Punjab

StateCommission

FA/931/2013

Mahindra and Mahindra Limited & Anr. - Complainant(s)

Versus

Maninderpal Singh & Anr. - Opp.Party(s)

Vaibhav Narang & Subhash Chand

26 Apr 2016

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

                                     

                   First Appeal No.931 of 2013

 

                                                Date of Institution: 29.08.2013

                                                Date of Decision:  26.04.2016

 

1.      Mahindra & Mahindra, Mahindra India & World Headquarters,          Mahindra Towers, GM Bhosle Marge, Mumbai 400018, India          through its Managing Director/Authorized Representative.

 

2.      Mahindra & Mahindra, Automotive Division, Automotive Sector,        Mahindra Towers 3rd Floor, Akruli Road, Kandvali (East)       Mumbai 400101, India through its Managing Director/Authorized Representative.

3.      Mahindra & Mahindra Limited, Gateway Building, Apollo          Bunder, Mumbai 400001, India (Registered Office) through its          Managing Director/Authorized Representative.

 

                                                Appellants/Opposite parties no.1 to 3

                             Versus

 

Maninder Pal Singh (deceased) through LRs:

 

 

1.      Gurdev Singh Chauhan s/o Late Sh. Gurdial Singh, Father.

2.      Dalbir Kaur w/o Sh. Gurdev Singh Chauhan, Mother.

3.      Samita Chauhan widow of Maninderpal Singh.

4.      Pranjal Deep Kaur minor d/o Maninderpal Singh through the   natural guardian Mrs. Samita Chauhan

 

          All residents of H.No.4545 (MIG Super), Sector 70, SAS          Nagar, District Mohali, Punjab.

 

                                   Respondents no.1 to 4/Complainants no.1 to 4.

 

5.      Goyal Motors Agency, Plot No.B-55, Phase VI, Industrial Area,         Opposite Verka Plant, Mohali through its Managing      Director/Authorized Representative.

 

 

                                                   Respondent no.5/Opposite party no.4

         

First Appeal against order dated 27.06.2013 passed by the District Consumer Disputes Redressal Forum,  Mohali.

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

            Shri.H.S.Guram, Member

Present:-

          For the appellant                : Sh.Vaibhav Narang, Advocate       

          For respondent nos.1to 4  : Sh.Satnampreet Singh, Advocate

          For respondent no.5        : None

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

         J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          Aggrieved by order dated 27.06.2013 of District Consumer Disputes Redressal Forum Mohali (in short, the District Forum), the appellants of this appeal (the opposite parties no.1 to 3 in the complaint) have directed this appeal against the respondents no.1 to 4 of this appeal (the complainants in the complaint) and respondent no.5 (the opposite party no.4 in the complaint). The District Forum, accepted the complaint of the complainant by directing the OPs to pay compensation of Rs.1,50,000/- and litigation expenses of Rs.10,000/- to respondent no.1/Maninder Pal Singh of this appeal and discharging the liability of respondent no.5/Goyal Motors Agency of this appeal. The instant appeal has been preferred against the same by the opposite parties no.1 and 2 now appellants in this appeal.

2.      The complainant has filed the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OPs on the averments that complainant purchased Mahindra XUV 500 from M/s Goyal Agency Mohali on 24th May 2012 for the consideration amount of Rs.13,23,106/- partly, which was financed by Tata Capital Financial Services Ltd,  whereas complainant paid down payment of Rs.2,22,796/- in this regard. The details of the vehicle purchased by the complainant are mentioned below :-

i) Class of vehicle  :LMV

ii) Maker's Name : Mahindra & Mahindra Ltd, Jeep.

iii) Model Name : Mahindra XUV 500 FWD W8 JA PHWT.

iv) Serial Number : C6E84769

v) Engine No.HJC4D26484

vi) Chassis No.C6E84769

vii) Horse Power of Cubic Capacity : 140/2179 CC

viii) Fuel Used : Diesel E

ix) No. of Cylinders: 4 (Four)

x) Month, year of manufacture : May, 2012

xi) Seating capacity (Incl Driver) : 6+1

xii) Unladen weight : 1865

xiii) Delivery invoice no.IVI3A000409-12 dated 24/05.2012

xiv) Colour of body: Pearlwht

xv) Type of body : Mono Coque

xvi) Temp. Certificate No.PB 65 PT 2518

xvii) Insurance policy no.112200311200

The complainant watched the demonstration/orientation rendered by the representative of the agency explaining the features of the vehicles and its usage. As per sale certificate Form No.21, the complainant claimed the seating capacity of 7 people including driver. The complainant and his family members planned to visit Golden Temple Amritsar for taking the vehicle to the holy place to seek spiritual blessings. The seating plan of the vehicle is divided into three different segments. First part - the front row (driver seat), second row immediately after the first row, the last row i.e. immediately after the second row. In order to occupy the rear seats (in 3rd row) of the vehicle, the seats of second row needs to be folded, which are supposed to be folded quite easily. When the seats of second row had failed to be folded even after applying all the efforts, even as per the mechanism being provided in the  'Quick Start Guide & Owner's Manual'. The complainant contacted Customer Care telephonically for resolving the matter. It was intimated that said problem could be resolved by examining the vehicle in agency with prior appointment, which was scheduled after two days. This caused great inconvenience to complainant for visiting holy place. The complainant discovered a serious engine fault in the vehicle after running 2200 Km. The complainant went to see movie show by parking the vehicle in second level basement. When the complainant was about to leave for home after the movie show, on ignition; the 'Check Engine' indicator was glowing and the vehicle was unable to start and complainant faced great inconvenience and had hired taxi at 1.00 am to bring him at his house. Second incident occurred, when complainant was to provide professional services to his clients at Rajpura, showing the same problem "Check Engine Indicator" was glowing again and the vehicle was unable to start.  Similar incident was repeated many a time. The complainant alleged some manufacturing fault in the vehicle, as some electrical problem was observed in the vehicle such as, false door open sign appears sometimes right indicator does not turn off automatically when turned to the right. The entire wire of the vehicle was changed. Touch screen of the sound system started giving problem and started displaying 'Mechanical Error'. Representative of OP no.4 denied rectifying the discrepancy. The windshield wipers are not working properly i.e. the mechanism and timing of movement of wipers and flow of water is to the effect that the wipers began to run early than the flow of water leading to unwanted scratches on windshield. The matter has been reported to representative of OP no.4, but he failed to rectify it. The robust braking mechanism of the vehicle is malfunctioning. OP asked for grant of 15 days for resolving the problem. More than three months have been expired but problem has not yet been sorted out. While driving the vehicle, an accessory from somewhere likely to be part of air filter from somewhere detached and rolled down under the brakes and clutch of the vehicle, which could lead to accident of the vehicle. OP No.4 failed to remove the above shortcomings in the vehicle of the complainant. The complainant has, thus, filed complaint against OPs praying that either vehicle be replaced with new one or price of the vehicle be refunded, besides Rs.5,50,000/- as compensation for mental harassment and Rs.5,000/- as travelling cost for visiting the workshop of OP no.4 and Rs.22,000/- as costs of litigation.

3.      Upon notice, OPs no.1 to 3 filed written reply and contested the complaint of the complainant. It was averred in preliminary objections that complainant has no cause of action to file the complaint. Any manufacturing defect in the vehicle or deficiency in service was denied by OPs. No expert opinion has been produced on record by the complainant to prove any manufacturing defect in the vehicle. The complaint is alleged to be false and frivolous. The District Forum has no jurisdiction to try and entertain the complaint. On merits, it was contested by OPs no.1 to 3 that they have played no role in the sales of the vehicle. There is no privity of contract qua the customers and the OPs. The company is not in any way responsible for any act, conduct, commission or omission or any act by the dealer. The vehicle has never been welded rather what was required is little adjustment of the seat knob, once it was adjusted and thereafter it started functioning smoothly. Incidents as pleaded in the complaint were vehemently denied by OPs by alleging that complaint is frivolous. There was engine check light issue in the instrument cluster, when checked; it was found that this was due to some electronic wiring problem, which was rectified by replacing the wiring harness only. When the minor repairable defect was reported at the dealership regarding the windshield wiper, the workshop Manager immediately replaced the same under warranty and handed over the vehicle on the same day. There was no such issue regarding braking of the vehicle. The complainant falsely reported the brake noise, when the vehicle and braking system of the vehicle has been inspected, it was found right. History of the vehicle makes it clear that there was no such problem of vibration has ever reported in the vehicle. It was further pleaded that the problem of electronic system and LHS pulling was reported mainly and that has been rectified to the satisfaction of the complainant. Other averments of the complainant have been denied by OPs and they prayed for dismissal of the complaint.

4.      OP no.4 filed its separate written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has not approached this Forum with clean hands. The complaint is bad for mis joinder of the parties, as OP no.4 is the authorized dealer of OPs no.1 to 3. OPs no.1 to 3 are manufacturer of the vehicle. It was further pleaded that in case of manufacturing defect in the vehicle, only manufacturer is responsible and not the dealer. The complaint is alleged to be frivolous entailing dismissal under Section 26 of the Consumer Protection Act, 1986. It was averred in the written reply that Engineer of OP no.4 examined the vehicle carefully and rectified the problem noted by the complainant and handed over the vehicle to the complainant well within time without any delay. The complaint is alleged to be filed by the complainant in order to extract money only. OP no.4 prayed for dismissal of the complaint.

5.      The complainant tendered in evidence, his affidavit Ex.CW-1/1, supplementary affidavit of the complainant Ex.CW-1/2 along with copies of documents Ex.C-1 to Ex.C-15. As against it; OPs tendered in evidence affidavit of Mahendra Partap Authorized Signatory Mahindra & Mahindra Ltd Ex.RW-1/1, affidavit of Deepak Kapoor General Manager Service Ex.RW-4/1 along with copies of documents Ex.R-1 to Ex.R-4. On conclusion of evidence and arguments, the District Forum Mohali accepted the complaint of the complainant by virtue of order dated 27.06.2013. Dissatisfied with the order of the District Forum Mohali dated 27.06.2013, the OPs no.1 and 2 the present appellants, carried this appeal against the same.

6.      We have heard learned counsel for the parties and have also examined the evidence on the record in this case.

7.      The complainant tendered in evidence affidavit Ex.CW-1/1 on the record and supplement affidavits Ex.CW-1/2 and Ex.CW-1/3. The complainant stated in his affidavit on oath, his version as pleaded in the complaint. The complaint has alleged malfunctioning of the vehicle on the above noted dates, as pleaded in the complaint. Ex.C-1 is retail invoice issued in favour of the complainant. The vehicle was purchased for Rs.13,23,186.60. Ex.C-2 is receipt no.450 dated 24.05.2012 issued by OP No.4/Goyal Motors P Ltd to the effect that amount of Rs.12,22,796/- was received from complainant on 24.05.2012 with regard to the vehicle. Ex.C-3 is sale certificate of the vehicle addressed to the Registering Authority Mohali. The particulars of the vehicle are recorded in it, which has been purchased by the complainant. Ex.C-4 is email sent by the complainant pointing out defects in the vehicle. It is stated in this document Ex.C-4 that after running 2300 Kms, the instrument cluster started showing engine malfunction indication and other indications like uphill control indicators etc, while the vehicle was moving on plain surface. Same problem again appeared for running of vehicle after a few kilometers. Same problem again occurred after 3728 Km run by vehicle. It is recorded in it that these problem were frequently occurring with starting problem in the vehicle. Similarly, it was pointed out that complainant was not satisfied with regard to break noise and check engine problem resulting in breakdown of vehicle. Rear seat was unable to fold, denting was done by agency. The complainant was not satisfied even after third visit for the same purpose. Acquiring of carbon on alloys, alignment problem (both left and right), faulty wipers - run before start of flow of water resulting in scratches on glasses, gathering of fog in headlamps and tough screen hanged frequently. On the basis of above-said problems, the complainant sent e-mail Ex.C-4 to OPs. It was submitted before us that above-referred problems cumulatively proved manufacturing defect in the engine of the vehicle.  Ex.C-5 is e-mail document from customer. Ex.C-6 is newspaper-clipping report. Ex.C-8 is features and controls.  Ex.C-9 is history of the vehicle, It has proved that vide repair order no.RO13A010579 dated 21.11.2012, demanded repair :-all general check up, engine care and service lubrication, vide repair order no. RO13A005664 dated 03.08.2012, demanded repair :- check engine light come than starting trouble, mechanical error come in stereo, pulling LHS and STG Hard, Stereo remote N/W, LHS RVM Noise, Fogging coming in side head light, check FRT wiper water motor, Engine oil and oil filter replace, brake pad clean, some time roof light N/W with door open, BT sound clearly not good (air type) and LHS middle seat folder handle Replace, vide repair order no.R013A004439 dated 06.07.2012, demanded repair :- vehicle was not properly started, DVD player is not working properly, check FRT wiper water motor etc, vide repair order no..RO13A003426 dated 13.06.2012, demanded repair : REV CAN Function not shown, pulling LHS of vehicle not working, sound problem, software hanging problem, LHS middle seat not open, break noise and coolant leakage. The above said problems were voiced about this vehicle by the complainant, when vehicle was taken to the service station/OP no.4. Ex.C-12 is e-mail regarding replacement of XUV 500 vehicle.

8.      OPs  relied upon affidavit of Deepak Kapoor General Manger  of OP No.4. He stated in this affidavit that similar complaint filed by one Harinder Pal Singh has been dismissed with regard to OP no.4. OP no.4 provided best possible services to the complainant and complete service record of the complainant shows that there was no deficiency in service. Ex.R-1 is vehicle history of the vehicle; it is duplicate document of Ex.C-9. Copy of satisfaction note is Ex.R-4/2. Ex.R-3 is history of the vehicle maintained by OP no.4 on the record.

9.      We have critically examined the above-referred evidence on the record and also gone through the record of the case. The complainant has alleged manufacturing defects in the vehicle. The complainant has to establish manufacturing defect in the vehicle. There should be cogent evidence on the record to prove whether manufacturing defect existed in the vehicle or not. There is no expert evidence on the record adduced by the complainant to prove any manufacturing defect in the vehicle. The submission of OPs is that whatever defects were pointed out by the complainant were set right to his satisfaction and he signed the satisfaction note Ex.R-2 on the record. OPs no.1 to 3 categorically denied any manufacturing defect in the vehicle. Undoubtedly, some problem like as electric wire problem existed in the vehicle, when it was brought to service station of OP no.4 and it was rectified by OPs. The counsel for OPs referred to Ex.R-2 on the record in this respect, which is signed by the customer. OPs mainly relied upon satisfaction note regarding removal of above-referred defects on the basis of Ex.R-2 satisfaction note. The above-referred defects, as noticed were existing in the engine, which necessitated taking the vehicle to service station maintained by OP no.4. The history of the vehicle Ex.C-9 has been referred to by us in this regard. The manufacturer is liable for the defects in the vehicle. OP no.4 rectified the defects pointed out by the complainant in the vehicle because it was under warranty. OPs no.1 to 3 denied any manufacturing defects in the vehicle. If, vehicle remained with OP no.4 on some occasion, we do not think it justified the replacement of the vehicle on this mere ground. The replacement of the defective parts and replacement of wiring is in fact the responsibility of the manufacturers OPs no.1 to 3 and not of dealer. On number of occasions i.e. on 18.06.2012, 06.07.2012, 03.08.2012, 21.11.2012 and 26.11.2012, the vehicle remained in the care and custody of the OPs for necessary repair/removal of defects as pointed out by the complainant. Satisfaction note dated 21.11.2012 to 26.11.2012 and 08.08.2012 shows PSF status: open or closed. PSF Status has shown as open that means the vehicle still needed follow up past service and the inference is that OPs have not been able to rectify the shortcomings pointed out therein. OPs no.1 to 3 are the manufacturers and for the above-referred shortcomings, complainant had to face mental harassment for bringing the vehicle at service station of OP no.4. The District Forum, thus, rightly directed to pay compensation of Rs.1,50,000/- for causing mental harassment to complainant, besides litigation cost of Rs.10,000/-. We agree with the findings of the District Forum that dealer is not liable and liability is exclusively of OPs no.1 to 3, being manufacturer for this compensation amount due to harassment, which has been caused to complainant on account of above-referred problems, which were set right by bringing the vehicle again and again by OP no.4. OPs no.1 to 3 have not denied this fact specifically regarding some electronic wiring problem, which was rectified by replacing the wire harness only. We have examined law laid down by National Commission in "M/s Hyundai Motors India Ltd… Vs.. M/s Affiliated East West Press (P) Ltd" in Revision Petition No.958 of 2007 decided on 29th November 2007. The Apex Court has held in this authority that it is the duty of the reputed/established manufacturer to remove such defects in the vehicle. We find that in the absence of any expert evidence on the record, it cannot be said that there were manufacturing defects in the vehicle. OPs have categorically denied any manufacturing defect in the vehicle. Undoubtedly, complainant had to face mental harassment for the above-referred problem, which appeared in new vehicle purchased by him. We, thus, find that the District Forum rightly awarded the compensation amount of Rs.1,50,000/- to complainant for mental harassment, besides costs of litigation of Rs.10,000/- by fixing liability of OPs no.1 to 3. We are in agreement with the findings of the District Forum on the record. We find that order of the District Forum is sustainable in the eyes of law and is ordered to be affirmed in this appeal.

10.    As a result of our above discussion, we, thus, affirm the order of the District Forum Mohali dated 27.06.2013 under challenge in this case. Resultantly, the appeal filed by the appellants/opposite parties is ordered to be dismissed.

11.    The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal and also deposited Rs.25,000/- in compliance of the order of this Commission dated 12.09.2013. Both these amounts with interest, if any, accrued thereon, be refunded by the registry to the complainants in equal shares by way of crossed cheque/demand draft after the expiry of 45 days. Remaining amount shall also be paid to complainants by the appellants as per order of District Forum within 45 days from receipt of the copy of this order

12.    Arguments in this appeal were heard on 21.04.2016 and the order was reserved. Copies of the order be communicated to the parties as per rules.

13.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                                           (H.S GURAM)

                                                                              MEMBER

 

April  26, 2016                                                            

(ravi)