BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 16^th day of February 2018

Filed on : 07-11-2015

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.726/2015

Between

Ebanezer P.K., : Complainant

S/o. Kuriakose, Panattu house, (By Adv. Tom Joseph, Court Road,

Ooramana P.O., Muvattupuzha)

Muvattupuzha-686 663.

And

1.M/s. Honda Power Products, : Opposite parties

Door No. 44/2214 D3, (1^st O.P. By Adv. S. Prasanth,

2^nd floor, Holy Tuesday Attorney Alliance, Law Firm

Shopping Mall, Kaloor, K.K.Padmanabhan road,

Kochi-17. Kochi-18)

Rep. by its Managing Director.

2.Jeevesh, Proprietor,

M/s. Schradar Amalgamate

VIII/352C, D.M.C. Road,

Pulinchode Junction,

Mudavoor P.O.,

Muvattupuzha-686 669.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant's case

2. The complainant in order to earn his livelihood by means of self employment, purchased a Honda bush cutter from the 2^nd opposite party Shri. Jeevesh on 09-09-2014 under invoice No. SL 4676, with one year warranty. The machine started overheating on the 1^st day of operation and it was taken to the 2^nd opposite party who repaired it. But the fault of the machine was repeated and the opposite party had replaced some major parts of the machine on 24-12-2014 and collected Rs. 1,880/- from the complainant. Thereafter, some other parts were also replaced and Rs. 454/- was collected from the complainant. However, the machine could not be rectified properly and on 14-02-2015 it became defunct. The machine was entrusted to the 2^nd opposite party on 14-02-2015 and it failed to rectify the defects. Now, the 2^nd opposite party is demanding Rs. 8,000/- for rectifying the defects. The recurring defects of the machine supplied to the complainant was due to manufacturing defects and the complainant is entitled for the refund of the price of the machine with interest and to get back the amount of Rs. 2,334/- collected from him as repair charges during the warranty period. The complainant also prayed for compensation and costs.

3. Notices were issued to the opposite parties and the 1^st opposite party appeared and resisted the complaint by filing a version contending inter-alia as follows:

4. The complaint is not maintainable . There is no deficiency in service on the part of the 1^st opposite party . The complainant has stated that he was doing bush cutting as his profession and as per clause 2 of the warranty policy, the warranty would expired after 6 months from the date of purchase. The complainant purchased the set on 09-09-2014 and the warranty expired by 08-03-2015. At page 3 of the warranty book let, as per clause 3 two free services are to be availed by the consumer. The 1^st service has to be done within 30 days or within 10 operational hours. The 2^nd service was to be done within 180 days or 50 operational hours which ever is earlier. The labour is free of cost, but consumables would be charged from the customer. Both free services are to be availed before the expiry of 50 working hours or 3 months whichever is earlier. Despite reminders issued, the complainant did not turn up to bring the machine for service. The complainant brought the machine for the 1^st service on 19-12-2014 after using it for 240 operational hours of running and 3 months from the date of purchase. Therefore, the complainant was not eligible for availing warranty. The technician of the opposite party on examination of the machine found that there was no sufficient engine oil . The complainant again brought the machine for service on 23-12-2014 with the complaint of breakdown. The technician found that there was carburetor block, worn out spark plug, worn out clutch assembly and outer comp clutch. Those items would come under consumables and warranty is not applicable to them . In the job card the complainant had stated that the machine had used for about 250 hours . The opposite parties had collected cost of materials and labour charges and delivered the set on 24-12-2014 in good working condition. On 26-12-2014 the same complaint was aired by the complainant and it was repeated on 14-2-2015. The oil level of the engine was very low and the engine was damaged due to running without oil . The head office of the manufacturer is at Noida and the Managing Director of the company is not made a party. The complaint is bad of non-joinder of necessary parties.

5. The 2^nd opposite party remained ex-parte and no version was filed by it.

6. The evidence in this case consists of the oral evidence of PW 1 and Exbts. A1 to A8 were marked . The 2^nd opposite party filed a proof affidavit and marked Exbts. B1 to B6 series and he was examined as DW 1 . The 2^nd opposite party also produced and adduced evidence of DW 2. DW3 were also examined.

7. Heard.

8. The following issues were settled for consideration

1. Whether the complainant had proved there was deficiency in service on the part of the opposite parties.

2. Reliefs and costs

9. Issue No. i The complainant purchased the bush cutter on 09-09-2014 as per Exbt. A8 original warranty and booklet . 6 months warranty is given from the date of purchase for commercial or rental use by the customer. In this case, the complainant had purchased the bush cutter to use it commercially for his livelihood. Since the vehicle was used for commercial usage, the warranty as per Exbt. A8 was only for 6 months . The warranty includes repair or replacement of the defective parts at any authorized dealership, free of charge, if found defective by reasons of defective materials or poor workmanship. Exbt. A6 document, which are bills shows that the bills were paid towards petrol, labour and spare parts charges. The spare parts were also seen charged at Rs. 1,550/- on 24-12-2014 and Rs. 230/- on 29-01-2015. According to the opposite parties they charged for the spare parts from the complainant, for the reason that, there was no warranty to the product as the 1^st service of the product was done, after using the machine for more period, than the period advised before the 1^st service . The opposite party examined as DW3, and he gave evidence that the machine became defective as it was run without engine oil, and that the machine had already used for 200 hours, even prior to the 1^st free service, which was against the warranty conditions. The opposite party produced Exbts. B1 to B6 documents . Exbt. B1 is the invoice for the purchase of the product on 09-09-2014. Exbt. B2 would go to show that the clutch assembly, spark plug and fuel filter were changed on 24-12-2014 and the complainant had paid the amount . The gas kit and diatrum assembly as also changed on 27-12-2014 and its cost of Rs. 450/- was paid by the complainant without any demur. Exbt. B4 and B5 labour charges were also paid by the complainant on 27-12-2014 without any claim for warranty. Exbt. B5 job card dated 19-12-2014 shows that there was engine oil shortage due to delay in the 1^st service and by that time the machine had already run 240 hours . It is seen from Exbt. B5 job card that the clutch assembly was damaged due to wear and tear by over usage. The engine stopped running on 26-12-2014 as there was a block in the carburetor due to defective fuel. Exbt. B5 job card would go to show that the complainant had taken the machine without signing the job card. Exbt. A6 series is the original job card produced by the opposite party.

10. On going through the documents produced by the parties as above and on perusing the oral evidence adduced, we find that the complainant had produced the machine for 1^st service only after running it for 140 hours whereas he was required to produce the same before completion of 10 operational hours for the 1^st service and 50 operational hours for the 2^nd service . The warranty conditions in Exbt. A8 would go to show that , warranty will not be include if there was failures resulting due to not availing of free service within the stipulated time as aforesaid. The complainant having failed to produce the machine for free service in time we find that he is not entitled for the coverage of warranty for the machine as per the terms and conditions of warranty . The issue is therefore found against the complainant.

11. Issue No. ii. Having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on this the 16^th day of February 2018

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits:

Exbt. A1 : Copy of invoice dt. 09-09-2014

A2 : Copy of delivery note

dt. 24-12-2014

A3 : Copy of Quotation/Estimate

dt. 24-01-2015

A4 : Copy of tax invoice dt. 27-12-2014

A5 : Copy of warranty policy

A6 : Copy of Quotation/Estimate

dt. 24-12-2014

A7 : True copy of certificate

dt. 06-03-2015

A8 : Copy of warranty & Free Service

Coupon Booklet

Opposite party's exhibits:

Exbt. B1 : True copy of letter dt. 09-09-2014

B2 : True copy of tax invoice

dt. 24-12-2014

B3 : True copy of tax invoice

dt. 27-12-2014

B4 : Service bill dt. 19-12-2014

B5 : Copy of service bill dt. 24-12-2014

Depositions

PW1 : Ebanazer

DW1 : Jeevesh J

DW2 : Sri. Dinesh