, and the bills did not disclose any other problems in the vehicle.

            6.  That the complainant produced the vehicle before the opposite party No.1 on 25.02.2016 vide Job Card No.28416, after effecting the service, it was informed to the complainant that the services were effected and he can take delivery of the vehicle, but for the reasons best known, the complainant did not turn-up to receive the vehicle inspite of their telephonic messages, and drafts were also sent on 15.03.2016, 28.03.2016, 29.06.2016 and 25.09.2016, stating that services were effected and requesting the complainant to take back the vehicle, else he has to pay parking charges at Rs.50/- per day, and it is also informed to the complainant that the Service Engineer also checked the vehicle and the vehicle is absolutely in good condition. The opposite parties further informed that the vehicle is having 5 years warranty and the opposite parties are ready to attend on the vehicle, if at all any manufacturing defect is existed, inspite of that the complainant did not take back the vehicle. The complainant having received the said intimation served a letter demanding replacement of the vehicle without any documents supporting his contention that the vehicle is having manufacturing defect. If any defect is observed in the vehicle, it will be rectified. The opposite parties have attended and effected free services and found no manufacturing defect in the vehicle. So, there is no deficiency in service or negligence on the part of the opposite parties. The complainant has purchased the vehicle for business purpose, on this ground and also another ground that non-joinder of necessary party i.e. Sri.Ganesh Automobiles, Puttur, the complaint is liable to be dismissed and the complainant is not entitled for the reliefs sought for and prays the Forum to dismiss the complaint with exemplary costs.

            7.  The complainant filed his evidence affidavit as P.W.1 and got marked Exs.A1 to A10. For the opposite parties R.W.1 has filed chief affidavit and got marked Exs.B1 to B6. The Commissioner report dt:04.04.2017 is marked as Ex.C1.

            8.  Now the points for consideration are:-

            (i).  Whether the vehicle is having any manufacturing defect as alleged by the

                   complainant?            

            (ii)  Whether there is any negligence or deficiency in service on the part of the

                  opposite parties?

            (iii)  Whether the complainant is entitled for the reliefs sought for?

            (iv)  To what relief?

            9.  Point No.(i):-  the complainant filed the complaint alleging that his vehicle bearing No.AP-03-BP-7748 is having manufacturing defect, consequently, the vehicle used to stop enroute abruptly and it won’t start again, in some occasions though it started it produces big noise and won’t move. As such he is claiming replacement of the vehicle. In support of his version he relied on Exs.A1 to A10. Ex.A1 is invoice dt:31.07.2014 under which the complainant purchased the vehicle in question for Rs.49,060/-, which is not in dispute. Ex.A2 is Temporary Certificate of Registration disclosing the Temporary Registration No.AP-03-UP-TR-0903 valid up to 29.08.2014, and also furnished Engine Number and Chassis Number etc. Ex.A3 is Service Record Sheet dt:21.08.2014 i.e. for first service, no charges were collected. Ex.A4 is invoice dt:20.08.2014, by which time the vehicle has run 640 kms, amount paid is Rs.380/- to Sri Gopal Automobiles, that amount is collected towards change of engine oil including VAT, labour charges including service tax etc. In these documents Exs.A1 to A4, no complaints were made about the performance of the vehicle. Ex.A5 is Hero GoodLife Program, in which there is no complaint about the performance of the vehicle. Ex.A6 is letter from opposite party No.1 to the complainant dt:28.03.2016 in which it was mentioned Job Card No.28416 dt:25.02.2016 and in this letter opposite party No.1 requested the complainant to take back the vehicle, else Rs.50/- per day will be charged towards parking fee. Ex.A7 is the letter of complainant to opposite party No.1, dt:22.04.2016 stating that his vehicle is getting troubles continuously, showroom job card number was mentioned as 1017103rjc-2016-2816, it did not disclose the nature of problem that arose in the vehicle. Ex.A8 is the notice issued to opposite parties and Ex.A9 is reply to Ex.A8 by opposite party No.1. Lastly Ex.A10 contains 5 job cards from Sri.Gopal Automobiles. The photocopies of 5 job cards were filed, some of them were not visible properly. Out of 5 job cards, Job Card No.1, dt:23.12.2015 and Job Card No.4 are one and same on the same date, remaining 3 Job Cards are dt:25.02.2016 under which estimated repair value is noted as Rs.100/-, another Job Card dt:21.08.2014 under which estimated repair value is noted as Rs.400/-, and last Job Card dt:05.01.2016 under which estimated repair value is shown as Rs.200/-. None of these job cards discloses any complaint about the performance of the vehicle. So, it can be taken as normal service job cards. When service job cards and other documents did not disclose any complaint with regard to performance of the vehicle, how the complainant can claim replacement of the vehicle.

            10. Apart from it, opposite party No.1 along with his written arguments filed “Vehicle History Card” which is not disputed by the complainant. According to which the vehicle bearing No.AP-03-BP-7748 has run 20,000 kms by 25.02.2016 i.e. within a span of 1^1/2 years, the vehicle run 20,000 kms. If there is any manufacturing defect in the engine, the vehicle may not record running of 20,000 kms.

            11.  In this regard, the complainant filed I.A.No.97/2016 on 23.12.2016 praying the Forum to appoint an expert in Mechanical or Automobile Engineer from S.V.Government Polytechnic College, for inspecting the vehicle and file his report. That petition was allowed. One Dr.K.Dharma Reddy, has been appointed by the Principal of S.V.U.College of Engineering, to inspect the vehicle and file his report to show whether there is any manufacturing defect in the vehicle. The Commissioner so appointed has filed his report under Ex.C1 dt:04.04.2017 simply stating that              “I observed that the Engine has Manufacturing Defect”. He did not furnish the details of his inspection or nature of defect that crept in the engine and how he could arrive at the decision that there is manufacturing defect in the engine. The Commissioner is expected to file his report along with the details of his inspection, Whether he taken the vehicle for road test in the presence of both parties or their respective counsel? Whether he has opened the engine or checked its performance and what are the defects he observed in the engine?, in the absence of those details along with the report of the Commissioner, his report cannot be relied on. Since as there is no document or Ex.C1 not supported by any description and nature of defects that were crept in the vehicle, it cannot be held that there is manufacturing defect in the vehicle in question. That apart the documents filed by the complainant himself did not disclose that he has complained about the performance of the vehicle in any manner. Simply by making some allegations about the performance of the vehicle to the effect that there is manufacturing defect in the vehicle and also giving notices to the opposite parties for replacement of the vehicle, and also making some allegations that mechanics of the opposite party themselves stated that there is manufacturing defect in the vehicle, without disclosing the names of the said mechanics and dates on which they informed the complainant that the vehicle is having manufacturing defect etc. cannot be sustained. Under the above circumstances, we are unable to convince with the case of the complainant. We are of the opinion that the complainant failed to establish that the vehicle bearing No.AP-03-BP-7748 is having manufacturing defect and accordingly this point is answered.

            12.  Point No.(ii):-  to answer this point, the job cards covered by Ex.A10 (photocopies) did not disclose that the vehicle is giving any sort of troubles from 2014 to 05.01.2016. Admittedly, the complainant took the vehicle to opposite party No.1 for stipulated free services and got effected 5 free services under the job cards covered by Ex.A10. In the job card No.2 dt:25.02.2016 estimated repair value was shown as Rs.100/- but it was made as Rs.1000/- by adding ‘0’ manually i.e. the job cards shows that meager charges were collected, that too towards engine oil, labour charges as well as VAT. So, it cannot be said that the opposite parties have collected charges for each and every service instead of effecting services free of cost. As per the job cards covered by Ex.A10, opposite party No.1 has attended on the vehicle and effected 5 services free of cost as admitted by the complainant. Whenever the vehicle was taken to opposite party No.1, it was attended by the mechanics or service engineers and services were also effected. Ex.B1 letter dt:15.03.2016 addressed to the complainant by opposite party No.1 shows that the complainant has sent key and RC etc. along with other documents to opposite party No.1, under Ex.B1 opposite party No.1, clearly asked the complainant, as to why he has sent ‘key’ and other documents pertaining to the vehicle, and also informed that the vehicle was attended by service engineer and the vehicle was in good condition and requested the complainant to take back the vehicle. Similarly in Exs.B2, B3 and B4 also the complainant was asked to take delivery of the vehicle, else he has to pay Rs.50/- per day towards parking charges, inspite of that the complainant did not take the vehicle for the reasons best known to him. Ex.B5 mail was also sent to the complainant requesting him to take back the vehicle, but the complainant did not turn-up to take delivery of the vehicle. The complainant did not assign any reasons as to why the vehicle was kept with opposite party No.1 since 25.02.2016 till date, when the vehicle was not having any manufacturing defect, that too the vehicle was run 20,000 kms within a span of 1^1/2 years. So, the vehicle was properly used by the complainant and the opposite parties have promptly attended on the vehicle, whenever it was produced for service before the opposite party No.1. Therefore, under the above circumstances, we are of the opinion that there is no negligence or deficiency in service on the part of the opposite parties. Accordingly this point is answered.

            13.  Point No.(iii):-  in view of our discussion under points 1 and 2, we are of the opinion that the complainant has intentionally left the vehicle with opposite party No.1, and did not take back the vehicle for the reasons best known to him since 25.02.2016 till date, simply he made allegations that the vehicle is having manufacturing defect. If at all any manufacturing defect is there in the engine or in the vehicle as stated by the Commissioner i.e. Dr.K.Dharma Reddy, the vehicle could not have run 20,000 kms within a span of 1^1/2 years. That apart the complainant never made any complaint over the performance of the vehicle before the opposite party No.1, while the vehicle was produced for service. For the reasons best known the complainant did not file the job cards in original before this Forum. Under the above circumstances, we are of the opinion that the complainant failed to establish that either there is manufacturing defect in the vehicle or that there is negligence or deficiency in service on the part of the opposite parties. Therefore, the vehicle need not be replaced and the complainant is also not entitled to the reliefs sought for. However, opposite party No.1 is directed to deliver back the vehicle to the complainant without collecting the parking charges at Rs.50/- per day or any amount from 25.02.2016 onwards, if the complainant approach the opposite party No.1, for taking delivery of the vehicle. Accordingly this point is answered.

            14.  Point No.(iv):-  in view of our discussion under points 1 to 3, we are of the opinion that the complainant failed to make out his case to establish that there is manufacturing defect in the vehicle or that there is negligence or deficiency in service on the part of the opposite parties or that the complainant is entitled for the reliefs sought for, and therefore the complaint is liable to be dismissed.

            In the result, complaint is dismissed. No costs.                             

 

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 21^st day of July, 2017.

 

        Sd/-                                                                                                                     Sd/-                          

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

 

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: Kaikara Balasubramyam (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Dama Jyothi (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Original copy of Retail Invoice for purchase of the vehicle. Dt: 31.07.2014.
	Original copy of Temporary Certificate of Registration. Dt: 31.07.2014.
	Photo copy of Service Record Sheet. Dt: 21.08.2014.
	Original copies of work shop bill. Dt: 20.08.2014.
	Photo copy of Hero good life manual for the vehicle.
	Photo copy of Letter of the opposite party No.1 to the complainant. Dt: 28.03.2016.
	Letter of opposite party No.1 to the complainant. Dt: 22.04.2016 and DTDC Bill in Original.
	Office copy of notice issued by the complainant to the opposite parties. Dt: 23.05.2016.
	Served copy of reply notice. Dt: 06.06.2016.
	Photo copy of Delivery Receipts 4 in Number.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Photo copy of Letter Dt: 15.03.2016 caused by the opposite party No.1 to the complainant with postal receipt in original.
	Photo copy of Remainder letter Dt:28.03.2016 caused by 1st opposite party to the complainant along with postal receipt in original.
	Photo copy of Remainder letter Dt: 29.06.2016 caused by 1st opposite party to the complainant along with postal receipt in original.
	Remainder letter Dt: 25.09.2016 caused by the opposite party No.1 to the complainant along with postal receipt in original.
	Photo copy of Gmail Letter Dt: 19.05.2016 caused by the opposite party No.1 to the complainant.
	Original Owners manual for the vehicle Maestro Scooter with regard to the warranty.

 

 

COMMISSIONER REPORT

 

Exhibits (Ex.C)	Description of Documents
	Commissioner Report. Dt: 04.04.2017.

    

       

                                                                                                                                    Sd/-   

                                                                                                                      President

 

      // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

           Dist. Consumer Forum-II, Tirupati.

 

 

            

Copies to:-     1.  The complainant.

                        2.  The opposite parties.