THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

PAPUM PARE DSITRICT, YUPIA

ARUNACHAL PRADESH

CONSUMER COMPLAINT NO. CA(PP)-02/20

Shri Jumpe Maro, S/o Pujum Maro, R/o Maro village, PO/PS-NaharlaguDaporijo, District Upper Subansiri (AP)

-Versus-

1.      Managing Director, CEO, Mahindra & Mahindra Limited, Gateway Building, Appolo Bunder, Mumbai 400001, India

2.      Shri prafullo Singh (Area manager) Mahindra Authomobile, Guwahati

3.      Managing Director (MD), Iconic Automobiles, Lekhi Village, PO/PS-Nirjuli, Papum Pare District, Arunachal Pradesh,

4.      General Manager (Sale) Iconic Automobiles, Lekhi Village, PO/PS-Nirjuli, Papum Pare District, Arunachal Pradesh,

5.      Service Manager, Iconic Automobiles, Lekhi Village, PO/PS-Nirjuli, Papum Pare District, Arunachal Pradesh,

QUORUM:    MR. GOTE MEGA, PRESIDENT,

MR. TARH LOMA, MEMBER

MISS DEEPA YOKA, MEMBER

ADVOCATES APPEARED:

For the Complainant       :- Mr. T. Dignium

For the O.P No. 1 & 2     :- Miss M. Ori                

For the O.p No. 3, 4 & 5 :- Miss R. Taku

Date of filing complaint   :- 10.11.2020      

Date of Hearing             :- 28.10.2022

Date of Judgment          :- 31.03.2023

JUDGEMENT & ORDER

1. The instant Complaint petition is filed under section 12 of the consumer Protection act 1986 (For short, Act 1986) praying for awarding the complainant sum of Rs. 16, 58, 000/- (Rupees Sixteen lakhs Fifty-Eight three Thousand), only from the Opposite Party No. 1, 2, 3, 4, & 5 (in short O.P No. 1), on the ground of willful deficiency of service to him.

2. The case of the complainant in brief is that he purchased a Mahindra car XUV300 Variant W8 (Diesel) class of Vehicle-SUV, Bearing Engine No. ETKZA16907, Chassis No. MA1NM2ET1K2A51193, Registration No. AR01L-6676 and applied insurance under the oriental insurance Co. Ltd, Itanagar. Payment of the cost car was dully made (Rs. 11, 83, 000/- only) through transfer by SBI Itanagar to iconic Automobiles (Mahindra), Lekhi Village, Naharlagun under lease/ Hypothecation of State Bank of India and the said vehicle is under standard warranty coverage valid for two years unlimited kilometer from the date of retail sale.

3. That after one week driving from the date of purchase, he faced a noisy sound like GHAAT GHAAT emanating from the front suspension. The Complainant immediately rushed to the dealer without appointment and started querying about undetected and disturbing sound like that. The technician from the service centre checked the car without any repair or replacement and told him that the car was tested ok and assured that the sound would not come again.

4. That after few weeks, the complainant faced the same problem and in addition to that, a new issue arose and sound like CHI CHI started from the dashboard. During the first free servicing on 02/05/2019, the opposite party inspected the car and the technician was surprised as to how there could such issues with brand new car, as such he claimed that it could be a manufacturing defect. Thereafter, the technician installed packing in the dashboard, front suspension and the car was tested ok.

5. That again after few weeks of driving, the same problem started with third additional issue of head lamp problem. Being aggrieved by the deficiency in service, the complainant requested the service manager either to replace the car or to return back the amount paid to the dealer as the problem seemed to be a manufacturing defect. But the service manager did not respond to the complainant but replaced the defect parts of the front suspension and the car was again tested ok after replacement.

6. That few weeks of replacement of front suspension, the same problem again started with another additional problem of non-functioning of wiper. The second free servicing was done on 25/09/2019 and the complainant requested the manager to replace the car but the Sales Manager took it lightly and said that it will be alright.

7. That on 11/11/2019, the complainant again faced the same problem with another extra additional problem of malfunctioning of AC and the same was reported to the dealer but the service centre didn’t take it seriously. Being exhausted with all efforts complainant repeatedly requested the dealer to replace the car but the dealer turned deaf ear to his request. Even the technician was fed up of and reluctant to look into the matter.

8. That being highly aggrieved and irresponsive attitude from the dealer, the complainant having no other option served a legal notice through his counsel on 05/03/2020. After serving legal notice, the car was handed over to the dealer on 13/03/2020 for expert inspection. The car was kept at dealer for five days and after expert inspection, the caliper assembly front LH AND RH was replaced. After that the complainant was called by the dealer and told him that the problem has been solved and on 23/03/2020 email was received from the respondent No. 2 wherein he has greeted the complainant that the problem of the car has been solved. But the complainant did not believe as to how the manufacturing defect has been easily solved without inspection of expert technician. The complainant asked the General Manager (OP No. 4) to give assurance in writing with an undertaking that if the same problem arises, the dealer would/company would pay compensation for mental agony and to return back the amount paid for the car. But the OP No. 1 refused to give assurance in written form. After few days, the complainant faced the same problem but he could not visit to the dealer due to lock down owing to COVID-19 Pandemic.

9. That after lifting of lockdown, the complainant visited the dealer on 27/06/2020 for the same issue. The dealer kept the car for more than 15 days and replaced the defective parts but after few days of driving same problem persisted. The dealer miserably failed to solve the problem thereby causing untold mental agony to the complainant. At the later stage, the dealer was reluctant to look into the matter. With lot of disappointment, the complainant lodged an FIR against the dealer on 7/09/2020 before the Nirjuli Police station but the Police did not take cognizance of the case instead suggested to approach the Consumer forum. Hence the complainant filed the instant complaint and claim as follows: -

1. Rs. 11, 83,000/- (Rupees Eleven Lakhs Eighty-Three thousand) only as refund of the cost of the car.
2. Rs. 200000/- (Rupees Two Lakhs) only for mental agony, Physical harassment, false assurance and deceitful service.
3. Rs. 1,50,000/-(Rupees one lakh Fifty Thousand) only for expenditure of hiring vehicle/transportation charge for period of 16 months from Daporijo to Mengio and from Itanagar to Mengio.
4. Rs. 100000/-(Rupees one lakh) only for loss of official duty.
5. Rs. 25000/- (Rupees Twenty-Five Thousand) for cost of Litigation.

10. The Complainant relied on citation passed by the District Consumer Forum in Maruti Suzuki India Limited -Vs- Deepak Singh and Anr. 2017 and M/S Hyundai Motor India Limited –Vs- Harpal Singh, 2018.

11. That the O.P No. 1, 2, 3, 4, & 5 contested the case by filling their Written Statement wherein O.P No. 1 stated that the complaint does not fall under the definition of s ‘Consumer dispute’ as there is neither any unfair trade practice adopted by the Opposite Party nor any deficiency in service. The OP No. 1 & 2 also stated that the complainant is liable to be dismissed for want of cause of action. The Vehicle was brought to the dealer on 02.05.2019 for 1^st free servicing and after thoroughly inspecting the vehicle, the 1^st service was done with some others repairs requested by the complainant. The vehicle was thereafter handed over to the complainant and during that point of time, the complainant has not mentioned or shared any bad experience or concerns with respect to any noise which was evident from the manual Job Card.

12. That the OP No. 1 & 2 stated that the complainant brought the vehicle to the service centre on 25.05.2019 and for the first time reported that the noise was coming from the suspension on bumpy roads. The vehicle was then thoroughly inspected and no defect was detected. Accordingly, the Opposite party informed the complainant that the noise could be caused due to the rough conditions of the road which is natural and delivered the vehicle to him with others repairs as requested by the Complainant.

13. The OP No. 1 & 3 further stated that the vehicle was brought to the service centre on 25.09.2019 for 2^nd free servicing with a complaint that ‘Chi..Chi…’ noise was coming from the dashboard. However, upon thorough inspection, no such noise or defect was detected by the opposite party. Apart from the 2^nd free servicing, all the requested servicing were duly carried out efficiently. The complainant again visited the service centre on 11.11.2019 and demanded certain repairs. During the inspection, the following point were observed:

1. No abnormality or defect was observed with regards to the AC of the vehicle.
2. The complainant informed that the noise was coming from the dashboard of the vehicle. However, upon inspection, no such defect or noise was found.

14. Thereafter, the vehicle was brought at the service centre on 27.06.2020 for 3^rd free servicing after completing more than 19, 000 KMs. The complainant during the visit, raised an issue about a different noise. However, upon though inspection, again no such noise or defect was detected. But to the utter shock of the opposite party, the complainant on 07.09.2020 lodged an FIR against the dealer at Nirjuli Police Station. The OP No. 1 & 2 stated that the grievances of the complainant was rectified efficiently every time and the opposite party has been humble and welcoming however, the complainant was adamant and insisted for replacement or refund of the cost of the vehicle and compensation without any reasonable ground.
15. The OP No. 1 & 2 also stated that there was no inherent manufacturing defect in the vehicle and stressed that if there had been a manufacturing defect, the vehicle would not run for the last 21 months and for more than 19000 KMs. Further, OP No. 1 & 2 submitted that the Hon’ble Supreme Court and the National Consumer Disputes Redressal Commission has categorically held that until and unless any manufacturing defect is proved, the complainant is not entitled to claim replacement or refund of the vehicle and accordingly produced a citation as follows: -
    1. C.N Anantaram -Vs- Flat India Ltd. and Ors.
    2. Raj Bala Versus Managing Director, Skoda Auto India Pvt. Ltd & Anr.
    3. Canara Bank & Ors Versus Debasis Das & Ors in AIR 2003 SCW 1561.

16. The OP No. 3, 4, & 5 in their written statement denied that the vehicle was delivered with pre-delivery inspection which is evident from the letter of delivery wherein the complainant has declared that he had checked the vehicle and found to be ok at the time of delivery of the vehicle. In clause 3(c) of the sale terms and condition, the complainant acknowledged that the pre delivery inspection was carried out and it was further affirmed by him that in the event of any manufacturing defect in respect of engine and gear box, the defect part will be replaced only.
17. The OP No. 3, 4 & 5 reiterated the stand taken by the OP No. 1 & 2 that when the vehicle was reported to the service centre for 1^st free servicing, the complainant did not raise the issue of any noise in the car. However, on 25.05.2019, the complainant for the first time reported to the service centre that some noise was coming out from the car while travelling on bumpy road.  Upon hearing him, he was apprised that the alleged noise might have been because of its use in the harsh road condition which was natural and not because of any defect in the car. The OP No. 3, 4 & 5 admitted that the complainant reported that some chi… Chi… noise from the dash board. Apart from free servicing, all the reported problem was thoroughly checked but no defect/noise were found. The OP No. 3,4 & 5 also admitted that the complainant came to the service centre on 11.11.2019 and on 27.06.2019 and again reported of AC and some noise problem in the car but on checking, the no such defect was detected.
18. The OP No. 3, 4 & 5 submitted that the service centre and the staffs have suffered repeated and continuous harassment at the hands of the complainant for more than a year. The complainant unnecessarily demanded for replacement/refund of the cost of the vehicle on the pretext of one or another issue, which he raised whenever he visited the service centre. The OP No. 3, 4 & 5, categorically denied that there is any manufacturing defect in the vehicle.
19. The OP No. 3, 4 & 5 submitted the following documents in support of their submission: -

1. Sale Terms and conditions as ANNEXURE-1
2. Letter of Declaration as ANNEXURE-2
3. Vehicle Order Taking Form as ANNEXURE-3
4. Technical Service Bulletin as ANNEXURE-4  

20. That the opposite parties contended in their reply that the complainant has filed this complaint to harass them and they have not done any negligence in service and hence prayed for dismissal of the complaint.

21. The learned counsel for the O.P No. has submitted a citation of Ravneet Singh Bagga-Vs- KLM Royal Dutch Airlines & Others in SCC No. 66(2000).
22. Learned Counsel from all sides has filed their Written Argument. We have heard their oral submission and perused the records of the case.
23. The point for determination in the case are:-

1. Whether there was deficiency in service and negligent in providing Service on the part of the opposite parties?
2. Whether the complainant is entitled to the compensation as claimed? If yes, what relief? 

24. Point No. 1. It is contended by the complainant that he bought Mahindra XUV300 Variant W8 (Diesel) class of Vehicle-SUV, Bearing Engine No. ETKZA16907, Chassis No. MA1NM2ET1K2A51193, Registration No. AR01L-6676 and applied insurance under the oriental insurance Co. Ltd, Itanagar. Cost of the car was dully paid (Rs. 11, 83, 000/- only) through transfer by SBI Itanagar to iconic Automobiles (Mahindra), Lekhi Village, Naharlagun under lease/ Hypothecation of State Bank of India and the said vehicle is under standard warranty coverage valid for two years unlimited kilometer from the date of retail sale.
25. The complainant also contended that few weeks from the date of purchase of the vehicle, GHAT…..GHAT noise was found to be coming and accordingly rushed to the iconic Mahindra Dealer on 2/05/2019 and few days after again the  same GHAT….GHAT… noise was found from the front suspension and in addition new issue like CHI…CHI noise was coming from the Dashboard but the technician failed to redress the main issue and simply applied some packing in the dashboard and delivered the vehicle to the complainant. The same issue of GHAT…..GHAT…. and CHI….CHI… noise were reported to the service centre on 25.09.2019, 11.11.2019, and 21.01.2019 with an additional problem of head lamp AC. But the service was not taken seriously to look into the matter and finally on 25/03/2020, the complainant served legal notice to all the Opposite Parties. After serving legal notice the complainant was called to the office of the opposite party and tried to convince but the grievances of the complainant could not be addressed satisfactorily as the opposite parties were reluctant to resolve the issue and hence this case.
26. The cause of action arose on four occasions, firstly when the vehicle was brought to the OP. No. 4 & 5 for 1^st free servicing with reported problem of GHAT… GHAT… noise subsequently on 25.09.2019, 11.11.2019, and 21.01.2019 with additional problem of head lamp and AC. The OP. No. 3, 4 & 5 have admitted that the complainant has come to the service centre with the aforesaid problem on 2/05/2019, 25.09.2019, 11.11.2019, and 21.01.2019 respectively. In the Job card annexed with the complaint clearly shows that the problem of Noise in suspension and dashboard was reported. It is evident from the email message sent to the complainant by the OP No. 2 that there was problem of GHAT..GHAT and CHI..CHI.. noise. It is the duty of the service centre/dealer to redress any issues to the utmost satisfaction of a customer. But failing to detect the problem and taking the mere excuses that the alleged noise might have been because of its use in the harsh road condition is clearly a deficiency in service and negligence in providing service. Hence the Point No. 1 is in affirmative.
27. On perusal of the complaint, it is found that apart from noise in the suspension and dashboard, there was no other major defect which made the vehicle incapable of operation and the complainant has been in continuous use of the vehicle till today. Moreover, the complainant failed to establish manufacturing defect in the vehicle so as to claim complete refund or replacement of vehicle. As such, the claim of the complainant for refund of the cost of the vehicle can’t be considered despite the fact that there exists a deficiency in service.
28. Heard the counsel for both the parties at length and thoroughly perused the record. Having gone through the records and after hearing the parties, this commission found that the Opposite Parties have committed negligence in providing service, caused untold misery and dragged into unnecessary harassment thereby causing mental agony. Hence this commission is of considered view that there is clear case of deficiency in service caused to the complainant and Opposite Parties are jointly liable.  Hence, the complaint is allowed.
29. In view of the above, this Commission directs the Opposite Parties to pay jointly as under: -
    1. Rs. 80, 000/- (Rupees Eighty Thousand) only for mental agony, Physical harassment, false assurance and deceitful service;
    2. Rs. 70, 000/-(Rupees Seventy Thousand) only for expenditure of hiring vehicle/transportation charge for period of 16 months from Daporijo to Mengio and from Itanagar to Mengio; and
    3. Rs. 20, 000/- (Rupees twenty Thousand) for cost of Litigation.

Grand total awarded is: Rs. 1, 70, 000/-

30. The Opposite Parties are directed to pay the aforesaid amount within 30 days from the date of receipt of this order copy failing which an interest@12% per month shall be charged till final realization of the awarded amount.
31. With this order and direction, this consumer complaint case No. C/COMPLAINT NO. CA(PP)-02/20 stands disposed of on contest.

(Miss Deepa Yoka)                   (Mr. Tarh Loma)

Member of Commission               Member of Commission

                                (Mr. Gote Mega)

                            President of Commission