By. Sri. Jose. V. Thannikode, President:

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to replace the vehicle or to refund the value of the vehicle and to pay cost and compensation due to the supply of defective vehicle.

2. Brief of the complaint:- Complainant had purchased a vehicle manufactured by the 1^st respondent with model name Maruthi Swift ZDI with engine No.D13A1925582 and Chassis No.MA3F HEB 1500308513 on 30.07.2012 and was using the same. The 1^st respondent assured directly to the complainant and through advertisements that the vehicle is of superior quality and is trouble free. It is also assured by the 1^st respondent that the vehicle comes with all advanced and functional features. The representative of the 1^st respondent had made the complainant believe that the vehicle is having superior quality and trouble free and believing the assurance the complainant had booked the above model vehicle and the same was got registered as KL 12 H 212. The complainant took the vehicle for regular services. Contrary to the assurances given by the 1^st respondent the vehicle showed complaints and the engine stopped working. The vehicle was taken by the 2^nd respondent for service. It was found by the 2^nd respondent that the engine was dead and had replaced the same with another engine bearing No. D13A2142255. The same was entered in the RTO records of the vehicle. Even after changing the engine the problems and complaints remained more or less the same. The oil leak continued without break. When the same was brought to the notice of the service advisor of the 2^nd respondent he agreed to correct all the defects. The 2^nd respondent had towed the vehicle more than three occasions from Wayanad to their service centre.

3. Each time when the vehicle was taken for repair the service advisors agreed to correct all the troubles and assured the complainant that the vehicle is trouble free. The vehicle was kept in the workshop for weeks but the second respondent could not cure the defects completely. When that fact was informed to the 2^nd respondent he assured to contact the 1^st respondent and agreed to rectify the defect or suggest the 1^st respondent to replace the vehicle because the defects are due to manufacturing complaints and hence incurable. The vehicle was having a warranty provided offered by the opposite parties for 60000- kilometer or 3 years whichever is early. Though regular service was given to the vehicle by the 2^nd opposite party, the complaints persisted and the complainant was unable to drive the vehicle with peace of mind, fearing that the engine will stop on any moment. As feared, the engine stopped functioning when it reached 31000 kilometres. The 2^nd opposite party had towed the vehicle to Calicut for repair on 24.07.2015. Till today they have not found out the complaint and rectified the same. It is told by the 2^nd opposite party that the present engine also is dead. The persisting complaint of the vehicle is due to incurable manufacturing defect. The request by the complainant to provide the service history was denied by the 2^nd opposite party. Though the complainant had sent an e-mail to the opposite party No.1, they have not so far taken any action or any information given to the complainant. The complainant is a contractor of KWA and is having work all over the district. The complainant suffered huge monetary loss due to the persisting complains of the vehicle. But the opposite parties had failed to correct the complaints and rectify the defects. The persisting complaints are due to manufacturing defects of the vehicle. To the assessment of the complainant the engine fixed in the vehicle is not trouble free and the alignment of engine and piston is not correct so that the oil leak could not be stopped and the same cannot be rectified also. The complainant had to keep the vehicle with the 2^nd opposite party for weeks for the repair of the above vehicle. But the engine again stopped working. The complainant had undergone huge mental agony, inconvenience etc due to the incurable complaints of the vehicle. Since the defects of the vehicle cannot be cured as the same was due to manufacturing defect, the complainant is entitled to get the vehicle replaced or the amount returned. Hence it is humbly prayed that this Hon;ble Forum may be pleased to directing the respondents to replace the vehicle, in the alternative directing the respondents to pay the value of the vehicle to the complainant, awarding Rs.1,00,000/- as compensation towards the loss, mental agony and inconvenience, awarding Rs.15,000/- towards the cost of the complainant.

4. Notices were served to opposite parties and they filed version denying all the allegations and both opposite parties are admitted the sale and service and warranty of the vehicle for two years and further extended to 3 year or 60000 km which ever occur first.

5. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext. A1 series two in numbers and produced documents is marked as Ext.X1 series. Commissioner is examined as CW1 and Ext.C1 Commissioner Report is marked and opposite party No.1 also filed proof affidavit and stated as stated in the version and he is examined as OPW1 and Ext.B1 document is marked and Ext.B2 and B3 documents also marked with objection by the complainant. Ext.A1 is the Receipt issued by the opposite party No.2 for a service repair. Ext.A2 is the copy of Job Card issued by the opposite party No.2 on 14.08.2014. Ext.X1 series are the vehicle history produced by the opposite party No.2, wherein it seen that the disputed vehicle has undergone service and repair on altogether 20 times ie 20 visit. In visit No.1 on 18.09.2012 work done is cooling remove, seat cover repair, steering cover, FL LTACR BLIC TSTR, 3m MASK FILTERED. In 2^nd visit on 25.10.2012 Free of cost labour. In 3^rd Visit on 25.10.2012 vehicle washing and cleaning. In 4^th Visit on 27.12.2012 demanded repair, free service, mud flap, scratch on vehicle. In 5^th Visit on 29.12.2012 Front bumper repair. In 6^th Visit demanded repair, rear left door. In 7^th visit on 12.04.2013 Demanded repair in noise from engine and on that day 23 parts were replaced and short engine assy replaced, cylinder head cover and OR Gasket for diesel, Oil pump assy and OR Gasket for diesel, water pump assy and or Gasket for diesel, lathe work also done. In the 8^th visit on 28.06.2013 demanded repair is engine oil leakage and gasket, vacuum pump replaced. In 9^th visit on 07.07.2013 Free of cost labour. On 10^th visit demanded repair engine oil leakage and vacuum pump replaced and brake vacuum hose replaced. In 11^th visit on 20.07.2013 Demanded repair, free service 3 and switch assy door replaced. On 12^th visit on 28.09.2013 Demanded repair in washing and cleaning. In 13^th visit on 29.11.2013 Demanded repair is oil change, oil filter change, brake pedal hard, suspension hard and part description is MG DO(15W 40) MOBIL, Oil filter, labour description is Brakes overhaul(complete) paid service GEAR LEVER BUSH Lubrication. In 14^th visit on 31.03.2014 Demanded repair is service camp and labour description is free of cost labour. In 15^th visit on 02.05.2014 Demanded repair is brake oil change and part description is pad assy set and brake fluid GC 1500 AA(150 ML Pack). In 16^th Visit on 29.08.2014 Demanded repair noise from brakes, noise from suspension, vehicle washing and cleaning and labour description in suspension overhaul (front) suspension overhaul(rear) disc brake cleaning, Drum brakes cleaning. In 17^th visit on 18.12.2014 Demanded repair, washing and cleaning free of cost and repair. In 18^th visit on 05.01.2015 Demanded repair engine oil leakage replaced Gasket vacuum pump. In 19^th visit on 30.05.2015 Demanded repair PMS Medium 30 k and part description in MGDO(KW40) MOBIL and labour description is paid service group 1-50 K/70K/110K. On 20^th visit on 28.07.2015 Demanded repair is engine oil leakage through vacuum pump and 20 parts replaced and labour description is camshaft, timing belt, PULLEY, brake vacuum side (engine side) cylinder head over haul (diesel), tuning adjustment (diesel).

6. Ext.C1 is the commissioner Report wherein it is reported that “Referring to visit No.6 of service history, the customer demanded for the replacement of left rear door, but the company done denting and painting repairs and they billed Rs.2,679.65/- as labour charge and for normal visual inspection it seems to be genuine, means door does not replaced. Referring to visit No.7 of service history, " Noise from the engine" which was only on 8,175 KM of total run of the engine, without any accident report the engine was struck. Then its half engine replaced. The replaced parts and engine half are not kept at the service center. So I couldn't inspect physically the old engine. By observing the part and labour description in the visit sheet, Short engine assembly, cylinder head cover, oil pump and water pump are repair or replacement. After 21,840 KM running the engine was break down and attended through pick up and drop without any serious accident report. I could not observe any symptoms of serious accidents. This Diesel engine was manufactured by FIAT and it was only assembled on the vehicle by SUZUKI. The Half engine assembly work was done on POPULAR by KUTTUKKARAN workshop. It was not an Engine production unit of MARUTHI SUZUKI. The Company does not produce any Quality Control Passed certificate before me, against the Newly assembled engine. The vehicle was undergone proper service at correct intervals. Referring to visit No.20 dated 28.07.2015 of service history the case was attended through pick up & drop. It seems that the vehicle as a whole in the stage that it did not allow further movement itself. Following works are done on this visit:-a) Cam shaft assembly case replacement, b) Piston assembly (4 piston), c) Connecting rod and crank shaft bearings replacement, d) Vacuum pump replacement, e) Valves are replaced (4X4= 16 Nos). No any of the replaced parts has shown by the firm. No any road accident remarks are shown in any where in the service history and series of engine related malfunction shown in it. The service authority is failed to rectify the correct problems raised before the First major service ( Visit No.7). Frequent disorder may leads lack of durability of the engine and hence the reliability of the vehicle. During the inspection I observed that:- (I)Battery units did not supply sufficient voltage. (Il) No any malfunction indication was observed in the cluster board. (Ill) In the On Board diagnosis Report of this engine produced by the company ,it was observed that all parameters are in permissible level. (IV) During the test drive, about 20 KM through pocket road, hump, steep road as well as high way at various gears and various speeds the vehicle did not shown any malfunction ,smooth engine sound was observed. (V) On emission test, the smoke and emissions are under the permissible level. (VI) it was observed that some parts are missing, like (1 Viper tank lid2) Rear Left door close switch cover3) Rear spoiler nut cap 4). The left back top handle on the hoods are not matching with others and damaged. (VII A small dent on back left door, colour patch and rust stain on left C-piller, black colour rubbing mark on left rear wheel cup and small scratches on left rear parking light was also observed”.

7. Ext.B1 is the request given by the commissioner stating that he is a Btech Mechanical engineer and has only limited knowledge in the field of Automobile engineering. Hence prayed to relieve him from the post. Ext.B2 is the Warranty policy copy produced by the opposite party No.1 and wherein warranty for 2 years or 40000 km (which occur first) is offered and in the version, opposite party No.2 admitted that the warranty is extended to 3 year or 60000 km and OPW1 deposed that he has admitted that the warranty is extended upto 3 years or 60000 km (which occurs first). Ext.B3 is the dealership agreement between opposite party No.1 and 2. It is marked with objection since it is a photocopy and it is not properly filled also.

8. On considering the complaint, documents and evidences, the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service or unfair trade practice from the

part of opposite parties?

2. Relief and Cost.

9. Point No.1:- In the version of opposite parties and deposition of OPW1 it is admitted the sale and service of the vehicle and also admitted the warranty for three years or 60000 km which occur first. The Ext.X1 series service history also admitted by both opposite parties. From the service history of the vehicle it is evident that the vehicle is having recurring complaint, continuous repair since purchase, the cylinder head overhauled and the complaint of oil leaking reported on various occasion, gasket and vacuum pump has replaced number of times, suspension front and rear overhauled, brake vacuum hose replaced, brake overhauled twice and again the oil leakage persisted. The half engine also replaced twice within the period of two years and within 30000 km. Due to this recurring complaint the complainant lost his faith in the service of opposite party No.1 and thereby entrusted the vehicle to the opposite party No.2 for service. Due to the lost in faith of the service opposite party No.1, the complainant not taken the vehicle even the opposite party No.2 has intimated the fact that the vehicle is ready after repair before institution of this complaint.

10. The OPW1 deposed before the Forum that the vehicle involved in the case has shown engine defect twice, first time half engine was replaced, and on a question to the OPW1 that “have you got any facility to investigate and find out the reason for engine failure”. Answer –“We have no facility and further deposed that I cannot say what exactly caused to the engine failure in 8100 kms”. And on an another question to the OPW1 that “what is the reason for replacing the vacuum pump again and again for 4 times”. He answered that “I cannot say”. And OPW1 further deposed that “I have inspected this vehicle. On verifying Ext.X1 I saw that the vehicle gas undergone periodic checkup”.

11. Hence we are of the opinion that the defects of the vehicle cannot be rectified for the last two years by the opposite party is a clear case of deficiency of service from the side of opposite party No.1. There is no allegation of service deficiency from the part of opposite party No.2 either in complaint or in evidence. It is the bounden duty of the opposite party No.1 to provide experts to rectify and clear the noted defect. Hence the Forum found deficiency of service from the part of opposite party No.1. Hence the Point No.1 is found accordingly.

12. Point No.2:- Since the Point No.1 is found against the opposite party No.1, opposite party No.1 is liable to rectify all the defects of the vehicle in the defect free condition and also liable to pay cost and compensation. The complainant suffered too much hardships for the last two years. The opposite party No.1 is also liable to extend the warranty for one more year from the date of delivery by considering the hardships. Hence the Point No.2 is decided accordingly.

In the result, the complaint is partly allowed and the opposite party No.1 is directed to provide the company Experts/Engineers to find out the real cause of complaint and cure all defects and make it defect free condition. The opposite party No.1 is also directed to provide one more year warranty from the date of this Order and deliver the complaint free vehicle to the complainant. The opposite party No.1 is also directed to pay Rs.2,00,000/- (Rupees Two Lakhs) as compensation for the loss, inconvenience, hardships, difficulty and mental agony caused to the complainant for the last so many years. The opposite party No.1 is also directed to pay Rs.25,000/- (Rupees Twenty Five Thousand) as cost of the proceedings to the complainant. The opposite party No.1 shall comply the Order within one month from the date of receipt of this Order, failing which the complainant is entitled for an interest at the rate of 12% per annum for the whole amount till realization.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 27^th day of January 2017.

Date of Filing:25.08.2015.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. P. J. Sunny. Complainant.

CW1. Roy. V. K. Lecturer, Mechanical Department,

Government Polytechnic, Meenangady.

Witness for the Opposite Parties:-

OPW1. Jayaprakash Sherigar. Area Service Manager, Maruthi Suzuki India Ltd,

Calicut.

Exhibits for the complainant:

A1. Job slip cum Demanded Repair Explanation sheet.

A2. Receipt. Dt:24.08.2014.

X1(Series). Service History and Job Card (11 Pages).

C1(1). Inspection Report. Dt:16.08.2016.

C1(2). Service History of Maruthi Swift ZDI KL 12 H 212.

C1(3). Photographs of vehicle.

Exhibits for the opposite parties:-

B1. Request Letter. Dt:15.07.2016.

B2. Copy of Warranty Policy.

B3. Copy of Dealership Agreement.

Sd/-

PRESIDENT, CDRF, WAYANAD.

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