SMT. RAVI SUSHA :  PRESIDENT

    Complainant filed this complaint  under Sec.12 of the Consumer Protection Act 1986  seeking an order against Ops to  give a new vehicle or pay  Rs.3,00,000/- for their unfair trade practice or deficiency in service.

     Brief  facts of the case are that the   complainant purchased a AsokLayland Dhosth LS having Reg. no.KL-58Q5483 from the dealer 1^st OP on 4/8/2015.  The complainant had paid Rs.21500/- one Nijil field  representative of  1^st Op for the preliminary  expenses as demanded by 1^st OP and also signed certain documents.  He was told by  OP’s representative that the vehicle  having no defect in engine and it has capacity to carry 1 1/4^th  tone weight.  Mr.Nigil had obtained the signature of the complainant on certain documents for arranging vehicle loan from 2^nd OP.  Actually the complainant does not have any knowledge or connection with the financier 2^nd Op.  A few days of taking delivery of the vehicle the complainant noticed that the vehicle is a defective one.  It is noticed that the engine became off when try to start the vehicle with customer’s materials.  He took the  vehicle to the service  centre of 1^st OP for  three  time with engine complaint.  The complainant took the vehicle even to the Regional office of 1^st OP at Kozhikode due to  engine complaint with the help of crane.  Thus the complainant had to spent more money.  Even  then he remitted the EMI  of finance company(2nd OP).  On 17/1/2016 the vehicle  became breakdown and on the  next day it took to OP1’s service centre at Pariyaram through crane.  Then they informed that the vehicle is having engine complaint and the engine will have to be  replaced.  But  1^st Op was not ready to replace  the engine.  As per the direction of 1^st OP, the mechanic of service centre dismantled  that  parts of the vehicle and not yet returned the vehicle.  The complainant many times demanded  to 1^st OP to give a new defect free vehicle.  But all his attempts were in vain.  He had to spent, vehicle loan, advance amount, repairing charge, crane charges etc.  So the complainant filed this complaint claiming  Rs.3,00,000/- from Ops.

    After receiving notice, 1^st OP filed version, denied  all the allegations of the complainant in the consumer complaint.  1^st Op contended that the complainant purchased a vehicle having reg. No KL 58Q 5483 LCV on 29/7/2015 and its 1^st,2^nd and 3^rd services were done at Indus Motors LCV Kannur.  At that service time the vehicle had only gear tight complaint within the warranty period the  parts were replaced free of cost .  When the  vehicle was taken to Pariyaram service centre on 16/1/2016 the complaint noted was valve sound complaint.  Against the instruction  of the  mechanic of 1^st OP to  take the  vehicle  on crane, the complainant  driven the car for 12km for taking it to the workshop.  Then the valve and piston of  vehicle  became defective.  It was properly repaired and informed the same to the complainant by phone.  Then the complainant was not ready to accept the vehicle and demanded for a new brand vehicle.  Thus the complainant willfully delayed to accept the vehicle.  After that many times the OP contacted the complainant and informed to take possession of the  repaired vehicle.  At last on 8/7/2016 a registered letter was sent to the complainant.  According to 1^st Op, the vehicle is in running  condition and within 6 months the vehicle run 26291 km.  Now 1^st OP is paying  damarage charges Rs.500/- per day.  There is no deficiency in service on their part and prays for the dismissal of the complaint.

    For proving the case, complainant has filed chief affidavit and documents.  Complainant was examined as PW1 and marked Ext.A1 to A9.  He was  made cross-examined for 1^st OP.  On the side of Ops the works manager of 1^st Op  has filed chief affidavit and documents.  He was examined as DW1 and marked Ext.B1 to B4.  He was made cross examined for the complainant.  AMVI Kannur Sri.Pradeepkumar was examined as PW2 and marked expert report as Ext.C1.

   Both parties have not filed written argument notes.  The learned counsel of both parties made oral argument before  us.  We have considered the arguments of both learned counsels and also perused the records brought before us.

      Complainant’s allegation is that within dates of purchase of the vehicle from 1^st OP, its engine became defective and many times it was taken to 1^st Op’s service centre by crane and repaired.  At last on 17/1/2016 the vehicle became breakdown and it was entrusted to 1^st OP for repair work and thereafter it was never delivered back.

   On the other hand 1^st OP pleaded that Ext.B3 shows that they have given intimation to the complainant that the vehicle was repaired perfectly and take it, but he never turned to collect the vehicle and also submitted that Ext.B1 shows that on 18/1/16 when the vehicle was taken to their workshop it run over  26291km and  Ext.B2 series shows  the vehicle history card from 29/7/2015 to 26/3/2017.    According to 1^st OP, from Ext.B2 series the vehicle  run over 26293 kMR.  Op1’s version is that the vehicle had only minor complaint and  it was properly repaired within days  of 18/1/2016 and intimate the same to the complainant.  So on their part no deficiency in service or unfair trade practice.  1^st OP claims that the complainant  was informed that the vehicle was ready for delivery after necessary repairs and the  complainant was asked to collect the same  from the service centre, but Ext.B3 letter  does not  bear any date of  its issuance, however date  8/7/2016 is written by  some one at the top of the letter.  On the basis  of this document, it has been contended by the 1^st OP that the vehicle was  in fact brought to their service centre on 18/1/2016 and  then was repaired but was not collected by the complainant and a false complaint has been filed.  For proving the  contentions the 1^st OP taken steps for appointing an expert and as per  their application Mr.Pradeep Kumar,CA, AMVI,RTO Kannur was appointed as expert.  He has inspected the vehicle at Pariyaram Indus Motors(LCV)Pvt Ltd(workshop of 1stOP) after giving notice to both parties and filed a report.  The report is marked as Ext.C1.  On a perusal of Ext.C1, it can be seen that the expert inspected the vehicle on 8/8/2018 then the kilometer covered was 26641km.  The defect and condition of the vehicle at the inspection time was(a) found oil leakage through drain plug of transmission case

(b) transmission extension housing  found replaced unnecessarily with new one like

©Rear right side brake valve found unnecessarily replaced with new one like

(d) front right side outside  rear view mirrors found brokened and replaced with old part.

(e) front left side and right side brake caliper unit found unnecessarily replaced with new one like

(f)Coolant found leakage through cooling system

(g) Timing gears cover found  not screwed and fastened properly

(h)Oil pump assembly found not screwed and  fastened properly to the engine block

(i) Fender marker light left and right found unnecessarily replaced

(j)Rear left side tail lamp assembly found unnecessarily replaced with new one

(k) Also noticed engine assembly in rebuilt condition and vehicle in starting condition.

     The expert commissioner concluded the report (Ext.C1)with a remark that “ even though the performance of the vehicle is satisfactory  but the work is not completed upto the  technical requirements such as proper fastening of bolts, nuts, screws etc which shows negligent on the part of the servicing authority. Also it is evident  that the some parts of the vehicle has been replaced unnecessarily with new one like shows  negligent from the servicing authority.”

   The testimony of expert commission (DW2) shows that the major technical problem  is oil leakage of transmission case and also reveals that even before the inspection of expert , the vehicle  was repaired and further deposed  that  on examination the vehicle covered by full of  dust and some defects in the vehicle exist at the time of inspection.

   On analysis of DW2’s evidence it is clear that some defect is still exist at the time of inspection and the vehicle was repaired  even  before the inspection.

    Moreover Ext.A3 shows that the defect noted was “engine not starting”     Ext.A4 shows that the vehicle was taken to the workshop by Towing.  DW1 during cross examination admitted that Ext.A8 series photos belong to the complainant’s vehicle. From Ext.C1 report, Ext.B3 and from Ext.A8 series reveal  that the claim of OP.1 about repairing  of the vehicle within dates is baseless and the vehicle delivered to  the complainant is a defective one .  This conduct of 1^st Op amounts to deficiency in service for  which 1^st OP is liable to pay compensation.  However Ext.C1 report shows the vehicle covered 26641km.

   It is a fact that the vehicle was entrusted to 1^st OP for repairing within months of its purchase.  Therefore the 1^st Op was duty bound to return the vehicle after repairing .  Here there is deficiency in service on the part of 1^st Op.

   In view of the  aforesaid, we are inclined to allow the complaint in part.

        Ist Opposite party dealer is directed to remove the defects in the vehicle and give a defect free certificate signed by a Senior Officer(General Manager) of the manufacturers within a period of 45 days from today or  pay the value of the vehicle with interest @4% per annum from the date of  the complaint till the date of realization.  1^st Op is further directed to pay Rs.25,000/- as cost and compensation for the  mental agony and financial loss incurred to the complainant.  Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.

Exts:

A1-warranty card

A2-order confirmation   form dtd24/7/15

A3-Job sheet dtd18/1/16

A4- crane bill dtd18/1/16

A5-job sheet

A6-job proforma

A7-copy of police complaint receipt

A8- photo of vehicle

A9-CD

B1-Extract form gate pass registrar

B2- computer  generato vehicle history card

B3- copy of registered letter

B4-acknowledgment card

Pw1-Prashobkumar.K.K-complainant

DW1-Romance.G-      witness of OP

DW2-Pradeepkumar.CA –do-

Sd/                                                                   Sd/                                                                 Sd/

PRESIDENT                                               MEMBER                                                        MEMBER

Ravi Susha                      Molykutty Mathew.                            Sajeesh K.P

eva         

                                                                                               /Forwarded by Order/

                                                                                           SENIOR SUPERINTENDENT