BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

C.C. No. 372/2014 Filed on 23.09.2014

ORDER DATED:  25.10.2021

The order delivered on 25/10/2021

ORDER

SRI. VIJU V.R : MEMBER

1. The complainant has presented this complaint before this Forum under section 12 of the Consumer Protection Act 1986 , alleging that he had purchased a Mahindra Stallio Motor Bike on 19.3.2011., The first opposite party is the manufacturer of Mahindra branded automobiles in India including Mahindra Stallio Model Motor bike. The second opposite party is the present authorized service agent cum dealer of the first opposite party in the District of Thiruvananthapuram. At the time of purchase of the vehicle by the complainant the authorized service agent cum dealer of the first opposite party was M/s.MSN Automobiles.  The second opposite party taken over the affairs of M/s.MSN Automobiles and is functioning in the very same building. The invoice cost of the motor bike is Rs.45,250/- and the Engine number is MFE AH 007947. The said vehicle was purchased by the complainant by availing finance from Mahindra and Mahindra Financial Service Ltd. After the purchase of the vehicles, the vehicle was registered with RTO, Neyyattinkara and the register number is KL-20-C-1907. The complainant is working in Revenue Department, Government of Kerala and his wife is working in District Court, Thiruvananthapuram and both the children of the complainant are studying in lower classes and hence the complainant badly required a vehicle to discharge his personal as well as official duties. Right from the beginning the vehicle was suffering from grave defects and hence warranted many services. During the fag end of 2010 the then service agent cum dealer closed down the service centre and the second opposite party took over the service centre and continue to operate sales cum service centre from the very same premises.  Despite of many services the defects were not cured further during services the technical staff of the service agent cum dealer always informed the complainant that the first opposite party had stopped the manufacturing of the Stallio brand Motor bike as the same suffers from inherent manufacturing defect and hence it is very difficult to procure spare parts to finish the service perfectly and cure the defects in the vehicle completely. In the month of December 2013 the engine halted abruptly and it becomes impossible to move the vehicle. Accordingly the representative of the first opposite party along with the service manager and another staff of the second opposite party approached the complainant on 11.12.2013 and took the vehicle along with warranty card, service book and RC book without issuing a written acknowledgment for the same. At that time the representatives had assured that the vehicle will be returned within two weeks after replacing the defective engine and changing the Engine number in the RC book. The vehicle along with the original documents was not returned to the complainant despite of several demands and request by the complainant stating one or another reason and hence the complainant was constrained to approach Karamana police and lodged a complaint on 06.06.2014. The representative of the second opposite party had assured in the presence of police to return the vehicle along with the original documents on or before 11.06.2014 and further claimed that they have already replaced the engine with new one and other repair works were completed. Further they have stated that the delay was due to certain paper works as the engine number in RC book has to be changed. The vehicle was not delivered neither on 11.06.2014 nor till date. Further the representative of the second opposite party is not responding to the complainant’s effort to contact them. The complainant issued lawyer’s notice to the opposite parties as well as M/s.MSN Automobiles demanding to redress his grievances. Though the first opposite party accepted the notice neither issued proper reply nor initiated any steps to redress the grievances of the complainant. The notice issued to M/s.MSN Automobiles was return with the endorsement closed / left. The second opposite party received the notice and issued a reply stating false, frivolous and contradictory contentions. Despite of all efforts by the complainant he could not get the motor bike returned along with all the original documents from the opposite parties.  Hence this complaint.  
2. The Opposite parties 1 & 2 entered appearance and filed version.  After that the complainant filed an IA to implead M/s MSM Automobiles. The IA was allowed and the party was impleaded as additional third opposite party and notice was issued and was set ex parte.
3. First opposite party have averred that the complaint is not maintainable either in law or on facts. The complainant cannot be considered as consumer as defined under the Consumer Protection Act, 1986 since the opposite party has not provided any service as defined under Section 2(g) of the Consumer Protection Act. There is no privity of contract between 1^st opposite party and the complainant. The relationship between the first opposite party and the second opposite party is on principal to principal basis and as such the second opposite party is not an agent of the first opposite party. Therefore the 1^st opposite party   cannot be held liable or responsible for any act of the 2^nd opposite party. The business pattern prevailing between the 1^st opposite party and 2^nd opposite party and earlier with M/s.MSN Automobiles was that the later used to purchase the vehicles in bulk as per their requirement from 1^st opposite party and independently effects the sale to its customers. The sale or service conducted either by the second opposite party or M/s.MSN Automobiles to the end customers is purely at their discretion and prerogative. In case of any alleged mishap or negligence happening from the side of the said opposite parties cannot be put as a responsibility upon the first opposite party and would lie only against them. The complainant had purchased the vehicle manufactured by 1^st opposite party on 19.03.2021.  The cause which has culminated to the complaint is regarding the allegation that the engine of the vehicle halted abruptly in the month of December 2013 and accordingly he had given the vehicle to the second opposite party. The engine of the particular batch of ‘Stallio’ vehicles was decided as a gesture of goodwill to be replaced voluntarily by the company when a complaint was raised by the complainant and the said task was implemented by the then dealer M/s.MSN Automobiles in interaction with the complainant. It is based on the above said decision that the engine of the vehicle of the complainant was also proposed to be replaced by the then dealer M/s.MSN Automobiles on consent taken from the complainant. The further allegation that the representative of 1^st opposite party along with the staff of the second opposite party had taken the vehicle along with the documents like warranty card, service book and RC book is absolutely false. The 1^st opposite party is not responsible in any manner with respect to transactions the complainant had exclusively with either the M/s.MSN Automobiles and the second opposite party.  With respect to the allegation of the complainant that the vehicle along with the documents were not returned.  On enquiry it is revealed that the vehicle of the complainant is lying in the premises previously occupied by M/s.MSN Automobiles and currently occupied by the 2^nd opposite party.  It is further informed by the 2^nd opposite party that the engine of the vehicle was much earlier replaced by M/s.MSN Automobiles and the vehicle is now in good condition, ready to be delivered.  It is a matter to be considered or agitated between the complainant and M/s.MSN Automobiles and 1^st opposite party is not in any manner responsible.  There is no merit in the statement made regarding email communications issued by the complainant.  1^st opposite party is not in any manner responsible for the alleged loss, mental sufferings etc. suffered by the complainant.  There is absolutely no cause of action for raising the present complaint as against this opposite party, hence the complaint many be dismissed with cost.
4. 2^nd opposite party in their version has stated that the complaint is not maintainable either in law or on facts.  The complaint is liable to be dismissed for misjoinder of necessary party, because the complainant has not made M/s.MSN Automobiles in the party array since they were the original Authorised Dealer and rendered service till 20/08/2013, with whom the complainant was having transactions.  It is pertinent to note that, the 2^nd opposite party took the dealership with M/s.Mahindra and Mahindra Two Wheelers Ltd., only on 20/08/2013.  The complainant never availed any service from the 2^nd opposite party for the purchase of Mahindra Stallio Motorbike on 19/03/2011 as alleged.  It is true that the 1^st opposite party is the manufacturer of the Mahindra Stallio motorbike.  The complainant had purchased the motor bike from M/s.MSN Automobiles, who was the then authorized service agent cum dealer of the 1^st opposite party.  The 2^nd opposite party has no connection or transaction with M/s.MSN Automobiles.  The 2^nd opposite party had entered into an agreement with the 1^st opposite party on 21/08/2013 for getting a new dealership with them.  The 2^nd opposite party is having no knowledge regarding the purchase of the vehicle, financial assistance availed by the complainant and even the registration of the said vehicle.  The further averments that the vehicle was having inherent manufacturing defects is absolutely false. 
5. The 2^nd opposite party never took over the service centre of M/s.MSN Automobiles.  The 2^nd opposite party cannot be held liable or responsible for any act done by M/s.MSN Automobiles.  No technical staff of the 2^nd opposite party has neither approached the complainant nor informed the opposite party that the 1^st opposite party has stopped the manufacturing of the Stallio brand motor bike.  The staff of the 2^nd opposite party approached the complainant and took the vehicle along with warranty and R.C.Book.  in December 2013.  The complainant himself has approached the service centre for getting the periodical service of his vehicle.  Accordingly, the 2^nd opposite party has took the vehicle for its periodic service.  While taking the vehicle for service, only the service booklet was collected by the service centre of the 2^nd opposite party in order to enter the service details.  Usually the service centre of the 2^nd opposite party will not accept any valuable documents like R.C.Book, Insurance etc. from its customers.  Moreover, the general practice of service centre of the 2^nd opposite party is that, when a customer brings the complainants vehicle for service, the vehicle would be thoroughly checked by the service personnel in the presence of the customer and if the service personnel would find any valuable documents those will be handed over to the customer before accepting the vehicle for service.  The 2^nd opposite party had never replaced the engine as alleged by the complainant.  Since the 2^nd opposite party did not collect any such documents from the complainant, the question of returning the same does not arise.  The 2^nd opposite party has not done any repair works as alleged.  After the completion of the periodical service of the above mentioned vehicle, the service personnel’s informed the complainant to take delivery of the same, but even after repeated reminders, the complainant did not even cared to take delivery of his vehicle.  The 2^nd opposite party is not in any manner responsible for the alleged loss, mental suffering etc. suffered by the complainant.  The present complaint is filed only to get unlawful gain from this opposite party.  Hence the complaint may be dismissed with cost.

Issues to be ascertained:

1. Whether there is any unfair trade practice or deficiency in service from the side of opposite parties 1 to 3?
2. Whether the complainant is entitled to get the reliefs?

6. Issues (i) & (ii):- Both these issues are considered together for the sake of convenience.  The complainant has filed affidavit in-lieu of chief examination, but no documents were marked as he did not turn up.  So many opportunities were given to the complainant for marking the documents but he failed to mark the documents.  No evidence was put forth by the complainant for proving his case.  Hence for want of evidence the case of complainant fails.

In the result, the complaint stands dismissed.  There shall be no order as to cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Commission, this the 25^th  day of October 2021.

                        Sd/-

            P.V.JAYARAJAN                 : PRESIDENT 

                        Sd/-

PREETHA G. NAIR              : MEMBER    

                           Sd/-

                                                                  VIJU V.R                          : MEMBER

C.C. No. 372/2014

APPENDIX

  I         COMPLAINANT’S WITNESS:

II          COMPLAINANT’S DOCUMENTS:

III         OPPOSITE PARTY’S WITNESS:

IV        OPPOSITE PARTY’S DOCUMENTS:

        Sd/-

PRESIDENT