Delhi

East Delhi

CC/285/2016

MANISH - Complainant(s)

Versus

MAHINDRA & MAHINDRA - Opp.Party(s)

23 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110 092

 

C.C. No. 285/2016  

 

	Dr. Manish Sharma S/o Sh. Dayaram Sharma R/o 2G, Shivalika Apartment, Plot No. 16, Sector-9, Dwarka, New Delhi-110075.   Also At: 2934-A, Sushant Lok-1, Gurgaon, Haryana.	….Complainant
Versus
1	Mahindra & Mahindra Limited (Corporate Office), Through its Managing Director/ Director/ Authorized representative, 2-A, Mahindra Tower, 1st Floor, Bhikaji Cama Place, Delhi- 110066 (Near Punjab National Bank)	……OP1
2	Shiva Auto Car (India) Pvt. Ltd. 90, F.I.E. Patparganj, Industrial Area, Delhi-110092.	……OP2
3	Sterling Motor co.(Near Atul Kataria Chowk) Opp Air force station, Old Delhi, Gurgaon Road, Gurgaon, Haryana-121001.	……OP3

 

Date of Institution	:	03.06.2016
Judgment Reserved on	:	13.03.2023
Judgment Passed on	:	23.03.2023

 

QUORUM:

Sh. S.S. Malhotra	(President)
Ms. Rashmi Bansal	(Member)
Sh. Ravi Kumar	(Member)

 

Order By: Shri S.S. Malhotra (President)

 

 

 

JUDGEMENT

1. By this Order the Commission would dispose off the complaint of the Complainant with respect to deficiency in selling the defective car by OP2 as manufactured by OP1 and then not servicing the same by OP3.     
2. Brief facts as stated by the Complainant in the complaint are that the Complainant booked a car on 06.10.2011 by depositing Rs.50000/- with OP2 by getting attracted with the advertisement w.r.t. the vehicle XUV 500 and the cost of the Car was  Rs.13,90,000/- but in the middle of November, the OP2 told him that the rate had been increased by Rs.50,000/- upon which the Complainant demanded his booking amount back but ultimately the OP offered the Complainant Rs.25,000/- towards the enhancement in the cost and as such he deposited the amount on 25.03.2010 and delivery was given to him on 28.03.2010.  While driving the car same day the Complainant found that the steering of the vehicle was very hard and also noticed that vehicle had left pull because of improper alignment.  The clutch of the car was also hard and then he called the OP2 and explained all the defects but OP2 assured that these kind of problems are of routine nature in big SUVs and also advised the Complainant to continue to drive, and stated that this hardness would automatically go while he would be driving the car.  However, on 06.06.2012 the vehicle got stranded mid way at Malviya Nagar and no Customer Care help was provided and ultimately he had to take the Car at Shri Durga Automobiles, Moti Nagar which is the authorized service centre of OP1 and there a bill of Rs.7432/- was raised for unexplained and unknown fault and even Complainant was forced to make the payment of Rs.1000/- as towing charges.   It further stated that in June, 2012 the complainant observed that the vehicle was pulling left side and noticed that tyres are getting bald unevenly and he again called telephonically the relationship manager of OP2 but he did not get any satisfactory reply.  Similarly on 20.07.2012 at the time of first service of the vehicle the Complainant was asked to drive the car to the service station of Respondent No.3 and OP3 was told each and every problem occurring in the car from the day of delivery including of the tyres problem but Respondent No. 3 just to shun off his liability rotated the bald tyres from front tyres to rear tyres and even the problem with respect to hardness in the clutch and steering was not taken care of rather he was told that R&D Team is working at large scale to rectify this problem.  The problem continued and then the Complainant called the OP2 and OP3 after the first service.  He was always being told that since it is a bigger car, some problem do occur and would be taken care of in the second scheduled service.  The second service was due on 30.09.2012 and the vehicle was taken to OP3 and he was apprised the defects regarding the baldness of tyres, hard clutch, steering with play in left pull, new added suspension sound, poor breaking system and vibration in the car, and he also submitted that first three problems were there at the time of taking the delivery of the car but OP never took serious note of such defects and then without touching these problem, serviced the car but problem was not solved.  Again on 10.10.2012 i.e. after 10 days of second service Complainant found the brakes of the car were not working efficiently and head lamp was fused and other light bulbs were also getting fused frequently and he again took the car back to OP3 where certain parts were changed and even fused bulbs were also changed and not only the amount was demanded from him even for these routine service matters, the vehicle was also not properly handled.  On 07.02.2013 when it was third scheduled service, the Complainant brought all these facts again to the notice of OP3 thereby informing him that there is still left pull and clutch problem, there is problem in infotainment system and tyres were getting bald and despite that apart from routine and cosmetic manner car was serviced but no defect was cured and as such he registered his protest to the said repairs in the feedback form.  Thereafter vehicle was compelled to be taken to the OP3 on 02.05.2013, 05.05.2013, 21.05.2013 and 07.09.2013 but neither his problem was addressed nor any specific thing was done with the vehicle apart from oral communication that the problem would go automatically with the passage of time.  On 07.09.2013 he sent his vehicle to OP3 for running repairs where AC system was repaired in Cosmetic and fancifull manner but rest of the problem remained persistent and by just plying the car for 40000 Kms the tyres of the car have become completely bald and driving of the car have become risky and he spent Rs.40000/- for change of tyres and Complainant No.2 and 3 never paid any heed to their request, similar problems happened on 05.10.2013, 27.01.2014, 28.06.2014 and in nutshell the grievance of the Complainant is he had purchased a new car from the OP2 but it was time and again used to be sent to Service Centre for its regular problematic defects and he was not able to enjoy the comfort of a new car at any point of time.  The Car was again taken to service centre on 13.01.2015 for routine service then 11.06.2015 and 09.09.2015 but his problem was never solved.  It is further submitted that the respondents have shamed and maligned the profession and are cheating the public at large by posing and claiming themselves to be the leader in the field of automobiles but infact are not providing any specialized service as is being claimed, on account of which Complainant had suffered a lot and ultimately having no alternative filed the present complaint inter alia praying that OPs be held guilty for unfair trade practices and deficient in providing services to the respondent, further to pay Rs.4,50,000/- on account of mental agony and also to refund an amount of Rs.13,90,000/- as he had taken the loan for purchasing of the car and it is accordingly prayed that necessary order be passed. 
3. OPs were served and OP1 has filed its reply taking preliminary objection that the OP1 is the manufacturer of the said car and OP2 and OP3 are its authorised dealer who only provide after sales services to the customer and the relationship of OP1 on one side and OP2 & OP3 on the other side are principal to principal basis and answering OP cannot be held responsible for any deficiency as alleged against OP2 and OP3. 
4. It is further submitted that Complainant has failed to apply testing of the vehicle by any independent agency as contemplated under section 13(1)(C) of the Consumer Protection Act and as such there cannot be any deficiency on the part of OP1.  It is further submitted that until and unless  an independent agency ascertains w.r.t. the allegations made out in the vehicle, no negligence can be attributed to the OP1 and even otherwise in the entire complaint there is no allegation against OP1 w.r.t. any deficiency in service.  It is further submitted that even otherwise, there cannot be any manufacturing defect in the vehicle as on 04.04.2016 the vehicle has covered approximately a distance of 101242 kms. and even otherwise has crossed its warranty period well before filing of the present complaint which otherwise is barred by limitation as the Complainant claims the defect from the day 1 i.e. from the date of delivery which 28.03.2012 and he has filed the complaint on 03.06.2016 therefore the complaint is otherwise barred by limitation as far as OP1 is concerned.  It is further submitted that although OP2 and OP3 are its authorized dealers and they have attended the Complainant every time as per the facts stated by the Complainant but the complainant has also visited other authorized dealers of the OP1 and as per history of the vehicle by the concerned workshop the defect reported by the Complainant have been recorded in Job Card, True copy of the job card/repair card has been annexed as Annexure R2.  Not only this Complainant was treated as a special customer by the concerned dealer and all his grievances were duly attended. 
5. On merits the contents of preliminary objections are reiterated and detailed facts are mentioned that by 30.09.2012 the vehicle has travelled 11477 kms. and by 30.12.2012 it had travelled 17857 kms. by 07.02.2013 it had travelled 21197 kms. and as on 27.01.2014 it had travelled 47169 kms. and on 28.06.2014 it had travelled 59000+ kms and so on and so forth.  He submitted that there are minor wear and tear in every vehicle which were duly attended to by the authorized dealer of OP1 and as such neither there is any deficiency on the part of OP1 nor on the part of OP2 and OP3 and it is prayed that complaint of the Complainant be dismissed.    
6. OP2 has filed its reply taking preliminary objection that OP2 only sells the Car of the OP1 and his relation with OP1 is principal to principal basis, no allegation of deficiency has been leveled against OP2, the application is barred by time and no cause of action has been disclosed against OP2. 
7. On merit purchase of the car by Complainant by giving various amount is not disputed but it is denied that the delivery of vehicle was delayed as alleged.  As far as hardness of the clutch and steering system is concerned it is submitted that normally it is little hard at the time of delivery and later on, it softens and even if there is certain problem that would be taken care of at the time of first service and it was duly taken care off.  It is denied that problem of hardness of the gear and steering system or clutch had been continuing as alleged.  The fact that head lamps got fused and there were insufficient brakes are the normal wear and tear of the vehicle.  The baldness of the tyres is also stated to be normal as by that time vehicle has moved around 40000 kms and it has never been alleged that the vehicle is not road worthy therefore it is prayed that complaint of the Complainant be dismissed at least against OP2.
8. OP3 has filed its Written Statement taking preliminary objections that the present complaint is not maintainable before this Commission as no prima facie case is made against answering OP, complaint is barred by law.  Complainant has not filed any documents w.r.t. testing of the vehicle by an independent agency, there is no manufacturing defect in the vehicle at all as it has travelled 101242 kms. upto 04.04.2016 and basically his defence is inline of the written statement of OP1.  It is further stated that on every occasion when the vehicle was brought to OP3 centre, it was attended by the concerned officials and service of the said vehicle and running/repair was done to the satisfaction of the Complainant.  The true copy of the complete vehicle history is attached as Annexure R2 and every time Job Card/Repair Order was prepared as per standard practice and defects as stated by Complainant were recorded in the history of the vehicle and every time he has taken the vehicle back after getting recorded his satisfaction.  It is further submitted that some parts of the vehicle like Wiper, Blades, Break Pads and Clutch Plates are part of normal wear and tear and even do not fall within the ambit of warranty were replaced free of cost on the complaints lodged by Complainant and therefore there cannot be any deficiency on the part of OP3 rather the vehicle itself shows that the Complainant was duly attended by the concerned officials of OP3 from time to time.  On merits the facts are denied and generally the facts are para-materia of the Written Statement of OP1 are reiterated and it is prayed that complaint of the Complainant be dismissed.  The complainant has filed Rejoinder to the Written Statement of OPs and also filed its evidence. 
9. Complainant has filed replication to the Written Statement of all the OPs thereby denying the facts of the respective Written Statement and reaffirming and reiterating the contents of the complaint.  Complainant filed its own evidence.  OP3 has not filed any evidence.  All the parties have filed their respective written Arguments.  The Complainant also filed an application subsequently seeking the permission to file additional documents but that application was not allowed.   
10. OP1 filed evidence of Sh. A. Vishwanath, Vice President of OP1.  Complainant filed its own evidence.  OP2 filed evidence of Rajesh Mehrotra.     
11. The Commission has perused the record and heard the arguments. 
12. Although the Complainant started his complaint by stating that there was a delay in delivering the vehicle but there is no relief sought on this ground in the prayer clause.  Even otherwise it is admitted case of the Complainant that he paid the amount to the OP2 on 25.03.2011 and vehicle was delivered to him on 28.03.2011.  Therefore, otherwise also there is no delay in delivering the vehicle.  In nutshell the complaint of the Complainant w.r.t. deficiency in the ‘after sale service’ against OP1 and OP3. OP1 being the manufacturer of the vehicle and OP3 being the service provider who did not provide the proper services.  OP2 has sold the car and as per the complaint of the Complainant there is no specific allegation against OP2 w.r.t. the deficiency committed by him in selling the car except the contention that the delivery was delayed but that fact has already been taken care of here in above.  Therefore apparently there is no deficiency on the part of OP2. 
13. Now coming to the contention of OP1 and OP3 which is almost on similar lines i.e. there is no opinion of the expert, the complaint is barred by time, the services were given by OP3 as and when Complainant visited the service centre of OP3 and car has travelled around 100000 Kms in the four years at different stages.  As far as limitation part is concerned the Complainant has been continuously making the complaint w.r.t. the defect in the vehicle and its started from the first month of taking the delivery and as per the Complainant he was being told that it is a big vehicle and after some time the such problem would automatically go away once the engine starts functioning properly after particular kilometres. As far as limitation is concerned it is a continuous cause of action when the vehicle of the Complainant was not getting rectified as per defects being suffered by the vehicle and therefore this contention of OP1 and OP3 is not well found.  No doubt the contention of OP1 and OP3 to the extent that there is no expert opinion so as to establish any manufacturing defect in the vehicle is concerned the same contention is well found.  Had there been a mechanical inspection of the vehicle through some independent agency or expert, exact defect in the vehicle could have been worked out, be it is w.r.t. hardness of the clutch, hardness of the gear, alignment of the tyres, giving sound at different speeds etc., but since there is no opinion of the expert, this contention does not find favour with the Complainant.  The OP3 has filed 27 sheet of car history i.e. the job work of the Complainant to show that as and when the Complainant had visited the service centre of OP3, he was nicely attended and what ever work or defect he had informed to be done in the vehicle was done and only those amount which were chargeable, and which were out of warranty were charged and he was being treated as a special customer and there was no deficiency on the part of OP3.  This contention of OP3 may be well found but it has not been satisfactorily explained as to why Complainant would visit almost 27 times within 3 years i.e. almost once in every 45 days approx.   There may not be any major fault w.r.t. brakes, head lamps/bulbs, or other consumable and the same might be normal wear and tear, but why the clutch and steering is not been smoothened, even after running 20000 kms or even 100000 Kms has not been explained.  As per the job card and the car history of the vehicle, there are around 27 visits of the Complainant to the service centre of OP3.  No doubt it may not be termed as manufacturing defect but why a person would visit every 45 days on average basis, to the service centre of OP3 itself amounts to deficiency in service.  A person buys a new car so that he should be free from any sort of tension while driving the vehicle either within the city or outside and if he had been under continuous pressure always as to when this vehicle would stop mid way there by stranding the Complainant or his family members amounts to continuous cause of deficiency by the OPs and it has not been explained as to why the difficulties being told by the Complainant were not taken care of and were not done away with.  In Jose Philip Mampillil versus Premier Automobiles Ltd. and Anr., the Hon’ble Supreme Court has held that ‘there is no doubt that the appellant had to suffer mental agony in taking delivery of a defective car after having paid for a brand new car and in taking the car again and again to the dealer for repair, this mental agony and torture stands established’. 
14. In the present case these 27 visits of the Complainant are self explanatory that the car had definitely and certain issues which although could not be proved on account of no expert opinion but the fact that defects were there, stands established. 
15. The Commission therefore directs that OP1 and OP3 both are jointly and severally liable in not rectifying the problem being faced by the Complainant at regular intervals. 
16. The Commission thereby grants Rs.30000/- to the Complainant payable by OP1 and OP3 jointly and severally including the legal expenses but since there is no documentary evidence on record w.r.t. pecuniary loss no other relief is granted.  The prayer w.r.t. return of Rs.1390000/- cannot be granted in view of the fact that the vehicle is with the Complainant and he has almost driven more than one lakh kilometres in four years. 

This order be complied with within 30 days from the date of receipt of the order failing which the OP would pay the interest @ 9% p.a. from the date of this Order. 

Copy of the order be supplied / sent to the parties free of cost as per rules.

File be consigned to Record Room

Announced on 23.03.2023.