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

1. Brief facts:-

Complainant purchased a 4-stroke rear engine autorickshaw from first opposite party on 19-12-2000. The price paid was Rs.70,215/-. Complainant being a driver had purchased the vehicle for earning his livelihood. The vehicle was purchased under PMRY Scheme by availing loan of Rs.59,500/- from state Bank of Travancore. After purchase complainant noticed defects to the vehicle. The over all working was not satisfactory and the mileage was not as offered by opposite parties. The vehicle had to be taken to the dealer for repair several times. The defects persisted. The warranty offered was for one yar and thereafter first opposite party called a meeting of all 4-stroke autorickshaw owners and intimated that the warranty is extended for another year. It is alleged that first opposite party did not render proper services and had collected large amounts for repair even during warranty period. Complainant states that the vehicle has inherent manufacturing defects. He had to repay the loan which added tot he sufferings. Hence this complaint praying for refund of the purchase price with 18% interest or replacement of the vehicle along with refund of the amounts collected for repair during warranty period and also for compensation and costs.

2. First opposite party filed version on behalf of both opposite parties. The purchase of 4-stroke autorickshaw from first opposite party is admitted. Opposite party submits that after manufacture and before leaving the factory every vehicle undergoes inspection and performance check-up. The dealer also inspects the vehicle which is called pre-delivery inspection tests. That there is no chance for the vehicle to have any manufacturing defects. The allegations of defects are denied. That the complaint is filed after warranty period and is not maintainable. The defects if any have arisen only due to the wrongful usage and improper maintenance of the vehicle. It is denied that the meeting was called to intimate extension of warranty. The meeting was called only to maintain good customer relationship. The initial warranty was for 120 days or 5500 kms whichever occurs first. The warranty was extended to another year. Within warranty period all services were done free of costs except those which do not come within the scope of warranty. It is submitted that the complainant is using the vehicle continuously after purchase. The defects may be due to improper use and also because repairs are not done from authorized service centres. That opposite parties are ready to repair the vehicle if any defect exists. That complainant is not entitled to any reliefs.

3. Evidence consists of the affidavit of complainant and Exts.A1 to A5 marked for him. Second opposite party has filed counter affidavit on behalf of both opposite parties. No documents marked for opposite parties. Ext.C1 is the Commission Report. Either side has not adduced any oral evidence.

4. Points for consideration:-

(i) Whether opposite parties have committed any unfair trade practice and deficiency in service.

(ii) If so, reliefs and costs.

5. Point (i):-

The allegation of defects and grievances of the complainant as put forward in the pleadings, affidavit and from the submissions made on his behalf are as under:

(i) The engine of the vehicle has inherent manufacturing defects. Major repairs were done by opening the engine during the warranty period itself. The engine rings were replaced two times during the warranty period.

(ii) Oil consumption of the vehicle is high. For 50km the engine consumed 500ml of oil. The engine got healed up quickly and used to stop even when slightly heated up.

(iii) The starting motor is defective. This was replaced once. The vehicle had complaints of missing and starting trouble. The battery became defective within three months itself.

(iv) There is slip to the third gear.

(v) The vehicle had to be taken to the dealer for repairs frequently and was kept in the workshop for several days. The defects persisted even after repairs. The spares were not readily available.

(vi) High amounts was collected by first opposite party for repair even during warranty period.

(vii) The mileage offered was 30km/litre. The vehicle did not give this mileage.

6. The submissions on the side of opposite parties are as follows:-

(i) The vehicle does not have any defect or inherent manufacturing defect. The vehicle which was purchased on 19-12-2000 is running it's 8^th year and complainant is still using it. This usage would prima facie prove that there is no inherent problem for the vehcle. The problems have arisen only due to improper use of vehicle and improper maintenance. The complaint was filed only in August, 2002 which is after the extended warranty period.

(ii) That complainant had not approached opposite parties alleging defects of high consumption of oil and scarcity of spares. That fuel average differ because of numerous factors like petrol oil mix, load on vehicle, condition of road and maintenance of the vehicle.

(iii) The defects reported by expert commissioner will occur due to improper maintenance of the vehicle. Complainant has not serviced the vehicle at an authroised service centre for the last six years.

(iv) Problem of starting motor willoccur due to poor charging of battery. Defect of spongy brake can be due to lack of fluid and non-replacement of fluids at regular intervals.

(v) The bills produced are not genuine.

7. To substantiate the contention that the vehicle has inherent manufacturing defects, complainant took out an expert commission to inspect and report about the vehicle. In Ext.C1 the defects noted are as under:

“1. Check the Engine Oil dust of the metal parts are mixed in Engine oil due to the excessive wear and tear of the engine.

2. Starting motor not properly working.

3. Spongy brake.

The vehicle is driven and tested and found that the above damages are due to mechanical defects.”

8. Reliance was also placed by complainant on Ext.A5 series which are bills, quotations, estimates contended to be issued to him for repairs done for the vehicle. On perusal these documents run between a period from 2001 to 2007. Ext.A5 series includes some bills some quotations and some estimates. The quotations and estimates are just in plain paper. Opposite party has disputed the genuineness of these documents. Complainant has not taken any steps to prove there documents, which are seen issued by workshops other than first opposite party. Hence we are unable to rely on the whole of Ext.A5 series. However, the bill issued by first opposite party is acceptable and reliable. The bills issued by first opposite party run between a period from 2001 to 2003. The relevant details of repairs and replacements done upto 2002 by first opposite party is as follows:-

Date of bill Labour charge Spares Oil/grease/break fluid

06—6-2001 100 660 140

28—6-2001 95 .. ..

09—8-2001 550 658.93 220

26—9-2001 .. .. 174

29—9-2001 .. 554

(On reverse side

Rs.900/-

20-12-2001 .. 105 130

(On reverse side

spares - Rs.105/-

07—2-2002 110 83 155

(On reverse side

spares - Rs.83/-

09—4-2002 60 .. ..

(Extended warranty

expires)

11—6-2002 300 .. ..

9. From the above bills it is evident that complainant had taken the vehicle for repair to first opposite party several times within two years of it's purchase. In Ext.A4 the initial warranty was for 120 days or for 5500kms whichever occurs first. Admittedly this warranty was extended for one year. The extended warranty expired in April, 2002. the bill dated, 09-8-2001 shows that multiple shaft (Rs.320.21) was replaced. Bill dated, 29-9-2001 shows that piston rings (Rs.310.10) and clutch assembly (Rs.115.56) was replaced. Piston rings were again replaced by first opposite party as per bill dated, 10-7-2003. Multiple shaft was again replaced on 12-7-2003 by first opposite party for Rs.311.26.

10. These repairs and replacements make it clear that the vehicle had major defects during the warranty period itself. The fact that piston rings and shaft had to be replaced repeatedly can only lead to the conclusion that engine had to be opened and repaired during warranty period. If piston rings of a new vehicle got spoiled the effect on other parts will also be severe. In Ext.C1 the Commissioner has noted defect to the starting motor and brake system. Ext.C1 corroborats the case of the complainant that the starting system was defective and it is persisted even after repairs and services by opposite party. The opinion given by the expert is that the defects are mechanical defects, and has not stated that these are inherent manufacturing defects. Considering the fact that the vehicle is running the 8^th year and also that the vehicle has run 64283kms by 2008 together with the fact that complainant is still using the vehicle we are unable to hold that the vehicle has inherent manufacturing defects.

11. We find it difficult to appreciate the grievance regarding poor mileage for the vehicle. Complainant submitted that opposite parties offered mileage of 30kms/litre. He has not specifically stated the mileage obtained for his vehicle. The mileage offered by manufacturer can be obtained only in ideal conditions and there may be slight shortage while using the vehicle. The allegation of defect to battery also cannot be treated as inherent manufacturing defect. Another allegation levelled against opposite parties is that first opposite party collected huge amount as repair charges during the warranty period when the repair during this period ought to have been done free of cost. On perusal of the details of conditions of warranty stated in Ext.A4 we find that opposite parties have charged for the repairs which are outside the scope of warranty. On this ground we do not find any deficiency.

12. The materials placed before us definitely prove that the vehicle was exhibiting defects constantly during the warranty period and that opposite parties have not been able to remove and rectify those defects to the satisfaction of the consumer. After paying a large amount, a consumer would not be satisfied with a vehicle if it gives constant trouble. On sale of a motor vehicle by a manufacturer to dealer and then to the customer there is an implied warranty that it is reasonably fit for, or adapted to the use for which it is made and sold. Defect is defined under Sec.2(f) as 'any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied, or) as is claimed by the trader in any manner whatsoever in relation to any goods.'

13. The repeated repair to the vehicle during warranty period prove that the vehicle developed defects. The dealer and the manufacturer are liable to rectify the defects. It is established that opposite parties were not able to rectify these defects. The failure on the part of opposite parties to remove and rectify the defect is nothing but deficiency in service. On this count we hold opposite parties deficient in service. Point found in favour of complainant.

14. Point (ii):-

Complainant prays for refund of the purchase price with 18% interest, to refund the illegal charges collected during warranty period together with compensation and costs. From the discussions made in point (i), the claim for refund of purchase price and repair charges is only to be disallowed. In our view, complainant has toe compensated for the deficiency meted by him. In the present case, the autorickshaw was purchased for earning his livelihood by self employment. Making frequent visits to workshops interrupting the continuous use of the vehicle is a serious grievance for such a consumer. He was literally deprived of the satisfaction in using a new vehicle. The time and energy required to take the vehicle for repairs and the expenses incurred for replacing parts have also to be considered. The vehicle was purchased under PMRY Scheme and the complainant had to repay the loan. This could only have doubled his sufferings. Ext.A5 bills indicate that the vehicle is still being repaired frequently in order to maintain the vehicle in running condition. Since the vehicle is running it's 8^th year and has covered 64283kms on 15-4-2008 we are of the considered view that complainant is entitled to compensation of Rs.10,000/- towards deficiency, Rs.3,000/- towards mental agony together with costs of Rs.4,000/- which would be adequate relief to the complainant. We hold that both opposite parties are jointly and severally liable to compensate the complainant for the deficiency in service.

15. In the result, we partly allow the complaint and and order that first and second opposite parties shall jointly and severally pay to the complainant a total sum of Rs.13,000/- (Rupees Thirteen thousand only) as compensation together with costs of Rs.4,000/- (Rupees four thousand only) within one month from the date of receipt of copy of this order.

Dated this 13th 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 : Nil

Documents marked on the side of the complainant : Ext.A1 to A5

Ext.A1 : Photo copy of the registration certificate in respect of vehicle No.KL10-L/517

Ext.A2 : Photo copy of the membership card.

Ext.A3 : Invoice No.478 dated, 19-12-2000 for Rs.70,215/- from first opposite party

to complainant.

Ext.A4 : Owner's Manual and Service Coupons.

Ext.A5series : Bills (63 Nos. in various dates) received from first opposite party to complainant

Witness examined on the side of the opposite parties : Nil

Documents marked on the side of the opposite parties : Nil

Court document marked : Ext.C1

Ext.C1 : Commissioner's report dated, 21-4-2008.

Sd/-

C.S. SULEKHA BEEVI, PRESIDENT

Sd/-

MOHAMMED MUSTAFA KOOTHRADAN, Sd/-

MEMBER E. AYISHAKUTTY, MEMBER