<br /> <br /> By ADV. RAVI SUSHA, MEMBER.<br /> <br /> <br /> The complaint is filed by the complainant under section 12 of the Consumer Protection Act 1965.<br /> <br /> <br /> The averments in the complaint can be briefly summarized as follows:<br /> <br /> The complainant is an ex-service man. He was a driver in the Indian Armed Forces. On 23.1.2004, the complainant purchased an Ambassador tourist taxi car bearing Reg.No.KL4/M 9804 from its registered owner Mr. Mathunni Samuel, Kochukaleekkal Veedu, Mavelikkara for his livelihood. The vehicle was warranted from all kind of manufacturing defects including defective workmanship/defective material for a period of 12 months from the date of delivery or completion of 16000 kms which ever is earlier. The vehicle was delivered to the registered owner on 16.7.2003. It was sold and serviced by the opp.party being the authorized dealer of Hindustan Motors at Kollam. While so, the complainant notice an unusual sound in the engine while starting the car. Accordingly the vehicle was brought to the opp.party on 25.3.2003 for inspection and repairs. The technicians of the opp.party dismantled the engine and inspected damage to the piston Nos.1 & 3. They advised replacement of faulty pistons and directed to complainant to remit Rs.4,000/- forthwith by way of advance payment for causing the repairs. The defect notice in the engine is a manufacturing defect and it was discovered within the warranty period. The vehicle was done only 14,103 kilometers as on date. Therefore, the opp.party was legally bound to replace the faulty pistons in compliance with the warranty assured. But the opp.party did adhere to the plea of the complainant holding that, the damage was due to misuse of vehicle and the repairs shall be carried out only after remitting the advance payment. Since the complainant had no other go, he was constrained to remit Rs.4,000/- on 26.3.2004. Thereafter, the vehicle was repaired and delivered to the complainant on 2.4.2004 after collecting the balance Rs.8,281.55 and a spare part worth Rs.85.15 purchased at the expense of the complainant. The opp.party accordingly failed to extend the warranty coverage to the vehicle and thereby committed deficiency in service to the complainant. Hence the complaint. <br /> <br /> The opp.party filed version contending ,interalia , the complaint is not maintainable either in low on or facts. The vehicle was brought to the opp.parties authorized workshop namely Marikar Industries complainant abnormal sound is true. But on dismantling the engine by the opp.parties authorized workshop people it was found that there was misuse of the vehicle. They were convinced of the fact that 1and 3rd piston were ceased due to over heating and such a misshape had been occurred due to the running of engine without coolent/water in the cooling system for a long time as per the manufactures warranty policy Sl.No.4 [g] the warranty shall not apply to any components and or assembly which has been subjected to misuse negligence or accident. In the said circumstances the opp.parties authorized workshop were not in a position to extent the warranty protection. In the said circumstances the opp.party was unable to carryout the repairs of the vehicle in question at free of cost and hence it can be safely concluded that as a dealer this opp.party has not committed any unfair trade practice or deficiency in service. Hence the opp.party prays to dismiss the complaint.<br /> <br /> <br /> The points that would arise for consideration are:<br /> <br /> <br /> 1. Whether there is any unfair trade practice or deficiency in service committed by the opp.party.<br /> 2. Reliefs. And cost.<br /> <br /> <br /> For the complainant PW.1 and PW.2 are examined and Marked Ext.P1 to P9 <br /> <br /> For the opp.party DW.1 is examined and marked Ext.D1.<br /> <br /> <br /> Points 1 and 2<br /> The complainant brought the vehicle to the opp.party on 25.3.2003 for inspection and repairs with a complaint of unusual sound in the engine while starting the vehicle. According to the complainant the defect noticed in the engine is a manufacturing defect and it was discovered within the warranty period. But the vehicle was repaired and delivered to the<br /> complainant after collecting Rs.12366.70. Accordingly the opp.party failed to extend the warranty coverage to the vehicle and thereby committed deficiency in service to the complainant. Hence filed this complaint for getting relief.<br /> Opp.party’s contended that the engine was run without coolant/water in the cooling system for a long time. As per warranty condition No.4[O] the opp.party are in a position to extent the warranty protection.. Complainant’s main pleading is that the vehicle was suffering from manufacturing defects within the warranty and the vehicle was brought to the opp.parties workshop for the first time after running 14103 k.m. It may be seen that when the complainant comes forward with the case that the vehicle suffers from manufacturing defect, it may be noticed that there is no report or opinion of any automobile engineer or qualified/authorized repairer to certify that the vehicle suffered from manufacturing defect of a particular type. Here the complainant has examined PW.2 who is an automobile Technician. He is an expert witness but from his evidence it is seen that he never inspected the disputed vehicle and also not know, how the piston in the vehicle were got damaged. Hence the evidence given by PW.2 cannot be taken into account. Thus as far as manufacturing defect in the vehicle is concerned , except the loanwords of the complainant, there is absolutely nothing on record. It was for the complainant to adduce such evidence which would corroborate the say of the complainant regarding the vehicle having manufacturing defect. According to the opp.party the piston were ceased due to over heating and such a condition had been occurred due to the running of engine without coolant/water in the cooling system for a long time. According to them as per the manufacture’s warranty policy <br /> condition No.4[g] Ext.P6, the warranty shall not apply to any components and or assembly which has been subjected to misuse, negligence or accident. In the said circumstances the opp.party was not in a position to carryout the repairs of the vehicle in question at free of cost. Here the complainant failed to prove that the vehicle was suffering from manufacturing defect. Even assuming that the complainant proved the manufacturing defect of the vehicle, dealer cannot be held liable for manufacturing defect. The complainant in this case claims the warranty protection offered by the manufacturer, he has avoided such a necessary party from the party array of this complaint.<br /> <br /> <br /> In the result the complaint fails and the same is dismissed. No costs.<br /> <br /> <br /> Dated this the 20th day of May, 2008.<br /> <br /> <br /> I N D E X<br /> <br /> List o witnesses for the complainant<br /> PW.1. - K.I. Isaac<br /> PW.2. – Sam Daniel<br /> <br /> List of documents for the complainant<br /> P1. – Copy of Advocate notice.<br /> P2. – Acknowledglement card.<br /> P3. – Bills<br /> P4. – Agreement of sale.<br /> P5. – Sale certificate<br /> P6. – Warranty card<br /> P7. – Certificate<br /> P8. – Driving license<br /> P9. – Foreign Authority Driving license<br /> <br /> List of witnesses for the opp.party<br /> DW.1. – Ramesh<br /> <br /> List of documents for the opp.party<br /> D1. – Letter issued by the workshop manager, Marikkar Industries to the opp.party. <br /> <br />