Date of filing            :06-12-2006

                                                                                    Date of order :01-06-2009

 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                                CC.136/06

                        Dated this, the 1st day of June 2009

PRESENT

SRI.K.T.SIDHIQ                                            : PRESIDENT

SMT.P.RAMADEVI                                                : MEMBER

SMT.P.P.SHYMALADEVI                         : MEMBER

K.L. Abraham, S/o.Lucka,

Kunnath House, Prantharkavu,                                    } Complainant 

Po. Panathady, Kallar Village,

Hosdurg Taluk.

1.  The Manager,

      Speed Motors, XVI/61, Orchid Towers,            } Opposite parties

      North Kottachery, Po.Kanhangad.671315.

2.   The Marketing officer, Birla Yamaha Ltd,

       H.B.I, Panampilly Nagar,

       Ernakulam. 682036.

                                                               O R D E R

SRI.K.T.SIDHIQ, PRESIDENT

            In short the case of the complainant Abraham is that the Birla Yamaha Generator he purchased through opposite party No.1 on 26-4-2002 was used in his hotel. It became defective within its warranty period.   Opposite party No.2 is the marketing officer of the manufacturer of the generator set namely Birla Yamaha Ltd.

2.            Eventhough the generator was taken to opposite party No.1, the same was neither replaced nor repaired and as a result due to the lack of generator he was forced to close his hotel and there by he suffered.

3.         Notice to both opposite parties were sent by registered post. But notice to opposite party No.2 returned unserved with endorsement ‘addressee left’.  It is bad that a popular company like Birla Yamaha Ltd closed and left their shop leaving no intimation at least to the postal authorities.  If they so left there is no doubt that they are prepared to face all the consequences that may arise in future due to the closing of their shop.  Therefore the notice is presumed to be served on opposite party No.2 and opposite party No.2 was called absent and set exparte.  Opposite party No.1 eventhough declared exparte  since he did not turn up to defend at the first instance, he later filed a  petition  to set aside the order  against him setting him exparte in the proceedings.  The same was allowed on terms.  Opposite party No.1 subsequently filed version.

4.            According to opposite party No.1 the generator that was sold to the complainant under a system of deferred payment i.e. payment by way of daily collection and the complainant committed default in payment and out of the price of Rs.32,950/- he has paid only Rs. 16,819/- by way of daily collection.  The manufacturer who offered one year warranty to the generator on certain conditions.  One of such conditions was that the faults or defects during warranty period  should not be handled by foreign mechanics other than those who are authorized by the manufacturer.  But in the case of the generator sold to the complainant, the same was brought to opposite party No.1, in a gunny bag separating it’s parts after an attempt by in unauthorized mechanic to repair it. Hence it required a thorough repair and for that some time was needed to call the expert mechanic from Ernakulam for repairing.  After curing the defects of the generator complainant neither came to the shop to take back the generator nor paid the balance amount due towards the purchase price of the generator and repair charges.  The generator is still now in good working condition and the complainant can take it back at any time after paying the balance due to opposite party No.1 towards its purchase value and since the complainant had closed the hotel for some other reasons he does not wish to take it back by paying the balance and that is the reason for filing this complaint. Actually he is the looser since he had already paid the entire purchase price to the dealer from whom he purchased it.  Therefore he prays for a dismissal of the complaint.

5.            Complainant filed affidavit Exts A1 to A8 marked.  Opposite party No.1 filed counter affidavit.  No documents produced. Both sides heard.

6.         It is pertinent to note that as per Ext.A8 on 05-03-03 itself opposite party No.1 demanded the balance due to him i.e. Rs.14,233/- as on 25-02-2003 it is also seen noted that if the amount is not paid on or before 15-03-2003 the generator will be sold in auction and if the bid amount is lower than the amount due to opposite party No.1 then the complainant will be held liable for the payment of  the balance amount. Thereafter on 5-4-03 the complainant caused lawyer notice to opposite party No.1.

7.         The complainant alleges that he compelled to stop his hotel business for want of light and that was caused due to the lack of rectification of defects of the generator.   But the complainant has nowhere stated that when he opened the hotel and whether the generator was functioning in the hotel  abinitio.  In the absence of such evidence it cannot be considered that the complainant was forced to close the hotel for want of generator.  Hence the complainant is not entitled to any relief on this count.

8.            According to opposite party No.l since the complainant has closed his hotel he is not interested to take back the generator and hence his attempt is only to exploit the given situation to get back the money he paid towards the purchase price with compensation and cost.  Here no documents are produced by the complainant to prove that the opposite party No.1 promised to return the generator within a specified time and therefore it cannot be presumed that the opposite party No.1 has committed any deficiency in service in repairing the generator.  Whereas the specific contention of the opposite party No.1 is that the generator was ready after repair but the complainant was deliberately not approached to take back the generator. Ext.A8 proves that the generator was repaired even prior to 5-3-03 and the complainant did not take delivery of the generator by paying the dues to the opposite party. According to opposite party No.1 the generator is still in good working condition and the complainant can take back the same after paying the balance and repair charges.

            In the circumstances it cannot held that there is deficiency in the service rendered by the opposite party.  However, opposite party No.1 is directed to return the generator to the complainant if the complainant pays the balance due to him along with repair charges.  There is no order as to costs. Time for compliance two months from the date of receipt of copy of order.

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MEMBER                                           MEMBER                                           PRESIDENT

Exts.

A1. Daily Collection Statement.

A2.24-6-02 cash receipt

A3.25-6-02. Invoice.

A4.05-04-03 copy of lawyer notice.

A5. Acknowledgement card

A6. Registered  returned cover

A7.Owner’s Manual and Warranty Book.

A8.5-3-03 letter sent by Speed Motors to complainant.

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MEMBER                                           MEMBER                                           PRESIDENT

Pj/                                                                                Forwarded by Order

                                                                             SENIOR SUPERINTENDENT