ORDER<br /> <br /> <br /> By Sri. K. Gheevarghese, President:<br /> <br /> <br /> The complaint filed under section 12 of the Consumer Protection Act.<br /> <br /> The complaint in brief is as follows:<br /> <br /> The Complainant is an unemployed person. He purchased from the Opposite Party No.3 a Bajaj 4 stroke single cylinder engine Autorikshaw, bearing Engine No. AAM BGK 39491 chassis No. AAF BGK 28681. The vehicle was registered bearing the register No. KL 12B 854. The Opposite Parties claimed the efficiency and quality of the vehicle. Immediately after the purchase of the<br /> Autorikshaw, the trouble started, the engine get heated even for a run of short distance. The<br /> (Contd...... 2)<br /> - 2 - <br /> consumption of the petrol is high, the piston is very weak and the crank was shake, the charge of battery was not lasting and more over the clutch is also defective. The trouble of the vehicle was informed to the Opposite Party No.3, during that time it was informed the Complainant that being the vehicle is a new model it is not free from manufacturing defect. Even at the time of free service the defects of the vehicle was persistent. On report of it the authorized dealers did some minor repairs, the major trouble of the vehicle still continued. According to the Complainant a new model RE 4 stroke engine is having defects right from the time of manufacture. The defects of the vehicle became a set back to the dreams of the Complainant. The expectation of the Complainant was shattered. The authorized service center of Bajaj care did some repair works but even after that the defects of the vehicle was not rectified. Apart from that the Complainant himself spent huge amount for the repair works. Later the Complainant could realise that the model RE 4 stroke engine has several manufacturing defects, the production of the particular model was stopped. The Complainant purchased the vehicle by the support of the financier. More over the Financier threatened the seizing of the vehicle. Towards the repair charges the Complainant had spent Rs.10,000/-. When the Company was informed of the manufacturing defects, nothing was done by the Opposite Parties to rectify the defects of the vehicle. The Complainant is to be given Rs. 72,000/- which was paid towards the cost with 18% interest from the date 16.2.2001 towards the work shop expenses Rs.10,000/- is to be paid. Rs.25,000/- is to be paid to the Complainant by the Opposite Parties towards the deficiency in service along with Rs.15,000/- towards the compensation.<br /> <br /> The Opposite Parties No.1 to 3 filed version on their appearance. According to the Opposite Parties No.1 and 2 the mode of operation of the vehicle was not in compliance with the stipulation. The negligent usage resulted in the defect engine. Because of the rough use of the vehicle if any<br /> (Contd..........3)<br /> - 3 -<br /> defects caused to the vehicle that cannot be rectified. During the period of 9 months. The vehicle covered 50,000 km and that itself shows that the vehicle was used roughly and extensively. It is also contended by Opposite Party No.1 and 2 that being Autorikshaw is used for commercial purpose, the dispute raised hear in does not come within the ambit of Consumer Protection Act. All the repair works of the vehicle were carried out with due care and cautions. The Autorikshaw was roughly used and it covered 15000 km in a period of 9 months. The continuous and extensive use of the vehicle could have caused some wear and tear to the parts of machinery. Anyhow in the warranty period service was properly given according to the satisfaction of the complainant. The complaint is not maintainable being the warranty period was already over. The vehicle was purchased on 16.2.2001 and the free services were used by the Opposite Party. There is no disputes from the part of the <br /> Complainant that service given by the Opposite Parties were not proper and sufficient. The filing of the complaint is with ulterior motives and concealing of facts. If the vehicle had defects in manufacture the Complainant could have rejected the vehicle at the time of delivery or even at the time of warranty period. It shows that at the time of delivery the vehicle was in good conditions. After the delivery of the vehicle the Opposite Party ceased to have control upon the vehicle. Apart from that no expert opinion is brought out to show that the vehicle is incumbent with manufacturing defects. The continuous usage of a vehicle, however caused defects to the parts but this defects are not apart from rectification on repair. There is no ground on the part of the Opposite parties for the replacement of the vehicle nor the refund of the amount of the vehicle with interest. The warranty covers the replacement or repair of such part or parts which all found defective on examination. The vehicle in this class were offered three free warranty services and two paid services. This services were offered either upon the use of vehicle ie, kilometer running or periodic interval, whichever occurs earlier and it is not extended in normal case. The minor repair problem cannot be equated with major<br /> (Contd........4)<br /> - 4 -<br /> defects and reasoning for that by the Complainant is does not hold good. The Opposite Party No. 1 <br /> and 2 further reiterated that, there is no more shirking from their responsibilities at any point of service to the customers. The 4 stroke Rikshaw is newly developed Rikshaw having high technical features and is equipped with environment frontal vehicle. This is different from the conventional Rickshaw of 2 stroke. The mechanism the maintenance and also the usages are vital importance for the better performance and up keep of this vehicle. The defects noticed in the instant case were all due to the improper usage of the vehicle and it was not because of the manufacturing defects. With regard to the fuel consumption, it varies from the locations to location and management of the vehicle. It is also reiterated by the Opposite Party No. 1 and 2 that an average figure of fuel consumption is obtained government laboratory under controlled external conditions. The allegations of the fuel consumption is a subjective allegation. Different factors governs the oil consumption, mixing of oil, load on the vehicle, maintenance number of stops and starts mode of driving rout conditions etc.. On this regard the allegation of excessive oil consumption amounting to the allegation of manufacturing defects is incorrect. The Complaint is to be dismissed with compensatory cost to the Opposite Parties No.1 and 2.<br /> <br /> The Opposite Party No.3 filed version on their appearance. They are only dealer of <br /> M/S Bajaj Auto Limited Akurdi, Puna, manufacture of Bajaj vehicle including Autorikshaws. The dealer is confirmed with the duty to rectify the defects in the period of warranty. The warranty does not cover replacement of vehicle. The allegations of the Complainant as such the consumption of engine oil One liter per day, over heating of engine even for short distance, a week piston and shaking crank are denied by the Opposite Party No.3. In two occasions the Complainant approached the Opposite Party No.3. The minor repairs were done and vehicle was handed over to the<br /> (Contd....5)<br /> -5- <br /> Complainant, repairing of vehicle was done to the full satisfaction of the Complainant. The defects of the vehicle was within a period of six months and this itself shows the rough use of the vehicle. The Complainant is not entitled for the price of the vehicle as prayed for. The monitory loss, mental agony, repair charges, and other expenses were denied by the Opposite Party No.3. Though the warranty period covers only four months from the date of delivery, the Opposite Party No.3 extended the warranty up to 03.09. 2002 and it was undertaken to rectify the defects of the vehicle during that period. The complaint is filed without any ground. The complaint is to be dismissed. <br /> <br /> The points which are to be considered are:<br /> 1.Whether the vehicle sold to the Complainant is having defect in manufacture?<br /> 2.Relief and costs.<br /> <br /> Point No.1:<br /> The Complainant is examined as PW1. The service manual given to the Complainant on purchase of the vehicle is Ext.A1. The document given by the the Opposite Party No.3 is Ext.A2. The purchase of the Bajaj 4 stroke Autorikshaw bearing engine No. AMBGK 39491 chases No. AAFBGK 2868 are admitted by the Opposite Party No.1 and 2. It is testimonied by the Complainant that said vehicle showed defects from the very beginning onwards. The piston cylinder of engine is week, gear and clutch slipping, oil consumption is excessive. The Opposite Party No.3 is the dealer who sold the Autorikshaw to the Complainant. The warranty period was admittedly extended. According to the PW1, the warranty was for the period of four months. The warranty was extended by the dealer beyond the offered time at the time of purchase. It is substantiated by the<br /> warranty card Ext.A4. The Opposite Party No.3 extended the warranty period to one year. The<br /> (Contd.......6)<br /> - 6 -<br /> Expert Commissioner appointed to inspect the defects of the vehicle is examined as CW1. The report is marked as Ext.C1. According to the CW1 the vehicle consumes the excessive quantity of oil than that normally requires, the starter motor is not working, the engine appeared to be over heating clutch slipping and these were the general fault. More over clutch assembly is also defective, The Regional Manager of the Opposite Party No.2 is examined as OPW1. The warranty of the vehicle is 120 days from the date of sale or 55000 kms of run which ever come first. There is no dispute regarding the service availed from the dealer. The vehicle was run for distance of 55000 km. The warranty was not how ever extended by the Opposite Party No.2. But as per the right vested upon the dealer the Opposite Party No.3 had extended the warranty. It is deposed by the OPW1 that there were a large number of complaints with respect to 4 stroke Autorikshaw. The dealers in Kerala were not in demand of the 4 stroke Autorikshaw. The supply of 4 stroke Autorikshaw was so limited. It is admitted by OPW1 due to the heavy thrust of allegations in the defect of manufacture of 4 stroke Autorikshaw, the dealers in Kerala were compelled to extend the warranty, apart from the usual procedure. The report of the Expert Commissioner correlate with the allegations raised. No objection to the report was filed by the Opposite Parties. The Opposite Party No.1 and 2 have no contention that the vehicle was not mended properly and the service was made used by the Complainant. It is further deposed by the Complainant that there were roar of cry from the purchasers of the different places especially the Calicut and surrounding places that the 4 stroke Autorikshaw soled by the Opposite Party No.2, during the period was defective in manufacture. The extension of warranty during that time was offered by the dealer only because of the pressure from the purchaser. The Autorikshaw sold to the Complainant is having manufacturing defect. The point No.1 is found against the Opposite Parties. <br /> <br /> (Contd.....7)<br /> - 7 -<br /> Point No.2: <br /> The Complainant was in use of the vehicle at the time of filing the complaint. It is admittedly seen that the vehicle had run for the distance of 55000 km. The Complainant prayed for the refund of the price of Autorikshaw. There is no evidence to show that the price of the vehicle is Rs.72,000/- but not disputed by Opposite Party No.3. A proportionate deduction from the amount claimed as the price of the Autorikshaw is also inevitable. The Complainant is not entitled for the full amount of the price as claimed being the vehicle had run for a distance of 5500kms. In Mahindra and Mahindra Limited V/S Mahesh Sukthanker (2004 (2) CPR 49) a Honorable National Commission held a proportionate deduction for the use of the vehicle. The principle and the direction Honorable Apex Commission can be applied in this case. Towards the use of vehicle to 55000km one fourth of the price to be deducted from the price of the amount that claimed.<br /> <br /> In the result the Opposite Parties No.1 and 2 are directed to pay Rs.64,000/- ( Rupees Sixty Four thousand only) to the Complainant with 12% interest from the date of filing the complaint till the payment. The Complainant is also entitled for compensation of Rs.10,000/- (Rupees Ten thousand only) along with the cost of Rs.2,000/- (Rupees Two thousand ). The Opposite Parties No.1 and 2 are directed to give the Complainant this amount within one month from the date of receiving this order. In case of any failure on the part of the Opposite Parties No.1 and 2, the Complainant can execute this order according to the provisions of law.<br /> Pronounced in open Forum on this the 6th day of December 2007.<br /> <br /> PRESIDENT: Sd/-<br /> <br /> MEMBER: Sd/-<br /> <br /> /True Copy/<br /> <br /> <br /> PRESIDENT, CDRF WAYANAD.<br /> - 8 -<br /> <br /> <br /> APPENDIX<br /> <br /> Witnesses for the Complainant:<br /> <br /> PW1 Joy Complainant.<br /> <br /> CW1 E.V. Thomas Automobile Technician.<br /> <br /> Witnesses for the Opposite parties:<br /> <br /> OPW1 C.M. Mathew Service Manager, Bajaj Auto Limited.<br /> <br /> <br /> Exhibits for the Complainant:<br /> <br /> A1 Owner's Manual & Service Coupon.<br /> A2 Membership Card<br /> A3 Copy of Certificate of Registration.<br /> A4 Copy of Warranty certificate<br /> A5 Copy of Membership Card<br /> A6 Copy of Driving License<br /> A7 Series Cash Bill.<br /> (4 in numbers)<br /> <br /> A8 Series Bus Ticket and Telephone bills.<br /> A9 Series. Cash Bill.<br /> <br /> C1 Commission report dt: 11.10.2002.<br /> <br /> Exhibits for Opposite Parties: <br /> <br /> B1 Satisfaction report. dt:21.01.2002. <br /> <br /> <br /> <br /> <br /> PRESIDENT, CDRF WAYANAD.<br /> <br /> <br /> Compared by:-