BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri. T.Sundara Ramaiah , B.Com B.L., President
And
Sri. M.Krishna Reddy , M.Sc., M.Phil., Male Member
Friday the 07th day of May , 2010
C.C.No. 195/08
Between:
M.V.Kiran Kumar,S/o M.Sambaiah,
R/o D.No.40-745, P and T Quarters, J.J.Nagar, Kurnool -518 002.
…Complainant
-Vs-
The Area Manager (Service), Bajaj Auto Ltd.,
D.No.9-1-113-118, AMSRI, Sameera Apartments, Old Lancer Lane,
Opp. St. Marys College, Secunderabad -500 025.
(Amended as per the order in I.A.No.17/2009 dated 28-01-2009)
2. Sales Manager, M.G.B.Motor and Auto Agencies Pvt. Ltd.,
7/109, Near S.A.P.Camp, M.G.Chowrastha, Kurnool - 518 004.
3.Manager, M.G.Brothers Auto Mobiles Pvt.,
Dargamitta, 78/160/, Plot No.55, Nellore- 524 003.
…Opposite ParTIES
This complaint is coming on this day for orders in the presence of Sri. M.D.V. Jogaiah Sarma, Advocate, for complainant, and opposite party No.1 is called absent set ex-parte and Sri B.K.Rama Seshanna , Advocate for opposite party No. 2 and 3 and upon perusing the material papers on record, the Forum made the following.
ORDER
(As per Sri. T.Sundara Ramiah, President)
CC. 195/08
1. This complaint is filed under section 12 of the C. P. Act,1986 praying
a) to replace the new vehicle with fresh warranty period in the place of the present defective vehicle purchased by the complainant from the OP.No.2,
b) to pay a sum of Rs.11,303/- to the complainant towards the repair charges collected by OP.No.3 from the complainant,
c) to pay a sum of Rs.10,000/- to the complainant towards compensation for mental agony suffered by the complainant ,
c) to pay Rs.5,000/- to the complainant , towards the costs of the complainant , and
d) to do such other and further acts this Hon’ble court deems fit and proper in the interest of justice.
2. The case of the complainant is as follows:- On 30-04-2004 the complainant purchased Bajaj Pulsar two wheeler bearing registration No.AP-21-J-3556 from OP.No.2 for a sum of Rs.56,823/- . OP.No.2 handed over the said vehicle to the complainant with a warranty period of two years from the date of delivery. Very few days from the date of taking delivery of the vehicle , the complainant was facing trouble with regard to starting of the vehicle. In the month of August, 2004 , the complainant approached OP.No.3 who is an authorized service agent of OP.No.1 at Nellore and got it repaired . Even after the repairs the vehicle was giving starting trouble as usual causing inconvenience, hardship and humiliation to the complainant . Thereafter, number of times ,the vehicle was repaired by OP.No.3 ,but the said chronic manufacturing defect of starting trouble could not be rectified at all. The chronic manufacturing defects have to be rectified by the company at free of cost. But the OP.No.3 collected from the complainant the cost of the repairs done to the vehicle and also the cost of the spares replaced for the vehicle on various occasions to a tune of Rs.11,030/- against the conditions mentioned in the warranty . The manufacturing defect of the vehicle could not be cured by OP.No.3 . There is chronic manufacturing defect in the vehicle and it was stopping frequently in the heavy traffic on the roads causing inconvenience . Ultimately the complainant left the vehicle with OP.No.2 on 29-09-2008 for further repairs and the vehicle is in the custody of OP.No.2 at present. Thereafter the complainant got issued a legal notice dated 27-10-2008 to the opposite parties requesting them to replace the new vehicle with fresh warranty period in the place of the present defective vehicle and to pay the repair charges of Rs.11,030/- collected by OP.No.3 as per the bills issued by it to the complainant against the terms and conditions of the warranty. OP.No. 2 and 3 received legal notice and got reply notices with all costs allegations . Hence the complaint.
3. OP.No.1 remained set ex-parte . OP.No.2 and 3 filed separate written versions stating that the complaint is not maintainable. It is admitted that on 30-04-2004 the complainant purchased the two wheeler bearing registration No. AP 21 J 3556 from OP.No. 2 for a sum of Rs.56,323/- . OP.No.3 rendered some free and paid services to the vehicle of the complainant from June ,2004 to January , 2007. The complainant not made any complaint to OP.No.3 about the starting problem of the vehicle within two years as per the warrantee . The complainant issued notice with all false allegations. The starting trouble of the vehicle is not a manufacturing defect . The starting trouble of vehicle depend upon several factors like using of fuel, mode of driving, functioning of spark plug and non use maintenance of vehicle etc,. As per the owners manual supplied by OP.No.2 the opposite parties are responsible to render free and paid services and have to replace some manufacturing defect spare parts which are covered under warranty within two years of the purchase of the vehicle or 30,000 kms which have occurred early. The complainant did not make any complaint about the starting trouble of the vehicle within two years of the purchase . The complaint is liable to be dismissed.
4. On behalf of the complainant Ex. A1 to A9 are marked and on behalf of the opposite parties Ex.B1 is marked .
5. On the basis of the above pleadings the points that arise for consideration are
(i) Whether the complainant is barred by time ?
(ii)Whether there is manufacturing defect in the Bajaj Pulsar vehicle bearing registration No. AP 21 J 3556
(iii) Whether the complainant is entitled to the relief as prayed for ?
6. Both parties filed written arguments.
7. Point No.1 : Admittedly on 30-04-2004 the complainant purchased Bajaj Pulsar two wheeler bearing registration No. AP 21 J 3556 from OP.No.2 for a sum of Rs.56,823/- . Ex.A2 and A3 are the cash receipts issued by OP.No.2 evidencing the purchase of the said vehicle for Rs.56,823/- by the complainant on 30-04-2004 . It is the case of the Ops 2 and 3 that the complaint is not filed within the time and it is barred by time. Sec 24-A of the Act bars fora set up under Act from admitting a complaint if complaint is not filed within two years from the date on which the cause of action has arisen. In the present case it is specifically mentioned in the complaint at para No.3 that the cause of action for filling the complaint arose on 30-04-2004 , the date on which the complainant purchased the vehicle from OP.No.2 and also on the dates when the complainant gave the vehicle for repairs to the Ops. According to the complainant the cause of action arose on 30-04-2004 . The complaint should be filed within two years i.e, by 30-04-2006 . But the present complaint is filed on 18-11-2008 after expiry of two years period . As seen from Ex.A4 receipts issued by OP.No.3 it is very clear that the complainant delivered the vehicle to OP.No.3 for check up on 26-08-2004 , 10-04-2004 etc., As already stated it is the case of the complainant that the cause of action for the complaint also arose on the dates when the complainant gave the vehicle for repairs . According to the complainant he gave the vehicle for repairs on 26-08-2004,10-04-2004 etc., The compliant is not filed within two years from 26-08-2004 also. The complaint is not filed within the time prescribed under Sec 24-A Act . The complaint is bared by limitation .
8. Points 2 and 3:- It is the case of the complainant that few days after he purchase of the vehicle , the vehicle gave starting trouble and there is chronic manufacturing defect in the vehicle. It is further case that he got the vehicle repaired through OP.No.3 form 26-08-2004 to 04-01-2007 and that he spent total amount of Rs.11,303-95/- . It is admitted by OP.No.3 that from June 2004 to January 2007 it rendered free and paid services to the vehicle of the complainant . It is the case Ops and that the complainant did not make any complaint about the starting problem of the vehicle . The complainant filed Ex.A4 bunch of bills issued by OP.No.3 . Those bills do not disclose that the vehicle was suffering form starting problem. It is mentioned in the bills that the vehicle was taken to the workshop of OP.No.3 for breaks check up , clutch check up, battery charging etc., There is no mention in Ex.A4 that the complaint reported to Ops 3 that his vehicle was having starting trouble and manufacturing defect . The complainant did not choose to file job cards to speak about the complaints made by him at the time of handing over of the vehicle on various dates . It is argued by learned counsel appearing for the complainant that the job cards which are available with Ops 2 and 3 are not produced by them for reasons best known . The complaint did not gave any explanation as to why he failed to file the job cards issue by OP.No.3 as and when he hand over the vehicle to OP.No.3 for check up etc., . The burden is on the complainant to establish that the vehicle was suffering from manufacturing defect . The complainant has not taken steps to get the vehicle tested by a technical expert to know that it is having manufacturing defect . No doubt the complainant handover the vehicle to OP.No.2 on 29-09-2008 for general services etc., OP 2 and 3 also did not take steps to get the vehicle checked by technical expert to know whether there is defect or not . Simply because the Ops did not take steps to get the vehicle tested by an expert it cannot be presumed that the vehicle is having manufacturing defect. The complainant failed to establish that the vehicle purchased by him is having starting trouble and manufacturing defect.
9. No doubt the vehicle of the complainant was checked by OP.No.3 on 17 times as mentioned in the complaint from 26-08-2004 to 04-01-2007. In Ex.A4 bills issued by OP.No.3 it is not at all mentioned that the vehicle was having problem. No doubt the complainant had to make several rounds to the workshop of OP.NO.3 to get the vehicle checked during warranty period. Merely because the complainant got his vehicle checked by OP.No.3 number of times after he purchased it , it cannot be said that the vehicle was having starting problem and manufacturing defect . In the absence of expert evidence that the vehicle is having manufacturing defect the complainant is not entitled for the replacement of the vehicle. The complainant failed to establish that the vehicle purchased by him is a defective one and suffering from manufacturing defect. Therefore the complainant is not entitled for a new vehicle in the place of the vehicle purchased by him on 30-04-2004 from OP. NO.2 .
10. The complainant is also claiming a sum of Rs.11,303/- towards repair charges collected by OP.No.3 from the complainant . It is admitted by OP.No.3 that the free and paid services were done to the vehicle of the complainant from June 2004 to January 2007 as per owners manual . Ex.A4 reveals that the OP.No.3 checked the vehicle and collected total amount of Rs.11,303/- . The Ops 2 and 3 filed Ex.B1 owners manual . As per the said manual the Ops are responsible to render free and paid services . No doubt OP.No.3 collected some amounts shown in Ex.A4 from the complainant as and when the vehicle was checked by it. The complainant did not place any material on record to show that Ops are liable to render only free services during the warranty period. When the spare parts are replaced the Ops charged for them. As already stated the complainant failed to establish that his vehicle is having manufacturing defect. Admittedly the complainant hand over the vehicle to OP.No.2 on 29-09-2008 . Ex.A5 is the job card No. 4615 .It is mentioned in Ex.A5 that the complainant reported that the vehicle was having starting trouble . The complainant did not explain as to why he did not take delivery of the vehicle from OP.No.2 on 13-09-2008 as mentioned in Ex.A5 . The complainant failed to establish that the vehicle purchased by him from the Ops was having manufacturing defect . Therefore the complaint is not entitled for any relief claimed by him. The complaint is dismissed without costs.
11. In the result , the complaint is dismissed without costs.
Dictated to the stenographer, transcribed by her , corrected and pronounced by us in the open bench on this the 07th day of May , 2010.
Sd/- Sd/-
MALE MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : Nil For the opposite parties :Nil
List of exhibits marked for the complainant:-
Ex.A1 Sale invoice dated 30-04-2004.
Ex.A2. Cash receipt dated 27-04-2004.
Ex.A3. Cash receipt dated 30-04-2004.
Ex.A4. A bunch of 14 bills.
Ex.A5. Job card No.4615 customer copy dated 29-09-2008.
Ex.A6. Office copy of legal notice dated 27-10-2008.
Ex.A7. Reply dated 05-11-2008 to Ex.A6 by OP.No.2.
Ex.A8. Reply dated 08-11-2008 toEx.A6 by OP.No.3.
Ex.A9. Returned postal cover addressed to OP.No.1.
List of exhibits marked for the opposite parties:
Ex.B1. Printed book of Owners manual for Bajaj pulsar.
Sd/- Sd/-
MALE MEMBER PRESIDENT
// Certified free copy communicated under Rule 4 (10) of the
A.P.S.C.D.R.C. Rules, 1987//
Copy to:-
Complainant and Opposite parties
Copy was made ready on :
Copy was dispatched on:
