BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT: SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 652/1998 Filed on 28/10/1998
Dated: 15..03..2010
Complainant: S. Chandra Babu, T.C.4/489, Toll Junction, Kowdiar, Thiruvananthapuram.
(By Adv. Padmini. N)
Opposite parties:
M/s. Bajaj Tempo Ltd., Akurdi, Pune – 411 035. M/s. N. Mahalingam & Company, Post Box No.604, Killippalam, Thiruvananthapuram – 695 002. (By Adv. C.P. Bhadra Kumar) M/s. Oriental Insurance Co., Rohini Buildings, Thakaraparambu Road, Pazhavangadi, Thiruvananthapuram.
(By Sri. S.S. Kalkura)
This O.P having been heard on 15..12..2009, the Forum on 15..03..2010 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
This case remanded by the Hon’ble State Consumer Disputes Redressal Commission vide Order dated 2/4/2003 in Appeal Nos. 1275/2000 & 1371/2000. The facts leading to the filing of the complaint are that, complainant on 1/1/98 purchased one Matador Diesel Engine bearing No. D 03002244 manufactured by the 1st opposite party, that the said engine was purchased from the 2nd opposite party, that the vehicle was duly insured with the 3rd opposite party vide policy No. 7633, that the aforesaid engine was duly fitted on the Ambassador vehicle of the complainant bearing Registration No. KBT 1528, that the said engine was fitted by Alex Motors, Edapazhinji, that on 5/5/98 the said car covered 3500 kms and hence taken to the 2nd opposite party, for first service, that there was excessive oil consumption and the same was duly informed to the 2nd opposite party, that 2nd opposite party made the complainant believe that it was a minor problem which would be rectified by servicing of the vehicle. It is submitted by the complainant, that when complainant got a trip to Kollam and covered few kilometres, he noticed that there was still excess oil consumption, that he stopped the vehicle at Attingal and checked the engine and found that the engine oil was leaking profusely from the cylinder block, that complainant could not run the vehicle further, he telephoned the 2nd opposite party, who asked him to bring the vehicle to their workshop, that 2nd opposite party promised to look into the matter in detail and asked the complainant to come after two days, thereafter complainant took the vehicle back from the 2nd opposite party’s workshop, for a few weeks complainant’s vehicle hired only for short trips, then complainant took the vehicle for a long trip he noticed that there was oil leakages, that the vehicle needed almost 6 litres of engine oil to cover hardly 100 kms., that on a detailed examination of the engine complainant himself found that there was a hair line crack on the cylinder block and M.seal applied on that particular place, that complainant then took the vehicle to 3rd opposite party, who told him that the defect occurred to the vehicle is a manufacturing defect and hence no indemnity can be given. 2nd opposite party was fully aware of this defect. Complainant sent a statutory notice to all opposite parties on 20/8/1998, opposite parties sent reply raising untenable contentions. Hence this complaint to direct 1st & 2nd opposite parties to replace the defective engine with a defect free engine fitted in the complainant’s vehicle at their cost along with a compensation of Rs. 50,000/- and cost of Rs.5,000/-.
2. 1st opposite party filed version contending that paras 2 & 3 of the complaint admitted, while averments in paras 4 & 5 are not known to the 1st opposite party and hence denied. It is averred in the version of the 1st opposite party that though the D 301 E2 engine in question was purchased from the 1st opposite party, no warranty was given by the manufacturer to the engine because the engine was mounted in the said car, by an outside mechanic, that the vehicle in question was taken to the opposite party’s workshop by the driver of the complainant on 5/5/1998 for oil change and the 2nd opposite party had changed the oil and oil filter and also tightened the cylinder head and also set the tappet of the engine, on payment basis and the vehicle was delivered to the complainant’s driver on the same day, after payment of repairing charges and cost of materials. There was no complaint whatsoever regarding the excess oil consumption nor 1st opposite party did any repair on that line also. Complainant or his driver never wanted the 1st opposite party to effect any repairs nor the 1st opposite party did any repairs to rectify the oil leak. No warranty is available to the complainant since the mounting of the engine was made by him in a private workshop. The alleged defect is purely attributable to the poor workmanship of an outside workshop and hence the 1st opposite party is no way liable either to rectify the same nor make good any alleged loss sustained by the complainant. There was no hair line crack in the engine also. There is no cause of action for the complainant to file this complaint against the 1st opposite party. Hence 1st opposite party prayed for dismissal of the complaint with cost. 3. 2nd opposite party filed version contending almost the same contentions as averred in the version filed by the 1st opposite party. 4. 3rd opposite party filed version contending that complaint is bad for mis-joinder of unnecessary parties, that the 3rd opposite party was not aware of the alleged defects in the vehicle nor as regards the works/repairs carried out by the complainant at any point of time. The 3rd opposite party for the first time was informed of the defect only on receipt of the notice dated 20/8/1998, that admittedly complainant has alleged that engine is defective and the defects are due to manufacturing defect, that as per the terms and conditions of the policy the 3rd opposite party is not liable to indemnify the complainant for any manufacturing defect as the same is outside the purview of the policy issued to the complainant. Hence 3rd opposite party prayed for dismissal of the complaint with compensatory cost. 5. The points that arise for consideration are: Whether there is any defect in the Matador Diesel Engine? Whether the defects, if any, are repairable? Whether complainant is entitled for a replacement of the engine? Whether complainant is entitled to compensation, if so, at what amount? Whether complainant is entitled to get cost?
In support of the complaint, complainant has filed affidavit and Exts. P1 to P14 were marked and new Commission Report was marked as Ext. C2. Both the complainant and the commissioner have been cross examined by the opposite parties. Insurance Surveyor has been examined as PW2. In rebuttal, the Service Engineer of the 1st opposite party has been examined as DW1 and Assistant Administrative Officer of the 3rd opposite party has been examined as DW2 and Exts. D1 to D3 were marked. 6. Points (i) to (v): Admittedly, complainant purchased one Matador Diesel Engine manufactured by the 1st opposite party from the 2nd opposite party vide bill No. 59 dated 1/1/1998. Ext. P1 is the copy of invoice dated 1/1/98 issued by the 2nd opposite party in the name of the complainant – S. Chandra Babu. The specific case of the complainant is that the engine oil was leaking profusely from the cylinder block and there was a hair line crack on the cylinder block, 2nd opposite party knew the said crack and had applied M.seal on that particular place to cover it and defect occurred to the engine is a manufacturing defect and the same can be cured only by replacement of the engine. As per the direction of the appellate Commission this Forum appointed an expert commission and expert commission filed report which was marked as Ext. C2. According to the expert commission as per the Manual, the warranty of the engine is up to 15000 kms or up to 6 months which ever occurs first. In Ext. C2 he has reported that engine oil checked with dipstick, indicated minimum oil level, condition of oil OK. No battery was available in the car. V belt connections to Dynamo, Radiator etc were found dismantled. Hence engine could not start. The vehicle was not in running condition. Hence test run could not conduct. Commissioner has also reported that a welding joint was found on outside portion of oil gallery line of the engine, above centre oil dummy plug, length of the welded portion is about 30 mm, location of welding is about 25 mm above the centre dummy plug, there was no oil pressure pipe line connected to oil pressure guage fitted on the dash board. It is stated in Ext. C2 that the complainant informed that the welding was done due to oil leak through the crack developed on the engine body and the welding was done at M/s. George Engineering Work on 22/10/1998. According to the commission if there is any crack on the oil gallery line, oil leak will increase when temperature of engine is going up. This is due to (i) when oil temperature increases, the viscosity of oil decreases (ie oil becomes thin), leading to more oil leak (ii) cracks also expand when temperature increases, leading to more oil leak. It is further stated in Ext. C2 that complainant informed that the car way lying in M/s. Alex Motors for last 6 months. Commissioner inspected the vehicle on 5th April 2005. Complainant purchased the Metador Diesel Engine on 1/1/1998. The vehicle was registered on 15/06/1981 and converted as a diesel vehicle and the date of conversion is noted in the RC book as 19/1/1998. Commissioner also reported that road tax had been paid up to 30/9/2006. Insurance policy is valid up to 17/1/2006. Commissioner has noted that crack on the cylinder block of the engine is a major complaint. According to him now it is welded. Welding is not a fool proof method. Cracks may develop in future. Hence his opinion it is better to replace the cylinder block of the engine or the whole diesel engine assembly. According to commission the engine is properly mounted on the chasis of the car. The crack developed on the cylinder block is not because of improper mounting of the engine on the chasis. Hair line crack on the cylinder block is a manufacturing defect (casting defect). The commission says the crack is not visible due to welding done on it. Opposite party filed objection to commission report stating that the welding in the cylinder block was done on 22/10/1998 by the complainant through M/s. George Engineering Works which is reported in the commission report also. According to opposite parties the expert commission failed to report in para 14 of the report that how it happened to be welded near the centre dummy plug portion which is sealed at the time of delivery of the engine. Further Commissioner also failed to note whether any oil pressure switch was fitted in the block which is an original fitment attached to the engine. Opposite parties challenged the commission report stating that commissioner prepared the report on speculation. Commissioner has been cross examined by the opposite parties. In his cross examination he has deposed that: വര്ക്ഷോപ്പില് കിടന്ന 6 മാസത്തിന് മുന്പ് 6 വര്ഷമായി ഓടുന്ന വണ്ടിയായിരുന്നു.. 5/5/98-ല് വണ്ടി 3957km ഓടിയിരുന്നു.. അന്ന് വാഹനത്തിന് eengine block -ന് കേടുള്ളതായി രേഖയൊന്നും വാദി കാണിച്ചില്ല.. സാധാരണ എന്തെങ്കിലും ddefect engine -ന് ഉണ്ടെങ്കില് 4000 km - നുള്ളില് ddevelop ചെയ്യണ്ടേ ? (Q) വേണമെന്നില്ല . (A). He has further deposed that oil pressure guage is not oil filter and oil pressure guage is not a must. In his cross examination he has admitted that welding was found above the middle oil dummy plug and welding was done by M/s. George Engineering. He has further deposed that welding is a temporary measure to crack. 22/10/98- മുതല് October 2004 – വരെ ഈ കാര് കുഴപ്പമില്ലാതെ ഓടിയിരുന്നു എന്നു പറയുന്നു ? (Q) എനിക്കറിയില്ല. . (A) വാഹനം ഏതെങ്കിലും wworkshop-ല് പണി ചെയ്തതായി രേഖയൊന്നും കാണിച്ചില്ല. . മറ്റു workshop-ല് പണി ചെയ്താല് warranty കിട്ടില്ല എന്ന് manuel -ല് പറഞ്ഞിട്ടില്ലേ ? (Q) ഉണ്ട് (A). In his cross examination commissioner has deposed that normally cylinder will be welded when cracks comes. Oil leak ഉണ്ടോ എന്ന് പരിശോധിച്ചില്ല. . Crack - ഉം കണ്ടില്ല . Crack കാണാത്തതിനാല് അത് എന്തുകൊണ്ട് ഉണ്ടായി എന്ന്അന്വേഷിച്ചില്ല . Hair line crack എന്നത് വാദി പറഞ്ഞ പ്രകാരം എഴുതിയതാണോ ? (Q) അതെ. Expertise ഇല്ലാത്ത workshop – ല് oil pressure guage ഘടിപ്പിച്ചതില് ഉണ്ടായതാണ് crack എന്ന് പറഞ്ഞാല് ശരിയാണോ ? (Q) എനിക്കറിയില്ല (A) ആ point- ല് അല്ല crack. As per Ext. D1 Matador Engine Service Coupon Book (which is seen as Ext.P3). (i) "that the engine should have been purchased and the fitment for conversion done at any of our authorised dealers workshop only. Otherwise the warranty becomes null and void and (ii) all the three services should have been promptly availed in order that the warranty is valid. The services should have been availed at any of our autorised dealers workshops only". As per clause 4 of the terms and conditions of Ext.D1 "the warranty is valid only in case the engine has been fitted on the customer’s vehicle at our authorised dealer’s workshop. In case the engine is purchased from the dealer but fitted by an unauthorised workshop, then the company cannot accept any responsibility whatsoever, for the satisfactory performance of the engine and in such events no warranty is offered. In this context, it is pertinent to point out that complainant purchased the aforesaid engine from the 2nd opposite party on 1/1/98, complainant himself admits the said engine was fitted by M/s. Alex Motors. Complainant approached the 2nd opposite party only on 5/5/98 for oil change. No such crack was seen reported by the complainant to the 2nd opposite party on 5/5/98. It was the specific case of the opposite party that there was no complaint whatsoever regarding the excessive oil consumption reported by the complainant. Complainant did not produce any document to show that he was lodged any complaint regarding the same to the opposite party and opposite party refused to repair it. Since complainant has fitted the aforesaid engine not in the authorised workshop of the opposite party he cannot claim any warranty benefit offered by the opposite party. Commissioner himself deposed that he never saw the cylinder crack, tha he mentioned hair line crack in the Report as informed by the complainant. The onus is on the part of the complainant to establish that the crack was developed within the period of warranty and the said engine was fitted in the vehicle by the authorised workshop of the 1st opposite party. Complainant failed to establish the same. In view of the foregoing discussions and evidence available on record we find there is nothing to attribute any deficiency on the part of the opposite party. 3rd opposite party is an unnecessary party in this case, since the allegation raised by the complainant is a manufacturing defect. In view of the above, we find complaint has no merit at all which deserves to be dismissed.
In the result, complaint is dismissed. Both parties shall bear and suffer their respective costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of March, 2010. G. SIVAPRASAD, PRESIDENT. BEENA KUMARI. A : MEMBER S.K. SREELA : MEMBER ad.
O.P.No. 652/1998 APPENDIX I. Complainant’s witness: PW1 : S. Chandra Babu PW2 : M. Muraleedharan Nair II.Complainant’s documents: P1 : Copy of invoice cum delivery chalan dated 1/1/98 P2 : Copy of certificate cum-policy schedule dated 16/1/98 P3 : Copy of Tempo Matador Engine D-301 E1 Service coupon Book Brochure of Bajaj Temp Ltd. P4 : Copy of permit in respect of a contract carriage P5 series : Copy of 10 cash bill of petrol/diesel P6 : Copy of cash receipt dated 5/5/98 P7 : Copy of cash receipt dt. 5/5/98 P8 : Copy of advocate notice dated 20/8/98 P9 : 3 acknowledgment cards P10 : Copy of letter dated 6/9/98 P11 : Copy of advocate’s notice dated 24/8/98 P12 : Copy of letter dated 28/9/98 P13 : Cash bill dated 14/1/98 P14 : Copy of technical report of the vehicle dt. 20/10/98
III. Opposite parties’ witness:
DW1 : Gunasekharan DW2 : Mathew Abraham
IV. Opposite paraties’ documents:
D1 : Copy of Bajaj Tempo Ltd Matador Engine D 301 E2 Service Coupon book – Brochure D2 : Copy of job card dt. 5/5/98 D3 : Copy of Oriental Insurance Co. Ltd commercial vehicle ’B’ policy brochure
V. Court witness: CW1 : Thomas A. Vadakkan
VI. Court Exts. C1 : Commission Report submitted by R.S. Sreenath C2 : Commission Report submitted by Thimas A. Vadakkan
PRESIDENT
ad.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD : THIRUVANANTHAPURAM PRESENT: SHRI. G. SIVAPRASAD : PRESIDENT SMT. BEENA KUMARI .A : MEMBER SMT. S.K. SREELA : MEMBER
O.P.No. 652/1998 Filed on 28/10/1998
Dated: 15..03..2010
Complainant: S. Chandra Babu, T.C.4/489, Toll Junction, Kowdiar, Thiruvananthapuram.
(By Adv. Padmini. N)
Opposite parties:
M/s. Bajaj Tempo Ltd., Akurdi, Pune – 411 035. M/s. N. Mahalingam & Company, Post Box No.604, Killippalam, Thiruvananthapuram – 695 002. (By Adv. C.P. Bhadra Kumar) M/s. Oriental Insurance Co., Rohini Buildings, Thakaraparambu Road, Pazhavangadi, Thiruvananthapuram.
(By Sri. S.S. Kalkura)
This O.P having been heard on 15..12..2009, the Forum on 15..03..2010 delivered the following:
ORDER
SHRI.G. SIVAPRASAD, PRESIDENT:
This case remanded by the Hon’ble State Consumer Disputes Redressal Commission vide Order dated 2/4/2003 in Appeal Nos. 1275/2000 & 1371/2000. The facts leading to the filing of the complaint are that, complainant on 1/1/98 purchased one Matador Diesel Engine bearing No. D 03002244 manufactured by the 1st opposite party, that the said engine was purchased from the 2nd opposite party, that the vehicle was duly insured with the 3rd opposite party vide policy No. 7633, that the aforesaid engine was duly fitted on the Ambassador vehicle of the complainant bearing Registration No. KBT 1528, that the said engine was fitted by Alex Motors, Edapazhinji, that on 5/5/98 the said car covered 3500 kms and hence taken to the 2nd opposite party, for first service, that there was excessive oil consumption and the same was duly informed to the 2nd opposite party, that 2nd opposite party made the complainant believe that it was a minor problem which would be rectified by servicing of the vehicle. It is submitted by the complainant, that when complainant got a trip to Kollam and covered few kilometres, he noticed that there was still excess oil consumption, that he stopped the vehicle at Attingal and checked the engine and found that the engine oil was leaking profusely from the cylinder block, that complainant could not run the vehicle further, he telephoned the 2nd opposite party, who asked him to bring the vehicle to their workshop, that 2nd opposite party promised to look into the matter in detail and asked the complainant to come after two days, thereafter complainant took the vehicle back from the 2nd opposite party’s workshop, for a few weeks complainant’s vehicle hired only for short trips, then complainant took the vehicle for a long trip he noticed that there was oil leakages, that the vehicle needed almost 6 litres of engine oil to cover hardly 100 kms., that on a detailed examination of the engine complainant himself found that there was a hair line crack on the cylinder block and M.seal applied on that particular place, that complainant then took the vehicle to 3rd opposite party, who told him that the defect occurred to the vehicle is a manufacturing defect and hence no indemnity can be given. 2nd opposite party was fully aware of this defect. Complainant sent a statutory notice to all opposite parties on 20/8/1998, opposite parties sent reply raising untenable contentions. Hence this complaint to direct 1st & 2nd opposite parties to replace the defective engine with a defect free engine fitted in the complainant’s vehicle at their cost along with a compensation of Rs. 50,000/- and cost of Rs.5,000/-.
2. 1st opposite party filed version contending that paras 2 & 3 of the complaint admitted, while averments in paras 4 & 5 are not known to the 1st opposite party and hence denied. It is averred in the version of the 1st opposite party that though the D 301 E2 engine in question was purchased from the 1st opposite party, no warranty was given by the manufacturer to the engine because the engine was mounted in the said car, by an outside mechanic, that the vehicle in question was taken to the opposite party’s workshop by the driver of the complainant on 5/5/1998 for oil change and the 2nd opposite party had changed the oil and oil filter and also tightened the cylinder head and also set the tappet of the engine, on payment basis and the vehicle was delivered to the complainant’s driver on the same day, after payment of repairing charges and cost of materials. There was no complaint whatsoever regarding the excess oil consumption nor 1st opposite party did any repair on that line also. Complainant or his driver never wanted the 1st opposite party to effect any repairs nor the 1st opposite party did any repairs to rectify the oil leak. No warranty is available to the complainant since the mounting of the engine was made by him in a private workshop. The alleged defect is purely attributable to the poor workmanship of an outside workshop and hence the 1st opposite party is no way liable either to rectify the same nor make good any alleged loss sustained by the complainant. There was no hair line crack in the engine also. There is no cause of action for the complainant to file this complaint against the 1st opposite party. Hence 1st opposite party prayed for dismissal of the complaint with cost. 3. 2nd opposite party filed version contending almost the same contentions as averred in the version filed by the 1st opposite party. 4. 3rd opposite party filed version contending that complaint is bad for mis-joinder of unnecessary parties, that the 3rd opposite party was not aware of the alleged defects in the vehicle nor as regards the works/repairs carried out by the complainant at any point of time. The 3rd opposite party for the first time was informed of the defect only on receipt of the notice dated 20/8/1998, that admittedly complainant has alleged that engine is defective and the defects are due to manufacturing defect, that as per the terms and conditions of the policy the 3rd opposite party is not liable to indemnify the complainant for any manufacturing defect as the same is outside the purview of the policy issued to the complainant. Hence 3rd opposite party prayed for dismissal of the complaint with compensatory cost. 5. The points that arise for consideration are: Whether there is any defect in the Matador Diesel Engine? Whether the defects, if any, are repairable? Whether complainant is entitled for a replacement of the engine? Whether complainant is entitled to compensation, if so, at what amount? Whether complainant is entitled to get cost?
In support of the complaint, complainant has filed affidavit and Exts. P1 to P14 were marked and new Commission Report was marked as Ext. C2. Both the complainant and the commissioner have been cross examined by the opposite parties. Insurance Surveyor has been examined as PW2. In rebuttal, the Service Engineer of the 1st opposite party has been examined as DW1 and Assistant Administrative Officer of the 3rd opposite party has been examined as DW2 and Exts. D1 to D3 were marked. 6. Points (i) to (v): Admittedly, complainant purchased one Matador Diesel Engine manufactured by the 1st opposite party from the 2nd opposite party vide bill No. 59 dated 1/1/1998. Ext. P1 is the copy of invoice dated 1/1/98 issued by the 2nd opposite party in the name of the complainant – S. Chandra Babu. The specific case of the complainant is that the engine oil was leaking profusely from the cylinder block and there was a hair line crack on the cylinder block, 2nd opposite party knew the said crack and had applied M.seal on that particular place to cover it and defect occurred to the engine is a manufacturing defect and the same can be cured only by replacement of the engine. As per the direction of the appellate Commission this Forum appointed an expert commission and expert commission filed report which was marked as Ext. C2. According to the expert commission as per the Manual, the warranty of the engine is up to 15000 kms or up to 6 months which ever occurs first. In Ext. C2 he has reported that engine oil checked with dipstick, indicated minimum oil level, condition of oil OK. No battery was available in the car. V belt connections to Dynamo, Radiator etc were found dismantled. Hence engine could not start. The vehicle was not in running condition. Hence test run could not conduct. Commissioner has also reported that a welding joint was found on outside portion of oil gallery line of the engine, above centre oil dummy plug, length of the welded portion is about 30 mm, location of welding is about 25 mm above the centre dummy plug, there was no oil pressure pipe line connected to oil pressure guage fitted on the dash board. It is stated in Ext. C2 that the complainant informed that the welding was done due to oil leak through the crack developed on the engine body and the welding was done at M/s. George Engineering Work on 22/10/1998. According to the commission if there is any crack on the oil gallery line, oil leak will increase when temperature of engine is going up. This is due to (i) when oil temperature increases, the viscosity of oil decreases (ie oil becomes thin), leading to more oil leak (ii) cracks also expand when temperature increases, leading to more oil leak. It is further stated in Ext. C2 that complainant informed that the car way lying in M/s. Alex Motors for last 6 months. Commissioner inspected the vehicle on 5th April 2005. Complainant purchased the Metador Diesel Engine on 1/1/1998. The vehicle was registered on 15/06/1981 and converted as a diesel vehicle and the date of conversion is noted in the RC book as 19/1/1998. Commissioner also reported that road tax had been paid up to 30/9/2006. Insurance policy is valid up to 17/1/2006. Commissioner has noted that crack on the cylinder block of the engine is a major complaint. According to him now it is welded. Welding is not a fool proof method. Cracks may develop in future. Hence his opinion it is better to replace the cylinder block of the engine or the whole diesel engine assembly. According to commission the engine is properly mounted on the chasis of the car. The crack developed on the cylinder block is not because of improper mounting of the engine on the chasis. Hair line crack on the cylinder block is a manufacturing defect (casting defect). The commission says the crack is not visible due to welding done on it. Opposite party filed objection to commission report stating that the welding in the cylinder block was done on 22/10/1998 by the complainant through M/s. George Engineering Works which is reported in the commission report also. According to opposite parties the expert commission failed to report in para 14 of the report that how it happened to be welded near the centre dummy plug portion which is sealed at the time of delivery of the engine. Further Commissioner also failed to note whether any oil pressure switch was fitted in the block which is an original fitment attached to the engine. Opposite parties challenged the commission report stating that commissioner prepared the report on speculation. Commissioner has been cross examined by the opposite parties. In his cross examination he has deposed that: വര്ക്ഷോപ്പില് കിടന്ന 6 മാസത്തിന് മുന്പ് 6 വര്ഷമായി ഓടുന്ന വണ്ടിയായിരുന്നു.. 5/5/98-ല് വണ്ടി 3957km ഓടിയിരുന്നു.. അന്ന് വാഹനത്തിന് eengine block -ന് കേടുള്ളതായി രേഖയൊന്നും വാദി കാണിച്ചില്ല.. സാധാരണ എന്തെങ്കിലും ddefect engine -ന് ഉണ്ടെങ്കില് 4000 km - നുള്ളില് ddevelop ചെയ്യണ്ടേ ? (Q) വേണമെന്നില്ല . (A). He has further deposed that oil pressure guage is not oil filter and oil pressure guage is not a must. In his cross examination he has admitted that welding was found above the middle oil dummy plug and welding was done by M/s. George Engineering. He has further deposed that welding is a temporary measure to crack. 22/10/98- മുതല് October 2004 – വരെ ഈ കാര് കുഴപ്പമില്ലാതെ ഓടിയിരുന്നു എന്നു പറയുന്നു ? (Q) എനിക്കറിയില്ല. . (A) വാഹനം ഏതെങ്കിലും wworkshop-ല് പണി ചെയ്തതായി രേഖയൊന്നും കാണിച്ചില്ല. . മറ്റു workshop-ല് പണി ചെയ്താല് warranty കിട്ടില്ല എന്ന് manuel -ല് പറഞ്ഞിട്ടില്ലേ ? (Q) ഉണ്ട് (A). In his cross examination commissioner has deposed that normally cylinder will be welded when cracks comes. Oil leak ഉണ്ടോ എന്ന് പരിശോധിച്ചില്ല. . Crack - ഉം കണ്ടില്ല . Crack കാണാത്തതിനാല് അത് എന്തുകൊണ്ട് ഉണ്ടായി എന്ന്അന്വേഷിച്ചില്ല . Hair line crack എന്നത് വാദി പറഞ്ഞ പ്രകാരം എഴുതിയതാണോ ? (Q) അതെ. Expertise ഇല്ലാത്ത workshop – ല് oil pressure guage ഘടിപ്പിച്ചതില് ഉണ്ടായതാണ് crack എന്ന് പറഞ്ഞാല് ശരിയാണോ ? (Q) എനിക്കറിയില്ല (A) ആ point- ല് അല്ല crack. As per Ext. D1 Matador Engine Service Coupon Book (which is seen as Ext.P3). (i) "that the engine should have been purchased and the fitment for conversion done at any of our authorised dealers workshop only. Otherwise the warranty becomes null and void and (ii) all the three services should have been promptly availed in order that the warranty is valid. The services should have been availed at any of our autorised dealers workshops only". As per clause 4 of the terms and conditions of Ext.D1 "the warranty is valid only in case the engine has been fitted on the customer’s vehicle at our authorised dealer’s workshop. In case the engine is purchased from the dealer but fitted by an unauthorised workshop, then the company cannot accept any responsibility whatsoever, for the satisfactory performance of the engine and in such events no warranty is offered. In this context, it is pertinent to point out that complainant purchased the aforesaid engine from the 2nd opposite party on 1/1/98, complainant himself admits the said engine was fitted by M/s. Alex Motors. Complainant approached the 2nd opposite party only on 5/5/98 for oil change. No such crack was seen reported by the complainant to the 2nd opposite party on 5/5/98. It was the specific case of the opposite party that there was no complaint whatsoever regarding the excessive oil consumption reported by the complainant. Complainant did not produce any document to show that he was lodged any complaint regarding the same to the opposite party and opposite party refused to repair it. Since complainant has fitted the aforesaid engine not in the authorised workshop of the opposite party he cannot claim any warranty benefit offered by the opposite party. Commissioner himself deposed that he never saw the cylinder crack, tha he mentioned hair line crack in the Report as informed by the complainant. The onus is on the part of the complainant to establish that the crack was developed within the period of warranty and the said engine was fitted in the vehicle by the authorised workshop of the 1st opposite party. Complainant failed to establish the same. In view of the foregoing discussions and evidence available on record we find there is nothing to attribute any deficiency on the part of the opposite party. 3rd opposite party is an unnecessary party in this case, since the allegation raised by the complainant is a manufacturing defect. In view of the above, we find complaint has no merit at all which deserves to be dismissed.
In the result, complaint is dismissed. Both parties shall bear and suffer their respective costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 15th day of March, 2010. G. SIVAPRASAD, PRESIDENT. BEENA KUMARI. A : MEMBER S.K. SREELA : MEMBER ad.
O.P.No. 652/1998 APPENDIX I. Complainant’s witness: PW1 : S. Chandra Babu PW2 : M. Muraleedharan Nair II.Complainant’s documents: P1 : Copy of invoice cum delivery chalan dated 1/1/98 P2 : Copy of certificate cum-policy schedule dated 16/1/98 P3 : Copy of Tempo Matador Engine D-301 E1 Service coupon Book Brochure of Bajaj Temp Ltd. P4 : Copy of permit in respect of a contract carriage P5 series : Copy of 10 cash bill of petrol/diesel P6 : Copy of cash receipt dated 5/5/98 P7 : Copy of cash receipt dt. 5/5/98 P8 : Copy of advocate notice dated 20/8/98 P9 : 3 acknowledgment cards P10 : Copy of letter dated 6/9/98 P11 : Copy of advocate’s notice dated 24/8/98 P12 : Copy of letter dated 28/9/98 P13 : Cash bill dated 14/1/98 P14 : Copy of technical report of the vehicle dt. 20/10/98
III. Opposite parties’ witness:
DW1 : Gunasekharan DW2 : Mathew Abraham
IV. Opposite paraties’ documents:
D1 : Copy of Bajaj Tempo Ltd Matador Engine D 301 E2 Service Coupon book – Brochure D2 : Copy of job card dt. 5/5/98 D3 : Copy of Oriental Insurance Co. Ltd commercial vehicle ’B’ policy brochure
V. Court witness: CW1 : Thomas A. Vadakkan
VI. Court Exts. C1 : Commission Report submitted by R.S. Sreenath C2 : Commission Report submitted by Thimas A. Vadakkan
PRESIDENT
ad.
| | [HONABLE MR. JUSTICE President] President[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[ Smt. Beena Kumari. A] Member | | 
