Haryana

Ambala

CC/115/2021

Chander Bhan - Complainant(s)

Versus

M/s KBS Motor Pvt Ltd - Opp.Party(s)

Aditya Verma

16 Dec 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	115 of 2021
Date of Institution	:	01.03.2021
Date of decision	:	16.12.2022

Chander Bhan s/o Sh. Som Nath aged about 50 years resident of VPO Dukheri Teh. & Distt. Ambala (Haryana)

…..Complainant

 

Versus

1. M/s KBS Motors Pvt. Ltd, Village-Tepla, Near Taneja Public School, Ambala Jagdhari Road, Ambala Cantt, Haryana 133104 through its Manager/GM/Director/Owner.
2. M/s Mahindra & Mahindra Ltd., Gateway Building, Apollo Bunder, Mumbai- 400 001 (MH) through its Director

E-mail: group.communications@mahindra.com

.…. Opposite Parties

Before:        Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member.

          Shri Vinod Kumar Sharma, Member.           

 

Present:      Shri Aditya Verma, Advocate, counsel for the complainant.

                    Shri Shekhar Bansal, Advocate, counsel for OP No.1.

                    Shri Vipul Singh, Advocate, counsel for the OP No.2.

Order:        Smt. Neena Sandhu, President.

1.                 Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

                   a) To refund the bill amount along with insurance & RTO expenses           of the           vehicle or in the alternative to provide the new vehicle of the              same model, free of cost, without charging any amount for insurance           & RC.  

b) To pay Rs. 18,000/- per month since November 2020 till the disposal of the complaint;

c) To pay compensation of Rs.1,00,000/- on account of mental agony and physical harassment suffered by the complainant.

d) To pay Rs.25,000/-, as litigation costs.

(e) Grant any other relief, which this Commission may deems fit...…” 

2.             Brief facts of this case are that the complainant is carrying out a business of supplying door-to-door water campers and required a pick-up vehicle on daily basis for earning his livelihood. Therefore, the complainant purchased one pick-up vehicle-"Mahindra Supro Maxi Truck T2" on 02.08.2019 from the OP No.1. The said vehicle is bearing engine & chassis no. as E26718 & D64070 respectively. The vehicle in question was covered under the warranty of 3 years or 80,000/- KM whichever is earlier. OP No.1 assured the complainant that the vehicle in question is the best available vehicle in the market and after-sales services of OP No.1 & 2 are the best services in the class and segment. The complainant followed all the specified instructions for using the vehicle and always took it to the service center OP No.1 at prescribed regular intervals. However, on 19.06.2020 the complainant took his vehicle to the service center of the OP No.1 for regular periodic service but when the complainant took the delivery thereof in the evening, he observed an abnormal noise in the engine of the vehicle, which was brought in to the notice of the service manager at the same time. The service manager without inspecting the vehicle & the engine for abnormal noise assured the complainant that since the vehicle has just been serviced therefore the abnormal noise shall resolve by itself. Believing on the expert advice i.e. service manager of the OP No.1 complainant took away the vehicle and used it as per routine. However, the vehicle of the complainant stopped in the way on 02.07.2020 at Mahesh Nagar, Ambala Cantt and it was towed by the crane at the service center of OP No.1. The vehicle was inspected in the service station & it was diagnosed and concluded in the presence of the complainant by the service mechanic that the lid of the air filter box was open and it might have been left open during the previous service on 19.06.2020, which has been causing unusual noise in the engine and stopping of the engine of the vehicle suddenly and intermittently. The vehicle was kept for repair and it was delivered back to the complainant on 11.07.2020. However the same problem persisted in the vehicle and the complainant took the vehicle to OP No.1 on 16.07.2020, 19.07.2020, and thereafter as well. Further, OP No.1 sold one package, whereby the stopped vehicle shall be carried by towing crane on a phone call and charged Rs.1357/- from the complainant. The RSA service took away the vehicle firstly on 27.07.2020 from Mahesh Nagar Ambala Cantt. then in August 2020 from Dukheri as the vehicle stopped on the way while driving. On 19.07.2020 the OP No.1 charged Rs.1742/- from the complainant but the problem of the vehicle persisted. Finally looking at the vehicle condition, the complainant has to leave his vehicle to OP No.1 for repairs but the OP No.1 refused to repair the vehicle and told that the engine of the vehicle has been ceased, which needs replacement with a new engine on payment of Rs. 40,000/- in cash and thereafter any repair shall be conducted on the vehicle. Presently the vehicle is standing in the service center of OP No.1 and the engine of the vehicle has become unresponsive. The vehicle has covered a total mileage of approx. 40,000 kms as on date and the problem occurred in the engine of the vehicle in the very first year of its purchase. The complainant apprised the OP No.1 that the vehicle in question is covered under the warranty policy and since the engine defect is a manufacturing defect and that has been so caused by the deficient services of the mechanic of OP No.1 while performing periodic service on 19.06.2020, as such, the OPs are bound to rectify the defect or replace the defective vehicle but OP No.1 bluntly refused to provide any assistance without firstly paying for the services. The complainant is forced to pay Rs.18,000 per month for hiring another vehicle since November 2020 to one Sh Gurnam Singh S/o Sh Som Nath, resident of VPO Dukheri, Tehsil, District Ambala. The complainant also lodged his complaint on the toll-free number of OP No.2 but no response whatsoever has been given by OP No.2. The complainant called to the customer care service of OP No.2 on 15.02.21 at 9:47 AM, 20.02.21 at 09:27 AM, 21.02.2021 at 09.06 AM & 22.02.21 at 09:30 AM but to no avail.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that this complaint is not maintainable; no cause of action, non joinder of parties, suppressed material facts; that the complainant is using the said vehicle for commercial purpose therefore he is not a consumer etc. On merits, it has been stated that the vehicle in question at the time of delivery was perfectly alright and if any problem occurred later on it was due to rough handling of vehicle by the complainant and whenever the complainant visited the OP No.1, the problem was rectified to his entire satisfaction. The complainant took the delivery back after fully convinced and satisfied after removing the alleged defect at any stage. The complainant never visited alongwith the vehicle in question after 31.07.2020 and the complainant has wrongly alleged that the vehicle is parked with OP No.1. The complainant never brought the vehicle for service, as per prescribed schedule. First time he visited on 07.10.2019 when the vehicle was driven uptil 6098 KM; whereas the first service was required to be got done on 3000 KM. which was very much in the knowledge of the complainant. Similarly for the second service the complainant visited on 16.01.2020 with the mileage of 13479 KM instead of 10000 KM and for third free service, he visited with a mileage of 23967 KM instead of 20000 KM. On 19.06.2020, the complainant brought the vehicle to take benefit of third free service at the mileage of 23967 KM as stated earlier and there was no noise in engine. The allegation is false and frivolous. The complainant had also visited on 01.07.2020 for running repairs, which he had not disclosed in his complaint and vehicle was delivered back to the complainant after his entire satisfaction and nothing was charged as it was under warranty period. On 02.07.2020, the vehicle of the complainant was towed by the Towing Van of OP No.1 and electric fault was detected and the same was got removed in the presence of complainant, free of cost and the vehicle was handed over to the complainant on the same day. His allegation that the lid of air filter box might have been left open during the previous service is totally false and a cooked up story just too unnecessarily blame and harass OP No.1. The complainant after 02.07.2020 again visited OP No.1 on 11.07.2020 with the complaint the vehicle in question was having poor pick up at the time of accelerating; upon which OP No.1 found leakage in Turbo Charger Gas Kit and the same was repaired and replaced being under warranty free of cost and vehicle was handed over to the complainant on 18.07.2020. The story of complainant that he brought his vehicle to OP No.1 on 16.07.2020 is totally false and frivolous. The vehicle in question was already with OP No.1 from 11.07.2020 to 18.07.2020 and the complainant never visited OP No.1 on 19.07.2020; whereas after 18.07.2020, he visited on 31.07.2020, with the complaint of Clutch Paddle very hard to press and any gear not shift in start vehicle, which was because of his own negligence; but OP No.1 rectified the same without any charges being under warranty. The complainant had purchased RSA service for his own convenience. The complainant never visited OP No.1 after 31.07.2020 and his story that OP No.1 refused to repair his vehicle and demanded a sum of Rs.40,000/- from the complainant is totally false and frivolous. Complainant has wrongly alleged that the vehicle of the complainant is lying with it as the sale and service centre of SCV of OP No.1 was ceased from 31.08.2020. Rest of the averments of the complainant were denied by the OP No.1 and prayed for dismissal of the present complaint with costs.
4.           Upon notice, OP No.2 appeared and filed written version wherein it raised preliminary objections to the effect that this complaint is not maintainable; complainant is not consumer, the complainant has concealed the material facts  etc. On merits, it has been stated that the relationship between the company and its authorized dealers (OP No.1 in this case) is on principal to principal basis and not on principal to agent basis. OP No.2 is the manufacturer of the vehicle in question and OP No.1 is its authorized dealer. Dealers are authorized to purchase the vehicles manufactured by OP No.2 in bulk quantities and in turn resells them to their own customers.  OP No.2, is not aware of the ultimate customer of dealers and as such there is no privity of contract between the replying OP No.2 and ultimate customer of the vehicle (in the present case, the complainant) as far as the subject vehicle is concerned. Sale and service of the vehicle is entirely the prerogative of the dealer and manufacturer plays no role in it. The liability of manufacturer is limited to the terms and conditions of the warranty policy. The OP No.2 is not responsible for any of the act, omissions or commission of any act by its dealers.  The complainant himself is negligent in handling the vehicle. Complainant has not availed the mandatory periodic services which is necessary for upkeep of the vehicle and for better performance of vehicle. It is solely for this reason it has categorically been mentioned in the service booklet that any of the periodic maintenance would be missed then the warranty would expire. The allegations that air filter lid left open during service is impossible, as there is no possibility of keeping air filter lid opened after servicing as complainant had inspected the vehicle thoroughly after the same and has also given a satisfaction note. Copies of the satisfaction notes are annexed herewith as Annexure R2/4. First free service was done on 7.10.2019 at 6098 kms whereas, it is prescribed to be done at 3000 kms. Second  free service was availed at 13479 kms against prescribed kms running of 10000 kms. 3^rd free service was done at 23967 kms instead of 20000 kms. Thereafter, scheduled service of 30000 kms was not done and next service was availed only at 37042 kms after a gap of 13075 kms against periodicity of 10,000 kms. All the above clearly demonstrate that vehicle service record is not proper since beginning and there are maintenance lapses at the complainant's end. It may be the case that frequent breakdowns of the vehicle are a consequence of poor maintenance only. Had there been any manufacturing defect from the very beginning then the vehicle could not have covered 37042 KMS. Further, it has been informed by the dealership that they had conducted the inspection of the vehicle, which shows that adulterated fuel was used by the complainant. It was observed in the fuel tank during latest visit of the vehicle. The complainant had been informed in this regard. After the receipt of the complaint, the matter has been enquired from the authorized dealer and OP No.2 has come to know that complainant did not leave the vehicle at dealership because the dealership has denied the repair work under warranty because the complainant has not adhered to the service schedule and as per the warranty booklet the warranty was lapsed, therefore, the complainant has taken the vehicle back. The vehicle is not covered under the warranty because complainant has violated the terms and conditions of the warranty as stated above. Any defect in the vehicle after using the vehicle so extensively cannot be the manufacturing defect by any stretch of an imagination. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint.
5.           Learned counsel for the complainant tendered affidavit of complainant as Annexure CW1/A and affidavit of Gurnaam Singh son of Som Nath Permanent resident of VPO Dukheri, Tehsil & District Ambala Annexure CW2/A alongwith documents as Annexure C-1 and C-30 and closed the evidence on behalf of the complainant. Learned counsel for the OP No.1 tendered affidavit of Mukesh Kumar Swami, Manager, M/s KBS Motors Private Limited (Mahindra), H.Q. Village Tepla, Ambala-Jagadhri Road, Saha, District Ambala (Haryana) as Annexure OP-1/A alongwith documents Annexure OP-1/1 to OP-1/26 and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Ashwani Garg, Zonal Head Customer Care having office at Discovery Towers, Mahindra & Mahindra Limited, 5^th Floor, Block A, Sector 62, Noida, U.P. as  Annexure OP2/A alongwith documents Annexure R2/1 to R2/9 and closed the evidence on behalf of OP No.2.
6.           We have heard the learned counsel for the parties and carefully gone through the case file.
7.           The learned counsel for the complainant submitted that by selling the defective vehicle in question, having manufacturing defects therein and on the other hand by neither rectifying the defects therein during warranty period, free of cost, nor replacing the same with a new one nor refunding the price thereof, the OPs are deficient in providing service, negligent and adopted unfair trade practice. 
8.           On the contrary, learned counsel for the OP No.1 and 2 submitted that complainant is not a consumer. Complainant has failed to prove that the vehicle in question suffers from any manufacturing defects and also at the same time, the minor defects arose therein were rectified as and when reported during warranty period and also at the same time, if he failed to adhere proper service, which resulted into alleged defects and that too were rectified, the complainant is not entitled to get refund of the amount paid towards sale consideration of the said vehicle or for replacement of the vehicle in question with the new one.
9.           First coming to the objection taken by the OPs that the complainant did not fall under the definition of consumer, as the vehicle in question was purchased by him for commercial purpose, it may be stated here that since it has been candidly stated by the complainant in his complaint supported by his affidavit that the vehicle in question was purchased by him, for plying the same for transporting of water campers from one place to another, to earn his livelihood, as such, we hold that the complainant is a consumer, as envisaged under Section 2 (7) (a), of the Consumer Protection Act, 2019. On the other hand, the OPs have failed to prove on record that the vehicle in question had been purchased by the complainant for earning huge profits. As such, objection raised by the OPs stands rejected. 
10.           The next question which falls for consideration is, as to whether, the complainant is entitled to get refund of the price of the vehicle in question or replacement thereof with a new one or not? Admittedly, the vehicle in question was purchased by the complainant from OP No.1 on 02.08.2019, which carried a warranty of 3 years or 80000 kms whichever is earlier. It is coming out from the record that it was for the first time on 02.07.2020 i.e. after about 11 months of purchase thereof that some defect arose in the said vehicle, as a result whereof, it was taken to the workshop of OP No.1, which was repaired and handed over to him. It is also coming out from the record that thereafter also, the vehicle in question was taken to the workshop of OP No.1 on few occasions with the minor defects such as leakage in turbo charger gas kit; clutch paddle very hard to press/gear shifting, which were repaired upto the satisfaction of the complainant, as is evident from Annexure OP2/4 colly. dated 16.01.2020,  01.07.2020,  02.07.2020 and 19.06.2020, whereby he gave satisfactory note to the effect that I have received the vehicle back in good condition and I am fully satisfied with the jobs done by OP No.1.  
11.           From the terms and conditions of the warranty booklet Annexure R-2/3, relevant part of which is reproduced hereunder-

"1. Preventive maintenance services, labour free and paid, as mentioned in the operator's manual, are an absolutely pre-requisite for availing of the vehicle warranty. In other words, if any of the maintenance services are not availed of at the specified Kms/time and any complaint reported reflect that the complaint is due to non-availing of the specified service; no warranty consideration will be accorded to the complaint reported."

12.           It is clear that the maintenance services are to be availed at the specified Kms/time. The contention of the OPs is that the first free service was to be done on coverage of mileage of 3000 Kms, second free service was to be done on coverage of mileage of 10000 Kms and third free service was to be done on coverage of mileage of 20000 Kms. This contention of the OPs has not been controverted by the complainant. However, bare perusal of record/job card Annexure OP2/5 reveals that first free service was got done on 7.10.2019 at 6098 kms. Second free service was got done at 13479 kms vide Annexure OP/2/6. Third free service was done at 23967 kms vide Annexure OP2/7 and next service was availed, vide Annexure OP-2/9 at 37042 kms after a gap of 13075 kms. From the said documents it is clear that the complainant got serviced his vehicle in a improper manner and has violated the terms and conditions of the warranty. All these facts are enough for this Commission to hold that it was on account of improper service having been got done by the complainant, that some minor defects, referred to above, might have cropped up in the  vehicle in question, which were rectified by OP No.1, free of cost. The complainant has failed to place on record any documents to show that the lid of the air filter box of the vehicle in question was ever left opened by the service mechanics of OP No.1 during service.
13.           Furthermore, not even an iota of evidence in the shape of expert report has been placed on record by the complainant, to prove that there is any inherent manufacturing defect in the vehicle in question. Had there been any manufacturing defect from the very beginning then the vehicle could not have covered the mileage of 40000 Kms. Even this much has not been proved by the complainant that any defect arose in the engine of the vehicle in question. Not even a single letter has been placed on record by the complainant having been sent to the OPs, intimating that he was not satisfied with the defects rectified by them/parts replaced in the vehicle in question and it is suffering from any manufacturing defect. In the absence of any cogent and convincing evidence, the bald assertions of the complainant to the effect that there is a manufacturing defect in the vehicle or that its engine is still defective cannot be taken into consideration. Under these circumstances, we do not hesitate to conclude that the complainant has failed to prove his case and the OPs are not liable to replace the vehicle in question or refund the price thereof to the complainant. At the same time, since it has also not been proved by the complainant that the vehicle in question is lying with the OPs, as such, no directions in that regard can be given by this Commission.

14.               In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case, resultantly, this complaint stands dismissed with no order as to cost. Certified copies of the order be sent to the parties concerned as per rules. File be annexed and consigned to the record room.          

Announced on: 16.12.2022.

 

 

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President