By Sri. Chandran Alachery, Member:

The complaint is filed under section 12 of the Consumer Protection Act for an order directing the Opposite Parties to replace the vehicle No.KL72-5233 with a complaint free one of the same kind or to take back the same and to repay the sum of Rs.1,98,000/- with 12% interest from 19.09.2015, to pay Rs.2,00,000/- as compensation and to pay the cost of the proceedings.

2. Complaint in brief:- The Complainant purchased an APE Auto D3 5 Passenger from 2^nd Opposite Party for a sum of Rs.1,98,000/- on 19.09.2014. The Registration number of the vehicle is KL 72-5233. The purchase is made through an exchange of old vehicle of the same kind. The Complainant was using the vehicle for his livelihood. At the time of delivery itself, the complainant noticed some bevel in the front side of the vehicle body and was taken to the notice of Opposite Party and demanded replace, but the Opposite party assured to rectify the defect. 2^nd Opposite Party replaced the beveled piece of the front side body of the vehicle. The hand break of the vehicle was not working and the Opposite Party assured to rectify it in 1^st service. But not done. The complainant carried out all services promptly. The Complainant was forced to carry out the engine work of the vehicle in 37500 km during September 2015 due to excessive heat of engine. Within one month of purchase, the wiper became useless and non working. The battery of the vehicle is under complaint and the gear shifting is too light. On 03.06.2016, the vehicle toppled due to disruption of fork. Within 2 months of purchase, the starting motor of the vehicle is not working. The Opposite parties assured 40 km mileage per litre but got only 26 kms. The vehicle now requires at least 100 ML of engine oil per day to run the vehicle. The Complainant was compelled to spend about one lakh rupees for the repair of the vehicle within a short span of time. The Vehicle is having Manufacturing defect. The Opposite party failed to rectify the defect also. Therefore, aggrieved by this the complaint is filed.

3. On receipt of complaint, notices were issued to the Opposite Parties and the Opposite Parties appeared before the Forum and filed version. In the version of 1^st Opposite Party, 1^st Opposite Party contended that there is no specific allegations in the complaint against 1^st Opposite Party. No specific cause of action in the complaint against the Opposite party. There was no problem to the vehicle as alleged. The warranty will be null and void if vehicle is not serviced as per service schedule. The Complainant violated the conditions. The Complainant has suppressed the fact that the vehicle was met with accident. The purchase is not on 19.09.2015. There is no bend on the body as stated. If so the front glass cannot be fixed. The allegation that hand break is not working is false. The allegation of excessive heat to the engine is also false. The mileage of the vehicle is depend upon several facts like driving habit, gear change pattern, usage of AC, Air pressure of tyre, wind speed, road condition etc. There is no deficiency of service from the part of 1^st Opposite Party. In the version of 2^nd Opposite party, 2^nd Opposite Party contended that the complaint is filed without any cause of action against 2^nd Opposite Party. There is negligence and careless on the part of the driver in making improper use of the vehicle in question and due to improper driving habits. The Complainant not serviced the vehicle as per service schedule and hence not entitled for warranty conditions.

4. On perusal of complaint, version and documents, the Forum raised the following points for consideration.

1. Whether there is deficiency of service from the part of Opposite parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and the complainant is examined as PW1 and documents are marked as Ext.A1 to A5 and Commission Report is marked as Ext.C1. Ext.A1 is the copy of RC, Ext.A2 is the copy of permit, Ext.A3 series are the bills for the repair expenses, Ext.A4 is the notice issued by the Opposite Parties, Ext.A5 is the bill for advertisement. Complainant's witness is examined as PW2. 1^st Opposite party also filed proof affidavit and the 1^st Opposite Party is examined as OPW1. 2^nd Opposite Party also filed proof affidavit and 2^nd Opposite Party is examined as OPW2. Ext.B1 series 1 to 6 are the job card dated 03.12.2014, 28.01.2015, 26.02.2015, 02.03.2015, 23.04.2015, 05.06.2015 and 03.06.2016. On perusal of Ext.B1(1) job card, only oil change is the work done at 3899 km on 03.12.2014. Ext.B1(2) shows that the service is made at 8862 km on 28.01.2015. The Complainant reported on 28.01.2015 was low pulling, handle loose. Ext.B1(3) shows that service is made on 26.02.2015 at 12406 km. No complaint seen reported. Ext.B1(4) shows that service is made on 02.03.2015 at 13311 km and Complainant was diesel tank leak. Ext.B1(4) shows that service was made on 23.04.2015 at 18856 km. No complaint reported. Ext.B1(5) shows that service is made on 05.06.2015 at 23483 km. No complaint reported. Ext.B1(6) shows that service is made on 03.06.2016 at 55496 km. Job description was accident work. In the Ext.C1 Commission report, the Commissioner reported that the pulling of the vehicle was low with driver and 3 passengers on test drive. The fuel mileage is 12.04 km/litre. This fuel mileage was too low. The engine was being over heat during riding. Over heat may affect all performance of engine. Engine oil consumption was high. Now the fork, starting motor, wind glass wiper, hand break are in good condition. The Commissioner not reported that the defect in the vehicle are due to manufacturing defects of the vehicle. But in the commission report, it is stated that on 04.09.2015, the vehicle was done engine overhauling. Piston and cylinder assembly work done on that date. It is seen that as per Ext.B1(5) job card, fork pin of the vehicle changed. As per Ext.B1(6) job card, again fork change was done on 03.06.2016. It is seen that within one year of purchase and during warranty period, the engine overhauling was done on the vehicle. On 03.06.2016 the vehicle was toppled due to disruption of fork. It is seen that before the accident, twice the fork pin changed and fork changed in the vehicle. The specific case of Complainant is that the vehicle was toppled due to description of fork. Even after engine overhauling, the commissioner reported that the engine is overheating during driving and there is only 12.04 fuel mileage which is very low. The engine oil consumption was also very high. Even if the commissioner not reported that the defects are due to manufacturing defect, the forum found that the vehicle is having intermittent and continuous problems. As per commission report, it is seen that the Complainant had done all services promptly. The Opposite parties not produced all the service details of the vehicle before the Forum. Since no manufacturing defect is reported by the Commissioner, the Forum cannot order for replacement of vehicle or refund of purchase price to the Complainant. More over, the complainant not produced any evidence to show that the vehicle is now unfit for use or he is not using the vehicle at present. The Forum found that the Complainant is entitled to get all service and repairs in the vehicle free of cost so as to make the vehicle in perfect running condition. The 1^st Opposite party failed to provide such and necessary repairs and services to the vehicle so as to make the vehicle defect free road worthy condition. So the Forum found that there is deficiency of service from the part of 1^st Opposite party. 2^nd Opposite Party is only the dealer of the vehicle and all services are to be done by 1^st Opposite party only. No deficiency of service is found against 2^nd Opposite Party. Point No.1 found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 1^st Opposite party is directed to carry out all repairs and services to the vehicle and replacement of parts if necessary in the vehicle so as to make the vehicle in defect free running condition at free of cost. 1^st Opposite party is also directed to pay Rs.50,000/- (Rupees Fifty thousand) only as cost and compensation to the Complainant. The complainant is directed to hand over the vehicle to 1^st opposite party within 30 days from the date of receipt of this order and 1^st Opposite party shall do all necessary repair works over the vehicle within 30 days of such entrustment. 1^st Opposite Party shall comply the order as directed and if 1^st Opposite party fails to pay the cost and compensation awarded within the time fixed, the Complainant is entitled to get 12% interest for the whole sum thereafter.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 28^th day of February 2018.

Date of Filing:25.08.2016.

PRESIDENT : Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Venugopal. Complainant.

PW2. Jayachandran. Auto Driver.

Witness for the Opposite Parties:

OPW1. Chikku Mohan. Service Executive, Piaggio Vehicles Pvt

Ltd., Cochin.

OPW2. Haridas M.K. Works Manager, Wayanad Vehicles Pvt

Ltd., Kalpetta.

Exhibits for the complainant:

A1. Copy of Certificate of Registration.

A2. Copy of Contract Carriage Permit. dt:10.10.2014.

A3(1) Retail Invoice. dt:04.09.2015.

A3(2) Bill. dt:28.05.2016.

A3(3) Bill. dt:22.09.2016.

A3(4) Bill. dt:15.10.2016.

A3(5) Bill. dt:03.11.2016.

A4. Notice.

A5. Particulars of Advertisement/ Bills.

C1. Inspection Report. dt:22.03.2017.

Exhibits for the Opposite Parties:

B1 series (6 Nos) Job card.