By. Sri. P. Raveendran, Member:-

Brief of the Complaint:- The complainant is the RC owner cum permit holder of the bus No. KL 56 A 1602, manufactured by opposite party No.1, sold by opposite party No.2 and serviced by opposite party No.3. The vehicle is purchased only for the sole purpose of the livelihood of the complainant. The husband of the complainant is the driver of the bus. The vehicle was having one year warranty as promised by the opposite parties. Opposite party No.1 offered higher mileage, economic spare parts and free services with replacement warranty. The complainant has purchased

the vehicle with the loan taken from the Muthoot Leasing and Finance Limited, Vadakara and she has to pay a monthly installment of Rs.28,700/-. But immediately after the purchase of the vehicle when it is started its first journey could notice the following manufacturing defects. Huge mileage short, the pump is recurrently complaint, there is huge smoke and less pulling, steering bubbling, the front tyres of the vehicle is heavily wearing than other tyres. The accelerator cable breaks intermittently. So the vehicle is stranded on road. Gear lever tight, wearing the break linear on one side. Clutch disc replaced four times, pressure plate replaced two times, rear axle complaint. Even though above said defects were attended by opposite party No.3, no rectification could be done because the defects are inherent manufacturing defects. The vehicle stranded on roads compelling the complainant to pay damages to passengers and to bring the technician from opposite party No.3 by hiring taxi and to took the vehicle to opposite party No.3's premises and to put the vehicle at the premises for days or weeks. It is worthwhile to note that the vehicle was in the premise of the opposite party No.3 rather than on road. The complainant was forced to pay road tax and government specifications and she has to pay finance installments and salaries to the employees, apart from the other expenses. The non plying due to the defects of the vehicle the complainant has caused loss of income of Rs.8,00,000/-. The complainant had to pay cost of spare parts and repairing charges even the warranty period under completion which is to the tune of Rs.1,50,000/-. The complainant came to the firm conclusion that the vehicle is beyond of any repair and has to be replaced with a fresh one or any lieu to pay back the vehicle price with 18% interest. The vehicle was kept in the workshop of opposite party No.3 in the first week of July and the technicians of the opposite party No.3 has said that they could not do the pump works, so the complainant was forced to take back vehicle from the premises of opposite party No.3 but the vehicle is stranded in road at puthusserikadavu on 23.07.2009 onwards. The c omplainant has issued lawyer notice

seeking remedy from opposite party No.1 to 3 on 08.07.2009 but they have not cared the same. Hence it is prayed that direct the opposite parties to replace the vehicle with a new and non defective one or to pay the price of the vehicle that is Rs.7,56,000/- with 18% interest from 29.02. till the date of payment. To pay Rs.8,00,000/- as loss incurred to the complainant. To pay sum of Rs.1,00,000/- as compensation and to pay the cost of the complaint.

2. Notice were served on the opposite parties. Opposite party No.3 filed his version. Opposite parties 1 and 2 filed a memo stating that they have no separate version and the version filed by the 3^rd opposite party may be considered and treated as the version of 1^st and 2^nd opposite parties. In the version the opposite party admitted that the complainant purchased the Eicher passenger mini bus chassis 11.10 from the 2^nd opposite party on 28.02.2008 and that was manufactured by 1^st opposite party and is serviced by 3^rd opposite party which is the branch cum service centre of 2^nd opposite party at wayanad district. There was no assurance to the effect that chasis sold to the complainant was the first passenger service vehicle of these opposite parties. The complainant was earlier having an another bus which was also manufactured and sold by opposite parties. The complainant purchased new chassis which is in dispute now by exchanging the above said old bus. The opposite party have not given any assurance regarding the mileage of the vehicle since the same is depending on circumstances. The complaint regarding the pump was repaired by opposite parties. The vehicle chassis was sold to the complainant on 28.02.2008 and the warranty period was for one year. The warranty period of the said vehicle is already over. The engine and gear box of the vehicle is having 3 years warranty subject to the conditions from the date of purchase. It is true that 2^nd and 3^rd opposite parties are hesitating to repair above vehicle since she was always demanding free service even after the warranty period. The complainant reported the

complaint of less pulling after the completion of 50,000/- kilometers by the vehicle. The complaint was rectified by opposite parties forthwith. The complaint on frequent breaking of accelerator cable is a body related one. This complaint occurs due to the peculiarities in the body building. The breakage of accelerator cable is due to the incorrect routing of the same. The bracket Position and routing was changed during the body building. The gear liver tight if any can be repaired at the cost of the complainant since the warranty period is over. The same can be cured by replacing its rubber bushes. The complaints that reported during the warranty period was rectified by opposite parties. It is true that the clutch disc of the vehicle replaced 4 times and pressure plate replaced 2 times. The normal life of the clutch disc is about 40,000/- Kilometers. Damage of the clutch disc and pressure plate also depends on the style of driving and road conditions and number of application of clutch. The complaints reported about the vehicle is promptly attended by 3^rd opposite party and there are no manufacturing defects to the vehicle as alleged in the complaint. The vehicle chassis supplied to the complainant is free from all sorts of manufacturing defects, defects in material or workmanship. The complainant may have paid labour charges or cost of spare parts which will not covered by the warranty conditions. The complainant has not suffered any loss in income due to the vehicle sold by these opposite parties. The complainant is not entitled for replacement or return of sale consideration with interest. The complaints if any are due to the careless handling of vehicle and due to natural wear and tear. The lawyer notice received by opposite parties were promptly replied stating true facts. The complainant requested the opposite party No.3 to avail life long free services many times but the opposite parties were not ready to yield her demand. The complainant requested to exchange battery to a bigger size that was done by the opposite party free of cost as customer goodwill. The opposite parties replaced brake linear of the vehicle free of cost. The opposite parties replaced silencer pipe, clutch disc and pressure

plates free of cost. Since the demand of the complainant for life long free service is rejected by opposite parties the complainant was in inimical terms with the opposite parties which led to the intuition of the false complaint. Hence the complainant is not entitled for any relief as prayed. The above complaint was filed by suppressing material facts and rising false allegations which is intended only to tarnish the goodwill of the opposite parties. Hence it is prayed to dismiss the above complaint with the cost.

3. Considering the complaint and version the following points are to be considered:-

Point No.1:- Whether there is any deficiency of service on the part of opposite parties?.

Point No.2:- Relief and Cost.

4. Point No.1:- On the side of the complainant to prove her case the complainant is examined as PW1 and her brother Mr. Rajesh was examined as PW2. Motor vehicles Inspector Sri. Rajesh was examined as PW3 and Sri. Mohandas Senior Superintendent of Regional Transport

Office Wayanad has examined as PW4. Exts.A1 to A14 were marked to prove complainant's case. Opposite party No.3 Sri. Dileep.M is examined as OPW1 and Exts.B1 to B13 were marked on the side of the opposite parties to prove their case. Sri. M. Sharief. Motor Vehicles Inspector was examined as CW1 who was the commissioner in the above case and he filed Exts.C1 and C2 report and the above reports were marked through him. Ext.X1 is called for from opposite parties and the copy of Form No.8B the retail invoices are marked as Ext.X1 and the documents produced from the Regional Transport Office Vadakara is marked as Ext.X2. The opposite parties admitted that the complainant has purchased the vehicle from them on 28.02.2008. Ext. A9 is the Eicher

operators manual. Page No.2-9 deals with warranty it shows that Eicher Motor warrants each Eicher vehicle and its aggregates and components there of supplied by Eicher motors to be free from defects in material and workmanship under normal use subject to the following conditions. The warranty for 11.10 passenger vehicle with ET40S5 gear box shall be subject to condition in clause 1(b): 1. (a) Warranty shall be in force until the expiry of period of 36 months from the date of installation for engine and gear box and 12 months from the date of installation for rest of the aggregates of the vehicle irrespective of kilometerage covered during this period. Date of installation is entered in the Warranty Registration and Installation Certificate. In page No.2-2 of the above document it is noted that the vehicle installation is on 29.02.2008. In page No.1-8 of the above document engine is defined. The Eicher engine E483TCI produces 70 Kw at 3200 rpm and E483EDC engine produces 68 KW at 2800 rpm these fuel efficient engines develop maximum torque of 285 Nm at 1440 rpm, 260 Nm at 1600 rpm respectively. Regarding clutch 277 mm x 175 mm ( All LCV ) clutch disc transmits higher torque and is designed for longer life. A special toggle spring is provided in the clutch pedal to prevent clutch wear against careless foot rest pressure 310mm x190mm clutch disc has been introduced for 11.10 cargo version. It shows that the engine and gear box are having 3 years warranty and the rest of the parts having 1 year warranty from the date of installation that is from 29.02.2008. On perusing Ext.A9 in page No.2-38 to 2-40 it is clear that 21 times the vehicle is taken to opposite party No.3's service center from 18.04.2008 to 28.08.2009. That means the trouble of the vehicle is started after one month and 20 days of purchase of the vehicle. Out of which 7 times the vehicle taken to opposite parties service center for after breakdown of the vehicle. It is clearly noted in Ext.A9 by 3^rd opposite party. The vehicle is brought for mileage short and for FIP replacing. On perusing Ext.A5 series it is clear that the vehicle is taken to opposite parties service center 18.04.2008 with the following defects. Steering

wobbling, the vehicle pulling to left side, both wheel over hg, accelerator cable along with other defects. The above defects are noted by Opposite party No.3. In check sheet dated 18.06.2008 ( Ext.A5) the 3^rd opposite party recorded the following defects in the vehicle steering wobbling, silencer pipe, engine foundation, clutch. The check sheet dated 25.08.2008 (Ext.A5) shows that engine over heating and subsequent check sheet dated 02.07.2009, 29.07.2009, 22.08.2009, 27.08.2009, 28.08.2009, 10.09.2009 also shows the vehicle is having major defects. Ext.B9 to B12 shows that the vehicle is serviced and repaired by opposite party No.3 on 11.07.2008, 21.01.2009, 17.02.2009 and 08.03.2009. Ext.A6 series shows that the vehicle is taken to opposite party No.3's service centre for repair and service on 23.10.2008, 25.10.2008, 10.12.2008, 21.01.2009, 04.07.2009, 10.07.2009, 10.08.2009, 20.08.2009, 22.08.2009, 25.08.2009, 28.08.2009, 10.09.2009 and the vehicle finally repaired from another work shop on 26.10.2009. Ext.A11 documents shows that in place of the vehicle of the complainant permit was granted to KL 12 C 3456 to one Ponnappan to run the vehicle in place of KL 56 A 1602. Exts.A13 and A14 shows that the vehicle KL 56 A 1602 is off road for a period of 10 months from 01.12.2010 to 30.09.2011. Ext.A6 series and B9 to B12 shows that the complainant has spent Rs.34,867 towards service and repair of the vehicle out of which Rs.10,845/- given during the time of warranty period.

5. PW1 is the complainant Sreeja. On perusing the chief affidavit and the cross examination it is found that she is a housewife. Her husband purchased the vehicle in her name. Her husband Mr. P.C. Suresh was handling her vehicle. After some time he has gone abroad and her brother Rajesh was handling the vehicle. She does not know anything about the vehicle. PW2 is her brother, he was the driver of the vehicle and he was handling the vehicle. When his brother in law Mr. P.C. Suresh handling the vehicle he had worked in the bus as cleaner. PW3 is the Motor

Vehicles Inspector Sri. Rajesh and PW4 is the Senior Superintendent Sri. Mohandas Regional Transport Office Wayanad. Mr. C.V.M. Sharief Motor Vehicles Inspector Regional Transport Office Wayanad is examined as CW1. He inspected the vehicle twice and filed Exts.C1 and C2 reports. In Ext. C 1 report he opinioned that the vehicle is having defective clutch disc, hard gear shifting, defective fuel pump, while breaking the vehicle pull to left side and mileage tested without loaded condition is 3.69 km/liter. He further opinioned that the vehicle is driven and tested and found that above damages are due to mechanical defects. He inspected the vehicle on 10.08.2009. Again he retested mileage of the vehicle on 09.06.2010 and found that without loaded condition the mileage is 4.6 km/litre . He was examined in detail before the Forum, and he stated that “mechanical defect sIm­WmWv XIcmdn\v ImcWsa¶v dnt¸mÀ«n ]dªn«pW­v. Manufacturing defect D­Wv ­F¶p t_m[ys¸«ncp¶p. Manufacturing defect DÅXmbn C1, C2 dnt¸mÀ«n ]dªn«nÃ. Manufacturing defectDw mechanical defectDw H¶mWv. Manufacturing defectDw mechanical defectDw cW­mWv F¶v ]dªm icnbÃ. hml\¯n Ibäp¶ temUn\\pkcn¨v ssatePn\p hnXymkw hcpw. Line Bus \v mechanical defect hcm³ km[yXIqSpXembXn\m A¯cw hml\w \nÀ½n¡pt¼mÄ \nÀ½mXmhnsâ D¯chmZnXzw hfsc IqSpXemWv. AXpIqSn IW¡nseSp¯mWv hmdân \ÂIp¶Xv. Automobile Research Institution \ÂIp¶ Roadworthy BWv F¶p ImWn¡p¶ kÀ«n^n¡ämWv ARI kÀ«n^n¡äv. Hcp tamU hWn¡v Hcp ARI Approval BWv D­WmhpI, ]ns¶ register sN¿p¶ AtX tamU h­Wn¡v ARI Certificate D­WmhnÃ. ssatePv tjmÀ«v engine manufacturing defect sIm­Wv D­Wmhmw. Engine \v XIcmÀ DffXpsIm­WmWv huge smoke D­Wmhmdv. Gear Lever tight Bhp¶Xv gear box complaint sImWv DWmhmw. _Ênsâ accelerator cable frquent Bbn s]m«m³ ]mSnÃ. Cable CSbv¡nS¡v s]m«p¶Xv

cable manufacturing defect sImWv DWmhmw. hml\¯nsâ liner Hcp `mKw tXbp¶Xv adjustmentsâ XIcmdp sImtWm liner manufacturing defect sImtWm Bhmw” . Opposite party No.3 has examined as OPW1. He filed his proof affidavit on behalf of other opposite parties also. He admitted that the complainant purchased the vehicle on 28.02.2008. At the time of purchase the complainant was give discount of Rs.92,750/-. Actual amount paid towards sales price was Rs.6,63,250/-. He totally denied all the other averments mentioned in the complaint. “hml\¯n\v manufacturing defect DWv F¶ hmZw ]cmXn¡mcn¡v DWv F¶dnbmw. manufacturing defect a\Ênem¡phm\pff FÃm kwhn[m\hpw 1^st opposite party ¡v DWv . Ext.A9 \n¶pw hml\w ]e Øe§fnepw breakdown Bb Imcyw ]dbp¶pWv. Exts.B9 apX B12 hscbpff tcJbpsS tIm¸n IÌaÀ¡v sImSp¡mdnÃ. He admitted the same at the time of cross examination.

On perusing the entire documents produced by complainant and opposite parties and the evidence of the witnesses it is clear that the vehicle sold by opposite parties to the complainant was having 3 years warranty for engine and gear box and one year warranty for other parts. It is clear that the complainant purchased the vehicle on 28.06.2008. It is seen from Exts.A9 from 18.04.2008 onwards the vehicle is having both manufacturing and other defects. Due to this the complainant had spent Rs.34,867/- and also suffered other loss, that means the opposite parties sold the chassis having manufacturing defects to the complainant that is deficiency of service on the part of the opposite parties. Point No.1 is decided accordingly.

6. Point No.2:- The vehicle sold to the complainant having manufacturing defects. Hence she is entitled to replace the vehicle with new one or she is entitled to get the cost of the vehicle with 10% interest from date of filing of this petition. In the complaint she has stated that she has paid Rs.7,56,000/- as cost of the vehicle but on perusing Exts.B5, B6 and B7 it is seen that the opposite parties have given discount to the tune of Rs.92,750/- to the complainant. It is also stated in the above document in the invoice the cost of the vehicle is noted as Rs.7,56,000/-. Hence she is entitled to get cost of the vehicle after deducting discount given by the opposite party, ie she is entitled to get Rs.6,63,250/- with 10% interest from 27.07.2009 till the payment is made. If she get the new chassis from opposite parties she has to spent some huge amount for building its body. Hence he is also entitled to get Rs.50,000/- as cost and compensation. It is clear from Exts.A11 and A13 the vehicle is off road from 08.12.2009 to 27.12.2009 and from 01.12.2010 to 31.07.2011. We pursume that thereafter also the vehicle is in off road. The opposite parties are entitled to take back the old bus. We think that it is a fit case to apply the decision of the Apex Court of our country held in C.N. Anantharam V/s Fiat India Limited and others reported in 2011 CTJ page 124.

In the result above complaint is partly allowed and the opposite parties are directed to replace the vehicle with a new one. If they fails to give new vehicle the opposite parties are directed to pay Rs.6,63,250/- (Rupees Six Lakh Sixty Three Thousand and Two Fifty Only) to the complainant with 10% interest from 27.07.2009 till the payment. The opposite parties are directed to pay Rs.50,000/- (Rupees Fifty Thousand Only) as cost and compensation to the complainant. After payment or replace new vehicle the opposite parties can take back the old vehicle ie KL 56 A 1602 after completing the formalities.

Pronounced in Open Forum on this the day of 31^st October 2011.

Date of filing:27.07.2009.