DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BARNALA, PUNJAB.

 

Complaint Case No : CC/186/2020

Date of Institution : 04.09.2020

Date of Decision : 03.01.2024

Sukhvir Singh aged about 39 years son of S. Maghar Singh resident of near Excellent Punjab Public School, village Kumbarwal, Tehsil Dhuri, District Sangrur, Pin-148024. Mobile No. 9464268303.     

                  …Complainant

Versus

1. Raj Vehicles Pvt. Ltd., branch office at Dhanaula road, near Harman colony, opposite Narayan Nagar, Barnala, Tehsil and District Barnala, through its Responsible Person/Authorized Signataory. Pin-148101. 

2. Mahindra & Mahindra Limited, Registered Office, Gateway Building, Apollo Bunder, Mumbai-400001, through its Responsible Person/Authorized Signatory.   

              …Opposite Parties

Complaint under Section 35 of the Consumer Protection Act, 2019

Present: Sh. Chander Bansal counsel for complainant.

Opposite party No. 1 exparte.

Sh. Vishwapreet Tapa counsel for opposite parties No. 2.

Quorum.-

1. Sh. Jot Naranjan Singh Gill : President

2.Smt. Urmila Kumari : Member

3.Sh. Navdeep Kumar Garg : Member

(ORDER BY JOT NARANJAN SINGH GILL, PRESIDENT):

    The complainant namely Sukhvir Singh has filed the present complaint under Section 35 of the Consumer Protection Act 2019 against Raj Vehicles Pvt. Ltd., and others. (in short the opposite parties). 

2. The facts leading to the present complaint as stated by the complainant are that complainant had purchased a Mahindra KUV 100 K6 +6 STR bearing Engine No. NAGZA06382, manufactured by opposite party No. 2, from the opposite party No. 1 in August 2016 which was registered vide registration number PB13AU2449 and thereafter the complainant regularly got services of his car from the opposite party No.1. It is further alleged that from the very beginning in the said car the complainant noticed problem in the engine, as the same was indicated by the Light coming in Dashboard indication meter and the complainant immediately informed about this to the opposite party No. 1 and opposite party No. 1 checked the said car and said to the complainant that due to new engine sometimes it happens and opposite party No. 1 will check the same at the time of first service and further said that the engine oil was low and they filled the same. At the the time of first service opposite party No. 1 checked the engine and told to the complainant that there was leakage of seals of engine and the opposite party No. 1 told that now the seals are repaired and there will be no problem in future. It is further alleged that the complainant again faced the same problem and visit to opposite party No. 1 and approximately 2 years the complainant faced the same problem and has to come again and again in service center of opposite party No. 1, but the opposite party No. 1 lingered on the mater on one pretext or the other. It is alleged that the charm of the complainant of buying new car has gone away because of harassment and mental agony, but the leakage of seals could not be repaired and resultantly on 19.5.2018 the engine of the above said car got ceased on road and vehicle have to bring in service center of opposite party No. 1 by towing the same. It is further alleged that after some checking the opposite party No. 1 told the complainant that the engine of the car was ceased due to leakage of seals of engine and told that there is manufacturing defect in the engine. The opposite party further told that the engine of the car has to be replaced with new one as it is a manufacturing defect, so the replacement will be done free of costs. The opposite party No. 1 said to the complainant to leave the car in the service center and they will deliver the same after replacing the engine with new one and said that the complainant can hire a rental car for his personal use for the days till the car will stand in service center and they will pay Rs. 1,000/- for every single day for which the vehicle will stop in service center to the complainant. It is alleged that on 27.6.2018 opposite party No. 1 delivered the car to the complainant after change the engine with new one and opposite party No. 1 punch the same engine number on the said new engine and later on in the month of August 2018 the opposite party No. 1 paid Rs. 12,000/- to the complainant through instrument No. 003756 which was credited in the account of the complainant on 29.8.2018 for stoppage of car in the service centre from 19.5.2018 to 27.6.2018. The opposite party No. 1 paid only Rs. 12,000/- for 12 days in spite of promise for Rs. 1,000/- per day because the car was stopped for 40 days in the service center. The opposite party No. 1 did not issue any job sheet to the complainant and even did not issue  service book for filing service details and reason of service. It is further alleged that the opposite parties told to complainant to download the service center details from the Mobile App namely “MAHINDRA WITH YOU HAMESHA”. The complainant when driven the car then he faced many problems and new engine of the car was having starting problem. The complainant again visited the service center of opposite party No. 1 and they told that now the problem is removed but the complainant faced same problem again and again and many problems like suspension system, Gear box, AC Compressor and the opposite party No. 1 assured every time the problems are removed but the complainant noticed the same problems. It is further alleged that within the warranty period i.e. on 29.8.2018 the complainant got extended shield warranty up to five years and paid Rs. 22,160/- cash to the opposite party No. 1. On 22.6.2020 the engine of the said car did not start and complainant again visited the opposite party No. 1 and now the car remains stand in service center of opposite party No. 1 around 300 days on different occasions due to said defects and the complainant could not use the said car in full mean. The opposite party No. 1 has not paid the remaining amount to the complainant for using rental car for 300 days as per their promise @ 1,000/- per day and denied to pay the same without any reason. It is further alleged that it is a manufacturing defect in the engine of the car and now complainant does not want to repair the same because the complainant is suffering from last 4 years and it is manufacturing defect and it is the duty of opposite parties to the replace the vehicle in question, due to which the complainant suffered a great mental agony and mental tension and harassment. The above said act of the opposite parties amounts to deficiency in service and unfair trade practice. Hence, the present complaint is filed seeking the following reliefs.-

i)The opposite parties may kindly be directed to change the car Mahindra KUV 100 K6 +6 STR with new one or to refund Rs. 7,35,000/-.

ii)To pay the amount of Rs. 28,000/- for using rental car for the days when the car remains stand in service center of opposite party No. 2. 

iii)To pay Rs. 2,00,000/- on account of compensation of humilation and harassment and Rs. 20,000/- as litigation expenses.

3. Notice was served to opposite party No. 1 on 22.9.2020 but the opposite party No. 1 failed to appear and was proceeded against exparte vide order dated 21.10.2020. 

4. Upon notice of this complaint, opposite party No. 2 appeared and filed written reply taking preliminary objections that the relationship of the answering opposite party and opposite party No. 1 is on “Principal to Principal basis” only and the answering opposite party cannot be held responsible for any alleged deficiency in service on the part of opposite party No. 1. It is submitted that at no point of time the complainant was directly in touch with the answering opposite party with respect to the vehicle in question until legal notice dated 26.6.2020 was received and the same was replied on the basis of information and documentation received from the opposite party No. 1. The opposite party No. 1 being an authorized dealer of opposite party No. 2 dealt with the service and other issues with respect to the vehicle in question. Complainant has not come with clean hands. The present complaint does not fall  within the definition of a 'consumer dispute' as there is neither any manufacturing defect in the vehicle nor any deficiency in service being established against the answering opposite party. It is further submitted that the complainant did not report any issue related to the engine of the vehicle at the time of first two consecutive visits for the first and second free scheduled services at the service centre. Furthermore, it has been concealed that the first complaint with respect to oil leakage was made only on 12.9.2018 by which time the vehicle in question had already been run a total of 38,560 kms. The vehicle was thoroughly inspected and the oil seal alongwith the time plate was replaced in order to stop the leakage. It is further submitted that engine of the vehicle in question was replaced due to improper supply of oil to the internal part of the engine which was done under the terms and conditions of the warranty. The complainant has visited the service centre on 8.7.2019, 13.7.19, 15.7.19 and 25.2.20 for issues related to gear, air conditioner and brake pedal subsequent to the replacement of the engine in the vehicle in question but has never reported any issue with respect to engine. The present complaint is not maintainable and liable to be dismissed. It is further submitted that as per Section 38(2)(c) of the Consumer Protection Act, 2019 whenever the complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods. The allegation of the complainant in respect of manufacturing defect in the vehicle in absence of the an expert report, miserably failed and the instant complaint deserves to be dismissed. The complainant had purchased the vehicle in August 2016 but the first complained of an engine related issue in September 2018, two years after the vehicle had been purchased and when the vehicle had already run a total of 38,560 kms. Therefore, the present complaint is false, frivolous, vexatious and misconceived and has been filed with ulterior motive and malafide intention to cause harassment. On merits, the answering opposite party reiterated the averments as mentioned in the preliminary objections. All the other allegations of the complainant are denied and prayed for the dismissal of complaint. 

5. In order to prove the case the complainant tendered into evidence his own affidavit Ex.C-1, copy of RC Ex.C-2, copy of invoice No. 4332 Ex.C-3, copy of Finance Certificate Ex.C-4, copies of service RO Details Ex.C-5 to Ex.C-39, copy of statement of account Ex.C-40, CD Ex.C-41, copy of receipt dated 29.8.2018 Ex.C-42, copy of legal notice Ex.C-43, postal receipts Ex.C-44 & Ex.C-45, reply to legal notice dated 22.7.2020 Ex.C-46, reply to legal notice dated 19.8.2020 Ex.C-47.

6. To rebut the case the opposite party No. 2 tendered into evidence affidavit of S. Santhanam Ex.O.P2/1, power of attorney Ex.O.P.2/2, copy of shield certificate Ex.O.P.2/3 (containing 3 pages), copy of reply to legal notice Ex.O.P.2/4, copy of vehicle history Ex.O.P.2/5 (containing 25 pages) and closed the evidence. 

7. In rebuttal evidence the complainant tendered into evidence copy of manual repair order form from dated 17.5.2018 to 25.2.2020 Ex.C-48 (containing 29 pages), copy of vehicle history Ex.C-49 (containing 7 pages), bills Ex.C-50 to Ex.C-52 and closed the evidence. 

8. We have heard the learned counsel for the parties and have gone through the record on file. Written arguments filed by the parties have also been gone through. 

9. At the outset, the Ld. counsel for the complainant has contented that the complainant purchased a Mahindra KUV 100 K6 +6 STR Engine No. NAGZA06382 from the opposite party No. 1 in August 2016 which was registered vide registration No. PB13AU2449 and thereafter the complainant regularly got services of his car from the opposite party No.1. However, from the very beginning the complainant noticed problem in the engine of the car as the same was indicated by the Light coming in Dashboard indication meter and the complainant immediately informed the opposite party No. 1 about this problem. It is further contented that at the the time of first service opposite party No. 1 checked the engine and told to the complainant that there was leakage of seals of engine and the opposite party No. 1 told that now the seals are repaired and there will be no problem in future. It is further contented that the complainant again faced the same problem and visit to opposite party No. 1 and approximately 2 years the complainant faced the same problem and has to come again and again in service center of opposite party No. 1, but the opposite party No. 1 lingered on the mater on one pretext or the other. It is contended that the charm of the complainant of buying new car has gone away because of harassment and mental agony, but the leakage of seals could not be repaired and resultantly on 19.5.2018 the engine of the above said car got ceased on road and vehicle have to bring in service center of opposite party No. 1 by towing the same and after some checking the opposite party No. 1 told the complainant that the engine of the car was ceased due to leakage of seals of engine and told that there is manufacturing defect in the engine. It is further contended that the opposite party No. 1 said to the complainant to leave the car in the service center and they will deliver the same after replacing the engine with new one and said that the complainant can hire a rental car for his personal use for the days till the car will stand in service center and they will pay Rs. 1,000/- for every single day for which the vehicle will stop in service center to the complainant. It is also contended that on 27.6.2018 opposite party No. 1 delivered the car to the complainant after change the engine with new one and opposite party No. 1 punch the same engine number on the said new engine and later on in the month of August 2018 the opposite party No. 1 paid Rs. 12,000/- to the complainant through instrument No. 003756 which was credited in the account of the complainant on 29.8.2018 for stoppage of car in the service centre from 19.5.2018 to 27.6.2018. It is contended that the opposite party No. 1 did not issue any job sheet to the complainant and even did not issue service book for filing service details and reason of service and told to complainant to download the service center details from the Mobile App namely “MAHINDRA WITH YOU HAMESHA”. It is further contended that the complainant when driven the car then he faced many problems and new engine of the car was having starting problem and the complainant again visited the service center of opposite party No. 1 and they told that now the problem is removed but the complainant faced same problem again and again and many problems like suspension system, Gear box, AC Compressor and the opposite party No. 1 assured every time the problems are removed but the complainant noticed the same problems. It is further contended that on 22.6.2020 the engine of the said car did not start and complainant again visited the opposite party No. 1 and now the car remains stand in service center of opposite party No. 1 around 300 days on different occasions due to said defects and the complainant could not use the said car in full mean and the opposite party No. 1 has not paid the remaining amount to the complainant for using rental car for 300 days as per their promise @ 1,000/- per day and denied to pay the same without any reason. It is further contended that it is a manufacturing defect in the engine of the car and now complainant does not want to repair the same because the complainant is suffering from last 4 years and  it is the duty of opposite parties to the replace the vehicle in question, due to which the complainant suffered a great mental agony and mental tension and harassment. 

10. In order to prove his case, the complainant has placed on record his affidavit Ex.C-1, who has reiterated his stand as taken in the complaint. Apart from his affidavit, the complainant placed on record copy of RC Ex.C-2. Ex.C-3 is the copy of invoice dated 31.8.2016 and Ex.C-4 is the copy of Finance Certificate. Complainant further placed on record copies of RO details Ex.C-5 to Ex.C-39, which shows the service type Ist, 2nd and 3rd free service and further shows the service type paid service and running repair. But the RO details Ex.C-22 shows the service type “Accidental” on 28 Nov. 2018 at mileage 43295. Ex.C-40 is the copy of statement of account and Ex.C41 is the CD. Ex.C-42 is the copy of receipt dated 29.8.2018 issued on account of shield warranty. Ex.C-43 is the copy of legal notice dated 26.6.2020 and Ex.C-44 & Ex.C-45 are the postal receipts. Further, Ex.C-46 is the reply dated 22.7.2020 to legal notice dated 26.6.2020 and Ex.C-47 is the reply dated 19.8.2020 to legal notice dated 26.6.2020. Further, the complainant has placed on record copy of manual repair order form from dated 17.5.2018 to 25.2.2020 Ex.C-48 and Ex.C-49 is copy of vehicle history. Ex.C-50 to Ex.C-52 are the bills, which shows that vehicle had run a total 98001 kms on 4.2.2022 and the service is related to the normal wear and tear of the vehicle.  

11. However, the plea of the complainant that the car in question even after replacing the engine has developed a manufacturing defect is not supported by any expert evidence. On the basis of the affidavit filed by the complainant, this Commission cannot conclude that the car in question was having the manufacturing defect and it is beyond repair. Because the complainant has failed to place on record any expert opinion/report of an Engineer/Expert. Moreover, the opposite party No. 2 has specifically mentioned that the car in question is in proper running and road worthy condition and there is no manufacturing defect. It is further the case of the opposite party No. 2 that the complainant had purchased the vehicle in August 2016 but the first complained of an engine related issue in September 2018, two years after the vehicle had been purchased and when the vehicle had already run a total of 38,560 kms. It is also argued by the Ld. Counsel for the opposite party No. 2 that the present complaint was filed only in September, 2020 after having used the vehicle for four years  and having run it for close to 70,000 kms and the complainant continuously using the same today and has covered more than 1,00,000 kms, so under these facts and circumstances no complaint for manufacturing defect can possibly be claimed by the complainant. It is further argued by the Ld. Counsel for opposite party No. 2 that the complainant has visited the service centre on 8.7.2019, 13.7.19, 15.7.19 and 25.2.20 for issues related to gear, air conditioner and brake pedal subsequent to the replacement of the engine in the vehicle in question but has never reported any issue with respect to engine. Moreover, the facts on record further shows that the car was used by the complainant for almost two years, thereafter it developed problems and there is nothing on record from the side of complainant that the same occurred as a result of any manufacturing defect. 

12. Ld. Counsel for opposite party No. 2 relied upon In Jose Philip Mampilli Vs Premier Automobiles Ltd. & Another, I (2004) SLT 855 = I (2004) CPJ 9 (SC) = 2004 (1) CPC 438 (S.C) and Maruti Udyog Ltd. Vs Susheel Kumar Gabgotra & Anr., II (2006) CPJ 3 (SC) = JT 2006 (4) SC 113, the principle of law, laid down, was to the effect, that the manufacturer could not be ordered to replace the car or refund its price, merely because some defects appear, which could be rectified or defective parts could be replaced, under warranty. 

13. Ld. Counsel for the opposite party No. 2 has also relied upon the judgments of The Hon'ble National Commission, New Delhi in case titled Pawan Kumar Versus M/s Nissan Motors India Private Limited bearing Revision Petition No. 2276 of 2017 decided on 3.1.2018 vide which it is held that “Petitioner has failed to place on record any expert opinion regarding alleged manufacturing defect in his vehicle. Deficiency not proved.”

14. Further the Hon'ble National Commission, New Delhi in case titled Sanjay Singh Versus Dabloo Bhagat bearing Revision Petition No. 2840 of 2016 decided on 11.5.2018 vide which the Hon'ble Commission held that “The complainant failed to place on record any technical/expert report to support his allegation that the tractor in question was defective.”

We are of the view that the above said citations are fully applicable to the facts and circumstances of the present complaint as in the present case also the complainant has not filed any expert report, so failed to prove any manufacturing defect in the above said car in question. Therefore, there is no deficiency in service and unfair trade practice on the part of the opposite parties. 

15. In view of the above discussion, there is no merit in the  present complaint and same is dismissed. However, no order as to costs or compensation.

16. Copy of this order be supplied to the parties free of costs as per rules. File be consigned to the records after its due compliance. 

ANNOUNCED IN THE OPEN COMMISSION:

       3rd Day of January, 2024

 

            (Jot Naranjan Singh Gill)

            President

 

(Urmila Kumari)

Member

 

(Navdeep Kumar Garg)

Member