BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE : Hon’ble Mr. Justice R. SUBBIAH PRESIDENT
Tmt Dr. S.M.LATHA MAHESWARI MEMBER
F.A.NO.273/2017
(Against order in CC.NO.237/2013 on the file of the DCDRC, Chennai (South)
DATED THIS THE 8th DAY OF SEPTEMBER 2021
The Managing Director
Mahindra & Mahindra Ltd.,
Automotive Division, AFS
Mahindra Tower, 3rd Floor M/s. Shivakumar & Suresh
Akurli Road, Kandivali (East) Counsel for
Mumbai – 400 101 Appellant / 1st Opposite party
Vs.
1. G. Balaji
No.15, Daniel Street M/s. S. Jayakumar
Adambakkam Counsel for
Chennai – 600 088 1st Respondent/ Complainant
2. The Managing Director
Zulaikha Motors Pvt. Ltd.,
Authorised Dealer of
Mahindra & Mahindra
398 & 398A, Velachery-Tambaram
Main Road, Velachery Served called absent
Chennai- 600 042 2nd Respondent/ 2nd Opposite party
The 1st Respondent as complainant filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Commission had allowed the complaint. Against the said order, this appeal is preferred by the 1st opposite party praying to set aside the order of the District Commission dt.16.6.2017 in CC.No.237/2013.
This appeal coming before us for hearing finally today, upon hearing the arguments of the counsel for appellant and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:
ORDER
JUSTICE R. SUBBIAH, PRESIDENT
1. This appeal has been filed by the appellant/1st opposite party as against the order dt.16.6.2017 passed by the District Commission, Chennai (South), in CC.No.237/2013, directing the opposite parties 1 & 2 jointly and severally to replace the entire unit causing defects in the motor vehicle within one month from the date of order i.e, 16.6.2017 failing which the opposite parties shall pay the cost of the vehicle @Rs.13,83,026/- and to pay a sum of Rs.40000/- towards compensation for mental agony alongwith cost of Rs.5000/-.
2. The brief facts of the complaint before the District Commission are as follows:
The complainant purchased a four wheeler vehicle model XUV500 W6, manufactured by the 1st opposite party company bearing Engine No.HJC4C23289 and chasis No.MAIYL2HJUC6C80501 on 7.5.2012 for a sum of Rs.13,83,026/- through the authorized dealer viz. 2nd opposite party/2nd Respondent vide Invoice No.INVI3A00043 dt.23.4.2012. The said vehicle was registered vide Regn.No.TN 22 CE 3336.
The purchased vehicle was launched by the 1st opposite party company only during September 2011, so much reviews and feedback from the users/customers could not be ascertained regarding the road worthiness and overall performance of the vehicle. Therefore, the complainant was constrained to reply on the statements of the engineers and marketing executives of the 2nd opposite party appointed to promote and sell the said model vehicle on behalf of the 1st opposite party company.
But to his shock and surprise he started experiencing certain malfunctioning of the vehicle such as whenever the vehicle was taken for a long drive and in the cruise speeds of 70 to 80 Km. per hour, that too on highways the vehicle automatically drags to the left, secondly the steering starts to tug from side to side and could not be able to control with all possible means and the third serious malfunction is that shifting of gears is hard and heavy at most of the times rather than it should be as specified by the appellant/1st opposite party company. Since the complainant felt it hard and risky to use the vehicle continuously, the same was duly brought to the knowledge of the service engineers of the 2nd opposite party on 6.7.2012 for fixing the same. After taking delivery of the vehicle, since the same problem recurred, again the vehicle was being brought for repair to the 2nd opposite party on several occasions viz. 21.8.2012, 1.9.2012, and on 10.9.2012. After repairing on 10.9.2012, the vehicle was handed over to the complainant on 14.9.2012 with the assurance that the recurring malfunction would not crop up any more to the displeasure of the driving. Based on the assurance, the vehicle was taken for a holiday trip to Coorg, but again the reported malfunctions occurred on 16.9.2012. On explaining the ordeal experienced by the complainant, and about the abandoning of the trip to the service engineers of the 2nd opposite party, the vehicle was again entrusted for repair on 17.9.2012. This time the vehicle was delivered by the 2nd opposite party with great assurance that the complainant can drive the vehicle as he wished for, and the said malfunction will not occur again. Though the complainant drove the vehicle tirelessly and patiently for two months, as the stride of the vehicle would get normalized and smooth, but on the contrary it became so hectic and distraught to take the vehicle even for a short drive. So it was again taken to the service station on 19.12.2012. Again the vehicle was handed over on 6.2.2013, this time they have replaced the front strut bar as the same might be the cause for malfunction. Inspite of the so many attempts to rectify the defects, since the engineer could not rectify the malfunctions reported, it is proved beyond doubt that a defective vehicle has been sold to the complainant by the appellant/1st opposite party. Inpite of causing legal notice since no fruitful reply was received from the opposite parties, the complainant was constrained to approach the consumer commission, by filing a complaint praying for refund of the cost of the vehicle @ Rs.13,83,026/- alongwith compensation and cost.
3. The said complaint was resisted by the appellant/1st opposite party before the District Commission, by filing their version:
The utility vehicle reported for the first time on 6.7.2012 at 1713 kms. For the purported complaints of left pulling, gear shifting hard was addressed satisfactorily by replacing bolt, gear oil and hose pressure pump under warranty. Subsequently on 21.8.2012 at 5290 kms for the first free service alongwith the complaints of LHS pulling, 2nd and reverse gear shifting time noise, brake noice etc., the same was rectified. Again on 17.9.2012 at 6537 kms the vehicle was entrusted for the complaints of LHS pulling, gear shifting hard, wobbling at 30 to 40 km speed and RHS indicator not centering. When it was diagnosed by the opposite parties, no such complaints were found to be present in the vehicle, and as per the observations recorded by the service advisors on the job card and steps taken for resolution of the complaints, would clearly establish that whatever complaints raised by the complainant were only the apprehension of the complainant and no such problem was present in the utility vehicle. The workshop had also conducted test drive of the vehicle, and it to be found normal. Hence it is clear that whatever grievance has been brought by the complainant, the same was attended and rectified satisfactorily under the warranty policy free of costs by way of exceptional services provided by the workshop hence there cannot be any question of manufacturing defect or deficiency in service meriting replacement of the vehicle. The allegations of the complainant about selling of the defective vehicle without producing expert report from an authorized laboratory as per the provisions of the Act are baseless and misconceived. Thus prayed for dismissal of complaint.
4. The 2nd opposite party remained absent, and were set exparte before the District Commission.
5. In order to prove the case on the side of the complainant, proof affidavit was filed alongwith 24 documents, which are marked as Ex.A1 to A24 , and on the side of the 1st opposite party Ex.B1 marked. The expert opinion from MIC, Chennai was marked as Ex.C1.
6. Based on the submissions made by the parties, and on perusal of the documents, the District Commission had framed two questions for deciding the issues. Finally, based on the Expert opinion of MIT under Ex.C1, the District Commission had come to the conclusion that there is a deficiency in service on the part of the opposite parties, and slapped an order by directing the opposite parties jointly and severally to replace the entire unit causing such defects in the motor vehicle within one month, failing which shall pay the cost of the vehicle alongwith compensation of Rs.40000/- and cost of Rs.5000/-. Aggrieved over the order impugned, the 1st opposite party is before us as an appellant.
7. Inspite of service of notice the 2nd Respondent/ 2nd opposite party remained absent before this commission. Appellant /3rd opposite party present. Written arguments of appellant/1st opposite party and 1st Respondent/complainant were filed. Therefore, we have heard the submissions of the learned counsels appearing for appellant, and perused the written arguments of appellant and 1st Respondent and passed the following order.
8. The main submission of the learned counsel for appellant is that the District Forum had allowed the complaint mainly based on the report of MIT Chennai. But the purported inspection of the vehicle was not done in front of the opposite parties, in fact no notice was served on the appellant/3rd opposite party for conducting inspection. Therefore, the finding of the report, will not bind the appellant/ 1st opposite party. It is also further submitted that the report is clearly based on speculations, probabilities and is made with a malafide intent, surmise and conjecture. Further the 1st Respondent/ complainant was using the vehicle continuously. In this regard, the learned counsel for complainant also invited the attention of this court that the vehicle in question had been used by the 1st Respondent/ complainant and has covered 69,265 kms till the last visit on 30.3.2017. It is also submitted, the vehicle with manufacturing defect cannot be driven to that extent. Thus prayed for dismissal of the complaint.
9. Per contra, the learned counsel for the 1st Respondent/ complainant would submit that as per the order of the District Commission dt.17.7.2014, the complainant sent the vehicle to the Madras Institute Technology, Chennai. After inspection, the report of the MIT was submitted before the District Commission. A perusal of the report would clearly show that the vehicle was having left drag during all operating conditions. This clearly proves that the allegation of the complainant about the defect of the vehicle is not an apprehension. Except saying that the inspection was done in the absence of the opposite parties, no other serious objections were raised about the report under Ex.C1. Therefore prays for dismissal of the appeal.
10. Though very many technical contentions were raised on either side, the only question that has to be decided in the appeal is
1. Whether the opposite parties have delivered a defective vehicle to the complainant and thus committed deficiency in service?
2. If so, what relief the complainant is entitled to?
11. POINT NO.1:
A perusal of the documents filed by the complainant shows that the vehicle was entrusted to the 2nd opposite party for repairs as per Ex.A5 to A8 , Ex.A12 and A13, Ex.A5, A17, and Ex.A20 to A23, would clearly shows that the vehicle was continuously being entrusted for repairs for repeated complaints. Though the appellant would submit that the defects were being attended every now and then, it is apparent that they have failed to make right the vehicle without any defects. Since the vehicle encountered problems right from the purchase, and the same problem is persisting from the beginning apart from other complaints, which could not be rectified inspite of repeated services, it could be considered only as manufacturing defect, as was rightly held by the District Commission. It is also not the case of the opposite parties that the complainant had come with a false claim, on the other hand it is the case of the complainant that the car supplied to him was having technical defect. The opposite parties also had submitted that the complainant is using the car continuously and had driven upto 69,265 kms. In this connection we are of the opinion that having purchased a car with many expectations, the complainant was forced to face such a bitter experience by using the vehicle. After having spent a sum of Rs.1383026/- towards purchase of the vehicle, one cannot keep the vehicle idle without using the same. Thus the complainant was using the vehicle with all constrains. Since the complainant had used the vehicle for as many kilometers, it cannot be considered that the vehicle was not having manufacturing defect. Therefore we hereby concur with the findings of the District Commission that there is deficiency in service on the part of the opposite parties. Point No.1 answered accordingly.
12. POINT NO.2:
The District Commission had directed the opposite parties 1 and 2 jointly and severally to replace the entire unit causing such defects in the Motor vehicle within one month, failing which shall pay the cost of the vehicle @ Rs.13,83,026/- apart from awarding a sum of Rs.40000/- towards compensation for mental agony and cost of Rs.5000/-.
In the meanwhile, at the time of final arguments, the 1st Respondent/ Complainant had submitted that since he was having the vehicle at garage without using due to the recurrence of repairs, and since due to the pandemic situation he was not in a position to conduct the case, he had decided to sell the vehicle. Accordingly he had sold the said vehicle for a sum of Rs.6,00,000/- on 19.12.2020. A memo also filed by the complainant in this regard on 2.9.2021, is recorded.
In view of the above, the first part of the direction of the District Commission for replacement of the entire unit causing such defects in the motor vehicle, or to pay the cost of the vehicle become infructuous.
Since the deficiency on the part of the opposite parties is proved, we are of the considered opinion, that the amount awarded towards compensation and cost shall be ordered to be paid. Point No.2 answered accordingly.
13. In view of the above findings, the appellant shall be directed to pay the compensation and cost alone as ordered by the District Commission. Since the vehicle was sold, the direction for replacement of the parts or to refund the cost of the vehicle does not arise.
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14. In the result, the appeal is dismissed by confirming the order of the District Commission in CC.No.237/2013 dt.16.6.2017 with regard to direction for payment of compensation of Rs.40000/- and cost of Rs.5000/- alone. Since the vehicle was sold, the direction for replacement of the parts or to refund the cost of the vehicle does not arise. There is no order as to cost in this appeal. Time for payment one month, from the date of receipt of copy of this order, failing which the amount shall carry interest @6% p.a., from the date of default till realisation.
S.M.LATHAMAHESWARI R. SUBBIAH
MEMBER PRESIDENT
INDEX : YES / NO
