BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 127 of 2016
Date of Institution : 16.5.2016
Date of Decision : 16.1.2018.
Pankaj Kumar, aged about 32 years son of Shri Sunil Kumar, resident of House No.289, Left side village Dutaran Wali, Tehsil Abohar, District Fazilka (Punjab).
……Complainant.
Versus.
- Garg Motors, Authorized Dealer Mahindra & Mahindra Limited, 9 KM Miles Stone, Near Sikanderpur Chowk, Hisar Road Sirsa, District Sirsa through its owner/ proprietor/ partner.
- M/s Mahindra & Mahindra Limited, Mahindra Towers 5th Floor, Dr. G.M. Bhosale Marg, Mumbai- 400 018 India, through its Managing Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. MOHINDER PAUL RATHEE …… MEMBER.
Present: Sh. Dharminder Chauhan, Advocate for complainant.
Sh. Manav Goyal, Advocate for opposite party No.1.
Sh. Saurabh Nagpal, Advocate for opposite party no.2.
ORDER
The case of the complainant in brief is that complainant purchased vehicle Bolero bearing engine No.4M85323, chassis No.E5A85256 Model 2014 Bolero ZLX2WDBS3 class LMV car white colour from opposite party no.1 vide delivery challan No.1487 dated 21.1.2014 for a sum of Rs.7,40,000/- against invoice dated 22.1.2014. The complainant had paid the entire amount to op no.1 in cash. The said vehicle was got financed through AU Finance India Limited. The complainant also got insured the above said vehicle and said vehicle is manufactured by op no.2. The op no.2 assured the complainant that vehicle Bolero is manufactured by a reputed company and is a top class vehicle and its parts including body shell are genuine and that genuine material is used and further colour is also of excellent quality and he will not face any problem. It is further averred that believing on the words of the ops, the complainant purchased the above said vehicle from ops and got registered the same vide registration certificate bearing No.PB-22J-9613. It is further averred that vehicle which the complainant purchased is always for long period and the purpose of purchasing new vehicle was that complainant will enjoy the vehicle as a new vehicle for at least 3-4 years and the customer does not face any type of problem and thereafter some petty problem starts occurring. It is further averred that in the case of complainant, the body shell of the vehicle started getting rusted within one year of purchase and gradually the body shell completely became rusty and further the colour also started fading and just in a one year period the look of the vehicle is like of very old purchased vehicle and the complainant is facing lot of humiliation as inspite of investing a huge amount in purchase of vehicle the complainant is disappointed over the body condition of the vehicle. It is quite clear that not only the material used is of inferior quality but there is bad workmanship. That the complainant has shown the vehicle to the op number of times and although the op agreed that the inferior quality is used in the vehicle and assured the complainant that the op will take up the matter with the company but inspite of repeated requests and demands nothing has been done. That besides the purchase price, the complainant has spent amount on registration certificate and insurance and further the complainant has suffered due to humiliation, harassment and loss of reputation and the complainant is not freely using the vehicle and thus he has been deprived from the enjoyment of the vehicle. That the complainant approached and requested the ops to admit his claim and to replace the vehicle with a new one with good quality with completion of documents or to refund the total amount of vehicle alongwith interest as well as compensation of Rs.one lac on account of harassment but the ops have totally refused to admit the claim of complainant. Ultimately, the complainant has got served a legal notice dated 14.9.2015 to the ops through registered post but to no effect. Hence, this complaint.
2. On notice, opposite party no.1 appeared and filed written statement taking certain preliminary objections. It is submitted that complainant has purchased the vehicle in question of his own choice and as per his entire satisfaction by inspecting minutely. The vehicle in question purchased by complainant is of very good quality product of the company and answering op has sold so many vehicles in the market but there is no complaint from any corner of this vehicle regarding fading of colour etc. in any manner. At the time of handing over the possession of the above said vehicle to the complainant, the answering op as well as the complainant checked the vehicle and found in OK condition from all corner and there was no complaint in the said vehicle. Even thereafter the complainant never visited the answering op for service or repair even a single time. The complainant never made any complaint regarding body shell of vehicle and also for fading colour of vehicle in any manner because after purchasing the vehicle the complainant never visited the show room of the answering op. If any defect is found in the vehicle, then it can be detected by the company but complainant never visited the answering op.
3. Opposite party no.2 filed separate reply taking certain preliminary objections that relationship between op no.2 and its dealer i.e. op no.1 is on principal to principal basis and not on principal to agent basis. Dealer purchases the vehicles manufactured by the replying op in bulk quantities and in turn resell them to the ultimate customer. Further, sale of the vehicle and its service is conducted by the dealer and for this even consideration amount is payable to dealer by the ultimate customer. The liability of manufacturer is limited to the terms and conditions of the warranty policy. The op no.2 is not responsible for any of the act, omissions or commission of any act by its dealers. The complainant is not the consumer of answering op. It is further submitted that complaint is hopelessly time barred. Admittedly the complainant has purchased the vehicle on 22.1.2014 and he is pleading manufacturing defect in the complaint and prayer for replacement of the vehicle. Thus, if the complainant is alleging any manufacturing defect, then the limitation starts from the date of purchase of the vehicle i.e. from 22.1.2014. The present complaint has been filed on 16.5.2016 by the complainant. It is further submitted that complainant has alleged that his vehicle suffers from rusting issue. However, it has been specifically mentioned in the warranty policy set out in the owner’s booklet that deterioration of paint etc. is not covered under warranty. The complaint of rusting of the body and paint was never reported by the complainant to the dealership, directly the instant complaint has been filed only after 29 months from the date of purchase of vehicle which disqualifies the said vehicle from claiming warranty benefit for body paint and rusting because the warranty on the said vehicle is valid up to two years or unlimited kilometers. Even otherwise the vehicle is out of warranty. It is further submitted that rust issues in the vehicle crop up usually due to external factors and improper usages, maintenance of the vehicle. It is further submitted that complainant has not placed on record any job card to show that problem of rust has ever been reported. Moreover, the complainant has filed the complaint after warranty when vehicle had run more than 43,471 Kms and demanded new body shell. With these averments, dismissal of complaint has been prayed for.
4. The parties then led their respective evidence by way of affidavits and documents.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The complainant in order to prove his case has furnished his affidavit Ex.C1 in which he has reiterated all the contents of his complaint. The complainant has also produced photographs of the vehicle in question as Ex.C2 and Ex.C3 and has produced documents as Ex.C4 to Ex.C16. On the other hand, ops produced affidavit Ex.RW1/A, affidavit Ex.RW2/A and copy of terms and conditions of warranty as Ex.R1. It is undisputed fact between the parties that complainant had purchased vehicle Bolero on 21.1.2014 from opposite party no.1 who is dealer of op no.2 for a valid consideration. It is further undisputed fact that said vehicle was got registered as PB-22J/9613. The bone of contention between the parties is qua colour of the vehicle in question. Though the learned counsel for complainant has strongly contended during the course of arguments that complainant deserves for replacement of the vehicle as the body shell of the vehicle started getting rusted within one year of purchase and the body shell completely became rusty and further the colour also started fading and just in a one year period, the look of the vehicle is like of very old vehicle but however the record reveals that complainant has not placed on record any opinion of the expert from which it could be presumed that the complainant is entitled for replacement of the vehicle. On the other hand, learned counsel for op no.1 has strongly contended that complainant himself has not maintained the vehicle properly and there is no complaint of colour fading in other vehicles which were sold by op no.1 to different customers meaning thereby the lot of vehicle which was manufactured by op no.2 was having a proper colour and if there is complaint of the complainant only that may be result of negligence of complainant himself. Learned counsel for op no.2 has also contended that complainant has failed to prove any manufacturing defect in the vehicle as well as in the colour of the vehicle. It is only acts and deeds of the complainant himself which might have affected the colour of the vehicle. Further more, even the complaint of the complainant is time barred as vehicle was purchased on 21.1.2014 and present complaint has been filed after lapse of more than two years, as such complainant is not entitled to any claim.
7. The perusal of the record reveals that no doubt vehicle was purchased by complainant on 21.1.2014 and present complaint has been filed on 16.5.2016 but however legal notice which was served by complainant through his counsel Ex.C13 reveals that it was sent on 14.9.2015 within a period of two years from the date of purchase of the vehicle. So, it was well within knowledge of the ops after receiving the notice that there is a complaint of the complainant qua the colour of the vehicle but however the ops did not pay any heed to the representation/ notice of the complainant by which complainant had called upon the ops to make good losses of the complainant though complainant has failed to establish that vehicle suffers from some other manufacturing defect for which he is entitled for the replacement of the vehicle. But however from the evidence of the parties and photographs it is proved fact that colour of the vehicle has faded, as such it is legal obligation of the ops to re-colour/ paint the vehicle and make the same defect free.
8. In view of the above discussion, we allow this complaint and direct the opposite parties to do re-colour/ paint of the vehicle and to make the same defect free within a period of one month from the date of receipt of copy of this order. We also direct the opposite parties to pay a sum of Rs.5000/- as composite compensation and litigation expenses to the complainant. Both the opposite parties are jointly and severally liable to comply with this order. The complainant will have to take the vehicle to op no.1. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:16.1.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
