Haryana

StateCommission

A/1093/2016

MAHINDRA AND MAHINDRA LTD. - Complainant(s)

Versus

MUNEESH KUMAR - Opp.Party(s)

SUBHASH CHAND

12 Jul 2017

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No: 1093 & 1259 of 2016

Date of Institution: 15.11.2016 &23.12.2016

Date of Decision: 12.07.2017

Appeal No.1093 of 2016

 

Mahindra & Mahindra Limited, Mahindra Towers, G.M. Bhosale Marg, Worli, Mumbai-4000018 through authorised signatory.

 

                                      Appellant-Opposite Party No.2

Versus

 

1.      Munesh Kumar s/o Sh. Mahender Singh, Resident of MCF-1835, Ward No.7, Sector-22, Parwatia Colony, NIT, Faridabad.

 

                                      Respondent-Complainant

2.      Sterling Motor Company, 14/2, Main Mathura Road, Faridabad.

Respondent-Opposite Party No.1

Appeal No.1259 of 2016

 

Sterling Motor Company, 14/2, Main Mathura Road, Faridabad (Haryana) through its H.R. Administration Ms. Poonam.

 

                                      Appellant-Opposite Party No.1

Versus

 

1.      Munesh Kumar s/o Sh. Mahender Singh, Resident of MCF-1835, Ward No.7, Sector-22, Parwatia Colony, NIT, Faridabad.

 

                                      Respondent-Complainant

2.      Mahindra & Mahindra Limited, Mahindra Towers, G.M. Bhosale Marg, Worli, Mumbai-4000018 through authorised signatory.

 

Respondent-Opposite Party No.2

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Mr. Balbir Singh, Judicial Member.

                                                                                                                                                                               

Argued by:          Shri Subhash Chand, Advocate for Mahindra & Mahindra Limited.

                             Shri Amrainder Singh, Advocate for Sterling Motors Company.

                             Shri S. R. Bansal, Advocate for Munesh Kumar.

 

                                                   O R D E R

 

BALBIR SINGH, JUDICIAL MEMBER

 

        This order shall dispose of afore-mentioned two appeals bearing No. 1083 and 1259 of 2016 having arisen out of common order dated October 06^th, 2016 passed by District Consumer Disputes Redressal Forum,  Faridabad (for short ‘the District Forum’), in complaint No.7 of 2016 filed by Munesh Kumar-complainant.

2.                Munish Kumar-complainant, purchased a new car vehicle of MAH XYLO D4 MDI CRDE BS4 2WDBFF BWD make, bearing Chassis No.F2E37746 from Sterling Motor Company, Faridabad – Opposite Party No.1, on 23^rd July, 2015 for a consideration of Rs.8,38,950/-.  The Opposite Party No.1 is dealer of manufacturer, Mahindra & Mahindra Limited-Opposite Party No.2.  At the time of purchase, the vehicle was provided warranty for a period of three years or till completion of one lac kilometers, whichever occurs earlier from the date of sale with effect from 23^rd July, 2015.  Service of the above mentioned vehicle was done by the opposite party No.1 under warranty period three times on 22^nd August, 2015; 04^th October, 2015 and 16^th November, 2015, free of cost. After third service, the vehicle was handed over to the complainant who travelled up to Gurgaon in that vehicle along with his driver on 17^th November, 2015 in early hours. When the complainant was travelling in the vehicle from Faridabad to Gurgaon, on the way, the vehicle all of a sudden stopped and smoke was emanating from the bonnet of the vehicle. The complainant informed the Sterling Motor Company Gurgaon branch on helpline. The engine of the vehicle was checked. Thereafter, in the evening, the vehicle was taken to the workshop of Sterling Motor Company Limited with the help of another vehicle by Arvind Mechanic.  As the defect could not be removed, on the advice of Sterling Motor Company, Gurgaon the vehicle was taken to the workshop of Sterling Motors, Faridabad on 18^th November, 2015. The vehicle remained in the workshop of the opposite party No.1 up to 01^st December, 2015, however, the defects in the engine of the car could not be removed. 

3.                On 01^st December, 2015, the complainant received rough estimate regarding repair of the vehicle. The complainant was required to deposit 50% of the total estimate amount of Rs.1,25,161.73.  The opposite parties refused to repair the vehicle free of cost.  The vehicle remained in the workshop of opposite party No.1 for a period of more than 45 days and the complainant had to suffer monetary loss amounting to Rs.60,000/- as he had to hire private vehicles for his day to day needs. The complainant also had to face un-necessary harassment and mental agony. The complainant has prayed that the opposite parties be directed to refund the total sale price of the vehicle Rs.8,38,950/- with interest at the rate of 24% per annum w.e.f. 23^rd July, 2015; an amount of Rs.60,000/- on account of monetary losses suffered by the complainant; an amount of Rs.1.00 lac as compensation on account of un-necessary harassment/mental agony and an amount of Rs.25,000/- as costs of litigation.

4.                Sterling Motor Company-Opposite Party No.1 filed written statement with the plea that the complaint is not maintainable in the present form and that the District Forum has no jurisdiction to decide this complaint. It is pleaded that the opposite party No.1 being authorised dealer of the opposite parties No.2 – Mahindra & Mahindra Limited, used to sell vehicles of the opposite party No.2 and also used to provide after sale service within warranty period as well as beyond warranty period. It is admitted that service of the above mentioned vehicle was done by the opposite party No.1 three times on the dates mentioned in earlier part of this order. After conducting third service on 16^th November, 2015, at the time of handing over the vehicle, the complainant was advised and informed by representative of the opposite party No.1 that there was hydrostatic lock in the engine of the vehicle and the same required overhauling but the complainant refused to get the vehicle overhauled. When the vehicle was taken to Gurgaon branch of the opposite party No.1 on 17^th November, 2015 under breakdown, the complainant at that time also refused to get the vehicle repaired. Thereafter, the vehicle was brought to the workshop of the opposite party No.1 at Faridabad. It is admitted that the vehicle was under warranty but the defect was not covered under the warranty. In fact, some water entered inside the engine due to water logging. The complainant is not entitled to get the defect removed free of cost as the defect is not covered under the warranty. It is prayed that the complaint be dismissed.

5.                Mahindra & Mahindra Limited – Opposite Party No.2 (manufacturer of the vehicle) filed its separate written version taking plea that it is not a case of deficiency in service as the defect was not a manufacturing and the problem arose due to rough handling of the vehicle. It is admitted fact that the service of the vehicle was done three times by opposite party No.1-authorised dealer of the opposite party No.2 free of cost during the warranty period, on the dates mentioned in earlier part of this order. Third free service of the vehicle was done on 16^th November, 2015.  Opposite Party No.2 has also taken plea that when the vehicle was taken to service centre of the opposite party No.1 at Gurgaon on 17^th August, 2015 with the problem of white smoke, after inspection it was found that air filter was wet as the vehicle was used in an area having water logging. The complainant was advised to get the vehicle repaired on the same day to avoid any problem in future but the complainant did not agree. On 16^th November, 2015 also it was pointed out to the complainant that water had entered into the engine of the vehicle. The opposite party No.2 is not liable to pay any amount as claimed in complaint. It is prayed that the complaint be dismissed.

6.                The parties led evidence in support of their respective claims.

7.                After hearing arguments, vide impugned order dated 06^th October, 2016, the complaint filed by the complainant was partly allowed directing the opposite parties jointly and severally to repair the engine and to make the vehicle roadworthy free of costs; to pay an amount of Rs.10,000/- to the complainant on account of un-necessary harassment and mental agony and an amount of Rs.5500/- as litigation expenses within 30 days from the date of receipt of the certified copy of the order.

8.                Aggrieved with the impugned order, the opposite party No.1 - Sterling Motor Company has filed appeal No1083 of 2016 and Mahindra & Mahindra Limited – Opposite Party No.2 has filed appeal No.1259 of 2016 with a prayer to set aside the impugned order passed by the District Forum and to dismiss the complaint.

9.                We have heard learned counsel for the parties and perused the case file.

10.              It is admitted fact that a new car MAH XYLO D4 MDI CRDE BS4 2WDBFF BWD make, bearing Chassis No.F2E37746 was purchased by the complainant on payment of Rs.8,38,950/- from opposite party No.1 – Sterling Motor Company, Faridabad. Opposite Party No.2 - Mahindra & Mahindra Limited is manufacturer of the vehicle purchased by the complainant. The vehicle was provided warranty for a period of three years or one lac kilometers, whichever occurs earlier from the date of sale. It is also admitted fact that service of the above mentioned vehicle was done by the opposite party No.1 free of costs on 22.08.2015, 04.10.2015 and 16.11.2015.  Job Cards, Exhibits-2 to 4, are placed on the file.

11.              It is admitted fact that on 16^th November, 2015 after service, the vehicle was having no defect. Problem arose on next day, that is, 17^th November, 2015 when the complainant was travelling in the car in question from Faridabad to Gurgaon and all of a sudden, engine of the car stopped working and white smoke was visible from the bonnet of the car. Version of the opposite parties is that although the vehicle was under warranty period but defect in the vehicle was not covered under warranty as it was not a manufacturing defect. As per version of the opposite parties at the time of service, there was water in the filter of the car which occurred due to the rough driving of the vehicle in water logging. As per version of the opposite parties, the complainant was informed in this regard on 16^th November, 2015 and he was advised to get the car overhauled but he did not agree and took away the vehicle. This version of the opposite parties is not based upon any documentary proof. No such document is placed on the file to show that any such advice was given to the complainant by the representatives of the opposite party No.1. In the written version, name of any representative of the opposite party No.1 is not mentioned who gave any such advice to the complainant. No such employee has been examined as a witness to prove this fact.

12.              As per version of the opposite parties, on 17^th November, 2015 also, the vehicle was brought to the service centre of the opposite party No.1 at Gurgaon. At that time also, the complainant was advised to get the vehicle repaired by representatives of the opposite party No.1 but in the written version, name of any such representative or employee of the opposite parties is mentioned by whom any such advice was given to the complainant. Even this version of the opposite parties is also not based upon any document. No such witness has been examined by whom any such advice was given to the complainant.  From all these circumstances, it clearly appears that there was no problem in the vehicle when the vehicle was handed over to the complainant after third free service on 16^th November, 2015. The opposite parties could not prove that there was defect in the car due to water logging or that the complainant was advised to get the car overhauled.

13.              It clearly appears that the problem occurred in the vehicle all of a sudden when the complainant was travelling in his car on his way from Faridabad to Gurgaon. Version of the opposite parties is that it is a case of Hydrostatic locking of the engine. Hydrolock is an abnormal condition of any device which is designed to compress a gas by mechanically restraining it; most commonly the reciprocating internal combustion engine.  The opposite parties prepared an estimate of Rs.1,25,161.73 vide Service Quotation Exhibit-7.  The parts of the engine which were to be changed are mentioned in detail in Exhibit-7. Hydraulic chain tensioner assembly and other parts of the engine which were changed are mentioned in Exhibit-7. Exhibits-2,3 and 4 are the bills regarding repair of the car vehicle dated 22^nd August, 2015, 04^th October, 2015 and 16^th November, 2015, which do not need much discussion in this order. It is evident from the copy of Job Card dated 17^th November, 2015 (Exhibit-5) also that air filter was dry and there was no water in the air filter and the same was not used in water logged area.          

14.              During the course of arguments, the opposite parties could not make it clear that defect pointed out in the engine of the car is not a manufacturing defect.  Resultantly, findings are given that the opposite parties are liable to get the car vehicle repaired and to make it road worthy free of costs. Anyhow, it cannot be considered as a case of total damage and it will not be justified to ask the opposite parties to make payment of the total sale price of the vehicle. Resultantly, we find no invalidity or illegality in the findings given by the learned District Forum while passing the impugned order dated 06^th October, 2016.  Awarding of an amount of Rs.10,000/- as compensation on account of un-necessary harassment and mental agony as well as an amount of Rs.5500/- as litigation expenses is also justified. The findings of the learned District Forum stand affirmed. The complainant, who is resident of Faridabad, might have spent so much amount in this litigation.  Accordingly, both these appeals stand dismissed with costs and cost of litigation is assessed as of Rs.10,000/- (in each appeal) to be paid to the complainant.

15.              The statutory amount of Rs.25,000/- and Rs.7500/-, deposited at the time of filing both these appeals No.1093 and 1259 of 2016 respectively, be refunded to the complainant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced: 12.07.2017

(Balbir Singh) Judicial Member

(Nawab Singh) President

 

CL