SRI..R. VIJAYAKUMAR, MEMBER. The complaint is filed for getting direction to opp.parties to replace the vehicle No.MD625 AF 1851 C02372 with a new one of the same brand or to pay Rs.28519/- which was remitted by the complainant as price of the said vehicle and compensation along with cost. The averments in the complaint can be briefly summarized as follows: The newly purchased vehicle of the complainant bearing Frame No.MD625 AF 1851 C02372 was not properly working from the beginning itself. The complainant had paid an advance amount of Rs.16,000/- and availed financial assistance from the opp.parties for the balance consideration and the complainant agreed to repay the amount with interest and finance commission in 30 equated monthly instalment of Rs.1391/- each. 2nd opp.party collected signature in 50 Rs stamp paper and 29 blank cheque leaves. The complainant had already remitted the 1st instalment on the date of purchase and had paid 9 subsequent instalments in time. The defects of the vehicle were brought to the notice of 2nd opp.party on several occasions but they never cared to cure the defects. On 7.11.2005 the complainant entrusted the 2nd opp.party for final service noticing again all the defects. When the complainant approached the 2nd opp.party for taking delivery, of the vehicle they said him to come after a few hours. But subsequently the complainant had seen vehicle with a stranger at Sasthamcotta and on enquiry complainant came to know that the 2nd opp.party left the vehicle for strangers for long trips. The complainant approached the 2nd opp.party personally and demanded the delivery of vehicle on 9.11.2005 but the opp.party not responded. Hence the complainant issued Advocate notice demanding either to pay compensation or to replace the vehicle with new defect less one. 1st opp.party has not responded. 2nd opp.party replied with false versions. The complaints of the vehicle were due to the manufacturing defect and those were not cured on repeated requests. The vehicle was misused when it was given for servicing. These act of opp.parties amounts to deficiency in service and hence the complaint. The opp.parties filed version contending, interalia, that the complaint is not maintainable either in law or on facts. The purchase of the vehicle is conditional, subject to hypothecation agreement. The vehicle was in a very good condition at the time of said purchase and no complaint was made by the complainant upto the 5th service. Complainant paid periodical instalments regularly. It is not correct to say that he availed financial assistance from opp.parties for balance consideration and the statement that opp.parties obtained signature of complainant and his guarantor in 50 rupees stamp paper and unfilled paper is not true. The opp.parties have not in receipt of blank cheque of complainant. As per the condition of users manual the last free service should be either within the period of 12 months from the date of purchase or upon the completion of running of 12000 Kms. which ever is earlier. Complainant brought the vehicle for service upon the completion of 8th month of the purchase and upon the completion of running 16804Kms. The mechanics offered paid service but the complainant demanded free service and left the vehicle at service station. It is reliably known that the complainant used the vehicle for rental purpose which resulted in excessive use. The opp.parties are unaware of the allegation that the vehicle was used by stranger. There is no deficiency in service on the part of opp.parties. The complainant is liable to be dismissed and the complainant is liable to pay compensatory cost to the tune of Rs.5000/- The complainant filed affidavit, Ext. P1 to P5 marked. Expert report was filed and expert was examined as PW.2. Opp.parties have no oral or documentary evidence. The points that would arise for consideration are: 1. Whether there is any deficiency in service on the part of opp.parties 2. Compensation and cost. Points 1 and 2 The complainant alleged in the complaint that the vehicle was defective from the beginning itself. The vehicle was not properly balancing. It was holding mileage complaint and starting head lights were not working properly. Even though it was brought to the notice of the 2nd opp.party he had not cared . The opp.party stated that the allegation is not true. The complainant never lodged any complaint about roadworthiness, mileage, starting troubles, balancing or about the functioning of headlights. The complainant has not produced any evidence to show that he had lodged complaints before opp.parties. Ext.P1 is written complaint sent to the opp.parties. But it was sent only after 8 months and the letter was dated as on 9.11.2005. If there was serious manufacturing defect for the vehicle it might have been taken by the complainant more seriously from the beginning itself.. Even though the complainant stated that he has informed matter in times of servicing no evidence submitted to prove his statement. From this attitude of complainant itself it is obvious that there was no serious defects as he alleged. The 2nd opp.party has stated that the complainant produced the vehicle for the 5th service after the completion of 8 months and upon the completion of 16804 kilometers. As per the condition of users manual the last free service should be either within the period of 12 months from the date of purchase or upon the competition of running of 12000 kilometers whichever is earlier. Users manual was not produced by the complainant in support of his allegation. The burden to prove that the denial of opp.parties for the 5th service was against the provision of users manual is upon the complainant. The complainant failed to prove the allegation. Ext.P5 is the expert report. The report clearly stated that in his inspection it is found that the overall performance of the vehicle is satisfactory while he has conducted road test along with the complainant. Vehicle is properly balanced and it was agreed by the complainant also. The vehicle has a balanced fuel efficiency and approximately above 70 KM per litre on normal road condition. The vehicle is getting start by a single kick itself. The head light gown properly but the light effect could not felt due to the day light, even though it may have sufficient at night period. There was no other suggestions by the complainant and he had made a comment that the company might have done some tricks in the vehicle to make it proper and efficient. The complainant challenged the correctness of the Expert report, But in the cross examination also the complainant could not impeach the correctness of expert report . The allegation of the complainant that his vehicle was used by us known person also was not proved On a detailed verification of all documents and evidence, we find that there is no deficiency in service on the part of opp.parties. In the result the complaint is dismissed. No costs. Dated this the 27th day of June, 2009. . I N D E X List of witnesses for the complainant. PW.1. – Noushad PW.2. – Abdul Nizar List of documents for the complainant P1. – Copy of complaint P2. – Copy of Advocate notice P3. – Postal receipt dated 16.11.2005 P4. – Acknowledgement card P5. – Expert opinion filed by M.O. Abdul Nizar. | 
