BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.147 of 2014

Date of Instt. 06.05.2014

Date of Decision :06.04.2015

Kuldeep Singh son of Hari Ram R/o H.No.143, Tower Enclave, Phase-I, PO Khurla Khingra, Jalandhar.

..........Complainant

Versus

1. Mahindra & Mahindra Ltd, Gateway Buildings, Apollo Bunder, Mumbai through its MD/CEO.

2. Raga Motos Pvt Ltd, Police Lines Road, near New Court Chowk, Opp.New Passport Office, Jalandhar through its MD/Principal Officer.

3. Service Center, Raga Motor Pvt Ltd, Police Lines, New Court Chowk, Opp.New Passport Office, Jalandhar through its MD/Principal Officer.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Sachin Sharda Adv., counsel for complainant.

Sh.GPS Rana Adv., counsel for OP No.1.

Sh.VK Singla Adv., counsel for OPs No.2 & 3.

Order

J.S Bhatia (President)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant is law abiding citizen and it the owner of the Mahindra GIO Compact Cab having registration No.PB08CH-8563, Engine No.13B9175231 and Chasis No.D5C20174 a product of opposite party No.1. The complainant purchased from opposite party No.2 the Mahindra GIO Compact Cab i.e model namely Mahindra GIO passenger vide dated 13.5.2013 for the benefit of his son Dharam Jeet Singh so that he would earn his livelihood by the same. Dharam Jeet Singh is having a valid license to drive the same. Soon after the purchase of the cab, the engine of the said cab started giving problems by making excessive noise, high consumption of fuel and engine oil, excessive smoke and leakage of engine oil. The complainant approached the authorized service centre of opposite parties No.1 and 2 i.e opposite party No.3 on 21.5.2013, 10.6.2013, 27.7.2013, 27.9.2013, 7.3.2014 and again on 10.3.2014. The complainant enquired about the problem with the engineers of the opposite party No.3, who told the complainant that the engine of the said cab is having inherent manufacturing defect due to which the problem is occurring again & again. The complainant approached the manager of the service centre i.e opposite party No.3 at which the manager advised the complainant to replace the defective engine with a new one. The complainant asked the manager that the defective engine should be replaced free of cost as the vehicle is well within warranty period and the complainant is not at fault. The manager told the complainant that they have replaced the engine with a new one and the problem will not occur again. The complainant believing on the words of the manager brought back the vehicle on 31.3.2014 i.e after 21 days of submission for repair, with the hope that it will work properly and will not cause any problem in future, but to the utter surprise of complainant the problem still subsist. The complainant, then approached the manager to converse him with the fact that even the new engine is also giving the same problem, then the manager told that they have not changed the old engine with a new one but only put some cable in old one and if complainant want to get a new engine he has to pay for the same. The Mahindra GIO Compact Cab sold by the opposite party No.1 carries a warranty period of one year. The opposite parties sold the said Mahindra GIO Compact Cab with a defective engine which started giving problem in the very first week of its sale. This act of opposite parties of selling a Mahindra GIO Compact Cab having some inherent manufacturing defect in its engine amounts to deficiency on the part of the opposite parties and it has caused mental harassment to the complainant. This is so because the son of the complainant had to take the said vehicle to opposite party No.3 for repair again and again which affects his earning. On such like averments, the complainant has prayed for refund of the price of the vehicle in question or for replacement of the defective engine with new one. He has also claimed compensation and litigation expenses.

2. Upon notice opposite parties appeared and filed their written replies. In its written reply, opposite party No.1 pleaded that there is admitted relation between the replying opposite party No.1 and its dealers. Dealers (in the present case, opposite party No.2) are authorized to purchase the vehicles manufactured by the opposite party No.1 in bulk quantities and in turn re-sells them to their own customers. In other words, all the transactions with dealers are on principal to principal basis. Further sale of the vehicle and its service is conducted by dealer, and for this, even consideration amount is payable to dealer. The replying opposite party No.1 is not aware of the ultimate customer of dealers and as such there is no privity of contract between the opposite party No.1 and end user of the vehicle (in the present case, the complainant) as far as the subject vehicle is concerned. The opposite party No.1 is not responsible for any of the act, omissions or commission of any act by its dealers. Thus in view of the above said, the complainant is not the consumer of answering opposite party, moreover, complainant has miserably failed to prove any manufacturing defect as has been alleged in the complaint. The complainant has not got any expert opinion to establish any manufacturing defect. The present complaint is merely a misadventure with the legal process rather than a genuine grievance. It is submitted that in case the said vehicle was suffering from any inherent defect then it would have rendered the vehicle redundant with respect to its use. However, the vehicle is in continuous use and when the alleged defect was reported at that stage vehicle had run over 48000 KMs. The present complaint is nothing but bundle of lies and is an after thought and is therefore liable to be dismissed. On 21.5.2013 vehicle reported for the first service. At the relevant time only an unusual noise from rear side was reported. Further, defect of high consumption of fuel and engine oil, excessive smoke and leakage of engine oil was not at all reported. The unusual noise was thoroughly checked but nothing wrong was found. Thus, the complainant is making false allegations regarding the facts, especially when it has been alleged that soon after the purchase the complainant experienced the problem of high consumption of fuel and engine oil, excessive smoke and leakage of engine oil and excessive noise in the vehicle. Thereafter, vehicle reported on 10.6.2013 for second periodic service. At the relevant time, none of the defects as alleged in the present complaint of high consumption of fuel and engine oil, excessive smoke and leakage of engine oil and excessive noise were reported. The complainant again has alleged falsely of having intimated the alleged defects on 10.6.2013. It is rather pertinent to note that within one month of its purchase, vehicle had run more than 4000 KMs which shows that vehicle was performing in perfect condition despite extensive usage. On 27.7.2013 again vehicle came for 4th free service. At the said time also none of the defects alleged in shape of the high consumption of fuel and engine oil, excessive smoke and leakage of engine oil and excessive noise had been reported. The complainant has again made frivolous allegations in order to create a wrong impression regarding the product. It is not out of place to mention that on 27.7.2013, it was more than two months of the purchase of the vehicle and no problem as alleged has occurred in the vehicle. On 27.9.2013, the complainant has only reported engine oil leakage and did not complain about the high consumption of fuel and engine oil, excessive smoke and excessive noise. The answering opposite party states that so far as the engine oil leakage is concerned, the gasket and oil seal was replaced free of costs under warranty. It would be pertinent to mention that at this point of time, the vehicle had run 24,394 KMs within six months and every machine requires some running repair/maintenance and it is a maintenance job. On 7.3.2014 vehicle came for routine service and none of the defects alleged in the complaint such as high consumption of fuel and engine oil, excessive smoke and leakage of engine oil and excessive noise were told to the technician and at this stage vehicle had run 47,792 Kms. On 10.3.2014 the said vehicle reported with engine noise problem and engine oil leakage problem. On 10.3.2014 the complainant in consultation with the workshop engineers gave his consent to get the engine overhauled. Accordingly, the engine was overhauled free of costs under warranty. A copy of the pre-invoice receipt, showing that the parts have been changed under warranty is annexed. Also, complainant gave his satisfaction note after he has taken delivery of vehicle after road trial of the vehicle is annexed.

3. In its separate written reply, opposite parties No.2 and 3 pleaded that complainant purchased the vehicle for commercial use and as such he is not consumer. On merits, they took up the same stand as by opposite party No.1 and denied the material allegations of the complainant.

4. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C9 and closed evidence.

5. On the other hand, learned counsel for opposite party No.1 has tendered affidavit Ex.OP1/A alongwith copies of documents Ex.OP1/1 to Ex.OP1/3 and closed evidence. Further learned counsel for the opposite parties No.2 and 3 tendered affidavits Ex.OP2/A and Ex.OP2/B alongwith copies of documents Ex.OP2/1 and Ex.OP2/3 and closed evidence.

6. We have carefully gone through the record and also heard learned counsels for the parties.

7. It is not disputed that complainant purchased Mahindra GIO Compact Cab in question from opposite party No.2 on 13.5.2013. Counsel for the complainant contended that soon after purchase the engine of the cab started giving problems like excessive noise, high consumption of fuel and engine oil, excessive smoke and leakage of engine oil. He further contended that complainant approached service station with the above station problems but it failed to rectify the defects and problems still subsist. He further contended that there is manufacturing defect in the engine and same is liable to be replaced. On the other hand, counsel for the opposite parties contended that there is no manufacturing defect in the engine or the cab in question and whenever it was brought to the service station for service or repair, it was done as per terms and conditions of the warranty. We have carefully considered the contentions advanced by learned counsels for both the parties. The complainant has placed on record job sheet dated 3.7.2014 Ex.C6 regarding paid service and it proves nothing. Next is repair order dated 10.3.2014 Ex.C7 wherein demanded repairs of noise engine and oil leakage are mentioned. Simply on the ground that engine was given some noise and there was oil leakage, it can not be said that there was any manufacturing defect in the vehicle in question. The opposite parties have placed on record retail invoice dated 31.3.2014 Ex.OP1/1. Ex.OP1/2 is satisfaction note dated 31.3.2014 duly signed by the customer. So it means that complainant was satisfied with the service offered by opposite party No.1. The opposite parties have produced the entire service/repair history of the vehicle in question which is Ex.OP2/1. From the perusal of the same, it is evident that as on 1.5.2014 the vehicle has already run upto 53652 KMs. On 1.5.2014 visit the service type is mentioned as paid service. In case there was any manufacturing defect in the vehicle then it would not have run upto 53652 KMs till 1.5.2014 i.e during period of less then one year. It may be mentioned here that vehicle was purchased on 13.5.2013 and the present complaint was filed on 1.5.2014 just before expiry of the warranty period. The vehicle is commercial in nature. Although according to the complainant, he has purchased the same for the benefit of his son Dharam Jeet Singh to earn his livelihood by the same. A commercial vehicle having manufacturing defect can not run upto 53652 KMs within period of less then one year. The fact that vehicle was repeatedly taken to work shop either for service or repair in no way proves that it was having any manufacturing defect in it. In Classic Automobiles Vs. Lila Nand Mishra and Others 2010(2)CLT367 it has been held by Hon'ble National Commission as under :

The onus to prove that there was manufacturing defect was on complainant No.1. We agree with the contentions raised by learned Counsel for the petitioner that complainant No.1 failed to prove that there was any manufacturing defect by producing any cogent evidence.

Complainant failed to produce expert evidence as provided under Section 13(1)(c) of the "Consumer Protection Act, 1986 which provides as under :

(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer form any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum.

The District Forum could have appointed an expert of its own, based upon whose findings, a finding could be recorded with regard to the manufacturing defect. In the absence of any expert evidence, merely on the fact that the car was repeatedly brought to the service station for repairs/rectifications, it cannot be held that there was a manufacturing defect in the car. Whenever the car was brought to the service station, it was attended to by the petitioner. The petitioner is the service provider of the car and Counsel for complainant No.1 was unable to show any deficiency in service on the part of the petitioner in attending to the car whenever it was brought to the petitioner's service station". In Sushila Automobiles Pvt.Ltd. Vs. Dr.Birendra Narain Prasad & Others. III(2010)CPJ130(NC) it has been held by Hon'ble National Commission as under :

The State Commission has failed to consider that the complainant had not been able to discharge its onus to prove the manufacturing defect. He neither produced any expert opinion nor could prove from the records such as the job cards that the vehicle suffered from manufacturing defect. There is no rebuttal to the allegation of accident. Merely because the accessory was no supplied in the beginning and that the vehicle suffered form some minor defects, which, however, were attended to by the Opposite party, the State Commission has completely erred in holding that the vehicle suffered from manufacturing defect warranting its replacement. In the case of Surrendra Kumar Jain Vs. R.C.Bhargava and Ors. III(2006)CPJ382(NC) even when the complainant had filed a report of one O.P.Singh stating that the radiator was found to be leaking from the bottom tank and had been replaced, this Commission had taken the view that as many as 11 visits to the workshop notwithstanding minor defects cannot be said to be manufacturing defect. The defects in the car, as rightly held by the District Forum, were minor in nature and cannot be said to be in the nature of manufacturing defects. For the non-supply of the accessory kit, the complainant has been duly compensated by the District Forum.

In fact the Hon'ble Supreme Court in the case of Maruti Udyog Ltd. Vs. Susheet Kumar Gabgotra & Ans. II(2006)CPJ3 (SC)= (2006)4SCC644 has held that where defects in various parts of a car are established, direction for replacement of the car would not be justified. "Replacement of the entire item or replacement of defective parts only called for."

8. The complainant has not examined any expert witness to prove that there is any manufacturing defect in the vehicle. The complainant has tendered his affidavit but according to the own version of the complainant he has purchased the vehicle in question for the benefit of his son Dharam Jeet Singh to earn his livelihood by the same meaning thereby that vehicle in question was being run by Dharam Jeet Singh but the complainant has not tendered his affidavit to prove that there is any manufacturing defect in the vehicle in question. From the service history of the vehicle which is on record, it is evident that whenever vehicle was taken to service station either for repair or service it was duly attended. The complainant has failed to prove any deficiency in service on part of the opposite parties. He has also failed to prove any manufacturing defect in the vehicle in question.

9. In view of above discussion, we hold that there is no merit in the present complaint and same is hereby dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

06.04.2015 Member Member President