Karnataka

StateCommission

CC/636/2018

Venkataraju - Complainant(s)

Versus

M/s Mahindra & Mahindra Ltd. - Opp.Party(s)

T.Nagaraja

22 Sep 2021

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 22^TH DAY OF SEPTEMBER 2021

 

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH    : PRESIDENT

MR. K. B. SANGANNAVAR                                : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Consumer Complaint No. 636/2018

 

Venkataraju S/o. Chinnappa, R/a Medi Mallasandra Village & Post, Hoskote Tq., Bengaluru Rural Dist. (By Sri. T. Nagaraja) V/s

….…Complainant

1.  M/s Mahindra & Mahindra Ltd.      Gateway Building,      Appollo Bunder, Mumbai-400001 2.  Sanjay Joel P.      Vice President-Service,      Sireesh Auto (Pvt.) Ltd.,      Regd. office at:      97/B, 1st Floor, 6th Block,      Koramangala, Bengaluru-560095 3.  M/s. Sireesh Auto      No.33/11, Rupena Agrahara,      Near Madiwal Silk Board,      Hosur Road, Bangalore-560068 4.  Sireesh Auto (Pvt.) Ltd.      No.108/2, 1st Cross, M.S.R. Layout,      Opp: Multiplex Theatre,      Behind Bhagini Palace Restaurant,      Marathahalli, Bengaluru-560037 (OP No. 1 by Sri. Rishabha Raj Thakur OP Nos. 3 & 4 by Venkataramana Reddy)

…..…Opposite parties

 

O R D E R

 

Mr. K. B. SANGANNAVAR, JUDICIAL MEMBER

 

This is a complaint filed under Section 17 of the Consumer Protection Act, 1986 for return of Rs.18,90,000/- along with interest at the rate of 18% p.a. from the date of sale of the vehicle or to replace brand new Mahindra XUV 500 car and compensation of Rs.10.00 lakhs for the deficiency in service on the part of OPs along with Rs.25,000/- towards litigation costs.

2. Complainant has stated in his complaint, OP No. 1 is the manufacturer, OP No.2 is the Regional Office, OP No.3 is sales office, while OP No.4 is Service Centre.  He purchased Mahindra XUV 500 LMV car of M silver colour bearing Engine No.WTJ4E10823 with chassis No. MA1YU2WTUJ6E15200 from their dealer.  This car was registered with department of transport under Registration No. KA 53 MF 2699 through RTO, K.R.Puram, Bangalore on 25.06.2018, for a total sale consideration of Rs.18.90 lakhs inclusive of insurance and registration charges.  After purchase of this car, it started giving lot of problem from day one in respect of fixation of back door, break down for two times, door glasses are not properly working, engine problem as the coolant oil was empty, door’s are wide gap, service was not done properly and not running with smooth, having heavy sound.  It is like a demo vehicle.  Again while travelling the car got break down, it was towed by Mahindra Company to the service centre.  It was told by the service centre that engine was seized and company issued engine failure certificate in company letter head. In view of improper working condition of the car, he left the car for setting right problems with service centre for thrice.  The problems were not properly attended by saying that there is engine problem which is a manufacturing defect.  In this regard he gave a representation on 31.10.2018 to OP No. 3 requesting to exchange the car with a new one as it has got engine problem which is a manufacturing defect.  However, OP No. 3 has not at all taken care of the said representation.  Car was handed over to OP No.4 custody on 31.10.2018 as per job card No.R019D007075, but, they gave evasive reply on 12.11.2018, they have decided for higher aggregate replacement of engine instead of repair under warranty.  The complainant requested OPs to replace the car with new one or else to refund the amount taken from him, which was not considered by OPs.  The car still in the opponents’ service showroom in Sireesh Auto Pvt. Ltd., Marathahalli.  He suffered huge loss and also paying money for his daily Cab travel and he has availed loan of Rs.12,91,000/-, he is still paying EMI of Rs.26,829/-.  The first service was done at 1000 kms. and again the second service at 5,000 kms, after these two services vehicle ran only 1,000 kms. After that vehicle started to give trouble, engine was seized.  There is no shelter for vehicle in service centre, because of this vehicle will be damaged.  The OPs provided lower version self drive car, it was returned on demanded of OPs on 27.11.2018 and it is still with the OPs.  In this regard he raised a consumer complaint either to replace with a new Mahindra XUV 500 car or to return sum of Rs.18.90 lakhs along with interest at 18% p.a. and compensation at Rs.10.00 lakhs along with Rs.25,000/- towards litigation costs.
3. This complaint is contested by the OPs, contending that vehicle purchased by the complainant is a well established product in the market and over a period of years the consumers are using the product where the complainant alleges a defect in goods which cannot be determined without proper analysis or test of the goods.  The complainant reported his vehicle by towing to OPs workshop on 30.10.2018 at 6,155 kms. with complaint of coolant not there in the reservoir tank, wherein the vehicle was duly attended by the workshop.  Upon a thorough inspection by the dealer technician, it was observed that the said issue has occurred as the complainant had been continuously driving the car without heeding to the low coolant level.  As provided in the maintenance schedule chart, coolant is an item that has to be inspected at 1,000 kms., 5,000 kms. and 10,000 kms. and thereafter, at every interval of 10,000 kms. and replaced at every 80,000/- kms.  It is submitted that it is the owner’s responsibility to make sure the specified maintenance including general maintenance service is performed, as per clause 14.1 of the general maintenance and as per 14.7, it should be performed frequently, in addition to checking the items listed.  The warranty shall not apply to and the OP shall in no way be liable for any vehicle which shall have been repaired outside an authorized Mahindra Service Station or which has been altered or modified or built upon in any way or which has been subject to misuse, negligence or accident. 
4. It is submitted that the loaner vehicle was under dealer purview and loaner vehicle was arranged to the complainant from 03.11.2018 to 26.11.2018 (23 days).  The complainant returned the car to the OPs on his own accord.  Complainant has rejected the options suggested by the OP and instead demanding to exchange the car with a higher model, which indicates his malafide intention of gaining free upgrade.  The complainant was an esteemed customer and a vehicle new one.  Hence, OPs offered to replace the higher aggregate (engine assembly) instead of repairing the same as per the warranty policy.  In order to ensure most suitable repairs and optimum solutions, they take a decision on the replacements to be performed and the complainant’s approval did not to be sought for such replacement.  The complainant is not entitled for either for return of Rs.18.90 lakhs along with interest at the rate of 18% p.a. or replacement with brand new Mahindra XUV 500 car and not entitled for compensation of Rs.10,000/- and litigation cost of Rs.25,000/-.
5. In view of rival contentions of the complainant and OPs, Commission received affidavit evidence of complainant and Ex.C1 to C44.  On the contrary received affidavit evidence of Manager Accounts and duly authorized persons of OP Nos.2 to 4 during the course of enquiry and after closure of enquiry heard arguments addressed by Learned Counsel for complainant and OPs. 
6. Now, the Commission to examine whether complainant is entitled for replacement with brand new Mahindra XUV 500 car in place of the car purchased from OP Nos. 1 to 4 which is registered under No. KA 53 MF 2699 and to examine whether his entitlement of the reliefs for the alleged deficiency of service on the part of OPs as prayed ?.
7. We have to examine the materials placed on record of which, Ex.C1 is a certificate of registration, wherein could  see the number of chassis and engine, which was registered in the name of Venkata Raju S/o.Chinnappa, who is none other complainant herein. It   was registered on 25.06.2018 by registering Authority, K.R. Puram, Bangalore.  The model of the vehicle is Mahindra XUV 500 manufactured in the month of May 2018 and in the very next month   on 25.06.2018 as per Ex.C2, it was delivered to the purchaser Mr. Venkata Raju.  The complainant purchased this vehicle from Sireesh Auto Pvt. Ltd., authorized dealer for Mahindra and Mahindra.  In Ex.C3 could see grand total of Rs.15,42,705/-.  As per Ex.C4 complainant has paid Rs.2,88,228/- towards road tax and Rs.45,000/- balance amount through cheque was paid to Sireesh Auto Pvt. Ltd. as per Ex.C5 on 23.06.2018.  Thus, these documents placed by complainant could be said admitted by the Ops. Thus these documents coupled with statement of complainant made in the complaint corroborate car was sold in favour of Mr.Venkata Raju for such price by the OPs. Whether OP No. 2 is the regional office or not, case remains that RW1 the Manager Accounts being authorized signatory submitted evidence on behalf of OP Nos. 2 to 4 and case remain that OP No. 1 is a company, manufacturing cars in the name and style Mahindra and Mahindra.  It is therefore, in this complaint, we are of the view that OPs in one or the other way involved in selling of the vehicle in favour of complainant which has to be held in favour of the complainant.
8. Ex.C6 is vehicle condition report/ job card which is dated 30.10.2018.  One day after this, complainant gave representation on 31.10.2018 to OP No. 3 / sales centre requesting to exchange car with new one as it has got engine problem which amounts to manufacturing defect, as per Ex.C8.  The next document would be Ex.C10 written by OP No.3 to complainant exactly after 12 days from Ex.C7 namely on 12.11.2018 either in reply to Ex.C7 or C8 as the case may be being their esteemed customer and considering age of the vehicle they have decided to go for higher aggregate replacement (engine) instead of repair under warranty. This infact would play a vital importance to decide the matter in dispute between parties to the complaint which will be discussed infra.
9. The Ops informed to the complainant that a manufacturer’s “standard vehicle warranty” protects the customer against defects in factory, material, workmanship and they as M & M’s authorized dealer will repair or replace any part found to be defective in material/ workmanship and they assured that they have proposed the most amicable solution and requested the complainant to support on proceeding with completion of the job which is flatly refused on the ground, when vehicle itself is having manufacturing defect, that too after 3 or 4 months of purchase of the vehicle investing huge amount as stated in the complaint requested for replacing of the said car with brand new Mahindra XUV 500 car, which was not accepted by the Ops, since then, the vehicle is with the OPs and in the meantime, as the complainant has raised consumer complaint contending,  no purpose would serve either by repair or replace of parts found to be defective in material.  When OPs themselves   found and   decided considering the age of the vehicle to go for higher replacement (engine) instead of repair under warranty is nothing but vehicle could not be replaced or parts found to be defective in material.
10. In this regard learned Counsel for complainant would submit   replacement of engine for higher aggregate replacement is nothing but purchase of an old vehicle. Further would submit even without the concurrence of the complainant, OP No.4 has replaced original defective engine with new engine thereby the value of the car on re-registration would automatically decrease and on such replacement with new engine vehicle needs to be re-registered has some considerable force.  It is found from the enquiry, car in question was purchased by complainant availing loan of Rs.12,91,000/- from Axis Bank Ltd., and he is paying EMI at Rs.26,829/-. It does mean paying along with interest agreed upon. When OP No.2 admits the defect and   have decided for replacement of defective engine with a new one, in our view not necessary to invoke Section 13(1)(c) of Consumer Protection Act 1986, considering the date of purchase and its usage as found in the enquiry has some considerable legal force to turn down the contentions of the OPs that non obtaining of the report from expert would come in the way of commission to consider for replacement of the vehicle with new one of the same brand.  It is to be noted herein that vehicle is still with the OPs as   and such defects revealed from the vehicle within short span from the date of purchase of said vehicle. As we have repeatedly said Ops have decided to replace the whole engine itself, as such in our view could have considered the request of the complainant being their esteemed customer as contended by counsel for complainant has some considerable force.  If the vehicle had undergone strict quality check, OPs could have submitted a report to that effect on this vehicle and to place such report from expert may not be difficult for the OPs   to substantiate their contention that vehicle sold by them in favour of complainant is in all respect undergone strict quality check and it is a problem free vehicle, run on the road as on the date of delivery and there onwards. 
11. Learned Counsel for complainant to find support of the case of the complainant relied on a decision reported in LAWS (NCD) 2007-9-75 in Controls and Switchgear Company Ltd., Vs. Daimlerchrysler India Pvt. Ltd. and Ors. wherein in paragraph 48 it was held we can say without hesitation that if the car is defective, may be, on one or other count but that would not give any satisfaction to the consumer who has spent large amount for its purchase.  Non-replacement of the vehicle in these set of circumstances, would tantamount to unfair trade practice.  In paragraph 49 it is required to be directed that the OPs shall replace car No.DL-5 CR-0333 with a new car of the same or similar model; or, alternative refund its full purchase price of Rs.1,15,72,280/- which was paid by the complainant to the OPs for the purchase of the two vehicles in question and take back the vehicle.  Further in paragraph 52 allowed the complaint partly directing OP Nos. 1 and 2 to replace car with a new car of the same or similar model or in the alternative to refund Rs.58.00 lakhs approximately.  Further in LAWS(NCD)-2007-11-41 Hon’ble National Consumer Disputes Redressal Commission held in last paragraph “it is also contended by the Learned Counsel for the petitioner that car was used by the complainant for more than one year and therefore, appropriate deduction in the amount payable to the complainant be made.  In our view, this submission cannot be accepted because the complainant has also invested money for purchase of the said car and on the same amount he has lost interest.  The car was required to be used after its repeated repairs.  In such a case, it was the duty of the petitioner to replace the car as they were not in a position to rectify the defect.  Hence, there is no question of deducting any amount in the present case.  In this view of the matter, the order passed by the State Commission does not call for any interference in revision. Hence, the petitioner shall pay remaining amount of Rs.2,59,783/- along with sum of Rs.25,000/- awarded by the State Commission by way of compensation.  Further in IV (2016) CPJ 79 (Ker.) in Arun S.S. Vs. EVM Passenger Cars (I) Pvt. Ltd. and another wherein it was held as per Commission report, though no manufacturing defect was found, repair carried out by 1^st OP was not at all satisfactory.  Thus, upon evaluation of evidence placed on record coupled with photographs and the CD submitted by complainant marked as Ex.C44, which would substantiate the case of the complainant, no purpose would serve to go for higher aggregate replacement (engine) instead of repair under warranty, except to replace the said car with same brand new Mahindra XUV 500 car since they availed loan from Bank and are paying EMI along with interest, which would meet the ends of justice to consumer, since, he had faced problems in the said vehicle, as found in the enquiry, which was accepted by the OPs immediately after purchase of the car and when the said car is with the custody of the Ops, since 30.10.2018, OPs could have decided to replace the said vehicle with brand new car to have confidence of the general public with their company for the satisfaction of the consumers, since, their vehicles run on Indian roads in lakhs in number and still the company has build its own reputation in the Global  Auto Market. In such circumstances, in our view it is the bounden duty of the OPs to satisfy their consumers instead of procrastinating litigations. In our view this could have been always be exercised at an earliest point of time, since the subject matter is the vehicle and its consequences would be far reaching which could not be explained in one sentence for both in particular for a middle class people having been purchased the vehicle either for his livelihood or for personal use as the case may be.   In other words, as found in this enquiry, complaint raised in the year 2018 and now we are in the year 2021.  In so far as contention of Learned Counsel for OPs that though the sales representative of their company have advised for the top end model in the said vehicle complainant has opted the lower version as the same was suited for his financial capability and they have genuinely complied the requirements of complainant and requested him to take back the vehicle and in-spite of repeated reminders from them he did not chose to take back the vehicle for the reasons best known to him and that under the warranty coverage no consent is required to replace as per warranty replacement which was communicated to complainant on en-number  of occasions over phone and by sending letters.  However, no response from complainant to such requests, as such, complainant has no cause of action to raise complaint with such allegations to seek prayers in the present form, since, under the warranty company’s authorized dealer will repair or replace any part thereby including all equipment or trade being limited to trade accessories could not be acceptable by the Commission for the reasons recorded in the preceding paragraphs. The reasons in this recorded supra are recorded by us, followed by the ratios of the Hon’ble National Consumer Disputes Redressal Commission or Hon’ble Apex Court of India.  We have to observe herein that  case on hand has to be evaluate on the basis of materials   placed by complainant and Ops. In other words to decide on factual situations, which in this case are rather   substantiate the case of complainant than the OPs, since, within short span or within few months from the date of purchase of the car in question by the complainant such grave defect in the vehicle was revealed. Admittedly, OPs have taken decision to change the entire engine, suffice to hold by such change of engine to a old body as contended by the complainant re-registration is required and the vehicle is bought on loan and has to invest money for its re-registration.
12. In the above such circumstances, the remedy left open to the complainant, if he is an esteemed customer of the Ops, would be to replace with similar such model or a similar such valued vehicle and not as contended by the OPs only to repair or replace the defective parts.  In so far as contention of OPs that complainant is not a consumer and to find support such contentions relying on decision reported in Civil Appeal No.4193/1995 in Laxmi Engineering Works Vs. P.S.G. Industrial Institute wherein in paragraph 24(iii) it was concluded a person who buys goods and uses them himself exclusively for the purpose of earning his livelihood, by means of self-employment is within the definition of expression ‘consumer’ and in paragraph 25, “so far as present case is concerned we must hold (in agreement with the National Commission), having regard to the nature and character of the machine and the material on record that it is not goods which the appellant purchased for use by himself exclusively for the purpose of earning his livelihood by means of self-employment, as explained herein above” could not be applicable on facts to this case, since, complainant has shown that he is a ‘consumer’ as defined under Section 2(d) of the Consumer Protection Act, 1986, did not come to their assistance. The next decision relied on reported 2009 SCC OnLine NCDRC 157 : [2009] NCDRC 156 : (2010) 1 CPJ 19 (NC) in the case of Dr. K.Kumar Advisor (Engineering) Maruti Udyog Limited Palam Vs. Dr. A.S. Narayana Rao and another wherein it was held “the state commission while issuing direction for refund of cost of the vehicle and refund of cost of repairs also made some sweeping observations and hold petitioner-company guilty resorting to unfair trade practice which in our view was quite unwarranted.  We, accordingly, in backdrop of these events, set aside finding of the State Commission and accept this revision fastening no liability against the petitioner either for refund of cost of the vehicle or reimbursement of expenses incurred by the respondent towards replacement of Electronic Control Module.  No compensation accordingly.  The revision petition, accordingly, succeeds but with no order as to cost” is again was decided on facts which could not be said applicable to the facts of this case.  The OPs relied on decision reported in (2006) 4 Supreme Court Cases 644 in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and another wherein it was held “various documents show that the appellant had indicated that downing of the engine was necessary to trace the problem.  There was no agreement to replace the engine system.  But, when the appellant asked the vehicle to be brought for the said purpose, Respondent No.1 did not do so.  To infer that there was any manufacturing defect in the said background is without any foundation.” which is again decided on facts matrix could not be applied to the case on hand.  Learned Counsel for OPs placed a decision in Revision Petition No. 674/2004 decided by Hon’ble National Consumer Disputes Redressal Commission in Maruti Udyog Ltd. Vs. Nagender Prasad Sinha & another wherein it was held “consumer herein shall be at liberty to realize the sum from the authorized dealer, i.e., Respondent No. 2.  The liability to pay interest and compensation, under the circumstances, would be that of respondent No.2 alone and the petitioner liable to pay interest at 18% p.a. cannot be upheld.” not apply to the facts of this case and lastly, Learned Counsel for OPs relied on (1996) 4 Supreme Court Cases 704 in Bharathi Knitting Company Vs. DHL Worldwide Express Courier Division of Airfreight Ltd. wherein it was held “when a person signs a document which contains certain contractual terms, normally parties are bound by such contract; it is for the party to establish exception in a suit.  When a party to the contract disputes the binding nature of the signed document, it is for him to prove the terms in the contract or circumstances in which he came to sign the documents need to be established.  Although in an appropriate case, the Tribunal without trenching upon acute disputed question of facts may decide the validity of the terms of the contract based upon the fact situation and may grant remedy, but each case depends upon its own facts.”   
13. Thus, from the above such discussions and expressing of our opinion on certain issues and considering the age of the vehicle to go for higher aggregate replacement (engine) instead of repair under warranty as per Ex.C10, we  conclude  OPs  are bound to consider the request of the complainant in so far to replace brand new Mahindra XUV 500 car and it goes without saying in the alternative to refund the sum whatever they received from complainant along with bank rate of interest, since the vehicle was purchased on loan and he is paying EMI along with interest, of course subject to furnishing details of the interest paid on Rs.12,91,000/- and for the remaining amount it would be at the rate of 6% pa. from the date of complaint till realization in consideration of the short usage of the vehicle by the complainant.  Further in so far as the relief sought by complainant for award of Rs.10.00 lakhs being compensation for deficiency in service and award of interest at the rate of 18% p.a. supported by the copy of the cab bills commencing from January 2019 to August 2019 amounting to Rs.4,50,314/- marked as Ex.C33 to C40, could not be considered, but, facts remains complainant was deprived to make use of the vehicle purchased by him for all these years namely since the date of handing over of the vehicle to the OPs till now, as such it could be inferred he  could have suffered some loss including financial loss and mental agony for which he has to be held entitled for some amount, but, not as prayed. 
14. Thus, in view of the above findings the Commission not considering the request of the complainant in the given circumstances is nothing but unfair trade practice and it amounts to deficiency in service on their part.  Accordingly, Commission proceed to allow the complaint filed under Section 17 of the Consumer Protection Act, 1986 in the following terms:

The OPs are directed to replace brand new Mahindra XUV 500 car/vehicle in place of the engine bearing No. WTJ4E10823 with Chassis No.MA1YU2WTUJ6E15200, registered with Karnataka State Department of Transport under registration No.KA 53 MF 2699 of RTO, K.R. Puram, Bangalore, registered on 25.06.2018 to the Complainant within 60 days from the date of receipt of this order.

 And in the alternative to refund the total sale consideration inclusive of insurance and registration charges along with interest at the rate paid to the banker by the complainant on Rs.12,91,000/- and for the balance amount at the rate of 6% p.a. from 01.11.2018 till realisation and do pay Rs.1.00 lakh towards compensation for the monetary loss and mental agony and Rs.25,000/- towards cost of litigation.

 

 

PRESIDENT

 

 

JUDICIAL MEMBER

 

 

MEMBER

CV*