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 defective engine supplied to the vehicle sold to the Complainant and in the event of failure to do so within a specified period the Opposite parties may be directed to refund the cost of the vehicle and a loss of Rs.25,000/- as compensation to the Complainant.

2. Complaint in brief:- The Complainant purchased a Honda Motor cycle from 2^nd Opposite party on 25.07.2011 on payment of Rs.54,660/- inclusive of all ex-show room charges on delivery of the vehicle. There was 2 years warranty from the date of sale or 32,000/- kms whichever is earlier. Soon after delivery, the vehicle was showing certain complaints like missing of the engine gear slip and jerking when the vehicle is put in gear. It is informed to 2^nd Opposite party and 2^nd Opposite party promised to clear the defects in service. Though the 2^nd Opposite party workshop carried out four service free of cost, the Complaints still exists. The Complainant then decided to sell the vehicle and the purchasers on verification found that the Engine number of the vehicle was removed from the vehicle. The 2^nd Opposite party's workshop admitted the change and suggested to replace a new engine with new engine number. It caused much difficulties to the Complainant. The vehicle is having manufacturing defects. The Opposite parties are bound to replace the new engine to the Complainant. Aggrieved by this the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite Parties and Opposite parties appeared before the Forum and filed version. In the version of 1^st Opposite party, 1^st opposite Party contended that the Complainant breached the warranty conditions by not carrying out the service of the vehicle as per the schedule given in the owner's mannual. The Complainant approached the 2^nd Opposite party for the 1^st time after one month and 25 days from the date of purchase and as per owner's mannual. So the warranty conditions are not applicable here. In the version of 2^nd Opposite party, the 2^nd Opposite party stated that the Complainant purchased the vehicle on 25.07.20011 and brought the bike on 22.04.2012 with complaints of alleged vibration while riding the vehicle. The vehicle was thoroughly checked and it was found that the vehicle was being used negligently and carelessly and on account of which the engine case was found to be damaged. The defect was due to negligent and improper user of vehicle. Even if there is rough use, the company offered replacement of engine under warranty and was replaced under warranty and rectified defects. The Complainant have to take steps to get the engine number embossed on the replaced engine case and the Complainant agreed to do it on delivery. There is no deficiency of service or unfair trade practice from the part o 2^nd Opposite party.

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

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

Opposite parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A4 and commission report is marked as Ext.C1. The commissioner is examined as CW1. The case of Complainant is that the Complaint to the engine of vehicle is due to manufacturing defect. The case of Opposite Party is that the Complainant not carried out the services of the vehicle as per warranty conditions and the vehicle was used negligently and carelessly by the Complainant. So there is breach of warranty conditions. As per commission report ie Ext.C1, the Commissioner inspected the vehicle and found that it is run by 12749 km on the date of inspection. The commissioner stated that the defects noted in the vehicle is due to service defects from dealer and it can be rectified in clear service. The 2^nd Opposite party who is the dealer stated that even if negligent use was there, the engine is replaced by the dealer under warranty time and informed the Complainant to take steps to emboss the engine number in the newly fitted engine in the vehicle. But the Complainant did not take steps to do it. On analysing the evidence, it is found that the engine of the vehicle is replaced by the dealer with another one with no engine number. Thereafter, the complaint still existed and the Commissioner reported that there are somany defects in the engine due to improper service. There is no finding in the report to the effect that there is manufacturing defect in the Engine. The Commissioner stated that the replacement of engine assembly is the solution to clear the defects. So from the evidence it is clear that there is service deficiency from the side of 2^nd Opposite Party dealer. Since there is no manufacturing defect, the 1^st Opposite Party is not liable to replace the engine. Point No.1 is 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 2^nd Opposite party is directed to replace the engine supplied to the vehicle sold to the Complainant with a new one with proper endorsement from the Regional Transport Officer, Wayanad. The 2^nd Opposite party is also directed to pay Rs.5,000/- (Rupees Five thousand) only as compensation and Rs.5,000/- (Rupees Five thousand) only as cost of the proceedings. The 2^nd Opposite party is directed to comply the order within one month from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum. The Complainant is directed to entrust the vehicle for replacement of engine by the 2^nd Opposite Party as and when requested.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 29^th day of October 2015.

Date of Filing:26.06.2012.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Abdul Nazar. Complainant.

CW1. Mujeeb. P.S M.V.I,

Witness for the Opposite Parties:

OPW1. Ayjith. Service Manager, KTC Motors , Kalpetta.

Exhibits for the complainant:

A1. Copy of certificate of Registration.

A2. Copy of Booking Form.

A3. Copy of Receipt Voucher. dt:25.07.2011.

A4. Copy of Service Record Sheet.

C1. Inspection Report. dt:15.04.2013.

Exhibits for the opposite Parties.

Nil.