Sri. P. Satheesh Chandran Nair (President):

The complainant filed this complaint u/s.12 of the C.P. Act 1986.

2. The case of the complainant is as follows.  The complainant is the registered owner of the vehicle bearing Reg.No. KL 33F6669 Maruthi Erthiga ZXI BS IV Superior White (petrol). The complainant purchased the vehicle from the 1^st opposite party for a total consideration of Rs. 8,56,882/-. The 2^nd opposite party herein is the manufacturer of the said vehicle. On 03/01/2015 when the complainant was plying the vehicle for his brother’s marriage, the vehicle engine got suddenly stopped with a jerking sound. The 1^st opposite party arrived at the spot and towed the vehicle to their service center at Perumthuruthy.  On 05/01/2015 the complainant has gone to the 2^nd opposite party, the service center, and they showed him the engine part and the top cover of both sides of engine which was found as broken.  This incident caused mental agony and worry to the complainant.  It is contended that the opposite party told the complainant that the defects was due to the ‘Hydrostatic lock’ and the said defect has not been covered under warranty. Though the work was not comes under warranty, the opposite party was ready and willing to repair the defect on free of cost and seek the consent of the complainant.  The complainant sent so many e-mail and telephonic calls to 1^st opposite party with regard to the problem of the vehicle, they did not reveal the actual fact and later 1^st opposite party inform that the engine work of the vehicle was completed and the vehicle was ready to deliver.  According to the complainant the 1^st opposite party did the said work without obtaining the consent of the complainant.  The complainant has seen the changes on top cover of the engine then only the complainant realized that an engine work was done to his vehicle by the 1^st opposite party.  In an e-mail to 1st and 2^nd opposite party replied that the crack over the engine part occurred due to the problem of Hydrostatic work. On further clarification 1^st opposite party replied that Hydrostatic lock was happened due to the presence of the water into the engine cabin which resulted the burst of cylinder and change in the pressure in engine assembly.  The engine rod would break if the vehicle was running of the stage.  It is contended that the complainant using the vehicle with utmost care and diligence. Hence there is no chance of entering water or air within engine assembly.  Though the complainant sent e-mail to 2^nd opposite party with regard to this defect they also replied that defect is due to Hydrostatic lock.  According to the complainant as a result of the repairment in the engine area of the vehicle it caused diminishment in the value of the vehicle.  The use of a repaired vehicle, also caused much mental agony to the complainant.  It is further contended that the act of the opposite parties are comes under the deficiency in service as defined in Consumer Protection Act 1986.  Hence, this complaint, for the replacement of a new engine or for a compensation of Rs.1,00,000/- and for a further compensation of Rs.40,000/- as damages for mental agony cost etc.etc.

3. This Forum entertained the complaint and issued notice to the opposite party 1 & 2 for their appearance. The opposite party 1 & 2 entered appearance and filed their version separately.  The 1^st opposite party filed a version denying the complaint and also agreed to accept version filed by 2^nd opposite party in this case.  2^nd opposite party version is as follows.  According to 2^nd opposite party there is no deficiency in service neglect or default on the part of this opposite party and also pleaded that the case is not maintainable either in law or on fact.  It is also contended that there is no cause of auction arised against the opposite party as alleged by the complainant and the case of the complainant is a vexatious one.  It is further contended that the complainant has no right to get any compensation as pleaded and there is no need of obtaining the consent for the repairment of the vehicle since the complainant entrusted the vehicle for the repairment at 1^st opposite party’s workshop.  Apart from the above contention the 2^nd opposite party has given a parawise reply to the complainants pleading as per the complaint. According to him the contents in para 1 to 4 are matter of records hence it is contended that a proof of such pleading is upon to the complainant.  It is further contended that when the complainant informed about the fault the 1^st opposite party suddenly attended the defect and resolved it.  It is further contended that the service center people informed the complainant about the problem as Hydrostatic lock and the said lock is not covered under warranty provided by 2^nd opposite party.  Even then as goodwill the 2^nd opposite party service center was ready to repair the engine with free of cost as a gesture of goodwill. The 2^nd opposite party sent a mail on 08/01/2015 as the reply of an e-mail of the complainant dated 07/01/2015 the 2^nd opposite party expressed their willingness to repair the engine, free of cost, as a gesture of goodwill.  As stated earlier the complainant brought the vehicle on 02/06/2015 at 9214kms and the engine problem was not reported at that time.  It is pleaded that one Thomas was given permission to start the work on 09/01/2015 and on 30/01/2015 the vehicle was retuned to the complainant with a satisfaction endorsement of the complainant.  According to this opposite party the defect of the vehicle was clearly mentioned to the complainant as follows.  “As per the complaint of engine off while running, we checked the vehicle and found that engine block broken, due to the hit by broken connecting rod, we carried out the work on the same of the replacement of the affected parts including the block.  Road test taken for 60kms and performance was found ok”. The allegation of the complainant with regard to the non intimation of the fault of the vehicle was also denied.  It is further contended that the 1^st opposite party did the repair work with the consent and knowledge of the complainant.  The signature on the job card and satisfaction note is the evidence for their consent.  According to this opposite party the manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part. To prove such a defect, opinion of an expert is necessary. In the light of decision reported in Maruthi Udyog Ltd. Vs Hasmukh Lakshmichand & Anr.-3(2009)CPJ 229(NC) this fact is clearly settled.  It is further contended that the repairment conducted by 1^st opposite party as per the fixed standards of MSIL policy.  And more over all these repair details are recorded in the job card.  According to this opposite party the vehicle was delivered to the complainant as free of any defects and there is no ground for any doubt with regard to this to the complainant and also contended that no manufacturing defect for the vehicle.  There is no deficiency in service on the part the opposite parties as alleged by the complainant.  Therefore the opposite parties prayed to dismiss the complaint with cost to them.

4. We peruse the complaint, version and records before us and framed following issues for consideration.

1. Whether the complaint is maintainable before this Forum?
2. Whether the opposite parties committed any deficiency in service against the complainant?
3. Regarding the relief and costs?

5. In order to prove the case of the complainant, the complainant Power of Attorney Holder Lio Sebastain was filed proof affidavit in lieu of chief examination and he is examined as PW1. Through the PW1, Ext. A1 to A4 and C1 were also marked on the side of the complainant.  Ext. A1is the Power of Attorney in favour of PW1.  Ext. A2 is the Photocopy of Receipt for Purchase of Vehicle dated: 10/07/2014.  Ext. A3 is the Photocopy of Job Card dated: 21/01/2015.  Ext. A4 is the Printout of Photographs of broken engine part.  Apart from PW1’s evidence the commissioner is also examined as CW1 and he identified Ext. C1 commission report which was already marked through PW1.  On the other side 1^st & 2^nd opposite party have neither examined any witness nor adduced any document in evidence in their favour.  After the closure of evidence we heard both parties in this case.
6.  Point No.1: The 1^st & 2^nd opposite parties in this case are seriously contended that this Forum has no jurisdiction to entertained this case since the complainant is not a consumer as defined in Section 2D of Consumer Protection Act.  And they also raised a contention to the effect that there is no consumer dispute between the complainant and opposite parties and no deficiency on their side as described in Sec.2(E&G) Consumer Protection Act 1986.  When we appreciate the evidence of this case it is come out in evidence to see that the original complainant before the Forum is purchased vehicle from 1^st opposite party by paying a consideration of an amount of Rs. 8,56,882/- and it is also admitted that 2^nd opposite party is the manufacturer of the vehicle.  It also come out in evidence that the complainant has raised a very genuine dispute with regard to the vehicle bearing registration No. KL 33F6669 owned by him.  If the complainant was able to prove the deficiency in service against the opposite parties no doubt, the opposite parties in the case are liable to answer for the same.  We can see that the complainant herein is proved that there is a consumer relation between the complainant and opposite parties in this case and also proves that the complainant raised a plea of deficiency in service against opposite parties.  Then it can be inferred that the complainant is a consumer and opposite parties are service providers of the complainant.  Hence Point No. 1 found in favour of the complainant.

7. Point No. 2 & 3:- For the sake of convenience we would like to consider point no. 2 and 3 together.  The main question to be answered is whether the opposite parties are committed any deficiency in service as pleaded by the complainant.  In order to substantiate the case of the complainant the complainant’s power of attorney holder and his brother is examined as PW1 and through him Ext. A1 to A4 series are also marked.  Ext. A1 proves that the original complainant executed a power of attorney in favour of PW1 for appearing before the Forum for conducting this case.  Ext. A2 shows that on 10/07/2014 the original complainant purchased vehicle for an amount of Rs. 8,56,882/- from 2^nd opposite parties.  The power of attorney Ext. A1 and the sale price Ext.A2 have not at all disputed by the other side.  Ext.A3 shows that there are so many e-mail communication between the complainant and opposite parties with regard to the engine trouble of the vehicle.  It is seen that on 07/01/2015 the complainant sent e-mail to 1^st opposite party with regard to the fault of the vehicle and on 08/01/2015 1^st opposite party has given reply to it.  It is stated that the defect is as a result of Hydrostatic lock and there is no warranty for it.  On 17/01/2015 again the complainant sent a series of question for getting an explanation with regard to the Hydrostatic lock.  On the same day 1^st opposite party has given a reply to the effect that the vehicle was ready for delivery on the same day.  It is seen that on 19/01/2015 the complainant repeated the same question to 1^st opposite party but 1^st opposite party has not given any specific reply for it.  On 21/01/2015 again the complainant expressed his deprivation to receive the vehicle without an engine replacement and for written warranty for the future years.  In reply to that e-mail 2^nd opposite party informed the complainant to receive the vehicle as repaired from 1^st opposite party’s show room and also informed that the Hydrostatic lock would not covered under warranty and it does not considered as a mechanical defect.

8. As per the job card it is revealed that the date of the job card is on 03/01/2015 and the date in cash memo is shown as 21/01/2015.  In the bottom of Ext. A4 page 1 the signature of the customer is also seen.  When we examine Ext. A4 we can see that this Ext. A4 is not a completed one and in page 3 of Ext. A4 we can see that ‘Continuing’ is mentioned.  Though it is an                        incomplete document it is to see that the document is produced by the complainant herein and it carries the signature of the customer.  It is interesting to see that even at the time of cross-examination either the complainant or the opposite parties have not raised any question with regard to the incompleteness of Ext. A4 series.  However we can safely inferred that the vehicle is entrusted to opposite party’s workshop at Perumthuruthi, Thiruvalla by the complainant or any person related to him and he had got an information with regard to the  spare parts, price of spare parts and details of the work etc.  It is true that the complainant raised a serious contention against opposite party to the effect that even without the consent and knowledge of 1^st opposite party they started repair work on the vehicle.  When we relying Ext. A4 series it is to be understood that only with the knowledge of customer the 1^st opposite party had started the repairing work.  When PW1 is cross-examined he answered “എൻറെ ഒപ്പിലാണ്   A.V.G Motors - ൽ വണ്ടി കൊടുത്തത്  .  Free of cost - ൽ ആണ്  O.P 1 നന്നാക്കിയത് ”. He answered  in- cross examination of the question of OP2 “എന്നാൽ ആവശ്യമായ  reparing നടത്തുന്നതിനെ സംബന്ധിച്ച് പിന്നീട് ഞാനാണ്  OP1 ഉം ആയി ബന്ധപ്പെട്ടത് . ടി വാഹനത്തിൻറെ തകരാർ സംബന്ധിച്ച്  OP1 വിവരം തന്നിരുന്നുവോ  (A) 5  ദിവസത്തിനു ശേഷം തകരാർ എന്താണ് എന്ന് പറഞ്ഞു. വാഹനത്തിൻറെ തകരാർ പരിഹരിക്കുന്നതിന് എത്ര ദിവസം വേണ്ടിവരും എന്ന് OP1 പറഞ്ഞിരുന്നോ  (A) ഇല്ല. ടി വാഹനം എൻറെ വീട്ടിലേക്ക് ഞാനാണ് ഓടിച്ചുകൊണ്ടുപോയത് . ഇപ്പോൾ ഏകദേശം 16,000KM ആണ് ഓടിയിരിക്കുന്നത് .  30/01/2015 ൽ ശേഷം താങ്കൾ വാഹനം പണിതീർത്ത് തിരികെ എടുത്തതിന് ശേഷം എന്തെങ്കിലും തകരാർ ടി വാഹനത്തിന് ഉണ്ടോ   (A) എനിക്ക് അനുഭവപ്പെട്ടിട്ടില്ല”.    In the light of the answer given by PW1 in-cross we can inferred that the original complaint had clearly involved the repairment work done by the 1^st opposite party and he had got clear knowledge with regard to the spare parts of the vehicle used for its repairment and the details of the work etc.  It is to be noted that even in the absence of the non covering of the warranty for this type of repairment, the 1^st opposite party had completed the repair work on free of cost as a gesture of goodwill.  And it also come out in evidence to see that the vehicle is not suffering any defect at present.

9. The main allegation of the complainant is that the vehicle is having a mechanical defect as a result of the Hydrostatic lock for which the opposite parties are liable to compensate the complainant or to replace the engine.   In order to substantiate the case of the complainant a commissioner was also appointed by the request of the complainant and the said commissioner was a technical expert he who filed a report which is marked as Ext. C1 in this case.  When the said commissioner was examined as CW1 he categorically deposed that the Hydrostatic lock is not at all the mechanical defect of the vehicle and the said defect was caused due to the entry of water or other kinds of like substance into engine assembly.  Though he is examined as CW1 the complainant has not even suggested any doubt with regard to the genuineness or credibility of Ext. C1 report.  As per the decision in Maruthi Udyog Ltd. Vs Hasmukh Lakshmichand & Another 2009 CPJ 229(NC), It is clear that to prove a mechanical defect opinion of an expert is so necessary.  Here the expert witness CW1 deposed that the vehicle has not having any mechanical defect.  As per the decision cited above complaint is failed to prove the mechanical defect of the vehicle.  Therefore, we have to accept Ext. C1 report for deciding the main issue. 

10. As discussed earlier we can see that the complainant in this case is not succeeded to prove any deficiency in service against 1^st opposite party and 2^nd opposite party.  It is come out in evidence to see that even the commissioner who inspected the vehicle to ascertain the mechanical defect if any of the vehicle is also strongly deposed that the vehicle is not having any mechanical defect and also categorically deposed that the Hydrostatic lock is not a mechanical defect as stated earlier. It is also come out in evidence that as per Ext. A3 series, e-mail communication it is to be inferred that the complainant and opposite parties are in touch with the matter of repairment of the vehicle.  Here also there is no evidence to show any kind of deficiency on the part of the opposite parties with regard to the contention ‘absence of consent’.  In the light of the above discussion we find that the complainant is failed to prove any deficiency in service on the side of opposite parties 1 & 2.  Therefore, Point No. 2 and 3 are found against the complainant. 

11. In the result, we pass the following orders.

1. The case is dismissed.
2. No order of cost.

                              Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 30^th day of June, 2017.

                                                                                              (Sd/-)

                                                                   P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                          (President)

Smt. Sheela Jacob (Member)               :  (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Leo Sebastian

Exhibits marked on the side of the complainant:

A1 : Power of Attorney

A2 : Photocopy of Receipt for Purchase of Vehicle dated: 10/07/2014

A3 : Photocopy of Job Card dated: 21/01/2015.

A4series : Printout of Photographs of broken engine part.

Witness examined on the side of the opposite parties: Nil

Exhibits marked on the side of the opposite parties: Nil.

Court Witness

CW1 : Suresh Kumar

Court Exhibits

C1: Commission Report

                                                                                                  (By Order)

             Copy to:- (1)  Lijo Joseph,

                                 Kalathil House, Vazhapally West P.O,

                                 Changanassery Taluk, Kottayam District,

                                 Represented by Power of Attorney Holder

                                 Lio Sabastain,

                                      Do-do

 (2)  AVG Motors Ltd,

                   M.C Road Perumthuruthy, Thiruvalla,

                   Pathanamthitta District.

    (3)  Maruthi Suzuki India Ltd,

                    Nelson Mandela Road, Vasant Kunj, New Delhi – 110070.

4. The Stock File.