BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^TH DAY OF DECEMBER 2023

ORDER

SMT.M.SHOBHA, PRESIDENT

1. The complaint has been filed under Section 35 of C.P.Act (hereinafter referred as an Act) against the OP for the following reliefs against the OP:-

1. To replace the defective parts or recall the manufacture defective a Brand-New Mahindra TUV300 T4+MHAWK100 Silver Car on 28-Nov-2019 from AnantCars Private Limited (Mahindra Authorised Dealer) showroom and got it registered vide Regd. No.KA05-MZ-9975 on 06-12-2019.

2. The sum of Rs.1,00,000/- to the complainant towards of his car accessories and other parts of car which was rested because of water leakage/storage in the car.

3. The sum of Rs.10,00,000/- with interest at the rate of 24% p.a., to the complainant towards mental agony, emotional distress, stress and harassment undergone by the complainants due to the manufacture defective and deficiency of service on the part of the OP.
4. The sum of Rs.50,000/- incurred towards the cost litigation. Total Rs.16,12,000/-.

2. The case set up by the complainant in brief is as under:-

The complainant purchased a brand new Mahindra UV 300 T4+MHAWK100 Silver Car from OP1 on 28.11.2019 along with a Shield 4^th year extended warranty from 14.12.2022 to 15.12.2023 and got it registered vide reg. No.KA05-MZ-9975 on 06.12.2019.  After purchase of the car on 15.09.2020 he had noticed a problem in the car, water storage in the co-driver seat leg space in the rain season. He has taken his vehicle to the showroom and explained the problem faced by it to OP1 and later the vehicle was got serviced and delivered to him.  Again he has faced the same problem at the time of raining. Again he has taken the vehicle to OP1 and he has explained to service executive about the problem and it was not resolved and persisted with the same issue.  The service centre executive assured to resolve the issue within 10 to 15 days and they have informed the complainant to leave his vehicle atleast for 15 days to resolve this water issue. The complainant has left the vehicle in the showroom. Further he has found the same issue consecutively and he has addressed the issue to OP2 customer care on 0109.2021 and on the same day he has received the reply from the customer care automotive division.  They have assured to rectify the issue and again the vehicle was brought to OP1 showroom and again the vehicle was with the OP1 for more than 10 days and later they have returned with oral assurance that the problem was solved and no issue with water leakage.  

3. It is further case of the complainant that after first service of the vehicle he has addressed the issue and explained in detail to service executive during the period of service by orally along with email to the OP2 customer care and also OP1 service centre.  Even after taking the serviced vehicle it was unfruitful and the issue was persisted and uncleared.  When the OP1 failed to set right the permanent solution the complainant could not go for long road trip. The complainant was fed up with manufacturing defect of the car and service of the Ops and irresponsible attitude.
4. It is further case of the complainant that on 23.11.2021 he has filed a case against the OP1 limited through consumer helpline.govt.in for the same issue of water storage/leakage in the cabin’s co-drivers leg space from the car. The OP1 had replied by accepting their mistake that at the time of selling they have sold the brand new car with manufacturing defect to the complainant.  They have replied saying that this vehicle again reported with same concern on 24.11.2021.  After intense diagnosis SCR raised and taken up with PVT team as there was water leakage found from APRON area(metal body) near the wiring mounting screw.  They have informed the complainant that they are going ahead with the replacement of body shell worth 2.3 lacks and they have further informed that it will take almost 60 days to receive. The OP1 has replaced the body shell but the issue was not resolved even after the replacement. The OP1 have also promised the complainant in the grievance complaint to fix the issue permanently, but the water leakage storage problem is still persisted and uncleared.  Inspite of the complainant’s repeated request the Ops ignored the complainant’s request to replace the defective part or to recall the defective car. Hence the complainant has filed this complaint.

5. In response to the notice, OP1 has not appeared before this Commission, hence OP1 placed exparte. OP2 has appeared and filed their version.
6. It is the case of the OP2 that this OP1 and 2 act on the principal to principal basis for sale of the cars and vehicles. The liabilities of the OP1 and 2 are exclusive of each other.  
7. It is further case of the OP2 that the manufacturing process is mechanical and not manual due to the advance technology that is used. The vehicles are manufactured in batches and raw materials in these manufacturing brought in bulk and have been used in several vehicles manufactured in the same branch. No other vehicles manufactured in the same batch have reported any grievances.  There is no manufacturing defect which causes water accumulation in the leg room of co-drivers seat in the vehicle.  The issue complained of being one that requires a technical analysis an expert’s opinion is to be examined by the complainant.
8. It is further case of the OP2 that every time the vehicle was reported for servicing all requested works have been carried out. The complainant after availing the services has signed the satisfaction note on 24.06.2022.  The parties in the present transaction are bound by certain terms and conditions of warranty manual and they cannot go beyond the scope of such terms and conditions.  The alleged vehicle is still in use with the complainant and he continuous to use the same without raising any issue and he has not returned the vehicle to the service station complaining the issue of water accumulation as the same is resolved.  In view of the plethora of the Hon’ble apex court and the national Commission it is an established fact that it is the duty of the complainant to furnish sufficient evidence to corroborate such defect as alleged without which the complainant cannot claim any relief and he is not entitle for the relief sought in the complaint.
9. The vehicle being put to use by the complainant and since he continuous to make use of the vehicle for the intended purpose he is not entitle for any relief. Hence the OP2 prays for dismissal of the complaint.
10. The complainant has filed his affidavit evidence and relies on 09 documents.  Affidavit evidence of OP2 has been filed and OP2 relies on 05 documents.
11. Counsel for complainant and OP2 have filed their written arguments with citations.

12. The following points arise for our consideration as are:-

1. Whether the complainant proves deficiency of service on the part of OP?
2. Whether the complainant is entitled to relief mentioned in the complaint?
3. What order?

13. Our answers to the above points are as under:

Point No.1:  Affirmative

Point No.2: Affirmative in part

Point No.3: As per final orders

REASONS

14. Point No.1 AND 2: These two points are inter related and hence they have taken for common discussion.  We have perused the allegations made in the complaint, version of OP2, affidavit evidence of complainant and OP2 and written arguments of both the parties and documents.
15. It is undisputed fact that the complainant purchased a brand new Mahindra TUV 300 T4 +MHAWK100 silver car from the OP1 on 28.11.2019 along with a shield fourth year extended warranty from 14.12.2022 to 16.12.2023. 
16. It is the specific grievance of the complainant that the vehicle had a water accumulation problem in the leg room of the co-drivers seat during the rainy season. The complainant approached the OP1 to fix the said water accumulation but the same was not rectified even after several services.  Though the OP1 replaced the body shell of the vehicle as per the undertaking given by OP1 before the grievance cell the issue of water leakage in the leg room of the co-driver seat in the vehicle was not resolved and it is still persisting.  
17. In support of his contention the complainant has filed his affidavit evidence and relied on Ex.P1 to P9, Ex.P1 to P5 are the admitted documents and they are the registration certificate, purchase invoice, loan sanction letter, invoices of accessories and extended warranty. Ex.P6 is the email conversation between the complainant and OP1 and 2. Ex.P7 is the aadhar card, Ex.P8 is the photos showing the water collection in the leg space.
18. The email conversation clearly discloses that the service history and problem faced by the complainant. The OP2 have also produced Ex.R4 the vehicle service history visits.  As per Ex.R4 the complainant visited the OP1 for water leakage problem repair on 16.11.2022 which was covered under warranty. Again he visited to the OP1 for the same problem on 17.06.2022 and 12.05.2022, 12.02.2022, 19.01.2022, 02.12.2021, 28.10.2021 and 01.09.2021, 14.08.2021 24.12.2020 and 11.03.2020.  The complainant has visited the OP for more than 11 times for the water leakage problem but the problem was not solved by the OP1.  The complainant has also raised the issue with OP2 and OP2 has not at all resolved the problem. Whenever the complainant visited the service centre of the OP1, he has to leave the vehicle for more that 10 to 15 days in the service centre for the purpose of repair and the vehicle was in the service centre of OP1 for more than six months.
19. It is also the specific grievance of the complainant that he has not signed the satisfaction note and it is self-created document by OP2 using OP1 satisfaction form and they have forged the signature of the complainant with the dummy signature of the complainant. If it is genuine document the OP1 should have appeared before this Commission. In addition to this the complainant had also addressed the same water leakage problem continuously to the OP2 customer care from 24.12.2020 till 18.01.2023.
20. On the other hand, the main contention taken by the OP2 is that this OP1 and 2 are act on a principal to principal basis for sale of the cars and vehicles and their liabilities are exclusive of each other.   The main contention of the OP2 is that the vehicles are manufactured in batches and the raw materials used in this manufacturing are brought in bulk and have been used in several vehicles manufactured in the same batch. No other vehicles manufactured in the same batch have reported in any grievances. There is no manufacturing defect which causes water accumulation in the leg room of the co-driver seat in the vehicle.  Every time the vehicle was reported for servicing all requested works have been carried out and the complainant has also signed the satisfaction note. The parties to the present transaction are bound by certain terms and conditions of the warranty manual and they cannot go beyond the scope of such terms and conditions. The vehicle is still in use with the complainant and he continuous to use the same without raising any issue and he has not returned the vehicle to the service station raising the issue of water accumulation as the same is resolved.  
21. In support of their contention the authorized representative of the OP2 has filed his affidavit evidence and reiterated all the allegations made in the version and relied on five documents. Ex.R1 is the dealership agreement, Ex.R2 is the Principal to Principal agreement, Ex.R3 is the satisfaction note, Ex.R4 is the warranty manual and Ex.R5 is the vehicle history.
22. The main contention taken by the OP2 is that there is no manufacturing defect in the said vehicle and the complainant also failed to prove the manufacturing defect by adducing the expert evidence. When the complainant has signed the satisfactory report as per Ex.R3 duly signed by the complainant after availing the service from the OP1 that itself reveals that the complainant himself has checked the vehicle and being satisfied with the services provided by OP1 he has signed in Ex.R3. The complainant is using the vehicle continuously. If the complainant faced any problems he would have visited the OP1 service centre.  The complainant is facing the problem only during the rainy season.  The complainant has not come back to the Ops from 24.06.2022 till date, even though there has been several rain falls.  
23. On this back ground, we have gone through the decision referred by the complainant and also the OP2.  The complainant has relied on the order passed in CC No.171/2014 Saravana Stores Text –vs- Adi Chennai, Adi India and Jubilant Motor works Pvt. Ltd., Jubilant motors, SCDRC, Chennai.  In this complaint the Hon’ble State Commission has come to the conclusion that

“at any rate the service station replaces the parts that are supplied to them by the manufacturer and even after such replacement if the problem recurs resultantly causing break failure due to worn-out break booster that was not even signaled displayed by the high end car functioning with sensors it only reflects the manufacturing defect surrounding the break mechanism for which the OP2 must be held liable.  

The Hon’ble SCRDC has further come to the conclusion that when the vehicle has a manufacturing defect in the break mechanism ordering replacement of the vehicle cannot be a proper relief. Hence it would be just and proper to direct the manufacturer to refund Rs.60,08,000/- that was paid by the complainant towards the purchase amount of the car. In the result the Hon’ble SCDRC has allowed the complaint and directed the OP to refund the amount with litigation expenses.”

24. The complainant has also relied on the Rev. Petition No.2048/2017 of the Hon’ble NCDRC.  The Hon’ble NCDRC has dismissed the Revision petition preferred by the Hyundai Motors and confirm the orders of the State Commission and come to the conclusion that “undisputedly during the warranty period the complainant sent the vehicle for repairs to OP3 which could not be delivered after repair and remained with OP3 for almost five years and further come to the conclusion that there was a manufacturing defect in the vehicle held that it would be unjustified to give the vehicle to the complainant after the lapse of five years and directed the OP3 to 5 Rs.4,74,000/- being 75% of the cost of the vehicle to the complainant.”
25. The complainant further relied on the Delhi SCDRC judgement in first appeal NO.551/2014.  The Hon’ble SCDRC has come to the conclusion that if a brand new cars give trouble within a few days of its purchase the consumer would be dis-satisfied, such cases the manufacturing company further is not justified in protracting the litigation merely because it has the money power. It is further held that a person who purchases a vehicle may be a luxury accent car or a small car would not be satisfied if it is a defective vehicle. That the defect may not be a major one but the consumer loses satisfaction of having a new car.  That loss of satisfaction would be much more in a case when the person buys the vehicle with his hard earned money. Unfortunately we have not developed the tendency of accepting the defects or faults, by some measure or means the tendency to accept the defects or defaults is required to be encouraged. Otherwise, delay in disposal of such cases defeats the rights and the consumer get frustrated.  On occasions litigation is dragged on for taking undue advantage of delay in disposal.  The Hon’ble SCDRC has also passed an order directing the Ops jointly and severally to pay Rs.3,41,000/- along with interest and also Rs.50,000/- compensation and Rs.5,000/- towards litigation expenses on the part of the Ops.
26. On the other hand, the OP2 has also relied on the decision reported in 2009(3) CPC 641, Maruti Udyog Ltd., -vs- Casino Dias, it was laid down in its decision that the consumers cannot through their wait around and be adamant to decide on their own that there is a manufacturing defect in the vehicle without any support evidence or justification.  The OP2 has also relied on other two decisions and it was clearly held in the decision that the burden of proof to demonstrate the manufacturing defect is upon the complainant and if the complainant fails to establish the manufacturing defect is liable to fail and the complaint would be rejected. The parties are bound by the terms and contract they have entered into.  
27. It is also clear from the decisions of the Hon’ble apex court and Hon’ble SCDRC and the Hon’ble NCDRC. If the customer/complainant would not be satisfied due to defect in the vehicle even though the defect may not be a major one but the consumer loses satisfaction of having a new car. The loss of satisfaction would be much more in a case when the person buys a vehicle with his hard earned money. Unfortunately the multinational companies like the OP2 have developed a practice or tendency of not admitting the defects in the vehicle and not replacing the same without any contest.  The documents and the evidence produced by both the parties clearly discloses that the complainant faced the water accumulation problem in the leg room of the co-driver seat during the rainy season immediately after purchase of the vehicle within six to eight months.  He has taken the vehicle for OP1 and 2 for more than 11 times, but they failed to resolve the issue. Under these circumstances at last the complainant approached this commission by filing this complaint when the Ops failed to cure the defect.  When the defects is not cured by the Ops, it is their duty to refund the amount paid by the complainant for purchase of the vehicle.  The complainant cannot use the vehicle when it is suffering from unsolved defects.  Inspite of that the OP1 and 2 have not at all taken sufficient care in resolving the issue but they have simply dragged the matter and caused mental agony and financial loss and harassment to the complainant.  Hence the complainant has clearly established the deficiency of service and negligence and harassment caused by the Ops due to defect in the brand new vehicle. Hence the complainant is entitle for the relief.  The complainant has purchased the vehicle by paying Rs.10,32,805/- by raising loan from the bank on 28.11.2019 and the problem raised from 15.09.2020 and he has suffered with the problem even till today. Under these circumstances, the vehicle is with the complainant for more than four years. Hence we feel it is necessary to award an amount of Rs.8,00,000/- of purchase amount and compensation of Rs.1,00,000/- with litigation cost of Rs.10,000/- to the complainant.  Hence we answer point No.1 in affirmative and point No.2 partly in affirmative.
28. Point No.3:- In view the discussion referred above we proceed to pass the following;

O R D E R

1. The complaint is allowed in part.
2. OP1 and 2 are jointly and severally liable to pay the proportionate cost of the vehicle of Rs.8,00,000/- with interest @ 10% p.a., from the date of problem in the car i.e., 15.09.2020 till realization with compensation of Rs.1,00,000/- and litigation of cost of Rs.10,000/- to the complainant.
3. The OP shall comply this order within 60 days from this date, failing which the OP shall pay interest at 12% p.a. after expiry of 60 days on Rs.8,00,000/- till final payment.
4. Furnish the copy of this order and return the extra pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^TH day of DECEMBER, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;