SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint U/s 12 of Consumer Protection Act 1986, seeking to get an order, directing opposite parties to pay Rs.2,00,000/- towards damages to the complainant, to replace the defective vehicle with a new one or return the value of the vehicle Rs.9,82,666/- together with cost of the proceedings of this case.
Facts in brief of the complaint are that the complainant is the owner of car bearing No. KL/58/R-3163 TUV 300 T 8 Red colour. The said car was purchased by complainant
from 2nd OP who are authorized dealer of Mahindra & Mahindra Ltd. Mumbai and delivered on 06/11/2015. The total cost of the vehicle comes Rs.9,82,666/-. The complainant submits that while the complainant was travelling from Thalassery to Mangalore with his relatives on 30/09/2016 experienced some mechanical problems in the vehicle. When the vehicle reached in Kundhapura Higway near Mangalore the vehicle broke down. The complainant called the assistance from the 3rd OP who is service centre of 1st OP, and they took vehicle in Crain to their service centre at Jeepu, Mangalore on 01/10/2016 at 7 AM. The complainant submits that it is the 3rd time where vehicle broke down on road while travelling. The 3rd OP thereafter informed the complainant that the reason for breakdown of the vehicle was due to the engine problems and stated that they will solve the engine problems within one week. Since the complainant is a businessman by profession he opined that the needs the vehicle emergently. After one week he again contacted the 3rd OP, they further stated that battery and clutch plate are also malfunctioning. The said aspect was informed to the 2nd OP on 07/10/2016. But the 2nd OP is shrugging off their liability to the complainant stating that being the manufacturer of the vehicle 1st OP is liable to settle the issue. The defects caused to the vehicle within 10 months after its purchase are serious defects which are inherent in nature cannot be rectified by repairing the vehicles. Further, the vehicle delivered to the complainant is poor in quality.
After receiving notices OPs 1 to 3 filed separate written version stating their contentions. OP1 contended that the transactions between Mahindra & Mahindra Ltd. and its dealers are on principal to principal basis. The dealer’s places bulk orders for vehicles and Mahindra & Mahindra Ltd. supplies vehicles in large numbers. OP1 never had any transactions with the complainant and therefore there is no privity of contract between the complainant and 1st OP. OP1 is not vicariously or otherwise liable for acts of commission and omission if any on the part of the OP No.2 ad 3. The OP2 and 3 are only the dealers of this answering OP and not agents. Further, submitted that it is learnt from the 3rd OP that they have attended the subject vehicle on 03/10/2016 for starting complaint at 19483 Kms. This OP was not informed about the incidents mentioned in the complaint. It was learnt from the OP No.3 that, on detailed inspection of the vehicle they found that the engine got seized. It is learnt that the engine complaint developed due to abuse of the vehicle.
Even thought the engine is repairable, considering the fact that the vehicle is a relatively new vehicle, this OP decide to replace the engine under warranty basis considering the recommendation of the 3rd OP at the request of the complainant. It is submitted that the 3rd OP at the request of the complainant. It is submitted that the 3rd OP placed an order for short engine assembly on 06/10/2016 and was delivered on 14/10/2016. It is submitted that during the repair process the 3rd OP placed order of Turo charged on 05/10/2016 and was delivered on 13/10/2016. The injector assembly and started assembly was also arranged on 18/10/2016 and 28/10/2016 from nearby dealers and the vehicle was made ready. It is submitted that there is no delay in supplying engine or parts from the side of OP. It is submitted that after the engine replacement, while taking the test drive, the 3rd OP noticed that there is vibration from the clutch side and dealer had informed the same to the complainant. It is submitted that clutch disc is a consumable time and its wear and tear depends on the usage and is not covered under warranty. Inspite of the fact that there is no warranty coverage, sine the vehicle was under repairs, the 3rd OP replaced the clutch disc and cover assembly under goodwill. It is submitted that the vehicle was fully made ready on 04/11/2016 after final checks and trials and the same was communicated to the complainant. IT is submitted that the engine and other parts were replaced under warranty even though the defect was not cause due to any manufacturing defect. It is pertinent to note that the only obligation of this answering OP is not repair or replace the part in complaint of the terms of warranty and there is no deficiency in service on the part of this answering OP. It is submitted that the vehicle was delivered to the complainant on 05/11/206 after ensuring that there is no defect in the vehicle. It is submitted that there were no issues related to the quality of the vehicle or repair of the vehicle at the time of delivery or thereafter. It is submitted that there are no defects in the vehicle and the allegation that the defects of the vehicle is not solved so far is incorrect and hence denied. The complainant is not entitled to claim compensation as claimed. There is no deficiency in service on the par to this answering OP at any point of time and hence prayed for the dismissal of the complaint.
OP2 stated that it is admitted that the complainant had purchased a Mahindra TUV300 T8 vehicle, manufactured by OP1 from this OP. It is submitted that the averment of complainant defects caused to the vehicle within 10 months after its purchase are serious defects which was inherent in nature that cannot be rectified by repairing the vehicle, further the vehicle delivered to the complainant is poor in quality etc. are not correct and hence denied by this OP. OP2 submits that, they are the dealers of OP1, who is the reputed motor vehicle manufacturers. The TUV 300 T8 is one of the pride models of OP No.1. Many persons are using that model without any problem. At the time of delivery, that there were no defects to the complaint’s vehicle. After the delivery, complainant brought the vehicle for free services and with minor and regular wear and tear complaints, occurred due to rough usage of the vehicle, there was no manufacturing or other serious defect to the complainant’s vehicle. All the free service and other services were provided to the complainant with most care and caution by this OP and complainant took the vehicle, after the services, from this OP with full satisfaction. If there were any defects after the delivery, it might be due to rough and improper usage of the complainant. So there is no deficiency in service from the side of this OP. Hence, prayed for the dismissal of the complaint.
OP3 submitted that this was the 1st instance the said vehicle was bought to this OP. The prima Facie investigations revealed that the engine was not responding and hence detailed investigations were required. Tentatively this OP had given a date of probable completion of repair as 08/10/2016. During the investigation this OP had been regularly updating the complainant regarding he progress details of the investigations and the solutions suggested by the Technical team of M/S. Mahindra& Mahindra Ltd. and its implementation status. The vehicle had a manufacturer’s standard warranty of three years and 1,00,000 Kilometers whichever is earlier and the vehicle is also covered under Road side assistance scheme for the 1st year of the sale. As per the said policy, the vehicle was brought to the workshop of this OP by the road side assistance team on free cost and this OP had carried out all the required repairs and replacements free of cost (barring the consumables) to make the vehicle road worthy. It was also clarified to the complainant during the delivery of the vehicle and during the joint trial/test drive by this OP that the vehicle does not have any inherent defect nor is the same of poor quality, so as to avoid ay misconception. It is denied that there are inherent defects in the vehicle which cannot be rectified by repairing the vehicle it is further denied that the vehicle delivered to the complainant is poor in quality. The subject vehicle has been repaired and delivered to the complainant in road worthy condition on 05/11/2016 and the complainant has taken delivery of the vehicle already. There is no deficiency of service on the part of the OP No.3 and prayed for the dismissal of complaint.
After that, complainant filed amendment petition and impleading petitions on 06/06/2017 stating some more additional facts to be included in the complaint. The said petition was allowed by the commission and impleaded additional OP 4 also. After receiving notice additional OP4 filed separate version stating their contention. This OP submitted that the allegation in the complainant on 29/03/2017, the complainant went to Kottayam for a pilgrimage along with friends in vehicle No. KL/58/R-3163, in the mean while the vehicle again break down and there after the complainant entrusted the same with KTC Automotive company Kalamssery, they also made huge delay of 19 days in redelivering the vehicle after repair, due to this incident, the complaint had to cancel the trip which caused mental agony, as the complainant could not use it for these days, complainant had to spent money for taxi and complainant seeks further compensation of Rs.50,000/- which the OPs are liable to compensate , etc. are cooked up stories and denied by this OP. According to this OP, no service deficiency was made from the OP to compensate the complainant. This OP is not in existence as well as unnecessarily arrayed as party to the proceedings, entitled to get compensatory cost from the complainant.
During the pendency of this complaint, complainant has taken steps to appoint an expert on 22/02/2021 and as such MVI, Mr. Perm is appointed as expert. The expert, after giving due notice to the parties, inspected the vehicle on 07/09/2021 and filed detailed report.
In the report it is stated that the last recorded odometer reading on the meter console is found as 76616 Km. Engine sound is found normal in idling and in normal running conditions and no abnormalities in the performance of the vehicle is noticed during inspection and test drive. Further reported that break down repair order dated 03/10/2016 was seen generated on 19483 Km and Engine repair works with short engine replacement seen carried out. At 34345 Km on 30/09/2017 a complaint regarding poor engine performance was seen reported by the registered owner. At 34345Km on 30/09/2017 a complaint regarding poor engine performance was seen reported by the registered owner. The registered owner carried out the regular services of the vehicle properly. Presently the engine performance and over all vehicle performance is found normal and satisfactory.
On analyzing Ext.C1 report, the expert has reported that presently the engine performance and overall vehicle performance is found normal and satisfactory.
At the argument time the learned counsel of OP No.1, Mahindra and Mahindra, the manufacturer argued that there was no evidence of any manufacturing defect in the said vehicle and hence, in the absence of a manufacturing defect, OP 1 was not liable to pay any compensation to the complainant. It is submitted that 3rd OP attended the vehicle on 03/10/2016 for starting complaint at 19483 Kms. The 3rd OP informed the 1st OP that there is engine complaint and the same developed due to the abuse of the vehicle. Considering the recommendation of the 3rd OP, the 1st OP decided to provide short engine assembly on goodwill basis. The short engine assembly and parts were supplied without delay and the vehicle was made ready on 04/11/2016 after final checkups and trials and delivered on 05/11/2016 to the complainant after ensuring that there is no complaint in the vehicle.
During cross - examination of Pw1 by OP1. Pw1 deposed that in page 2 last portion. 03/10/2016 നാണ് നിങ്ങൾ വാഹനം Repairing ന് കൊടുത്തത്? അതെ.04/11/2016 ന് Repair ചെയ്ത വണ്ടിപൂർണ്ണ തൃപ്തിയോടെ ഏറ്റുവാങ്ങി? ശരിയാണ്. Repairing work തുടങ്ങുന്ന വാഹനത്തിന് ഏതെങ്കിലും തരത്തിലുള്ള നിർമ്മാണത്തകരാറുള്ളതായി പറഞ്ഞിട്ടില്ല. 4 തവണ breakdown ആയിട്ടുണ്ട്. ആയത് പരാതിയിലും affidavit ലും പറഞ്ഞട്ടില്ല. The leaned counsel pointed out that the complainant had not given any specific dates except 03/10/2016, when the vehicle was taken to workshop for repairs. From the available documents before us, there is no evidence that the vehicle has repeated defects and approached the service centre of OP1 for repair work. According to the OP No.1, they learned from the 3rd OP, the authorized service centre of OP No.3, that they have attended the subject vehicle on 03/10/2016 for starting complaint at 19483 Kms. According to OPs it could not be stated to be due to any manufacturing defect. According to OPs it was learned from OP No.3 that, on detailed inspection of the vehicle they found that the engine got seized. It is learned that the engine complaint developed due to abuse of the vehicle. Further, submitted that even though the engine is repairable, considering the fact that the vehicle is a relatively new vehicle, OP1 decided to replace the engine under warranty basis considering the recommendation of the 3rd OP at the request of the complainant. Further 3rd OP placed an order for short engine assembly on 06/10/2016 and was delivered on 14/10/2016. It is submitted that during the repair process the 3rd OP placed order of Turo charged on 05/10/2016 and was delivered on 13/10/2016. The injector assembly and started assembly was also arranged on 18/10/2016 and 28/10/2016 from nearby dealers and the vehicle was made ready.
OP1 submitted that if the vehicle suffers from manufacturing defect or inherent defect, it is not possible to rectify the said defect and the vehicle could not work. Ext.C1 shows that the odometer reading on his inspection date found as 76616 Km.
Here the onus of proving that the manufacturing defect was there lies on the complainant. Though the expert inspected the vehicle and filed report, he has not stated that the subject vehicle having manufacturing defect. It is a settled position that the complainant has to prove by cogent, credible and adequate evidence, supported by the opinion of the expert that the vehicle suffered from inherent manufacturing defect. The learned counsel of OP1 submitted that in this case, no compensation was required to be paid to the complainant as there had been no negligence by the OPs.
OP No.2 is the authorized dealer of the OP No.1 Company. Complainant’s allegation against OP2 that OP2 colluded with OP1 and refused to replace the defective vehicle. It is also alleged that the complainant has contacted many times to OP2 above each break down of the vehicle, but OPs1 and 2 neglected to solve the defect permanently. It is alleged that OP2 had stated that they are not in a position to replace the vehicle stating that once the vehicle is sold out it will not be replaced even if there is manufacturing defect.
OP No.2 also denied the averment of complainant about inherent manufacturing defect in the subject vehicle and of poor quality. Further submits that they are dealers of OP No.1 and at the time of delivery, there were no defects to the complainant’s vehicle. Further after the delivery, complainant brought the vehicle for free services and with minor and regular wear and tear complaints, occurred due to rough usage of the vehicle. It is submitted that all the free services and other services were provided to the complainant with most care and caution and the complainant took the vehicle, after the services, with full satisfaction.
During cross examination of Pw1 by OP No.2, Pw1 deposed that “catch disc-െൻറ തേയ്മാനവും ഈടും അത് ഉപയോഗിക്കുന്നവരുടെ ശ്രദ്ധയിലാണ്. ആയത് warranty പരിധിയിൽ വരില്ല എന്നകാര്യം എനിക്കറിയാം. എങ്കിലും OPs, free of costൽ catch disc മാറ്റിത്തന്നിട്ടുണ്ട്. മുഴുവൻ തകരാറും free of cost ൽ warranty ൽ പ്പെടുത്തി ശരിയാക്കിത്തന്നിട്ടുണ്ട്? ശരിയാണ്. എനിക്ക് ധാരാളമായി ദൂരയാത്ര ചെയ്യാനുണ്ട്, ധാരാളം ടൂർ പോകാറുണ്ട് ആയതിനൊക്കെ പരാതിയിൽ പറഞ്ഞ വാഹനമാണ് ഉപയോഗിച്ചത്.” Further deposed that “OP2 വിെൻറ ഭാഗത്തുനിന്ന് സർവ്വീസിൽ വീഴ്ച വന്നിട്ടില്ല? ശരിയാണ്.
On the overall perusal of evidence, there is no evidence that the complainant had not approached to the workshop of OP No.2 repeatedly for repairing same defect happened to the vehicle. It is admitted by complainant himself during adducing evidence that OP2 had rendered all free services and other services, satisfactorily and there was no allegation against OP No.2 about their services given to him.
Hence we are of the opinion that there is no deficiency in service on the part of OP2.
With regard to OP No.3, though OP No.3 has not contested the case by adducing evidence, despite filed contentions in the version, OP 1 has stated that they supplied the repairing parts to OP3, as per OP3’s request, for replacing the short engine and other parts. The expert reported that short engine replacement have advantage over dismantling the engine and over handling vital parts. Here we can see that it is an admitted fact that the vehicle was entrusted to OP No.3 03/10/2016 and delivered after repair work on 04/11/2016, and the repaired vehicle was taken by complainant without any objection.
In Ext.C1 report, the expert reported after verifying the service history of the vehicle that break down repair order was seen generated dated 03/10/2016 on 19483Km. and in the opinion portion observed on 07/09/2021 that presently the engine performance and overall performance is found normal and satisfactory. It is an admitted fact that replacement of short engine assembly, turbo charger, injector assembly, charge assembly etc. is done at 19483 Km. as the engine failed to crank.
The expert observed that the vehicle covered around 57000KM after the major breakdown repair during October 2016. Vehicle covered around 46000Km after reporting the breakdown during March 2017. It is also reported that presently the engine performance and overall vehicle performance was found normal and satisfactory on 07/09/2021 his inspection date.
As far as OP4 is concerned the allegation of the complainant is that while pending of this case, on 29/03/2020, complainant went to Kottayam for a pilgrimage along with friends in vehicle No. KL/58/R-3163, in the mean while the vehicle again break down and there after the complainant entrusted the same with KTC Automotive company Kalamssery, service centre of Mahindra& Mahindra Ltd.(OP4). They also made huge delay of 19 days in redelivering the vehicle after repair. In this score also, complainant claimed further compensation from them.
OP4 denied the allegations of the complainant raised against them. According to OP4, complainant has to prove his allegations by producing document.
Ext.A7,A8 and Ext.A 10, complainant proved his averment that he had entrusted the vehicle to OP4 on 29/03/2017 due to complaint ‘not starting’ and on 08/04/2014 OP4 hand over the vehicle to OP No.2. From the above said documents we cannot arrive a conclusion that that there is deficiency in service on the part of OP No.4 in committing huge delay in re-delivering the vehicle after repair. It is to be noted that complainant has no allegation about repair work done by OP4. So OP4 is also exonerated from the liability.
The complainant’s another allegation is that the inherent defect of the vehicle could not be rectified by the OPs. According to complainant though short engine assembly turbo charger, injector assembly, charge assembly etc. were replaced by the OPs, the defect persists. He could not use the vehicle for long journey for fear that the vehicle will break down.
The only documentary evidence available before us is Ext.C1 report. Expert has specifically mentioned that the vehicle has covered a total distance of 76616Km until its odometer failed. The replacement of the parts as stated above were carried out by OPs at 19483 Km. The expert observed that the vehicle covered around 57000 Km. after the major breakdown repair during October 2016. Vehicle covered around 46000Km after reporting the breakdown during March 2017. Further, observed that presently the engine performance and overall performance is found normal and satisfactory. If this observation of the expert is not correct, complainant would have examined the expert ad rebutted the said observation.
Without adducing any such contradictory evidence, there is no reason t to disbelieve that finding of the Motor Vehicle Inspector in Ext.C1 report.
Based on the discussion above, we find that the OPs 1 to 4 jointly make effort to remove the defect in the vehicle and give a defect free vehicle without charging cost of the replacing parts as well as labour charge. Hence we are of the view that complainant failed to prove deficiency in service on the part of OPs.
In the result complaint fails and hence it is dismissed. No order as to cost.
Exts.
A1- Order taking form dated 10/10/2015
A2- Cash bill (subject proof)
A3- Copy of RC
A4- Vehicle condition report
A5- Manual repair order form
A6- Gmail
C1- Expert commission report
B1- Warranty card
Pw1-Complainant
Dw1-OP1
Dw2- Ramith Gangadharan –Witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
