Date of Filing:16.10.2007<br /> Date of Order:12.06.2008<br /> <br /> <br /> <br /> BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20<br /> <br /> Dated: 12TH DAY OF JUNE 2008<br /> PRESENT<br /> <br /> <br /> <br /> Sri. S.S. NAGARALE, B.A, LL.B. (SPL.), President.<br /> Smt. D. LEELAVATHI, M.A.LL.B, Member.<br /> Sri. BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member.<br /> <br /> <br /> <br /> COMPLAINT NO: 2108 OF 2007<br /> <br /> C. Nagaraj,<br /> S/o Chinagangappa,<br /> R/at Krishnappa Building, Annappa Layout,<br /> GKVK Post, Allasandra,<br /> Bamgalooru-560 063. Complainant<br /> <br /> V/S<br /> 1. M/s Mahindra & Mahindra Ltd.,<br /> Gateway Building, Apollo Bunder, <br /> Mumbai.<br /> <br /> 2. M/s Mahindra & Mahindra Ltd.,<br /> Raheja Chambers I Floor,<br /> Museum Road, Bangalore-1.<br /> <br /> 3. M/s India Garage,<br /> No.63, St. Marks Road,<br /> Bangalore-560 001. Opposite Parties<br /> <br /> <br /> ORDER<br /> By the President Sri. S.S. Nagarale<br /> <br /> This is a complaint filed by the complainant U/Sec.12 of the Consumer Protection Act, 1986 to repair the vehicle and to refund Rs. 3,04,566/- with interest.<br /> The facts of the case are that, the complainant had purchased Mahendra Champion Diesel three wheeler transport vehicle bearing registration No.KA-04-B 4789 chassis No.MA1LC2FJF53K62893 and the engine No.R5K158939 from opposite party No.3 on 5/1/2006 for a sum of Rs.2,05,000/- which includes cost of the vehicle, all taxes and insurance premium for the vehicle. Complainant strictly followed the terms of the sale and has been getting the said vehicle serviced regularly with the opposite party No.3. It is stated that, right from the date of purchase of the vehicle it was having problems with engine, gearbox and also the clutches of the vehicle and was not performing to its optimum efficiency and because of which the complainant could not carry on his transport business regularly and suffered a lot. The complainant made number of complaints to opposite party No.3 and on some occasions the said vehicle was also repaired by opposite party No.3 by charging for the spare parts. In spite of such repairs the vehicle did not perform to its optimum efficiency and has been continuously giving lot of mechanical problems and the same are existing even as on this date the problem with the engine. The problems with the vehicle as started supra commenced within the warranty period of 6 months in spite of various complaints, no corrective measures were carried out by opposite party No.3. The complainant had lodged complaint on 9/7/2007 with opposite party No.2 and 3, but no action appears to have taken on the said complaint. The complainant has incurred expenses of Rs.1,76,000/- towards repairs, spare parts and other charges. The complainant issued a legal notice on 30/7/2007 demanding reimbursement of Rs.1,76,000/- along with interest. The opposite party No.1 sent reply to the notice and opposite party No.2 and 3 have not sent any reply. After issue of said notice, the vehicle was again given for repair on 13/8/2007 on the oral request of the opposite party No.3, but till date the vehicle has not repaired and is lying with the opposite party No.3. The vehicle has been purchased on installment basis for which the finance has been provided by M/s Mahindra Finance. Hence, the complaint.<br /> <br /> 2. Notice was issued to opposite parties. Opposite party No.2 and 3 appeared and filed defence version. In spite of service of notice, the opposite party No.1 has not appeared before the Forum and remained absent. In the defence version opposite party No.2 stating that, the averments made in the complaint regarding purchase of three wheeler on 5/1/2006 by the complainant may be true and correct. It is denied that right from the date of purchase, vehicle had engine and other problems and the complainant be put to strict proof of the same. It is denied that, the opposite parties have changed spare parts while repairing the vehicle. The allegations regarding giving of vehicles for repairs as alleged are denied as false. The opposite party No.2 submits that, it is a manufacturer of Mahindra & Mahindra and it delivers new tractors to its dealers on a price. The contract between the dealer and this opposite party, a manufacturer of the tractor is on principal to principal basis. Hence, the complainant claim any reliefs as against opposite party No.1. The job cards disclose that within warranty period, the opposite parties have given good service of disputed vehicle and have allegedly repaired defects. The spare parts covering under warranty is given free and other spare parts are charged as per applicable rates. The complainant has not maintained properly as per service manual. There is no deficiency of service rendered by the opposite party No.2 and there is no manufacturing defect in the vehicle. Hence, the complaint is liable to be dismissed. <br /> The opposite party No.3 filed defence version stating that, the complainant had purchased Mahindra Champion diesel three wheeler transport vehicle bearing registration No.KA-04 B-4789 with Chassis No.MAILC2FJF53K62893 and engine No.R5K158939. It is denied that the vehicle was handed over to the complainant on 5/1/2006. It is true that the complainant has paid Rs.2,05,000/- including cost of vehicle, taxes and insurance premium for the vehicle. The complainant had purchased the said vehicle from opposite party No.3 on 20/11/2005 and the same was delivered to the complainant on the same day. It is denied that, from the date of purchase the vehicle was having problems with engine, gearbox and also the clutches and was not performing to its optimum efficiency are not true and denied as false and complainant is put to strict proof of the same. After the repair the vehicle did not perform to its optimum efficiency and has been continuously giving mechanical problems with engine etc., are not true and correct. The problems with the vehicle started as stated supra commenced within the warranty period of six months in spite of various complaints and no corrective measures were carried out by the opposite party No.3 are not true and correct. The complainant has taken the delivery of the vehicle after getting the service and has also acknowledged that vehicle is in a good running condition on several times. It is denied that complainant has incurred a total expenses of Rs.1,76,000/- towards repairs, spare parts and other charge on the vehicle. It is true that the complainant has given vehicle for repair on 13/8/2007, but it is denied that the vehicle has not been repaired. The first free service of the vehicle was lapsed and the vehicle was brought for second service on 30/1/2006 for the first time for regular normal 3rd free service free on 16/3/2006, 4th free service on 20/5/2006 and again for service on 29/5/2006 on the said date oil and filter were changed. The vehicle was brought on 1/7/2006 for 6th normal free service and no problems were found. The vehicle brought on 11/7/2006 and on the said date battery was replaced with free of cost in spite of lapse of warranty. The vehicle is repaired properly and is ready for delivery and the complainant has not taken delivery of the vehicle in spite of several information by orally and also by registered post. In view of all these reasons, the opposite party No.2 and 3 prayed to dismiss the complaint.<br /> 3. Affidavit evidence of complainant, opposite party No.2 and 3 filed. Arguments are heard. <br /> 4. The points for consideration are:- <br /> 1) Whether there was any deficiency in service on the <br /> part of the opposite parties?<br /> 2) Whether the complainant is entitled for<br /> compensation? <br /> 3) Whether the opposite party can be directed to <br /> repair the vehicle and handover the same to the <br /> complainant?<br /> <br /> REASONS<br /> <br /> <br /> 5. It is an admitted case of the parties that, the complainant had purchased Mahindra Champion three wheeler vehicle from opposite party No.3 a dealer on 5/1/2006. Opposite party No.1 is a manufacturer of the vehicle and opposite party No.2 is the Area officer of opposite party No.1 and opposite party No.3 is the dealer. It is the case of the complainant that after purchase of vehicle right from the date of purchase the vehicle was giving problem and it had manufacturing defect. The engine, gearbox and clutches of the vehicle were not functioning properly. He has given several complaints and on several occasions the vehicle was repaired by opposite party No.3. The complainant has produced number of bills and receipts to show that he has got repaired the vehicle and spent lot of amount for the purpose of repairs. It is the case of the complainant that he has spent about Rs.86,000/- towards repairs of the vehicle right from the date of purchase till filing of complaint. It is the case of the complainant that in spite of the several repairs carried out the vehicle still not free from defects and problems and the vehicle was giving lot of mechanical problems. M/s Mahindra Finance has provided the finance to purchase the vehicle. The opposite party No.3 has clearly admitted in the defence version that the vehicle was repaired several times. The defence version discloses that, there were several defects in the vehicle and the complainant has left the vehicle with opposite party No.3 several times for repairs. The opposite party No.3 submitted that totally 17 job cards were issued to the complainant and this fact goes to show that as to how many times the vehicle was repaired. As per the several documents produced by the complainant it is very shocking that the vehicle was repaired several occasions and lot of trouble had given. The complainant has suffered lot both mentally and financially. It is argued for the complainant that the complainant is a poor man he has purchased a vehicle with a hope that he may earn his livelihood, but instead of earning his livelihood the complainant was put to great loss and he has spent lot of money to get repaired time and again. The learned advocate for the complainant submitted that, he is suffering mentally and physically and his health condition had been deteriorated on account of the tension and mental agony suffered by him since a defective vehicle was given to him by the Mahindra Company. The learned advocate submitted that the complainant may be suitably compensated for mental tension, agony and financial loss. By considering all the documents produced by complainant and opposite parties it is very clear that the vehicle was left for repairs to the garage and several occasions spare parts were changed and so many new spare parts were put in and in spite of several repairs and change of spare parts the problem of the vehicle is not fully solved. The complainant has spent lot of money to get the vehicle repaired on and often. Therefore, naturally he has put to lot of mental tension, inconvenience and loss of income. He has suffered physically, mentally and financially. The opposite party company is a very reputed company it should see that no defective vehicles are sold or marketed. The good name of the company will be spoiled if the defective vehicles are sold to the public. The opposite party company has to maintain its standard and good name. In this case, the vehicle supplied to the complainant by the opposite party company is really having lot of problem and manufacturing defects. Therefore, the complainant must be suitably compensated for all the loss suffered by him. Opposite party No.3 submitted that, vehicle is repaired and now it is ready for delivery and complainant has not taken delivery of the vehicle in spite of several request and notice. In view of this submission, I think it is just proper and reasonable to direct the complainant to take the delivery of the vehicle from the opposite party No.3 if it is ready for delivery. The opposite party No.3 should see that the vehicle in question is properly repaired and made roadworthy and thereafter, the opposite party No.3 shall deliver the vehicle to the complainant. As regards the compensation is concerned it is a fit case to direct the opposite party No.1 and 2 to suitably compensate the complainant for all this suffering both mentally and financially. The complainant has spent lot of money for the repair purpose. He has produced several bills and the complainant has stated that he has spent Rs.86,000/- for repairs and spare parts. Therefore, M/s Mahindra and Mahindra Company Ltd., which is being a manufacturer shall be directed to pay Rs.1,00,000/- to the complainant towards his mental agony, tension, financial loss etc.,. Consumer Protection Act, is enacted to safeguard the better interest of the consumers. The protection of the consumers is the need of the society. Consumer Protection Act is an attempt to remove the helplessness of the consumer which he faces against powerful business house. In this case the complainant is a poor man has suffered physically, mentally and financially by getting a defective vehicle. Therefore, the ends of justice will be met in ordering M/s Mahindra and Mahindra Company to pay compensation of Rs.1,00,000/- to the complainant instead of ordering for replacement of defective vehicle with new vehicle. In the result, I proceed to pass the following:- <br /> ORDER<br /> <br /> 6. The complaint is allowed. The opposite party No.1 and 2 are jointly and severally directed to pay compensation of Rs.1,00,000/- to the complainant within 30 days from the date of this order. The opposite party No.3 is directed to deliver the vehicle to the complainant immediately without claiming any amount towards repairs etc.,. The complainant is directed to take the delivery of the vehicle from opposite party No.3 immediately. If the opposite party No.1 and 2 fails to comply the order in respect of payment of compensation, in that event the compensation amount carries interest at 10% p.a from the date of this order till payment/realization. The complainant is entitled to Rs.5,000/- towards costs of the present proceedings from the opposite parties. <br /> 7. Send the copy of this Order to both the parties free of costs immediately. <br /> <br /> 8. Pronounced in the Open Forum on this 12TH DAY OF JUNE 2008. <br /> <br /> Order accordingly,<br /> <br /> PRESIDENT<br /> We concur the above findings. <br /> <br /> MEMBER MEMBER <br /> <br /> <br /> <br /> <br />