By. Sri. A.S. Subhagan, Member:
This is a complaint preferred under section 12 of the Consumer Protection Act 1986.
2. Facts of the complaint in brief:-
The Complainant is an agriculturist and is also running a small business of distribution of value added spice/farm/agricultural products etc to various sales outlets. The Complainant is the sole bread winner of his family consisting of his aged mother suffering from multiple illness, requires constant medical attention, and his son aged 12 years, a mentally retarded person, is currently attending a special school. Besides, the son is required to be taken to Kozhikode Medical College Neurology Department and also Central Government administered Institute of Speech and Hearing at Mysore at constant intervals for treatment, training and continuing therapeutic intervention.
3. While so, on 29.04.2015 the complainant purchased a Mahindra & Mahindra made vehicle known under the model name MAXXIMO MINI VAN VX BS3 WD from Mahindra & Mahindra Company Sales outlet at Kozhikode, Feroke Chungam. The Complainant had placed his booking order at Mahindra & Mahindra Company dealership Centre at Kakkavayal and had taken delivery of the same also from there. The Complainant had paid invoice price of Rs.4,15,581/- without including cost of insurance, tax and other dues etc. On 19.10.2015, the vehicle was registered bearing registration No.KL 72 A 139. Thereafter, the vehicle was used to be taken for routine company and other services at the Company Service Centre at Eram Motors Private Limited, Manathavady which is an authorized Service Centre for Mahindra & Mahindra in Wayanad.
4. The Complainant had purchased the vehicle mainly for his own use for earning livelihood. The Complainant had purchased the vehicle so that he may utilize his own vehicle for commuting his disabled son to school and home as well as for carrying his son to Kozhikode Medical College and to the Institute of Speech and Hearing at Mysore. The vehicle was also intended to be purchased for taking orders for supply and distribution of spice/agricultural/farm products etc. The Complainant is the RC owner of the vehicle and also having a valid driving license.
5. Soon after the purchase, the vehicle began to develop symptoms of manufacturing defects in the form of radiator leakage and functional failures. Whenever the vehicle was taken to the service centre for repairs, the technicians kept on saying that all the complaints are minor in nature and would be cured after a few services. Believing the promise of the service technicians, the Complainant used the vehicle, in spite of the nagging complaints. Thus on 24.05.2017, the Complainant again took the vehicle to Eram Motors Private Limited, Manantahvady for service and specifically brought their attention to the radiator leakage and demanded the same to be rectified. After the service, the technicians claimed that the leakage would not re-appear. The complainant had taken the attention of the technicians again on the same issue on 25/08/2017 at Eram Motors Private Limited, Feroke Chungam, while undertaking yet another service. One day in the first week of October 2017, while the complainant was driving the van along Mysore - Handpost route, it suddenly developed radiator joint leaks of an excessive magnitude and the engine pistons got struck .Thus the complainant was forced to stop his trip midway through and suffered financial loss to the tune of Rs.50,000/ -. Thereafter he had to tow the vehicle to Mananthavady by hiring commercial towing services by paying hefty charges/cost. The complainant contacted the Company and as per their direction took the vehicle to the authorized service center at Eram Motors Private Limited at Mananthavady. Eventhough he was given company service the complainant was forced to remit Rs.40,454/- on 24/10/2017 as service charge even as he was having valid warranty and valid full cover Mahindra & Mahindra company insurance for the vehicle.
6. Thereafter the complainant was able to use the vehicle for a few months without much problem. However the vehicle yet again began to show persistent complaints causing the complainant to suffer multiple damages and losses due to inordinate delays, stoppages, and breaks of schedules and cancellation of business orders. The business and income generating activities of the complainant suffered heavily. The complainant could not ensure proper attendance of his ailing son at his school. Likewise, due to persistent complaints and functional failures of the vehicle, the complainant also could not take his child on appointed days, times and schedules in time and regularly to the hospitals at Calicut and Mysore. The complainant also could not amply provide timely , and sufficient care, protection and comfort to his parents and children.
7. Thereafter the complainant took his vehicle many a times to the service centre at Eram Motors Pvt Ltd Mananthavady. However the technicians at the centre could not ensure proper service to the vehicle so as to make it roadworthy and usable. As repairs became regular the condition of the vehicle deteriorated day by day without any fault of the complainant, In the meantime thereafter the vehicle began to display oil leakage and no efforts on the side of the service personnel could stop the same. When the complainant had shown the vehicle before Mahindra & Mahindra service centre Mysore, the technicians had opined that the vehicle could be having manufacturing defect and hence the persistent oil leakage. The complainant had also taken the vehicle to Eram Motors Private Limited, Mananthavady on 14/03/2018 again pointing out the very same complaints. The service center technicians at Eram Motors Private Limited Mananthavady failed to ensure trouble free and smooth functioning of the vehicle by resolving the excessive oil leakage complaint and the radiator leakage complaints. Likewise, the technicians of the company yet again failed to provide the service due to the customer and render the vehicle roadworthy. Thus the vehicle became unusable for any of the purpose for which the vehicle was purchased. Due to the unavailability of the vehicle, the complainant had to hire other vehicles on rental basis to carry on his business commitments that have caused him severe financial liabilities to the tune of Rs.2 lakhs. Eventhough the complainant regularly kept in touch with the company and service people, all of them failed to ensure the timely and effective remedial measures to restore the vehicle to roadworthy condition. Eventhough the official and responsible technicians admitted that the vehicle suffered serious manufacturing defects off- the- record, none of them ventured to offer prompt and adequate permanent resolution of the problems.
8. The vehicle was insured at Mahindra & Mahindra insurance department having tie up with the insurer National Insurance Company Ltd Calicut. Eventhough the vehicle had valid full cover insurance the insurance company without any valid reason failed to make re-imbursement of the amounts paid for service and repairs at the company service centre at Mananthavady. Hence the insurance company has also failed to perform their obligations to the Complainant and is liable to compensate him for deficiency of service.
9. Having no other option before him, in order to resolve the complaints of the vehicle, the complainant finally forced to stop using the vehicle at all and the same is remaining idle. Finally in order to provide treatment to his disabled son and in order to provide him transportation facilities and in order to provide care and protection to his family, the complainant had to purchase a new vehicle. The complainant was also forced to purchase the said new vehicle in order to attend to the needs of his business commitments and in order to earn his livelihood as well. In the process of renewal of the vehicle the complainant had to bear a loss of an amount of Rs.1,25,000/-.
10. The complainant believes that the vehicle supplied by the company had some serious manufacturing defects rendering the same unusable for the purposes for which the complainant purchased the same. The complainant also believes that the Opposite Parties had failed to provide service to the vehicle as per their warranty contract. The complainant believes that the Opposite Parties had failed to perform their obligations and failed to provide repairs to the vehicle. Therefore the above conduct of the Opposite Parties amount to serious deficiency of service actionable as per law.
11. Hence, the Complainant has approached the Commission with the following prayers.
(1). To direct the Opposite Parties to pay Rs.2,00,000/- as compensation for the deficiency of service, sufferings, financial loss, hardship and injury sustained to the Complainant, his son and family members
(2). To Order the Opposite Parties for repayment of Rs.2,00,000/-, being cost of repairs undertaken to the vehicle
(3). To order National Insurance Company Calicut to pay Rs.40,453/- by way of reimbursement of repairs/service charge paid
(4). To grant such other reliefs which the Complainant may pray from time to time as the Commission may deem fit to award in the interest of justice.
12. Commission registered the complaint and notices were served to all the Opposite Parties for appearance. All the Opposite Parties entered appearance and versions were filed. Consolidated version was filed for Opposite Party No.1 to Opposite Party No.3 and versions were filed by Opposite Party No.4 and Opposite Party No.5 independently. Affidavits was filed by the Complainant, he was examined as PW1 and documents A1 to A9 were marked from his side. Consolidated Affidavit was filed for the Opposite Parties No.1 to 3. The Manager of Eram Motors Private Limited Mananthavady was examined as OPW1 for and on behalf of Opposite Party No.1 to Opposite Party No.3. Opposite Party No.4 and Opposite Party No.5 had no oral evidence.
13. Brief contents of the version filed for and on behalf of Opposite Party No.1 to Opposite Party No.3:-
As per the pleading itself, the Complainant has purchased the vehicle on 29.09.2015. The complaint alleging defect of the vehicle is filed in the end of November 2018. The Complainant has filed the complaint after plying the vehicle for a distance of 68700 kilometres. During these periods the Opposite Parties have attended the vehicle on 11 occasions and had repaired the vehicle to the satisfaction of the Complainant. On no occasion did the complainant lodge or report any deficiency in service of these Opposite Parties. The vehicle was to be used as a private vehicle as described in the RC but illegally the Complainant has used the vehicle for commercial purpose. The Complainant on no occasion had complained about the services rendered by the Opposite Parties. The Complainant has used the vehicle for a substantial period of time and the vehicle was not reported radiator leakage or functional failures or any other service defect before or after the expiry of warranty period. The vehicle was reported for running repair and service on 29.05.2017 to the Opposite Party No.2. There was no complaint with regard to radiator and no serious complaints were raised. Repairs with regard to wear and tear or running repairs were done for the vehicle and oil change was done periodically. The allegation that the vehicle was repaired with radiator leakage on 25.08.2017 from Opposite Party No.3 is false. The vehicle was reported to Opposite Party No.3 on 22.08.2017 and there was no issue with regard to radiator leakage. Charges for repairs are to be paid by the Complainant and the charges recovered were reasonable and no amount was charged for repairs which were covered by warranty. Whenever the vehicle was reported for repair the technicians of these Opposite Parties had attended to it diligently. These Opposite Parties are unaware of the allegations that service personnels of Mahindra & Mahindra Service Centre, Mysore gave opinion regarding manufacturing defect. The Technicians of these Opposite Parties had never opined about the manufacturing defect of the vehicle.
14. There has been no deficiency in service from the Opposite Parties No.1 to 3. There has been no cause of action for filing this complaint. Hence, the Complainant is not entitled to get any relief as prayed for and the complaint is liable to be dismissed with cost of these Opposite Parties.
15. Brief contents of the version filed by the Opposite Party No.4:-
The transaction between this Opposite Party and Opposite Party No.1 are on Principal/to Principal basis. Opposite Party No.1 places bulk orders for vehicles and this Opposite Party supplies vehicles in large numbers. This Opposite Party will not know about the ultimate buyer of the vehicle at the time of purchase. This Opposite Party never had any transaction with the Complainant and there is no priviity of contract between the Complainant and this Opposite Party.
16. Opposite Party No.4 also has reiterated almost all the allegations of Opposite Party No.1 to 3:-
Opposite Party No.4 also submitted that every Mahindra vehicle is sold with specific warranty. In case of Mahindra MAXIMO also there is a standard warranty. The standard warranty for Mahindra MAXIMO vehicles is for 2 years or 40000 KMs whichever occurs earlier from the date of delivery of the vehicle to the original purchaser. The Warranty obligations are specified in the warranty policy. The terms and conditions of warranty and the extent of warranty is also specified in the Standard warranty. The standard Warranty policy is in the owner's Manual issued to the purchaser of every vehicle. The complainant is fully aware of the warranty conditions. The complaint has been filed suppressing the terms and conditions of warranty. The Complainant should be called upon to produce the warranty policy issued to the particular vehicle. There is no obligation for Mahindra & Mahindra Limited, other than what is specified in the Standard warranty. The complainant is estopped from seeking any reliefs in violation of the agreed terms of Warranty. Also the complainant had not claimed insurance. The other allegations made in the paragraph are false and hence denied.
17. There is no sustainable cause of action for the complaint. The complainant is not entitled for any relief sought in the complaint. Hence Opposite Party No.4 prays to dismiss the complaint with compensatory cost.
18. Brief contents of the version filed by Opposite Party No.5:-
The vehicle was purchased on 29.09.2015 and the complaint is filed at the fag end of November 2018. Manufacturing defect or functional complaint is not covered under the policy of insurance. The policy issued to the Complainant covers only damages caused to the vehicle due to any accidental damages. Opposite Party No.5 is an unnecessary party to the proceedings and therefore the complaint is bad for misjoinder of parties. There is no deficiency of service on the part of Opposite Party No.5. The vehicle was insured under “Private Car Package Policy”. The liability of the insurance company, if any, is limited to the terms and conditions of the policy provisions and exceptions. No intimation is given either by the Complainant or by the Opposite Parties No.1 to 4 to Opposite Party No.5 at any point of time regarding the claim for damages or manufacturing defect. All other allegations against Opposite Party No.5 are denied by Opposite Party No.5. Hence Opposite Party No.5 prays to dismiss the complaint with compensatory cost of Opposite Party No.5.
19. On the basis of the complaint, versions, affidavits, documents filed and marked and the oral evidence adduced by the parties, the Commission raised the following points for consideration:-
1. Whether there has been any deficiency in service or unfair trade practice from the part of Opposite Parties?
2. if so, whether the Complainant has the right to get compensation?.
3. Cost and compensatory cost.
20. Point No.1:- It is the admitted fact that on 29.09.2015 Complainant had purchased a vehicle under the model name MAXXIMO MINI VAN VX BS3 WD from the Mahindra & Mahindra Company sales outlet in Kozhikode after placing a booking order at Mahindra & Mahindra dealership centre at Kakkavayal run by Eram Motors Private Limited, Kakkavayal. It was registered with Registration No. KL 72 A 139 on 19.10.2015. The vehicle was also insured with Opposite Party No.5. The main allegation of the Complainant is that the vehicle had radiator leakage which was due to manufacturing defect which could not be rectified by the Opposite Party No.1 to 4 in spite of repeated demand and services. The Complainant’s contention is denied by Opposite Party No.1 to 4. The Opposite Parties content that the vehicle had no manufacturing defect. The services done by the Opposite Parties were regular services of the vehicle at periodical intervals. At no point of time the Complainant had intimated the Opposite Parties about manufacturing defect. Though the vehicle was purchased by the Complainant on 29.09.2015, the complaint was filed at the end of November 2018, that is, after running the vehicle for more than three years and after plying the vehicle for 68700 kilometres.
21. On careful scrutiny and analysis of the facts of the case, evidence adduced and documents marked, the Commission finds that though the Complainant has alleged manufacturing defects to the vehicle, the Complainant has not succeeded in proving the manufacturing defect with substantiating evidences. In para 8 of the complaint the Complainant contents that ‘’when the Complainant had shown the vehicle before Mahindra & Mahindra service centre, Mysore, the technicians had opined that the vehicle could be having manufacturing defect and hence the persistent oil leakage”. This contention of the Complainant has not been proved by corroborating evidence. The Complainant has neither produced any documents nor he has examined the witness to prove this contention. The Complainant has not even tried to take initiative to get an “Expert opinion” so as to prove the manufacturing defect of the vehicle. We wonder that why the Complainant did not try to get an expert opinion so as to prove his allegation as to oil leakage which is said to be due to manufacturing defect. So undoubtedly we are of the opinion that the Complainant has failed to prove his complaint beyond doubt. Moreover many contradictory statements are given by the Complainant during his oral examination. In para 6 of the complaint the Complainant contents that the service centre technicians at Eram Motors Private Limited Mananthavady failed to ensure trouble free and smooth functioning of the vehicle by resolving the excessive oil leakage complaint. But in his oral disposition he has stated that “kÀÆokv tamiamWv F¶v ]dªv Hcn¡epw Rm³ tcJmaqew ]cmXn sImSp¯n«nÃ. Cost of repair \v Opposite Party No.1 to 3 ¡v _m[yX Cà F¶v ]dªm F\n¡v AdnbnÃ, Manufacturing defect ImWn¡m³ expert report hcp¯nbnÃ. Rm³ hn CtX hsc hnän«nÃ. hnäXmbn proof affidavit se 9mw ]mc{Km^n ]dbp¶ps¦n AXv icnbmWv. hn D]tbmKn¡m³ ]ämXmbn F¶v ]dªv Rm³ FhnsSbpw ]cmXn sImSp¯n«nÃ. Radiator leakage DffXmbn ImWn¡m³ Rm³ tcJ lmPcm¡nbnÃ. Ext.A1 to A9 tcJIfnsem¶pw hn¡v Radiator leakage DffXmbn ImWnÃ. Business  F\n¡v \jvSw h¶Xv ImWn¡m³ tcJIfnÃ. Radiator leakage Bbncp¶p hnbpsS XIcmÀ. AXn\v ImcWw H¶pIn \nc´c D]tbmKw Asæn manufacturing defect BWv. A©mw FXnÀI£n¡v FXnsc F\n¡v bmsXmcp ]cmXnbpw CÃ. Radiator leakage Dv F¶ Imcyw service centre BWv Ft¶mSv ]dªXv. Overheating BWv AXn\v ImcWw F¶v service centre ]dªp. In re-examination of OPW1 he has stated that “Radiator leak and piston leak ZpÀLShgnIfneqsS hml\w A{i²ambn HmSn¡p¶Xv sImmWv DmImdpffXv. ASn X«p¶Xv aqew leak DmImdpv”.
22. From the above facts and circumstances of the case the Complainant has failed to prove his case beyond doubt and hence the Commission has no other way than to declare that there has been no deficiency of service from the part of Opposite Party No.1 to 5. So, Point No.1 is proved in favour of the Opposite Parties.
23. Point No.2:- As Point No.1 is proved in favour of the Opposite Parties, the Complainant has no right to get compensation.
24. Point No.3:- Point No.2 and 3 are as such, each party has to incur their respective cost.
In the result, the complaint is dismissed.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 8th day of February 2022.
Date of Filing: 04.12.2018.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. Abdu Samad. Business.
Witness for the Opposite Parties:-
OPW1. Sudheer Mon. P. S. Service Manager.
Exhibits for the complainant:
A1. Copy of Registration Certificate.
A2. Copy of Driving License.
A3. RO Bill. Dt:25.08.2017.
A4. RO Bill. Dt:25.08.2017.
A5. RO Bill. Dt:24.10.2017.
A6. RO Bill Tax Invoice. Dt:24.10.2017.
A7. Copy of Certificate of Insurance cum Policy Schedule.
A8. Copy of Certificate of Insurance cum Policy Schedule.
A9. Invoice- Form 8B.
Exhibits for the opposite parties:-
Nil.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRC, WAYANAD.
