West Bengal

Birbhum

CC/14/23

1) Biswajit Mondal, C-o Tithi Enterprise, - Complainant(s)

Versus

1) Mahindra and Mahindra Ltd., - Opp.Party(s)

Sanjit Acharya

09 Nov 2017

ORDER

The case of the complainants, in brief, is that they have purchased a Mahindra Scorpio Car being Registration No. WB-54/2938 on 08.05.2013 from O.P No.4 Mohan Motors.

            It is the further case of the complainants that on 06.09.13 all on a sudden the car was found with stating problems at Bolpur and on selfsame date the car was brought to O.P No.2 Rudra Automobiles Pvt. Ltd. Suri, Authorized center of O.P No.1 Mahindra and Mahindra Ltd. but they could not solve the problem. The mechanic of the O.P No.2 was experimenting with the new car of the complainant and they changed all parts of the (Scorpio engine one by one). On 12.09.2013 adviser of the O.P No.2 informed the complainants that after diagnosis they have found ECU related problem and asked for second duplicate key.

            It is the further case of the complainant that he being not satisfied informed the O.P No.1 in writing on 12.09.13 regarding the matter and in response to his letter one Sandip Chowdhury, Assistant Area Manager, Customer Care, Kolkata, Mahindra and Mahindra assured him to restore of the vehicle within short period and also informed the complainant through e.mail for making arrangement for alternative mobility option for the time being till the delivery of the vehicle amounting to Rs. 1000 /- (maximum) per day which will be reimbursed to the complainant but till date they not make such payment.

            It is the next case of the complainant that as per request of the O.P No.2 he submitted 2^nd key of the car to the O.P No.2 and they acknowledged the same and assured him to deliver the vehicle on 16.09.13 but they did not do the same and as such the complainant again reported the matter to the O.P No.1 through his letter dated 18.09.13.

It is the further case of the complainant that thereafter O.P No.2 Rudra Automobiles Ltd. diagnosed that there was defect of wiring kits but after bringing new wiring kits they could not restore the vehicle and then O.P No.2 through their letter dated 24.10.13 informed the complainant that the vehicle was repairable and that will be repaired at Asansol. That they informed it after 59 days.

            It is the further case of the complainant that thereafter they send the vehicle to the workshop i.e. O.P No.3 who could not restore the vehicle and suggested the engine has been damaged. As such the complainant would have to bear the cost of engine.

            It is the further case of the complainant that the vehicle is within warranty period and there was manufacturing defect in the same and as such they could not restore the vehicle for a long time and the complainant is entitled to get replacement of the car but they took the value of the engine of the vehicle for replacement.

            It is the further case of the complainant that the O.P No. 2 and 3 did not restore the vehicle after taking more than 58 days and for which the complainant sustained huge loss and the O.Ps are liable to compensate the complainant.

            Hence this case for directing the O.Ps to pay a sum of Rs. 9,74,000/- with litigation cost.

            The O.P No.1 Mahindra and Mahindra Ltd. Mumbai and O.P No.4 Mohan Motors, Kolkata have not appeared before this Forum inspite of due service of notice and the case was heard ex parte against them.

            O.P No. 2 Rudra Automobile Pvt. Suri and O.P No.3 Rudra Auto Mart Pvt. Ltd. Asansol have contested the case by filing written version jointly denying all material allegation of the complaint contending inter alia that the case is not maintainable and the complainant has no cause of action to bring this case. 

            It is the further case of the O.Ps that regarding keeping of the vehicle in question in service centre for 58 days it is the case of them that on 05.09.13 said vehicle got starting problem and on selfsame date they send expert team for repair of the same at Bolpur but problem could not be solved and on 06.09.13 the vehicle was brought to O.P No.2 by the complainant as per their direction. After checking everything on 07.09.13 it was detected that there was ECU problem. The O.P No.2 informed the complainant in this regard on 16.09.13.On 18.09.13 one Senior Technician examined the vehicle and opined that as per tek-liner engine, wiring harness should be replaced.

            It is further case of the O.Ps No. 2 & 3 that thereafter on 17.09.2013 the complainant lodged a complaint before O.P No.1 by e.mail alleging bad service of O.P No.2. one Sandip Chowdhury, Customer Care Manager, Area of the Kolkata by sending e.mail on 18.09.13 informed the complainant that they were working on the vehicle to rectify the problem and on the same date by sending e.mail Mr. Chowdhury also requested the complainant to arrange for an alternate mobility option for the time being till the opposite parties delivered the vehicle amounting to maximum of Rs. 1000/- per day which would be reimbursed to the complainant on proper submission of bills. But no fruitful response came from the part of the complainant.

            It is the further case of the O.Ps No. 2 & 3 that on 03.10.13 the complainant sent their vehicle to service centre and repair work was started there and on 04.10.13 by sending e.mail the complainant was informed that repair team would take more time to make the vehicle on road and they were providing a loaner vehicle to the complainant so that he would use the same while the vehicle was under repair.

It is the further case of the O.Ps No. 2 & 3 that on 08.10.13 Senior Regional Customer Care Manager, Kolkata by sending e.mail informed the complainant that technical team detected “hydrostatic lock” of the vehicle happened due to entry of water inside engine during driving and such cases are not covered under warranty and will be done on paid basis.

It is the further case of the O.Ps No. 2 & 3 that inspite of several requests the complainant did not issue any work order for repair of the vehicle, rather he took delivery of the unrepaired vehicle on 24.10.13.

It is the case of the O.Ps No. 2 & 3 that they have no latches, negligence and deficiency in service for keeping the vehicle in service centre for repair for 59 days.

It is the further case of the O.P No.2 and 3 that the complainant has filed the present case against the O.Ps alleging manufacturing defect of the engine of the vehicle in question and if it is so, then the manufacturer will be liable as per law and they have been unnecessary made party to this case and their names are required to be expunged.

Ultimately they prayed for dismissal of the case with cost.

            Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

 

DECISION WITH REASONS

During the trial the complainant Biswajit Monal, partner of Tethi Enterprise has been examined as PW1 and he was cross examined by way of filing questionnaires. He also filed some documents.

One Pranab Dutta, Gen. Manager, Rudra Automobile has been examined as O.P.W.1 and he was cross examined by way of filing questionnaires. He also filed some documents.

Heard arguments of both sides.

Point No.1:- Evidently the complainants have purchased the vehicle in question on payment of price from the O.Ps.

            So, the complainant is a consumer U/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:- O.P No.2 has Office within jurisdiction of this Forum.

The total valuation of the case is Rs. 9,89000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:- Both points are taken up together for convenience of discussion as they are related to

each other.

            The complainant Biswajit Mondal in his evidence stated that they have purchased a Mahindra Scorpio Car being Registration No. WB-54/2938 on 08.05.2013 from O.P No.4 Mohan Motors. That on 06.09.13 all on a sudden the car was found with stating problems at Bolpur and on selfsame date the car was brought to O.P No.2 Rudra Automobiles Pvt. Ltd. Suri, Authorized center of O.P No.1 Mahindra and Mahindra Ltd. but they could not solve the problem. The mechanic of the O.P No.2 was experimenting with the new car of the complainant and they changed all parts of the (Scorpio engine one by one). On 12.09.2013 adviser of the O.P No.2 informed the complainants that after diagnosis they have found ECU related problem and asked for second duplicate key.

            The complainant further stated that he being not satisfied informed the O.P No.1 in writing on 12.09.13 regarding the matter and in response to his letter one Sandip Chowdhury, Assistant Area Manager, Customer Care, Kolkata, Mahindra and Mahindra assured him to restore of the vehicle within short period and also informed the complainant through e.mail for making arrangement for alternative mobility option for the time being till the delivery of the vehicle amounting to Rs. 1000 /- (maximum) per day which will be reimbursed to the complainant but till date they not make such payment. That as per request of the O.P No.2 he submitted 2^nd key of the car to the O.P No.2 and they acknowledged the same and assured him to deliver the vehicle on 16.09.13 but they did not do the same and as such the complainant again reported the matter to the O.P No.1 through his letter dated 18.09.13.

            In his evidence P.W.1 Biswajit Mondal further stated that thereafter O.P No.2 Rudra Automobiles Ltd. diagnosed that there was defect of wiring kits but after bringing new wiring kits they could not restore the vehicle and then O.P No.2 through their letter dated 24.10.13 informed the complainant that the vehicle was repairable and that will be repaired at Asansol. That they informed it after 59 days. That thereafter they send the vehicle to the workshop i.e. O.P No.3 who could not restore the vehicle and suggested the engine has been damaged. As such the complainant would have to bear the cost of engine.

            On the other hand O.P.W.1 Pranab Dutta in his evidence stated that regarding keeping of the vehicle in question in service centre for 58 days it is the case of them that on 05.09.13 said vehicle got starting problem and on selfsame date they sent expert team for repair of the same at Bolpur but problem could not be solved and on 06.09.13 the vehicle was brought to O.P No.2 by the complainant as per their direction. After checking everything on 07.09.13 it was detected that there was ECU problem. The O.P No.2 informed the complainant in this regard on 16.09.13.On 18.09.13 one Senior Technician examined the vehicle and opined that as per tek-liner engine, wiring harness should be replaced.

            In his evidence he further stated that thereafter on 17.09.2013 the complainant lodged a complaint before O.P No.1 by e.mail alleging bad service of O.P No.2. One Sandip Chowdhury, Customer Care Manager, Area of the Kolkata by sending e.mail on 18.09.13 informed the complainant that they were working on the vehicle to rectify the problem and on the same date by sending e.mail Mr. Chowdhury also requested the complainant to arrange for an alternate mobility option for the time being till the opposite parties delivered the vehicle amounting to maximum of Rs. 1000/- per day which would be reimbursed to the complainant on proper submission of bills. But no fruitful response came from the part of the complainant. That on 03.10.13 the complainant sent their vehicle to service centre and repair work was started there and on 04.10.13 by sending e.mail the complainant was informed that repair team would take more time to make the vehicle on road and they were providing a loaner vehicle to the complainant so that he would use the same while the vehicle was under repair.

He further stated that on 08.10.13 Senior Regional Customer Care Manager, Kolkata by sending e.mail informed the complainant that technical team detected “hydrostatic lock” of the vehicle happened due to entry of water inside engine during driving and such cases are not covered under warranty and will be done on paid basis. That inspite of several requests the complainant did not issue any work order for repair of the vehicle, rather he took delivery of the unrepaired vehicle on 24.10.13.

So, it appears from the evidence of P.W.1 Biswajit Mondal and O.P.W.1 Pranab Dutta and correspondence made between the parties i.e. letter/e.mail dated 12.09.13, 24.10.13, 13.09.13, 18.09.13, 27.09.13, 03.10.13, 05.11.13, 22.10.13, 04.10.13 & 18.09.13 admittedly problem of starting of engine of the Scorpio car in question was cropped up on 06.09.13 and the vehicle in question was lying in different service centers of the O.Ps for 58 days and inspite of different attempts and experiment of the O.Ps they were unable to repair the same and lastly took plea that their technical team detected “hydrostatic lock” of the vehicle, happened due to entry of water inside the engine resulting from driving of the vehicle in high depth water and so, as per warranty policy, such case are not covered under warranty and will be done paid basis.

Lastly the complainant was compelled to receive back his car in unrepaired condition.

But no such report is forthcoming before the Forum that the problem in engine cropped up due to fault on the part of the complainant.

Evidently inspite of 58 days attempts and experiments and even replacement of engine and other parts of the vehicle (at the cost of the complainant) the O.Ps failed to repair the vehicle in question and we can take help of maxim that Res Ipsa Loquitur that think speaks for itself that the vehicle in question was suffering from mechanical fault and no expert opinion is necessary to prove such mechanical fault.

We further find that everything has happened within warranty period and that amounts to deficiency in service and illegal trade practice.

Admittedly the vehicle in question was lying in service centers of the O.Ps for 58 days for repair.

E.mail dated 18.09.13 sent by Mr. Sandip Kr. Chowdhury, Assistant Area Manager, Customer Care, Kolkata, Mahindra and Mahindra to complainant shows that the complainant was requested for an alternate mobility option for the time being till they deliver the vehicle amounting to maximum of Rs. 1000/- per day which will be reimbursed to the complainant on proper submission of bill.

P.W.1 Biswajit Mondal in his complaint and evidence stated that inspite of several request the O.Ps did not pay charge regarding hired vehicle.

So, the complainants are entitled to get Rs. 1000/- X 58= Rs 58000/- from the O.Ps as charge for alternative mobility option.

The complainant in their complaint claim Rs. 170000/- as charge for replacement of engine.

Tax voice dated 07.12.13 issued by O.P No.4 Mohan Motors Business Pvt. Ltd. shows that Rs. 200648/- was received from the complainant as charge for replacement of the engine and other parts of the vehicle.

So, the complainants are entitled to get Rs. 1,70,000/- for money spent by them for replacement of engine and other parts of the vehicle in question.

Considering overall matter into consideration and material on record we are also constrained to hold that the complainants are also entitled to get Rs. 30000/- as compensation for causing mental agony and harassment by the O.Ps.

            So, the complainants are entitled to get Rs. 58,000/- + Rs. 1,70,000/- + Rs. 30,000/- = Rs. 2,58,000/-.

            Thus these points are decided in favour of the complainant. The case succeeds in part.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 23/2014 be and the same is allowed in part on contest  against O.Ps 2 & 3 and ex parte against O.Ps No. 1 & 4 with a cost of Rs. 2000/-.

            The O.Ps are directed jointly and severally to pay Rs. 2,58,000/- as compensation for deficiency in service and illegal trade practice.

All such payment should be made by the O.Ps to the complainants within one month from the date of this order failing which the complainant shall be at liberty to execute the order as per law and proceeding.

Copy of this order be supplied to the parties each free of cost.