BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.93/2010

Dated this the 14^th day of June 2016

(Date of Institution: 30.08.2010)

Ramesh Memon, son of late PEB Menon 

No.31, Francois Martin Street

Kuruchikuppam,       

Pondicherry – 605 012.

                                       ….     Complainant

Vs.

1. M/s Mahindra and Mahindra Limited

    Gateway Building         

    Apollo Bunder   

    Mumbai – 400 039. 

2. India Garage, Chennai

    184, Anna Salai

    Chennai – 600 006.

3. M/s Rajarajan and Sons

   136, Vengateshwara Nagar

    Ariyur, Villianur Commune,

    Puducherry – 605 0112.

4. S.K.S. Automobiles

    600/677 Bannerghatta Road

    Bilekahalli, Bangalore – 560 076.

                    ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A., B.L.,

MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B.,

MEMBER

FOR THE COMPLAINANT      :  Thiru L. Sathish, Advocate

FOR THE OPPOSITE PARTIES   : OP1 – Thiru R. Sivaraman, Advocate

                                                                          OP2 – Thiru R. Subramanian, Advocate

                                                            OP3 and OP4 – Thiru A. Selvakumar,

Advocate

O R  D  E  R

(by Thiru V.V. Steephen, Member)

This is a complaint filed by the complainant under Sections 12 and 13 of the Consumer Protection Act, 1986  to direct the opposite parties to recall the defective Xylo E8 SUV of Chassis No. MA1YA2BVN92D27354 purchased by complainant and replace it with a brand new vehicle or alternatively refund the value of the vehicle;  to direct the opposite parties to pay a sum of Rs.10.00 lakh as compensation for mental agony, trauma, stress and duress suffered by complainant and his family because of the defective car followed by utter negligence, sheer carelessness and absolute incompetence in rectifying the defects in the vehicle; and to direct the opposite parties to pay a sum of Rs.25,000/- towards cost of this complaint.

2.  The case of the complainant is as follows:

          The Complainant purchased "Xylo E8 SUV" from 2^nd opposite party on 01.06.          2009  manufactured by 1^st opposite party bearing chassis No. MA1YA2BVN92D27354  for Rs. 7, 84,500/-.  On the date of delivery, i.e. on 01.06.2009, the complainant noticed that there was a thick, ugly and rough deposit all over the vehicle. The delivery man dismissed it as a dust gathered in transit and tried to clean it with liquid cleaner, but the deposit could not be removed.  After wasting more than 5 hours of complainant's time, the Manager of 2^nd opposite party finally sent the vehicle to workshop for 2M treatment and polishing was done to remove the deposit.  The vehicle was hurriedly done up and then finally delivered to complainant at about 5PM  i. e. after 8 hours of agonizing wait by complainant. The Complainant was very unhappy and wounded by the fact that a brand new vehicle was sought to be delivered in such pathetic condition.  There was no explanation as to why the thick, ugly layer over vehicle formed at the first instance and why it was not cleaned till he demanded it. The complainant reported the incident to 1^st opposite party in their official feedback mechanism in the first week of June 2009.  The complainant used the vehicle for about 3months.  Even during those initial days, the vehicle had following mechanical defects:

1. The driver seat did not recoil back to original position after it was pulled own to relax position.
2. The right middle seat got misaligned when it was drawn back. The misalignment was very clear when in relax position and when it was pu8lled back to original position there was a very clear and strong jerk in the movement of the seat.

These defects were brought to the notice of the 3^rd opposite party, who is the service agent of the 1^st opposite party at Puducherry.   On every occasion when the vehicle was given for free service, the defects were not rectified by 3^rd opposite party.  Even when the vehicle was left for service with the 4^th opposite party, the defects were not attended.  The above defects continue to exist as on this date. It clearly reflects the poor quality of service. The complainant was forced to use the vehicle with the aforementioned defects.   On 21^st December 2009, the complainant gave the vehicle for 3^rd opposite party, whose workmanship and quality of work is much to be desired.   To begin with, there was no qualified person to handover the vehicle after servicing.  In fact, the complainant had to fish out the vehicle keys from a bunch in the workshop.   While accepting the vehicle the complainant asked the mechanic that the windshield of the car has not been cleaned.  He has the audacity to reply that in free service they do not clean the glasses. The Complainant wrote a complaint about poor quality of service by 3^rd opposite party thorough the customer feedback system.  On 25.12.2009, when he self drove the vehicle from Puducherry to Bengaluru on festive holiday with his family,  at about 3.45 PM, the complainant felt the vehicle going wobbly while he applied the break and it went out of control. The complaint was scared to death and stopped the vehicle slowly to inspect whether it was flat-tyres.  But the tyres were intact.  The complainant therefore could not drive the vehicle anymore and had to stop it at the roadside near a village called Singarapettai (70 kms away from the nearby town of Krishnagiri). The complainant was stranded on the road with his family and realized that his holidays are messed up.  He immediately called on road helpline service of the 1st opposite party.  The complainant also contacted Mr. Sridhar of the 2^nd opposite party, who directed him to get in touch with one Mr. Narasimhan of SKS Automobiles, Salem who happened to be the nearest Mahindra service station for xylo.   Mr. Narasimhan asked flurry of questions and then came to a conclusion that steering rod of the vehicle was broken.   He assured the complainant that he will arrange for replacement of spares immediately.   However, steering rod assembly was not available in stock and thus had to be removed from a new xylo at the show room. One Mr. Kamalakannam, Service Technician set himself to task and replaced the steering rod by 11.00 PM.  The opposite parties were expected to replace the same with a new one. The steering centering and balancing had got affected and he did some manual adjustment with a request to go to the 4^th opposite party at Bengaluru to get it checked and balanced. The complainant drove the vehicle at 11.30 PM slowly and reached Bengaluru at 1.30 AM on 26 Dec 2009.  On 26/12/2009, the complainant brought the vehicle to the 4^th opposite party where one Mr. Vijay looked into the steering balancing and did some adjusting but was not able to completely finish the task as he did not had requisite equipment. The vehicle continued to have following problem:

1. Steering had a play, was not centered and did not give the comfort feel.
2. The vehicle veered to the left when driving.
3. There was shake in the steering while driving and the wheels wobble/skid when breaks were applied.
4. The vehicle had vibration when driven above 110kmph.

On 25 January 2010, there were erratic changes in the vehicle such as;

1. The engine of the vehicle stalled in 1^st /2^nd gear.
2. The vehicle did not start at first ignition and took a long time after repeated attempts. The ignition sound was also croaky.
3. The door locks came on as soon as the vehicle was started, It should normally be at 25kmph.
4. The Digital Drive Assist system (DDAS) initialize when the vehicle is started.

The complainant submits that the vehicle was handed over to 3^rd opposite party for servicing on 27.01.2010.   The 3rd opposite party returned the vehicle on 28.01.2010 but all the above referred problems continued to exist. There was new complaint this time as the front door of the car did not get properly aligned. It was because of faulty service by 3^rd opposite party.  On 30.01.2010, the complainant gave the vehicle for check up to the 4^th opposite party and took delivery of the same on the same day. But the complainant noticed the following problems.

1. The right door was creating an irritating sound while the vehicle was on move.
2. On remote unlock8ing of the car, 3 beep sounds came. Checked-no doors were open.
3. After inserting & turning the key

1. Continuous beeping sound.
2. All indicators in the dashboard blinking.
3. DDAS reset itself. Had to deed the date & time get the display.
4. Doors locked on starting the car.

1. Car started OK, but on switching on, the DDAS had reset. It required manual feeding of date & time.
2. While driving suddenly all the speedometer indications went off, beeping sound. Within 1-2 second the indications came back.
3. DDAS against reset to be fed manually.

On 01.02.2010 the complainant found the following problems:

1. Car started Ok, but on switching on, the DDAS had reset. Required manual feeding.
2. When the vehicle was started after a short stop, all indication, cabin lamps went off. However one the car moved the indications switched on.
3. On 01.02.2010 the complainant found the following problems:

On 02.02.2010 the complainant found the following problems:

1. On inserting and turning the key, the indicator lamp indication in the dashboard flickered 2times and went off.

On 03.02.2010 the complainant found the following problems:

1. Suddenly the right head lamp & bumper lamp had gone dim.

The complainant submits that the problems with the steering adjustment continues as on this date, and move specifically,

1. Vehicle is imbalanced.
2. Steering has a play to the right.
3. Vehicle still veers to the left, putting additional pressure on the shoulders of the complainant to keep the vehicle straight. The risk of the vehicle going out of control is very high.

On 08.02.2010 the complainant found the following problems:

1. The central lock8ng did not work on pressing the key. The complainant had to lock/unlock 3-4 times after which the system worked and the locks opened.
2. On inserting and turning the key- Beeping sound with the indicati8ons in the dashboard flickered. It stopped after a few seconds.
3. On switching on the ignition- the locks came on

On 09^th  February 2010- when the complainant started the car in the evening after office he found

1. The beeping sound for seat belt abruptly stopped after 2beeps.
2. The right side headlamp and bumper lamps were again dim as before.

On 08 Feb 10, Mr. Sunil Ahuja of the 4^th opposite party, called upon the complainant and assured him that he will look into the matter, but he requested the complainant to bring the vehicle to Bangalore.  e complainant started at 4.00 PM on 10/12/2009. At around 8.30 PM, when the complainant was nearing Krishnagiri, the headlights of the vehicle became dim. The complainant therefore switched on bumper lights as well. When the complainant was about 5kms from Krishnagiri, the headlight as well as the bumper lights went off completely. The complainant drove in total darkness for about 3kms till he reached the man highway. The complainant stopped the vehicle at about 9.15 PM and called the helpline. After waiting for about 10 minutes, the complainant tried to start the vehicle and it started. The lights were switched on with normal brightness. The complainant continued his journey towards Bengaluru. But as the complainant reached the Krishnagiri toll, about 5kms from where the complainant stopped earlier, the lights against became absolutely dim, the check engine lamp came on and the engine started revving up and the vehicle stopped of its own. Any attempt to start it was futile as the battery seemed totally dead. The complainant called the helpline once again. They directed him to go back to Dharmapuri where there was no Xylo service. The complainant had to literally plead and explain to them and finally they agreed to send a tow truck from Bengaluru. This was at about 10.30 PM.  The complainant stated  that he had no other option but to wait at the dark roadside and sleep in the vehicle. The tow-truck finally reached the spot at 1.30AM on 11 Feb 10. The complainant's vehicle was then loaded in to the truck and taken to Bengaluru at 2.30 AM. The complainant sat in the vehicle on top of a truck and that too in the midnight enroute to a garage. He finally reached the 4^th opposite party at 5.00 AM on 11 Feb 10. The complainant submits that the repair of the vehicle took 10 days as the parts required had to be specifically ordered from the Mahindra factory. The complainant was informed that the screw of the main connector below the fuse box had a cut in the thread. It was said to be a manufacturing defect which caused the complainant tremendous mental agony, tension and scare of using the vehicle and physical pressure and trouble of spending time repeatedly on the road side and sleeping on top of a truck. The complainant submits that he was informed by the 4^th opposite party that the entire engine wiring, alternator and the regulator have been changed. The complainant had no other go there delivery of the vehicle on 20/02/2010 and drove it to Pondicherry. That problem that still persists apart from the problems already stated to be existing in the aforementioned paragraphs is:

1. The driver window is not functioning properly while closing it.
2. The AC seems less effective as the blow from the ventilators is low even at full power. Then AC functioning is not as before.

The complainant has sent emails to the senior management at the 1^st opposite party, including customers care on 12 Feb 10 complaining about the vehicle and to his shock not a person from the 1^st opposite part has called him to enquire about the status of the vehicle. The complainant has sent emails and comm8nications on 27/2010, 03/02/2010, 04/02/2010, 09/02/2010, 10/02/2010 and 17/02/2010.  Since there was absolutely no response from the opposite parties and his vows with the vehicle was only multiplying with the passage of every day, the complainant issued a legal notice dated 05/03/2010 narrating the problem in detail and calling upon the opposite parties to recall the defective vehicle and pay compensation. The notice was received by all the opposite parties. The 1^st opposite party acknowledged the receipt of legal notice vide its letter dated 15/03/2010 and assured to look into the complaint.  On 10th April 2010 at about 6.30 PM after starting the vehicle the right side head lamp became dim.  It restored to normalcy after about 15 minutes. After p0arking the car and starting it again after 30 minutes, the right side head lamp went dim again. When the complainant started the car in the morning the outside temperature and relative humidity indication in the DDAS was not available. But when the complainant started the car in the evening, they were available.  On 12.04.2010 evening   when the complainant started the car, right side head lamp was dim.   On 23^rd and 24^th April 2010 evening g when the complainant started the car, the same problem with the DDAS cropped up again.  The inside temperature indication and the relative humidity indications did not appear on DDAS.  The complainant had his vehicle serviced from 4^th opposite party on 16.4.2010 where the complainant had specifically complained that a Rotating noise inside the driver seat door as if something is loose inside and left seat cannot be lifted as the locking arrangement has a problem and right seat gets misaligned when it is reclined.  On 3.5.2010 at 11.00 a.m. after parking the car in the town, the complainant noticed that DDAS inside temperature and relative humidity indications did not come on.  This is despite having spent another two days in the work shop to handle the defects, rattling sound in the dashboard, the speedometer panel was fitted loose and the sound in the right driver seat.  The complainant has been reporting about the complaints to the opposite parties through their official email ID.  The first opposite party had also sent mails on various dates from 4.2.2010 to 4.5.2010 giving explanation that his problems has been directed to the relevant people who can address his concerns and also gave assurances that all the issues will be taken care on priority to the complainant's complete satisfaction.  But the complainant problems have not yet been solved till this date.  Hence, this complaint.

          3. The reply version filed by the first opposite party briefly discloses the following:

          The complainant was regularly getting the disputed vehicle serviced by the third opposite party and he has signed the full satisfaction for the services rendered to him.  The vehicle is in good and running condition.  Most of the issued alleged by the complainant do not fall under the purview of manufacturing defects since the complainant has made some modifications / alterations in the vehicle.  The removal and refitment of seat covers through a local vendor caused malfunction of seal recliner mechanism, fitment of higher capacity head lamps caused fusing of the head lamps, unauthorised tampering of the electrical system by a local garage caused periodic non-function of the Distant Driver Assistant System,  fitment of sun control film through a local mechanic caused door rattling noise and fitment of DVD Music System and LCD caused electrical dysfunction in the vehicle.  This opposite party further stated that the issues arising out of such fitments were attended to by the concerned dealer even though the same did not fall under the purview of warranty.  Each time when the subject vehicle was brought to the service station with a problem resulting out of such modification or fitments, the concerned service station brought this fact to the notice of complainant.  Hence, prayed for dismissal of the complaint.

4. In the reply, the second opposite party has stated that:

While denying the allegations of the complainant, it is stated by this opposite party that the complaint is not maintainable.  Except the para 2 allegations of the complainant, there is no other complaint.  It is further stated by this opposite party that the car was inspected by the  complainant and this opposite party's  staff cleaned the car to the satisfaction of the complainant.  After delivery, the vehicle was not brought either to this opposite party or any of the authorised dealer till date.  Further the complaint were minor in nature and the complaint was promptly attended immediately done satisfactorily and the car was delivered to the complainant.  Since the car was not brought to this opposite party after delivery for any service, there can be no complaint against this opposite party and consequently, there is no deficiency in service.  Hence, prayed for dismissal of the complaint. 

          5. The following are the reply filed by the third opposite party.

          The complainant has regularly serviced his vehicle i.e. on 15.12.2009, 27.01.2010, 06.09.2011, 12.12.2011, 29.03.2012, 11.07.2012, 25.07.2012, 30.07.2012 and 18.10.2012 with the full satisfaction and there is no delay or any deficiency in service rendered by this opposite party.  The alleged complaints were caused due to local unauthorised service / modifications, alterations done by the complainant and hence, they were not covered by the warranty condition of the company.  Hence, prayed for dismissal of the complaint.

 6.  The reply filed by the fourth opposite party discloses the following:

          On 26.12.2009 the complainant brought his vehicle to this opposite party for repairing the steering rod assembly and the same had been rectified and replaced by a new steering rod assembly and he was advised to have regular check up with the authorised service persons of the company and the complainant also sent appreciation letter through his mail to this opposite party.  On 10.02.2010 this opposite party received a phone call from the help line by the complainant stating that the vehicle got break down nearby 5 kms. from Krishnagiri.  Immediately, this opposite party sent recovery vehicle and towed the vehicle to the nearby service yard and the engine wiring, alternator and the regulator have been newly replaced and the entire defect had been rectified with full satisfaction of the complainant.  It is stated by this opposite party that the complainant is not covered under any warranty.  Further, the complainant failed to establish the alleged defects through any supporting documents or any expert opinion.  The complainant had made some modifications in the vehicle by unauthorised persons.  Since there is no deficiency in service, this complaint is liable to be dismissed.

7.       The complainant was examined as CW1 and Exs.C1 to C14 were marked through him.  On the side of first Opposite Party,
Thiru G. Ramanarayanan, Customer Care Manager was examined as RW1 and marked Exs.R1 to R8, one  Vanjikovan, HR Executive, was examined as RW2 on the side of second opposite party and on the side of third opposite party, one B. Kalidass,  General Manager was examined as RW3 and marked Exs.R9 and R10.

8.       Points for determination are :

          1. Whether the complainant is a Consumer?

2. Whether, there  is any deficiency of service attributed by the Opposite Parties?

3. Whether the complainant is entitled for any relief?

            9. Point No.1:

           The complainant purchased a Xylo E8 SUV vide Regn. No. PY 01 AW 8565 from second Opposite Party on 1.6.2009 (Ex.C1) manufactured by the first opposite party and Opposite Party No.3 and 4 are the authorised Service centre of the first Opposite Party wherein the complainant left the car for service for the defects alleged by the complainant in the complaint.  It is pertinent to note that the complainant was undisputedly a Consumer as against all the opposite parties at the time of filing the complaint, but, the complainant has failed to keep up the status of Consumer all along proceedings of this complaint as the complainant has sold the alleged disputed the vehicle mentioned in the complaint to the third party in the midst of the proceedings without the permission of this Forum.   

            10. It is observed by the Forum that since the complainant has already sold the vehicle during the pendency of the complaint without the permission of the Forum and the same being admitted by the complainant in his written arguments, the complainant ceases to be a Consumer under the Consumer Protection Act. 

          11. Further, the Counsel for the opposite parties has also relied upon the decision of the 'Hon'ble National Commission' in support of the contention that the complainant is not a Consumer wherein, it was held that the complainant cannot remain as Consumer after the sale of the vehicle during the pendency of the complaint.

           1. In  Revision Petition No. 2622/2012 dated 11.10.2013 [M/s Honda Cars India Ltd. vs 1. Jatinder Singh Madan and others].

           "…. Once vehicle is sold during pendency of the complaint, complainant does not remain consumer for the purposes of Consumer Protection Act….."

and the same view held in Revision Petition No. 2562/2012 dated 25.09.2013
[1. Tata Motors and others vs 1. Hasoor Maharaj Baba and others].             

           12. In view of the decisions held above by the Hon'ble National Commission, it is held by this Forum that the complainant is not a Consumer as against the Opposite Parties.  This point is answered accordingly.

           13. Point Nos. 2 and 3:

           In pursuance of the decision held in point No.1 by this Forum that the complainant is not a Consumer, the issues in Point Nos. 2 and 3 need not be answered. 

14. In the result, the complaint is hereby dismissed. No costs.

Dated this the 14^th day of June 2016.

                                                                                                                                   (A.ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

                                                 MEMBER

(V.V. STEEPHEN)

                                                     MEMBER

COMPLAINANTS' WITNESS:

CW1           26.04.2011           Ramesh Menon     

OPPOSITE PARTIES WITNESS: 

RW.1          14.10.2014           G. Ramanrayanan.                           

RW2           08.01.2015           Vanjikovan

RW3           08.01.2015           B. Kalidas

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:   

 LIST OF MATERIAL OBJECTS:      NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

    MEMBER

(V.V. STEEPHEN)

    MEMBER