THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION

PANAJI-GOA



Present:

Smt. Sandra Vaz e Correia…Presiding Member

Smt. Caroline Collasso, ... Member



Appeal No.24/2008



Bajaj Auto Ltd,.

Mumbai – Pune Road,

Akurdi, Pune – 411 035. ..Appellant

(Original O.P. No.1)



v/s



1. Sandeep Korgaonkar,

Khorlim, Mapusa,

Bardez Goa.

(Original Complainant)



2. M/s Caculo Auto Park Pvt. Ltd.,

Office at G-7/A-1,

Opp Fire Services H.Q.

St. Inez, Panaji-Goa.

(Original O.P. No.2) .. Respondents



For the Appellant .. Shri R. Gawas, Advocate

None for the Respondent



Dated:05-06-2009



ORDER



[Per Ms. Caroline Collasso, Member]



1. This order will dispose off appeal no.24/08 filed against order of the District Forum, North Goa dated 20-02-2008 in complaint no.61/2002.



2. The case of the complainant in brief is that he is an educated unemployed young man who purchased a 3-wheeler passenger rickshaw for self employment on 20-08-2001. The Complainant states that he had initially decided to purchase a 2-stroke engine manufactured by Opposite Party No.1. However, representative of Opposite Party No.1 advised the Complainant to purchase a 4-stroke engine rickshaw by stating that the new model was economical and gives more mileage. Complainant further states that believing in the information, he purchased the 4 stroke engine rickshaw for a sum of Rs.86,000/-. It is his case that the rickshaw started giving trouble from the date of purchase. It was not starting initially and after running about 1 meter, (sic) the engine of the vehicle used to become hot and he had to cool down the engine every one hour. Further, he stated that the engine was making a noise and gave less mileage than that assured by the Company. Many parts of the vehicle were also damaged during the warranty period.



3. The Complainant further states that when he took the vehicle for the first servicing, he brought to the notice of the mechanic that there was a manufacturing defect in the vehicle. The Complainant states that the mechanic informed him that there was a manufacturing defect in the vehicle and there were complaints from many purchasers and that Opposite Party No.1 had stopped the supply of 4-stroke vehicles in Goa and thus spare parts of such vehicles were not available. The mechanic also disclosed to the Complainant that he was not trained to service 4-stroke engines and the competent mechanic was not provided by the Company and, therefore, a mechanic from Pune would come to repair/service his vehicle. The Complainant further states that his vehicle remained at the service Centre of Opposite Party No.2 who expressed their inability to repair the vehicle. Thus a notice dated 22-12-2001 was sent by Complainant to Opposite Parties requesting them to replace the vehicle with a two stroke engine after adjusting excess amount paid for earlier model or to refund the amount paid towards purchase of the vehicle. The Opposite Party No.1 vide reply to the notice dated 02-01-2002 informed him that Opposite Party No.2 would repair the vehicle to his satisfaction.



4. The Complainant states that the vehicle was not repaired and Opposite Party No.2 gave vague replies and thus the vehicle continued to remain at the service centre since 05-12-2001. It is claimed that the income from the vehicle was the sole source of income for his livelihood and was thus suffering a loss of Rs.200/- per day from the day the vehicle stopped functioning. He stated that there was a manufacturing defect in the vehicle which many persons have brought to the notice of Opposite Parties.



5. The Complainant finally contended that the act of the Opposite Parties are blatantly illegal and amounted to deficiency in service and thus prayed for the following:-



a) The opposite parties pleased be ordered to replace the vehicle with new vehicle of two stroke engine.



b) The opposite parties pleased be directed to refund sum of Rs.73,000/- alongwith interest @ 18% from the date of purchase till actual payment and also Rs.13,000/- spent by the complainant for body building of the vehicle.



c) The opposite parties pleased be directed to pay Rs.200/- per day towards loss of income from the date when the vehicle stopped functioning till actual payment.



d) The opposite parties pleased be directed to pay compensation of Rs.10,000/- towards mental agony.



6. In their written version, the Opposite Party No.1, right at the onset brought to the notice of the District Forum that the Complainant has brought his vehicle for the first servicing on 5th December, 2001 whereas the first servicing was due on 19-09-2001. Besides, the warranty of this class of vehicles was four months, or, 6400 kms whichever occurs earlier. The complainant had purchased the vehicle on 20th August 2001 and the complaint is filed around 4th/5th February 2002, i.e. six months after its purchase. The Opposite Party No.1 further contended that the Complainant had used the vehicle extensively and even considering the usage, the vehicle had gone out of warranty. Relying on a judgment of the State Commission Delhi [III (1999) CPJ 566] wherein it was held that cases filed after warranty period were not sustainable and Opposite Party No.1 prayed for dismissal of the complaint on this ground. The Opposite Party No.1 denied any manufacturing defects in the vehicle. The Opposite Party No.1 further stated that whenever a new vehicle is purchased the said vehicle has to be serviced at the authorized service centre appointed by the manufacturer reckoned from the date of sale which were as follows:



The Complainant purchased the vehicle on 20th August 2001.

Service


Date of service


Due on/mileage


Remarks

First


19-9-2001


30 days/750 kms


First service not done

Second





60 days/2500 kms


Second service not done

Third





90 days/4500 kms


Third service not done

Fourth





135days/10000kms


Fourth service not done



7. Thus the Opposite Party No.1 stated that as per warranty conditions the Complainant was to bring his vehicle for the first mandatory servicing at the service centre of Opposite Party No.2 on 19-09-2001 which he failed to do. Thereafter, Complainant also did not do the mandatory second, third and fourth servicing. The Complainant brought his vehicle for servicing for the first time on 5th December 2001 i.e. approximately 157 days after its purchase and thereby failed to abide by the warranty norms. On account of this failure to service the vehicle in time, the engine of the vehicle was not serviced at all and thus one did not know whether the Complainant had drained out the used oil and cleaned the filters on time. If the engine is run on burnt oil, the engine of vehicle is bound to get damaged and burnt oil after a particular lapse of time loses its lubricating quality. Thus the Opposite Party No.1 stated that the malfunctioning and overheating of the engine of the vehicle could be attributed to the reason that the engine of the vehicle was run on burnt oil and also on account of non replacement of filter. On account of the said reasons the vehicle was getting over heated and giving less mileage than assured. The Opposite Party then explained the process of servicing the vehicles by stating that during the servicing of the vehicle, the vehicle was thoroughly washed with kerosene and water, and the burnt out oil is drained out from the engine, and thereafter the engine is filtered up with new oil, the old filter is replaced with a new one and electrical battery of the vehicle is checked for water and acid levels besides the important parts being greased to avoid wear and tear of fast moving parts. If the above procedure was not done the vehicle is bound to get damaged. If the battery of the vehicle is not properly serviced for water and acid level, then the battery would go dry and will not be charged even though the vehicle is in motion. Thus the Opposite Party No. 1 claimed that the damage caused to the vehicle was attributed to the negligence and carelessness to maintain the vehicle as required under the warranty conditions and manual of maintenance.



8. The Opposite Party No.1 also denied that there were any complaints from users of similar vehicles and/or that the production of such vehicles were stopped or parts not available. Opposite Party further stated that the Complainant brought his vehicle for servicing on 05-12-2001 and, thereafter, on 02-01-2002, at which time the vehicle was serviced and repaired, but the complainant did not take delivery of the vehicle as he was demanding that he be provided with a new two stroke engine. The Opposite Party stated that they have introduced this model with advanced technology of 4 stroke engine which had better performance and low emission and were selling over 2000 such vehicles per month being environmentally friendly. The Opposite Party No.1 thus stated that the complaint was frivolous and demands of complainant illegal, unreasonable and prayed for dismissal of the complaint with costs.



9. Opposite Party No.2 reiterated the same averments as that of Opposite Party No.1, focusing on the failure on the part of the Complainant to carry out the mandatory servicing of the vehicle as per the service book and within the stipulated period in the service book.



10. In his first affidavit in evidence dated 9th July 2002, the Complainant reiterated the same facts as mentioned in the complaint. It is only in his second affidavit filed on 30-04-2004, that the Complainant states that after purchasing the vehicle, immediately on 22-08-2001 he gave the vehicle at a garage in Mapusa, Goa, for building the body and the same was returned to him on 06-10-2001, to counter the allegations of the Opposite Party for non servicing the vehicle during the first, second, third, and fourth servicing. The Complainant states that he “could not take the vehicle for servicing earlier for the reason that the vehicle was lying at the garage for building the body”. When he took it for servicing on 05-12-2002 the vehicle had run 2300 kms and was on the road for 60 days reckoned from the day the vehicle was ready after building the body i.e. 06-10-2001. He reiterated the allegation that the vehicle had manufacturing defect and could not be repaired by the Opposite Parties. Complainant denied having serviced his vehicle on 2nd January 2002. He stated in his affidavit that the vehicle was lying in the showroom of the Opposite Party since 05-12-2001 as it was not serviced/repaired and had only come to enquire about his vehicle on 02-01-2002.



11. Opposite Parties reiterated their avernments as stated in their written version.



12. The Complainant during the proceedings, produced on record a technical opinion/report dated 8th July 2004 of one Mr. Marcelino Rodrigues, Instructor in Automobile Engineering at Agnel Polytechnic, Verna, Goa. The report, after making observations as to the possible reasons for the problems as stated in the vehicle, opined that the rickshaw was taken for servicing in a running condition within 2,300 kms of running on the road. If, however, the rickshaw is not in a roadworthy condition as claimed by the dealer, as observed in the background information, it may be opined that the said condition has occurred due to some manufacturing defect in the engine/gear box unit.



13. Opposite Party filed their reply to the report and objected to the same chiefly on the ground that the opinion was hypothetical and without any reference to the actual condition of rickshaw engine.



14. The District Forum relying mainly on the technical report, allowed the complaint and directed the Opposite Party to refund the amount of Rs.73,000/- along with interest @ 12% p.a. to the Complainant, and, the Complainant was to surrender his rights to the vehicle. Opposite Party was also awarded Rs.10,000/- as costs and damages.



15. We have perused the records of the trial court and the appeal memo. The Complainant under affidavit states that “the vehicle was taken for first servicing on 05-12-2002 (sic). He further states that at the relevant date the vehicle was taken to the Opposite Party, the vehicle had run for 2,300 kms. It is noted that the Complainant if he is educated as stated in the complaint, ought to have known that the vehicle has to be taken for servicing as per the vehicle service manual. The Opposite Party contends that the vehicle had to be taken for servicing 30 days after purchase or at 750 kms whichever occurs earlier. We note that the Complainant took his vehicle for the first servicing on 5th December 2001 which is about 106 days after purchase and after completing 2,300 kms. Needless to say that the vehicle being used by the Complainant contra to indications in service manual, is bound to cause damage to his vehicle for which the Opposite Party cannot be held responsible. It is common knowledge for drivers of vehicles, that when the engine is run on burnt oil the engine is bound to be damaged, so also the non replacement of the filters and non servicing of the battery of water and acid levels causes damage to the vehicle functioning.



16. The Complainant has sought to explain that the vehicle could not be taken earlier for the reason that the vehicle was lying in the garage for building the body. The complainant has not stated this either in his complaint, nor in his affidavit in evidence filed on 9th July 2002. While the receipt of Rs.13,000/- spent for the body building is attached and this amount claimed by complainant from the Opposite Party in his complaint, the fact of the vehicle not being used from date of purchase has been made for the first time in an affidavit filed on 30th April 2004. In fact, the complainant states in his complaint that the vehicle was giving trouble from date of purchase and after running one meter (sic) the engine was getting hot. If that was indeed the problem, why was the vehicle not brought in earlier i.e. prior to taking it for body building, for rectifying the alleged defect? Be that as it may, the Complainant has no justification for not taking his vehicle for the mandatory servicing at 750 kms and taking it for the first time when it had run 2,300 kms.



17. The judgment of the District Forum has based its findings mainly on the Technical Report of Mr. Marcelino Rodrigues.



18. With reference to this report, we note at the onset, that the expert has not handled the vehicle in question and his observations as per his report were “based on the information provided by Mr. Sandeep Korgaonkar” (the complainant) and perusal of the reply filed by the Opposite Party. We are of the opinion that it is wholly unsafe to rely on a report by an expert who has not seen the vehicle, or, test run it, which opinion would thus be merely theoretical and not on his observations in situ. His observations as to the possibility of vehicle problem may be due to “improper alignment of engine components, improper tolerances between the components, improper cooling effects design” are just that – mere possibilities, and not evidence of the actual condition of the engine/parts of vehicle in question.



19. The reliance of the District Forum on the case of Hyundai Motors India Ltd. vs Affiliated East West Press (P) Ltd is misplaced and not applicable to the facts in the present case. In that case, a brand new car required to be repaired on several occasions and all throughout it emitted smoke which defects could not be rectified.



20. Besides the Opposite Party has raised the issue of warranty and has stated that the warranty for this class of vehicles was four months or 6,400 kms whichever occurs earlier. Since the Complainant had purchased the vehicle on 20th August 2001 and the complaint is filed some time in February 2002 i.e. after five months the vehicle was beyond the warranty period. He relied on the judgment by the State Commission of Delhi, III (1993) CPJ 566 in M/s Surya Agroils Ltd. v/s M/s Allied Motors Ltd & Ors. However, we need not go into this aspect as we hold that it was total negligence on the part of the complainant in not serving his vehicle during the requisite period which caused the damage.



21. In light of the above, the judgment and order of the District Forum dated 20-02-2009 cannot be sustained.



ORDER



Appeal No. 24/2008 is allowed.