Haryana

Kurukshetra

57/2018

Salinder Kumar - Complainant(s)

Versus

KBS MOTOR - Opp.Party(s)

Harpal Madhan

06 Oct 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPTUES REDRESSAL  COMMISSION, KURUKSHETRA.

                                                     Complaint Case No.57 of 2018

                                                     Date of institution: 16.03.2018

                                                     Date of decision:. 06.10.2021.

 

Salinder Kumar, aged 35 years, son of Shri Om Pal, resident of village Dhanoura Jattan, Tehsil Thanesar, District Kurukshetra.

                                                                …Complainant.

                        Versus

1.K.B.S.Motors, authorized Dealer, Mahindra & Mahindra, adjoining Hotel Saffron, Sector -7, Pipli Road, Kurukshetra, through its Proprietor.

2. KBS Motors Private Limited, authorized Dealer Mahindra and Mahindra  Company Limited, village Tepla, Ambala –Jagadhari Road, Saha, District Ambala, through its Prop./Manager.

3.Mahindra & Mahindra Company Limited, Opposite Swaraj Division, Gate No.4, Industrial Area, Phase IV, Sector 58, Mohali – 160055 through  its Managing Director.

4. Tata AIG General Insurance Company Limited, having its branch office at SCO No.232-234, 2^nd Floor, Sector 34-A,Chandigarh – 160022 through its Branch Manager.

….Opposite parties.

Before:      Smt. Neelam Kashyap, President.

                Ms. Neelam, Member.

                Sh.  Issam Singh Sagwal, Member.

       

Present:     Sh. Harpal Mandhan, Advocate for complainant.   

                Sh. Parveen Chopra Advocate for opposite party No.1 &2.

                Sh.Gaurav Gupta Advocate for OP No.4.

                OP No.3 ex parte.

               

ORDER             This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Salinder  Kumar against  Jai Maa Auto Mobiles etc., the opposite parties.

 

2.            It is stated in the complaint that the complainant had  purchased a car Model KUV 100 K6D make Mahindra and Mahindra Limited bearing  chassis No. G6D91480, Engine No.NAGZD17151 and got it registered vide registration No. HR-07X-4521 for a sum of Rs.6,61, 960/- from OP No.1 on 28.9.2016. At the time of sale of the said  vehicle, the OP No.1 had also got insured the same with the OP No.4 vide policy No. 0156334523  which was valid from 28.9.2016 to 27.9.2017.   At the time of sale of the vehicle, OP No.1 to 3 had given warranty for the said vehicle for a period of three years  or upto running of 72000 KMs.  The said vehicle was got financed from Mahindra Finance Company Limited, Sector 17, Kurukshetra  and the complainant is paying the installments of loan amount regularly. It is further averred that since beginning the said vehicle was not running properly and there was defect in its clutch-kit, so the complainant approached the OP no.1 and 2 several times  and all the times OP No.1 and 2 handed over the said  vehicle  to the complainant  with the assurance that now the vehicle would run properly as they have  removed the defect of the clutch-kit but in spite of their assurances, clutch of the said vehicle is not working properly. It is again averred that in the month of Feb. 2017, the said vehicle met with a road side accident and in the said accident dark scratches developed, so the complainant took his vehicle to OP No.1 but the OP No.1 advised the complainant to take his vehicle at the premises of OP No.2 for repair purposes. The complainant took his vehicle to OP No.2 where mechanics of OP No.1  to 3 checked the said vehicle and after checking assured to replace the left side damaged parts but the OP No.1 to 3 instead of replacing the said damaged parts re-painted the same with the unmatched/imperfect paint with their own and without the knowledge of the complainant and for that purpose OP No.1 to 3 have charged Rs.2400/- vide receipt No.22596 dated 2.3.2017 illegally. The complainant complained about this illegal act of OP Nccxo.1 and 2  several times and requested them to replace the said vehicle with new one but the OP No.1 and 2 always postponed the matter on one pretext or the other for a long time.  However, in the month of Sept. 2017, the OP No.1 and 2 again repainted the whole body of the vehicle but again with an unmatched paint and that time also the OP No.1 and 2 charged Rs.1250/- vide receipt No.26726 dated 21.9.2017 illegally and this act of OP No.1 to 3 have decreased the market value of the vehicle.  The complainant  visited the OP No.1 to 3 several times and requested them to replace the vehicle of the complainant with a new one but nothing has been done which amounts to deficiency in services on the part of the OPs. Thus, the complainant has filed the present complaint against the OPs and requested that the OPs be directed to replace the vehicle in question with a new one or to refund its cost and to pay compensation for the mental harassment caused to the complainant and the litigation expenses.

3.             Notice of the complaint was given to the OPs. OP No.1 and 2 appeared and filed written statement disputing the claim of the complainant. It is submitted that the vehicle of the complainant had met with an accident twice,  once in the month of  Feb. 2017 and secondly in the month of Sept. 2017. The OPs gave their  efficient services in repairing the same. First time an amount of Rs.126645/- was incurred on the repair of the vehicle and the complainant has to pay Rs.2400/- ( i.e. Rs.1000/- on account of compulsory insurance excess clause and Rs.1400/- on account of rubber parts/consumable parts). Remaining payment was made by the insurance company to the respondent no.1 and 2.

                It is also submitted that again the vehicle in question met with an accident in the month of September 2017 and it was repaired and  repainted again with high quality and perfect paint by the OPs. This time an amount of Rs.35732/- was incurred upon the repair of the vehicle in question and the complainant has to pay Rs.1250/-  only ( i.e. Rs.1000/- as compulsory insurance excess clause and Rs.250/- on consumable parts.) and the remaining  payment of the bill was made by the insurance company to the OPs. It is submitted that answering OPs have no concern with the accidental damages. The OPs charged the amount of those parts from the consumer to which insurance company denies to pay as per the insurance policy. It is submitted that as per vehicle history  clutch plates were replaced on 21.2.2018 at 72708 KM   although clutch kit is out of purview of warranty, even then it was replaced by the OPs free of cost in token of respect of complainant. The vehicle in question is running properly. The complainant is knitting a false story in this complaint.  It is submitted that the vehicle was repaired and repainted as per oral advise of the surveyor of the insurance company. All other allegations made in the complaint have been denied specifically and took preliminary objections of maintainability, locus standi, mis joinder of the parties and that of jurisdiction and it was prayed that the present complaint may kindly be dismissed.

4.             The OP No.4  filed its written statement disputing the claim of the complainant. It has been admitted that the vehicle is insured with the OP No.5 for the period 28.9.2016 to 27.9.2017.  It is submitted that till date complainant has never lodged any claim/informed regarding the said incidence to answering OP. No act of omission or commission has been attributed to the answering OP and as such the present complaint is liable to be dismissed qua answering OP.  The complainant had not uttered even a single word against the answering OP in the entire complaint and as such, there is no deficiency in services on the part of the answering OP and the present complaint may kindly be dismissed.

5.             The complainant in support of his case has filed affidavit Ex.CW1/A and tendered documents Annexure C-1 to Annexure C-5 and closed his evidence.

 

6.             OP No.1 and 2 failed to adduce any evidence inspite of availing several opportunities and imposing of cost, therefore, evidence of OP no.1 and 2 was closed by order of the court.

7.             The OP No.4 in support of its case has filed affidavit Ex.RW1/A and tendered documents Annexure R-1 and Annexure R-2 and closed its evidence.

8.             We have heard the learned counsel for the parties and gone through the case file very carefully.

9.             The learned counsel for the complainant has argued that the complaint that the complainant  had  purchased a car Model –KUV 100 K6D make Mahindra and Mahindra Limited bearing  chassis No. G6D91480, Engine No.NAGZD17151 and got it registered vide registration No. HR-07X-4521 for a sum of Rs.6,61, 960/- from OP No.1 on 28.9.2016. At the time of sale of the said  vehicle, the OP No.1 had also got insured the same with the OP No.4 vide policy No. 0156334523  which was valid from 28.9.2016 to 27.9.2017.   It is also argued that at the time of sale of the vehicle, OP No.1 to 3 had given warranty for the said vehicle for a period of three years  or upto running of 72000 KMs.  That since beginning the said vehicle was not running properly and there was defect in its clutch-kit, so the complainant approached the OP no.1 and 2 several times and all the times OP No.1 and 2 handed over the said vehicle  to the complainant  with the assurance that now the vehicle would run properly as they have  removed the defect of the clutch-kit but in spite of their assurances, clutch of the said vehicle is not working properly. It is argued  that in the month of Feb. 2017, the said vehicle met with a road side accident and in the said accident dark scratches developed, so the complainant took his vehicle to OP No.1 but the OP No.1 advised the complainant to take his vehicle at the premises of OP No.2 for repair purposes. The complainant took his vehicle to OP No.2 where mechanics of OP No.1  to 3 checked the said vehicle and after checking assured to replace the left side damaged parts but the OP No.1 to 3 instead of replacing the said damaged parts re-painted the same with the unmatched/imperfect paint with their own and without the knowledge of the complainant and for that purpose OP No.1 to 3 have charged Rs.2400/- vide receipt No.22596 dated 2.3.2017 illegally. The complainant complained about this illegal act of OP N o.1 and 2  several times and requested them to replace the said vehicle with new one but the OP No.1 and 2 always postponed the matter on one pretext or the other for a long time.  However, in the month of Sept. 2017, the OP No.1 and 2 again repainted the whole body of the vehicle but again with an unmatched paint and that time also the OP No.1 and 2 charged Rs.1250/- vide receipt No.26726 dated 21.9.2017 illegally and this act of OP No.1 to 3 have decreased the market value of the vehicle.  It is further argued that  complainant  visited the OP No.1 to 3 several times and requested them to replace the vehicle of the complainant with a new one but nothing has been done which amounts to deficiency in services on the part of the OPs. Thus, the complainant has filed the present complaint against the OPs and requested that the OPs be directed to replace the vehicle in question with a new one or to refund its cost and to pay compensation for the mental harassment caused to the complainant and the litigation expenses.

10.            On the other hand, learned counsel for OP N o.1 and 2 has argued that the vehicle in question met with an accident in the month of September 2017 and it was repaired and  repainted again with high quality and perfect paint by the OPs. This time an amount of Rs.35732/- was incurred upon the repair of the vehicle in question and the complainant has to pay Rs.1250/-  only ( i.e. Rs.1000/- as compulsory insurance excess clause and Rs.250/- on consumable parts.) and the remaining  payment of the bill was made by the insurance company to the OPs. It further argued  that answering OPs have no concern with the accidental damages. The OPs charged the amount of those parts from the consumer to which insurance company denies to pay as per the insurance policy. It is submitted that as per vehicle history  clutch plates were replaced on 21.2.2018 at 72708 KM   although clutch kit is out of purview of warranty, even then it was replaced by the OPs free of cost in token of respect of complainant. The vehicle in question is running properly.

                The learned counsel for OP No.4 has argued that the vehicle in question is insured with the OP no.4 but the complainant has not informed the OP no.4 about the accident or damages of  the vehicle  has not been has lodged any claim with the OP No.4, therefore, OP no.4 is not deficient in providing of services. During course of arguments, learned counsel for OP No.4 has placed on record  Mark “A” and Mark “B”  regarding both the  accidents of the said vehicle and the  claim received through workshop  whatever, payable by OP No.4 has been paid. As the present case is of accidental damages and that has been paid by the OP No.4, therefore, nothing is required to be done by the manufacturer and dealer because there is no manufacturing defect in the vehicle. So, the contention of the  complainant that there is manufacturing defect in the vehicle is rejected.

11.            Further , we are of the view that there is no deficiency in services on the part of the OPs. As per own case of the complainant the vehicle in question met with an accident in the month of Feb. and September 2017  and OP No.1  and 2 repaired the vehicle whatever required. The OP no.1 and 2 charged the amount of those parts from the consumer to which insurance company denied to pay as per the insurance policy.  This fact is further strengthened from Mark “A” and Mark “B” as discussed above. The perusal of the file shows that there is no manufacturing defect in the vehicle as the complainant has failed to place on record any evidence to prove this fact. OP no.1 and 2 being dealer of the manufacturing are bound to repair the vehicle on payment of charges because the  damages were not covered under the warranty period.  Thus, being so, it is held that there is no manufacturing defect in the vehicle and it is not a fit  case of replacement of the vehicle, because it was a case of  casual accidental damages. The complainant has not lodged any claim with the OP No.4, therefore, OP no.4 can also not be held deficient in services. Thus, no deficiency in services on the part of any of the OPs is made out and the present complaint is liable to be dismissed.

12.            In view of our above findings, we do not find any merit in the present complaint and as such same is hereby dismissed. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the record-room, after due compliance.

 

Announced in open commission:

Dt.:6.10.2021.                                            (Neelam Kashyap)

                                                                     President.

 

 

(Issam Singh Sagwal),         (Neelam)       

 Member                              Member.