DATE OF FILING : 04-07-2013.
DATE OF S/R : 22-08-2013.
DATE OF FINAL ORDER : 28-03-2014.
Sk. Md. Saidulla,
son of late Sk. Sirajuddin,
Village – Moubesia, P.O. Dhulasimla,
P.S. Uluberia, District –Howrah,
PIN – 711315. -------------------------------------------------------------- COMPLAINANT.
- Versus -
1. M/s. Mohan Motors Business Pvt. Ltd.
( Distributor of Mahindra & Mahindra Ltd., )
situated at Kona Expressway, Truck Terminal,
Village – Karwrtala, P.O. Bankra, P.S. Domjur,
District – Howrah, PIN – 711403.
2. Service Manager,
Mohan Motor Business Private Limited,
having its registered office
at 55, Chowrongee Road,
Kolkata – 700071.
3. Sales Manager,
Mohan Motors Business Private Limited,
having its registered office at
55, Chowrongee Road, Kolkata – 700071
and branch at Kona Expressway, Truck Terminal,
Village – Karwrtala, P.O. Bankra, P.S. Domjur,
District – Howrah,
PIN – 711 403.
4. Mahindra and Mahindra Ltd.,
having its office Gateway Building Apollo Bunder,
Mumbai – 400039. ----------------------------------------------OPPOSITE PARTIES.
P R E S E N T
President : Shri T.K. Bhattacharya, M.A. LL.B. WBHJS.
Member : Shri P.K. Chatterjee.
Member : Smt. Jhumki Saha.
F I N A L O R D E R
1. Complainant. Sk. Saidulla by filing a petition U/S 12 of the C.P. Act, 1986 ( as amended up to date ) has prayed for a direction to be given upon the o.ps. to return an amount of Rs. 3,37,500/- and/or to change the parts and engine of the vehicle in question and/or replace the vehicle in question, to pay an amount of Rs. 1,00,000/- as compensation for causing mental and physical harassment along with litigation costs of Rs. 50,000/- and other reliefs as the Forum may deem fit and proper.
2. Brief facts of the case is that complainant purchased one GIO Passenger Red –III vehicle from o.p. no. 1, which is manufactured by o.p. no. 4 at a price of Rs. 2,06,000/- after availing a discount. For such purchase, he paid Rs. 37,000/- as booking money on 22-08-2012 and took a loan of Rs. 1,50,000/- duly accorded by o.p. no. 5 And he is paying the EMI of Rs. 5,930/-. Apart from Rs. 2,06,000/-, he paid an amount of Rs. 20,500/- as road tax & registration and insurance of Rs. 9,317/- for the 1st year. And on 13-09-2012, the vehicle was delivered to him. One warranty book of ( owners’ manual ) of o.p. no. 4 Annexure ‘E’ collectively was also handed over to the complainant from which it is evident that o.p. no. 4 offered warranty for one year or 60000 kms. Whichever occurs earlier from the date of delivery of the vehicle to the complainant. But it is alleged by the complainant that immediately after the delivery of the vehicle on 13-09-2012, the vehicle started giving problem and it stopped on the road here and there and according to the complainant it was due to defect in the engine or other parts of the vehicle which is best known to the o.p. no. 5. For repairing purpose, complainant used to take it to the service centre of o.p. no. 1 for at least 4-5 times either for repairing the defects or for changing the necessary accessories for smooth running of the vehicle. But nothing was done properly. Complainant on different occasions like on 01-10-2012, 12-06-2013 paid different amounts like Rs. 2,000/-, Rs. 1,500/- and 28-05-2013, 07-06-2013, 08-03-2013 so on and o.p. demanded all these amount in violation of terms and conditions of the warranty book because as per ‘warranty obligation, o..ps. were supposed to repair or replace those part or parts of the vehicle ‘free of cost’ if the malfunctioning of those parts was not due to misuse or improper handling of the vehicle vide Annexure ‘E’ collectively and warranty booklet annexed. But even then, the vehicle was giving trouble continuously. Ultimately, he talked to the Mumbai Authority of o.p. no. 1 for innumerable times but nothing fruitful happened. Being aggrieved and frustrated complainant filed this instant case with the aforesaid prayers.
3. Notices were served. O.ps. appeared and filed their respective written versions. Accordingly, case heard on contest.
4. Upon pleadings of both parties two points arose for determination :
i) Is there any deficiency in service on the part of the O.Ps. ?
ii) Whether the complainant is entitled to get any relief as prayed for ?
DECISION WITH REASONS :
5. Both the points are taken up together for consideration. It is the specific plea of o.p. nos. 1, 2, 3 & 4 that complainant had misused the vehicle in several ways. O.p. nos. 1, 2 & 3 in their written version vide para 4(a) to 4(d) have categorically stated that complainant had never complied with the instructions given by them regarding the use of the vehicle in question. They have also mentioned the dates when complainant took his vehicle for necessary repairing on 23-05-2013, 07-06-2013, 14-06-2013 and after detecting the problem, necessary parts were changed on payment of cost by the complainant. O.p. nos. 1 to 3 have also observed that the engine of the vehicle was tuned by the roadside unauthorized technician, so that diesel consumption may be less even he was using spurious oil. Also, complainant never filled oil in full tank. Rather in between the trips in running condition, he used to refill as per requirement. Furthermore, in order to carry more passenger than the approved capacity, the seats of the vehicle was modified along with a foot board on the rear side of the vehicle. And the vehicle was running continuously without any rest which certainly hampers the performance of the vehicles. From Anneuxre dated 27-06-2013, the subject vehicle ran for 40350 kms, i.e., during the period of 13-09-2012 to 27-06-2013 which means that the engine of the vehicle is quite O.K. O.p. no. 4 also in its written version has categorically denied that there was any inherent manufacturing defect in the vehicle but only due mishandling of the said vehicle by the complainant, it was required to be given different type of “running service” frequently since its purchase. O.p. no. 4 in its additional written version has also annexed two photographs on affidavit claiming to be the photographs of the subject vehicle. But we cannot accept it as evidence, since both the photographs do not display the number plate of the subject vehicle. Complainant in his affidavit in reply has not denied the allegations of o.p. nos. 1 to 4 regarding the misuse and mishandling use of spurious oil, modification of body of the vehicle etc. But he has mentioned again that o.ps. no. 1 to 3 took charges for repair and replacement in spite of the fact that he knew that during warranty period, parts are to be repaired or replaced at ‘free of cost’. But he paid the charges without endorsing his ‘objection’. It is surprising for us. And from the service job sheet of different dates, we could see that vehicle ran for 40,350 by 27-06-2013, i.e, within 9-10 months the vehicle travelled for such a huge kilometer. And according to o.p. nos. 1 to 4, complainant himself has violated the terms and conditions of the warranty of the vehicle.
6. We have carefully gone through the documents filed by both parties. From all service job/sheet it is observed that the vehicle was given ‘service’ as ‘Running Repair’. The vehicle was all along running on the road and for that reason, complainant could continue to pay the E.M.I. of o.p. no. 5. It is also our common experience that in a country like ours, which is over populated, route vehicles are being plied always in an over loaded condition. Complainant is not an exception. For the sake of earning his livelihood he had to indulge into all kinds of violations or breach of terms and conditions. And it is also to be noted that whenever he took his vehicle to o.p. nos. 1 to 3, he got post-sale service from them, of course, on due payment. As he was quite aware of violations he made, he did not put any objection and paid the amount. Now he is asking for change of engine or replacement of the vehicle in question that cannot be entertained. The complainant has miserably failed to establish his case. Points under consideration are accordingly decided.
Hence,
O R D E R E D
That the C. C. Case No. 218 of 2013 ( HDF 218 of 2013 ) be dismissed on contest without costs against the O.Ps.
However, the complainant is at liberty to take his vehicle to o.p. nos. 1 to 4 as and when service would be required for the vehicles. And o.p. nos. 1 to 4 are directed to extend proper service including repairing and replacement on proper payment by the complainant.
Supply the copies of the order to the parties, as per rule.
