Kanwaldeep Kaur, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (Now C.P. Act, 2019, here-in after referred to as 'Act') before this Forum (now Commission) against Mahindra & Mahindra Limited and others (here-in-after referred as opposite parties).
In brief, the case of the complainant is that complainant Gurkaran Singh Dhillon is special power of attorney of Kanwaldeep Kaur Complainant and is well conversant with the facts of present compalint.
It is alleged that complainant had purchased a white colour vehicle Mahindra Scorpio S-11 4x4 bearing engine No.WRJU910882, chasis No.72918896, model 2018 from opposite party No.2 i.e. AVC Motors Mansa Road, Bathinda who is dealer of opposite party No.1 i.e. manufacturer vide invoice dated 26-07-2018 bearing temporary registration No. PB/3/TMP/2018/612 against payment of Rs.15,25000/-.
It is alleged that complainant had booked a Black colour Scorpio but at the time of delivery opposite parties denied to deliver the colour of choice of complainant and delivered Pearl White Scorpio on 30.07.2018.
It is further alleged that the verhicle has been delivered to the complainant with manufacturing defect as there is flickering in speedometer on the vehicle which was reported to the opposite parties after few days by complainant. But despite repeated visits opposite party No.2 did not provide solution to the problem. Though opposite parties admitted that there is speedometer flickering as well as vehicle speed is not constant/stablen when put it in cruise control but opposite parties failed to remove the defect.
It is further alleged that complainant had also issued notice to the opposite parties thruogh his counsel but opposite parties did not listen to the complainant and opposite party No.1 replied the notice on wrong facts and totally decline the request of complainant.
On this backdrop of facts, alleging deficiency in service and unfair trade practice on the part of opposite parties, the complainant has prayed for direction to the opposite parties to refund the amount of Rs.17,00,000/- approximate price of car and compensation to the tune of Rs.2,00,000/- on account of mental tension, agony, botheration, harrasment suffered by complainant and further for direction to pay Rs.22,000/- as litigation expenses.
Upon notice, opposite parties put an appearance through their respective counsel and opposite parties No.1 &3 contested the complaint by filing joint written reply and opposite party No.2 contested the complaint by filing his separate reply.
The opposite party No.1 &3 in its written reply raised legal objections that relationship between answering opposite parties and opposite party No.2 is on principal to principal and not on principal to agent basis. That this forum has no pecuniary jurisdiction to try and entertain this complaint. That complainantis not consumer as per Consumer Protection Act, 1986 that no cause of action arose to complainant against opposite party No.1 &3 and that complaint is false, frivolous and vaxatious to the knowledge of complainant so the answering opposite parties are entitled to special costs from complainant under section-26 of the Consumer Protection Act, 1986.
On merits, the opposite party No.1 &3 after reiterating its version as pleaded in legal objections and detailed above, further pleaded that complainant had purchased a vehicle from opposite party No.2 and first time the defect was reported on 17.08.2018 and on inspection it was found that there was no defect in the speedometer. It is further submitted that for the satisfaction of complainant, VSS i.e. sensor was installed and problem was solved and it was shown to the complainant that in this model the flickering cannot be made/reduced to zero and it is normal. Further controverting all the allegations of complainant opposite parties No. 1 &3 denied any deficiency in service and unfair trade practice on their part and prayed for dismissal of complaint.
The opposite party No.2 in its written reply raised legal objections that complaint has not been filed by competent person, that the complainant has concealed material fact and documents from this commission. As the delivery of Black Scorpio was a little bit late and complainant being in hurry took the delivery of Pearl White Scorpio voluntarily. That intricate questions of law and facts are involved so only
Civil Court is competent to the decide the case. That the complaint filed by complainant is false, frivolous and vaxatious. That there is no deficiency in service on the part of opposite parties. That complainant has no locus standi and this Commission is no jurisdiction to try and decide the present complaint.
On merits, the opposite party No.2 after reiterating its version as pleaded in legal objections and detailed above, further pleaded that there is no defect much less manufacturing defect in the speedometer. It is pleaded that answering opposite party changed/replaced some parts such as VSS and VSS gear of the car of the complainant on their own cost. After changing the same flickering of speedometer was reduced to its minimum. The flickering of speedometer was due to installation of extra wide tyres and not due to manufacturing defect. Further controverting all the allegations of complainant opposite party No.2 denied any deficiency in service and unfair trade practice on its part and prayed for dismissal of complaint.
In support of her complaint, the complainant has tendered into evidence Affidavit of Gurkaran Singh Dhillon dated 18.01.2019 (Ex.C-18) and photocopies of other documents (Ex.C-1 to Ex.C-17).
In order to rebut the evidence of complainant, the opposite party No.1 &3 did not lead any evidence.
The opposite party No.2 tendered into evidence Affidavit of Naresh Monga dated 14-03-2019 (Ex.OP-2/1), and photocopy of vehicle history (Ex. OP-1/2 to Ex. OP-2/5).
We have heard learned counsel for the parties and gone through the record.
The learned counsel for the complainant argued that opposite parties sold vehicle to complainant with manufacturing defect as there is flickering in speedometer of the vehicle and the matter was reported to the opposite parties after few days of purchase of vehicle. Complainant visited opposite party No.2 time and again. Opposite parties admitted the defect that there is speedometer flickering as well as vehicle speed is not stable when put it in cruise control but failed to remove/resolve the same. Learned counsel further argued opposite parties are deficient in service and practised unfair trade practice firsty by selling defective vehicle and further by failing in resloving the issue. Hence, complainant is entitled to claim relief.
On the other hand learned counsel for the opposite party No.1 &3 argued that vehicle sold to complainant is defect free and complainant concocted false story just to grab money from them. Learned counsel furhter submitted that for the satisfaction of complainant certain parts of vehicle were change in order to maintain customer friendly relations. The vehicle is at par with the other new vehicles and is fuctioning normally. The complainant has been shown that in this model flickering cannot be made/reduced to zero and it is normal. Hence, complaint of complainant is baseless and be dismissed.
Learned counsel for the opposite party No.2 submitted that there is no defect much less manufacturing defect in the speedometer of vehicle in question problem of flickering of speedometer was brought into notice of opposite party No.2 by the complainant and opposite party changed/replaced some parts such as VSS and VSS Gear of the car of complainant at their own cost. After changing the same flickering of speedometer is reduced to its minimum. Learned counsel further submitted that complainant has got installed extra wide tyres in his vehicle which is the cause of flickering of speedometer. There is no deficiency in service or unfair trade practice on part of opposite party. So, complaint of complainant may kindly be dismissed.
We have considered the rival contentions and have gone through the record carefully.
In this case the main grievance of the complainant is the flickering of speedometer of new car purchased by her from the opposite parties and the vehicle speed does not remain stable when it is put in cruise control.
Perusal of sale certificate Ex.C-14 reveals that complainant purchased vehicle on 27.07.2018 and job card Ex.C-11 shows description of complaint and observation as “ Speedometer needle flickering at 100 KM and upto 100 speed ” as per this document vehicle covered only 2000 KM. Further under heading “ Analysis ” it is mentioned that on checking problem was there and even on replacement of cluster with OK vehicle problem remained the same. Ex. C-7 to Ex. C-10 are the E-mails showing communication between parties regarding problem in vehicle. Perusal of E-mail Ex. C-8 reveals that a video of live data was sent by opposite party No.2 to opposite parties No. 1 &3 showing that cluster meter needle was flickering when cruise control was used and vehicle speed was also up and down. Further perusal of E-mail dated 16.10.2018 (Ex.C-7) reveals that VSS and VSS Gear was replaced by opposite parties in vehicle of complainant and it was found that meter flickering was still there but reduced to difference of 2-3 kilometer in needle flickering against previous needle flickering difference of 7-8 kilometers and advice regarding further course of action was asked. Ex.C-6 is the E-mail communicated between opposite parties reveals that “ as discussed, after fitment of modified sensors variation in speed reduced to 2-3 KM which was earlier 6-7 KM. 2-3 KM variation is ok as per design. It is not possible to make it zero.”
We have observed that opposite parties have taken self contradictory pleas. On one hand it is plea of the opposite parties that the vehicle is defect free and the other hand opposite parties pleaded that certain parts of vehicle were changed/replaced and vehicle was made defect free.
We have also taken note of the fact that pre-delivery inspection (PDI) was to be done by the opposite parties before handing over the vehicle in question to complainant but opposite parties failed to do so.
Perusal of the evidence led by complainant proves that there was flickering in speedometer and there was variation of speed which was reduced by opposite parties form 6-8 KM to 2-3 KM. It is also proved on file that while using cruise control the speed of vehicle was also up and down.
Perusal of Ex. C-6 reveals that ultimately opposite parties opined that variations of 2-3 KM is OK as per design and it not possible to make it zero. So, in this way opposite parties admitted that there is defect in car which is not removed by them. Further opposite parties failed to bring on file any evidence to prove their version regarding variation of 2-3 Km is OK as per design or variation is because of installation of wide tyres. Opposite parties No. 1 &2 have not led any evidence to rebut the evidence of complainant and evidence produced by opposite party No. 2 even fortifies the case of complainant.
We are of the view that a person purchases a product by spending hard earned money for its use and enjoyment and sale of a product having defect and there after failure to remove that defect is deficiency in service and unfair trade practice on the part of opposite parties.
Hence, keeping in view the facts, circumstances and evidence on file this complaint is partly allowed with cost and compensation of Rs. 25,000/-. Opposite parties are further directed to replace the required parts of car to make it defect free and in case defects cannot be removed then to replace the car with new car of same variant and description or to refund Rs.15,25,000/- with interest @ 8% p.a. from date of purchase of vehicle in question i.e. dated 26-07-2018 till realization.
The compliance of this order be made by opposite parties jointly and severally within 45 days from the date of receipt of copy of this order.
The complaint could not be decided within the statutory period due to heavy pendency of cases.
Copy of order be sent to the parties concerned free of cost and file be consigned to the record room.
Announced :
31-08-2022
(Kanwar Sandeep Singh) President
