Tamil Nadu
North Chennai
206/2013
Y.Mohammed Ghouse,S/o.Yakhin Ali - Complainant(s)
Versus
M/s.Mahindra&mahindra ltd by its vice president-customer care - Opp.Party(s)
M/s.U.Vinodhkumar-com
19 Jan 2017
ORDER
Complaint presented on: 24.10.2013
Order pronounced on: 19.01.2017
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)
2nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3
PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L., PRESIDENT
TMT.T.KALAIYARASI, B.A.B.L., MEMBER II
THURSDAY THE 19th DAY OF JANUARY 2017
C.C.NO.206/2013
Y.Mohamed Ghouse,
S/o. Yakhin Ali,
Door.No. 16/37, Madha Church Street,
Royapuram, Chennai – 13.
..... Complainant
..Vs..
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1.M/s. Mahindra & Mahindra Ltd., By its Vice President – Customer Care, Marketing Automotive Section, “Mahindra Towers”. Akruli Road Kandivili (E), Mumbai 400 101.
2.MPL Automobiles Agency Pvt Ltd., By its Manager, “AMPA Manor”. #:107/1 Nelson Manickam Road, Aminjikarai Chennai – 29. ... ……...Opposite Parties
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Date of complaint 28.10.2013
Counsel for Complainant : M/s.U.Vinothkumar, H.Navaas Basha
Counsel for 1st opposite party : M/s.Shivakumar & Suresh
Counsel for 2nd Opposite Party : M/s. M.P.Mohandass & B.Murugan
O R D E R
BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,
This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.
1.THE COMPLAINT IS IN BRIEF:
The Complainant purchased a Mahindra XUV 500 VV8 FWD Satin White vehicle from the 2nd Opposite Party/Dealer on 25.04.2012 on payment of consideration of Rs.12,97,276/- . He took delivery of the vehicle on 30.04.2012 and the vehicle registration No.TN 04 AS 0786. The said vehicle was manufactured by the 1st Opposite Party and the 2nd Opposite Party is the dealer of the 1st Opposite Party.
2. The Complainant and his family members left Chennai on the night of 30.04.2012 in the above said vehicle to his Native Place at Nagoor. One Mr.Sathish Kumar, drove the vehicle on that day. On 01.05.2012 at about 4.00 a.m while they were approaching Thirukadaiyur, stray cattle suddenly attempted to cross the road, in order to avoid the cattle being hit, the driver of the vehicle swerve to his right and crashed against electric lamp post. Due to that accident the vehicle as well as electric lamp post heavily damaged and the passengers inside the vehicle also sustained grave injuries. The Complainant mother suffered with injury on her right shoulder and hip.
3. The Complainant preferred a Complaint about the accident on 02.05.2012 to the Inspector of Police, Porayar ps and the police gave CSR 180/2012 dated 02.05.2012. The Complainant also informed the TNEB and also paid the damages for the lamp post. The vehicle was towed to Chennai on 02.05.2012 by VST Service Station (P) Ltd., an Authorized Service Centre for the 1st Opposite Party to assess the damages and to carry out repairs. The service person of the VST informed the Complainant that the vehicle being a brand new model, they lack of competent engineers and requisite spares for carrying out the repairs and hence his vehicle was unattended for nearly a month.
4. While being so, the Complainant came to know that several new XUV 500 vehicles manufactured by the 1st Opposite Party delivered to various parties, had been given problems of seepage in certain batch of vehicles manufactured by them during 2011 - 2012 vide their letter sent to the purchasers during March 2013. The Complainant vehicle also manufactured during the period 2011 – 2012. The 1st Opposite Party also referred in his letter cited above VST Service Station, Chennai for carrying out the repairs. Within 16 hours taking delivery of the vehicle, the vehicle met with an accident not due to the fault of the driver on wheel, but entirely due to the fact that the said new vehicle had manufacturing defect as communicated by the 1st Opposite Party vide their letter dated 06.03.2013 address to the Complainant. The Complainant sent legal notice to the Opposite Parties about their deficiency in manufacturing and rendering service. Hence the Complainant filed this Complaint praying to replace the vehicle with a brand new vehicle with fresh warranty and compensation for inherent defect in the vehicle and also for mental agony with cost of the Complaint.
5. WRITTEN VERSION OF THE 1st OPPOSITE PARTY IN BRIEF:
This Opposite Party is a renowned manufacturer of various types of commercial vehicles (vehicles) and farm equipments (tractors) and is widely acclaimed for its class and quality. The 2nd Opposite Party , having excellent workshop setup for after sales servicing of the utility vehicles, which are manned by qualified and experienced personnel only. Presently, the answering Opposite Party has such workshops in excess of 365 in numbers across the country. The Complainant does not fall within the definition of a ‘consumer dispute’ under the Consumer Protection Act. As there is any manufacturing defect proved in the vehicle in question or any deficiency in service being established against this Opposite Party, the averments and allegations made therein are frivolous, baseless and misconceived and the Complaint is liable for rejection. The warranty offered on every vehicle, manufactured by this Opposite Party, is subject to the terms & conditions of the warranty as contained in the owner’s manual and service book. The subject vehicle in question met with an accident and brought at the workshop of India Garage for accidental repairs. In this regard, relevance may be placed on clause 9 of the terms & conditions of warranty, which clearly stipulates that, “Repairs required because of accident, misuse, abuse, neglect are not covered under warranty”. Under the circumstances, the Complainant cannot claim any benefits as per the terms and conditions of the warranty policy after having breached the contractual terms. The vehicle was delivered after carrying out Pre-Delivery Inspection by the dealer. It is pertinent to state that all utility vehicles manufactured by this Opposite Party are marketed only after the prototype of the utility vehicle being approved by the Automotive Research Association of India. The vehicle is checked at the workshop by the Quality Inspector and by Diagnostic Expert cum Trainer (DET) during pre and post repairs to ensure quality workmanship. The vehicle as attended by the Opposite Party’s dealers/service points fully comply with the warranties, assurances and specifications, provided for it by the manufacturer, regarding quality and performance of the utility vehicle. Hence, there cannot be any Complaint of deficiency in service against this Opposite Party by the Complainant and the Complaint deserves to be dismissed with cost. The Complainant has voluntarily, upon fully agreeing with the terms and conditions, has opted from the insurance from the insurer, where this Opposite Party is not a party to said contract/arrangement of insurance of the vehicle and does not have any role over the act or conduct of the insurer. It is stated that total bill amount for accidental repairs was Rs.246,971/- and the same was forwarded to the insurer for payment by the workshop. However, the insurer paid only Rs.1,68,327/- to the workshop for repair works. The remaining amount of Rs.78,644/- was not paid by the insurer because of policy excess & depreciation based on their terms & conditions. It is quite evident that this Opposite Party was nowhere involved in the transaction of insurance & payment of repair costs which happened between the Complainant and the insurer, hence this Opposite Party cannot be held liable for the same. It may be specifically stated that in some Mahindra XUV 500 vehicle produced in year 2011 & 2012, following conditions were found to have occurred. (i) A fluid hose in the engine compartment exhibited oil seepage: (ii) The front door power windows moved slowly or may not operate: & (iii) The left wiper blade cover may tend to touch the windscreen. This Opposite Party decided to call back few of the XUV 500s to fix these three concerns and decided to proactively replace them free of cost for those selected batch of vehicle as a preventive measure. These parts were a fluid hose, front power window units and left wiper blade cover. Resultantly, the utility vehicle of the Complainant was also called for the retro fitment wherein the said parts were changed. It may be clarified that the said parts of fluid hose, power window & wiper blade has no connection whatsoever with the accident caused by recklessness of the driver. It may be further clarified that retro fitment done by the answering Opposite Party is a separate issue and the Complainant is unnecessarily trying to gain undue benefit from it by dragging, it in the issues in the instant Complaint. Admittedly, the accident was caused due to stray cattle suddenly crossing the road and in order to save the cattle, driver turned right and crashed the vehicle on to a lamp post. The said fact clearly establishes the fact that the accident was due to lack of concentration on the part of the driver and the issues of retro fitment have no role in the accident and hence prays to dismiss the Complaint with costs.
6. WRITTEN VERSION OF THE 2nd OPPOSITE PARTY IN BRIEF:
The Complainant booked the subject car Mahindra XUV 500 VV8 FWD Satin white in his name on 19.02.2012, with the authorized dealer/ the 2nd Opposite Party herein. The Complainant was informed the subject car was ready for delivery. As per the Invoice issued by the Opposite Party, the Complainant paid Rs.12,97,276/- as cost of the vehicle. The vehicle registered as TN 04 AS 0786. After the accident, the vehicle was reported to VST Service Station (P) Ltd for necessary repairs. This vehicle not reported this Opposite Party service centre and hence they are not responsible for delay parts if any involved other service centre. The first Opposite Party letter dated 06.03.2013 to the Complainant informed only Retro Steering Fluid hose for preventive precaution action for a leakage. The Complainant only reported his vehicle to VST Service Station for repairing the accident defects. This Opposite Party not at all involved any such events except the vehicle sold to the Complainant as authorized dealer. At the time of booking the vehicle, the Complainant was fully aware about the performance of the vehicle and its features. The Complainant fully satisfied in the vehicle at the time of test drive and at the time delivery of the vehicle. The Opposite Party always maintains cordial relationship with their customers irrespective of their status. The Complainant claims compensation against wrong person who have not done anything against the Complainant vehicle and hence this Opposite Party is not liable to pay any compensation as claimed by the Complainant and prays to dismiss the Complaint with costs.
7. POINTS FOR CONSIDERATION
1. Whether there is deficiency in service on the part of the opposite parties?
2. Whether the complainant is entitled to any relief? If so to what extent?
8. POINT NO :1
Admittedly the Complainant purchased a Mahindra XUV 500 VV8 FWD Satin White vehicle from the 2nd Opposite Party/Dealer on 25.04.2012 on payment of consideration of Rs.12,97,276/- under Ex.A2 tax invoice issued by the 2nd Opposite Party and he took delivery of the vehicle on 30.04.2012 and the said vehicle registration No.TN 04 AS 0786 which is marked as Ex.A1 and the said vehicle was manufactured by the 1st Opposite Party and the 2nd Opposite Party is the dealer of the 1st Opposite Party.
9. It is further admitted that the Complainant and his family members left Chennai on the night of 30.04.2012 in the above said vehicle to his Native Place at Nagoor and one Mr.Sathish Kumar, driven the vehicle on that day and on 01.05.2012 at about 4.00 a.m while they were approaching Thirukadaiyur, a stray cattle suddenly attempted to cross the road, in order to avoid the cattle being hit, the driver of the vehicle swerve to his right and dashed against electric lamp post and due to that accident the vehicle as well as electric lamp post was heavily damaged and the occupants of the vehicle sustained injuries and then the Complainant preferred a Complaint about the accident on 02.05.2012 to the Inspector of Police, Porayar police station and the police gave CSR 180/2012 dated 02.05.2012 to the Complainant and he also informed the TNEB and also paid the damages for the lamp post and the vehicle was towed to Chennai on 02.05.2012 by VST Service Station (P) Ltd., an Authorized Service Centre for the 1st Opposite Party to assess the damages and to carry out repairs and the service person of the VST informed the Complainant that the vehicle being a brand new model, they lack competent engineers and requisite spares for carrying out the repairs.
10. The Complainant contended that the 1st Opposite Party sent a Ex.A20 letter dated 06.03.2013 that “Certain batch of XUV 500 vehicles produced in the year 2011 – 2012 are having inherent manufacturing defect and that is why the company as recalled the vehicle during the above period and further due to manufacturing defect only the VST Service Station unable to carry out the repairs and further within 16 hours of taking delivery of the vehicle met with an accident not due to fault of the driver on wheel but entirely due to the fact that the said vehicle had inherent manufacturing defect as communicated by the 1st Opposite Party in his letter dated 06.03.2013 and therefore such a manufacturing defect establishes that the Opposite Parties have committed deficiency in service and caused mental agony to him an therefore he prays to order to replace with new vehicle with warranty and compensation with cost of the Complaint.
11. The Opposite Parties would reply that the vehicle purchased by the Complainant is not having any manufacturing defect and further the Complainant had not proved any manufacturing defect in the vehicle and at no point of time the 1st Opposite Party said in his Ex.A20 letter dated 06.03.2013 that the vehicles produced by him in the year 2011 – 2012 are having manufacturing defect, they only said that a fluid hose in the engine compartment may exhibit oil seepage and therefore if any of the vehicle has such defect in that batch they may contact the authorized Mahindra dealer and they can get it replaced that part at free of cost and therefore the Opposite Parties never committed any deficiency in service and prays to dismiss the Complaint.
12. For better appreciation of above contentions, it is relevant to extract the relevant paras in Ex.A20 letter dated 06.03.2013
Mahindra & Mahindra has identified that a potential concern may exist, in certain batch of XUV 500 vehicles produced in the year 2011 – 2012.
What is the Condition?
On certain production 2011/2012 model year XUV 500 vehicles, a fluid hose in the engine compartment may exhibit oil seepage, should this condition continue, it will lead to steering becoming progressively hard and noisy.
What will Mahindra do?
Any Mahindra XUV 500 dealer will inspect and if necessary replace the fluid hose. The inspection/adjustment and, if necessary, the replacement, will be performed at NO CHARGE to you.
What should you do?
Since the XUV500 purchased by you falls in the said batch of vehicles, there is likelihood that your vehicle may have the aforesaid issue of oil seepage. Please contact your authorized, Mahindra XUV500 dealer to make an appointment to get your vehicle inspected as soon as possible. However, depending upon the dealer’s work schedule/load and the inspection results. It may be necessary to make your vehicle available for a certain period of time at the workshop. Mahindra dealer will make every effort to ensure your convenience during this waiting period.
The 1st Opposite Party clearly stated in his above letter that in certain production of XUV 500 vehicles during 2011 – 2012 model year, a fluid hose in the engine compartment may exhibit oil seepage and if that condition continue, it will lead to steering becoming progressively hard and noisy, therefore in such circumstances if necessary, the replacement of fluid hose will be performed without charging the customer. It is not the case of the Complainant that his vehicle had a problem of oil seepage in fluid hose. The driver of the Complainant while driving the vehicle in order to avoid hit on a cattle in the road he swerved the vehicle and thereby hit on a lamp post and the lamp post and vehicle was damaged. Further, it is not the case of the Complainant that due to manufacturing defect the vehicle was hit on the lamp post. No expert evidence produced by the Complainant to establish that the vehicle was having manufacturing defect. Absolutely, there is no evidence in Ex.A20 that the vehicle manufactured by the 1st Opposite Party during the period 2011 – 2012. Therefore, from the forgoing discussions, the Complainant has not proved that the 1st Opposite Party manufactured the vehicle purchased by the Complainant is having manufacturing defect and hence it is held that the Opposite Parties 1 & 2 have not committed any deficiency in service.
13. POINT NO: 2
Since the Opposite Parties have not committed any deficiency in service and accordingly we hold that the Complaint is liable to be dismissed, without costs.
In the result the Complaint is dismissed. No costs.
Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 19th day of January 2017.
MEMBER – II PRESIDENT
LIST OF DOCUMENTS FILED BY THE COMPLAINANT:
Ex.A1 dated 03.08.2012 | Registration Certificate of Mahindra XUV 500 vehicle bearing registration.No.TN04 AS 0786 |
Ex.A2 dated 25.04.2012 | Tax Invoice given by the 2nd Opposite Party |
Ex.A3 dated 21.06.2012 | News paper advertisement |
Ex.A4 dated 25.01.2012 | Application form for XUV 500 draw |
Ex.A5 dated 20.01.2012 | Payment receipt for application form for XUV 500 draw |
Ex.A6 dated 02.03.2012 | Cash receipt given by the 2nd respondent to the Complainant |
Ex.A7 dated 25.04.2012 | Receipt given by the 2nd respondent to the Complainant |
Ex.A8 dated 27.04.2012 | Allotment of vehicle Registration.No.TN 04 AS 0786 |
Ex.A9 dated 30.04.2012 | Challan for Advance Registration.No.Allotment |
Ex.A10 dated 30.04.2012 | Challan for registration of vehicle |
Ex.A11 dated 30.04.2012 | Delivery note |
Ex.A12 dated 30.04.2012 | Insurance policy of vehicle.No.TN 04 AS 0786 issued by the Bharti AXA General Insurance Co.Ltd. |
Ex.A13 dated 02.05.2012 | CSR copy issued by the Porayar police station |
Ex.A14 dated 02.05.2012 | Vehicle Inspection Report(Notes of Damages) issued by the VST Service StationPvt. Ltd., |
Ex.A15 dated 03.05.2012 | Fine amount paid to TANGENDCO |
Ex.A16 dated 11.06.2012 | Notice sent by the Complainant to the 1st Opposite Party with acknowledgement |
Ex.A17 dated 30.07.2012 | Tax invoice given by the VST Service Station Pvt.Ltd., |
Ex.A18 dated 30.07.2012 | Telegram sent to the Bharti AXA General Insurance Co.Ltd., |
Ex.A19 dated 30.07.2012 | Cash Receipt paid by the Complainant to VST Service Station Pvt. Ltd |
Ex.A20 dated 06.03.2013 | Notice sent by the 1st Opposite Party to the Complainant
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Ex.A21 dated 30.03.2013 | Notice sent by the Complainant to the 1st Opposite Party with acknowledgement
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Ex.A22 dated from 02.05.2012 | Medical Records of the Complainant’s mother
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LIST OF DOCUMENTS FILED BY THE 2nd OPPOSITE PARTY:
Ex.B1 dated 20.01.2012 Payment Receipt
Ex.B2 dated NIL MPL Automobiles Agency (P) Ltd
Ex.B3 dated 02.03.2012 MPL Automobiles Agency Private Limited
Ex.B4 dated 30.04.2012 MPL Automobiles Agency Private Limited
LIST OF DOCUMENTS FILED BY THE 1st OPPOSITE PARTY:
Ex.B5 dated NIL Standard Warranty
MEMBER – II PRESIDENT
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