SMT. RAVI SUSHA  : PRESIDENT

       Complainant filed  this complaint  U/S 35 of the  Consumer Protection Act 2019 seeking to get  an order directing opposite parties  to pay Rs.30,000/- to the complainant towards compensation and restore the vehicle or to replace with a new vehicle.

   Briefly stated  the facts to this case are that the complainant’s two wheeler KL 75A8220 Yamaha R15V3 was in  an accident and it given to 2^nd OP service center and after  the  service  while using the vehicle  he felt smoke coming from the vehicle and also felt a problem  and a tapped sound from the engine, due to these  reasons  complainant returned the vehicle to  2^nd OP, they repaired the vehicle but the problem is  not resolved yet. And they also advised  him to be a spare  on his own expense. Due to the after service problem  complainant cannot use the vehicle for office use.  The action of OPs amounts to deficiency in service .  Hence this complaint.

  OPs 1&2 appeared on notice and admitted sale of the bike.  Though both OPs filed separate collessions, contentions in both version  are more or less same.  Both of them contended that there was no deficiency in service on their part.  It is submitted that the complainant had  approached  2^nd OP on 17/2/2022 for first time  for accidental  repairs of the  motor cycle.  It is pertinent to mention that the complainant did not get the  vehicle serviced from the authorized service center of the  OPs before the said visit.  The 2^nd OP duly recorded the issues and damage caused  to the vehicle due to the accident in the job card .  The service engineers of 2^nd OP  duly repaired the  vehicle and  the complainant being totally satisfied with the  service of 2^nd OP. The complainant  then approached the 2^nd OP on 24/5/2022 for general periodic service of the  vehicle and after the service the complainant took the vehicle.  The complainant  had ever approached the OPs raising the issue of abnormal engine noise issue in the vehicle, the same would  have been duly mentioned in the job card. The complainant had  informed the OPs that he  had  repaired vehicle  from  unauthorized workshop and he had  replaced the engine oil  of the vehicle  with a non genuine one.  Further submitted that  the motor cycle is running in perfect condition without any issue. It is submitted that the complaints of the complainant  were duly and promptly attended every time by the OPs and the  vehicle does not suffer  any inherent  or manufacturing defect.  According to OPs, the complaint is liable to be dismissed.

    While pendency of this complaint, complainant has taken steps to appoint an Expert commissioner to inspect the vehicle and to file report about the  present condition  mechanical and physical  condition etc of it.  Which was allowed and Mr.Pramod P Insurance surveyor was appointed as expert commissioner.  He inspected the vehicle in the presence of complainant and representatives of both OPs and  submitted a report with photos.  Then  the complainant filed petition to set aside the said expert report, which was not opposed by OPs.  Hence4 the said petition was allowed and set aside the expert report  filed by the insurance surveyor.  After that the complainant has filed another petition and panel of expert to appoint a new expert commissioner.  As per that Mr.Adwaith.K.G, Automobile Engineer was appointed.  Expert has inspected the vehicle in dispute and after  conducting examination filed a  detailed report with photos.

   At the time of evidence, complainant filed his chief affidavit and documents.  Examined as PW1 and the documents were  marked as Exts.A1 to A6 and the Expert report was marked as Ext.C1.  PW1 was cross examined by OPs 1&2.  On the side of OPs, Service manager of 2^nd OP filed chief affidavit and documents.  He was  examined as DW1 and marked Exts.B1 to B4.  DW1 was cross examined by complainant.

  The 1^st plea raised by the OPs  is that the  complainant is not a  consumer of OPs under Sec.2(7) of  consumer Protection Act 2019  because he is  a second hand owner of the bike.  Further as he is not the first owner  he is not eligible to get the benefit of warranty condition.

   Here complainant also  admitted that he has purchased the vehicle from some other person.  Sec.2(7) of Consumer Protection Act defines a consumer as someone who buys goods or services for personal use or for resale or  for commercial use. Under the definition  if a person obtains goods for resale or for any commercial purpose, he would not be included within the meaning of consumer.  It is settled law that a consumer  only or a  person on his behalf can file a complaint when the complainant is not a consumer his complaint would not be maintainable.  Here the complainant purchased the vehicle not for resale or for commercial purpose he purchased the bike from a third person for his personal use within the warranty period.  So the complainant is entitled to get relief from the redressal commission.  In the  job cards the OPs had not denied the warranty benefit of the complainant.

    Complainant’s case is that on getting the vehicle after service by 2^nd OP, complainant felt smoke coming from the vehicle and also felt a problem and a  tappet sound from the engine.  So the complainant returned it to the service centre informing them of  the above problem, but the problem was not resolved.

    In order to prove the allegation complainant has taken steps to appoint an expert commissioner.  The Expert commissioner who has been appointed by this commission has submitted report.  On inspection of the vehicle, the expert has observed that “ in conclusion the bike exhibits abnormal engine performance, low power output, reduced mileage, early activation of the radiator fan, excessive engine heat, and higher RPM levels even at idle.”

On inspection of the engine side of the vehicle, the Expert commissioner has observed that condition of engine as “Not satisfied” other system, break, steering, suspension Tyres are in good condition.  Condition of  body is also observed as good.

   Hence from the expert report complainant has proved  his case.

   Hence from the available evidence, we are of the opinion that there is defect  in the vehicle and 2^nd OP had not repaired it with  the help of 1^st OP.  So there is deficiency in service on the part of OPs 1&2.

   Having considered the entire facts and circumstance, discussed above, we are of the view that the engine of the vehicle  need to be replaced free of cost or price of the vehicle returned to the complainant.  Further directed Rs.15,000/- towards compensation and Rs.10,000/- towards cost of the proceedings of the complaint.  OPs 1&2 are jointly and severally liable to comply the  order within one month  after receipt of the certified copy of this order. Failing which the awarded amount except cost portion carries interest @9% per annum from the date of order and the complainant  can execute the order as per the provisions in Consumer Protection Act 2019.

Exts:

A1- E-mail complaint to 1^st OP

A2-Job card invoice

A3-Bike free service warranty

A4-policy details

A5-RC

A6-Owner manual

C1-Expert report

B1-Authorisation

B2&B3 -Job card dt.17/2/22,24/5/22

B4-Registration certificate

PW1-Pramodkumar.C-complainant

PW2-Adwaith.K.G-witness of PW1

DW1-Subin Surendran- witness of OP.

  Sd/                                                 Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva                                                                          

                                                               /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR