D.O.F:15/11/2017
D.O.O:22/07/2021
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC.No.223/2017
Dated this, the 22th day of July 2021
PRESENT:
SRI.KRISHNAN.K :PRESIDENT
SRI.RADHAKRISHNAN NAIR.M : MEMBER
SMT.BEENA.K.G : MEMBER
Rohith Jaison D’souza aged 22 years
S/o Francis D’souza
R/at Bela Church Compound, : Complainant
Bela Post and Village,
Kasaragod Taluk and District.
(Adv: Mohanan Nambiar)
And
The Manager,
Pace Motors, N.H Road, : Opposite Party
Adkathbail, Kasaragod,
Kasaragod Taluk and District
(Adv: Madhavan Malankad)
ORDER
SRI.KRISHNAN.K :PRESIDENT
The Complaint filed under section 12 of Consumer Protection Act.
The case of the complainant in short is that complainant is the registered owner of the vehicle KL-14 F 2578 Honda Activa. The vehicle was brought for repair on 02/06/2017 to the Opposite Party service centre and returned the same day after collecting Rs. 5900/- as repairs charge. Further case is that vehicle developed engine trouble and breakdown. Opposite Party did not do repair work, then again took the vehicle to work shop on 21/06/2017 with request to repair free of cost. But vehicle is not repaired till 21/07/2017. Hence issued a notice dated 02/11/2017 to hand over the bike after repair but a false reply is sent. Complainant hired another bike and paid rent for the same. He suffered mental agony, financial loss and claimed Rs.25,000/- towards cost of vehicle in default to repair and deliver the vehicle and pay compensation of Rs. 50,000/-.
2. The Opposite Party filed its written version contending that the vehicle was brought for service for the first time during March 2014. Thereafter it was brought on 19/05/2017 evidenced by job card No. 1238. Then the meter reading was 91091 kilometers. Then complaint of customer was oil change, starting trouble, and general checkup. Vehicle was inspected at the workshop. It was noticed that its piston assembly and engine work is necessary for repairing the vehicle. it was duly informed to the customer. Estimated cost of repair was given. Customer expressed his inability to spend so many amounts since vehicle is old and it has already run 91091kilometers. Customer just needed to repair it so as to make it in running condition. Thus its value kit was changed costing around Rs. 6000/- the vehicle was delivered back to the customer on 02/06/2017 collecting Rs.5900/- to make it running condition. Though customer was warned for engine work, and piston assembly he was not really willing for it for shortage of money. Further it was informed to him that oil is to be checked once in a week, oil filling is necessary due to oil burning.
3. Complainant reported with the vehicle on 21/06/2017 vehicle has already run 92693kilometer than, when checked it is found that there was no oil in the engine and thus engine was ceased position. Vehicle is kept in the work shop vide job card No.153 dated 21/06/2017. But he insisted to do the repair work with replacement of parts on free of cost. Opposite Party expressed its in ability to attend to the repair and replacement free of cost. Allegation that engine trouble started after 02/06/2017 or that Opposite Party did not oblige to hear him are denied. He was duly informed either to take back the vehicle as it is or pay the estimated charge for repair and replacement but he refused to agree for both options and thus vehicle is lying in the workshop as above. unless piston assembly and engine work is carried out , vehicle cannot be repaired and put to use due to its oldness namely 2006 model and customer negligence is not filing with engine oil once in a week as instructed. Opposite Party denied any deficincy in service and not liable to pay compensation or replace or pay vehicle price thus complaint is to be dismissed.
4. The complainant filed chief affidavit and was cross examined as Pw1. Ext A1 to A5 documents marked from his side. Ext A1 is vehicle entrustment ship, Ext A2 copy of R.C. Bill for Rs. 5900/- is marked as Ext A3 copy of lawyer notice Ext A4 is AD card ,, Ext A5 is reply notice, Opposite Party filed chief affidavit and cross examined as Dw1.
5. In view of contentions raised by both parties following points arise in the case for consideration:-
a) Whether complainant is entitled to refund of current price of the vehicle namely 25,000/- as claimed or Opposite Party is liable to repair the vehicle?
b) Whether there is any deficiency in service as negligence from Opposite Party?
c) Whether complainant is entitled to any reliefs? If so for what reliefs?
ISSUE No:1
It is true that complainant is the registered owner of the vehicle. He purchased it as a second hand vehicle just prior to five months of complaint. it is of 2006 model. He brought it for repair in 2017. he got it repaired on 02/06/2017 paid its charges. He was adviced about repair on piston assembly and engine work. But complainant refused. He reported the vehicle on 21/06/2017 vehicle has run over ninety thousand kilometers. He was informed of repair cost but kept the vehicle in work shop never turned up till sent lawyer notice on 02/11/2018 nearly after six months. He admits while in box that Opposite Party informed him of repair charges. He has no explanation as to why he is not willing to pay repair charges.
It is very important that complainant has no grievance of manufacturing defect, no claiming refund of its price or on the ground of warranty. Vehicle has already covered more than 92 thousand kilometers. To be liable to refund the price of vehicle there must be either manufacturing defects or claim is covered by warranty. Complainant did not raise both claims. Complainant has failed to prove as it why and what ground he is entitled to price of vehicle, for claiming charges for repair of vehicle not covered by any warranty. Hence for reasons aforesaid issue No: (1) is found against the complainant.
ISSUE No:2
Complainant is not willing to or agreeable to pay the price of parts to be replaced or pay the repair charges but making request to replace and repair free of cost that too for 11 year old vehicle covered a distance of more than ninety thousand kilometers. When notice is sent he was duly informed either to take back the vehicle as it is or pay the estimated charge for repair and replacement. But he refused to agree for any of options and thus vehicle is lying in the workshop. Considering the nature evidence available on record to show that there is any deficiency in service of Opposite Party, and particular claiming or collecting price of spare parts for the vehicle for repair of old vehicle not covered by any warranty will not amount to deficiency in service and this issue No: (2) is found against complainant.
Section 2 (1) (g) of Consumer Protection Act 1986 defines:- deficiency. According to this definition, any fault, short comings, inadequacy, and imperfection in the quality, nature or manner of performance of the service is a deficiency.
- Removal of defects:- If after proper testing the product proves to be defective, then the “remove its defects” order can be passed by the authority concerned
- Replacement of goods:- orders can be passed to place the same type. Since no evidence to prove any of the deficiencies and for reasons aforesaid complaint is not entitled to any of the reliefs claimed for in the case. Hence relief claimed in the complaint is rejected.
Still complainant is entitled to take back the vehicle from the Opposite Party showroom as it is condition on no payment basis within 30 days of receipt of the order.
If in case complainant is ready and willing the pay price of spare parts and labour charges for repair of vehicle, Opposite Party is directed to fix an estimate of cost of repair of vehicle and in case complainant is willing to pay the same, necessary repair/replacement shall be done to the vehicle and return it within 30 days of receipt of the order.
If complainant is not opting for any of the above, he takes the risk and consequence if any arising there from.Thus complaint is not entitled for any reliefs and complaint dismissed.There will be no order as to costs.
Sd/-Sd/- Sd/-
MEMBERMEMBERPRESIDENT
Exhibits
A1- Customers Copy/gate pas
A2- copy of R.C
A3- Copy of Lawyer notice
A4- Postal Acknowledgement Card
A5- Reply notice
Witness Examined
Pw1- Rohith Jaison D’souza
Dw1- M. Shankunni Nambiar.
Sd/-Sd/-Sd/-
MEMBERMEMBERPRESIDENT
Forwarded by Order
Senior Superintendent
Ps/
