BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SIRSA.
Consumer Complaint no. 21 of 2018
Date of Institution : 9.1.2018
Date of Decision : 14.12.2018.
Sanjay Kumar son of Shri Babu Lal, resident of House No.610-A, Opp. Rati Ram Petrol Pump, Begu Road, Sirsa, District Sirsa.
……Complainant.
Versus.
1. M/s Garg Motors, 9th Km. Milestone, Near Sikanderpur Chowk, Hisar Road, Sirsa, Tehsil and District Sirsa, through its Proprietor/ Partner/Manager.
2. Mahindra & Mahindra Ltd., Gateway Building, Apollo Bunder, Mumbai- 400 001, through its General Manager/ Managing Director.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986.
Before: SH. R.L.AHUJA…………………………PRESIDENT
SH. ISSAM SINGH SAGWAL….. …… MEMBER.
Present: Sh. Surinder Jakhar, Advocate for complainant.
Sh. P.S. Chauhan, Advocate for opposite party no.1.
Sh. Saurabh Nagpal, Advocate for opposite party No.2.
ORDER
The case of the complainant in brief is that complainant purchased a brand new Mahindra KUV 100 K6+ MFALCON D75 XH vehicle from opposite party no.1 vide invoice No.INV17A000539 dated 20.1.2017 for a total sum of Rs.5,93,981/-. The complainant got registered with Registering Authority, Sirsa vide registration No. HR-24X/8852. The said vehicle is manufactured by op no.2 and op no.1 is the authorized dealer of op no.2. The op no.1 issued two/three years warranty of this vehicle. It is further averred that during use of the vehicle, same developed defects therein very soon. There was gear problem in the vehicle from the very beginning. The said vehicle was also having defect in its centre locking, A.C. buttons did not work properly and the vehicle also used to vibrate while in running condition. The complainant reported the defects to op no.1. The op no.1 conducted the service of the vehicle on 26.1.2017, 31.1.2017, 8.2.2017, 11.2.2017, 15.2.2017, 27.2.2017, 1.3.2017, 11.3.2017, 14.3.2017, 17.5.2017, 9.8.2017, 23.8.2017 and 2.12.2017. The vehicle was got serviced from op no.1 as per service norms. The op three times changed the gears and even changed the entire gear box, but even then the said defect could not be removed and still fly-wheel problem is existing in the vehicle and despite many visits to op no.1, the fault could not rectified and the vehicle gives vibration. The other defects in the said vehicle i.e. centre locking, functioning of A.C and its buttons are still not working properly. That in this manner, op no.1 has sold a defective and substandard vehicle to the complainant and thereby has caused wrongful loss to the complainant which amounts to great deficiency in service and unfair trade practice on the part of ops. It is further averred that now the above vehicle is in defective condition and complainant is unable to make use of the said vehicle for which he had incurred huge amount. There is manufacturing defect in the said vehicle and same requires replacement. The complainant is indulged in touring business and he has to run his vehicle 150-200 kms. daily. So, in order to undertake the said journey, the complainant had to borrow vehicle for which he incurred Rs.25,000/- and the complainant is also entitled to this amount from ops. That the ops have refused to admit the claim of complainant a week back. Hence, this complaint.
2. On notice, opposite parties appeared through counsel. Op no.1 filed written reply raising certain preliminary objections. It is submitted that it is denied that op no.1 has given 2/3 years warranty to the complainant regarding the said vehicle. The op no.1 is only the authorized dealer of op no.2 and the work assigned to op no.1 by op no.2 is only to sell the vehicles manufactured by op no.2 to the customer. It is further submitted that after sale of the vehicle by op no.1 to the complainant, the complainant visited the op no.1 with complaint of some defects in the vehicle including gear box etc. Further he got the vehicle serviced from op no.1 on various occasions. However, the vehicle was inspected but no special defect was found therein but even then in order to satisfy the complainant, the op at its own level got the some parts of the vehicle including gear box changed entirely and replaced the same with fresh parts without any cost from complainant but the complainant did not satisfy rather by way of present false complaint he wants to harass and humiliate the op and wants to extract money from answering op. From the bare perusal of the complaint, it is not at all clear that what repairs were got done by complainant from op no.1. On 26.1.2017, the complainant visited the workshop and reported the problem of 4th and 5th gear hard. The op no.1 checked vehicle but he stated that he has no time and he would bring his vehicle on the next Monday but he never came to get the vehicle repaired. On 30.1.2017 he approached op no.1 with the problem and reported engine noise and vehicle was kept in workshop till 31.1.2017. On inspection, the same was found ok and job card bears the signatures of complainant. On 8.2.2017, the vehicle reported for centre lock not working, however it was told to the complainant that the required part for setting it right is not in stock and it was requested by concerned staff to come after some days so that they can place order for the requisite part. On 11.2.2017, the complainant approached op no.1 with the complaint of 5th gear hard centre locking and till gate door lock issue. On that date the vehicle was due for first service as such first service was conducted and tall gate door latch was replaced under warranty and centre locking part was not available on 11.2.2017. Thereafter, the complainant visited on 15.2.2017 and centre lock set was changed under warranty and issue was resolved. The complainant even had signed satisfaction note and acknowledged the good job done on the vehicle by the dealership. On 27.2.2017, the complainant approached for getting body cover fitting and not reported any issue. On 1.3.2017, the complainant primarily approached for 5th gear hard. The vehicle was checked and part was replaced under warranty. On 11.3.2017, the ordered parts had come and the vehicle visited for replacement of that part. It is further submitted that accordingly the part was changed under warranty i.e. free of cost and complainant has even signed the satisfaction acknowledging the good work done. Further on 14.3.2017, the problem of 5th gear was resolved. The complainant approached for first gear issue. He was told to leave his vehicle, so that it can be thoroughly inspected. The complainant agreed for the same and left his vehicle. Then the vehicle was thoroughly checked and gear needle was replaced and problem was resolved. The complainant was fully satisfied with the job done. It is further submitted that since the vehicle of complainant remained parked for two weeks, thus the complainant was offered good will gesture and paid Rs.10,000/- by way of cheque bering no.009380 drawn on ICICI Bank. The cheque was duly received and encashed by the complainant. On 17.5.2017 the complainant approached the dealership for washing of the vehicle and also reported under body noise which was set right. The complainant acknowledged the good work done and signed the satisfaction note. On 9.8.2017, vehicle came for pending rubbing of the accidental work as in the month of July, 2017 vehicle met with an accident and repair was carried out on 6.7.2017. Some rubbing was to be done, for that rubbing the complainant approached on 9.8.2017. The vehicle did not approach with any defect or any maintenance issues but for the accidental work the vehicle approached. On 23.8.2017 the complainant approached for body noise and AC switch. The complainant was informed that for under body noise suspension arm of left hand side need to be replaced. However, the complainant has refused the same and it has been duly noted in the job card and it was signed by complainant. It was observed that lower suspension arm has been damaged, therefore, it could not be covered under warranty because it was externally damaged. For AC switch HAV ON OFF button was replaced under warranty. On 2.12.2017, the complainant reported that the vehicle vibrates on idle. This problem was redressed immediately and duel mass fly wheel has been replaced under warranty and the problem has been resolved. After the replacement of the fly wheel the vehicle vibration was at par with the other new vehicle. Further the gear box has not been replaced. However, only parts have been changed twice. It is further submitted that all the defects have been removed for the satisfaction of complainant and there was no repeat of any such defect. Remaining contents of the complaint are also denied.
3. Opposite party no.2 i.e. manufacturer in its separate reply took certain preliminary objections and it is submitted that the relationship is between op and its dealer i.e. op no.1 which on principal to principal basis and not on principal to agent basis. The op no.1 is its authorized dealer. Dealer purchases the vehicles manufactured by op no.2 in bulk quantities and in turn resell them to the ultimate customer. Further, the sale of the vehicle and its service is conducted by the dealer and for this even consideration amount is payable to dealer by the customer. The answering op is not aware of the ultimate customer of the dealers and as such there is no privity of contract between the answering op and ultimate customer of the op no.1. The sale and service of the vehicle is entirely the prerogative of the dealer, manufacturer has no role in it. The liability of manufacturer is limited to the terms and conditions of warranty policy. The op no.2 is not responsible for any of the act, omissions or commission of any act by its dealers. Thus, the complainant is not consumer of the answering op. It is further submitted that complainant has admitted that he is using the vehicle for commercial purpose for business tours, therefore, the vehicle is not for self use but it is being used commercially and therefore, the complaint is liable to be dismissed solely on this ground. It is further submitted that complainant has overstretched the minor maintenance issues and has tried to project it as a major problem. Further the op no.2 has reiterated the dates of services as detailed by op no.1.
4. The parties then led their respective evidence by way of affidavits and documents.
5. We have heard learned counsel for the parties and have perused the case file carefully.
6. The perusal of the record reveals that complainant in order to prove his complaint has furnished his affidavit Ex.CW1/A in which he has reiterated all the averments made in his complaint. He has specifically deposed that op no.1 has sold a defective and substandard vehicle manufactured by op no.2. He has also furnished copy of delivery challan Ex.C1, copy of invoice Ex.C2, copy of sale certificate Ex.C3, copy of form No.15 Ex.C4, copy of policy schedule Ex.C5, Ex.C6, copies of vehicle information and copy of document of change of ownership Ex.C7, Ex.C8, copy of free service coupon Ex.C9, copy of RC Ex.C10, copy of receipt Ex.C11, copies of repair order bill details Ex.C12 to Ex.C24, copy of adhar card Ex.C25 and copies of warranty card Ex.C26/A to C26/J. On the other hand, op no.2 has furnished affidavit of Sh. Nagraj Bhatt, Authorized Signatory Ex.RW1/A. OP no.1 produced affidavit of Sh. Basant Garg Ex.RW2/A and copies of job cards Ex.R2/1 to Ex.R29.
7. The perusal of the written reply of op no.1 reveals that op no.1 has admitted the allegations of complainant to the extent of purchase of vehicle and getting his vehicle repaired from op no.1 time and again and op no.1 has not disputed the copies of job cards/ repair order bill details relied upon by complainant duly issued by op no.1. The perusal of the written statement of both the ops reveals that they have not denied allegations of complainant rather they have stated that they have provided their best services to the complainant in getting his vehicle repaired time and again and there is no deficiency in service on their part in providing services to the complainant rather they paid Rs.10,000/- as good will gesture on account of long time parking of the vehicle in their workshop to the complainant.
8. It is undisputed fact between the parties qua purchase of vehicle as well as getting the vehicle repaired time and again by complainant from op no.1. It is further undisputed fact that all the time op no.1 had been issuing the job cards qua carrying out necessary repair in the vehicle from time to time. It is further undisputed fact that ops had been providing their services to the complainant time and again in repairing his vehicle as and when the complainant approached with his vehicle to op no.1. It is further undisputed fact time and again his vehicle was giving problems of gear, vibration, engine noise, body fitting noise etc.
9. As per contention of learned counsel for ops they have made their best level efforts in providing all help and services to the complainant in order to make his vehicle defect free and complainant had been issuing satisfaction note on the job cards, but however, on the other hand learned counsel for complainant has contended that since beginning he is facing problems in his vehicle specially in the gear box. Even the gear box has been replaced by ops but despite that vehicle is not running smoothly and properly and giving noise in the gear box and still fly-wheel problem is existing in the vehicle. It is settled principle of law that the manufacturer who sells his vehicle through his dealer is under legal obligation to provide requisite services to the customer/ consumer from time to time during the period when vehicle is under warrantee. It is admitted fact on record that vehicle of complainant is under warrantee and it is legal obligation of the ops to provide necessary services to the complainant in getting his vehicle repaired.
10. In view of the above, we allow the present complaint and direct the opposite parties to carry out necessary repairs in the vehicle of the complainant to make it defect free without any costs. They are further directed to change any parts of the vehicle if same is required. The ops will do the needful within 15 days from the date of receipt of copy of the order and production of the vehicle by complainant. The ops are further directed to pay a sum of Rs.10,000/- as composite compensation and litigation expenses to the complainant. Both the ops are jointly and severally liable to comply with this order. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced in open Forum. President,
Dated:14.12.2018. Member District Consumer Disputes
Redressal Forum, Sirsa.
