IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI
BEFORE Hon’ble Justice R. SUBBIAH PRESIDENT
Tmt. Dr. S.M.LATHA MAHESWARI MEMBER
CC.NO. 132/2016
DATED THIS THE 29th DAY OF SEPTEMBER 2021
D. Sathishkumar
S/o. G.Dhanasekaran
Flat No.2C, Door No.20C
Poongavanam Street
Valarmathi Nagar, Kolathur
Chennai – 600 099 ....Complainant
Vs
1. Mahindra & Mahindra Ltd.,
Automotive Division
Chennai – 600 002
Rep. by its Area Customer Care Manager
2. Zulaikha Motors Pvt. Ltd.,
No.398 & 398A, Velachery – Tambaram Main Road
Velachery, Chennai – 600 042
Rep. by its Autorized Signatory ....Opposite party
Counsel for complainant : M/s V. Balaji
Counsel for 1st Opposite party : M/s.J.M.Dharasanjeevi
2nd opposite party : Exparte
This complaint coming before us for hearing finally on 14.9.2021 and on hearing the arguments of counsel appearing for complainant and 1st opposite party, the 2nd opposite party being set exparte, and upon perusing the material records this Commission made the following order:
ORDER
Justice R. SUBBIAH, PRESIDENT
1. This complaint has been filed under Sec.17 of Consumer Protection Act 1986, against the opposite parties claiming a sum of Rs.15,97,109/- towards the cost of the car, a sum of Rs.10,00,000/- towards compensation for mental agony, a sum of Rs.5,00,000/- towards deficiency in service alongwith cost of Rs.50,000/-.
2. The case of the complainant in brief is as follows:
The complainant was impressed with the attractive advertisement of the second opposite party for promoting the sales of New Mahindra XUV 500 R FWD W6 HEO manufactured by the 1st opposite party. The sales personnel at their office, during personal visit confirmed the efficiency given in the advertisement. The complainant wanted to purchase the said vehicle for his personal and family use. The total cost of the vehicle including taxes comes to Rs.13,39,689/-. Hence he paid the cost of the vehicle in the following manner:
26.3.2016 Rs.40000/- 07.4.2016 Rs.60000/-
07.4.2016 Rs.4,00,000/- 28.4.2016 Rs.352208/-
The balance amount of Rs.750000/- which includes meeting of Road Tax, Registration Charges and Insurance Premium, was financed by Mahindra and Mahindra Financial Service Ltd., Anna Nagar Branch, which is the another sister concern of the 1st opposite party.
The complainant had taken delivery of the vehicle on 9.5.2016, and the said vehicle was registered with Royal Sundaram General Insurance Company Ltd., Chennai for a sum of Rs.12,86,955/-. The policy is valid from 4.5.2016 to 3.5.2017. The said vehicle was duly Registered with Assistant Registering Authority, RTO North, Chennai -99 on 5.5.2016 with Regn. No.TN 05 BE 4171. In the Registration certificate necessary hypothecation endorsement was entered in favour of Mahindra and Mahindra Financial Service Ltd.
When the vehicle was taken delivery on 9.5.2016, one tyre was found in punctured condition. It was brought to the knowledge of the second opposite party and the same was duly rectified in nearby local workshop. Further the complainant also found some unfinished work relating to the body of the vehicle viz. Front Bumper, driver seat door and front bonnet. The complainant was requested to bring the vehicle for repair to the 2nd opposite party showroom. While so on 18.5.2016 besides the above defects, the complainant gave eight major complaints to the 2nd opposite party and the following defects are admittedly manufacturing defects viz. (a) Noise occurrence during gear changing (b) Noise due to improper fitting of doors and accessories (c ) Rear AC vent was in broken condition (d) Ignition-Key operation was not functioning. At the time of handing over the vehicle, one Mr.Shankarraja, Relationship Manager assured that defects would be rectified alongwith wheel replacement, but the same was not done. While so on 24.5.2016 he had taken the vehicle to Madurai. In the midway, due to heat indication lamp glowing, the vehicle stopped, the complainant informed the same to the customer care of the opposite party. Thereafter the vehicle was taken by M/s. Susee Automobiles at Madurai to attend all the problems relating to the vehicle, for which the complainant paid Rs.2000/- towards towing charges also. In Madurai the complainant contacted Mr.Baskaran of M/s. Susee Automobiles to attend all the problems relating to the vehicle. However, he had attended the heat indication issue only. Further he confirmed that the coolant leakage was due to manufacturing fault and required replacement of necessary spares. Therefore, the complainant was forced to stay at Madurai upto 26.5.2016.
After reaching Chennai, the complainant met the 2nd opposite party Manager R.Maran and also the 1st opposite party and requested them to replace the vehicle, but the same was not considered. The vehicle was kept at Madurai till 8.6.2016 and they have attended only the heat indication issue as per the job card given to the complainant on 9.6.2016.
The vehicle thereafter once again developed problem and was stationed at Ambattur show room on 10.6.2016. The 2nd opposite party thereafter called for inspection and test drive on 22.6.2016 and then the vehicle was handed over on 24.6.2016. On the very next day, ignition key was not functioning well, which was intimated and the service personnel came and utilized another spare key which also did not function well. Due to persistent problem and manufacturing defects, on 4.7.2016 the vehicle was once again taken by the 2nd opposite party. Till date the vehicle is in the custody of the 2nd opposite party. Hence the complainant issued a legal notice on 20.7.2016, which was received by both the opposite parties. The 2nd opposite party without mentioning the advocate notice, issued reply on 25.7.2016 stating that they admitted that the part engine immobilized and ECU defective and replaced the same with new one as per the technical guidelines provided by Mahindra team. Thus it is proved beyond doubt that the vehicle manufactured and supplied by the opposite parties are having inherent manufacturing defects. The doctrine of res ipsa loquitor is applicable in this case. Thus alleging deficiency in service on the part of the opposite parties, the complainant filed this complaint claiming cost of the car, including road tax and insurance @ Rs.15,97,109/- alongwith compensation of Rs.1000000/- towards mental agony, and for deficiency in service Rs.5,00,000/- and cost of Rs.50000/-.
3. The case of the complainant was resisted by the 1st opposite party by filing their version as follows:
The 1st opposite party is a renowned manufacturer of various types of commercial vehicles and farm equipments (tractors) and is widely acclaimed for its class and quality. The vehicles manufactured by the opposite party pass through stringent quality checks and road trials before the actual commercial production starts and the vehicles are marked only after being approved by the Automotive Research Association of India (ARAI). The customers of vehicle were provided with service of vehicles through authorised service dealers. The present complaint filed is an abuse of process of law and it is not maintainable. The averments made in the complaint are vague, baseless and with malafide intent. `The complaint filed by the complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act and there is neither any manufacturing defect nor any deficiency in service. The vehicle purchased by the complainant requires mandatory servicing and replacement of specified component viz. air filter, fuel filter etc., at recommended intervals as mentioned in the operator’s service book given at the time of sale, for smooth running and optimum performance. But the complainant had failed to follow the guidelines given in the operator’s service book, as recommended for smooth and better performance of the vehicle in question at optimum cost viz. correct operating procedures – do’s and dont’s for maintenance and performance of the vehicle. As per the service schedule of the vehicle in question, the complainant was supposed to bring the vehicle at the recommended intervals as mentioned in the operator’s service book for the smooth performance of the vehicle, however the complainant had not produced any records to show that the complainant had regularly serviced the vehicle as per the recommended service schedule. The complaint alleging manufacturing problems in the vehicle is without having produced any expert opinion / documentary proof in the form of evidence from a notified laboratory. As per Sec.13(1)(c) of the Consumer Protection Act 1986, where the complainant alleges a defect in the goods, it cannot be determined without proper analysis or test of the goods. The complainant purchased the vehicle on or around 9.5.2016 from the 2nd opposite party, and the said vehicle in question till 29.6.2016 had covered around 2500 kms. The said fact proves that the subject vehicle is in absolute roadworthy condition and that the jobs carried out on the vehicle in question are minor and running repairs, which were required to be carried out due to regular, continuous, extensive and faulty usage of the said vehicle. In the present case it is crystal clear that there has been no manufacturing defect in the goods purchased by the complainant or deficiency in service on the part of the opposite party. The complaint is liable to be dismissed u/s.26 of Consumer Protection Act 1986 with cost as false, frivolous, vexatious and misconceived. The complaint is filed with ulterior motive and malafide intention. The complaint is bad for non-joinder of parties. The complainant himself admitted in paragraph 9 that he himself brought the vehicle to M/s.Susee Automobiles and he had not intimated the same to the authorized workshop. Hence the complaint is liable to be dismissed under Sec.26 of the Consumer Protection Act as false, frivolous and vexatious and thus he sought for dismissal of the complaint.
4. The 2nd opposite party though served, remained absent and thus set exparte.
5. In order to prove the complaint, proof affidavit of the complainant and 1st opposite party were filed. Documents filed by the complainant were marked as Ex.A1 to A17. No documents were filed on the side of the 1st opposite party. Written arguments of complainant and 1st opposite party were filed.
6. The learned counsel for the complainant had submitted that he had taken delivery of the vehicle on 9.5.2016. At the time of taking delivery itself one tyre was found punctured and immediately it was rectified by taking it to the local workshop. Within 9 days from the date of purchase, the vehicle developed manufacturing defect. On 18.5.2016 the vehicle was handed over to the 2nd opposite party for rectifying eight defects as seen from Ex.A8, the job card. The complainant had taken the vehicle to Madurai on 24.5.2016. While driving to Madurai the vehicle had stopped mid way, due to heat indication lamp glowing. On returning from Madurai, since the vehicle was giving continuous problem from the date of delivery, the complainant had requested the Manager of the 2nd opposite party to replace the vehicle, but he refuse the same. But once again the vehicle had developed problem, hence the vehicle was entrusted at Ambattur Showroom, as seen from Job Card dt.10.6.2016 Ex.A12. On 22.6.2016, the 2nd opposite party had called for inspection and test drive, and the vehicle was handed over on 24.6.2016. On the very next day, ignition key was not functioning well. The service personnel came and utilized another spare key, which was also not functioning well. On 4.7.2016 the vehicle was once again taken by the 2nd opposite party, and till date the vehicle is in the custody of the 2nd opposite party. Finally left with no other option, a legal notice was issued by the complainant on 20.7.2016 as seen under Ex.A15. So far the vehicle had run only 1779 kms. It has got inherent manufacturing defect. The reply to legal notice sent by the 1st opposite party which is marked as Ex.A17, in which they admitted that the part engine immobilized and ECU defective and replaced the same with new one as per the technical guidelines provided by Mahindra team. Therefore this admission would clearly prove that the vehicle supplied by the opposite party is having inherent manufacturing defect. Therefore, they are bound to replace the vehicle, or to refund the cost of the car i.e., Rs.15,97,109/- alongwith compensation of Rs.1000000/- towards mental agony and Rs.5,00,000/- towards deficiency in service.
7. Countering the submissions the learned counsel for the opposite party submitted that the complaint had been filed only with the bald statement about the vehicle having manufacturing defect without producing expert report from an authorised laboratory as per the provisions of the Act. In the absence of the same, the allegations are baseless, misconceived, which are liable to be dismissed. Had there been any inherent defect, the vehicle would not have covered 2500 kms. in two months. The alleged contention of the complainant is against the terms and condition of the warranty of the vehicle to replace it when there is no defect. The warranty of the vehicle clearly stipulates that the obligation of the manufacturer under the warranty shall be limited to repair and replacement of such parts free of cost, if found to be defective then the said vehicle can be brought to the manufacturer or the authorized dealers within the warranty period, and the present vehicle is definitely in roadworthy condition and there is no deficiency in service, thus he sought for the dismissal of the complaint.
By way of reply to this, complainant would submit that as per Sec.13 (1) (c) of the Consumer Protection Act 1986, analysis report has to be obtained if the complainant alleges the defects in the goods. But the said provision is not applicable in this case, since the vehicle is in the custody of the 2nd opposite party for the past 5 years, and they have also admitted in the reply under Ex.A17 for the advocate notice, that the engine is immobilized and EMU defective and replaced the same. This admission itself would show that the vehicle delivered to the complainant has manufacturing defect. The learned counsel for complainant had relied upon certain judgements of the Hon’ble National Commission viz.
Hyundai Motors India Ltd., Vs Affidavit East West Press (P) Ltd., & Anr. Reported in 1 (2008) CPJ 19 (NC); It is also submitted that the Hon’ble National commission has taken the similar view in the judgements reported in 2013 (4) CPJ 612 (NC); 2008 (3) CPJ 119 (NC); 2008 (4) CPJ 369 (NC)
In the said judgements the Hon’ble National Commission had observed that “with such a vehicle the consumer would not be satisfied. May be that such defects may occur in one of thousand vehicles but, at the same time, it is the duty of the reputed/ established manufacturer to replace such a vehicle”.
8. The opposite party would submit that as a matter of business practice the 1st opposite party does not deal with any customer for sale of new vehicle. The 1st opposite party has been given to understand that the 2nd opposite party had explained various features of the vehicle, and the final decision for purchase was made by the complainant himself, and the vehicle sold at the dealership point also undergoes pre-delivery inspection andupon being satisfied with the condition and performance of the vehicle, it is sold to the consumers and in this case also, the said process has been followed by the 2nd opposite party. This opposite party deals with the other opposite party on a Principal and Principal basis, and therefore this opposite party cannot be held responsible for any omission committed by the 2nd opposite party.
9. With regard to the above submission, the complainant would submit that absolutely there is no documentary proof, produced by the 1st opposite party to show that the relationship between the opposite parties 1 and 2 is on principal to principal basis, therefore this submission cannot be accepted.
10. On evaluating the above submissions, and on perusal of the documents produced on record, the following questions raised for consideration;
1. Whether it was established that the 1st opposite party had sold the defective vehicle to the complainant?
2. Whether the non-filing of expert opinion as required under Sec.13(1) (c) is fatal to the case?
3. Whether the claim of the 1st opposite party that the relationship between the opposite parties 1 & 2 is on principal to principal basis, and as such they cannot be held responsible for any omission committed by the 2nd opposite party is established?
11. POINT NO.1:
On perusal of the complaint, it is seen that the vehicle was taken delivery on 9.5.2016. While taking the delivery itself it was found that one tyre was punctured and it was rectified in a nearby workshop.
Within 9 days from the date of purchase i.e. on 18.5.2016 since the complainant had noticed eight major defects as listed in the complaint, the vehicle was left for repair with the 2nd opposite party as seen from Job card under Ex.A8.
On taking delivery of the vehicle after above repair, the complainant had driven the vehicle to Madurai on 24.5.2016. It is submitted by the complainant that while driving the vehicle, on the mid way the vehicle had stopped due to heat indication lamp glowing, and the same was informed to the customer care. Since he was proceeding to Madurai, he had left the vehicle for repair to one M/s. Susee Automobiles at Madurai as seen from Ex.A9. He had also paid a sum of Rs.2000/- towards towing charges.
On reaching Chennai, the complainant met the Manager of the 2nd opposite party one Mr.R.Maran and requested for replacement of the vehicle. He has also made the similar request with the 1st opposite party on 1.6.2016.
M/s. Susee Automobiles at Madurai, had attended only the heat indication issue and delivered the vehicle on 9.6.2016.
The vehicle once again developed the problem and was stationed at Ambattur Show Room on 10.6.2016 as seen from Ex.A12. Thereafter the second opposite party called for inspection and test drive on 22.6.2016 and the vehicle was handed over on 24.6.2016. On the very next day ignition key was not functioning well.
The complainant would further submit that due to the persistent problem and manufacturing defects, on 4.7.2016 the vehicle was once again taken by the 2nd opposite party, and till today the vehicle is in the custody of the 2nd opposite party.
The complainant had further submitted that he had caused legal notice to the opposite parties on 20.7.2016. The 2nd opposite party had replied stating that they admit that the part engine immobilized and ECU defective and replaced the same with new one as per the technical guidelines provided by the Mahindra Team.
As per the above submissions, it is seen that the vehicle had faced several major defects within a span of two months from the date of purchase. The above facts about the history of repair of the vehicle had not been denied by the 1st opposite party.
12. On the other it is the case of the 1st opposite party that as per the service schedule in question, the complainant was supposed to bring the vehicle at recommended intervals for carrying out the mandatory free services. But the complainant had not done so.
In this regard, the opposite party themselves have admitted, as per reply under Ex.A17 that when the engine is immobilized, then the question of bringing the vehicle for regular service would not arise. On the other hand, the vehicle was being taken for repairs at regular intervals within a span of two months.
13. In this regard it is appropriate to rely upon the judgements reported in 2008 (I) CPJ 19 (NC) which is squarely applicable to the facts of this case.
In the above judgement, their Lordship’s had held that “In our opinion, from the admission made by the petitioner, it is clear that the vehicle had gone to them on several occasions for repair. In our view, there is no necessity for a new car to go to workshop ‘on several occasions’ for repairs within a short span of one year of its purchase”.
14. In this regard, one more reliance was placed reported in 2013 (IV) CPJ 612 (NC) held in Malwa Automobiles Pvt. Ltd., Tata Motors Ltd., Vs. Sunanda Sangwan & Anr. That “There was engine vibration that may be due to the fault in setting of electronic system particularly for ECU and electronically controlled Nozzle or there may be defect in sensor or in writing” “High temperature was noted at speed of 80-85 Km. and the vehicle stopped. This may be due to engine problem and this is a manufacturing defect and it can lead to road accident endangering the life of the passenger”.
In this case also, as discussed in detail above, the vehicle was entrusted to the 2nd opposite party on five occasions for various major faults, within two months from the date of purchase. As stated supra in the above judgement, the vehicle impugned also had stopped on the mid-way due to heat from the engine. When the defects in the car could not be rectified by the opposite parties, inspite of having sent for service more than four, five times, which itself would prove that the vehicle had manufacturing defect. The opposite party themselves had admitted as per Ex.A17 that the engine was immobilized and the EMU had been replaced. Inspite of the fact that the EMU had changed, the opposite party would argue that the vehicle is in good condition, and the failure on the part of the complainant in not sending the vehicle for regular service was the cause for the repair. As seen above, when the vehicle was entrusted to the opposite party for so many times within two months, then where is the question of leaving the vehicle for regular service? Therefore, as stated by the complainant that res ipsa loquitor would apply for this case.
In view of the above, we hereby conclude that the vehicle has inherent manufacturing defect. Point No.1 is answered accordingly.
15. POINT NO.2:
The next fold of the contention of the 1st opposite party was that the vehicle would have sent for an expert opinion as per sec.13(1)(c) of the Consumer Protection 1986, which reads as follows:.
(c) where the complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis or test, whichever may be necessary, with a view to finding out whether such goods suffer from any defect alleged in the complaint or from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or within such extended period as may be granted by the District Forum;
The opposite party would submit that since the vehicle had not been subjected to expert opinion as per the law laid down under the Act, the complaint deserves to be dismissed.
In the above aspect, the learned counsel for the complainant had drawn our attention to a judgement held in MRF Ltd., Vs. Jagdish Lal & Another, reported in II (1999) CPJ 47 (SC) that “The procedure prescribed under Sec.13(1) (c) of the Act was, therefore, not capable of being followed because the complainant was not in possession of the tyre and the tube.”
In view of the submission of the learned counsel for the 1st opposite party that in the absence of expert report, the complaint deserves to be dismissed cannot be accepted, since admittedly the vehicle is not in the custody of the complainant from 24.6.2016. When the car is in the possession of the 2nd opposite party, it is not necessary for the complainant to take out the petition under Sec.13(1) (c).
In this connection, our attention was drawn towards the judgement of the Hon’ble National Commission in RP.No.589/2020 dt.24.6.2020 held in Skoda Auto Volkswagen India P Ltd., Vs. Meghana Corporates Pvt. Ltd., & Another that “Non compliance of Sec.13(1)(c) of the Act therefore is not fatal to this case” .
Therefore, we hold that since the car was not in the custody of the complainant and the manufacturing defect was undoubtedly proved, the prayer of the opposite party to dismiss the complaint on the ground of non-compliance of Sec.13(1)(c) of the Act cannot be accepted.
16. POINT NO.3:
It is the submission of the learned counsel for the 1st opposite party that the relationship between the opposite parties 1 and 2 is on principal to principal basis. Therefore, they cannot be held liable for any defects in the car.
In this connection reliance could be drawn to a judgement of the Hon’ble National Commission reported in 2002 (1) CPR 19 (NC) held in Tractors & Farms Equipment Ltd., Vs. N.Somanatha Gowda & Anr. Wherein it is held that “Further contention of the petitioner that the relationship between the manufacturer and the dealer was that of principal to principal has no meaning so far as the dispute raised by the complainants is concerned. As to what is the arrangement between the authorized dealer and the manufacturer is not made known to the complainants. The complainants who were agriculturists paid the money to the authorized dealer taking him as the agent of the petitioner – manufacturer which money admittedly received by the petitioner”.
In this case also, though the 1st opposite party would submit that the relationship between the opposite parties 1 and 2 is on principal to principal basis, there is no document produced to prove their contention. Moreover, the vehicle was sold in the name and brand of the 1st opposite party. The Complainant also having faith on the manufacturer, bought the vehicle, admittedly through the 2nd opposite party, who is the authorized dealer of the 1st opposite party. Therefore, for the complaint of manufacturing defect, the manufacturer/1st opposite party cannot shirk out their responsibility, by showing the finger towards the other. The relationship between the opposite parties whether principal to principal or not does not matter in this case. In view of the above, no significance could be attached to this submission of the learned counsel for the 1st opposite party, and the same is rejected. Point No.3 answered accordingly.
17. Therefore, on the whole, we are of the considered opinion that it is undoubtedly proved that the vehicle sold to the complainant was a defective one. Thus the complainant is entitled to be compensated. Since the car is admittedly with the 2nd opposite party, we find it just and appropriate to direct the opposite parties to refund the value of the car paid including the road tax and insurance.
Since the deficiency is also clinchingly proved, we feel that awarding of compensation towards mental agony and deficiency in service would meet the ends of justice.
18. In the result, the complaint is allowed. The opposite parties 1 & 2 are jointly and severally directed to refund the cost of the car including the Road Tax and Insurance @ Rs.15,97,109/- alongwith compensation of Rs.2,00,000/- towards mental agony and a sum of Rs.1,00,000/- towards deficiency in service and a sum of Rs.25000/- towards cost. Time for compliance two months, from the date of the order, failing which the above amount shall carry interest @9% p.a., from the date of default, till realization.
S.M.LATHAMAHESWARI R SUBBIAH
MEMBER PRESIDENT
Exhibits filed on the side of complainant
A1 26.03.2016 Receipt for Rs.40000/-
A2 07.04.2016 Receipt for Rs.60000/-
A3 “ Receipt for Rs.4,00,000/-
A4 “ Receipt for Rs.352208/-
A5 29.04.2016 Tax Invoice
A6 09.05.2016 Delivery Note
A7 04.05.2016 Policy
A8 18.05.2016 Job Card
A9 24.05.2016 Job Card
A10 26.05.2016 E-Mail of the complainant
A11 Vehicle History
A12 10.06.2016 Job card
A13 04.07.2016 Job Card
A14 Registration Certificate
A15 20.07.2016 Advocate Notice
A16 “ Postal receipt
A17 25.07.2016 Reply of 2nd opposite party
Exhibits of the 1st opposite party:……….Nil………
S.M.LATHAMAHESWARI R SUBBIAH
MEMBER PRESIDENT
