BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 639/2000 Filed on 13.12.2000 Dated : 31.08.2010 Complainant: Shaji. C, Erode Leksham Veedu, Kadakampally, Venpalavattom, Anayara P.O.
(By adv. G.S. Sanal Kumar) Opposite parties:
M/s LML Ltd., C-3, Panki Industrial Estate, Kanpur, U.P-208022. Kulathunkal Automobiles, LML Dealers, M.G. Road, Thiruvananthapuram.
(By adv. P. Narendran)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 16.08.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 31.07.2010, the Forum on 31.08.2010 delivered the following: ORDER SMT. S.K. SREELA, MEMBER The allegations in the complaint are the following: The complainant had purchased one LML NV SPL Scooter from the 2nd opposite party by paying an amount of Rs. 27,922/- for which the 2nd opposite party had assured 3 free services and 3 paid services. But from the very beginning within the warranty period itself, there was oil leakage and sound from the engine. Besides this, the vehicle had low mileage and pick up which was contrary to the assurance given by opposite parties 1 & 2. Hence the complainant entrusted the vehicle with the 2nd opposite party on 28.02.2000 and on 29.02.2000 the complainant was given a bill for Rs. 432.36 without curing any defects of the scooter. The complainant paid the said amount. Since the defects continued, complainant approached the 2nd opposite party several times, but the 2nd opposite party replied that the vehicle has manufacturing defect and since the warranty period is over they cannot do anything. Complainant alleges that there is unfair trade practice and deficiency in service on the part of the opposite parties 1 & 2. That the complainant had loss and sufferings due to the non-curing of the defects during free service period. The defects of the vehicle still persist and hence this complaint has been necessitated. Opposite parties have filed their version contending as follows: The complaint is not maintainable either on facts or in law. The complaint was filed after the expiry of the warranty period, which is either the completion of 10000 kms or one year, whichever is earlier. As such the warranty expired on 21.04.2000. The complainant did the 6th service at the service station of the 2nd opposite party on 29.02.2000. Thereafter the complainant did not contact the 2nd opposite party for any further service. The opposite parties have no information as to whether the periodical services stipulated in the owner's hand book were done at any service centre authorized by the 1st opposite party. The complaint of the noise while running was reported during the second service, that is 2 months after the purchase of the scooter. This complaint was due to the reason that the Monogram fixed on the cowl was loose and this complaint was rectified immediately. As for the complaint regarding the oil leakage, the complaint was reported only on 29.02.2000, that is during the sixth service and this complaint was rectified by replacing the kick 'O' ring. As for the complaint regarding the low mileage and pick-up, no such complaint was ever reported to these opposite parties and hence the allegation regarding the assurance purportedly given by the opposite parties is totally false and hence denied. The job card No. 6695 dated 29.02.2000 signed by the complainant clearly establishes that the vehicle was taken to the service station of the 2nd opposite party only at 9.20 am on 29.02.2000 and after repairs it was delivered back on the evening of the very same day. The complainant has not noted any complaint with regard to the service provided. All the complaints stated by the complainant on 29.02.2000 were attended to, as evidenced by the job card No. 6695 dated 29.02.2000 and the complainant was fully satisfied with regard to the service provided. After 29.02.2000 the complainant neither presented his vehicle for service nor did he contact the 2nd opposite party with any grievance. The opposite parties have no information as to whether any periodical service as stipulated in the owner's hand-book was done after 29.02.2000. From the date of purchase, that is 22.04.1999, till 29.02.2000, the complainant did not raise any complaint regarding low mileage. There was no laxity on the part of these opposite parties and these opposite parties were always zealous, that the complainant had no cause for any grievance whatsoever. The issues that would arise for consideration are:- Whether the vehicle suffers from manufacturing defect? Whether the complainant is entitled for the reliefs claimed?
Both parties have filed affidavit. Complainant has been examined as PW1 and marked Exts. P1 to P6 on his side. Expert commissioner has been examined as CW1 and marked Ext. C1 on his side. Exts. D1 to D9 were marked for the opposite parties. Points (i) & (ii):- One Shaji. S is the complainant, but in all the documents the name has been recorded as Shaji. C. Anyhow, the opposite parties in their version have admitted that the complainant had purchased an LML NV SPL scooter from the opposite parties. Furthermore, the name has been corrected as Shaji. C vide order dated 26.05.2003. The opposite parties have further admitted in their version that the complaint of the noise while running has been reported during the second service and the same was rectified immediately. Second service means 2 months after the purchase of the scooter. Furthermore the opposite parties in their version admit that the complaint regarding oil leakage was reported on 29.02.2000 i.e; during the 6th service and this complaint was rectified by replacing the kick '0' ring. From the above admissions it is clear that the vehicle developed defects, within short period from the date of purchase. At this juncture, the aspect to be looked into is whether the vehicle had defects as alleged in the complaint and whether those defects come under the category of manufacturing defect. As per the report filed by the commissioner, it has been reported that oil level in the gear box was not sufficient to drive the vehicle on road. (When the oil level plug was removed, no oil found, but when oil drain plug was removed, oil came out). Then the side panels and engine cowl were removed. Heavy leak of fuel-air mixture observed at (i) between cylinder and cylinder head and (ii) between exhaust manifold and silencer pipe. Gear box oil leak indications were noted at various joints. Gaskets/O Rings/Oil Seals need replacement. The commissioner has further reported that abnormal noise was observed from the engine especially from piston rings. Other reasons for the abnormal noise may be due to defective bearings, lack of lubrication etc. This can be ascertained by dismantling the power pack. Then road test was conducted for approximately 2 kms. The following observations were noted. (i) The pickup was found poor. One major reason is the leakage of fuel air mixture from cylinder. Another reason is silencer/silencer pipe choked with carbon. (ii) Clutch was not functioning properly. This may be due to worn out clutch plates or lack of oil in the gear box. (iii) Front brake was not functioning. (iv) Rear brake function was not adequate for safe riding. The commissioner reports that the mileage test was not conducted due to the following reasons. (i) Due to points noted in 11 above, it is not safe to ride the vehicle for long distance. (ii) Due to heavy leak of fuel-air mixture through the cylinder head joint/exhaust manifold, proper mileage will not be attained. Finally the commissioner has concluded that the scooter cannot be used on road without a complete overhauling. While cross examination, the commissioner deposed that “ 4 service-നു ശേഷവും oil leakage-ഉം അസാധാരണമായ ശബ്ദവും ഉണ്ടെങ്കില് അത് manufacturing defect കൊണ്ടാണ്...........ഞാന് കണ്ട defect ഒക്കെ manufacturing defect ആണ്........” During cross examination, the commissioner had deposed that 'oil leakage manufacturing defect ആണ്....... Gasket leak manufacturing defect ആണ്...'. The opposite parties have contended in their version that as evidenced by the job card the complainant was fully satisfied with regard to the service provided. Merely because the complainant has signed in the job card saying that he has taken delivery of the vehicle having satisfied with the work done does not mean that the defects were rectified since the vehicle was not subjected to any road test at that time. The defects can be noticed only after using the vehicle on the road. Here the complainant could not use the vehicle defect free. The desire of a new buyer has been disappointed by the performance of the vehicle. From the very beginning the vehicle is having defects. From the above it has been proved by the complainant that the vehicle sold to him suffers from manufacturing defect. The said act of the opposite parties amount to deficiency in service. In view of the above discussions and evidence on record we hereby allow the complaint. The opposite parties shall replace the defective vehicle with a defect free new one or in the alternative take back the defective vehicle and refund Rs. 27,922/-. The opposite parties shall also pay Rs. 6,000/- towards costs and compensation. In the result, complaint is allowed. Opposite parties shall replace the defective vehicle with a defect free new one within one month from the date of receipt of the order or shall take back the defective vehicle and refund Rs. 27,922/- within one month from the date of receipt of the order along with an amount of Rs. 6,000/- towards costs and compensation. Time for compliance one month from the date of receipt of the order failing which the entire amount shall carry interest @ 9% from the date of order. 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 31st day of August 2010. S.K. SREELA : MEMBER G. SIVAPRASAD : PRESIDENT jb BEENAKUMARI. A : MEMBER
O.P. No. 639/2000 APPENDIX I COMPLAINANT'S WITNESS : PW1 - Shaji II COMPLAINANT'S DOCUMENTS : P1 - Copy of invoice/bill No. 2353 dated 22.04.1999 P2 - Copy of free service receipts P3 - Copy of advocate notice dated 25.10.2000. P4 - Copy of bills P5 - Copy of acknowledgement card P6 - Owner's Hand Book. III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : D1 - Job Card dated 10.05.1999 D2 - Job Card dated 14.06.1999 D3 - Job Card dated 14.07.1999 D4 - Job Card dated 13.09.1999 D5 - Job Card dated 29.02.2000 D6 - Job Card dated 21.12.1999. D7 - Copy of letter dated 15.11.2000 addressed to complainant. D8 - Copy of letter dated 30.11.2000 addressed to complainant. D9 - Copy of letter dated 08.01.2001 addressed to complainant.
V COURT EXHIBITS : CW1 - Thomas A. Vadakkan. C1 - Commission Report.
PRESIDENT
| | [HONORABLE MRS. Smt. Beena Kumari. A] Member[HONORABLE MR. Sri G. Sivaprasad] PRESIDENT[HONORABLE MRS. Smt. S.K.Sreela] Member | | 
