BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

      Complaint No.97 of 2020

      Date of Instt. 07.02.2020

      Date of Decision: 13.11.2024

Sh. Ajit aged about 24 years son of Sh. Mool Chand Yadav, resident of House No.10, New Punjabi Bagh of village Bulandpur, Tehsil and District Jalandhar.

..........Complainant

Versus

1.       M/s Mahindra and Mahindra, Veer Savarkar Road, Nensey      Colony, Boribali East, Mumbai, Maharashtra-400066 through its   Chief Manager/General Manager.

2.       M/s Makkar Motors Private Limited registered office Jalandhar-         Phagwara Highways, near Paragpur Octroi Post, G. T. Road,        Jalandhar through its General Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)

Present:       Sh. R. K. Bhagat, Adv. Counsel for Complainant.

                   OP No.1 exparte.

                   Sh. Rakesh Dhir, Adv. Counsel for OP No.2.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant purchased vehicle Bolero/Big Pick Up/CBC/BSIV/White make Mahindra having Chassis No.MAIZU27BKJIH65927, Engine No.TBJIH72287, Serial No.JIH65927 through a legal and valid bill by paying the entire sale consideration by financing the vehicle through Equits Small Finance Bank Limited, the New India Assurance Company Ltd. vide Cover Note No.454103 for Rs.19,081/- and the said vehicle was handed over to the complainant through delivery challan dated 12.10.2018 dully issued and signed by the OP No.2 and also obtained the signatures of the complainant on the same. All of sudden a fault has been occurred in the said vehicle and in order to remove the same, the complainant approached the OP No.2 and narrated about the existing position of the said vehicle to the officials of the OP No.2. After that the OP No.2 asked the complainant to leave the vehicle in workshop of the OP No.2 and after thorough checking of vehicle the defect will be removed and the complainant was asked to wait for 2-3 days for the same and after 2-3 days, OP No.2 told the complainant that the engine of the vehicle is not in a working condition being bead and the officials of the OP No.2 have opened the entire engine of the said vehicle without the prior consent and permission of the complainant and the OP No.2 started demanding a sum of Rs.2,00,000/- from the complainant to remove the said defect, whereas the vehicle of the complainant is still under warranty which was of two years. The said vehicle stopped working being a defective piece and due to this the complainant suffered a great financial loss by not plying the vehicle on the road for his business purpose and to earn his livelihood. The complainant also visited the office of OP No.2, but all in vain. The complainant sent a legal notice to the OPs, but to no effect and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the said defective vehicle alongwith damages to the tune of Rs.1,00,000/- alongwith interest @ 18% per annum till the actual date of realization of the amount from the date of purchase of the said vehicle. Further, the OPs be directed to pay a compensation of Rs.1,00,000/- for causing mental tension and harassment to the complainant and litigation expenses be also awarded.

2.                Notice of the complaint was given to the OPs, but despite service OP No.1 failed to appear and ultimately, OP No.1 was proceeded against exparte, whereas OP No.2 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that the present complaint is legally not maintainable. Since, the complainant is engaged into commercial activities and the vehicle in question is being used for carrying out commercial activities and as a result the complainant does not fall within the definition of consumer and as a result the complaint is liable to be dismissed on this score alone. It is further averred that the complainant himself is a negligent and is stopped to file the present complaint on account of his own act, conduct, omissions and commission. The first service as per the company’s maintenance schedule handed over to the customer at the time of purchase of the vehicle, was to be done at 5000 kilometers. Second service is done at 10,000 kilometers and then third service is done at 20,000 kilometers. These first three services are labour free services and thereafter also service is to be done as per the given schedule. First engine oil change and engine oil filter change is done at first service against the charges to be paid by the complainant/customer. In present case, the complainant has not got done first and second service from the company's authorized service centre. The complainant came to the company for the first time after purchasing the vehicle on 06-2-2019 and at that time his vehicle was run for 17,865 kilometers. First time oil was also changed on 06.02.32019. In this manner, the complainant himself is negligent and on account of his negligence, the standard warranty conditions have been violated by him, so the OPs are not liable for any negligence or deficiency in services as alleged by the complainant. It is further averred that the complaint is malafide one and all the above said facts were also disclosed to the complainant, when the complainant approached the OP. The complainant was also told that the engine of his vehicle is not cranking but was seizing due to the untimely service and hence engine need to rebuild with replacement of necessary part such as crank shaft, connecting rod, crank case, piston with rings, oil pump, sleeve and sleeve ring, main bearing, CR bearing thrust washers, head gasket alongwith packing kit, required seals and necessary lubricants etc. It is further averred that the complainant has not come to the Court with clean hands and has suppressed and concealed the true and material facts from this Forum. It is further averred that the complaint is also barred on account of jurisdiction. On merits, it is admitted that the complainant had purchased the vehicle Bolero from the OP No.2 on 12.10.2018. It is also admitted that the product of Mahindra and Mahindra company is of good quality and has name in the market. It is also admitted that the engine was seized and it was cranking the market, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the arguments from learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

6.                It is not disputed that the complainant had purchased the vehicle Bolero from the OP No.2 on 12.10.2018. The complainant’s grudge is that all of a sudden fault occurred in the vehicle and in order to remove the defect of the vehicle, he approached the OP No.2 and at their instance, he left the vehicle with the OP No.2. After 2-3 days, he was told that the engine of the vehicle is not in a working condition. The officials of the OP No.2 had opened the engine without the consent and permission of the complainant. It has further been alleged that the OP No.2 demanded Rs.2,00,000/- from the complainant to remove the defect when the vehicle is still under warranty and the warranty period has not elapsed as yet. It has further been alleged by the complainant that since there is a manufacturing defect in engine, therefore, the vehicle be got replaced. This fact was brought to the notice of the OP No.1, the manufacturing company, but no action was taken.

7.                The claim of the complainant has been refuted by the OPs on the ground that there is no negligence on the part of the OPs. It is the complainant, who has not got done his first and second service from the company’s authorized service centre. First time the oil was changed on 06.02.2019. On 17.08.2019, the vehicle was handed over to the OP No.2 for accidental repair and it was second time and on 23.12.2019, the complainant brought to their notice for the first time that engine is not cranking, when he came for fourth visit at 42584 kms. The oil was changed at 34572 km instead of 20000 kms. So, this is because of the complainant’s own act, conduct, omission and commission, the complainant had to suffer problems. On the inspection of the vehicle, the complainant was disclosed that the engine is not cranking, but was seizing due to untimely service only, for this purpose, there is a need to rebuild the engine with replacement of necessary part such as crank shaft, connecting rod, crank case, piston with rings, oil pump, sleeve and sleeve ring etc. The cost of the repair was also told to the complainant. It has further been alleged that there is no expert evidence came on the file to prove that there is any manufacturing defect in the vehicle.

8.                 It is not disputed that there was a problem in engine of the vehicle. The complainant has proved on record the RC Ex.C-4, which is not in dispute. It is also not in dispute that on 12.10.2018, the vehicle was purchased by the complainant. The main defence of the OP is that the complainant did not get his service done from the company. As per the vehicle history produced on record by the complainant, the third service was got done on 06.02.2019 and the mileage was 17865 KMs. This was free service. This bill is of the OP No.2 only. Thereafter, the vehicle was sent for accidental repair and the mileage was 34535 kms on 17.08.2019 and on 23.12.2019, the service was done on at 42584 kms. All the documents including repair order, job order proved by the complainant were issued by the OP No.2. There is no rule that if the service is not got done within time or the same is got done outside the company, then it can seize the engine. The OP has alleged that the first and second service was not got done from the company’s authorized service centre, but there is no document on the record to prove that the first and second service was got done outside the company. These two services were free services as per the written statement of the OP. If the services by the company were free services, then the consumer would never opt to get the service done from outside the company, which was going to be paid service. There is no expert opinion to show that the first and second service was got done not from the authorize service centre of the company. It is admitted by the OP in the written statement also that engine was seized and it was not cranking and the reason is only that untimely service, but no rule has been produced on record or no instructions have been produced on record by the OP to show that if the services not done within time, it will lead to seizing/cranking of the engine.

9.                Cranking is a normal process where the starter motor spins the engine to initiate combustion and Seizing occurs when the engine components become stuck, preventing the crank shaft from rotating. The seized engine caused crank over. It is a mechanical defect and is serious damage. It requires major repair. In the present case, the parts to be replaced have been mentioned in the written statement, which are crank shaft, connecting rod, crank case etc. If the case of the OP is considered, the engine was seized within a year of the purchase of the vehicle. It has been admitted by the OP that their company is a good company and the product of OP No.1 is of a good quality and has name in the market. If it is so, then the vehicle should not have been so delicate that it would result into cranking or seizing of the engine within a year, if the service is not got done immediately as per schedule or got done outside the company. There is not much delay in getting the service as per the record produced by both the parties. So, it cannot be said that merely on the ground that there was untimely service the vehicle started cranking/seizing. As per literal meaning seizing is a mechanical defect. This shows that either there is an old engine in the vehicle or there is poor circulation of fuel because of some defect in the engine. It has been admitted by the OPs that the engine started seizing, the onus was on the OP to prove that there was no manufacturing defect in the engine as it was due to untimely service. In these circumstances, the complainant is not required to examine the expert witness rather it was the OP to disprove the allegations raised by the complainant, who has proved on record that every time service was got done from the OP No.2 only. In such circumstances, it is proved that there is a mechanical defect in the engine of the car, which requires replacement of the engine. So, the complainant has proved deficiency in service and unfair trade practice on the part of the OPs and thus the complainant is entitled for the relief.

10.               In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to replace the engine of the car, which is having a manufacturing/mechanical defect free of cost as at the time of problem the vehicle was under warranty and further OPs are directed to pay a compensation of Rs.20,000/- for causing mental tension and harassment to the complainant and litigation expenses of Rs.8000/-. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.  

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

13.11.2024         Member                          Member           President