SMT. RAVI SUSHA  : PRESIDENT

    Complainant filed  this  complaint U/S 12 of the Consumer Protection Act 1986  for getting an order directing  the OPs to pay an amount of Rs.45,000/- as loss of earning with Rs. 40,000/- as compensation  for mental agony and also Rs.14,000/- for physical strain  with Rs.1000/- being  the cost of the lawyer notice  along with cost of proceeding to the complainant.

   The complainant purchased a Mahindra Jeeto L7-16 goods carriage worth Rs.3,21,196  on 23/10/15 from 2^nd OP.  1^st OP is the manufacturer of the said vehicle.  The complainant  has  purchased the same on believing the advertisements and the  representations made by the Ops that the said vehicle is free from all manufacturing or any other defects.  Before purchasing the vehicle the 2^nd OP offered urgent and timely after sale service.  The vehicle have two year warranty also.  The complainant is a driver who purchased the said vehicle for his lively hood by self  employment  availing huge loan . It is submitted that  the vehicle shows various problems  even within one month from the delivery itself.  On 30/08/2016 while the vehicle  was ready for running with load it was noted that  oil symbol is on.  When the complainant  informed this to the 2^nd OP, they informed that  the vehicle should  not be move because it is a serious problem.  Hence the complainant was compelled to unload the goods and as per the advise of 2^nd OP the vehicle  was handed over to 2^nd OP on 31/8/2016.  After examination  2^nd OP informed the complainant that  it is engine complaint and almost  all parts of the engine is to be  replaced with new one and he further informed that it s nothing but manufacturing defect for which  1^st OP only is responsible and that  the 2^nd OP promised to handover the vehicle after engine work within one week. But the 2^nd OP was not ready to return the vehicle  as  promised and delaying the delivery saying excuses. At last  the vehicle was returned after the engine work after 36 days.  Complainant submitted that during the said 36 days he was jobless have no income for livelihood and hence the installment of loan could not pay.  The new vehicle having two years warranty was put to engine complaint within 10 months from the delivery is only due to  the manufacturing defect .  On return back of the vehicle after repair the complainant  has informed the  helpless and the loss due to the defects to the 2^nd OP who informed the  complainant that  he will be compensated within two weeks by consulting with 1^st OP.  But no action was taken by the Ops.  Hence the complainant issued a registered lawyer notices to the Ops, the 1^st OP  issued  reply and denying the  facts in the complaint.  Hence this complaint.

       On appearance, the OPs resisted the allegations of the complainant.  Both OPs filed separate versions.  In the version both OPs denied any kind of deficiency  in service and pleaded that there was no manufacturing defect in the vehicle.  1^st OP contended that  the complaint is not maintainable either in law or on facts.  The complaint pertains to a vehicle which was purchased for commercial purpose  therefore the  complaint is not maintainable before this  Forum.  1^st OP further  submitted that the transactions between them and 2^nd OP are on principal  to principal basis.  The 2^nd OP places bulk orders for vehicles and  supplies  vehicles in large numbers and he does not know about the ultimate buyer  of the  vehicle at the time of purchase.  This OP had any transactions with the complainant and therefore there is no privity of contract with them.  It is admitted that the complainant had purchased a Mahindra Jeeto, L7-16 Goods carriage vehicle from OP No.2 , and the owner’s manual specifically states that the warranty period is 2 year/40,000km,whichever occurs earlier. It is further denied that  the vehicle  started showing  various problems even within  one month of delivery  and this OP is in  no way  liable for the delay if any caused  from the part of 2^nd OP.  1^st OP had only taken a time period of 9 days for the procurement and delivery of the ordered engine parts by the dealership, which is reasonable time.   There was no manufacturing defect in the vehicle at any point of time.  Due to the  negligent act of the complainant of not noticing the warning lamp an engine complaint had occurred for the vehicle and he has no liability to pay any compensation for the period of repair  as claimed.  1^st OP denied that  the complainant  sustained loss of  earning  of Rs.45,000/-,that  there was no  reason for any mental  agony or physical strain  to the complainant due to any action of 1^st Op and hence he is not liable to  pay the compensation.  It is further stated that  1^st Op had not acted negligently and had done the best to support the customer and repaired the vehicle under warranty.  There is no omission on their part. Hence prayed for the dismissal of this  complaint.  

        2^nd OP authorized dealer and service centre of OP No.1 admitted that the complainant had purchased a Mahindra Jeeto, L7-16 Goods carriage vehicle manufactured by 1^st OP.  2^nd OP denied that  the complainant purchased the vehicle on believing the word of 2^nd OP that  the said vehicle is free from all manufacturing and other defects. It is stated that after the repair the complainant informed about his grievances and at that time the 2^nd OP informed that complainant would be compensated within 2 weeks afer consulting with 1^st OP, but no action was taken by Ops and later 2^nd OP informed that 1^st OP is not ready to settle the matter etc are false and denied.   2^nd OP  submitted that  the vehicle in dispute was entrusted to their service centre on 1/9/2016 with an engine complaint which was  caused due to the rough and improper use of the vehicle, since the complaint  was serious  one , on the day of entrustment itself   ie on 1/9/2016  this OP sought the technical assistance  report from 1^st OP and the report was received  on 5/9/2016.  In order to repair  the vehicle it was necessary to  replace some parts of engine which were not readily available with them they took steps to  procure the same from the company and other  branches of this OP and the parts are received on  19/9/2016.   The repair works includes the lathe work also.  When all the repair works  completed the  vehicle was  delivered to the complainant .   All the works were done free of cost under warranty.  There is no deliberate negligence or delay in the service of 2^nd OP.  Vehicle has no manufacturing defect as stated  in the complaint.  The OP had given its best service as speedy as possible.  No deficiency can be attributed to this OP, hence prayed for the dismissal of the complaint.

      The complainant has filed his affidavit and the documents Exts. A1 to A10 series.  The expert report was marked as Ext.C1.  On behalf of OP No.1 cluster Manager of OP No.1 Mr. N Srinivasan has filed his affidavit and marked Ext.B1 warranty document.  On behalf of  2^nd OP  Assistant Service Manager Mr. Vinesh filed his affidavit and the documents Ext.B2 service history of the vehicle and Ext.B3 service record.

            After that Learned counsel of complainant made oral argument and OPs 1 and 2 filed separate argument notes.

            Undisputed facts of the present case are that the complainant had purchased a Mahindra Jeeto, L7-16 Goods carriage vehicle worth Rs.3,21,196 /- on 23/10/2015 from OP No.2  which has got registration No. KL58R1744.  The OP No.1 is the manufacturer of the vehicle and 2^nd OP is the authorized dealer of 1^st  OP.  The warranty of the vehicle was for 2 years or 40,000 Kms whichever is earlier.  It is also an undisputed fact that the vehicle was taken to OP No.2 with engine complaint on 31/08/2016 and after replacing almost all engine related parts, the vehicle was handed over to complainant on 05/10/2016.

    The allegation of complainant is that complainant had purchased the vehicle for his lively hood by self employment, on believing the advertisement and representations made by the OPs  that the vehicle in question is free from all manufacturing defects and OP No.2 offered urgent and timely after sale service.  Against that even within one month from the purchase itself, the vehicle shows various problems and on 31/08/2016 the vehicle was handed over to OP No.2 with complaint ‘oil symbol is on’.  After examination OP No.2 informed that there is engine complaint and promised to handover the vehicle after engine work within one week.  But the vehicle was returned after the engine work after 36 days.  Complainant alleged that the vehicle is having manufacturing defect and also alleged that during the said 36 days he was jobless have no income for livelihood and hence the installment of loan could not pay  Due to that he suffered mental and physical agony and also suffered monetary loss.  According to complainant within the warranty period, ie 10 months after purchase, engine complaint happened  to the vehicle is only due to the manufacturing defect and the act of the OPs amounts to deficiency in service and unfair trade practice.

   While pending of this case complainant has taken steps to appoint an expert to file report after inspection of the subject vehicle.  Mr. Prasad P.V, Assistant Motor vehicles Inspector, R T Office, Kannur, was appointed as an expert commissioner and expert has filed report stating that “ as per the enquiry it is realized that the defect occurred for the vehicle  registration No.KL58 R-1744 araised by excessive burning of the lubrication oil, this happened only due to the manufacturing defect especially for a newly purchased vehicle with regularly serviced.  The above said defect caused to damage almost all engine related parts.  Hence all the parts related with engine should be replaced for recondition of the vehicle.  As per the vehicle service history report submitted by the Ops, understand that they have replaced all engine related parts.  Finally reached a conclusion that the above said problem araised due to  manufacturing defect and recondition of the engine only can be done by replacement of all defective engine parts.”

            Hence Ext.C1 report reveals that the vehicle had manufacturing defect and during his inspection, the mechanical condition of the vehicle was good.

   The complainant here claiming compensation from OPs for the delivery of a manufacturing defective vehicle and the delay of 36 days for handing over the vehicle after engine repair work.

    OPs submitted that there was no inherent manufacturing defect of the vehicle and the complaint of the vehicle was caused due to the rough and improper use of the vehicle.  OP NO.1 submitted that they had delivered the spare parts as per the order of OP No.2 within 14 days and according to OP No.1 a period of 14 days is not a unreasonable period for delivering the parts from the plants situated in North India.  So there is no inordinate delay from their side in supplying the parts for the repair work of the vehicle.  OP NO.1 further contended that the  relation between 1^st OP as a manufacturer and 2^nd OP service centre are on principal to principal basis and hence 1^st OP cannot be held liable for the delay if any happened on the side of 2^nd OP.  According to 1^st OP they had no transaction with the complainant and therefore there is no privity of contract between the complainant and 1^st OP.  1^st OP further submitted that the obligation of the manufacturer is restricted with the terms and conditions of the warranty policy and the complainant is not entitled to any relief other than what is specified in the warranty.  In the present case, the vehicle was repaired  free of cost on warranty.  Hence according to 1^st OP, there is no deficiency in service from the side of 1^st OP.  Here Ext.A8 owner’s manual, the warranty conditions specifically mentioned.  On perusal of terms and conditions 14.12.1, 5&6 it is stated that 1^st OP will supply the necessary components and replaced the parts with free of cost at their authorized service centre.  In the present case also, the vehicle was repaired free of cost at the  authorized service  centre of 1^st OP.  Hence as per the warranty terms and conditions, there is no deficiency in service on the part of 1^st OP.

      2^nd OP the authorized service centre submitted that the vehicle in dispute was entrusted to their service centre on 1/9/2016 with an engine complaint which was serious in nature and the same day they sought the technical assistance  report from 1^st OP and the report were received  on 5/9/2016.  It is also submitted that in order to replace some parts of engine which were not readily available with them they took steps to  procure the same from the company and other  branches of this OP and the parts were received on  19/9/2016.  As soon as the work was completed the  vehicle was  delivered to the complainant without levied  any expenses for the replaced parts or repair expense.

     Here 2^nd OP admitted that there was delay of 36 days in delivering the vehicle after engine repair.  Further admitted through DW2 and Ext.B2 that complainant had availed  all the periodical services from 2^nd OP .  It is to be noted that though 2^nd OP explained about the reason for the delay, they could not prove their contention through any material evidence.  2^nd OP has not submitted  any order form placed before 1^st OP and not submitted  any receipt to show the date of receival of spare parts from 1^st OP.  1`st OP has stated that they had delivered spare parts to 1^st OP within 14 days  from the date of demand by 2^nd OP.

     Here we can see  both OPs blame each other for the delay of 36 days in return the vehicle after engine repair work happened within 1 year from the date  of purchase.  Complainant pleaded that he purchased the vehicle for his livelihood by self employment.  Though the said fact was denied by both OPs, they  could not substantiate their version.  Further OPs not denied the fact that  the vehicle was purchased by availing loan.  Considering all those  facts and  inordinate delay from the side of Ops amounts to deficiency in service and unfair trade practice on their side.  Hence complainant is entitled to get relief.

     The complainant herein failed to produce his quantum  of income etc per month.  Ops opposed the claiming  of Rs.45,000/- for loss of earnings.  On considering all those facts we are inclined to allow Rs.25,000/- towards compensation  for loss of income and mental agony happened to the complainant.

         In the  result complaint is allowed in part.  Opposite parties are directed to pay Rs.25,000/- as compensation for the mental agony, loss of income, Rs.1000/- towards cost of the lawyer notice together with Rs.10,000/- as cost to the proceedings of this case.  Opposite parties shall comply the order within one month from the date of receipt of this order.  Failing which Rs.25,000/- carries interest @9% per annum from the date of order till realization.  Complainant is at liberty to file execution application as per provision in Consumer Protection Act 2019 against opposite parties for realization of the awarded amount.

Exts:

A1-Vehicle order form

A2-Receipt

A3-Repair order form

A4-Copy of tax invoice

A5-Copy of lawyer notice

A6 series-Acknowledgment cards(2 Nos.)

A7-reply notice of 1st OP

C1- commission Report

B1-warranty document

B2- Service history dtd.1/9/2016

B3-Service record dtd.7/6/17

PW1-T.K.Kabeer-complainant

DW1- Venesh.M- OP

  Sd/                                                             Sd/                                                         Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew.                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR