IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:   President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:              Member

Dated this, the  25^th day of February  2010

CC.107/2004

T.Asokan,

Aalakandi House,

Vengad, P.O.Vengad.                                      Complainant

1. Manager,

  Pazhassi Motors,

  Fort Road,

  Thalassery.

  (Rep. by Adv.Babu Mandein)

2. Manager,

   Grace Motors,

   Thana, Kannur.

   (Rep. by Adv.Babu Mandein)                        Opposite parties

3. General Manger,

  TVS Motor Company,

  Haritha,Hozur,

  Dharmapuri District.

  Tamilnadu

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under section 12 of consumer protection act for an order directing the  opposite parties to deliver a new brand vehicle instead of the old one and to pay Rs.15,000/- as compensation for the loss sustained by the complainant.

            The case of the complainant in nutshell is as follows: Complainant purchased Victor GL Bike from 1st opposite party for Rs.39, 818/-, 3^rd opposite party is the manufacturer. Complainant purchased the vehicle by the impressed by the  advertisement and faith and belief in the quality of the product. Within two months of the purchase the vehicle started showing oil leak. Complainant though approached 1^st opposite party this defect could not be solved satisfactorily. Complainant took the vehicle to 1^st opposite party for the same complaint of oil leak but they could not repair the vehicle rectifying the defect and the same was taken to 2^nd opposite party on the advice of 1^st opposite party since they failed in their attempts. Meanwhile the kicker also started to show often getting loose. It created much trouble in busy time and while on roads. This also brought to the notice of 1^st opposite party but there was no sue. Though 1^st opposite party and 2^nd opposite party offered 85 km mileage per liter at the time of purchase of the vehicle he got only less than 60 km. He approached opposite parties 1 and 2 ten times with the defects of the vehicle but they could not solve the problems. Thereafter it was brought to the notice of the service Engineer of 3^rd opposite party and on examination of vehicle two times he convinced the defect of oil leak and Kicker loose.  Complainant was called by the opposite parties two times and examined the vehicle but they failed to cure the defects. The complainant now understands that the vehicle has manufacturing defect. Complainant is a contractor and suffered much difficulty. Hence this complaint.

            Pursuant to the notice from the Forum opposite parties made appearance and 1^st and 2^nd opposite parties jointly and 3^rd opposite party separately filed version. The brief contentions of opposite parties 1 and 2 are as follows: The complainant has purchased a TVS victor Motor cycle. The complainant has not made any complaint of oil leak and kicker loosing during the initial service. While reporting for the first service on 15.10.02 as per job card No.573 there was no complaint of oil leakage or shortage of mileage. On the next visit on 30.10.02 there was no complaint of oil leak as per job card No.904. On such visit the engine was turned up and on testing, the vehicle got a mileage of 74 kpl. Thereafter, the complainant approached for service on 10.2.03 as per job card No.1187. Then also there was no complaint of oil leakage. He had made the complaint of kicker loosing and mileage short on 15.2.03. The kicker loosing was not due to any fault of the vehicle. In fact, the complainant was in the habit of giving more acceleration while kicking the kicker and was releasing clutch slightly. The said fact was well informed to the complainant and on that day a short training was given to the complainant on proper application of starting kicker. A road test also was done in the presence of the complainant and made convinced that the mileage was 72 kpl is under the standard test conditions. Everywhere the mileage feature has been stated and the complainant was well intimated of the said facts. As regard average  fuel consumption figures there has to be a standard basis for purpose of comparison as otherwise it is quite likely that the same vehicle  will give different averages  in different locations, at different times and in different circumstances and to different types of riders. Under the normal city driving conditions the fuel average is bound to differ because of numerous factors like petrol oil mix, load on the vehicle maintenance of the vehicle, the number of stops and starts the road condition and driving habits of the rider etc. It is a baseless allegation that the vehicle suffered manufacturing defect. There was serious complaint on the vehicle as alleged. Moreover, no complaint on the vehicle left unheeded without giving service and without being rectified and no such complaint has ever been made by the complainant at any time. No negligence can be attributed against these opposite parties as these opposite parties always rendered their best available service to the complainant. Hence to dismiss the complaint.

            3^rd opposite party filed version separately denying main allegations of complainant. The contentions of 3^rd opposite party are as follows: This opposite party came to know the above raised problem only on receipt of lawyer notice. He immediately called for the relevent records from opposite parties 1 and 2 and from the records observed that complainant has been getting his vehicle serviced by 1^st opposite party till 15.2.03. It is also learned that  complainant did not raise any issue relating to oil leakage till the second free service carried out on 21.12.02 i.e. three months from the date of purchase of the vehicle. On 21.12.02 no complaint of leakage of oil was found. Since complainant had complaint of less mileage, 1^st opposite party carried out a test ride and found that the vehicle is providing 74 kms per litre. The job card pertaining to services carried out on 31.10.02 and 21.12.02 are signed by the complainant on satisfaction over the services. The vehicle again brought on 10.2.03 after running about 7828 kms. Complainant complained about oil leakage. On inspection no such oil leakage could be found. The complainant took back the vehicle after signing the job card No.1187 prepared in this regard. The 2nd opposite party attend the vehicle on 15.2.03, 27.2.03 and 31.3.03. On 31.3.03 the routine mandatory free service was carried out. Complainant complained of the problem of kick starter for the first time during the service carried out on 15.2.03. But on inspection there was no such problem. During the third free service on 31.3.03 a mileage test also conducted on complaint and found that the vehicle is providing an excellent mileage of 73 kms. Complaint of leakage of oil also attended during the said service. After the 3^rd service carried out on 31.3.03 and till the lawyer notice issued on February 2004 the complainant never approached the opposite parties with any complaint including problems such as oil leakage poor mileage or kick starter problem. On 12.5.03 complainant approached 1^st opposite party with complaint relating to indicator of the vehicle. During this visit also the complainant did not raise any such issues relating to mileage or leakage of oil. 3^rd opposite party came to know the alleged problems only on receipt of lawyer notice. Immediately the relevant records were called for and also asked complainant (letter dt.13.2.04) to bring the vehicle to service centre of 2^nd opposite party to enable the 3^rd opposite party to inspect his vehicle. The vehicle brought to the servie centre on 18.2.04. Area Service Engineer inspected the vehicle vide job card No.99257. It was observed by him that the complainant’s vehicle has covered a distance of 20744 kms. It was also observed that the complainant did not avail the 4^th paid service required to be carried out at 15000 kms or 12 months from the date of purchase or the 5^th paid service required to be carried out at 20000 kms or 18 months from the date of purchase. Service engineer also found that there was no problem of oil leakage and kicker starter was not loos as alleged by the complainant. Since there was complaint of poor mileage problem it was demonstrated to the complainant that his vehicle was providing an excellent mileage of 75 kms per litre.Complainant took back the vehicle after signing the job card. Complainant’s vehicle is of merchantable quality free from manufacturing defect. 3^rd opposite party has provided a warranty for the TVs victor Motor cycle manufactured by it during 24 months from the date of purchase or during the first 30000 kms of run which ever is earlier. This warranty is applicable only to repairing free of charge those parts of the vehicle or replacing free of charge those parts of the vehicle. This opposite party has never represented that the TVS victor Motorcycle would provide a mileage of 85 kms per liter. The mileage of 85 kms per litre if at all claimed by   the compliant is under standard test condition. At no point of time 2^nd opposite party of 1^st opposite party represented to the complainant that the vehicle is providing 85 kms in normal riding conditions. But all the time when this issue raised opposite parties 1 and 2 carried out necessary mileage test and it was demonstrated to the satisfaction of the complainant that the vehicle is providing a mileage of 73 kms. On the test carried out February 2004 the mileage of vehicle demonstrated that the vehicle was providing a mileage of 75 kms. Per liter. This was despite the fact that the complainant has not availed the third and the fourth mandatory services. The complainant’s vehicle is of a perfect mechanical condition free from any manufacturing defect. Even after lawyer notice the vehicle was thoroughly inspected and foundn there was no such problem of leakage of oil,  poor mileage and kick starter loosening. The complainant’s vehicle is free from  manufacturing defect.  Complainant is not entitled for any relief claimed. Hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite parties?

2. Whether the complainant is entitled for the relief as prayed in the complaint?

3. Relief and cost.

            The evidence consists of oral evidence of PW1 and Exts.A1 to A12 on the side of the complainant and oral evidence of DW1 on the side of opposite parties. Ext.C1 also marked.

Issues1 to 3

            Admittedly the complainant had purchased a TVS Victor motor cycle on 23.9.02 from 1^st opposite party for Rs.39, 818/-. The main case of the complainant is that the vehicle suffered complaint of oil leakage, kick-starter loose and poor mileage and it could not be rectified even if repairs and services carried out by opposite parties.

            Complainant alleged that his vehicle suffered  complaint within two months of the purchase. Vehicle purchased on 23.9.2002. Ext.A9 registered letter dt.27.10.03 sent by complainant says that the vehicle developed oil leak within two months of purchase and approached 1^st opposite party but repair was not satisfactory. Opposite parties contended that the complainant did not raise any issue relating to oil leakage till the second free service carried out on 21.12.2002, three months from the date of purchase of the vehicle. The evidence adduced by the complainant by way of proof affidavit in lieu of chief examination stated clearly that he has entrusted the vehicle on 21.12.2003. Complainant did not   say the date of second free service but stated that he has entrusted the vehicle on 21.12.2003. Opposite party contended that the Job card pertaining to service carried out on 31.10.02 and 21.12.02 are signed by the complainant on his satisfaction. If so, the vehicle has been taken back on 21.12.02 by the complainant satisfying the service. But the job card has not been produced.

            Complainant has the case that he has approached 4 times 1^st opposite party with the same  complaint of oil leakage but 1^st opposite party failed to rectify the complaint and expressed  his  helplessness asking to approach 2^nd opposite party. He also pleaded that in the mean while some other complaints have also developed.  He pleaded thus:

“]cmXn-¡m-c³ H¶m-T-F-Xr-I-£nsb kao-]n-s¨-¦n-ep-T- Xr-]vXn-I-c-amb coXn-bn ss_¡nsâ HmbnÂeo-¡vam-äm³I-gn-ªn-«n-Ã. CtX Bh-i-y-hp-ambn ]cm-Xn-¡m-c³ 4 {]mh-i-yT H¶mT FXnÀI-£nsb kao-]n-¡p-I-bpT ta ss_¡nsâ Hmbn eo¡v ]qÀ®-am-bpT ]cn-l-cn-¡m³ km[n-¡m-sX-h-cn-I-bpT H¶m-T-F-XnÀI£n \nÊ-lm-bX {]I-Sn-¸o-¡p-I-bpT sNbvX-Xn-sâ- A-Sn-Øm-\-¯n H¶m-T-F-XnÀI-£n-bpsS D]-tZ-i-{]-Im-cT c­mT FXnÀI-£nsb kao-]n-¡p-hm³ Bh-i-y-s¸-Sp-I-bpT sNbvXp. F¶m CXn-\n-S-bn ss_¡nsâ In¡À eqkm-hp¶ _p²n-ap-«p-T-]-cm-Xn-¡m-c\v A\p-`-h-s¸-Sp-hm³ XpS-§n.

            Though the dates of complaints are not given the case of the complainant is that the problem of kicker-starter developed during these periods mentioned above. Thereafter complainant brought these problems before the service Engineer of 3^rd opposite party. Complainant further alleges that notice was issued by opposite party to him and thus the vehicle was inspected twice but in vain.

            Opposite parties specifically pleaded that it is during the service carried out on 15.2.03 the complainant for the first time complained about the problem with kicker-starter. That is not denied by the complainant. 3^rd opposite party also stated that on inspection 2^nd opposite party could not observe any such problem in the complainant’s vehicle. Opposite party has also contended that during the 3^rd service on 31.3.03 complainant complained of low mileage and  the 2^nd opposite party carried out a mileage test and was found that the vehicle provided mileage of 73 kms.

            Complainant has produced Ext.A3 the acknowledgement No.904, A4 acknowledgement No.1046, A5 Acknowledgement No.1152 and A6 with acknowledgement No.1187. And these slips Ext.A3 to A6doesnot shows any particulars with respected to job that had been carried out. It is not possible to infer anything from these slips except the delivery time. Even the dates written are not clear. It is the duty of the opposite party to enter the entries clearly. It is not fair on the part of opposite party to make the entry not clear in negligent manner. Anyhow it can be assumed that the complainant entrusted the vehicle with the opposite party four times on the following dates 21.12.2002(A3), 15.1.2003(A4), 4.2.2003(A5) and 10.2.2003(A6).Ext.A7 cash bill dated 21.12.03 and Ext.A8 cash bill dt.19.5.04 shows that complainant has purchased Engine oil. Opposite parties have no case that they have not issued Ext.A3 to A6 slips.

            Opposite parties 1 and 2 contended that it was only on 15.2.03 that they came to know the complaint about the oil leakage. Opposite party pleaded that on inspection it was found no complaint and the complainant took back the vehicle after signing in the job card 1187. Opposite party has not produced any evidence to this effect. Opposite party has not stated any where that they have rectified the defect of oil leakage. Opposite parties 1 and 2 has not given any explanation of what they have done to rectify the defect of oil leakage. What they have stated is that no such defect found on their inspection. 3^rd opposite party stated in their version that they came to know about the alleged problems only on receiving the lawyer notice in the month of February 2004. It is also stated that they have learnt from the 1^st opposite party that complainant did not raise any issue relating to oil leakage till the second free services carried out on 21.12.02. That means issue of oil leakage raised on 21.12.02. Opposite party contended that the vehicle was inspected and found there was no such leakage of oil as contended by the complainant. But no record of inspection produced before the Forum. Opposite party has the case that complainant signed the job card to his satisfaction and taken back the vehicle. Job card but not produced. It is admitted by 3rd opposite party that the vehicle was again brought to 1st opposite party on 10.2.03 complaining about oil leakage. The version of 3^rd opposite party stated that “thereafter the vehicle was again brought to the 1^st opposite party on 10.2.03 after a gap of two months and after running about 7828 kms.with complaint about oil leakage. The first opposite party inspected the complainant’s vehicle and found that there is no such oil leakage’. These above facts were observed from the records send by opposite parties 1 and 2. But opposite parties 1 and 2 in their version stated thus “thereafter, the complainant approached for service on 10.2.2003 as per job card No.1187. Then also, there was no complaint of oil leak.” These contradictory  statementsprove that opposite parties is uttering falsehood before the Forum with respect the complaint of oil leakage.

            3^rd opposite party has strong case that the service Engineer of 3^rd opposite party Mr.Dileep Kumar inspected the vehicle of complainant and found certain observati9on. But neither Mr.Dileep Kumar, Engineer has been examined nor produced any records including job card before the Forum.

            PW1, Complainant deposed in cross examination that “ complaint  D­m-bm           job card  Â ]cmXn Fgp-Xn-sIm-Sp-¡m-dp-­p. Job card    leakage sâ Imc-yT ]d-ªn-«p-­v.                  when learned counsel for the complainant put the direct question to the mouth of DW1 what is to say for non producing the job card, the answer is ‘nothing’. DW1 added thus: “job card sImSp-¯n-«p-­v.-lm-P-cm-¡ntbm F¶p F\n-¡-dn-bn-Ã.. What it reveals is nothing but opposite party has not taken that much interest to discharge his burden so as to bring out the truth before the Forum with respect to the job done by opposite parties. The entire record in respect of the services that has been carried out in the case of complainant’s vehicle is exclusively with in the custody of opposite party. Opposite parties have the burden to prove what is pleaded by them?

            An expert commission was taken out and Mr.A.Murali, Mechanic NICC Motors appointed as expert commissioner submitted the report. The expert report Ext.C1 found that the vehicle suffered defects during the warranty period. The expert report shows that the vehicle suffered with four defects Viz.

1. There is no Engine spark plug Adaptor.

2. There is leakage of oil

3. The speedometer is defective.

4. Spinian gear of the speedometer is defective.

            The expert commissioner also opinioned that the above mentioned defects can be rectified  by replacing the defective parts.

            Considering the available evidence on record and documents produced together with the report Ext.C1 of the expert Commissioner we hold that the vehicle of the complainant suffered defects which is possible to rectify by replacing the defective parts. The opposite party is liable to rectify the defects or else to return, the purchase price taking back the vehicle. The complainant is also entitled for compensation for an amount of Rs.5000/- and an amount of Rs.1500/- as cost of the proceedings. Hence the complaint is partly allowed answering issues 1 to 3 infavour of complainant and order passed accordingly.

            In the result, the complaint allowed partly directing the opposite parties to rectify the defects by replacing the defective parts or else to pay the purchase price. It is further directed to pay a sum of Rs.5000/- (Rupees Five thousand only) as compensation together with Rs.1500/- (Rupees One thousand Five hundred only) as cost of this proceedings to the complainant. Opposite parties are also directed to comply the order  within one month from the date of receipt of this order, failing which the complainant is allowed to execute the order against the opposite parties under the provisions of consumer protection Act

                               Sd/-                          Sd/-                              Sd/-

President                      Member                      Member.

                        APPENDIX

Exhibits for the complainant

A1.&A2.Receipts dt.6.9.02 and 23.9.02 issued by OP

A3 to A6.Acknowledgments issued by OP

A7 & A8. Cash bills issued by Classic motors

A9.Copy of the letter dt.27.10/03 sent to OP:

A10.Copy of the lawyer notice sent to OP

A11.Replynotice

A12.Owners’s manual (not seen)

Exhibits for the opposite party: Nil

Exhibits for the court

C1.Commission report

Witness examined for the complainant

PW1.Complainant

Witness examined for opposite party

DW1.P.Prabhakaran

                                                            /forwarded by order/

                                                            Senior Superintendent

Consumer Disputes Redressal Forum, Kannur.