BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 26^th day of October 2017

                                                                                                Filed on: 09.10.2014

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 759/2014

                                Between  

                                                 O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had purchased DREAM YUGA CB 110 MB iii Motor cycle on 20.03.2013 for an amount of Rs. 51,379/- from the 2^nd opposite party dealer which was manufactured by the 1^st opposite party. The complainant had used the vehicle as per the instructions in the owner’s manual and the 1^st free service was properly done in time on 19.04.2013.  On 25.06.2013, the complainant noticed oil leakage problem from the engine and a beating sound was also emanated from it.  On 26.06.2013, the complainant entrusted the vehicle for repair with the 3^rd opposite party who is the authorized service centre of the 1^st opposite party manufacturer. After 3 days, the vehicle was returned to the complainant after repairing and also informed him that the gasket head cover of the disputed vehicle was replaced. On 16.07.2013 the same complaint happened again, and on the same date itself the vehicle was entrusted to the 3^rd opposite party. The vehicle was returned to the complainant after 2 days and Rs.291/- was charged and collected from the complainant by the 3^rd opposite party. The service person of the 3^rd opposite party assured the complainant that the complaint of the vehicle was repaired and the same complaint will never happen again. Unfortunately the same complaint happened again on 22.07.2013 and the vehicle was entrusted to the 3^rd opposite party.  The 3^rd opposite party refused to accept the vehicle for repair and informed the complainant that the disputed vehicle was suffering from various manufacturing defects and thereby the Expert Engineer from the 2^nd opposite party dealer will visit the complainant’s house and inspect the vehicle. On believing the assurance of the service centre, the complainant had waited till 21.08.2013. The complainant could not use the vehicle from 22.07.2013 onwards because of the problem above mentioned. On 21.08.2013 the complaint sent a lawyer notice to the opposite parties and informed them about the complaints and manufacturing defects of the vehicle. But neither of the opposite parties replied or turned up so far and thus showed the negligent attitude towards the poor customers. After 22.07.2013 the complainant contacted the service centre and the dealer and asked about the same but there was no response from the side of the both parties.  After that the complainant sent a lawyer notice to which it is not replied yet.  After that advocate for the opposite party contacted the complainant and asked to wait for some time to cure the defect.  But nothing was done by the opposite party so far.  It is also submitted that there was some oil leakage problem from the head of the engine and beating sound was also coming out of the engine. Even after the replacement of gasket and by the service centre could not cure the defects despite many repairs.  Thus the complaint is before us seeking direction against the opposite parties either to replace the defective product with a new product of similar descriptions or to refund its price and to pay an amount of Rs. 25,000 /- towards compensation, refund tax, insurance amount along with costs of the proceedings.

2)      Version filed by the 1^st opposite party is as follows:

It is submitted that the allegations raised by the complainant in the complaint against the 1^st opposite party are superfluous and prima facie bad in the eyes of law.  The complaint ought to be dismissed out rightly as same does not disclose material facts and suffers from the blatant error of law.  It is submitted that there are no grounds or even an iota of evidence produced by the complainant to show that there is any deficiency on service on the part of the 1^st opposite party.  The vehicle in question is manufactured by the 1^st opposite party and they are world class 2 wheelers and are being manufactured with under technological support from the Honda Motor Company Ltd. Japan. The complainant alleged the problem of oil leakage and beating sound in the engine, was due to the manufacturing defects.  Even after replacing the gasket head cover the very same problem reappeared.  The above said contentions of the complainant are baseless and incorrect. The complainant had failed to produce any cogent evidence in support of such allegations which are false and imaginary.  It is further pertinent to mention here that the complainant has not produced any expert opinion in support of such allegations. The 1^st opposite party being a responsible and reputed manufacturer always believed in providing best of service and service as per warranty policy, if applicable. From the available reports, the opposite parties have never failed to provide service to the complainant.  The complainant at all times has been dealt up to complete satisfaction. The complainant has not approached the Forum with clean hands and intentionally suppressed vital facts in his complaint. Hence this Hon’ble Forum should dismiss this complaint with exemplarily costs.

3)      Version filed by the 2^nd and 3^rd opposite parties is as follows:

The complainant has not done all the free services and also paid the services and as such the vehicle has no warranty at present. Even then the opposite parties are willing and ready to check the vehicle and cure the defects. On 23.03.2013 the complainant had purchased the disputed motor cycle from the 2^nd opposite party for an amount of Rs. 51,379/-.  The said vehicle has no complaint or defects at the time of selling it. The statement that the complainant had used the vehicle as per the instructions in the owner’s manual is not admitted by these opposite parties. The 1^st free service of the above vehicle was done on 19.04.2013.  Thereafter the complainant has brought the vehicle on 26.06.2013 alleging oil leakages from the head of the engine. The 3^rd opposite party has checked the vehicle and found the gasket of the head cover was burnt due to the over-heating of the engine and not using the gear properly. Hence the gasket of the head cover was replaced and again on 18.07.2013 the complainant has brought the vehicle for oil changing. This was done and an amount of Rs. 291/- was received from the complainant towards the cost of the vehicle. Thereafter, on 20.07.2013 the complainant brought the vehicle for the 2^nd service. On that day also he has complained leakage of oil from engine. Hence the vehicle was checked and cylinder head packing kit was replaced. The contention of the complainant that the vehicle again brought the vehicle for 22.07.2013 and the 3^rd opposite party’s service centre informed the complainant that there is some manufacturing defect in the vehicle and hence expert engineer from 2^nd opposite party dealer was sent to the complainant’s house and on that day the 3^rd party refused to accept the vehicle, are incorrect and denied. The 2^nd and 3^rd opposite parties submitted in their version that after 20.07.2013 the complainant had not brought the vehicle for any repair or for the remaining free service or for the paid service.  The vehicle was in good condition at the time of selling the same to the complainant.  The defects pointed out by the complainant were also rectified by the opposite parties.  Thus it can be seen that there is no deficiency in service on the part of the opposite parties.  The opposite parties have also not done anything against the warranty conditions of the vehicle.  The opposite parties have not sold the vehicle with manufacturing defect to the complainant.  They have also not done any act amounting to unlawful trade practice.  They have also not cheated the complainant or done any act amounting to cheating.  The opposite parties have also not misguided the complainant in selling the vehicle to him.  After 20.07.2013 the complainant had also not brought the vehicle for service or repair. The complainant is still using the vehicle and the statement otherwise is only to mislead this Hon’ble Forum. There is no negligence on the part of the opposite parties and hence Section 14 (d) of the Consumer Protection Act is not applicable in this case. Hence the opposite parties are not liable to be proceeded under the Consumer Protection Act. The complainant is not entitled to replace the vehicle or to get the value of the vehicle. He is also not entitled to get compensation and costs of the proceedings from the opposite parties. The complainant is not entitled to get any of the reliefs claimed in this complaint for the reasons stated above.  The 2^nd and 3^rd opposite parties prayed that this Forum may kindly dismiss the above complaint with costs to the opposite parties.

4)      Evidence in this case consists of the proof affidavit has been filed by complainant and the complainant was examined as PW1. The documentary evidences were marked as Exbt. A1 to A11 on his side. Expert Commissioner examined as PW2 and the Commission Report is marked as Exbt.C1. The witness of the 2^nd and 3^rd opposite parties have filed their proof affidavit and examined as DW1. No documentary evidence adduced by the opposite parties.

5)      Issues came up for considerations are as follows:

1. Whether the complainant is entitled to get replacement of the disputed vehicle with new one or to get refund of its price from the opposite parties?
2. Whether the opposite parties are liable to refund an amount of Rs. 5,090/- to the complainant which amount was paid by the complainant towards tax and insurance for the disputed vehicle?
3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

6)      Issue No. (i) and (ii)

According to the complainant, he had purchased DREAM YUGA CB11OMB motor cycle from the 2^nd opposite party on 20.03.2013 at a price of Rs. 51,379/- which was manufactured by the 1^st opposite party. Exbt. A1 retail invoice evidence that the above said contention of the complainant are true and correct. Exbt. A2 is the original of retail invoice No. 12117854 dated 21.03.2013 issued by the 1^st opposite party dealer. The complainant stated in his complaint that he noted some complaints of the vehicle from 25.06.2013 onwards. The oil was leaking from the head of the engine and beating sound was coming out of the engine. The complainant had entrusted the vehicle to the 3^rd opposite party who is the authorized service centre of the 1^st opposite party manufacturer on 26.06.2013. After repairing the vehicle it was returned to the complainant on 29.06.2013. The 3^rd opposite party informed the complainant that the gasket head cover was replaced and the defect was cured. But the same complaint repeated again on 16.07.2013 and the vehicle was given to the 3^rd opposite party on the very same date. The vehicle was returned to the complainant on 18.07.2013 and the service person of the 3^rd opposite party assured that all the defects were cured and such defects will not be repeated in future. Unfortunately the same complaint was repeated on 27.07.2013 and the vehicle was produced before the 3^rd opposite party.  The 3^rd opposite party informed the complainant that there is some manufacturing defect on the vehicle and expert engineer from the 2^nd opposite party examined the disputed vehicle.  The 3^rd opposite party refused to accept the vehicle for repair. Exbt. A3 owner’s manual of the disputed vehicle shows that the complainant had done 1^st free service on 19.04.2013 and the 2^nd service was done on 17.07.2013.  Exbt. A4 invoice dated 19.04.2013 shows that the complainant had paid an amount of Rs.291/- to the 3^rd opposite party towards the value of 1 litre oil for the disputed vehicle. Exbt A5 invoice dated 29.06.2013 shows that the complainant had paid an amount of Rs.23/- to the 3^rd opposite party towards the cost of gasket head cover for the disputed vehicle.   Exbt. A6 invoice dated 18.07.2013 shows that the complainant had changed the oil of the disputed vehicle after paying an amount of Rs.291/- to the 3^rd opposite party. Exbt. A7 goes to show that disputed vehicle as registered before the Regional Transport Office, North Paravoor with Rg. No. KL-42G 7708. Exbt. A8 lawyer notice issued by Adv. Deepu K.V, under the instructions of the complainant, to the opposite parties on 21.08.2013. In the Exbt. A8 lawyer notice shows that the complainant alleged the very same complaint in this complaint. Exbt. A9 is the postal receipt of the Exbt. A8 lawyer notice.  Exbt. A10 is the postal acknowledgment card clearly showing that Exbt A8 lawyer notice was received by the 2^nd and 3^rd opposite parties. Exbt. A11 is the reply notice sent by the 2^nd and 3^rd opposite parties to the complainant on 24.04.2013. As per the Exbt.A11 reply notice, the 1^st and 2^nd opposite parties denied all the allegations raised by the complainant in this complaint.  

7)      In this case, the expert commissioner filed his report and he was examined as PW2. The important findings of the expert commissioner are as follows:

1. Head Gasket of the engine is having leak.
2. Humming Noise from the engine (great noise)
3. Oil Lever Becoming Low due to the leak in the gasket. He had opened the engine case for the purpose of examination, and it is seen that the engine is having heavy oil leak and there is chance of engine become freeze due to the leakage of engine oil.

2. Prepared a report about working condition of the vehicle, reported the difficulties caused due to the oil leaking from head of the engine and beating sound coming out of the engine.

1. The vehicle is not in a working condition, as there is heavy oil leak from the head gasket of the engine.  Due to the same the engine will freeze if the same is used even for a short distance.  Moreover, all the parts inside the engine will become more complaint due to the lack of lubrication as the oil is leaking.  Even though he has tried to start the vehicle, it not started due to the leak of oil.

3)      Prepare a report about all the problems seen with the vehicle

          a)      Oil leaking

b)      Great noise from engine.

c)      Oil lever is low due to the oil leaking (checked after refilling)

Reason

1. Breather Hose block
2. Valve Cover Block
3. Breather line complaint.

4) Examine and report whether the complaints are caused because of manufacturing defect.

a) Yes. It is seen that the vehicle is having manufacturing defect.  The leakage of oil from the engine may be due to the poor quality of materials used for manufacturing the vehicle.

b) Due to the heavy oil leak, the engine parts which need lubrication will not get the oil and the same caused damage to the said parts.

c) Engine will freeze due to the shortage of oil due to leak.

Remedy/Solution

Replace the entire engine block.

8)      The expert commissioner mounts to the box and deposed that the vehicle has suffering from some manufacturing defects.  Due to the above manufacturing defects, caused to oil leakage and beating sound was coming out of from engine.

9)      We have no valid reason to disbelieve the above said finding out the expert commissioner. In the above facts and circumstances, we are of the opinion that the vehicle is having some inherent manufacturing defects and the opposite parties are liable to rectify the defects within a short span of time and make the vehicle in a road worthy condition.  We direct that the 1^st, 2^nd and 3^rd opposite parties to service the vehicle and make it road worthy condition including rectification of the defect of the oil leakage and beating sounds. The prayer of the complainant that refund the tax and insurance amount found that not necessary and hence denied.

10)     Issue No. (ii)

          The complainant had suffered a lot of inconvenience, financial loss, mental agony, hardship etc due to the deficient service offered by the opposite party and inherent manufacturing defect to the vehicle. The opposite parties did not do anything either to rectify the defect of the disputed vehicle or to replace it. The 3^rd opposite party miserably failed to find out the reasons for the oil leakage and unusual sound emanated from the engine. The above acts of the opposite parties amounted to deficiency in service on their part which calls for compensation and costs of the proceedings.

 We award an amount of Rs.10,000/- towards compensation and Rs.5000/- towards the costs of the proceedings to the complainant.

11)     In the result, we partly allow the complaint and direct as follows:

1. The 1^st, 2^nd and 3^rd opposite parties are directed to service the vehicle and make it road worthy condition by rectifying the defect of the oil leakage and beating sound which shall be done within 30 days from the date of receipt of a copy of this order.
2. The 1^st, 2^nd and 3^rd opposite parties shall pay the complainant an amount of Rs. 10,000/- towards compensation for the mental agony suffered by the complainant. 
3. The 1^st, 2^nd and 3^rd opposite parties shall also pay an amount of Rs. 5000/- to the complainant towards the costs of the proceedings.

The above order shall be complied with, within 30 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this 26^th day of October 2017.

                                                                   Sd/-Sheen Jose, Member

Sd/-Cherian K. Kuriakose, President

Sd/-Beena Kumari V.K., Member

Forwarded by Order

Senior Superintendent

Date of Despatch

By Hand :

By Post:

                                    APPENDIX

Complainant’s Exhibits:

Opposite party’s Exhibits:    Nil

Depositions        :

          PW1 :         Balachandran

          DW1 :         Sinoj Mathew T.M.

          C1     :         Expert Commissioner – Aadil Faizal Abdul Samad

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