By Shri. M.P.Chandrakumar, Member :    

          The case of the complainant is that believing in the words of the 2^nd opposite party regarding the good quality, the  complainant purchased a Hero Honda Passion Pro  motor cycle on 23-12 -08 as per invoice No.580, by paying Rs.44,650/-  as the price of the vehicle and Rs.4,483/- as tax and registration charges. The complainant was a building contractor, engaged in the construction of houses in various parts of Trissur and the bike was purchased, considering the necessity to reach the different sites. However, within one week of the purchase, the vehicle started showing starting problems, engine problems self problem, etc. Hence, on 8-01-09, the complainant showed the vehicle at the service centre and got the vehicle repaired. However, thereafter also, the vehicle showed several complaints day by day. Therefore, the complainant had  to bring the vehicle to the service centre on 5-02-2009, 4-03-2009, 5-03-2009, 30-03-2009, 10-06-2009, 3-07-2009, 25-07-2009, 17-08-2009, 26-08-2009, 8-10-2009, 19-11-2009, 26-11-2009, 14-12-2009 and 18-12-2009 and got the vehicle repaired. After each repair, the vehicle showed another complaint. Thus, since there was complaints with engine, crank, battery, wheel, silencer etc, the complainant found it difficult to ply the vehicle smoothly. Sometimes, the complainant found it difficult to switch off the vehicle. At that time, the staff of the service centre had approached on the spot and rectified the problem. Thus, within one year of purchase, the vehicle was repaired during almost all months. Since the vehicle showed complaints at the very inception of purchase and was also under repair during almost all months, the complainant asked the opposite party to replace the vehicle with a new one, every time he took the vehicle for repairs. But the opposite party denied the request. Even after the repairs on 18-12-2009, since there occurred complaints again regarding oil leakage, engine sound, cutting the edge of the tyre etc, and the complainant found it unable to use the vehicle with confidence and reach his place of work. Hence, on 16-02-10, he took the vehicle to the showroom of the 2^nd opposite  party and asked him to replace the vehicle. But the 2^nd opposite  party not only turned up the request but teased him in front of other persons, causing the complainant mental agony. The complainant therefore sent a lawyer notice dtd. 15-03-10 to the opposite  parties, asking either to replace the vehicle or refund its cost. Even though the opposite  parties received the notice, they never tried to settle the matter but sent a reply with untenable conditions. According to the complainant, the act of the opposite  parties in selling a defective vehicle by saying that it is a good one amounts to unfair trade practice and cheating the complainant. Hence the complaint filed, with prayers to either to replace the damaged vehicle with a new one in good condition  or to refund the amount  spent being Rs.49,133/- with 12% interest.

          2) In the versions filed, 1^st & 2^nd opposite parties states that it was not due to any compulsion but at his choice that the complainant purchased the vehicle. The warranty offered for the model is two years or 30,000 kms, whichever is earlier. However, the complainant has not produced before the Forum, the owner’s manual in which the warranty certificate and other terms and conditions are included. The opposite parties deny the allegations of the starting of the various problems to the vehicle, within a week of purchase. According to the opposite parties, when the vehicle was brought for the 1^st  mandatory service, even though the complainant had pointed out certain aspects to be looked in to, viz accelerator cable tight, starting complaint, front sound, self sound and engine sound, on thorough examination of the vehicle, no specific problems/complaints was observed. Hence as a routine course, basically all routine maintenance was done, the engine oil changed and the vehicle was delivered back to the complainant, who accepted the same with full satisfaction. The only problem raised by the complainant after this was the problem regarding to self starting sound on the occasion of the 4^th service at 7350 kms and the above issue was attended satisfactorily. Further, the said issue was not raised up to 14-02-09 at 15537 kms, which was solved by changing the self starting unit on 18-09-09. Thereafter, the complainant has not raised the above problem. As regards the problem of engine sound raised by the complainant when the vehicle had run 14664 kms, even though the technicians thoroughly checked the vehicle, they found that the engine sound was quite normal. However, as a gesture of goodwill, the opposite party has replaced the muffler on 18-12-2009 at 15688 kms. Thereafter, no complaint was raised on this aspect. As regards the problem of oil leakage raised by the complainant on few occasions, it was found, on examination that the complaint was not genuine. But to satisfy the customer, the opposite party used to examine the vehicle on each occasions. On every occasion the vehicle was brought raising the above complaint and in routine course,  gaskets and oil seal had to be replaced free of cost. Likewise, on 17-08 09, at 11093 kms, as a gesture of goodwill, the 2^nd opposite party had made certain replacements including that of crankshaft to satisfy the customer. The problem raised with regard to the tyre of the vehicle, oil leak etc are false. In fact, all the complaints raised are the creations of the complainant and not at all genuine and the opposite party had to yield to the demands of the complainant to avoid the problems/nuisance created by the complainant. All replacements were made purely to satisfy and convince the customer as a gesture of goodwill and for purchasing peace. The opposite party further points out that the vehicle was observed to be heavily misused by the complainant to carry cement, sand and building materials, which caused harm to the condition of the vehicle. Moreover, even after the six mandatory services, the vehicle is supposed to be brought for the routine service at a gap of 2500 kms or 60 days whichever is earlier. However the complainant has failed to bring the vehicle for service accordingly by which the performance would be adversely affected and there is likelihood that the vehicle may develop problems. It is clear that the vehicle was not brought for service after 18-12-2009. Thus all the allegations of problems to the vehicle are false and hence denied. The complaints raised by the complainant cannot be attributed to manufacturing defect or improper service on the side of the opposite parties. Thus, at any rate, the complainant is not entitled for replacement of the vehicle, as claimed. There is no unfair trade practice on the part of the opposite  parties  and hence the complaint be dismissed with costs.

          3) The points for consideration are

                   1. Is there any deficiency of service on the part of the opposite 

                       parties ?

                   2. If so ,compensation and cost

          4) Evidence consists of oral testimony of PW1 & RWI, report of the Expert Commissioners marked as Ext. CI & C2, and documents marked as Exts. A1 to A11   from the side of the complainant. No documents produced from the side of the opposite party. The complainant has filed proof affidavit whereas 1^st opposite party has filed counter proof affidavit. Among the documents, Ext. A1 is the copy of the delivery certificate, conditions of warranty  and service record sheet; Ext. A2 is the copy of certificate of registration; Ext. A3  is the copy of the invoice; Ext. A4 is the copy of the cash receipt of motor vehicles department; Ext. A5 is the copy of the warranty card of exide battery; Ext. A6 is the copy of tax license; Ext. A7 is the copy of lawyer certificate; Ext. A8 & A10 are the postal receipts; Ext. A9 is the A/D card; Ext. A11 is the receipt of advance payment for the bike.

          5) It can be seen that the main contention of the complainant is that the problems after problems repeatedly occurring to the vehicle shows that the vehicle has manufacturing defect. The vehicle showed several complaints within the guarantee period of two years and it is proved that it cannot be repaired. As such, he faces difficulties to reach his work sites, thereby lost several works, caused financial loss and mental strain. Hence his prayer is to take back the vehicle with manufacturing defect and give either a new one or refund the amount paid.

          6) As against this, the argument of the opposite parties are that the complaints raised by the complainant cannot be attributed to manufacturing defect or improper service. The complaints raised are not at all genuine and the opposite parties had to yield to the demands of the complainant and replace certain parts as a gesture of goodwill and for purchasing peace and to avoid the problems/nuisance created by the complainant. Moreover the complainant has misused the vehicle by carrying heavy loads including cement, sand, building materials etc, which cause harm to the condition of the vehicle. However the opposite party have effectively attended the vehicle and done all service/repair to the vehicle whenever required in a satisfactory manner. The 1^st Expert Commissioner has have finally concluded that the vehicle can be put to use, if reasonable repair is done, whereas the report of the 2^nd Commissioner, who has not even ventured to conduct engine performance test, is totally erroneous and liable to be rejected. Moreover, the complainant has not succeeded to establish the manufacturing defect of the vehicle or any deficiency of service from the side of the opposite parties.

          7) To arrive at a decision in the matter, the Forum has gone in depth in to the two commission reports, the 1^st report of Sri. M. K. George, dtd. 25-10-11 and the 2^nd report of Sri. K. K. Ramachandran, both of the Department of Mechanical Engineering of various colleges. Both the reports more or less points out the manufacturing defect of certain parts the vehicle.

          8) Sri. M. K. George, the Expert Commissioner, in the report, states as follows “സാധാരണയായി പഴക്കത്തിനനുസരിച്ചു  വരാവുന്ന കേടുപാടുകളില്‍ കൂടുതലായി കേടുപാടുകള്‍ സംഭവിച്ചതായി കാണുന്നുണ്ട്. പ്രത്യേകിച്ച് ക്രാങ്ക്ഷാഫ്റ്റ് കേടായാതുകൊണ്ട് മാറ്റിവെച്ചതായി കാണുന്നു ....... അത്തരമൊരു മാറ്റിവെക്കല് ഈ വണ്ടിയെ സംബന്ധിച്ച് കാര്യമായ തകരാര്‍ ആണെന്നും ആയത് ഒരു manufacturing defect ആയി കാണാവുന്നതാണ്”.  Certain other deficiencies   of manufacturing defect nature, pointed out by the Commissioner includes  among others, the  following “ പിന്‍ഭാഗത്തെ tyre പതിവില്‍ കവിഞ്ഞ് സൈഡ് വെട്ടിത്തെയുന്നതായി കാണാന്‍ കഴിഞ്ഞു. ഷോക്ക്‌ അബ്സോര്‍ബെര്‍കളുടെ പ്രവര്‍ത്തനവൈകല്യ മായിരിക്കും  അതിന്‍റെ കാരണമെന്ന് അനുമാനിക്കുന്നു. His  concluding statement  that if the vehicle is repaired properly, “വലിയ കുഴപ്പമില്ലാതെ  ഉപയോഗിക്കാവുന്നതാണ് .......’’ goes on to prove that even the Commissioner is doubtful that even proper repairs can make the vehicle ply  not smoothly, but only   in  “ വലിയ കുഴപ്പമില്ലാത്ത ” condition.

          9) Sri. K. K. Ramachandran, the Expert Commissioner, whose report is dtd. 15-10-13, who has also conducted a detailed examination, mainly points out the following observations

1. Normally, if some excess sound comes out from the engine once in a while, it cannot be considered as a major issue or manufacturing defect. But here, based on the analysis of the engine problems reported by the complainant  and attended by the authorised service centre, its nature, gravity, frequency of occurrence and the time period of occurrence from the very purchase of the two wheeler, it is unambiguously clear that the engine of the two wheeler was having some manufacturing defects.
2. As the two wheeler was presented at the authorised service centre at regular intervals and specifically reported the rear wheel problem on 4-03-09 itself, and considering the fact that the two wheeler has run only 17783 kms, it is certain that abnormal wear noticed at the rear tyre is due to some major defect in the suspension system that the authorised service centre couldn’t rectify by regular repeated attempts. Based on the facts and findings stated in paragraph 10.2, 10.3 & 10.4  above, it can be explicitly concluded that the abnormal wear of the rear tyre is due to some manufacturing defects .
3. As stated above in various paragraphs, the two wheeler has met with a bunch of problems and the service people was forced to replace major components like crank shaft, starter motor and exhaust muffler during the very first year of service life of the two wheeler itself, it is very clear that something seriously wrong with the components and the built quality of the two wheeler. Therefore performance statistics of the 1^st one year of the two wheeler suggests that there is low probability that the two wheeler gives a trouble free service life even after due repairs in future.
4. Components like crank shaft of an engine are critical ones and should undergo stringent, 100% quality control trials before assembly in the factory. Therefore failure and replacement of components like crank shaft in the very 1^st year of service life is a very serious issue.
5. The dust and rust formation and the overall body condition at present do not show any sign of mal usage  or abandoning of the two wheeler in open climatic conditions.
6. In this case, as the complainant has not raised any complaint regarding the efficiency or fuel economy or milage of the two wheeler, there is absolutely no need for conducting any engine performance tests.
7. The two wheeler, purchased on 23-12-08  has been produced 15 times at the authorised service centre, within a period of 12 months, for 8 regular services  and 7 more times for repairs

          10)  Even though 1^st opposite party has filed some objections to the commission report, the Forum cannot find any serious objections, especially the denial of the observation in respect of manufacturing defect. Also, no objection has been filed by 2^nd opposite party to the report. All these compels the Forum to conclude that even the opposite parties are admitting the manufacturing defect of the bike. The report of the Expert Commissioner, who has prepared the report after verifying the documents also, in addition to the present condition of the vehicle, has reported that the vehicle had been brought to the service station of 2^nd opposite party innumerable times for various repairs, proves that the complainant was unable to use the vehicle effectively even during the 1^st year of service. At present, due to the recurring problems, the complainant couldn’t use the two wheeler and thus he was forced to keep it idle for the last more than three years.

          In the result, the complaint is allowed. The opposite  parties are directed to refund the complainant Rs.49,133/-, (which includes cost, insurance, tax registration charges), with 12% interest from the date of  purchase of the vehicle being 23-12-2008. This is in addition to Rs.10,000/- towards compensation and cost, for conducting the case for  the last  seven years. The payment should be made within a month of the receipt of this order by 2^nd opposite party. After complying this order 2^nd opposite party can recover that amount from the manufacturer, the 1^st opposite party. On receiving compensation the complainant is directed to hand over the vehicle to the 2^nd opposite party after cancelling the registration.

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 19^th day of August 2017.