Complaint No: 487 of 2017.
Date of Institution: 15.09.2017.
Date of order:14.09.2023.
Parveen Kumari W/o Narinder Kumar resident of Amar Colony, Dina Nagar, Tehsil and District Gurdaspur.
….....Complainant.
VERSUS
- J.S. Grover Auto Private Limited, Authorized dealers Mahindra & Mahindra, Dalhousie Road, Pathankot, Tehsil and District Pathankot, though its Proprietor / Partner.
- J.S. Grover Auto Private Limited, Authorized dealers Mahindra & Mahindra, Batala Road, Babri Tehsil and District Gurdaspur, though its Proprietor / Partner.
- Mahindra & Mahindra Limited, Regd. Office Gateway Building, Apollo Bunder, Mumbai-400001, through its M.D.
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the vomplainant: Sh.S.S.Saini, Advocate.
For the opposite party No.3: Sh.Sachin Mahajan, Advocate.
Opposite parties No.1 & 2: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President
Parveen Kumari, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act, (here-in-after referred to as 'Act') against J.S. Grover Auto Private Limited, Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the complainant is serving as Children Development and Project Officer and is supervising three blocks i.e. Narot Jaimal Singh, Sujanpur and Bamial Tehsil and District Pathankot. It was submitted that the complainant purchased Car make Mahindra KUV 100 K6 + Black Colour bearing R.C.No.PB-06-AG-5790 Chassis No. MAIVBZNACG6E86499 Engine No.NAGZE22408, Serial No. of vehicle G6E 86499 on 11.07.2016 from OP No.2. It is further pleaded that the complainant purchased the above mentioned vehicle with sole motive to perform her duties honestly and conveniently. It was further submitted that said vehicle after its purchase used as per the conditions /guidelines of the OP’s and no condition was violated by the complainant. It is further pleaded that vehicle was being driven by husband of the complainant namely Narinder Kumar son of Sh. Ram Lal resident of Village Dala P.O. Behrampur Tehsil and District Grasper and Husband of the complainant is holding a genuine and valid driving license of LMV issued by the concerned authorities about 20 years back which is valid upto 2022. It is alleged that the Car/vehicle in question is defective from the very first day of its delivery. It is further pleaded that although the complainant was getting service of the vehicle from time to time from OP No.1 as per advise of the OP No.2 but it is giving so many troubles to the complainant. It is further alleged that there are major manufacturing defects in the clutch plates, Gear box and some other parts of engine assembly. It is further pleaded that due these defects the vehicle is giving some or the other problems. It is further pleaded that the vehicle used to stop in busy place and on number of times the complainant felt humiliation in general Public and even there are also other defects in the vehicle and output of the vehicle is of very low standard. It is further alleged that immediately after the vehicle taken in use, its Gear box started giving troubles and the complainant approached the OP’s for removing these defects. It is further pleaded that mechanics of the OP No.1 tried to remove defects from the Gear Box, although the Gear box was not properly put in order, but the vehicle started giving problems of Clutch plates when the vehicle covered 13600 Kms. It is further pleaded that complainant again approached the OP’s, but the OP No.1 charged Rs.6300/- from the complainant for removing the clutch plates, despite the fact that the vehicle in question is still within warranty period. It is further alleged that there was no improvement in the defects, hence the complainant again approached the OP No.1 after one month and again defects in the Gear Box and Clutch plates found and again the OP No.1 charged Rs.20,000/- on account of replacement of fly wheel and clutch plates, although the vehicle was still under warranty period. It is pertinent to mention here that after replacement of clutch plates, when the vehicle was taken for washing, the clutch plates again became defective, which could not be removed despite the efforts made by the mechanics of the OP No.1. It is further pleaded that the OP No.1 asked the complainant to leave the vehicle in the workshop, as some parts have to he arranged from Hyderabad (AP) which will take about 15 days. It is further alleged that the complainant who had to attend some urgent meetings of the department at Chandigarh, so she was constrained to hire vehicles by paying rent and even hired Taxi for performing her duties. It is further alleged that the vehicle of the complainant has been made in working order after replacing parts by the OP’s only few days back, and now the vehicle is running again defect and in this way the complainant suffered a lot continuously for a period of about one year and even she paid Rs.26,300/- to the OP’s for removing the defects, although the vehicle was under warranty. It is further pleaded that the OP’s are liable to refund the above mentioned amount, besides amount of Rs.2,50,000/- spent by the complainant on account of hiring of vehicle for performing duties and compensation account of mental torture, physical harassment and financial loss caused by the OP’s due deficiency and negligence in service. It is further alleged that the complainant had been regularly approaching the OP’s and requesting to refund the amount received from her for removing defects from the vehicle during warranty period and also to pay amount of Rs.2,50,000/- as compensation, but a week back the OP’s orally refused to take any action into the matter and threatened the complainant to go anywhere, no action is being taken into the matter. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and negligence in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to make payment of compensation to the tune of Rs.2,50,000/- along with interest @ 12% P.A. on account of mental torture, physical harassment and financial loss caused by the opposite parties by delivering defective vehicle to the complainant and to refund the amount of Rs.26,300/- which the opposite parties have received from the complainant for removing the above mentioned defects from the vehicle during warranty period. The opposite parties may also further to pay litigation expenses to the tune of Rs.10,000/- to the complainant, in the interest of justice.
3. Opposite parties No.1 and 2 did not appear despite service of notice and was proceeded against exparte vide order date 23.03.2018.
4. Upon notice, the opposite party No.3 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that it would be relevant to point out the relationship between the company and its authorized dealers (OP No. 1 and 2 in this case). The relationship between the two is on principal to principal basis and not on principal to agent basis. It is further pleaded that opposite party No.3 is the manufacturer of the vehicle in question and opposite party No.1 and 2 are its authorized dealer, Dealers (in the present case, Opposite Party No.1 and 2 are authorized to purchase the vehicles manufactured by the Opposite Party No. 3 in bulk quantities and in turn resells them to their own customers. It is further pleaded that in the present Complaint the alleged Complainant is not a consumer and thus he cannot be considered as the Complainant u/s 2 (1) (L) of Consumer Protection Act, 1986; that no cause of action has arisen against the opposite party No.3 and in favour of the complainant, as the complainant has failed to make out a case for any deficiency on the part of the opposite party No.3 and the Complainant has not approached this Hon'ble Commission with clean hands and has stated false and misleading facts knowingly and with deliberate intention to malign the Opposite Party-Company and therefore, she is not entitled for any relief from this Hon'ble Commission. It is further pleaded that the complainant has not got any expert opinion to establish any manufacturing defect and the present complaint is merely a misadventure with the legal process rather than a genuine grievance and the present complaint deserves to be dismissed with heavy costs and the Complaint is false, frivolous and vexatious to the knowledge of the Complainant. It is further pleaded that the Opposite Party No.3 is entitled to get special costs from the Complainant under section 26 of the Consumer Protection Act 1986. It is submitted that complainant although has got the vehicle serviced on time but the vehicle has been managed negligently because while driving the clutch was not used properly and clutch plate has been over ridden and has been abused. It is further pleaded that in the humble submission of the opposite party No.3 the vehicle has been negligently handled. It is humbly submitted that it is vehemently wrong that vehicle has defects from the first day of its delivery. It is further pleaded that had it been so then the complainant must have made the complaint immediately after purchasing the vehicle but in this case vehicle came for first service on 27.08.2016 when it had run 3491 KMS and on 27.08.2016 i.e. after 1 ½ month of purchase no complaint was made. It is further pleaded that thereafter, vehicle came for its second service on 26.11.2016 when vehicle had run 10297 KMS within 4 months of its purchase, even on that no defect in the vehicle has been reported. It is further pleaded that the complainant has mislead the court with the distorted facts and there is no iota of evidence regarding the defect from the 1st day rather till 10297 KMS running of the vehicle no defect was reported. It is further pleaded that it has been alleged that there are major manufacturing defect in the clutch plats and gear box and engine assembly. It is further pleaded that this is vehemently wrong that there is manufacturing defect in clutch plates, gear box and parts of engine assembly. It is further pleaded that as a matter of fact, complainant on 12.01.2017 i.e. after 6 months of the purchase and when vehicle has run more than 13000 KMS first time reported complaint in clutch. It was checked and found by the dealer that clutch plate has burned due to clutch over ridding and when enquiry was made by the trained engineers of the dealer from complainant then they found that complainant was always using half clutch while driving due to which the clutch plate has burnt. It is further pleaded that thus by any stretch of an imagination it cannot be said that vehicle has manufacturing defect from the very beginning. It is further pleaded that the service record speak volumes and shows that no complaint has been made for 1st 13000 KMS and even after 1st 13000 KMS the clutch plate has burnt due to its abuse as vehicle has negligently been driven by using the half clutch while driving. It is further pleaded that therefore, it cannot be said that it is manufacturing defect, and the allegations are baseless and frivolous and also, the complaint is based on distorted facts. It is further pleaded that it is wrong that there was no improvement on 12.01.2017 vehicle had run 13668 KMS and on 07.03.2017 at 18041 KMS at that time no complaint was made and it was only left hand side mirror was changed because it was demanded by complainant. It is further pleaded that copy of the job card and repair order shows that no defect has been reported on 07.03.2017 and it belies the stand of complainant that there was no improvement in the vehicle rather even after running 5000 KMS no complaint was made. It is further pleaded that on 31.03.2017 complainant had reported gear hard problem when the vehicle had run 19319 KMS and the vehicle was inspected by the engineers and trained mechanics of dealership and it was found that the driver of the vehicle has again used the vehicle clutch and it was reported at the time of 3rd free service. It is further pleaded that there was no defect in the gear and only clutch cover and clutch disk assembly has been replaced. A perusal of Annexure R3/5 would show that no work has been done on gear of the vehicle and it was only due to the clutch plate over riding the clutch became defective. It is further pleaded that since the clutch is not covered under warranty as already stated therefore, the work is done on paid basis. It is further pleaded that the complainant has completely failed to point out any other defect in the vehicle. Further, it is submitted that vehicle has not come for any service or repair after July, 2017. It is further pleaded that this itself is a proof that vehicle is functioning fine and has no defect and the continue usage of the vehicle shows that it has no manufacturing defect in it and it is functioning properly. It is further pleaded that it is proved beyond doubt that vehicle is a defect free and whatever defect has occurred in the clutch i.e. due to negligent handling and no other defect whatsoever has been pointed out. It is further pleaded that the complaint is nothing but abuse of process of law as well as abuse of process of court therefore, it is liable to be dismissed.
On merits, the opposite party No.3 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Learned counsel for the complainant has tendered into evidence affidavit of Parveen Kumari, (Complainant) as Ex.C-1 along with other documents as Ex.C-2 to Ex.C-11.
6. Learned counsel for the opposite party No. 3 has tendered into evidence affidavit of Sh.Ashish Sharma, (Authorized Signatory, Mahindra & Mahindra Ltd.) as Ex.OP-3/1 along with other documents as Ex.OP-3/2 to Ex.OP-3/6.
7. Written arguments filed by the complainant but not filed by the opposite party No.3.
8. Counsel for the complainant has argued that the car purchased by the complainant was having manufacturing defect in it and the complainant had to take the said car to the opposite parties No.1 and 2 for repair and inspite of fact that the car was within warranty opposite parties no.1 and 2 charged Rs.26,300/- from the complainant which amounts to deficiency in service.
9. Opposite parties No.1 and 2 remained exparte.
10. Counsel for the opposite party No.3 has argued that relation between opposite party No.3 and that of opposite parties No.1 and 2 is that of principal to principal basis and as such since no manufacturing defect is proved through the report of expert. It is further argued that the defect in the clutch plates is due to misuse by the complainant and the repair of clutch plates does not come within the warranty and as such complaint is liable to be dismissed.
11. We have heard the Ld. counsels for the complainant and opposite party No.3 and gone through the record. It is admitted fact that complainant had purchased one car Mahindra KUV 100 K6 bearing No.PB-06-AG-5790 from opposite parties No.1 and 2. It is further admitted fact that within the warranty the said car had defect in it clutch plates. It is further admitted fact that within the warranty opposite parties No.1 and 2 charged payment from the complainant. The only dispute for adjudication is whether the opposite parties were within their right to charge amount for repair within warranty or not.
12. To prove his case counsel for the complainant has placed on record copy of registration certificate (R.C.), copy of vehicle history regarding repair.
13. On the other hand opposite party No.3 has placed on record copy of repair order as per which on 01.04.2017 amount of Rs.19,764.98 were charged from the complainant during the service when the vehicle had covered distance of 19,319 K.M. and was very much within the warranty. The excuse of opposite party No.3 that repair of clutch plates is not covered and the defect occurred due to misuse by the complainant is not proved on record by any report of qualified engineer of the opposite parties. A such we have no hesitation in holding that charging of amount of Rs.19,764.98 from the complainant by the opposite parties amounts to deficiency in service.
14. Accordingly, present complaint is partly allowed against opposite party No.1 and 2. Opposite parties No.1 and 2 are directed to refund amount of Rs.19,764.98/- to the complainant alongwith interest @ 9 % per annum from the date of filing of the compliant till realization and to pay Rs.2,000/- to the complainant for mental tension, harassment, agony and cost of litigation within 30 days from the date of receipt of copy of this order.
15. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
16. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Sept. 14, 2023 Member
*YP*
