By Sri. MOHANDASAN.K, PRESIDENT
The case of the complainant is as follows:-
1. The complainant purchased a brand new Mahindra XUV 300 motor car from the second opposite party vide engine No.EULZF 99082, Chassis No. MAINM2EU4L2F59487 which was registered as KL 55 AC 4500 paying Rs. 15, 57,859/- from the second opposite party. The complainant purchased the car believing the words and promises of the sales personal of the second opposite party. The second opposite party promised prompt after sale service to the vehicle. Moreover the first and second opposite parties promised three years warranty without mileage restrictions to the car. One of the main reason for purchasing the car is the promises of three years warranty without mileage restriction and the credibility of Mahindra and Mahindra which is published in various print visual Medias. The first opposite party promising that each new motor vehicles manufactured by them are free from defects in materials and workmanship.
2. After purchasing the vehicle the complainant availed all periodical services as per the instruction manual issued by the first and second opposite parties.
3. The complainant submitted that the first service was done on 21/07/2020 at Thiroorkkad service centre and during that occasion the vehicle had covered 976 kilometres. The second service also done from the same centre at 9931 kilometre on 30/12/2020. The third service was availed from Kottakkal service centre on 28/06/2021 and during that period the vehicle had covered 20228 kilometres and that was done with slight delay due to covid 19 restrictions and unavailability of service centres during those days.
4. The complainant submitted on 12/11/2021 when he was travelling in the car from Kottakkal to Calicut while the vehicle reached at Chelari, engine RPM reached 5,000/- without pressing accilerator and the complainant could not switch of the engine by normal means. Moreover whitish smoke came from exhaust and temperature raised to very high. Then the complainant immediately contacted the service personal attached to the third opposite party and they took the vehicle to their service centre at Kottakkal on 12/11/2021 and on 13/11/2021 after conducting a thorough examination they informed the complainant. That the defect detected was due to some error occurred in the programming / coding of engine. They said to be rectified that error and the vehicle was returned to the complainant without charging service cost. Thereafter about 40 days on 23/12/2021 when the complainant was travelling in the car from Kottakkal to Calicut while the car reached at Pookiparambu the same complaints repeated with more severity. Then the complainant frightened and even expected a chance of explosion. The complainant then contacted the third opposite party, they took the vehicle to their service centre at Kottakkal on 24/12/2021. After examining the vehicle they did not find the cause of engine failure. Later on 31/12/2021 the service manager contacted the complainant and told that the defects occurred to the car was due to excess engine oil by 2 litters in the oil reservoir.
5. On 10/01/2022 the third opposite party issued a work estimate along with an email stating that the complainant is not eligible for warranty as promised at the time of sale of the car. When the complainant insisted for warranty they did not care to hear the complainant and asked to pay a sum of Rs.1, 67,609/- as service quotation for rectifying the defects of the car. Then the complainant approached the first and second opposite parties for the warranty as promised by them at the time of purchase. The opposite parties stated that the failure was not by means of manufacturing defect hence the warranty will not be applicable for these repairs. The complainant submitted these averments are not at all justifiable, but amounts to unfair trade practice and deficiency in service on the side of opposite parties. The vehicle was duly serviced under service centre as instructed by the first opposite party and second opposite party had there been excessive engine oil and that was the reason for the defect the complainant is not responsible for the same . The responsibility is on the part of authorized service centres who performed the periodical maintenance.
6. The complainant submitted the vehicle was taken to third opposite party service centre on 23/08/2021 at 23246 kilometres, on 08/10/2021 at 26432 kilometre, on 09/11/2021 at 27763 kilometres and thereafter on 12/11/2021 at 27883 kilometres when the first failure occurred.
7. The complainant submitted after many discussions the complainant constrained to approve the work approval under protest for availing further loss and inconveniences. The complainant issued a registered letter on 28/01/2022 to the third opposite party to do work under protest and reminding the complainant’s right to get warranty by legal means.
8. Later the vehicle got repaired and the complainant compelled to make payment of
Rs. Rs.20,3716 to the third opposite party for repair charges including Rs.5,800/- towards 30,000 kilometres third service hence the cost of repair Rs. 1,97,916/- will have to paid by the opposite parties to the complainant.
9. The complainant alleged the defects alleged to the vehicle are due to the manufacturing defect and the complainant is eligible to get it rectified without cost as promised in the warranty. The act of the opposite parties amounts unfair trade practice and deficiency in service. The act of denial of warranty caused mental agony to the complainant along with incidental inconveniences. The complainant alleged the failure to the vehicle on 12/11/2021 and 23/12/2021 are identical in nature and the second incident was very much severe and life threatening. The complainant further submitted the reason for failure either manufacturing defect or excess engine oil issue should have been properly detected and should have been properly reported and communicated to the complainant on 13/11/2021 itself. The complainant alleged the recurrence of failure on 23/12/2021 is definitely caused due to the irresponsible, inadequate, improper repairs or mis diagnosis on 13/11/2021 by third opposite party. Hence the failure on the part of third opposite party amounts deficiency in service. It is submitted repair work carried out by the third opposite party like engine repair, replacement of turbo charger, BS6 exhaust system and replacement of so many major parts of engine are major repair work and should have come under vehicle warranty.
10. The third opposite party told to the complainant that the engine failure happened on 12/11/2021 was a result of programming error and that defect is nothing but a manufacturing defect. The third opposite party claimed that they have reprogrammed the same and the vehicle was perfectly right for running on the road, but it is clear that the re programing cannot rectify hardware or mechanical damages occurred during the failure on 12/11/2021. Moreover the errors happened in the new program may be a reason for failure on 23/12/2021 also.
11. Hence the complainant prayed Rs. 1, 97,916/- towards the cost of repairing charges with 12% interest till realization. The complainant further claimed compensation of Rs.2, 00,000/- and cost of Rs. 20,000/-.
12. On admission of the complaint notice was issued to the opposite parties and on receipt of notice the opposite parties entered appearance and field version denying the entire averments and allegations in the complaint. It is submitted the complaint is vague baseless and with malafide intent. It is submitted complaint is not maintainable and it is bad for mis joinder of parties. The opposite parties submitted the transaction between Mahindra and Mahindra Limited and its dealers are on principal to principal basis as per the dealership agreement. The manufacturer had no any direct transactions with the complainant and therefore no privity of contract between the complainant and manufacturer. The dealers are not agents of the first opposite party and hence manufacturer cannot be considered as even vicariously liable.
13. The first opposite party submitted that the vehicle XUV 300 with VIN No.L2F59487 was sold by the second opposite party on 13/07/2020 and the registration No of the vehicle is KL 55 AC 4500 and the complainant is not a consumer of the first opposite party. The warranty claimed by the complainant is a matter of record and the warranty policy was given to the complainant by dealer at the time of delivery of the vehicle. The opposite party submitted that every vehicle undergoes various tests and inspections after manufacturing and before vehicle delivery to customer and hence the vehicles are free from defects in materials and workmanship. The opposite party admitted the service at 976 kilometres on 21/07/2020 before Eram motors Malappuram, second service at 9931 kilometres on 31/12/2020 before Eram motors Malappuram and third service on 28/06/2021 before Eram motors Kottakkal at 20,228 kilometres.
14. The opposite party submitted that the customer brought the vehicle to Eram motors Kottakkal on 13/11/2021 mentioning the complaint of engine RPM increase for one time and did not mentioned any complaint regarding white smoke. During the inspection the complaint was not detected. Vehicle was brought by customer and he was driving it. When the vehicle was brought to service centre there was no complaint of engine RPM raise and there was no white smoke from the exhaust. Dealer had done the ECU scanning and done the ECU data flash. The opposite party denied the allegations that engine RPM reaching 5,000 without pressing the accelerator that the service centre had informed that the defect detected are due to some error occurred in the programming / coding of engine and they rectified the same etc.
15. The opposite party submitted that the vehicle was brought to the workshop Eram motors Kottakkal through on 24/12/2021 and as per the customer he observed white smoke from vehicle exhaust, abnormal engine noise and abnormal engine vibration. On detailed inspection by service centre, it was found that engine oil quantity is higher than the specified capacity and drained nearly 8 litters of oil were the engine oil capacity is only 6 L. The excess oil in the engine had damaged the engine by causing the bent on the connection roads of second and third piston. The technician also found presence of oil on the second and third piston top surface. The other allegations to the contrary are incorrect and hence denied.
16. The opposite party submitted the excess 2 L engine oil found on the engine was not due to any manufacturing defect and is due to some external factors only. Since the failure reason is not due to manufacturing defect the warranty was not applicable and hence the dealer requested customer to carry out the repairs under paid basis. It is submitted that last oil change was done on 28/06/2021 at 20228 KMS and vehicle had run more than 9000 kilometres till the engine failure. It is submitted mechanically there is no possibility for increase in oil quantity inside the engine automatically and there can only decrease in oil quantity when run for more than 9000 kilometres.
17. The opposite party denied the allegation of unfair trade practice and deficiency in service on the part of the first opposite party or dealer as alleged in the complaint. As per record the last oil change was done during the third service on 28/06/2021 at 20228 kms and only 6 L was replaced during this visit and only 6 L was charged to the complainant. The opposite party denied the allegation that their been excessive engine oil and that was the reason for the defect, the complainant is not responsible for the same, the responsibility is on the part of the authorized service centre who performed periodical maintenance , is baseless , incorrect and so denied . The opposite party further contended that if there was any excess engine oil at the time of periodical service on 28/06/2021 at 20228 kms the vehicle could not run till 23/12/2021 covering up to 29804 kms.
18. The opposite party submitted that on 23/08/2021 at 23246 KMS vehicle was reported at Eram motors Kottakkal for running repair for the complaints- fix door bush, tak sound from suspension in rough road below 40 KMPH, under body and body polish free coating, fix mud flap etc. On 08/10/2021 at about 26432, vehicle reported for running repair for the job of washing interior clinic. On 09/11/2021 at 27763 kilometres the vehicle reported for water wash and body polish - premium exterior protection. On 13/11/2021 at 27883 KMS, vehicle was reported to inspect the high engine RPM allegedly occurred once last day as per customer. On inspection any such complaint was not detected and so found the vehicle performance as normal. It is also submitted the service centre had scanned the vehicle ECU and done the ECU data flashing.
19. The opposite party submitted that the submission of complainant that after many discussions he was constrained to give work approval under protest for avoiding further loss and inconvenience and that the complainant gave a registered letter on 28/01/2022 to the third opposite party to work under protest and reminding the complainant right to get warranty by legal means are not aware of the transactions between the complainants and third opposite party. The opposite party submitted the complainant is not entitled to get any benefit of warranty since the cause of the defect is not manufacturing defect and so the repairs were done under paid basis. Along with the repairs as per the request of the customer completed the 30,000 KMS periodic maintenance service also. The claim of the complainant that the cost of repair Rs.1, 97,916/- have to be paid by the opposite parties to the complainant is baseless and he is not entitled for any such claim from the opposite party. The opposite party submitted that the complainant is not entitled for the same since the promised warranty is not covered the defects of the vehicle involved in the complaint. The opposite party denied the allegation unfair trade practice and deficiency in service on account of denying the warranty and charging service cost for rectifying the defect of the vehicle.
20. The opposite party denied the averments that the vehicle was under warranty and the opposite parties did not care to provide warranty benefits , the amount collected by the opposite parties towards repairing charges is to be returned to the complainant etc. are baseless hence denied. The opposite party denied the submission of the complainant that he had paid an amount of Rs.1, 97,916/- under protest to the opposite party . The opposite party alleged that the defect caused to the vehicle is attributable to the negligence of the user of the vehicle.
21. The opposite party submitted that the complaint mentioned during the visit on 13/11/2021 and on 23/12/2021 are not at all identical and both are different. On 13/11/2021 the complaint mentioned by customer was engine RPM high and that was not reproduced or observed during the inspection. On 23/12/2021 the complaint reported was excess white smoke from exhaust, abnormal noise from engine and engine vibration. There was no recurring failure as alleged in the complainant. The opposite party denied the allegation that failure on 23/12/2021 is deliberately caused due to the irresponsible, inadequate, improper repairs or misdiagnosis on 13/11/2021 by third opposite party. The opposite party submitted that the reason for failure either manufacturing defect or excess engine oil issue should have been properly detected and should have been properly reported and communicated to the complainant on 13/11/2021 itself is baseless since there was no failure detected on the said date.
22. The opposite party submitted the repair work carried out by the third opposite party is not under the purview of warranty. It is submitted the repairs carried out are not due to any manufacturing defect and so there is no merit in the contention that the repairs should have cum under the warranty. There was no failure on the part of third opposite party.
23. The opposite party submitted that the complainant informed the engine failure happened on 12/11/2021 due to programming error and not a manufacturing defect is not correct since no engine failure happened on the said date and no such communication was made by third opposite party to the complainant to the knowledge of the opposite party. The opposite party denied that they have reprogrammed the same. The reprogramming cannot rectified hardware or mechanical damages occurred during the failure on 12/11/2021 and the errors happened in the new program may be the reason for failure on 23/12/2021 etc. are denied by the opposite party. It is submitted there was no re programing or any mechanical damages occurred on 12/11/2021 as alleged and It is also denied the failure occurred on 12/11/2021. The allegation that errors happened in the new program may the reason for failure on 23/12/2021 is baseless, in correct and so denied. During inspection on 13/11/2021 the complaint mentioned by the customer was not observed on the vehicle. Scanned ECU for any abnormalities, done the data flashing of ECU as normal routine process. It is specifically submitted the failure happened on 23/12/2021 was only due to the excess quantity of engine oil and this happened after 40 days from last visit and running 2000 kilometres . The incident alleged is on 13/11/2021 and the failure reported on 23/12/2021 does not have any co relation and both are purely 2 independent incident.
24. The opposite party denied the submission of the complainant that much mental agony caused to the complainant on account of denial of warranty by the opposite parties and collection of repairing charging during warranty period. The warranty claim as declined as the failure is not due to any manufacturing defect. There was no reason for any mental agony and there was no deficiency in service or unfair trade practice alleged. The complainant is not entitled to get Rs.2, 00,000/-as claim since no cost for any mental agony as alleged.
25. The opposite party submitted the details of warranty policy with respect to the vehicle. The terms and conditions of warranty and warranty coverage is specifically mentioned in the owner’s manual. Hence it is submitted the complainant is not entitled for any relief as claimed in the complaint.
26. The Second and third opposite party jointly filed version contenting that the complaint is maintainable under law and is liable to be dismissed with compensatory cost. The opposite parties 2 and 3 submitted that they are the authorized dealer in sales of the vehicles manufactured by the first opposite party and also running the services of vehicles manufactured by the first opposite party. It is submitted the purchase and registration of the vehicle from the opposite parties are to be proved with valid evidence. The opposite parties denied the contention of the complainant that the vehicle purchased believing the words and promises given by the sales personals belonging to the second party and the second opposite party promised prompt after sale service to the car and also promised three years warranty without mileage restriction and the credibility of Mahindra and Mahindra was the main cause for purchasing the car etc. The opposite party submitted the claim of the complainant regarding the service availed for the vehicle to be established through clear evidences by the complainant.
27. The opposite parties denied the averment that on 12/11/2021 the vehicle had an engine RPM of 5,000/- without applying accelerator and the complainant could not switch off the engine by normal means and whitish smoke came from exhaust and temperature raised to very high. It is submitted that the complainant contacted the service personal and they took the vehicle to the service centre at Kottakkal on 12/11/2021 and on 13/11/2021 after conducting thorough examination informed the complainant that the defects was due to some error occurred in the programming coding of engine and which was set right and vehicle was returned after many hours testing with utmost satisfaction of complainant.
28. The opposite parties denied the allegation that on 23/12/2021 the same complaint repeated with more severity , expected a chance of explosion are incorrect and false. The complainant contacted the third opposite party and forwarded a video of smoke and at once the opposite party to not to use the vehicle since the expert found hectic chance of imminent danger, if the vehicle is driven because of smoke was almost like that of burning of oil highly in excess along with other symptoms. The opposite parties admitted the vehicle was in the service centre at Kottakkal on 24/12/2021 with crane service arranged by the opposite party on 24/12/2021. While the excess smoke was checked it was found that exorbitant engine oil is in sump and that caused such a defect and this was purely caused from the instances of the complainant. It is submitted if such an exorbitant is used is consumed due to extreme pressure due to excess oil which would make massacre for the vehicle and it would highly risk to event a drive such a vehicle for more than 50 kms. The opposite party submitted that the complaint on earlier occasion was of different one and if such excess oil was poured the vehicle ought not to have driven for one day not those 40 days admittedly run. Hence the opposite parties denied the allegation of the complainant that the oil was poured by the opposite party was incorrect and misconceive.
29. The opposite party submitted that it was not due to any manufacturing defect or that of a running repair the same is not covered under any warranty and such physical damages and repairs to be met by complainant / customer. It is submitted that work estimate along with an email stating that the complainant is not eligible for warranty was duly and legally informed. If the said was an illegal and malafide, the complainant could have directly approached this commission to get an interim order. The opposite party submitted that they had issued email communication to the complainant since the complainant was taking an abandoning strategy to make it in balance and white. The basis of the opposite parties were true and correct and therefore asked to pay a sum of Rs. 1,67,609/- as service quotation for rectifying the defect of the car which was the legal consequences to irresponsible work of complainant or his men.
30. The opposite parties submitted that if there was such oil in the sump during periodical maintenance the vehicle wont ply for 50 kms and therefore it is the complainant or any one used the vehicle might have poured such oil without the knowledge of its consequences. The opposite parties submitted that perhaps certain petrol pumps offered free oil while pouring the fuel and which might have done while the complainant or his men believing that the excess oil in sump can be beneficial one.
31. The opposite party submitted that as per the averment in the complaint itself the vehicle was taken to third opposite party on 23/08/2021 at 23246 kilometres second time the vehicle was taken on 08/10/2021 at about 27763 kilometre and the third time on 12/11/2022 at about 27883. The third service within oil change was done on 28/06/2021 at 20228 kilometres and therefore no oil change was needed or done except at 30,000 kilometres. Black / blue smoke appears while the (oil note the fuel” burn during the use of vehicle if excess oil is consumed during the usage of vehicle these excess oil will be burned and during such time which will enter in to other areas which would struck the operation and may lead to catastrophic disaster. All these can be occurred within 10 to 30 kms and if the same run more than i.e. only because of grace of god. However such vehicle at no chance run for 40 to 50 kms and before that the vehicle could succumbed therefore the vehicle won’t ply from 28/06/2021 to 24/12/2021.
32. The opposite parties submitted that the work was done only after the concurrence of the complainant and is evident also that charges paid as per the invoice. The opposite parties denied that the defects are due to the manufacturing of the car and the complainant is not eligible to get it rectified without cost under warranty. The act of opposite parties in denying the warranty and charging service cost for rectifying the defects are legal and binding and not at all an unfair trade practice or deficiency in service under any settled law.
33. The opposite party submitted that the warranty is available but not on the mistake of the complainant or their man. If the vehicle met in an accident the damages if any are not covered under warranty but are indemnified under insurance. Pouring of excess oil contributed the damage to the vehicle and is not covered under insurance or under warranty. The opposite parties cannot care to provide benefits under warranty which does not exist and complainant is not eligible to get any amount for rectifying the defects. The opposite party submitted that complainant is not eligible to get back any amount paid since the same is liable to be paid. The act of denial of warranty is legal and upon basis. The opposite parties denied the claim that complainant caused mental agony or incidental inconveniences. The complainant is liable to pay the amount payable and the opposite parties not done any deficiency of service or any unfair trade practice. It is the duty of the complainant to pay the cost of repairs and if there was any challenge which could have been proved through the Commission.
34. The opposite parties submitted that the failure of the vehicle on 12/11/2021 and it 23/12/2021 are not identical in nature and the second incident was very much severe and life threatening one is only due to over pouring of oil in the reservoir. The opposite parties submitted that there was no recurrence of failure on 23/12/2021 and is not definitely caused due to the irresponsible, inadequate, improper repairs or mis diagnosis on 13/11/2021 by third opposite party but is only because of the complainant and his men. The reason for failure of the vehicle whether manufacturing defect or excess engine oil issue should have been properly detected and should have been properly reported and communicated to the complainant on 13/11/2021 itself is incorrect and false. The opposite parties submitted that the defect of the vehicle was not due to failure on the part of third opposite party but the failure on the part of complainant. The repair work carried out by the third opposite party like engine repair, replacement of turbo charges, BS 6 exhaust system and replacement of so many major parts of engine are major repair work and will not come under vehicle warranty and is expensive.
35. The opposite party submitted that on 13/11/2021 they told to the complainant that the engine failure happened on 12/11/2021 was as result of programming error (coding error) and which was re programed the same and the vehicle was perfectly right. The errors happened in the new program may be reason for failure on 23/12/2021 is in correct and false. The denial of warranty by the opposite parties is legal and such cannot pause any mental agony to the complainant. The collection of repairing charges during the warranty period is not a deficiency in service, if that be not covered under warranty and nothing would amounts to unfair trade practice on the part of opposite parties. The complainant is not entitled to get amount paid from the opposite parties.
36. The opposite parties submitted that there is no deficiency of service or unfair trade practice from their side. It is submitted they were true and correct and also issued email communication and if that was incorrect, the complainant could have been taken all or any legal steps. Hence the complainant is not eligible for any relief and the complaint is liable to be dismissed with cost to the opposite parties.
37. The complainant and opposite parties filed affidavit and documents. The documents of the complainant marked as Ext. A1 to A18 and MO1. The documents of the opposite party marked as Ext. B1 to B7. The complainant was examined as PW1. Ext. A1 is copy of vehicle purchase bill dated 01/06/2020. Ext.A2 is copy of certificate of registration in respect of vehicle No.KL 55 AC 4500, date of registration 14/07/2020. Ext. A3 is copy of relevant pages of warranty certificate (7) pages). Ext.A4 is free service coupon with service history. Ext.A5 is copy of vehicle condition report form / job record dated 12/11/2021 4 pages. Ext.A6 is copy repair order copy dated 24/12/2021. Ext.A7 is copy of work estimate / service quotation dated 04/01/2022. Ext.A8 is copy of request for work approval dated 15/01/2022. Ext.A9 is copy of reply to request for work approval Ext.A10 is copy of request for additional work estimate 2 pages. Ext.A11 copy of final bills dated 16/03/2022 3 pages. Ext.A12 is copy of payment receipt details 4 pages. Ext.A13 is copy of manual repair order copy dated 24/12/2021. Ext.A14 is photographs 5 in numbers relating to first engine failure dated 12/11/2021. Ext.A15 is photographs 6 in numbers relating to second engine failure 23/12/2021. Ext. A16 is photo revealing engine warning lamp signal dated 19/10/2022|20/10/2022 including repair order copy, repair order bill and details. Ext.A17 photo revealing engine warning lamp signal dated 26/06/2023 along with repair order copy, repair order bill and details. Ext. A18 photo revealing engine warning lamp signal dated 13/11/2023|14/11/2023 along with manual repair order from, repair order copy, repair order free invoice. Pen drive marked as MO1. Ext. B1 series service history of the vehicle with 18 visits 12 pages. Ext. B2 is copy of service complaint report dated 13/11/2021 2 pages. Ext.B3 is copy of technical assistance request T-KLY 446570 4 pages. Ext. B4 is copy of tax invoice RBC 221000859 dated 28/06/2021. Ext. B5 is copy of satisfaction note dated 16/03/2022. Ext. B6 is copy of vehicle repair order customer copy slip replace letter dated 16/03/2022. Ext. B7 is copy of invoice for Rs.1, 67,087 dated 16/03/2022 5 pages. The expert Mr Pramod Shankar MVI, RTO office enforcement, Malappuram examined as PW1.
38. Heard complainant and opposite parties perused affidavit and documents. The complainant filed notes of arguments. The following points arise for consideration:-
- Whether the vehicle has got manufacturing defect?
- Whether the complainant is entitled for warranty benefit?
- Relief and cost?
39. Point No.1 &2
The complainant purchased brand new Mahindra XUV vehicle on 07/07/2020 by paying a sum of Rs. 15, 57,859/-. He submitted that he was impressed by the warranty of 3 years which is evident from Ext.A1. The warranty is for three years without mileage restriction. Moreover he had purchased shield warranty for 4th and 5th years by making payment of additional amount. He submitted that he was highly concerned to get trouble free enhanced protection from opposite party for using the vehicle for a long time. He availed regular service for the vehicle.
40. While so on 12/11/2021 when he was travelling in the car from Kottakkal to Calicut on the way at Chelari, the engine RPM reached 5000 without pressing accelerator and the complainant could not switch of the vehicle engine by normal means. Moreover white smoke came from exhaust and temperature raised very high. Then informing the third opposite party the vehicle was taken to the service station at Kotttakal with the assistance of Mahindra road side assistance recovery van. The diagnosis by the third opposite party was programing error and that stands repaired by them and then delivered the vehicle to the complainant. Subsequently after 40 days on 23/12/2021 while the complainant was traveling in the car from Kottakal to Calicut when he reached at Pookkiparamba the same complaint happened on 12/11/2021 was repeated with more severity. Then again contacted third opposite party and the vehicle was taken to the service station on 24/12/2021. Then complainant was given a manual repair order but after examining the vehicle the third opposite party could not find cause of engine failure. But after elapse of one week the service manager contacted the complainant on 31/12/2021 and told the complainant that the defects occurred to the car was due to excess engine oil by 2 litters in the oil reservoir. Later on 10/01/2022 a work estimate was given by the opposite party to the complainant stating that complainant is not entitled for warranty and he was asked to pay 1, 67,609/- rupees as service charge and the complainant challenged the demand of the opposite party. The complainant produced Ext. A1 to A18 and MO1 to substantiate his case.
41. The opposite parties filed version with similar contention but the first opposite party submitted that there is no privity of contract between complainant and the first opposite party and the opposite parties 2 and 3 are not the agents of the first opposite party and they are only dealer of the first opposite party. The relation between first opposite party and the other opposite parties are on principal to principal basis as per the dealership agreement.
42. The opposite parties admitted that the vehicle brought to the service centre by the complainant on 13/11/2021 and thereafter on 24/12/2021. The first time the service centre informed the defects detected are due to some error occurred in the programming / coding of engine and they rectified the same. The second time on detailed inspection by service centre it was found the engine oil quantity is higher than the specified capacity and drained nearly 8 litters of oil were the engine oil capacity is only 6 L . The excess oil in the engine had damaged the engine by causing the bend on the connecting rods of second and third piston. The technician also noted the presence of oil on second and third piston top surface.
43. The opposite parties contended the excess 2 L engine oil found on the engine was not due to any manufacturing defect and is due to some external factors only. According to opposite party the failure reason is not due to manufacturing defect and so the warranty was not applicable. Hence the dealer demanded complainant to carry out the repairs under paid basis. The opposite party stated that the last oil change was done on 28/06/2021 at 20228 kms and vehicle had run more than 9,000 kilometres till the engine failure. Hence it was submitted if there was any excess engine oil at the time of periodical service on 28/06/2021 at 20228 KMS the vehicle could not run till 23/12/2021 covering up to 29804 kilometres.
44. The complainant submitted that while he was travelling on 12/11/2021 the engine RPM reached 5000 without pressing accelerator and subsequently on 23/12/2021 the same complaint repeated on 23/12/2021 with more severity. Immediately the vehicle was taken to the service centre they could not find cause for the complaint but after one week the third opposite party informed the complainant the defect caused to the car was due to excess engine oil by two litters in the oil reservoir. The complainant submitted that the reason for the delay in informing is highly suspicious but intended to suppress material facts. Subsequent to that the opposite party prepared an estimate for the repair as Rs. 1, 67,609/-. The opposite party insisted for the payment of repair cost stating the defect is not a manufacturing defect and so warranty is not applicable. The prayer of the complainant is that the defect is covered under warranty and so the repair cost is liable to paid by the opposite parties 2 and 3. The contention of the complainant is that the opposite parties 2 and 3 could not find out defect to the vehicle at the first instance itself and so the same defect repeated after 40 days from the repair work done before the opposite parties. It is also a fact without pouring additional oil there is no chance for excess oil content of 2 litters. There is no incident of adding oil from the side of complainant. On the other hand the vehicle was undergone repair before the opposite parties two and three. That to 40 days of the later incident of complaint to the vehicle. It is a fact that oil changing to a vehicle like involved in this complaint is not need recurrently. But it is being done almost during the service period. There is no history of repair work brought before this Commission except the service as per the service history produced by the parties. So if at all excess oil is found in the vehicle then it is to be from the service centre alone.
45. The complainant herein cited one witness who is a motor vehicle inspector namely promod Shankar MVI, Malappuram. He deposed before this Commission ‘വാഹനത്തിന്റെ engine ന് കേടുപാടു പറ്റിയതായാണ് മനസിലാകുന്നത് . Fuel injector രണ്ടെണ്ണം മാറ്റിയിട്ടുണ്ട് . Engine ഉം മറ്റുള്ള ഭാഗത്തും ഉള്പ്പെടെ 50% ത്തോളം rebuild ചെയ്തു എന്നു മനസിലാകും. മാറ്റിയത് moving parts ആണ് . ഇത്തരം വാഹങ്ങളുടെ engine പ്രവര്ത്തിക്കുമ്പോള് engine ലേക്കുള്ള Diesel supply ഏതു സംവിധാനം വഴിയാണ് ? (A) Computer controlled fuel injection . ഇത്തരം വാഹനങ്ങള്ക്ക് coding error programming error സംഭവിച്ചാല് fuel injector – ല് കൂടിയുള്ള diesel supply ന് എന്തു സംഭവിക്കും? (A) Diesel meter ല് ബാധിക്കുന്ന തകരാറാണെങ്കില് Diesel Supply യെ ബാധിക്കുന്നതാണ് . ഒന്നുകില് കൂടും അല്ലെങ്കില് കുറയും Diesel supply കുറഞ്ഞാല് power sluggish ആകും . RPM കുറയും ഏന് പറഞ്ഞാല് ശരിയാണ്. Diesel supply കൂടിയാല് excess smoke ലേക്കും Engine power നേയും ബാധിക്കും . Smoke കൂടും . Excess smoke coiler turn burn ആണെകില് black pure burning അല്ലെങ്കില് greish colour ലേക്ക് പോകും Engine ചൂടാവാനും ഒരു കാരണമാണ. വാഹനം coding error സംഭവിച്ചിട്ട് ഫലപ്രദമായി correct ചെയ്തില്ലെങ്കില് ആവര്ത്തിക്കാന് സാധ്യതയുണ്ട്. So it is the version that the engine of the vehicle has been damaged and altogether 50% of the vehicle parts stands re build. It is further reveals that diesel supply system working under computer controlled fuel injector method. If there is coding error or programming error it will affect diesel supply. Ext.A3 documents reveal that the vehicle engine reached 5000 without pressing accelerator. The expert also deposed that “the defect reported on 23/12/2021 may be the repetition of the defect reported on 12/11/2021. He stated that turbo change diesel engine may be a result of due to electronic or performance complaints. The electronic complaints can be a manufacturing defect also. The expert further submitted that oil level in a vehicle cannot be suo moto increased. But it is to be only after externally adding. Hence the deposition of the expert will reveal that the defect caused on 23/12/2021 is the continuation of the defect reported on 12/11/2021. It is also relevant that there is no other service history to hold that there was adding engine oil in the vehicle from the side of complainant. It is also relevant the delay in finding excess oil as the cause of the defect was days of entrusting the vehicle to the opposite parties.
46. It can be seen that the complainant purchased the vehicle from the opposite parties 2 and 3 impressed by the warranty offer of 3 years and in addition to that he availed extended warranty for further 2 years. So the complainant was so cautious about the safety of the vehicle. It is also relevant that there is no any other contribution from the side of complainant to cause defect to the vehicle. The opposite parties also did not raise any allegation that the complainant did not avail proper or regular to the vehicle or the complainant used the vehicle for any other purposes which is not allowed legally. That be so the complainant is entitled for the warranty coverage for the repairs of the vehicle from the side of second and third opposite parties as stated by the complainant. It can be seen that the complainant availed the disputed service from the opposite party just after 40 days of the prior service. There is no reason to add additional oil in the vehicle within 40 days of running of vehicle since the complainant submitted the warranty offer is for 3 years without any mileage restriction. The complainant established that he purchased the vehicle and he availed regular service to the vehicle. The vehicle has got warranty at the time of engine damage. There was no any sort of contribution from the side complainant for causing engine damage. Hence the commission finds that there was inherent defect to the vehicle but the second and third opposite parties could not find the same at the time of service on 12/11/21. Hence there is deficiency in service from the side of opposite parties and for that the complainant is entitled for the refund of repair cost along with compensation.
47. Point No.3
The complainant prayed cost of repairing charges Rs. 1, 97,915/- along with interest at the rate of 12% per annum. The complainant prayed further amount of Rs.2,00,000/- towards the mental agony and inconveniences caused to the complainant and cost of Rs.20,000/-. The complainant produced Ext.A7 the service quotation for Rs.1, 67,609/-. The complainant produced Ext A11 voucher for payment of bill which includes bill amount of Rs. 1, 67,087/- and Rs. 36,629/-. Ext.A12 also is receipt for the payment of repair cost to the opposite parties 2 and 3. Hence there is reason to allow the prayer of complainant to refund the repair cost of Rs. 1, 97,916/-. The complainant prayed compensation of Rs. 2,00,000/- towards the mental agony suffered by the complainant on account of the defective service and unfair trade practice from the side of opposite parties. The Commission finds Rs. 1,00,000/- will be reasonable amount towards compensation. The complainant also entitled cost of Rs. 10,000/- from the opposite parties. It appears the first opposite party is being the manufacturer of the defective vehicle and the opposite parties two and three being deficient service providers are liable jointly and severally to compensate the complainant. Hence the complainant stands allowed as follows:-
- The opposite parties are directed to pay Rs. 1, 97,916/- (Rupees one lakh ninety seven thousand nine hundred and sixteen rupees only) to the complainant towards the cost of repairing charges of the vehicle.
- The opposite parties are directed to pay Rs. 1, 00,000/- (Rupees one lakh only) towards the mental agony suffered by the complainant on account of deficiency in service and thereby caused inconvenience and hardship to the complainant.
- The opposite parties are directed to pay Rs 10,000/- (Rupees ten thousand only) the complainant as cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order, failing which the complainant is entitled interest for the above said entire amount at the rate of 9% per annum from the date of order to till date of payment.
Dated this 25th day of October, 2024.
Mohandasan. K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Member
APPENDIX
Witness examined on the side of the complainant: PW1
PW1: Mr. Pramod Shankar MVI, RTO office enforcement Malappuram
Documents marked on the side of the complainant: Ext.A1 to A18
Ext.A1: Copy of vehicle purchase bill dated 01/06/2020.
Ext.A2: Copy of certificate of registration in respect of vehicle No.KL 55 AC 4500 date of
registration 14/07/2020.
Ext A3: Copy of relevant pages of warranty certificate (7) pages).
Ext A4: Free service coupon with service history.
Ext A5: Copy of vehicle condition report form / job record dated 12/11/2021 4 pages
Ext.A7: Copy repair order copy dated 24/12/2021.
Ext.A8: Copy of work estimate / service quotation dated 04/01/2022.
Ext A9: Copy of reply to request for work approval
Ext A10: Copy of request for additional work estimate 2 pages.
Ext A11: Copy of final bills dated 16/03/2022 3 pages.
Ext.A12: Copy of payment receipt details 4 pages.
Ext.A13: Copy of manual repair order copy dated 24/12/2021.
Ext A14: Photographs 5 in numbers relating to first engine failure dated 12/11/2021.
Ext A15: Photographs 6 in numbers relating to second engine failure 23/12/2021
Ext A16: Photo revealing engine warning lamp signal dated 19/10/2022|20/10/2022
including repair order copy, repair order bill and details.
Ext.A17: Photo revealing engine warning lamp signal dated 26/06/2023 along with
repair order copy, repair order bill and details.
Ext.A18: Photo revealing engine warning lamp signal dated 13/11/2023|14/11/2023
along with manual repair order from, repair order copy, repair order free invoice.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Ext. B1 to B7
Ext.B1: Series service history of the vehicle with 18 visits 12 pages.
Ext.B2: Copy of service complaint report dated 13/11/2021 2 pages.
Ext.B3: Copy of technical assistance request T-KLY 446570 4 pages.
Ext.B4: Copy of tax invoice RBC 221000859 dated 28/06/2021.
Ext.B5: Copy of satisfaction note dated 16/03/2022.
Ext.B6: Copy of vehicle repair order customer copy slip replace letter dated 16/03/2022.
Ext.B7: Copy of invoice for Rs.1,67,087 dated 16/03/2022 5 pages.
MO1: Pen drive.
Mohandasan . K, President
Preethi Sivaraman.C, Member
Mohamed Ismayil.C.V, Mem
