By Smt. C.S. Sulekha Beevi, President,

1. Brief facts:-

Complainant purchased a 2-stroke autorickshaw from first opposite party for Rs.77,500/- on 28-6-2004. complainant being a driver, the vehicle was purchased for earning his livelihood by self employment under P.M.R.Y. Scheme. Within a few days the vehicle became defective. Though first opposite party repaired the vehicle several times the defects persisted. From the date of purchase the vehicle showed defects like, side pulling, shake of bearing, wearing off tyre on one side, swinging of shock absorber, breaking of clutch cable, tightness of reverse gear, oil leak, defective paint, and also that instead of MRF tires MTL tires were fitted. The vehicle exhibited defects frequently and interrupted and stopped while carrying passengers in the vehicle. Hence this complaint praying for refund of purchase price together with compensation and costs.

2. First opposite party filed version on behalf of both opposite parties. Without specifically denying the purchase of the vehicle it is submitted by opposite party that the basic cause of defects are due to the driving habits of the complainant. That the condition of the road where complainant belongs is poor. It is further stated that all complaints during warranty period were repaired free of cost. That there is no rule that opposite party company should provide MRF tires and no such demand can be made by customer. The allegation of inherent manufacturing defect and deficiency in service is denied. That complainant is not entitled to any reliefs.

3. Evidence consists of the oral evidence of complainant who was examined as PW1 and Exts.A1 to A6 marked for him. Evidence on the side of opposite parties consists of the oral evidence of DW1, DW2 and DW3. Ext.B1 series also marked. O.P.339/2002 and O.P.174/2003 were taken together with this case being similar matters. DW2 was examined in this case and DW3 was examined in O.P.339/2002. Counsels appearing for both sides agreed and adopted the cross examination of these witnesses to all the three cases. Ext.C1 is the commission report.

4. Points for consideration:-

(i) Whether opposite parties have committed any unfair trade practice?

(ii) If so, reliefs and costs.

5. Point (i):-

Complainant is aggrieved that the autorickshaw purchased from first opposite party has inherent manufacturing defects. It is his case that the vehicle started showing defects within a few days of it's purchase. Though complainant has not produced any document regarding the date of purchase and payment of purchase price it is affirmed by him that the vehicle was purchased on 28-6-2004 for Rs.77,500/-. This is not specifically controverted or challenged by opposite party. The main defects alleged in the complaint are as under:

(i) Side pulling

(ii) Shock absorber swinging

(iii) Breaking of clutch cable

(iv) Tightness of reverse gear

(v) Oil leak

(vi) Defective painting

(vii) One sided wearing off of the tyre.

6. On application made by the complainant an expert commission was appointed to inspect and report about the vehicle Sri.C.P. Muhammed, who is the Professor and HOD of the department of Mechanical Engineering of M.E.S. Engineering College, Kuttippuram, Malappuram District was the commissioner in this case. He inspected the vehicle on 17-12-2008 and has submitted Ext.C1 report. It is reported by the commissioner that at the time of inspection the vehicle was not in a running condition and hence he could not conduct test drive of the vehicle. Relevant observations noted in Ext.C1 are reproduced as under:-

Complaints Observation/Findings

1. Side dragging of the vehicle This could not be confirmed through test as the vehicle was not in working condition.

2. Wheel bearing shake When jacked up and checked there was excessive play for both the rear wheels.

3. Non uniform wear and tear of tires There was no conspicuous non-uniform tear and wear for the rear wheels; the left half of the front tire had worn out more noticeably than the right half

4. Clutch cable breakage There was no clutch cable when inspected; the interval between breakages could not be ascertained as the vehicle was not running

5. Rear axle breaking The axles available on the vehicle were not broken while inspected; but the owner showed broken axles replaced from the vehicle and told that the RHS axle broken two times and at LHS once and replaced

Much objection was raised against Ext.C1 report on behalf of opposite parties contending that the vehicle was purchased in 2004 and the inspection was conducted after 5 years and due to the delay Ext.C1 is not reliable. At this juncture, it is necessary to state certain circumstances regarding the pendency of this litigation. This case was filed on 22-12-2004. During this period there was no sitting of this Forum due to the vacancy in the post of President and Member. Sitting commenced in June, 2007 and I.A.90/2008 was filed by complainant on 14-3-2008 seeking to appoint a commissioner. Though initially Motor Vehicle Inspector was appointed the warrant of commission could not be executed by him due to his transfer. It is only after that the present Commissioner was appointed. For the above reasons we consider that no element of fault can be attributed to the complainant for the delay in inspection of the vehicle.

7. Relying upon Ext.B1 series of documents it was submitted on behalf of opposite parties that whatever defect existed were fully removed and rectified by opposite parties. Ext.B1 are stated to be the computer print outs of the job cards and also the computer print out of the bills issued by opposite party to complainant for repair of the vehicle. The computer print out of the job cards were vehemently opposed by the counsel for complainant contending that opposite party is bound to produce the Original job cards if they intend to rely upon the contents. It is submitted by opposite party that the original job cards are not readable and torn out and hence not produced. On perusal of these documents (job cards) the customer complaint noted are as under:

Date Complaints to the vehicle

24-07-2004 Break to check - clutch to check - Oil leak from frame & Selector

Both wheel sound.

28-07-2004 Handle Lock to check – RHFLang oil leak to check – Handle brake to remove – Clutchless tight to check – Study plate to check

07-08-2004 Rings Sound – Pulling less – Brake less

25-08-2004 LH side sound to check – Front tyre weeving to check – Ring sound to check – General checkup abnormal – Sound to check

11-09-2004 Break sound to check – Abnormal sound to check – Selctor sound to check – Tyre wobling to check

28-09-2004 Both break to check – RSA sound engine abnormal – Sound to check – General check up

05-11-2004 Front sound to check – Side pulling to check – Clutch cable broken – General checkup – Water service – Oil change – Knocking sound to check

It is candid from Ext.B1 that the vehicle which was purchased on 28-6-2004 was frequently taken to the dealer with complaints from the next month of purchase itself. It is also seen that the complaints were the same even after each free service and that they were persisting. Defects to the clutch system brake, oil leak, ring sound and abnormal sound continuously existed upto the repair on 05-11-2004. Though opposite parties contend that all these defects were rectified it is not seen stated in Ext.B1 what were the actions/repairs done by opposite parties to rectify the defects. Ordinarily in job cards the customer complaint, the diagnosis of the complaint, actions taken to rectify the complaint are stated. The computer print out produced by opposite parties contain only the customer complaints. The space provided for writing the actions taken is left blank. For this reason we have to hold that these print outs are incomplete. The suppression of the original job cards can only lead to the inference that major repair works including engine work had to be done to the vehicle repeatedly and even then the defects could not be removed completely. The deposition of DW1 regarding defects and repairs done to the vehicle is noteworthy. In cross DW1 has deposed as under:

1. “പുതിയ വാഹനം വാങ്ങിയാല്‍ അതിന്‍െറ engine അഴിക്കാതെ എത്ര കാലം ഓടിക്കാമെന്ന് കൃത്യമായി പറയാന്‍ പറ്റില്ല. കേസിലെ വാഹനത്തിന്‍െറ engine 5 മാസം കൊണ്ട് അഴിക്കേണ്ടി വന്നു എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. എത്ര പ്രാവശ്യം ഈ വാഹനത്തിന്‍െറ engine അഴിച്ചു എന്ന് എനിക്ക് പറയാന്‍ സാധിക്കില്ല. വാഹനം repair ചെയ്യുന്നതിന് job card സൂക്ഷിക്കാറുണ്ട്. ആയത് ഹാജരാക്കാതിരിക്കാന്‍ കാരണമില്ല.

2. Engine-ന് defect ഉണ്ടെങ്കില്‍ വാഹനത്തിന്‍െറ clutch disc-ഉം clutch cable-ഉം ആണ് ആദ്യം കേടു വരുക എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. ഈ വാഹനത്തിന്‍െറ clutch disc-ഉം clutch cable-ഉം എത്ര പ്രാവശ്യം മാറ്റി എന്ന് എനിക്കറിയില്ല.

3. 05-11-2004-ന് വാഹനത്തിന്‍െറ engine അഴിച്ച് repair ചെയ്തിട്ടുണ്ട് എന്നു പറഞ്ഞാല്‍ records നോക്കാതെ പറയാന്‍ പറ്റില്ല. പരാതിക്കാരന് നല്‍കിയ service warranty period-ലാണ് എന്നു പറഞ്ഞാല്‍ സാധാരണ അപ്രകാരം ആണ് ചെയ്യാറുളളത്. “

The evidence of PW1 regarding the defect of oil leak is as follows:

“Oil ഒഴിച്ചാല്‍ മുഴുവനും പോരുമായിരുന്നു. അപ്പോള്‍ carberator ഉണ്ടായിരുന്ന complaint എതൃകക്ഷികള്‍ service book-ലെ guarantee card ഉപയോഗിച്ച് Perintalmanna KVR-ല്‍ നിന്നും മാറ്റിയിട്ടുണ്ട് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. Consumable item-ന്ന് വണ്ടിയുടെ ഉടമസ്ഥന്‍ തന്നെ പണം കൊടുക്കണമെന്നു പറഞ്ഞാല്‍ ശരിയാണ്. Ext.A1 to A6 എല്ലാം consumable item ആണ് എന്നു പറഞ്ഞാല്‍ ശരിയാണ്. Spare parts-ന്‍റെ പണം വാങ്ങിച്ചതായി കാണിക്കുന്ന രേഖകള്‍ ഇല്ല. Carberator എന്നിവ മാറ്റുംപോള്‍ പണം 350 /-ക കൊടുത്തു. പക്ഷെ bill തന്നില്ല.”

8. The above evidence together with Ext.B1 makes it crystal clear that engine work was done within five months of it's purchase. The repeated complaint to the clutch system together with the testimony of DW1 would prove and establish that the engine of the vehicle had major defects. Such repeated complaints to a new vehicle can only be inherent manufacturing defects in the engine. Either side has not produced any material to show the warranty period. It was submitted that the warranty offered was 4 months. It is not disputed by opposite parties that the vehicle showed repeated defects during the warranty period itself. It is their case that all these defects were fully rectified. It is for the opposite parties to prove and establish the diagnosis made for the defect noted in Ext.B1 and the actions taken for rectifying these defects. There is absolutely no evidence placed before us to show that the complaints stated in Ext.B1 were only minor defects and did not pertain to defects of the engine. The details of repair done and replacement of parts made have not been placed before us by opposite parties, though DW1 admits that engine work was done within 5 months. On such score we can only take adverse inference against opposite parties. When a person buys a new vehicle, he does not buy a headache, and in normal circumstances it should not give any trouble. Ext.B1 do not convince us that the vehicle was brought to the dealer during warranty period for 'servicing' purpose only. This complaint is filed just before the expiry of 6 months after purchase of the vehicle. The immediateness of such a complaint can only indicate that even after doing engine work and repeated repairs the defects persisted. In Ext.C1 the commissioner has not explicitly reported about manufacturing defects to the vehicle. The limitation of the Commissioner to report about such a conclusion can be understood because the vehicle was not in a working condition. But the observations in Ext.C1 amply corroborates the case put forward in the complaint. It is deposed by complainant that the vehicle is kept idle for the last three years. From the repeated defects it can be safely presumed that after warranty period when cost of repair had to be shouldered by the complainant the expenses to keep the vehicle in a running condition might have been too much for an ordinary driver who had purchased the vehicle for earning livelihood. In addition he had to repay the loan. It is established that the vehicle ended up in a non-working condition only due tot he presence of inherent manufacturing defects and also due to the inability of the manufacturer to remove those defects. From the foregoing discussions we are able to reach the inescapable conclusion that the vehicle has inherent manufacturing defects. In such circumstances non-replacement of the vehicle tantamounts to unfair trade practice. We find opposite parties guilty of unfair trade practice.

9. Point (ii):-

Complainant has claimed refund of purchase price together with compensation of Rs.10,000/- and costs. Giving regard to the conclusion of inherent manufacturing defects of the vehicle the claim for refund of purchase price is only to be allowed. Complainant has stated that due to the defects, while carrying passengers the vehicle used to stop suddenly and he had to request the passengers to alight from the vehicle for which he had to suffer a lot of bad mouthing from the passengers apart from the inconveniences and hardships caused by such situations. The time and energy consumed for taking the vehicle to the dealer for repair and the mental stress due to the persisting defects have to be compensated. Further the vehicle was purchased under PMRY Scheme by availing loan for the purpose of earning livelihood by self employment. Taking these facts and circumstances into consideration we are of the view that refund of the purchase price of Rs.77,500/- along with interest @ 9% per annum from date of complaint till payment together with costs of Rs.4,000/- would meet the ends of justice. For the manufacturing defect the manufacturer is definitely liable.

10. In the result, we allow the complaint and order that second opposite party shall pay to the complainant a sum of Rs.77,500/- (Rupees Seventy seven thousand five hundred only) along with interest @ 9% per annum from the date of complaint til payment together with cost of Rs.4,000/- (Rupees four thousand only) within one month from the date of receipt of copy of this order. On payment complainant shall return the defect alleged vehicle to second opposite party.

Dated this 20th day of August 2009.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER

APPENDIX

Witness examined on the side of the complainant : PW1

PW1 : Radhakrishnan.P.C., Complainant.

Documents marked on the side of the complainant : Ext.A1 to A6

Ext.A1 : Cash bill for Rs.110/- dated, 28-7-2004 from first opposite party to complainant.

Ext.A2 : Cash bill for Rs.59/- dated, 11-9-2004 from first opposite party to complainant.

Ext.A3 : Credit bill for Rs.48/- dated, 05-11-2004 from first opposite party to complainant

Ext.A4 : Cash bill for Rs.148/- dated, 28-9-2004 from first opposite party to complainant

Ext.A5 : Cash bill for Rs.110/- dated, 25-8-2004 from first opposite party to complainant.

Ext.A6 : Cash bill for Rs.120/- dated, 23-3-2006 from first opposite party to complainant.

Witness examined on the side of the opposite parties : DW1, DW2 and DW3

DW1 : Shaji.K., on behalf of 2^nd opposite party.

DW2 : Anilkumar Paul, witness on behalf of first opposite party.

DW3 : Sandeep Krishnan.R., witness on behalf of second opposite party.

Documents marked on the side of the opposite parties : Ext.B1series

Ext.B1series : Service History-party wise of vehicle No.KL9P2074

produced by first opposite party.

Court document marked : Ext.C1

Ext.C1 : Commission report.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER