This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay a sum of  `56,000  spent by the  complainant for the vehicle or to replace the vehicle with compensation and cost.

          The brief facts of the case of the complainant are as follows: Complainant purchased a two wheeler from 1^st opposite party. T he vehicle was delivered on 20.7.2010  and problems started with the vehicle within one month of the delivery. The vehicle suddenly turned off while running. It was then informed 1^st opposite party and repaired it. But it was again turned off while plying the vehicle. The vehicle was then handed over to 1^st opposite party on 12.11.2010. Opposite party told him to come after two days. He approached opposite party on 14.11.2010 but for delivery 5 days more asked. He went again on 19.11.10 and 1^st opposite party sought more time because of the battery troubles. 1^st posit party issued receipt when asked and endorsed on it “Battery sent”. The vehicle was delivered saying that the battery changed on 24.11.2010. But on the way it was again turned off. Vehicle was gain taken to opposite party for repair. Even after repair the vehicle turned off on the busy roads. A mechanic of 1^st opposite party came and examined the vehicle at the spot but he could not start the vehicle whereby complainant took the vehicle to the workshop hiring a goods auto. The vehicle was then delivered on 16.3.2011 with a bill for `447. It was informed by 1^st opposite party that during water service some parts were soaked. The vehicle was again turned off on 17.3.2011. Almost everyday the vehicle turns off on the road particularly while turning curves. Complainant became fed up physically and mentally. Hence this complaint.

          Pursuant to the notice opposite parties made appearance and filed version separately. 1^st opposite party contended as follow: The complainant had approached 1^st opposite party with complaint of battery trouble. The battery was then replaced. 4 free services were given to complainant. Battery was replaced in November 2010. There was no defect as such in the functioning of the vehicle. It has no manufacturing defect. The vehicle was purchased after checking it thoroughly and with full satisfaction. The allegation that after changing the battery the vehicle caused to suddenly turned off, on 13.3.2011 the vehicle turned off and on calling mechanic of 1^st opposite party came to the spot  but he could not start it and then vehicle was taken to 1^st opposite party by hiring an auto etc are not correct. The 4^th free service as given on11.3.2011.The vehicle was repaired on 16.03.2011. The allegation that complainant was informed some part was soaked during water service is not correct. 1^st opposite party did some works promptly required as periodical maintenance. The vehicle turned off on 17.3.2011 almost every day the vehicle turned off particularly while turning the curves etc. re not correct. The complaint has no merit and there wasno  trouble for the vehicle. Hence to dismiss the complaint.

          2^nd opposite party also filed version separately denying the main allegations of the complainant and repeating the same contentions that have been taken by 1^st opposite party hence the same is not given here in order to avoid repetition.

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

1.     Whether there is any deficiency in service on the part of

               opposite   parties?

2.     Whether the complainant is entitled to get the relief as

       prayed in   the complaint?

3. Relief and cost?

The evidence consists of the oral evidence of PW1 and DW1 and documents Ext.A1 to A11 on the side of the complainant and Ext.B1 to B7 on the side of opposite parties.

Issue Nos.1 to 3

Admittedly complainant had purchase the vehicle, two wheeler KL.13U.9492 from opposite party. The case of the complaint is that within one month from the date of purchase the vehicle started showing trouble. Almost every day the vehicle turns off on the road particularly while turning curve. On 12.11.2010 complainant handed over the vehicle to opposite party for repair. He was asked to come after two days. When he went after two days he was told some  more days required.  On 19.11.2010 when again approached 1st opposite party sought some more time due to battery trouble. Complainant obtained a receipt also. On 24.11.2010 the vehicle was handed over to complainant saying that battery was changed. But on the way it was again turned off. Complainant fears that when the vehicles stops suddenly on the busy roads the other following vehicles would come and dash causing injury. Opposite party on the other hand taken the contention that the allegation of complainant is not correct. Opposite party has replaced the battery in November 2010. There were no defects as such in the functioning of the vehicle. 4 free services were given to vehicle and the vehicle was repaired on 16.3.2011. The complaint has no merit.

Complainant adduced evidence by affidavit evidence in accordance with his pleadings. The first allegation of the complaint is that problems aroused with the vehicle within one month from the date of purchase delivery of the vehicle. Opposite parties denied it but in the cross examination of DW1 it was deposed that “h­n hm§n Hcp amk-¯n-\p-f-fn Xs¶ X§sf  kao-]n¨p F¶p-d-ªm icn-bmWv”. In usual course within such short period it is not expected to take a new vehicle for repair. Complainant’s case is that he had entrusted 1^st opposite party his vehicle for repair on12.11.10. Opposite party’s case is that on12.11.10 the complainant handed over the vehicle to 1^st  opposite party for the second free service and free service was given to complainant. What is deposed by DW1 in his cross examination is that “12.11.10\p h­n¡v starting trouble h¶-Xn-\m h­n-bp-ambn ]cm-Xn-¡m-c³ kao-]n-¨n-cp-¶p.. F´mWv ]cm-Xn-¡m-c-t\mSp h­n-bp-ambn kao-]n-¨-t¸mÄ ]d-ª-sX¶p And-bn-Ã.”. It is true that complaint approached 1^st opposite party due to trouble of his vehicle. Complaint has also case that  he was  asked to come after two days and on 14.11.10 when he approached 1^st  opposite party, opposite party requested for 5 more days to repair the vehicle. DW1 was not aware of what opposite party told to complainant on that day. Complainant has also alleged that on 19.11.10 opposite party sought more time telling of battery troubles. Ext.A8 reveals that complaint was informed such a trouble.DW1 also deposed in cross examination that “Ext.A8 R§-fpsS  shop \n¶p sImSp-¯-Xm-Wv.-c-Pojv  workmanBWv”. Ext.A8 marked with objection. But Mr.Rajesh whose name is mentioned in Ext.A8 was not examined. Anyhow opposite party has stated that battery has been replaced. Opposite parties stated in their version that complainant had approached 1^st opposite party for battery troubles and the same was replaced. But complaint’s case is that the trouble continues even after the replacement of the battery. Opposite party denies the same contending that it is not correct.

However it can be seen that complainant had approached 1^st opposite party several time in connection with the repair.DW1 deposed that “24.11.10\mWv h­n ]cm-Xn-¡m-c\p Xncn-¨p-sIm-Sp-¯Xp F¶p ]d-ªm icn-bmWv”. That also means he had approached him for entrusting the vehicle. Admittedly Ext.A8 is given by one of the workmen in opposite party’s shop. It also reveals that complaint has approached 1^st opposite party on that day also. Opposite parties admitted that even after 4^th free services the vehicle was repaired by them.DW1 also deposed in cross examination that “16.03.11\p repairing \mbn ]cm-Xn-¡m-c³ kao-]n-¨n-«p-­v. {]kvXpX ka-bT  447cq] _nÃ-S-¨n-«p­v”. The job cards produced by opposite party Ext.B1 to B4 does not consists of all the repairs as mentioned above. None of the job cards consists of the job description. The entries found place in Ext.B1 to B4 reveals that it is merely kept for name sake. It is an admitted fact that the battery of the vehicle had been replaced by opposite party. But it does not find place in job card. So the purpose for which the job card was kept is not to record all the works carried out. Non-recording of the work in the job cards only reveals unfair attitude of opposite parties. The satisfaction of the needs of the consumer has not given prime consideration but documents are kept merely to meet the requirements of technical statutory needs. Suppose the entire work carried out by the opposite party had been entered in to job card it would have been taken in to account as an authoritative dependable document for the purpose of analyzing the whole state of affairs. It could have brought out the truth to a great extent but denied purposefully as is worked out.

          More over, 1^st opposite party didn’t enter in witness box. He is the fit person who is well aware of the entire state of affairs in connection with the vehicle of the complainant. The witness DW1 who adduced evidence on behalf of the opposite party is not a person aware of whose transaction. . So it can only be assumed that the job card has been seen excluded the entry of repair works is only a purposeful undoing. In practice the opposite parties are taking back the delivery slip without making entry in the job card resulting ultimately no proof with the complainant in respect of repair of his vehicle. The method of dealings play an important role. DW1 in cross examination deposed that “h­n sIm­p-h-¶p-I-gn-ªm service advisors\ ImWn-¡pT ]cm-Xn-¡m-c\p 1^st slip sImSp-¡m-dnÃ. Job card C«v AXnsâ AS-bn-ep-ff slipBWv  customer¡v sImSp-¡m-dp-f-f-Xp. B slip delivery¡v  hcp-t¼mÄ sIm­p-h-¶p- X-cp-t¼mÄ h­n hn«p-sIm-Sp-¡p-T. Delivery ka-b¯v B  slip ]cm-Xn-¡m-csâ I¿n \n¶p hm§n-¡p-T.-B-b-Xn-\m  Repairing \p h¶-bm-fpsS ssIh-iT bmsXmcp sXfn-hpT ImWn-Ã- F-¶p-]-d-ªm icn-b-Ã.”. The deposition reveals that no evidence of repair would be left with the customer after the delivery of the vehicle. The entire evidence would be within the hands of opposite party alone. Under such circumstances if 1^st opposite party hesitated to enter in witness box it is only a tactical approach in order to suppress the actual facts before the Forum.  Hence it is  quite evident that the non entry of opposite party in the witness box is only an  attempt of opposite parties to escape from the liability. This is a case in which the alleged vehicle became defaulted within one month of the purchase of the vehicle. The entire details of the vehicle including date of purchase, date of repair etc. is available to opposite parties. It has come in evidence that the trouble with the vehicle could not be solved even after the repair conducted by opposite party and of the four free services. Evidence goes to show that opposite party tactfully managed to expire the warranty period without rectifying the defects of the vehicle.

In the light of the above analysis we are of opinion that the opposite parties failed to rectify the defects of the vehicle and shown unfairness in dealing in affairs of the transactions with the complainant. Hence opposite parties are liable to repair the vehicle free of defects failing which opposite parties are liable to pay `56,000 the amount spent by the complainant or to replace the vehicle by a new one. Complainant is also entitled for a sum of `1000 as cost of this proceedings. In case of repair opposite party is liable to give an amount `5000 as compensation also. Hence the issues 1 to 3 are found in favour of complainant. Order passed accordingly.

          In the result, the complaint is allowed  directing the opposite parties to rectify the defect of the vehicle of the complainant fault free or to pay `56,000 (Rupees Fifty Six Thousand only) the amount spent by the complainant or else to replace the vehicle by a new one. The complainant is also entitled for `1,000 (Rupees One Thousand only) as cost of these proceedings to the complainant. In case the repair work is carried out free of default the opposite party is also liable to pay a sum of `5,000 (Rupees Five thousand only) as compensation. It is hereby ordered to execute the order within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provisions of consumer protection Act.

          Sd/-                      Sd/-                      Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1.  Copy of loan agreement

A2.   Schedule

A3.   Copy of Tax invoice dt.17.7.10 issued by OP

A4.   Copy of the insurance policy

A5.   Warranty certificate

A6.   Copy of the RC book

A7.   Copy of the repayment schedule

A8.   Endorsement

A9.   Tax invoice issued by OP

10.   Copy of the bill issued by 1^st OP

A11. Copy of insurance policy.

A12 & A13. Prescription issued by Dr. K.Ravindranath and Doctor of Thalassery Mission Hospital

Exhibits for the opposite parties:

B1 to B4.  Job cards.

B5.            Copy of identity cards Oliver Francis

B6.            Copy of pay slip of 4/12 of Oliver Francis

B7.             Authorization letter

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties:

DW1. Oliver Francis

     /forwarded by order/

              Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.