1.                     The brief history of the case of the complainant is that he purchased a TVS Phoenix (125 CC) motorcycle from OP No.1 on 07.04.2014 vide Chassis No.MD625SF44DIF79523 & Engine No.CF4FD1078606 for Rs.51, 300/- and in spite of careful driving the complainant found after few days that the vehicle develops abnormal noise and does not work appropriately to its standard as claimed by the Ops.  It is submitted that the fact was brought to the knowledge of OP.1 who assured that it can be removed at the time of first maintenance and on 05.6.14 the vehicle was produced for 1^st servicing before OP.1 with complaint abnormal sound and mileage.  The OP.1 inspected the vehicle and advised that the defects would be removed after 3000 Kms run.  The complainant submitted that after transfer of his job to Jeypore, he produced the vehicle before OP.2 on 05.9.14 for 2^nd servicing and repeated his grievance as the engine sound grew day by day.  2^nd and 3^rd service also was done with OP.2.  As no steps taken, the complainant contacted the officials of OP.3 but they were adopting delay tactics.  It is further submitted that the complainant sent email to Service Support Team on 10.2.15 and as per advice of one Mr. Krishna Singh of OP.3 the vehicle was produced before OP.2 on 12.2.15 for repair but after repair the complainant found no improvement in its earlier condition.  Hence on 14.3.15 the complainant sent another email to OP.3 but did not get any cooperation from the Ops.  On 19.3.15 the vehicle was also produced before OP.2 to rectify the defect but in vain.  Thus alleging manufacturing defect in the vehicle and deficiency in service on the part of the Ops, the complainant has filed this case praying the forum to direct the Ops to replace the vehicle with a new one or refund its cost and to pay Rs.99, 000/- towards compensation for mental agony and harassment to the complainant in the interest of justice.

2.                     Neither OP.1 nor OP No.3 in spite of valid notice preferred to file counter or participated in the proceeding in any manner.  The OP.2 filed counter denying the allegations of the complainant but admitted about purchase of the alleged vehicle by the complainant from OP.1 on 07.4.14.  The OP submitted that the complainant purchased the vehicle from OP.1 and availed 1^st service there.  Here at Jeypore the complainant has availed service of the vehicle on 05.9.14 and 22.12.14.  On the first occasion, there was no complaint whatsoever in respect of the vehicle but on 22.12.14 the complainant made complaint of engine sound which was rectified.  It is further submitted that on 12.2.15 the complainant produced the vehicle with tappet and chain sound from the engine and the defects were removed by OP.2 and the complainant was satisfied with the service.  It is also further submitted that after a month or so the complainant again brought the vehicle with some complaint stating that sound has reappeared and the same was rectified successfully.  Thus denying any fault on its part, the OP prayed to dismiss the case of the complainant.

3.                     The complainant has filed certain documents along with affidavit in support of his case. The OP.2 filed affidavit.  Heard from the parties through their respective A/Rs and perused the materials available on record.

4.                     In this case purchase of TVS Phoenix (125 CC) motorcycle from OP No.1 on 07.4.14 for Rs.51, 300/- which is manufactured by OP.3 is an admitted fact.  It is the case of the complainant that after few days of its use the complainant found abnormal sound in the motorcycle and on complaint, the OP.1 stated that the defect will be removed during 1^st service.  During 1^st service on 05.6.14 the technician of OP.1 stated that after 3000 Kms runs the defect will be cured.

5.                     In absence of counter and participation of OP.1 in this proceeding, the above allegations of the complainant remained unchallenged.  If a complaint comes to the knowledge of OP.1 in case of a new motorcycle, it was the duty of OP.1 to rectify the defect immediately.  In the worst case, the defect should have been removed during 1^st service on 05.6.2014 itself.  On both the occasions, the OP.1 failed to rectify the defect.  Hence it became clear that due to such inaction of OP.1, the defects could not be cured which in our opinion amounts to deficiency in service on the part of OP.1.

6.                     It is seen that the complainant has shifted its establishment to Jeypore and has availed 2^nd and 3^rd free service on 05.09.14 and 22.12.14 respectively from OP.2 who is the authorised dealer of TVS Motor.  The complainant stated that on 05.9.14 he repeated his grievance before OP.2 regarding unusual sound coming out of the engine but the OP.2 stated in his counter that there was no complaint whatsoever in respect of the vehicle but on 22.12.14 he complained engine sound for which a small part was changed and the noise stopped.  The complainant has alleged that on 2^nd servicing his complaint of engine sound was not recorded by the OP.2.  During 3^rd free service the OP.2 replaced some engine components to remove the noise but the defect could not be rectified.

7.                     It is seen from the record that the complainant has sent mail to Service Support Team of OP.3 on 10.2.15 and on this one Mr. Krishna Singh, TMS advised the complainant to handover the vehicle to one Mr. Rath of OP No.2 on 12.2.15.  According to the complainant the vehicle was handed over to Mr. Rath on 12.2.15 and after repair the complainant found no improvement in its earlier condition for which on 26.2.15 the complainant sent another email but the problem could not be solved.  Again the complainant has sent email to OP.3 on 14.3.15 but no support was extended by Ops.2 & 3.  On 19.3.15 the complainant has also took his vehicle to OP.2 for noise problem but the vehicle was casually checked on charge in cash.  All the email copies are available on record.

8.                     From the above discussions it was clearly ascertained that the OP.1 sold the vehicle to the complainant on consideration but complaint of odd noise in the engine was not properly redressed during 1^st service and also before that.  The OP.2 though not in 2^nd free service but during 3^rd free service on 22.12.14 admitted that there was a complaint of abnormal sound in the engine and low mileage by the complainant.  The OP.2 also could not remove the defects in spite of efforts after replacement of some engine components.  The complainant has also sent 3 emails to OP.3.  On his email dt.10.2.15 and as per the advice of TMS of OP.3, the vehicle was attended by OP.2 on 12.2.15 but the defects could not be removed for which subsequent other two emails have been sent to OP.3 but there was no response from OP.3 being the manufacturer.  As such it was clearly evident that the complainant had lodged complaints regarding noise from the engine at all available opportunities but in spite of efforts by OP.2, the defects could not be removed.

9.                     The OP.3 being the manufacturer of the vehicle and having sufficient knowledge about the defects in the vehicle has not extended proper and appropriate service to the vehicle.  Further this Forum also lost opportunity to hear anything from the OP.1 & 3.  The motorcycle sold to the complainant should be free from defects and services must be carried out with care and skill and the above conditions are the part of every contract between the buyer and seller but in this case by not selling defect free vehicle and also by not rectifying the defects, the Ops have violated the contract which was made with the complainant.  This inaction certainly amounts to unfair trade practice and deficiency in service on the part of Ops.1 & 3.

10.                   From the above discussions, it was ascertained that the defect in the engine and low mileage of the vehicle could not be improved by the Ops in spite of efforts and hence it can be easily concluded that the vehicle sold to the complainant is having some inherent manufacturing defects which could not be rectified by the Ops for which the complainant is suffering with a defective vehicle purchased from OP.1 and manufactured by OP.3.  In this manner the complainant should not suffer more at the hands of Ops and he is entitled for a new vehicle of same brand and model in lieu of defective vehicle.  The complainant with this defective vehicle has been suffering soon after the purchase of the vehicle which is very much clear from the nature of this case and for such inactions of the Ops the complainant has come up with this case incurring some expenditure for which he is entitled for some compensation and costs.  Considering the quantum of sufferings we feel a sum of Rs. 3000/- towards compensation and costs in favour of the complainant will meet the ends of justice.

11.                   Hence ordered that the complaint petition is allowed in part and the Ops. 1 & 3 being jointly and severally liable are directed to supply a new TVS Phoenix (125 CC) vehicle of same brand and model in lieu of defective vehicle and to pay Rs.3000/-   towards compensation and costs to the complainant at Jeypore within 30 days from the date of communication of this order failing which the compensation amount shall bear interest @ 12% p.a. from the date of this order.  No orders against OP.2.

(to dict.)