BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

C.C.No.85/2012     Filed on 14.03.2012

ORDER DATED: 17.02.2021

Complainant:

(by Adv. C.S. Rajmohan)

Opposite parties:

(by Adv. S. Ajith)

The order delivered on 17.02.2021

ORDER

SRI. VIJU  V.R.,  MEMBER:

The  complainant has presented this complaint before this forum under section 12 of the Consumer Protection Act 1986 , alleging that he had purchased a CBZ-FR&RR DF SF bike on 3.11.2011 from the 1^st opposite party on payment of Rs.74,877/-.   The 2^nd opposite party is the manufacturer of the said vehicle.  While the complainant was riding the vehicle on the very same date to his home he felt overheating and shivering of the handle.   On the next day itself the vehicle was taken to the 1^st opposite party’s service centre.  They told the complainant that the issues will be over after first service. But after the first service it was found that there was lack of pulling power, overheating and cut off of the engine during riding.  The complainant again approached the 1^st opposite party.  The service engineer of the 1^st opposite party opened the engine and informed the complainant that there is manufacturing defects for the said vehicle.   On 17.12.2011 the engine was opened and the said matter was endorsed by the service engineer.   But the problems were not rectified by the 1^st opposite party.   Now the vehicle is very difficult to ply on the road and also there is oil leakage from the engine side.  Complainant informed all these things to the opposite parties 1 and 2 through e-mail and letter, but there was no response from the side of opposite parties 1 and 2.   Hence this complaint.

The Opposite parties 1 and 2 entered appearance.  1^st opposite party has filed version and 2^nd opposite party has filed memo stating that the version of the 1^st opposite party may be treated as the version of 2^nd opposite party.   The 1^st opposite party admitted the purchase of vehicle by the complainant on 03.11.2011.   The 1^st opposite party averred that the complainant had never informed any problems with the vehicle on the date of purchase or on the next day.  The 1^st opposite party has done the first free service on completing
692kms on 19.11.2011.  No defects were reported during the first service.  The routine service and oil change were done during the first free service.  They have never opened the engine on 17.12.2011.   The complainant brought the vehicle with some minor complaint on 10.12.2011 and it was returned on the same day itself.  The allegation that the service engineer informed the complainant regarding manufacturing defect is denied by the 1^st opposite party.  The second free service was done on 28.1.2012 after completing 2480kms and the complainant took delivery of the vehicle on 30.1.2012.   Thereafter the complainant never brought the vehicle for servicing. The opposite parties 1 and 2 are denying the allegations of the complainant that the vehicle is having manufacturing defect.   Hence complaint may be dismissed with compensatory costs to the opposite parties.

Issues to be ascertained:

1. Whether there is manufacturing defects or deficiency in service from the side of opposite parties?
2. Whether the complainant is entitled to get the reliefs?

Issues (i) and (ii)

Both these issues are considered together for the sake of convenience. The complainant has filed affidavit in-lieu of chief examination and was examined as PW1 and has produced 4 documents which were marked as Exts. P1 to P4.  Even though opposite parties 1 and 2 filed affidavit in-lieu of chief examination they have not turned up for cross-examination.   The commission report was marked as Ext C1.   The opposite parties 1 and 2 had filed objection to the commission report.   Notice was issued to the commissioner, but he did not turn up.   So it was ordered by this commission that the opposite parties 1 and 2 shall take steps for show cause notice against the commissioner.    But they haven’t taken the steps, hence evidence of the commissioner was closed. The complainant as well as the opposite parties 1 and 2 has filed argument notes.   The main contention raised by the complainant is that the vehicle was having manufacturing defects as a result it showed overheating and shivering of the handle on the same date of delivery.   It can be seen from Ext.P4 that there is overheating of engine.  It is an endorsement on the back of the service book. Even though there is no seal of the opposite parties in the Ext.P4 it cannot be discarded as it was not disproved by the opposite parties 1 and 2.   It is noted in paras 3.1, 3.4 and 3.6 of the Ext.C1 that

3.1     The road test of the vehicle was done to do the preliminary assessment on the condition of the vehicle.  It was observed that the vehicle was having a shivering on the handle after crossing the speed of 50kmph.  Thorough inspection of the wheel bearing, handle bearing, chain drive etc was done to identify the possible source and all of them were found in reasonably good condition.  Hence the problem may be with an improperly aligned wheel or an un-balanced tyre, which could be rectified by changing them.

3.4     The engine compression test was done to assess the wear and tear of the engine.  The recommended cylinder pressure by the manufacturer is 13kg/cm² plus or minus 2kg/cm².   The readings on the dry and wet tests are shown as below:

It may be noted that the engine compression pressure is a measure of the engine’s wellbeing and for the satisfactory performance of the engine; it is required to maintain the required recommended cylinder pressure.  Here the average pressure of the dry test is only 4.7kg/cm², against at least 11kg/cm².    Hence the wet test is performed to assess the wear of the engine cylinder/piston.  About 5ml engine oil was poured into the engine cylinder and the wet compression test reading was taken.  It can be seen that the wet compression test reading has been found increased than the dry test.  This indicates that the engine cylinder is having excessive wear and this was temporarily sealed by the lubrication oil to give an increased reading during wet test.  Hence the present condition of the engine is very weak and it requires overhauling by changing the necessary parts like piston and piston rings, cylinder, bearings, head gasket, all oil seals etc.

3.6     The reason for the excessive engine wear at about 13,789kms is due to the overheating of the engine.  However the exact reason for the overheating should be traced before the engine overhauling.  Otherwise the problem can persist after the repair.  The reason for overheating could be mismatched cylinder-piston, problem in the ignition coil, slight block in the oil circulation etc.

So on going through Ext.C1 it can be seen that there are some manufacturing defects with the vehicle.  The complainant had sent an e-mail to the 2^nd opposite party which can be seen from Ext.C1. The e-mail was sent on 07.12.2011 by the complainant after a month of purchase of his vehicle.  But there was no response from the side of 2^nd opposite party.   The silence of 2^nd opposite party can be taken as an adverse inference against them.    

Any consumer when he buys a new vehicle he is under the impression that a new vehicle is bound to be mechanically perfect or that a brand new vehicle would be defect free.   If the vehicle is defective a consumer has a right to seek its replacement or refund of the price.   Though the burden to prove the defect would be on the consumer, yet it must be understood that consumer is not bound to pinpoint the precise nature of defects or its cause or source.

             Hence we find that the complainant has succeeded in proving his case and there is manufacturing defect and deficiency in service from the part of opposite parties 1 and 2.   Hence the opposite parties 1 and 2 are jointly and severally liable to compensate the complainant.   Now it is not possible to replace the defective vehicle with a brand new vehicle as 10 years has been elapsed from the date of purchase of the vehicle.

In the result, the complaint is partly allowed. The opposite parties 1 and 2 are directed to pay jointly and severally an amount of Rs.74,877/-(Rupees Seventy Four Thousand Eight Hundred and Seventy Seven) and can take back the vehicle and pay Rs.15,000/-(Rupees Fifteen Thousand) as compensation for the mental agony suffered by the complainant and pay Rs.2500/-(Rupees Two Thousand Five Hundred) towards the cost of the proceedings within one month from the date of receipt of this order failing which the amount except cost carries interest @ 9% per annum from the date of default till realisation.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Court, this the 17^th day of February, 2021.

SL

C.C.No.85/2012

APPENDIX

1. COMPLAINANT’S WITNESS

2. COMPLAINANT’S DOCUMENTS

3. OPPOSITE PARTY’S WITNESS

4. OPPOSITE PARTY’S DOCUMENTS

5. COURT EXHIBITS

                                                                                                                               Sd/-

PRESIDENT