Date of Filing: 08/10/2015
Date of Order:30/11/2017
BY SRI.SYED ANSER KHALEEM, PRESIDENT
1. This is the complaint filed U/S 12 of the Consumer Protection Act 1986 alleging the deficiency in service on the part of the O.Ps and prays for orders to direct the O.Ps to pay a sum of Rs.61,000/- along with interest at the rate of 24% per annum towards repair charges. Further O.Ps directed to pay Rs.1,00,000/- towards loss of time and mental agony and to replace the vehicle Mahindra Bolero ZLX also to pay cost of the proceedings.
2. The brief facts of the complaint are that the complainant had purchased Mahindra Bolero ZLX on 6.8.2014 for sum of Rs.7,57,927/- from the O.P.No.3 and O.P.No.3 gave warranty of two years. Further states that, from the day of purchase itself the vehicle started showing one or the other mechanical problems and after three days of the purchase of the vehicle it was found that there was no pick-up and clutch problem of the vehicle, Fly wheel was damaged, clutch plate of the vehicle was not functioning properly and there was continuous and irritating voice message coming out as engine temperature is high and even though fuel was full, the reading showed no fuel. Further states that, the complainant complained about the problem to O.P.No.3, the O.P.No.3 replaced the voice message machinery and fixed another machinery and also clutch assembly was replaced. Further states that O.P.No.3 charged from the complainant sum of Rs. 7,374/-.Further states that when the complainant used the vehicle for about 14500 kms, the complainant was forced to change the clutch plate costing Rs.6,409/- including labour charges. Further states that, subsequently on 5.3.2005 again the complainant spent Rs.22,104/- for changing clutch plate and fly wheel assembly and on 29.5.2015 the complainant spent a sum of Rs.22,036/- for clutch and mechanical parts which comes under warranty items. Further states that the O.Ps mechanics failed to see the real problem of the vehicle and insulted the complainant expressing that the driver of the vehicle would not have valid license and he do not know to drive the vehicle. Further states that the performance of the vehicle was so bad and became a nuisance to the complainant and life of the complainant become intolerable and therefore the complainant neither issued a legal notice but the O.Ps nor responded nor complied the demand made in the legal notice. Hence this complaint.
3. Upon issuance of the notice O.Ps No.1 to 3 entered appearance through their counsel and filed their version. In the version O.P. 1 and 2 it is admitted that the complainant purchased the vehicle from the O.P.No.3 who is the dealer of vehicles manufactured by the O.P.No.1 and 2. Further the contract between the O.P.No.1 and 3 is the principle to principle only. Further contended that complainant in contrary to the service manual book instructions used the vehicle and denied all the allegations made in the complaint as untrue and incorrect. Further contended that O.P.No.1 and 2 are serving their customers with all satisfaction as per the conditions stipulated in the warranty given by the manufacturer. Further contended that complainant approached this Forum by suppressing the real facts and the complaint is vague, baseless and filed with mala-fide intention. Further contended that, there is no manufacturing defect proved in the vehicle in question nor any deficiency in service and the complainant also not produced the expert evidence. The complainant had failed and neglected to follow the guidelines given in the operative service book as recommended for smooth and better performance of the vehicle in question at optimum cost. Further as per the terms and conditions of the warranty applicable for the subject vehicle the warranty shall be limited for 24 months from the date of the purchase of vehicle without any milege restrictions subject to fulfillment of other terms and conditions of the warranty. It is contended that, the vehicle was delivered only after carrying out pre-delivery inspection by the dealer and after satisfaction only it is given to the complainant. It is contended that, the vehicle in question purchased by the complainant on 16.8.2014 and the said vehicle covered around 49109 kms and it manifests that the vehicle in question, within a period of 14 months had covered 3507 kms per month. Hence contended that the vehicle in question is absolute road worthy condition and that the job carried out on the vehicle in question are minor and running repairs, which were required to be carried out due to regular continuous, extensive and faulty usage of the said vehicle. The O.Ps has been prompt and swift to attend the alleged grievances reported by the complainant under the warranty as and when reported. It is contended that after the purchase of the vehicle the complainant reported first time on 24.9.2014 at 5131 kms for first free service along with minor issues of noise while turning the vehicle, vehicle pulling to left hand side and coolant leakage wherein schedule service and standard checks were done on the alleged issues were arrested under warranty. Further the vehicle reported on 8.10.2014 at 6749 kms for the complaint of voicemail and was addressed satisfactory by performing electrical works. Further on 22.10.2014 at 9463 kms for second free service besides the problem of voicemail, power steering belt noise, blower not working to wind screen, refix rear number plate and heavy blocks mode from silencer when maintenance service and general checks were carried out and the purported problems were attended under warranty. It is contended that till second service there is no complaint of clutch has been reported by the complainant. Further contended that, the alleged problem of clutch at 14590 kms was recorded for the first time and was repaired by changing the clutch disk, clutch pressure plate etc on paid basis as item like clutch are not covered under the warranty and thus the complainant was charged Rs.7374/- for replacement. It is observed that complainant was driving the vehicle in partially application which has lead to early failure of clutch and the complainant also accepted the said fact and he was educated to drive the vehicle properly. Further when the complainant given the vehicle for service at 26082 kms on inspection it was noticed that complainant has been again using the vehicle in clutch over riding position reading to failure of clutch to break down. Further at 47615 kms the complainant reported the engine noise low pick and check suspensions and thereby services and general checks were carried out on paid basis. Further O.Ps contended that they have given service to the complainant when he approached them with his grievances and now there is no problem with the vehicle and the same was repaired to the satisfaction of the complainant as per the warranty policy. Further contended that all the problems caused in the vehicle due to complainants operational failure and his own negligence but not on account of manufacturing defect. Further the O.P No.1 and 2 denying all other allegations of the complaint and ultimately prays for dismissal of the complaint with cost.
4. In the version of O.P.No.3 it is contended that, complainant purchased the Bolero bearing No.KA3 MU 4360 from O.P.No.3. They denied that the said vehicle in question showing problem after three days itself. It is contended that, the complainant has got the first service on 24.9.2014. Further contended that on 8.10.2014 the complainant approached the O.P.No.3 for problem of voice message system which was immediately rectified and at that time there was no clutch problem or damaged fly wheel assembly. Further on 22.10.2014 the complainant had the second free service and other minor repairs that arise due to wear and tear and usage and did not notice any clutch problem. It is contended that on 6.12.2014 in another dealers workshop complainant got changed the clutch assembly at his cost. It is contended that it was noticed that clutch assembly was required to be replaced as the same was damaged due to improper operation and repeated clutch over drive by the complainant. Further contended complainant approached the O.P.No.3 again and again for clutch problem because of incompetence of the complainant to drive the vehicle. Further contended that complainant has also not having valid driving license. Further this O.P denies all other allegations alleged in the complaint and ultimately prays to dismiss the complaint with cost.
5. In order to substantiate the case of the parties and both the parties have filed his affidavit evidence and we also heard the arguments.
6. On the basis of the pleading of the Parties, the following points will arise for our consideration is:-
(A) Whether the complainant has proved
deficiency in service on the part of the O.Ps?
(B) Whether the complainant is entitled to
the relief prayed for in the complaint?
(C) What order?
7. Our answers to the above points are:-
POINT (A) & (B): In the Negative.
POINT (C): As per the final order
for the following:
REASONS
POINTS No. (A) & (B):-
8. On perusing the rival pleading of the parties and the evidence on placed on record, that the complainant had purchased the Bolero vehicle for an amount of Rs.7,57,927/- as per the invoice issued by the O.P.1. Hence the document No.1 is also not undisputed.
9. The sole allegation of the complainant is that subsequent to 3 days of purchase of vehicle, the complainant informed there was no pickup for the vehicle and clutch plate of the vehicle functioning properly. Further contended that though there existing the warranty O.Ps charged for the replacement of the clutch plate. Hence contended that due to the problem in the vehicle complainant suffered.
10. Per contra O.Ps contended that the whenever the complainant reported the complaints to the O.P.3 and the O.P No.3 at their service center attended the all the problem reported and now the vehicle is in good condition. Further contended that the problem of the clutch plate attended on resold by collecting the necessary fees against the removal of the clutch plate as the same is not covered under the warranty.
11. It is worth note that ongoing though the evidence place on record it is evident whenever the complainant approached the O.P. No 3 resolved all the grievances of the complainant. On perusal of the vehicle history the complainant got obtained all free service in addition to clutch problem and the vehicle history produced by the O.P. No.3 is evident that O.P. No.3 attended the complainant vehicle and resolved its issue relating to the vehicle. It is note worth to mention that the clutch plate works on the nature of driving made by the vehicle driver and it also depends upon the experience while applying the clutch. It is the serious allegation of the O.Ps against the complainant that the driver of the vehicle did not possess having valid driving license and improperly used the clutch plates and hence oftenly clutch related problems noticed. However, the complainant did not whisper anything in his affidavit that the driver of the vehicle is an experienced person and having valid driving license to drive the said vehicle in question. Furthermore the complainant did not place any credible evidence and also expert evidence in order to establish that there is inherent manufacturing defect in the vehicle. In absence of the vital evidence the mere allegation of the complainant regarding manufacturing defect cannot be held sufficient. The one who alleges the manufacturing defect in the vehicle the burden on proving the same is on person who alleges the manufacture defect. In this case the burden is exclusively on the complainant himself. Further in the evidence it is not disclosed that the complainant himself drove the vehicle or it is driven by the some other driver who did not drive the vehicle as per the instructions book manual provided by the manufacturer. On oral perusal of the entire evidence placed on record it reveals that the only problem revealed around clutch. Further it is worth to note that the vehicle in question runs about 50,000 kms, and on perusing the documents No.1 to 6 by the complainant, it reveals that the O.Ps attended the problem in the vehicle and replaced the clutch assembly. Therefore, on perusal of the above said documents mere taking the vehicle for repair arising out of general ware and tear cannot be considered as manufacturing the defect in the vehicle. Furthermore as per the condition of the warranty given by the manufacturer and O.P.No 3 resolved the issue of the complainant relating to the vehicle and above all, on replacing the clutch plates against the usage of the vehicle the O.P No.3 collected the amount from the complainant as the same is not covered under the warranty. It is note worthy to mention that on perusal of the vehicle history produced by the O.Ps in support of their evidence the complainant has taken paid service on 26.10.2015 it reveals that at 49,109 kms. Relating to clutch problem the O.P No.3 attended that problem and the complainant paid for the same. However for repair of ASSYCLUTCH MASTER Cylinder O.P No.3 has not charged as it is covered under warranty. So also the clutch MAS CYL – R and R (including leading) at 36,500 kms. O.P No.3 not charged as it covered under the warranty. Further on perusal of vehicle history dated 23.06.2015 O.P No.3 changed the clutch and not charged as it covered under the warranty and it is a paid service. Further to note that whenever the clutch related problem comes, the O.Ps attended and resolved the issue. Further the O.Ps contended that vehicle is in good conditions but however the complainant did not denied the said fact in his evidence. Further on perusal of the legal notices exchange between the parties the O.Ps given the reply for all queries raised by the complainant, but the complainant did not place any expert evidence in order show that the vehicle consists of manufacturing defect. Hence the O.Ps rightly contended that without proper analysis or test of the goods in the appropriate laboratory with a direction that such laboratory makes an analysis test with a view to find out whether such goods suffer from any defect alleged in the complaint or from any other defect. Further we lay our hand to the decision of Hon’ble National Commission reported in CPJ I (2010) 19 (NCJ) in the said decision the Hon’ble Apex Authority opined that necessity of expert evidence in order to prove that manufacturing defect in the vehicle and hence the ratio of the above said decision is aptly applicable to the present case on hand. Further in the case Maruthi Udyog Ltd vs Susheel Kumar Gabgothra and others the O.Ps rightly relied on the said decision wherein the Hon’ble Supreme Court held that the manufacturer cannot be ordered to replace the car or refund its price merely because some defects appears which can be rectified or defective part can be replaced under the warranty. The ratio of the above decision is also aptly applicable to the present case on hand. Further on going through the complaint no where the complainant in his pleadings alleged that there is a deficiency in service on the part of the O.Ps, but alleged that O.P.No.3 negligently responded to the complainant but it is not sufficient to prove the deficiency.
12. In the light of above discussion we reached to conclusion that complainant failed to prove the deficiency in service on the part of the O.Ps and hence the complainant is not entitled any relief as sought in the complaint. Accordingly, we answered the Point No. (A) & (B) in the Negative.
POINT NO. (C):
13. On the basis of the answering the point (A) and (B) and in the result, we proceed to pass the following:-
ORDER
- The complaint is hereby dismissed no order as to cost.
- Send a copy of this order to both parties free of cost.
(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 30th Day of November 2017)
MEMBER MEMBER PRESIDENT
*RAK
