ORDER.

By Sri. Jose V. Thannikodep President:

The Complaint filed against the Opposite parties to get replace the vehicle with new one or to get the value of the vehicle and cost and compensation due to the defect and Complaint of the vehicle which is supplied by the Opposite Parties.

2. The complainant has booked a Maruthi Omni LPG vehicle on 07.08.2007 at the office of the 2nd opposite party by paying an amount of Rs.30,000/- as advance amount. The 2nd opposite party has issued a temporary cash receipt for the same. Subsequently the opposite parties have delivered the vehicle on 23.08.2007 vide payment of the total amount of Rs.2,58,496.75 (rupees two lakh fifty eight thousand four hundred ninety six and seventy five paise only) including the insurance premium collected by the opposite parties. The vehicle bearing engine No.F8BIN 3808 778 Chaisis No.MA 3E VB II 300860800 was delivered from the office of the 2 opposite party. The vehicle was registered by the RTO Wayanad as KL 12 D-40.

3. It is submitted that the vehicle had shown some starting trouble on 23.08.2007 itself while it was delivered and which was attended by the technicians from the 2^nd opposite party. The vehicle was started and again it was stopped at Chungam at Bathery town on the same day. The vehicle was again started by the technicians and the complainant taken the vehicle to his home. Thereafter also the vehicle shown the same complaint continuously. When it was informed that the technicians from the opposite party would take the vehicle to the work shop at Calicut for rectification of the defect of starting trouble and cutting off the engine while running. The vehicle was taken by the technicians of the opposite parties to the Calicut Servicing Centre from the house of the complainant before the vehicle below run 5000 km.

4 .It is submitted that the opposite party could not rectify the starting trouble as well as defect of cutting off the engine while it is being driven. The vehicle was taken many times to the workshop run by the l opposite party. The details with regard to the dates etc. are available with the opposite parties. The vehicle was taken to the opposite parties on 27.01.2012, 17.06.2012 and 06.08.2012. Then the vehicle was taken to Indus Automobiles, Kakkavayal on 13.08.2012 and 27.08.2012 since the opposite parties were unable to rectify the technical snag. But the problem still persisted. Again on 22.12.2012 the vehicle was taken to Calicut and on the way the engine stopped functioning at Kainatty near Kalpetta. The complainant has called the techinicians from Indus Motors and they have started it. A sum of Rs.300/- was charged by them for rectification. But again the engine stopped functioning at Kunnamangalam, Karanthur, Mayanadu, Medical College junction, Pottammal, Mavoor Road Junction and near MIMS Hospital also. The vehicle was restarted by pushing on all these occasions by the local people. Then the vehicle was taken to the service centre of the 1st opposite party on 22.12.2012. The opposite party was unable to rectify the defects till now. Since the vehicle delivered by the opposite party to the complainant is having manufacturing defect, the opposite party is legally liable to replace the vehicle or to return the amount collected from the complainant with interest and damages. The complainant could not use the vehicle peacefully or without fear since it may stop on the middle of the road any time. The complainant could use the vehicle only near to his home since he was afraid to take the vehicle on a long trip. The vehicle has run only 22317 km so far. The inconvenience caused to the complainant by delivering a technically defective vehicle by the opposite parties have to be compensated by them. The complainant was forced to take the vehicle many times to Calicut and other workshop just because the opposite party has supplied a defective vehicle. The opposite party is liable to compensate for the mental agony undergone by the complainant while driving the vehicle. The complainant had informed the manufacturer also about the defect many times when they requested the feed back after the delivery of the vehicle.

5. It is submitted that the technicians of the opposite party has admitted that the defect of the vehicle could not be rectified since it has got manufacturing defect. The defect of the vehicle is a result of poor workmanship for which the complainant has suffered loss and damage. The complainant has caused to send a lawyer notice on 03.01.2013 to the 1st opposite party demanding replacement of the vehicle within 7 days of receipt of the notice. But the opposite party has not replaced the vehicle nor send any reply to the notice. The vehicle entrusted to the 1st opposite party on 22.12.2012 is still with them since they are unable to rectify the vehicle. Hence the complainant is convinced that the opposite party is unable to rectify the manufacturing defect.

6. It is submitted that there is deficiency of service on the part of the opposite parties by supplying a defective Maruthi Motor vehicle OMNI LPG Car to the complainant. The complainant further submitted that he is legally entitled for the replacement of a new Maruthi Motor vehicle OMNI LPG Car or to get refund of the entire amount collected towards the price of the car.

7. It is therefore prayed that this Hon'ble Forum may be pleased to pass an order directing the opposite parties to replace the defective Car with a new one or direct the opposite party to refund the amount with interest at 12% per annum and to pay a sum of Rs.25,000/- (rupees twenty five thousand only) as compensation for the mental agony caused to complainant and to pay a sum of Rs. 25,000/- (Rupees twenty five thousand only) as damages to the complainant and to pay a cost of Rs.15,000/- (Rupees fifteen thousand) only to the complainant.

8. Notice were served to Opposite Parties and Opposite Parties No.1 to 3 entered appearance and 1^st and 2^nd Opposite Party filed version stating that the entire averments in the above complaint except those which are expressly admitted hereunder are false and baseless and denied by these opposite parties. The above complaint is not maintainable either on law or on facts. The complaint is filed only on an experimental basis and the same is liable to be dismissed with the cost of these opposite parties. Since the allegation in the complaint shows there is alleged manufacturing defect of the vehicle in question, the above complaint without adding the Maruti Suzuki Ltd, as the party array is bad for non jointer of necessary party and is liable to be dismissed on that score also. Further the complainant also alleges that he had conducted the repairing of the vehicle from Indus automobiles Kakkavayal on 13.8.2012 and 27.8.2012, hence the Indus auto mobile also is a necessary party for the above complaint and without adding them, the complaint suffers a defect of non jointer of necessary party and liable to be dismissed on that score also..

9. The averments in para 3 of the complaint, that the complainant have booked a Maruti Omni LPG vehicle on 7.8.2007 at the office of the second opposite party by paying an amount of Rs 30,000/- as advance amount is true and admitted by these opposite parties. It is also true that the 2d opposite party had issued a receipt for the same. The further averment in para 3 of the complaint are also true and admitted by these opposite parties.

10. The entire averments in para 4 of the complaint are absolutely false and baseless and denied by these opposite Parties. The averment that the vehicle had developed some starting trouble on 23.8.2007, while it was delivered and the same was attended by the technicians of the 2nd opposite party and the vehicle was started and the same was stopped again at chungam Sulthan Bathery town on the very same day, etc are absolutely false and baseless. The further averment that the vehicle was again started by the technicians and the complainant was informed that, the technicians from the opposite party would take the vehicle to the work shop at Calicut for the rectification of the defect of the alleged starting trouble and alleged cutting off the engine while running, is also false and baseless and denied by these opposite parties. The further averments that the vehicle was taken by the technicians from the opposite parties to the Calicüt Servicing Centre from the house of the complainant before the vehicle was run 5000 Km are also false and baseless and denied by this opposite parties.

11. The entire averments in para 5 of the complaint are absolutely false and baseless and denied by these opposite parties. The averment that the opposite party could not rectify the alleged Starting trouble as well as the alleged cutting off the engine, while it is being driven etc, are absolutely false and baseless and denied by these opposite parties. The averment that the vehicle was taken many times to the work shop run by the first opposite party is also false and baseless. The averment that the details with regarding to the dates etc are available with the opposite parties are also false and baseless and denied by these opposite parties. The further averment that the vehicle was taken to opposite parties on 27.01.2012, 17.06.2012 and 6.08.2012 is true and admitted by this opposite party. But it is more correct to say that the complainant had brought the vehicle to the 1st opposite party on the above days for normal periodical service on 27.1.2012 and for free check up on 17.6.2012. Further the vehicle was brought on 6.8.2012 to this opposite party, complaining engine missing and the same was rectified by the 1st opposite party by doing the engine tuning. The further averment in the above complaint that the vehicle was taken to the Indus Automobiles , Kakkavayal on 13.08.2012 and 27.08.2012, since these opposite parties were unable to rectify the alleged technical snag as the problem still persisted and the vehicle was again taken to Calicut on 22.12.2012 and at that time the engine stopped functioning at Kainatty near Kalpetta and the complainant called the technicians from Indus Motors Kalpetta and they started the vehicles and charged Rs 300/- for the same etc are not facts within the knowledge of these opposite parties and the same is denied by these opposite parties. The further averment that, again the engine stopped functioning at Kunnamangalam, Karanthur, Mayanadu, Medical College Junction Pottammal, Mavoor Road Junction and near MIMS and was restarted by pushing on all these occasions by the local people are also absolutely false and baseless and denied by this opposite parties. The complainant is put into strict proof of all these frivolous allegations. These opposite parties admits that the vehicle was brought to the 1st opposite party on 22.12.2012, but at the same time denies the averment that the opposite party was unable to rectify the defects till now as the same are false and baseless. The further averment that, the vehicle delivered by the opposite party is legally liable to replace the vehicle or to return the amount collected from the complainant with interest and damages etc are false and baseless and denied by this opposite party. The further averment that the complainant could not use the vehicle peacefully without fear, since it may allegedly stop on the middle of the road and the complainant could use the vehicle only near to his home since he was allegedly afraid to take the vehicle for a long trip etc, are also false and baseless and denied by these opposite parties. The averment that, the vehicle run only 22317 k.m is also not correct. The averment that the alleged inconvenience caused to the complainant by delivering an allegedly technically defective vehicle by these opposite parties have to be compensated by them, is also false and baseless and denied by these opposite parties. There is no pith and substance in the above averment as the complainant is raising such an allegation after seven years of the purchase of the vehicle. The further averment in the complaint that, the complainant was forced to take the vehicle many a times to Calicut and to other workshop just because these opposite parties has allegedly supplied a defective vehicle is not true and correct. But it is true to say that, as this opposite party is not having any service station in Wayanad District, the complainant had brought the vehicle to the 1st opposite parties workshop at Calicut for servicing the vehicle. The further averment that these opposite parties are liable to compensate the complainant for the alleged mental agony undergone by the complainant at the time of driving the vehicle and the complainant had informed the manufacturer about the defect, many times when they requested for feed back after the delivery of the vehicle etc are also utter false and same is vehemently denied by these opposite parties.

12. The entire averments in para 6 of the complaint are also false and baseless and denied by these opposite parties. The averment that the opposite party has admitted that the alleged defect of the vehicle could not be rectified, since it has got manufacturing defect and the alleged defect of the vehicle is the result of the poor workmanship for the complainant had suffered for the alleged loss etc also are false and baseless and denied by this opposite parties. It is true that the complainant had issued a lawyer notice to these opposite parties and this opposite party had send a reply lawyer notice appraising the real facts. It is also false to say that the opposite parties are unable to rectify the defect of the vehicle. This opposite party had already repaired the vehicle and the vehicle is lying in the garage of the 1st opposite party in a road worthy condition. The averment that the complainant is convinced that the opposite party is unable to rectify the alleged manufacturing defect etc are false and baseless and denied by these opposite parties.

13. The averment in Para 7 of the petition are false and baseless and denied by these opposite parties. The averment that there is deficiency in service on the part of opposite parties by supplying and allegedly defective Maruti Motor Vehicle Omni LPG car to the complainant and the complainant is legally entitled to get replacement of the new Maruti Motor vehicle OMNI LPG Car or refund of the entire amount collected towards the price of the car etc are false and baseless and denied by these opposite party. Since there is no manufacturing defect to the complainant's Car, he is not entitled to any relief sought in the petition and the complaint is filed only on an experimental basis somehow to grab money from these opposite parties.

14. These opposite party submit the true facts as follows. The Second
opposite party is the new vehicle delivery out let of the 1st opposite party. It is true that the complainant had purchased the above vehicle from the sales department of the 1st opposite party and the vehicle was delivered to the complainant through the delivery outlet at Wayanad ie the second opposite party. The purchase of the vehicle was in the year of 2007. The vehicle was covered with a warranty of two years. The complainant had also conducted the free service of the vehicle from the first opposite party and no complaint as now alleged in the complaint is reported at that time. Thereafter on 18.5.2009 the complainant brought the the vehicle to the 1^st Opposite parties service center, complaining of, starting trouble and the 1^st Opposite party after checking the complaint found that the ignition coil assembly is faulty and replaced the same and rectified the complaint. After that, on 11.8.2009 , the complainant again brought the vehicle to the 1st opposite party for a general check up since he came to Calicut and told the 1^st opposite party to conduct a general check up of the vehicle as the 1st opposite party is not having any service center at Wayanad. There the first opposite party conducted the General Check up of the vehicle and found no defect and the vehicle was delivered to the complainant on the very same date.

15. Afterward on 3.12.2009 the vehicle was again brought to the 1^st opposite parties
service center for adding engine oil flush. At this time also the 1^st opposite party had given the best service to the complainant and the vehicle was delivered to the complainant on the very same day. At this time also no defect, as alleged in the complaint is reported to the 1st opposite party. Thereafter complainant again brought the vehicle to the 1st opposite party on 9.9.2010 and this time also demanded to conduct a general check up of the vehicle and the same was done by the 1^st opposite party without levying any charge from the complainant. At this time also no starting complaint or running engine cutoff is reported to this opposite party. Thereafter the vehicle was brought in the opposite parties garage on 30.7.2011, at this time the complainant demanded to check and repair Clutch Play, Brake fluid leak, Front Bumper Fixing and also to correct the wheel alignment and wheel balancing. Accordingly the 1^st opposite party carried out the entire work demanded by the complainant and certain parts were replaced and completed the work of the vehicle on the very same day itself as the complainant was coming from a far place. It is very pertinent to note that the opposite party had taken the work of the complainant's car by giving priority to the complainant and had given him the best service. But at this time the 1st opposite party informed the complainant that the engine oil is leaking, which was not a demanded repair and also advised the complainant to correct the same before taking delivery of the vehicle. But the complainant took the delivery of the vehicle at his risk by saying some urgency. It is also the best example that the vehicle is not properly maintained by the complainant. Afterwards the complainant again brought the vehicle to the 1^st opposite party on 27.1.2012 for changing the engine oil and also for conducting the normal periodic service. At this time also no starting complaint or defects as alleged in the complaint was reported to the 1^st opposite party. At this time, the ^1st opposite party promised to give delivery of the vehicle the very next day, even then finished the same on 27.1.2012 itself and the complainant took the delivery of the vehicle on the very same day. Thereafter a free check up, which was offered to all the customers after the normal periodic service was also done to the complainant's vehicle on 17.6.2012.

16. Thereafter on 6.8.2012, the complainant brought the vehicle to the 1st opposite parties service center complaining engine missing while the vehicle was moving. It is for the first time ever since 18.5.2009, the complainant had reported such a complaint to the 1^st opposite party and the 1^st opposite party after check up adjusted the engine tuning the alleged complaint got rectified. There also the 1^st opposite party had not levied any repairing charges for rectifying the complaint, since it was a minor work. It is also very pertinent to note that earlier on 18.5.2009 when the complainant reported starting trouble, the vehicle has run only 10821 k.m and it is after the lapse 3 to 4 years the complainant is reporting the complaint of engine missing, which clearly shows that the complainant has used the vehicle for these period without any defect and the averment in the compliant that, the vehicle was suffering from the alleged complaint from the date of its purchase do not have any factual or legal value and is utter falsehood. It is also submitted that, even as per the allegations in the complaint the complainant had handed over the vehicle to so many other workshops other than the authorized workshops for conducting repairs and this opposite party is not able to comment upon such repairs and its quality.

17. Thereafter, the vehicle was brought to the 1st opposite party on 22.12.2012 complaining the engine missing and at this time the complainant, who was in a hurry left the vehicle with the opposite party, without proper Instruction and only demanded to repair the engine missing. Thereafter the opposite party while conducting the repair of the above vehicle, received a lawyer notice from the complainant demanding replacement of the vehicle with a brand new one. The entire averments in the notice issued by the complainant are false and baseless and denied by these opposite parties. These opposite parties have sent a

reply notice to the above legal notice on 31.1.2013, appraising the real facts. It is submitted that the 1st opposite party had taken utmost care in checking the alleged complaint of the vehicle in dispute, and even had gone to the extent of consulting the expert technicians from the Maruti company and found that the ignition coil of the complainant's vehicle is replaced and the present defect have been rectified and the vehicle ready to delivery and the complainant can at take back the vehicle after paying the bill amount for repairing conducted to his vehicle. The complainant was telephonically well informed with regarding to the completion of the work and it seems that the complainant is deliberately not taking the delivery of the vehicle for the extraneous reasons best known to him. The matter being this the averment in the complaint that the vehicle was suffering from the alleged defect from the very date of its purchase is absolutely false and baseless. Without prejudice to the contentions of these opposite parties, it is humbly submitted that if such a contention of the complainant is accepted, the present complaint is hopelessly barred by limitation as the vehicle was purchased in the year of 2007. Further a Complaint alleging manufacturing defect in a product filed without adding the manufacturer as a party suffers from the defect of non joinder of necessary party and is not maintainable. Apart from all these things the complainant himself admits that the vehicle was subjected to repair from other work shop namely Indus Automobile, Indus motors etc and had not made them a party to the complaint and on that score also the complaint is bad for non-joinder of the necessary parties.

18. It is submitted that the vehicle in dispute was manufactured by the Maruti Suzuki , who is a world renowned car manufacturer, producing cars under technical collaboration of SMC Japan. There is no prudent reasoning in the complainant's allegations and till date several Lakhs of vehicles were manufactured and sold which also signifies highest grade of materials are used in the vehicle. At this juncture it is pertinent to note that all the vehicles manufactured by this opposite party are duly approved by appropriate authority of India after homologation test considering all aspects of quality ,safety ,emission norms etc. The manufacturer of the above said vehicle is an ISO certified company and is renowned for the stringent quality checks at every level of production of the above said vehicle. Further sophisticated technology, which is 100% defect free, is used for the manufacturing process of the vehicle. The vehicle in dispute has also under gone all the above checks and only then the final check ok is given by the Manufacturer before dispatching it to the dealers. The matter being this the averment in the complaint with regarding to the alleged manufacturing defect in the vehicle in dispute is absolutely false and baseless and denied by these opposite parties.

19. This opposite parties have always provided the best service to the complainant, each time when he brought the vehicle to these opposite parties for service. It is also pertinent to note that, in the complaint, no such averment of any kind of deficiency in service is alleged on the part of these opposite parties. These opposite parties had always honoured the warranty of the vehicle and conducted the repair under warranty during the warranty period. The warranty period of the vehicle is over by 25.8.2009, hence the complainant is not entitled to claim any warranty for the above said vehicle. Presently the opposite parties had finished the entire work of the complainant's vehicle and the vehicle is kept ready for delivery. The complainant can always take the delivery of his vehicle after paying the charge of the vehicle. Further it is submitted that the complainant deliberately not taking the delivery of the vehicle and the vehicle is kept idle at the premises of the 1^st opposite party and there is every possibility of getting damage of the vehicle due to its non usage. Hence the complainant is highly responsible to take back the delivery of the vehicle from the 1st opposite party's premises. The matter being this it is humbly submitted that the present complaint filed by the complainant is without any basis and is only an experimental one and the complainant is not liable to get any remedy from this Honorable Forum. The complainant is not at all entitled to get the replacement of the vehicle or to get the purchase amount of the vehicle with or without interest. Further the complainant is also not entitled to get any compensation for the mental agony or damages as shown in the petition or the cost of the above petition since the complaint is false and frivolous.

20. 3^rd Opposite Party stated in his version the The complainant has filed a frivolous and vexatious complaint on false allegations without any material on record against this opposite party (Op). The complaint is, therefore, liable to be dismissed with exemplary costs under Section 26 of The Consumer Protection Act, 1986 (herein after called "The Act" for the sake of brevity). The complainant has failed to set out any case for deficiency in service or unfair trade practice against answering Op. The liability of answering Op under the warranty which is part and parcel of the sale contract is specific as set out under the Warranty policy as enumerated in the owner's manual and service booklet. The complainant has not approached this Hon'be Forum with clean hands & suppressed several relevant facts from this Hon'ble Forum. The vehicle in question is FCOK & PDI certified on date of sale, which proves its perfect OK condition in all aspects. The warranty obligation of answering Op had concluded long time back on 22.08.2009 by efflux of time.

21. That the present complaint is without any cause of action against the opposite party. The complainant has failed to set out any specific allegation in the present complaint against this Op and has no case for deficiency in service or unfair trade practice as defined under Section 2(1)(g),(o)& (r) of the Act. It is submitted that the Apex Court in the matter of 'Maruti Suzuki India Ltd Versus Purusottam Lai (HUF) & Anr, Civil Appeal No.708 of 2007, decided on 22.07.2010 held that “the consumer can get any remedy against the appellant from the fora set up under the Act, it must establish that there is some deficiency of service by the appellant. Both the concepts 'deficiency' and 'services' have been defined under Section 2(g) and 2(o) of the Act. After going through those definitions carefully, we do not find that the complaint for alleged non-delivery vis-a-vis the appellant is covered under Sections 2(g) and 2(o) of the Act.' Similarly, the complainant has failed to place any material on record to substantiate his claim and on this ground alone the complaint deserves to dismiss in-limine.

22. That the Complainant is not a "Consumer' of this Op as defined U/s 2(1)(d)(i) of the Act. The complainant neither entered into any contract for sale of goods (car) or received any consideration nor hired any service for consideration with this OP. The vehicle in question is out of warranty period and the complaint against this Op is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed in-limine.

23. That the present complaint is hopelessly barred by limitation as prescribed U/s 24-A of the Consumer Protection Act, 1986 Act. It is submitted that as evident records, the complainant bought the vehicle in question on 23.08.2007 and the warranty of vehicle in question had concluded on 22.08.2009 by efflux of time. The Hon'ble National Commission in the matter of 'Surgichem Products (India) Pvt. Ltd. & Anr. Versus Export Credit Guarantee Corporation of India Ltd. (ECFC) & Anr. IV (2008) CPJ 270 (NC) M.S. Subramaniam versus Institute of Costs & works accountants of India, IV (2008) CPJ 188 (NC), held, "correspondence, in any way, does not extend the period of limitation".

24. The allegations made in the purported complaint are outside the scope and ambit of the allegations,as required by section 2(i)(c) of the Act to constitute a valid complaint. Therefore, the allegations made in the complaint do not constitute any consumer dispute between the complainant and opposite party and thus the same does not give jurisdiction to this Honorable Forum to entertain the present complaint against the opposite party.

25. The compensation U/s 14(1)(d) of the Act can be awarded to the complainant for any loss or injury suffered by the complainant due to the negligence of the opposite party. The complainant with malafide intentions and with an after thought has approach this Hon'ble Forum to obtain undue gains after much expiry of warranty period. That the present complaint is baseless and flagrant abuse of process of law to harass the opposite party. Lastly, the complainant is estopped from filing the present complaint by his own acts, conduct & acquiescence. The complainant has no locus standi to initiate the present proceedings and liable to be dismissed under section 26 of the Act. Without prejudice to the aforesaid preliminary legal objections to the maintainability of the complaint which this Op prays may kindly be decided first, this Op submits its reply on merits/ para wise reply:

(a). (a - b) That the contents of para 1 & 2 of the complaint are matter of records. It is submitted that the head office/ registered office of answering OP No.3 is situated at Plot No.1 Nelson Mandela Road, Vasant Kunj, New Delhi - 110070 and this Op has its manufacturing facility at Gurgaon and Manesar at Haryana.

(c). That the contents of para 3 of the complaint in so far relating to sale of vehicle from OP No.2 are matter of records and rest of the contents of the complaint are wrong and denied. It is emphatically denied that either the complainant paid alleged consideration to this Op or this Op delivered alleged vehicle to the complainant as alleged by the complainant. It is submitted that admittedly, the complainant entered into an independent contract with OP No.2 in so far relating to alleged sale of vehicle, to which this Op was not privy. It is submitted that the relationship of this Op with its authorized dealers is that of Principal-to-Principal basis and governed by Dealership agreement executed between the opposite parties. It is submitted that this Op was not privy to the alleged transaction and the complainant is not a 'consumer' of this Op. Admittedly the complainant bought the vehicle in question on 23.08.2007, hence the warranty obligation of this Op towards the vehicle in question got concluded on 22.08.2009 by efflux of time.

(d). That the contents of para 4 of the complaint as stated are wrong, incorrect, misconceived and hence denied. It is emphatically denied that the vehicle in question developed some starting trouble or cutting off the engine while running on 23.08.2007 as alleged by the complainant. The complainant is distorting facts with ulterior motive to make undue gains. It is submitted that as is evident from records the complainant purchased the vehicle on 23.08.2007 and there was no problem in the vehicle as alleged by the complainant. The complainant is put to strict proof to the same. It is submitted that there was no alleged problem in the vehicle and the performance of the vehicle is as per set standards. It is pertinent to note that the vehicles manufactured by this opposite party undergo stringent quality checks at all levels of production and the vehicles so manufactured are certified FCOK (Final Check OK) are dispatched to dealer destinations. The dealers at the time of sale to their customer's carryout final PDI (Pre-Delivery Inspection) of all vehicles ensuring the same are safe and in perfect OK roadworthy condition leaving no place for defects in vehicle. The vehicle in question was FCOK and PDI certified free from defects. It is submitted that the answering Op duly discharged its warranty obligations unequivocally as per the terms & conditions of warranty at all times whenever the vehicle was presented for services during the tenure of warranty. The complainant was/is making purposeful use of the vehicle in question and the vehicle is in defect free condition. The complainant failed to abide by warranty conditions for maintenance and check up of vehicle. There is no pith and substance in the averments as made out in this para and the instant complaint is liable to be dismissed with exemplary costs.

(e) (e- f) That the contents of para e & f of the complaint as stated are wrong, incorrect, misconceived and hence denied. It is emphatically denied that the Op could not rectify the alleged starting trouble or defect of cutting off the engine as alleged by the complainant. Here it is pertinent to submit that as evident from records, the vehicle was attended for replacement of ignition coil assembly on 18M5.2009 at 10821 kms under warranty on FOC basis. The complainant after replacements and service took the delivery of vehicle to his entire satisfaction and without any protest and demur. It is submitted that the complainant expressed his entire satisfaction at the time of carrying PSF by the workshop after few days of carrying said service. It is submitted that thereafter the complainant did not make any complaint and kept of using the vehicle. The vehicle in question was/ is in defect free and in perfect OK condition. The averments made by the complainant are speculative in nature and hold no around in the eyes of law. It is submitted that the warranty obligation of answering Op had concluded long time back on 22.09.2009 by efflux of time and the complainant with an afterthought has filed this false & frivolous case before this Hon'ble Forum. It is submitted that the complainant after the expiry of warranty period entered into an independent contract with the workshop for obtaining alleged services to which this Op was not privy. Without prejudice, it is submitted that on alleged date routine maintenance service as per periodic maintenance schedule was carried out along with carrying minor adjustments needed during use of vehicle. The vehicle was in perfect OK and defect free condition during the tenure of warranty period. It is submitted that the vehicle was attended to the entire satisfaction of the complainant after services by OP No.2 to which the complainant entered into an independent contract with the workshop. It is emphatically denied that there was any manufacturing defect in the vehicle or the complainant is entitled for alleged replacement of vehicle or refund of the amount as alleged by the complainant. It is submitted that the complainant himself has assessed manufacturing defect in the vehicle for which the complainant is neither qualified nor have any expertise to comment that too after much expiry of warranty period. It is submitted that the said warranty terms are part of sale contract and are binding on both the parties. The said primary warranty is for a period of 24 months or 40,000 kms whichever event occurs first from the date of delivery to the first owner. The said warranty is not absolute and is subject to certain terms, conditions & limitations which is part and parcel of sale contract. It is submitted that the vehicle in question was defect free and in perfect OK condition during the tenure of warranty. Admittedly, the Opposite party has discharged its obligations under warranty unequivocally during the tenure of warranty to the entire satisfaction of the complainant. It is submitted that the only obligation of Op being manufacturer in question is quite limited for replacement or repair of defective part of vehicle within warranty period only. The warranty of Op had concluded long time back upon expiry of warranty period. This Op is not responsible for the maintenance of vehicle after expiry of warranty period. It is submitted that the complainant entered into an independent contract with the workshop for obtaining alleged service to which this Op was not privity. It is submitted that there is no act of omission or commission on the part of this Op causing any loss or hardship or harassment to the complainant in any manner. It is submitted that the complainant cannot demand anything beyond the warranty obligation of answering Op [Clause 3]. The demand of the complainant in regard to alleged replacement of vehicle or refund of price of vehicle from answering OP is wrong and denied. The complainant is not entitled to receive any relief or compensation from this OP. The compensation calculated by complainant is mere his exaggerations, which proves ulterior motives and malafide intentions of complainant. It is submitted that there was any manufacturing defect in the vehicle and the complainant has misconstrued the meaning of manufacturing defect. It is submitted that the sole intention of the complainant is to obtain undue gains and has filed this false & frivolous case against the Ops. The averments made by the complainant are baseless and mere conjectures and surmises. Hence on this ground alone the instant complaint is liable to be dismissed in-limine.

(g) That the contents of para 7 of the complaint in so far relating to this Op as stated are wrong and denied. It is submitted that neither this Op rendered any services to the complainant nor this Op has supplied defective vehicle to the complainant as alleged by the complainant. It is submitted that neither this Op rendered any services to the complainant nor the complainant is entitled for alleged replacement of vehicle or refund of entire amount as alleged. It is submitted that the complainant miserably failed to make any specific allegation against this Op. It is submitted that the complainant failed to make any case of deficiency in services against this Op. The complaint has hopelessly failed to raise any claim and the present complaint is without cause of action. The present complaint is bundle of false & frivolous averments/ allegations which the complainant hopelessly failed to prove with the help of fathom, cogent, convincing & conclusive evidence during the tenure of warranty. It is submitted that the present complaint is barred by limitation and out of warranty period. The false & frivolous complaint of the complainant shows his malafide intentions and to make unjust gains and the same deserves to be dismissed with exemplary costs.

26. In the light of above mentioned Preliminary submissions/ objections & reply on merits, it is most respectfully prayed that the complaint is not entitled to any relief whatsoever and is not entitled to claim & recover anything from this Op in the light of what is stated above. The complainant is not entitled to receive any relief qua compensation from this Op. The compensation calculated by complainant is mere his exaggerations, which proves ulterior motives and malafide intentions of complainant. The complaint in question is devoid of merits and the complainant has filed a frivolous and vexatious complaint and has no case for deficiency in service or unfair trade practice against this Op. The present complaint is therefore liable to be dismissed with costs.

27. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Exts. A1 to A9 is marked and from the side of Complainant PW2 is also examined. Ext.A1 is the order booking form dated 01.08.2007, Ext.A2 is the receipt issued by the 1^st Opposite Party for Rs.30,000/- as advance paid by the Complainant dated 07.08.2007. Ext.A3 is the receipt issued by the 1^st Opposite Party for Rs.70,000/- . Ext.A4 is the customer account settlement voucher for Rs.1,55,000/- dated 23.08.2007. Ext.A5 is the Tax Invoice for Rs.1,860/- dated 22.08.2007. Ext.A6 is the receipt issued by 2^nd Opposite Party. Ext.A7 is the Job slip issued by the 1^st Opposite Party to the Complainant on 22.12.2012 for the repair of starting trouble, when the mileage is noted as 22,312 km. Ext.A8 is the letter given by the 1^st Opposite Party to the Complainant apprising their thanks for selecting the said vehicle. Ext.A9 is the lawyer notice dated 03.01.2013 issued by the Complainant's counsel to 1^st Opposite party. Ext.A9(1) is the acknowledgment card of lawyer notice and Ext.A9 is the postal receipt for sending the lawyer notice.

28. 1^st and 2^nd Opposite Parties has not adduced any oral evidence but Ext.B1 and B2 is marked. Ext.B1 series is the vehicle history wherein it can be seen that on 18.05.2009 the vehicle is repaired by Opposite Party for Coil Assy, Ignition Lucas ignition cost Assy R&R (R&R) and on 11.08.2010 the vehicle repaired on free of cost labour and on 11.08.2010 the vehicle repaid on free of cost labour and on 09.09.2010 the vehicle is entrusted with Opposite Party and job 'not done' but it is written as E FLUSH – E FLUSH and on 06.07.2011 also the vehicle repaired and on 27.01.2012 also the vehicle repaired for the reason PLUG, CB Poind and condensor as and spark plug and engine Decarbonizing and on 17.06.12 also free check up was done and on 06.08.2012 also the vehicle repaired on free of cost labour and on 17.06.2012 also the vehicle repaired and on 13.08.2012 also vehicle repaired for engine tune up and tappet adjustment and on 13.08.2012 again repaired for oil drain PLUG and on 27.08.2012 also repaired for spark PLUG BPR 5 ES and on 31.12.2012 also repaired for “Engine not starting” and on 05.02.2013 also vehicle repaired free of cost labour and on 15.03.2013 also vehicle repaired for Coil Assy Ignition. Ext.B2(a) is the Acknowledgment card which is the acknowledgment for sending the reply notice by the 1^st and 2^nd Opposite Party's lawyer notice to the Complainant's counsel. Ext.B2(b) is the reply notice to the lawyer notice of Complainant. Ext.B2(c) is the postal receipt for the same and from the side of 3^rd Opposite Party proof affidavit filed and he is examined as OPW1 and Ext.B3 to B5 is marked. Ext.B3 is the Dealership agreement by the Company, it says the dealer would sell the products and parts and would provide service to the Customers (which would include, but not be limited to, the service in terms of the warranty as per the owner's manual provided by MSIL from time to time) in a manner which promotes and maintains customer confidence and customer satisfaction on the terms and condition mutually agreed to between the parties and contained in this agreement. Ext.B4 shows the limitation where it is stated that normal maintenance service required other than the three free service, including without limitation, oil and fluid changes, headlight aiming, fastener retightening, wheel balancing, wheel alignment and tyre rotation , cleaning of injectors, adjustments of carburettor, ignition timing, clutch and valve clearance. The replacement of normal wear parts including without limitation, bulbs, battery, tyres and tubes, spark plugs, belts, hoses, filters, wiper, blades, brushes, contact points, fuses, clutch disc, brake shoes, brake pads, cable and all rubber parts ( except oil seal and glass run). Ext.B5 is the Job card issued by the 1^st Opposite Party on 18.05.2009 which shows that the vehicle entrusted to 1^st Opposite party for running repair.

29. On considering the complaint, version, affidavit and deposition and documents we raised the following issues for considerations

1. Whether it is barred by limitation?

2. Whether there is any deficiency of service from the part of Opposite parties?

3. Relief and cost.

30. Point No.1:- As per the Complainant and affidavit and in the deposition the PW1 and PW2 reveals that the starting complaint started at the very beginning itself and at the date of delivery itself two time it was stopped while running and it was repaired by the Opposite party and it was continuously repaired by the Opposite parties till 15.03.2013 and it is not disproved by the Opposite Parties. There was a direction from the Forum to Opposite Parties to produce the vehicle history from 2007 to 2013. But the Opposite parties have produced the vehicle history only from 2009 to 2013. It is just after the warranty period . It is suspecting, the Opposite Parties is a reputed firm for the last somany years, the statement of the Opposite Party that the vehicle history for the period from 2007 to 2009 is not available with them is not believable. Hence the Forum is of the opinion that the Opposite parties has purposefully not produced the document. The produced 10 documents is clearly shows the alleged complaint for the vehicle. Hence the Forum of the view that the said vehicle had the alleged complainant since delivery. Here the cause of action starts in the delivery day itself and continuous till 2013. Hence there is no question of limitation on filing the complaint in the year 2013. Hence the point No.1 is found accordingly.

31. Point No.2:- Since the Forum found that the vehicle got alleged complaint/defect since 2007 to 2013 and not rectifying the defect for somany years by the Opposite Parties is a clear deficiency of service and unfair trade practice from the side of Opposite parties. The point No.2 is found accordingly.

32. Point No.3:- Since the points No.1 and 2 is found against the 1^st and 2^nd Opposite Party they are liable to rectify the alleged defect with full satisfaction and also liable to pay compensation and cost to the Complainant and the complaint is entitled for the same.

In the result, the complaint is partly allowed and the 1^st and 2^nd Opposite parties is directed to rectify the entire defects of the said vehicle and handover to the complainant and 1^st and 2^nd Opposite parties is also directed to pay Rs.10,000/- (Rupees Ten thousand) only as compensation and Rs.3,000/- (Rupees Three thousand) only as cost of the proceedings. The 1^st and 2^nd Opposite Parties is directed to comply the order within One month from the date of receipt of this order. Thereafter the Complainant is entitled for an interest at the rate of 12% per annum and if the vehicle is not delivered within the time the Complainant is also entitled for a compensation of Rs.500/- (Rupees five hundred) only per day till the delivery of the vehicle.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 29^th day of April 2015.

Date of Filing:21.01.2013.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Pushkaran. Complainant.

PW2. Radhakrishnan. M. Teacher.

Witness for the Opposite Parties:

OPW1. Jayaprakash. Area Service Manager, Maruth Suszki

Exhibits for the complainant:

A1. Copy of Order Booking Form. dt:07.08.2007.

A2. Temporary Cash Receipt. dt:07.08.2007.

A3. Temporary Cash Receipt. dt:21.08.2007.

A4. Customer Account Settlement Voucher. dt:23.08.2007.

A5. Tax Invoice. dt:22.08.2007.

A6. Temporary Cash Receipt. dt:24.08.2007.

A7. Job Slip cum Demanded Repair Explanation Sheet. dt:22.12.12.

A8. Letter.

A9(a) Acknowledgment.

A9(b) Letter. dt:03.01.2013.

A9(c) Postal Receipt. dt:04.01.2013.

Exhibits for the opposite Parties.

B1 series. Copy of Vehicle History.

B2(a) Acknowledgment.

B2(b) Letter. dt:31.01.2013.

B2(c) Postal Receipt. dt:02.02.2013.

B3 Copy Dealership Agreement

B4. Copy of Warranty Policy.

B5. Copy of Job Card.