Reserved

State Consumer Disputes Redressal Commission

U.P. Lucknow.

Complaint Case 54 of 2017

Awadhesh Kumar Singh s/o Late Gauri Shankar

Singh, R/o H. no.A-3/119-D, Trilochan Bazar,

Machhodari, District, Varanasi.                     …Complainant.                                                                         

                         Versus

1- Mahindra & Mahindra Financial Services Limited,

    through its Director having Office-1^st Floor, Sri

    Das Foundation Building, S,20/51-5 & SB, 20/52-4,

    CA, NTT, Mall Road, above UBI Bank,

    District Varanasi.

2- Mahindra & Mahindra Limited (Truck and Bus

    Division) through its Director having Registered

    Office- Gateway Building, Apollo Bunder,

    Mumbai-100001 (Maharastra)

3- Balaji Banaras Commercial Vehicle Private Limited,

    through it Director, Authorized Dealer of Mahindra

    and Mahindra Limited, (Truck and Bus Division)

    TengraModh, Ramnagar, District Varanasi.

                                                                          ...Opp. Parties.

Present:-

1- Hon’ble Sri Rajendra  Singh, Presiding Member.

2- Hon’ble Sri Vikas  Saxena, Member.

Sri Ramesh Kumar Rai, Advocate for the complainant.

Sri A.K. Srivastava, Advocate for the Opposite party no.1.

Sri Alok Sinha, Advocate for the Opposite party no.2.

None appeared for the opposite party no.3.

Date  2.9.2022

JUDGMENT

Per Mr. Rajendra Singh, Member: This complaint has been filed under section 17 of the Consumer Protection Act 1986 for the adjustment of financial amount that is ₹2,480,000/- as against financed for purchasing Mahindra Blazo 31 Truck.

In short the facts of the complainant are that, that the complainant had purchased a truck to be used exclusively for the purpose of earning his livelihood by means of self-employment and the opposite party no.1 working in the capacity of financer of Mahindra & Mahindra Ltd. (Truck and Bus Division), and the opposite party no.2 is manufacturer of the truck in question and the opposite party no.3 is authorised dealer and the service centre of the opposite party no.2. The instant complaint arose out of grossly illegal and erroneous act which has been done by the opposite parties whereas the aforesaid defective Mahindra Blazo 31 truck was neither prepared nor refunded the cost of the truck that is ₹2,480,000/-, cost of making body ₹4 lakhs and EMI i.e. ₹58,720/- and ₹58,560/- and insurance premium ₹52,999/- and other expenses within the warranty period, and rebuked to the complainant in spite of several requests made to the opposite parties. To promote the sale of Mahindra and Mahindra Blazo 31 truck, the opposite party no.2 advertises through various national newspapers and telecasts through TV channels.

The complainant abovenamed, believing on the advertisement of Mahindra and Mahindra Blazo 31 truck made by the opposite party 2 and also convinced by the opposite party no.3, purchased a truck bearing chassis number MA1PFAJBCG6D48655 and the engine number EAGZD13295 from the opposite party 3 that is Balaji Banaras Commercial Vehicle Private Limited, Tengra Modh, Ramnagar, Varanasi on payment of ₹2,480,000/- on 18.07.2016 under loan agreement no.5002253443, dated 13.06.2016. The complainant moved an application before the opposite party no.1 as a division of the opposite party no.2 for financial assistance, the same application was allowed and sanctioned loan for a sum of ₹24 80,000/- for the period of 60 months and interest would be charged over the due amount @6.92% per annum. The first instalment was ₹ 58,720/- and rest of 57 instalments are were fixed ₹ 58,560/- meaning thereby, the total amount was to be paid ₹3,279,360/-.

After obtaining sale certificate from the opposite party no.3, the said truck got registered in the office of Regional Transport Officer, Varanasi therefrom registration no.UP65-ET-5016 was allotted on 19.07.16. The deponent expended ₹52,999/- on account of insurance, ₹4 lakhs in the account of making body of the said truck, ₹1 lakh in the account of registration, road tax, fitness and permit et cetera. Since receiving the truck in question, it started giving trouble due to several inherent manufacturing defects discovered such as wiper motor not working, side indicator problem, noise in engine, break air nylon, breakdown, parking light not working, rear parking lamp, air bleeding from the fuel system, wiring harness, Axel Bend removal, FRT hub greasing-2 HUB, Rear HUB  R and  R all four, front HUB axial play setting, Front Spring Spacer, BOLT HEX FL M12X1.75X90X8.8, NUT HEX FL,BOLT HUB FRONT, WHEEL  NUT, mileage reduced, hard clutch and tyre problem. On 13.08.16, the opposite parties no.2 & 3 were informed that the truck in question is not in position to move due to serious manufacturing defect, as the engineer and mechanic of the opposite party no.3 came and took the vehicle by way of tochan in the workshop for repairing. After removing the defect, the vehicle was put on road for a few days. Further, the vessel in question used to line in the shop for removing inherent manufacturing defect on the following dates:

          The complainant approached to the opposite parties no.2 & 3 and complained about the bonafide manufacturing defect such as developed unusual noise/failed to pick-up, sound in engine, release fume and burnt clutch plats shortly, excess fuel consumption and crown noise, R & R Crown, low average, milage cum ho gaya, tyre chat rahahai, etc. the engineer of the opposite party after examining the defect and told because of the new engine, you have to face some problem but soon after, it will automatically adjust and became defect free after covering some milage but the manufacturing defect remained and increased again and again and also the manufacturing defect could not be removed due to inherent manufacturing defect. Finally, the mechanic of the service centre advised that the said vehicle could never be repaired because it has serious manufacturing defect.

          It is also stated that actual complaint about manufacturing defects in engine caused several time break down were not mentioned in the job sheet as against simple defects have been showed in the job sheet which apparently indicated ‘unfair trade practice and deficiency in service’ on the part of the opposite parties. The truck in question was running on the road only 27 days out of 90 days and rest of 63 days lying in workshop for removing the inherent manufacturing defect as the repairing job sheet clearly shows due to which the complainant is not in position to deposit the installment of finance amount.

          It is also stated that due to inherence manufacturing defect, the installment could not be paid. The complainant has no other source of income to survive the life of family members. Thus, it was discussed with the opposite parties about surrender of the truck in question. Further, the complainant was advised that prior to surrender or the truck, obtained current value. The motor valuation report dated 22.12.2016 has been issued by Rajesh Kumar (General insurance surveyor & loss assessor) after physical inspection as valued Rs.24,00,000/-.  The complainant complained several times during the warranty period to the opposite parties for removing the inherent manufacturing defects but no attention was paid and the vehicle remained unrepaired even after an elapse of seven months. Being aggrieved the complainant approached the opposite parties no.2 & 3 for either replacing the defecting chassis (truck) with new one or  refund the cost of the making body as well as EMI but he dealer refused flatly with sentences, that question does not arise for replace or refund the cost of the making body as well EMI because once the vehicle has been sold, no provision for replacement of the defecting chassis or refund the cost of the vehicle.

          The defective Mahindra & Mahindra Blaze 31 truck surrendered to the opposite party no.3 on 29.12.2016 as directed by the opposite party no.2 with request to adjust the loan amount earlier as possible and also be issued a no dues certificate. After surrender of the truck in question, the complainant sent a letter and affidavit to the opposite parties on 2.1.2017, wherein stated full facts that the complainant is not satisfied from the said vehicle due to manufacturing defect caused huge losses. Thus it is lawful to refund the cost of truck and other charges such as charges of making body, insurance premium, charges of fitness and permit etc. but remained unreplied. The opposite parties are liable either to remove the inherent manufacturing defects, if any comes within the warranty or replaced with new one or refunded the cost of making body as well as EMI which has already been paid.

          Therefore, it is prayed for passing an order for the following relieves:

1. By an order the opposite party no.2 be directed either to pay the finance amount i.e. Rs.24,80,000.00 to the opposite party no.1 after deducting of 1^st installment i.e. Rs.58,720.00 plus 2^ndinstallment i.e. Rs.58,560.00 or to refund the cost of the Mahindra Blazo 31 truck i.e. Rs.24,80,000.00 plus charges of making body i.e. Rs.4,00,000.00 plus insurance amount i.e. Rs.52,999.00 plus charges of fitness and permit Rs.16,141.00 along with interest @24% p.a. calculated from the date of payment till final realization.
2. That the damages in the account of physical, mental and economical stretch for a sum of Rs.5,00,000.00 along with interest @ 24% p.a. my also be recovered from either the opposite party no.2 or the opposite party no.1.
3. That the expenses in the account of filing of the complaint and legal opinion for a sum of Rs.50,000.00 along with interest @ 24% p.a. may also be recovered from the defendants.
4. That any other or further relief to which the complainant found entitle in the eye of law may also be awarded to the complainant.  

The opposite party no.1 has filed their written statement wherein denied all the allegations contained in the complaint, except those which are specifically admitted hereinafter in this written statement. The Hon’ble Commission has no jurisdiction to entertain this instant complaint on the part of the answering opposite party no.1. It is stated that deficiency in defined under section 2(1)(g) of the Consumer Protection Act, 1986 which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in pursuance of a contract. In the present case, there is no deficiency in service on behalf of the answering opposite party no.1. Thus, the present complaint is liable to be dismissed on this count alone.

The complainant in purchase of Mahindra Blaze 31 cowl, got loan amounting to Rs.24,80,000.00 under loan agreement dated 30.6.2016 having contract no.4279490 from the answering opposite party no.1 and as per schedule complainant is under obligation to pay monthly installment of

Rs.58,720.00  for first installment and Rs.58,560.00 for remaining 56 installments and tenure of the loan was 60 months. The complainant paid only 3 installments total amounting to Rs.1,18,280.00 till 20.9.2016.

          It is prayed that the present complaint is not maintainable against the answering opposite party no.1 and is liable to be dismiss with heavy costs.

          The opposite party no.2 filed their written statement wherein it is stated that there is no privity of contract between the complainant and the opposite party. The transaction between the opposite party and its dealers are on principal to principal basis and the dealer is not the agent of the opposite party for any purpose whatsoever. The vehicle manufactured by the opposite party company is purchased by the dealers for re-sale to its own customers. The complainant  is not covered under the definition of consumer as defined under section 2(1)(d) of the Consumer Protection Act, 1986 because the complainant has purchased he vehicle for earning profit as business purpose which is totally commercial purpose.

          It is respectfully submitted that in the absence of any evidence to the allegations as well as the relief sought herein by the complainant, no liability can be fastened upon the answering opposite party being merely a manufacturer by the complainant herein. 

          We have heard ld. Counsel for the complainant Sri Ramesh Kumar Rai, ld. Counsel for the  opposite party no.1 Sri A.K. Srivastava and ld. Counsel for the opposite party no.2 Sri Alok Sinha. We have perused the documents, pleading and evidence available on record.

We have seen the defects as mentioned by the complainant by way of a chart in the complaint. First there is complaint of wiper motor not working, again headlight not working and poor brake then the tyre wear, wiper motor not working, thereafter there is complain of front tyre wear high, electric problem and wiper motor not working, at metre reading of 11,978 km it has been mentioned as shortfall in mileage, loss of tyre material, front Spring specer, bolt hub etc. Whether these shortcomings ?

automobil industry has been

Over the years, the automobile industry has been continuously bedevilled by the continuous recall of vehicles as a result  of manufacturing defects.  The  recall of  vehicles in  the automobile  industry  is  not  limited  to  any  particular manufacturer. Defective components or parts have always been attributed  for  the  reason  for  the  recalls,  while  some  have attributed  it  to  uncontrolled  growth  and  expansion.  For automobile  companies  to  keep  up  with  the  growth  in  the automobile industry; it must be ready at all times to satisfy its numerous  customers  with  quality,  reliable  and  affordable products. Reliability of the product is essential to keep a good customer  base.  The  competitive  nature  of  the  automobile industry  requires  that  companies  comply  with  international safety standards in the manufacture of cars while ensuring that components and  parts  supplied to  production  shop floor  are capable (CP), and  where defects  have been  identified, Failure Mode  Effect  Analysis  and  Critical  Analysis  (FMECA)  be carried out on such components. The aim of this research paper is  to  investigate  the  causes  of  manufacturing  defects  in  the automobile  industry,  a  case  study  of  the  remote  causes  and effects of Toyota’s transmission malfunctions in cars. In other to achieve  this,  the  number  of  recalls  from  various  automobile companies was investigated, with a detailed case study analysis, with SWOT and PEST analysis on the case study company.

Regarding manufacturing defect the following case laws are important.

In the case of Mohd. Hasan Khalid Haider Vs. General Motors India Private Limited & Ors., Revision Petition no.525/2018, judgment dated 8 June 2018, the Hon’ble National Commission taking reference of its own earlier judgment passed in Tata Motors vs. Rajesh  Tyagi judgment dated 03.12.2013 (revision petition no.1030/2008) has said that some defects occurred in the vehicle after some time of taking its delivery and the complainant came to know that there is water logging in the floor area and front seat which cannot be removed by the opposite party but in the case of Mohd.  Hasan  Khalid Haider  the problem in the vehicle developed after 9 to 10 months of taking its delivery and the vehicle has already run 2500 km and if it would have been manufacturing defect the vehicle could not run so much kilometres. The defect has already been repaired so the Hon’ble National Commission did not consider it as manufacturing defect.

In the case of Baljit  Kaur  Vs.  Divine Motors & Anr., [III(2017)CPJ 599(NC)] the Hon’ble Nation Consumer Commission has said that if any manufacturing defect is alleged then the onus to prove it is on the complainant. In this case complainant had submitted the affidavits of seven or eight persons in his favour, it was held that the affidavits could not take place of the expert opinion.

In the case of  Suresh Chand Jain Vs. Service Engineer and Sales Supervisor, MRF Limited & Ors. [I(2011)CPJ 63 (NC)] the Hon’ble Nation Consumer Commission has said that where it is alleged that there is manufacturing defect of tyres, the burden to prove it is on complainant and he cannot prove it. He could not tender any expert evidence hence he failed to prove that there was any manufacturing defect in the tyres.

The Hon’ble National Consumer Commission in  Hyundai Motors India Ltd. Vs. Surabhi  Gupta, revision petition number 2854/2014, judgment dated 14.08.2014, had said that he is convinced with the argument of Hyundai motors India Ltd. that if there would have been any manufacturing defect in the vehicle, it would have not run 48,689 km in three and half years. If there would have been any serious defect in the vehicle, it was not possible for the owner to run the vehicle for about 48,000 kilometers. The senior officers of the company performed a test drive of the vehicle and wherever defect has been found, it has been repaired or replaced the said part. The Hon’ble National Commission has said that even after this the statement of the complainant cannot be accepted that even after it there is defect in the vehicle.

In the present case there is no definite report regarding combustion or engine. Whatever has been shown is the superficial defects concerning to wiper motor or tyre. It cannot be said as manufcturing defect. The complainant has presented a case law of 2016 (4) CPR 206 (NC) in which there was defect in the engine of the vehicle. The opposite parties agreed to change the engine thereby there was manufacturing defect in the vehicle.  In the present case there is no such manufacturing defects in the vehicle. The defect mentioned by the complainant are simple in nature and these cannot be termed as manufacturing defect. As the complainant purchased the vehicle for his personal use and he visited many times to get the defects in the mood to the service centre, it must have harassed him so the opposite party is liable to pay the compensation to the complainant. After going through all the documents we are of the opinion that opposite parties are liable to pay Rs.1 lakh as compensation for mental torture, harassment including cost of the suit. The reliefs sought by the complainant cannot be awarded. So the plane complainant is level to be allowed partially.

ORDER

The complaint is allowed partially and the opposite party to these jointly and severally directed to pay Rs.1 lakh to the complainant within 30 days from the date of judgment of this complaint case with interest at a rate of 10% from 22.11.2016 till the date of actual payment and a payment is not made will 30 days, the rate of interest shall be 15% per annum.

The stenographer is requested to upload this order on the Website of this Commission today itself.

Certified copy of this judgment be provided to the parties as per rules.

        (Vikas Saxena)                       (Rajendra Singh)

            Member                             Presiding  Member

Judgment dated/typed signed by us and pronounced in the open court.

Consign to Record Room.

       (Vikas Saxena )                       (Rajendra Singh)

            Member                             Presiding  Member

Dated 2^nd September, 2022

Jafri, PA II

Court 2