Punjab

StateCommission

FA/12/929

Mahindra & Mahindra Ltd. - Complainant(s)

Versus

Harbans Singh - Opp.Party(s)

Vaibhav Narang

16 Feb 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                                               PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                             First Appeal No.929 of 2012

 

                                                          Date of Institution:12.07.2012  

                                                          Date of Decision : 16.02.2015

 

 

Mahindra & Mahindra Limited, opposite Petrol Pump, above Reliance fresh, First Floor, Sector 16, Panchkula.

Correct Address is : Mahindra & Mahindra Limited, SCO 18, IInd Floor, Sector 16, Panchkula, Haryana.

 

                                                          …..Appellant/Opposite Party No.2.

         

                                      Versus

 

1.       Harbans Singh son of Gurdev Singh, resident of Village Dehri, PO       Barog, Tehsil Naraingarh, District Ambala.

 

                                                                   …Respondent/Complainant

 

2.       Goel Motors (PV) Ltd., Plot No.B-55, Phase VI, Industrial Area, Opposite, Verka Plant, Mohali, Punjab through its Branch Manager

 

 

                                                                    ….Respondents/OP No.1

 

         

First Appeal against order dated 30.05.2012 passed by the District Consumer Disputes Redressal Forum, SAS Nagar (Mohali).

Quorum:-

 

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri Vinod Kumar Gupta, Member.  

Present:-

 

          For the appellants            :         Sh.Vaibhav Narang, Advocate

          For the respondent No.1  :         Sh.Ashok Bhardwaj, Advocate

          For the respondent No.2 :          Ms.Dhriti J.Sharma , Advocate.

 

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

                            

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The appellant (the OP No.2 in the complaint) has directed this appeal against respondent No.1 herein (being the complainant) and respondent no.2 (being OP No.1 in the complaint) impugning order dated 30.05.2012 of District Consumer Disputes Redressal Forum SAS Nagar (Mohali). The instant has been preferred against the same.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the allegations that he purchased a new light goods vehicle make Model-Mahindra GIO LC bearing registration No.HR-37-C-6335 from OP No.1 on 03.06.2011 for price of Rs.5,22,000/-. The above vehicle was registered under the "Passengers and Goods Taxation Act." The complainant faced repeated problems due to excessive consumption of the engine oil in the vehicle. The complainant took the vehicle to the agency on 15.01.2012 and complainant was intimated that engine of the vehicle was to be replaced and he had to leave the vehicle in the service center. After 15.01.2012, complainant visited OP No.1 many times to receive his vehicle, but he was given only false assurance and it was not handed over to him. The complainant served a legal notice dated 04.02.2012 on the OPs after waiting for more than 18 days. The counsel for the complainant on 13.02.2012 received intimation that the new engine from Mahindra and Mahindra would be installed in the aforesaid vehicle and a request was made to take the delivery of the above-mentioned vehicle on 15.02.2012. The complainant purchased the vehicle worth Rs.5,22,000/-, out of which, he took loan of Rs.4,44,000/- from Mahindra and Mahindra. The complainant used the vehicle for carrying cattles, goods and he used to earn Rs.1500/- per diem out of its use. The vehicle was delivered to the complainant on 16.02.2012 by the OPs. The vehicle was sold to the complainant with faulty engine and thereby the complainant was deprived of his earning Rs.1500/- per day till 16.02.2012 from 15.01.2012. The complainant has, thus, prayed that the OPs be directed to award compensation of Rs.1500/- per day for one month period totaling Rs.45,000/-, besides Rs.50,000/- compensation for mental harassment and Rs.11,000/- for litigation expenses.

3.      Upon notice,  OP No.1 filed written reply raising preliminary objections that complaint is not maintainable. That complainant has not approached the Forum with clean hands. The complaint is bad for misjoinder of OP No.1, the authorized dealer of OP No.2. OP No.2 being manufacturer of the vehicle is the main party only. When there are allegations of complainant that there was manufacturing defect in the vehicle, OP No.1 replaced the engine of the said vehicle and  handed over it to the complainant on 16.02.2012 without any delay. OP No.1 placed an order  for the replacement of the engine with OP No.2, as there was defect in the engine, vide letter dated 20.1.2012.  In this regard, new engine was sent by OP No.2 to OP No.1 on 08.02.2012 for its installation in the vehicle of the complainant, which was prepared on 15.02.2012 and actually delivered to the complainant on 16.02.2012. It was alleged that in case of manufacturing defect, it is only the manufacturer, which is concerned and not the dealer. The complaint was also resisted by OP No.1 on merits on the same allegations and it denied any deficiency in service on its part.

4.      OP No.2 filed its separate written reply raising preliminary objections that the complaint is without any cause of action. Delay in delivery of the vehicle occurred as the entire engine of the vehicle has been replaced free of costs. OP No. 2 further pleaded that despite the fact that there was no manufacturing defect in the engine of the vehicle, it has been replaced free of costs on the request of the complainant, in view of its policy of the customer's satisfaction. OP No.2 further averred that around four weeks time is expected to change engine assembly. The complainant filed the complaint by twisting the facts. It was further averred that dealers are authorized to purchase the vehicles manufactured by OP No.2 (the manufacturer) in bulk quantities and in turn to sell them to customers. That there is no priviity of contract between OP No.2 and the complainant. The vehicle of the complainant had already run 33,106 KMs on 27.12.2012 and it has been noticed that on previous two services, the problem of excessive engine oil has never been reported. Even on 27.12.2011, the engine was thoroughly checked and it was reported to the complainant that it was not consuming excess engine oil. OP No.2 denied any delay in the delivery of the vehicle on its part; it even denied any manufacturing defect in the vehicle and prayed for dismissal of the complaint.

5.      The complainant tendered in evidence his affidavit Ex.CW-1/1, photocopy of registration certificate Ex.C-1, Passengers and Goods Taxation Registration Ex.C-2, loan receipt Ex.C-3 to Ex.C-9, retail invoice dated 27.12.2011 and 09.01.2012 Ex.C-3 to Ex.C-11, job card dated 09.01.2012 Ex.C-12, legal notice dated 04.02.2012 Ex.C-13 and reply dated 13.02.2012 to the legal notice Ex.C-14. As against it, OPs tendered in evidence affidavit of Sh. Satyender Singh Thakur, Authorized Representative Ex.RW-1/1, Aggregate Failure Report/Order Form Annexure R-1, tax invoice Annexure Ex.R-2 and receipt of courier Annexure R-3. On conclusion of evidence and arguments, the District Forum, Mohali accepted the complaint of the complainant by virtue of order dated 30.05.2012 awarding compensation of Rs.45,000/- to the complainant besides compensation of Rs.10,000/-  for mental harassement and Rs.5000/- as costs of litigation against OP No.2, whereas, it discharged the liability of OP No.1. Dissatisfied with this order dated 30.05.2012, OP No.2 now appellant has preferred this appeal against the same.

6.      We have heard learned counsel for the parties and also examined the record of the case.   It is an undisputed fact that complainant purchased the vehicle from OP No.1 for a price of Rs.5,22,000/, which was manufactured by OP No.2 now dealer. The complainant complained regarding excessive engine oil of the vehicle to the authorized dealer in this regard. Eventually, the engine of the vehicle was replaced by the manufacturer now appellant  free of costs in this case. The order of the District Forum has been challenged in this appeal by the OP No.2 now appellant. First submission of the OPs is that there was no manufacturing defect in the vehicle and despite the same, the appellant has replaced the engine. We are not convinced with this submission of the counsel for the appellant on the record.  The complainant purchased new vehicle manufactured by OP No.2 through authorized dealer OP No.1 against the price, just after some time from purchasing the vehicle, the complainant reported regarding fault in the engine of the vehicle for consuming excessive engine oil. There was no question of replacement of the engine of the vehicle, had there been no  defect wherein, OP No.2 would not have replaced the engine of the vehicle free of costs without manufacturing defect. The engine was checked by its Engineer and on account of some manufacturing defect, it was replaced free of costs thereafter. The affidavit of the complainant Ex.CW-1/1 has been examined by us on the record. Documents have also been taken into consideration by us in this case. The District Forum has, thus, negatived this contention of OP No.2 now appellant that there was no manufacturing defects in the engine of the vehicle purchased by the complainant. Had there not been any manufacturing defect, there was no question of any replacement of engine of the vehicle free of costs by OP No.2, the manufacturer of the vehicle. Just on the basis of the customer's friendly attitude, the District Forum has correctly concluded that there was manufacturing defect in the vehicle and due to this reasons its engine has been replaced by the manufacturer free of costs. OP No.1 has not seriously disputed this fact, otherwise it would have sent the engine to OP No.2 for replacement. Vide aggregate failure report/order form Annexure R-1 placed on record by OP No.1 observed that "Cylinder head removed and piston pin lock found in broken condition due to that cylinder liner no one also damaged." The Mechnical Engineer of OP No.1 recommended placing of any order with OP No.2 for replacement of the engine due to manufacturing defect only.

7.      The next point involved in this appeal is with regard of quantum of compensation. The submission of the counsel for the appellant is that there was no inordinate delay in the replacement of the engine. That the complainant is not entitled to any compensation  at all in this case. The submission of the appellant/OP No.2 is that once the grievance of the complainant has been satisfied, therefore, there was no question of awarding any compensation to him. We find that new vehicle purchased by the complainant remained off the road from 15.1.2012 to 16.2.2012. Complainant stated in his affidavit that he was earning Rs.1500/- per day by operating this vehicle, this much income of the complainant appears to be reasonable and cannot be disputed by any stretch of reasoning. The complainant remained deprived of the use of the vehicle for a period of one month only. Had there not been any manufacturing defect in the vehicle, there would have been no reason for deprivation of the income of the complainant for above period of one month.  The District Forum has, thus, correctly awarded the compensation of Rs.45,000/-(Rs.1500x30 =45,000) for the loss of the income to the complainant due to this manufacturing defect in the vehicle of the complainant. The Hon'ble National Commission has held in case titled as Nanhakoo Sah …. Versus… Vidhayawati Devi and others reported in 2010(1)CPC, Page 490-91, wherein it was held that "there was manufacturing defect, compensation of Rs.50,000/- was also allowed to the consumer." Hon'ble National Commission further held in case titled as Jagrut Nagrik & others …Versus.. Baroda Automobiles Sales and Service & Another reported in 2011(1)CPC, Page 105, wherein it was held that : "complainant suffered much inconvenience due to defect in the vehicle, which could not be removed by repeated repairs. Compensation was also awarded Rs.50,000/- to the consumer." The Hon'ble State Consumer Disputes Redressal Commission, Shimla also held in case titled as M/s Palam Tractors..Vs. Sh.Jamir Ahmmed reported in 2010(2) CPC Page 676-77, wherein it was held that : "in case of manufacturing defect, the manufacturer are directed to enhance compensation of Rs.40,000/- with punitive damages of Rs.10,000/-  and costs of Rs.3000/-."

8.      Consequently, we do not find any reason to interfere with the award of the compensation passed by District Forum of Rs.45,000/- for loss of income awarded to the complainant against OP NO.2 and another compensation of Rs.10,000/- for mental harassment and Rs.5,000/- as costs of litigation. The award of compensation by District Forum is quite reasonable and we find no ground to interfere with it. Similarly, we also affirm the order of the District Forum that in case claim is not paid within period of one month from the date of receipt of certified copy of the order, it would carry interest @ 9% per annum with effect from date of institution of the  complaint till the date of actual payment. This part of the order is also affirmed in this appeal. Order of the District Forum does not suffer from any illegality or material infirmity in our view and merits affirmance in the appeal.

9.      As a result of our above discussion, there is no merit in this appeal and same is hereby dismissed.

10.    The appellant had deposited an amount of Rs.25,000/- at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after  45 days from receipt of copy of this order. Remaining amount shall also be paid to respondent/complainant by the appellant as per order of the District Forum within 45 days from receipt of the copy of this order.

11.     Arguments in this appeal were heard on 12.02.2015 and the order was reserved. Now the order be communicated to the parties.

11.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                                   (VINOD KUMAR GUPTA)

                                                                          MEMBER

February, 16   2015.                                                                

(ravi)