IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR, PRESIDENT

O R D E R

1. This complaint filed by Mr. P.R. Chethan s/o. P.T. Ramesh to direct the opponents to replace the new Itioa G.D car No.KA-12B-3941 and to pay a sum of Rs.30,000/- as damages and Rs.10,000/- towards cost of this proceedings.

2. The opponent No.1 is the Manager, Palace Toyota, M/s Balaji Auto Enterprises Ltd, Koorgalli Village, Mysore, opposite party no.2 M/s Toyota Kirloskar Motor Ltd., Bangalore and opponent no.3 the Manager, Palace Toyota, Madikeri.  The opponent no.2 M/s Toyota Kirloskar is manufacturer of the above car bearing registration No.KA12-B-3941 and opponent no.1 is dealer and opponent no.3 is sub dealer of opponent no.1.  The complainant has purchased above vehicle on 17/08/2016 from the opponent no.1 for Rs.7,39,489/- by availing part of the loan from Sri Ram Transport Finance, Madikeri.  It is the case of complainant that after running 25 k.m the consumption of engine oil of the said vehicle was more and engine oil was drying.  The complainant has brought to the notice of opponents and even after repair there was no improvement in consumption of engine oil.  The vehicle is under warranty period since it is having 36 months warranty period from the date of purchase.  The opposite party despite the issue of legal notice dated 31/01/2019 have failed to rectify the manufacturing defect of the vehicle, hence this complaint.

3. The opposite party no.1 and 3 appeared through their learned counsel and opposite party no.2 appeared through another learned counsel though they have filed separate written version but defence is one and the same.

4. The opponents have admitted purchase of the car from opponent nos.1 and 3 by paying necessary consideration.  The complainant has suppressed the fact of using the said vehicle as taxi. The complainant has not narrated in the complaint which is the manufacturing defect of the vehicle by specifying particular component of the vehicle.  There is no manufacturing defect in the vehicle and the complainant has use the vehicle for more than 2 ½ years and has filed false complaint alleging that there is more consumption of engine oil.  The complainant has not made out any care for replacement of the vehicle since there is no manufacturing defect.

5. The complainant filed his affidavit and in support of his case marked exhibit P1 to 7 documents.  That apart he has produced three job cards on the day of advancing arguments.  That one Smt. Shashikala w/o. Paramesh authorized signatory of the 1^st opponent filed affidavit evidence and Sri. S. Rengarajan, General Manager of opponent no.2 filed affidavit.  We heard the arguments advanced by the learned counsel for the complainant and opponents and the point that would arise for determination are as under;

1. Whether the complainant proves that the car purchased by him bearing registration No.KA-12-B-3941 is having manufacturing defect as such he is entitled for replacement of new vehicle?

2. What order?

6. Our findings on the above case is in Negative for the below ;

R E A S O N S

7. Point No.1 and 2 :- The learned counsel for the complainant Sri. K.D. Dayananda submitted that after running 25 kilometers the vehicle started consuming more engine oil.  Now the vehicle is in the custody of opponents.  Inspite of repairing the vehicle three times the opponents have failed to rectify the major defects in the vehicle.  The learned counsel for the complainant submission is that except consumption of more engine oil no other defects in the vehicle.  As against this the learned counsel for the opponents Sri. Dinesh Solanki vehemently argued that the complaint is silent with regard to running the vehicle as taxi and as on the date of complaint the vehicle has ran more than 94000 kilometers.  The complainant has not produced expert evidence with regard to manufacturing defect of the vehicle.  The learned counsel submitted that there is no averment in the complaint in respect of taking loan by the complainant for availing loan.  The complainant has not taken the vehicle for service periodically as such there may be slight more consumption of engine oil.

8. The opponents have not disputed the purchase of the said vehicle by complainant from them by paying its sale consideration.  The complainant in paragraph No.3 of the complaint mentioned that he has made down payment of Rs.50,000/- for booking the said vehicle in the office of sub dealer of opponents  i.e. opponent no.3.  The complainant has paid remaining sale consideration of Rs.7,39,489/- through NEFT to the account of opponent no.1 directly transferred by Sri Ram Transport Finance, Madikeri wherein the complainant has raised vehicle loan.  Exhibit P4 is final data sheet of Sri Ram Finance Company Limited for sanctioning loan of Rs.7,39,489/-.  Therefore, there is no force in the contention of opponents counsel that the complainant has not mentioned availment of loan for purchasing the above vehicle.  However the complainant has not narrated in the complaint that the vehicle purchased by him being used as taxi.

9. The complainant has produced job card issued by opponent no.1 dated 03/10/2017 and grievance of the complainant that check engine oil consumption and check AC blower noise the opponent no.1 has charged labour charges a sum of Rs.3.70 paise towards oil pan and Rs.111/- for air conditioner.  In the 2^nd job card dated 11/11/2017 customer request is vacuum pump R/P the opponent no.1 has attended vacuum pump R & R and Pump ASSY vacuum at free of charge since vehicle is under warranty.  The last job card dated 30/01/2019 and the complainant request to check oil consumption.  Opponent no.1 has charged Rs.450/- for oil pan.  According to job cards for the first time the complainant has complained with regard to checking engine oil consumption one year two months after the purchase of the vehicle.  There after within two months he has taken the vehicle to opponent no.1 with complaint of consumption of engine oil.  It is the contention of opponents that except general allegation of excessive consumption of engine oil it is not mentioned of any manufacturing defect in respect of specific component of the vehicle.  It is the case of opponents that the consumption of engine or the design of the engine per contra the same is totally depended on usage of car, driving condition, manner of driving etc.  Admittedly the complainant car is a taxi and there are possibilities of the car running on muddy or melted snow roads, operating on dusty roads, repeated short trips less than eight kilometers, extensive idling, low speed driving for long distance.  The opponents made allegation against the complainant that there is a mismatch in periodic service of the vehicle.  The complainant has not got serviced the vehicle periodically as per service manual.

10. The learned counsel for the opponents submitted that the complainant has not produced any expert report that the vehicle is having any manufacturing defect.  The opponents relied upon the case of Pawan Kumar v/s Nissan Motors India Pvt.Ltd and others (2018) CJ 277(N.C) held as under Section 21 of Consumer Protection Act as under;

Vehicle-Manufacturing defect-Defective emission and low average-Complaint dismissed by State Commission-Complaint filed by petitioner is very sketchy and vague and it does not give details of any manufacturing defect in vehicle-Vehicle had already run 7000 KMs.-Petitioner has not filed any documents which reflect report of any mechanic that vehicle emits black smoke more than normal-Petitioner has failed to place on record any job cards regarding free service given to him as also for visits for getting vehicle repaired-Revision petition dismissed.

11. Further the opponents brought to the Forum notice the case of Toyota Kirloskar Motors Pvt.Ltd on another Tirath Singh Oberoi (2017) Consumer Judgment 249 the Hon’ble National Commission under Section 15, 17, 19 and 21 of Consumer Protection Act held that in absence of expert evidence, it shall not be fair to conclude that there was any manufacturing defect in vehicle.

In the case on hand the complainant has not specifically mentioned which component of the complainant having major or minor defect.Secondly the complainant has not produced mechanical or expert evidence to show that the vehicle purchased by him is having manufacturing defect.In the absence of convincing material the complainant is not entitled for replacement of the vehicle and damages claimed by him.That apart on perusal of job cards the opponent no.1 has not inserted costly spare parts to the vehicle for the alleged consumption of excessive engine oil.Thus the complainant has failed to establish that the vehicle purchased by him from the opponents is having manufacturing defect.Accordingly, we proceed to pass the following;

O R D E R

1. The complaint filed by Mr. P.R. Chethan is dismissed without cost.
2. Furnish copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 02^nd day of August, 2019)

                                                   (C.V. MARGOOR)

                                                        PRESIDENT 

                                                 (M.C. DEVAKUMAR)