SRI.K. VIJAYAKUMARAN, PRESIDENT. The complaint seeking replacement of a new motor cycle with compensation and costs. The averments in the complaint can be breiefly summarized as follows: The complainant while planning to purchase a new motor cycle happened to see the advertisement of the 1st opp.party through news papers and television about its product, Hero Honda Passion Plus motor cycle claiming a mileage of 87 kilometers per liter durability , perfect and flawless engine and other peculiarities. Believing the claims of 1st opp.party the complainant purchased a Hero Honda Passion Plus Motor Cycle from the 3rd opp.party who is the authorized dealer for a sum of Rs. 42.691/-. The vehicle was registered with Registration No.KlL-02-S-8179, The engine number was 04G08M24045 and the chasis No.04G09C23772. At the time of purchase the vehicle showed a mileage of 63 km. per liter. After one service mileage was reduced to 53 km. Thereupon the complainant approached the 3rd opp.party who said that the offered mileage of 87 km. per liter will be obtained after three successful services. But after three successful services also the mileage did not improve but was reduced to 40 km. per liter. The complainant thereafter contacted the 3rd opp.party again as the mileage has been reduced and the motor cycle started developing starting trouble. The motor cycle thereafter was subjected to repairs 7 times by the 3rd opp.party’s service centre at Curzon Road at Polayathode. Though no charges are to be collected for the same the 3rd opp.party collected Rs.212.26 paise from the complainant. Inspite of all these repairs and services starting trouble and the deteriorating mileage, could not be rectified. When the complainant consulted some experienced automobile engineers they opined that the defects of the motor cycle cannot be rectified since the same is the result of manufacturing defect. The complainant approached the 3rd opp.party and requested him to supply a new vehicle as the vehicle supplied has manufacturing defect but the 3rd opp.party did not take any action. Thereafter the complainant issued an advocate notice to the opp.parties. The complainant sustained huge loss due to the poor mileage of the motor cycle. The complainant is a business man and he purchased the vehicle in connection with the business purpose The low mileage and the intermittent starting trouble of the vehicle caused great inconvenience to him and the running of his business. Hence the complaint. The opp.parties filed a joint version contending as follows. The complainant is not a consumer of the opp.parties . It is true that the complainant purchased a Hero Honda Passion Pluz motor cycle from the 3rd opp.party. The preparation made by the complainant for purchasing a motor cycle are matters known to him only for which the opp.parties have nothing to do They are not made any bluffing advertisement in this regard . The complainant did not observe the warranty conditions properly. The allegation of deterioration of mileage is also farcified creation of the complainant in order to harass the opp.parties due to ego clash created during the service time in the service station. The mileage would depend upon the quality of riding the vehicle, the load being pulled, the quality of the fuel used and other riding conditions. The vehicle lsupplied was devoid of any manufacturing defect. The alleged starting trouble of the vehicle is also a creation and afterthought in order to suit this claim The opp.parties can make a test and rectify the complainant’s vehicle with the observation of this Forum as a prudent approach. The complainant is not entitled to any relief as prayed for. There is no deficiency in service on the part of the opp.parties. Hence the opp.party prays to dismiss the complaint with their costs. The points that would arise for consideration are: 1. Whether the motor cycle suffers from any manufacturing defect? 2. Whether there is deficiency in service on the part of the opp.parties? 3. Reliefs and costs. For the complainant PW.1 and 2 are examined. Ext.P1 to P10 are marked. No oral evidence is adduced by the opp.parties. Points: The case of the complainant is that he has purchased the motor cycle involved in this case seeing the advertisements made by the 1st opp.party in the media regarding the mileage and other performances. According to him the advertisements showed that the motor cycle had a mileage of 87 Km per litre. But no material worth believable was produced to show that the opp.parties gave such an advertisements. No material was also produced by the complainant to show that Hero Honda Passion Plus motor cycle has a milege of 87 km. per litre. There is also no evidence to show that the mileage of the motor cycle after each service had deteriorated . Though the complainant would claim that the vehicle was repaired and serviced by the opp.party seven time no bill or other material is purchased to establish that contention. Other than the oral assertions all that is produced is Ext.P4 series which are the value of engine oil purchased service charges and value of a bolt. Ext.P4 [a] and [b] are dated 3.3.2005 and Ext. P3[c] is dated 15.3.2005. These documents shows that the vehicle was taken to the opp.party by the complainant in March 2005 only. The complainant has admitted that he has taken the motor cycle to the opp.parties for 3 free services, but the service manual was not produced. According to him the service manual was lost when the vehicle was taken to the 3rd opp.party’s workshop. But he has no such averments in the complaints. As argued by the opp.parties the service charges alone is free and the material such as oil etc has to be purchased by the party and that after 3 free services charges will be collected for service. The definite contention of the opp.party is that the motor cycle purchased by the complainant from them has no manufacturing defect at all and that the deterioration in mileage etc is not due to any manufacturing defect but due to the way in which the vehicle was being handed by the complainant. It is argued that the mileage would vary depending upon the quality of riding the vehicle, the load, quality of the fuel used and other riding conditions and that there is nothing to show that the complainant was observing all the above conditions properly while using the motor cycle. It is further argued by the opp.party that the dispute is not because of any defect to the motor cycle but due to some ego clash between the complainant and employees of the 3rd opp.party who was servicing the motor cycle. The contention of the opp.parties is that the motor cycle had manufacturing defect which is the cause of all the complaints has not been properly established by the complainant. PW.2, the expert appointed in this case and who has prepared Ext.C1[a] inspection report has no case either Ext. C1[a] or in the box that this motor cycle had any manufacturing defect. He had inspected the vehicle and pointing out taken mistakes which are elaborating stated Ext. C1[a] . No even suggestion was put PW.1 by the complainant’s counsel that the vehicle has any manufacturing defect. It is also worth pointing out that a motor cycle having manufacturing defect cannot be used for riding more than 30,000 Kms. As admitted by PW.1 Therefore the contention of the complainant that the vehicle has manufacturing defect cannot be accepted. The expert report Ext. C1[a] shows that the motor cycle has certain defects. The report shows that the starting coil ,the Carburetor, the exhaust the piston and odometer are unserviceable. He has suggested replacement of the starting coil, Carburetor, engine, exhaust and the odometer. According to him the condition of the vehicle is very poor and not roadworthy and that the above are beyond repair. It is stated in the expert report that the pitson is in a worn out condition and the engine condition is also very poor. It is not known as to how the expert come the conclusion that the piston is in a worm out condition without opening the engine . It has come out from Ext.C1[a] that the motor cycle has such 24057.8 kms. PW.1 has also admitted in cross examination that the motor cycle ran approximately 30,000 km.. PW.2 has stated during the cross examination that odometer was static and he cannot say whether the motor cycle has run more kilometers than what is shown in the odometer. Whatever that be a motor cycle having manufacturing defect cannot be said to have run so much kilometers. This aspect is fortified by Ext. C1[a] and the evidence of PW.2 Therefore, we are of the view that the motor cycle, as contended by the opp.party, cannot be said to have any manufacturing defect. In these circumstances the complainant cannot seek replacement of the motor cycle. As pointed out earlier Ext. C1[a] shows that the motor cycle has certain defects and the expert has categorically stated that the defects shown therein are beyond repair. Therefore we feel that it is only just and proper to direct the opp.party to replace the starting coil , the carburetor, exhaust the piston and service the engine . The opp.parties are also bound to replace odometer if the same is not serviceable. Infact in the version in para 5 the opp.parties have volunteered to rectify the complaints of the vehicle. Hence we are direct the opp.parties to replace the items shows above and service to the engine. Point found accordingly. In the result the complaint is allowed in part directing the opp.parties to replace free of charge the starting coil, carburetor, exhaust, piston and to service the engine and odometer . We direct the parties to suffer their respective costs. The order is to be complied with within one month from the date of this order. Dated this the 24th day of April, 2009. I N D E X List of documents for the complainant PW.1. – Sajeev Kumar PW.2. – Sasidharan Pillai List of documents for the complainant P1. –Vehicle ssales bill P2. – Advance payment receipt P3. – Bill dated 16.8.2004 P4. – series - Bills P5. – Advocate notice P6. – Acknowledgement card P7. – Advocate notice to opp.party 3 P8. – Acknowledgement card P9. – Advocate notice to Opp.party 2 P10. – Reply notice C1. – Expert report | 
