J U D G E M E N T

1.      The complainant filed the complaint against the OPs  Under Section 12 of Consumer Protection Act.

2.      The brief facts of the complainant’s case is that, the complainant purchased Mahindra Bolero vehicle bearing Regn.No.KA-33/M-2623) from 1^st OP on 20.6.2011.   In the month of December-2011, the engine of the said vehicle failed and it was brought to OP-2 for repairs.   At that time, the complainant was informed that the engine has to be replaced.   The engine was replaced with new one and the vehicle was handed over to the complainant in the month of March-2012.  But once again in the month of April-2012, there arose problem with the engine of the vehicle, which was informed to the OP-1, who sent their serviceman, who took the vehicle to their showroom where the complainant was informed that once again the engine had failed and has to be replaced with the new one.   For that the complainant asked OP-1 to replace the vehicle itself.   But OP-1 did not heed to the said request of the complainant.    There was manufacturing defect in the vehicle purchased by the complainant and therefore, the OPs are liable to replace the vehicle with the new one.   But the OPs are refusing to replace it, due to which, the complainant is put to great hardship and inconvenience.   The complainant is in need of the vehicle for his business purpose.   Therefore, he has to hire another vehicle.   Due to defective vehicle supplied by the OPs, the complainant suffered business loss of Rs.2,00,000/- and has to pay transport and other charges of Rs.25,000/-.   Therefore, the complaint for compensation as prayed for.

3.      OP-1 filed the written version stating that, it is true that, the complainant had purchased the vehicle brg.No.KA-33/M-2623.   It is denied that the 1^st OP informed the complainant that the engine had failed, and has to be replaced.   When the vehicle was brought to the workshop of the 1^st OP, it was inspected and found that small head gasket was damaged due to overheating of the engine.    There was no manufacturing defect.   Because of external damage to the radiator, there was coolant leakage, which is not covered under warranty.   The engine was replaced on demand by the complainant.    There was delay of three months in the delivery of the vehicle due to negligence by the complainant as he failed to receive the delivery of the vehicle in time.   There was problem with the vehicle, but it was due to negligence of the complainant in not maintaining the vehicle properly.   Because of coolant leakage from the radiator pipe, the engine get overheated.   It is the duty of the complainant to read the owner’s manual and to maintain the vehicle.  Accordingly, the complainant failed to read it and thereby failed to maintain the vehicle properly.   There is no deficiency of service on the part of the 1^st OP.   It is false that the complainant has suffered loss.   The claim of Rs.3,25,000/- has no basis.   The complainant has no cause of action to file the complaint.    Hence the complaint be dismissed in the interest of justice.

4.      The 2^nd OP filed the written version stating that, the vehicle manufactured by 2^nd OP pass through stringent quality checks and road trials before the actual commercial production starts and are marketed only after being approved by the Automotive Research Association of India.    The customers of all utility vehicles manufactured by the 2^nd OP are provided with services through a large network of authorized dealers, authorized service centers, authorized service points across the country.   Those workshops provide scheduled services, repairs, spare parts support to the utility vehicles.    Procedures are laid down for service centers, workshops etc., for carrying out necessary services as may be required.   The manufacturer of utility vehicles and owners are bound by the terms and conditions of the warranty policy.    All the allegations made in the complaint except those which are specifically admitted are denied.    The complaint filed by the complaint is an abuse of process of law and is not maintainable as the complainant has suppressed the material facts.   The averments made in the complaint are baseless and made with malafide intention.   The complaint does not fall within the definition of Consumer Dispute.   There is neither manufacturing defect in the vehicle nor any deficiency in service by the 2^nd OP.   The vehicle purchased by the complainant requires mandatory servicing and replacement of specified components at recommended intervals as mentioned in the owners manual and service book, for smooth running and optimum performance.   But the complainant has failed and neglected to follow the guidelines given in the owners manual.    The complainant was supposed to bring the subject utility vehicle at recommended intervals as mentioned in the owner’s  manual and service book for carrying out mandatory free services.   However, the complainant has not produced any records to show that, he had regularly serviced the utility vehicle as per the recommended service schedule.    Further, as per the recommended service schedule, given in the owner’s manual and service book, which amounts to agreed terms of contract, the owner of the utility vehicle is advised to follow certain guidelines for smooth and maximum performance of the utility vehicle.   In this case, there were instances of maintenance faults and operational faults noticed by the OP during free servicing as well as on paid services.   

5.      The oil filter of the utility vehicle was externally damaged leading to oil leakage and resulting in engine failure on 2.12.2011.   Again, the radiator hose pipe was leaked due to external damage causing damage to head gasket and break down on 12.4.2012.    Terms and conditions of the warranty applicable for the subject utility vehicle, shall be limited for one year from the date of sale of the vehicle irrespective of the mileage, subject to fulfillment of other terms and conditions of the warranty.  As per clause-8 of the limitations of standard vehicle warranty, the warranty will not apply to the damages caused by the external causes.   In view of external damages on the vehicle, the complainant has grossly violated the terms and conditions of the warranty and thus, cannot be bestowed with any warranty benefits.   The utility vehicle purchased by the complainant is a well established product in the market over a period of years and the complainant had taken delivery of the utility vehicle, after being satisfied with the condition of the utility vehicle and its performance.   The said utility vehicle was delivered after carrying out of Pre-Delivery Inspection by the dealer.   Every utility vehicle manufactured at the plant of OP-2 undergoes various quality control tests till the assembly line and thereafter it is made ready for dispatch.    The dealers of the OP, carry out Pre-Delivery Inspection of all new utility vehicles before selling it to customers as per the standard check-list.   Whenever any utility vehicle reports to a workshop for scheduled services or for any repairs, the complaints/grievances of the customer are recorded in the job card, which do not imply admission of any defects in the vehicle, but a mere representation of the customer’s grievances on the said utility vehicle.    Thereafter standard checks are carried out at the workshop and observation is recorded by the Service Advisor on the backside of the job-card, to provide necessary consultancy/advise regarding the condition of the utility vehicle to the customer.   The vehicle is checked at the workshop by the Quality Inspector and by Diagnostic Expert cum Trainer during pre and post repairs to ensure quality workmanship.   The service advisor of the workshop who interfaces the customer, is adequately trained to provide proper job explanation of the works carried out and even provides test drive to the customer at the time of delivery of the utility vehicle after every service/repairs to the entire satisfaction of the customer.    Hence, there cannot be any complaint of deficiency of service against this OP-2 by the complainant and the complaint deserves to be dismissed with cost.   The complainant has filed this baseless complaint alleging manufacturing problems in the utility vehicle without having produced any expert opinion in the form of evidence from a notified laboratory to prove that the subject utility vehicle suffers from the problems as alleged, or to establish any manufacturing defect in the utility vehicle in question as per Sec.13(1)(c) of the Consumer Protection Act, 1986.  The allegations of the complainant in respect of manufacturing defects in the utility vehicle in absence of an expert report, miserably fails and the instant complaint deserves to be dismissed.   The instant complaint deserves to be dismissed.     The instant complaint makes out no ground for relief under the provisions of section 14 of the Consumer Protection Act, 1986.  The onus lies on the complainant to show that the reliefs as contemplated under section 14 can be given for the defect in goods supplied or deficiency in service provided to the complainant.   In the present case, it is crystal clear that there has been no manufacturing defect in the goods purchased by the complainant and/or deficiency in service on the part of this OP.   This Forum has no jurisdiction to entertain, try and adjudicate the present complaint.   The complainant has raised issues, which involves questions of facts as well as law, and it necessarily requires deposition of evidence and trials and can be appropriately done only by a Civil Court.   Hence, the proper Forum, to agitate the alleged grievance, is before the Civil Court and proceedings under the Consumer Protection Act envisage a summary procedure of complaints of simple nature and the complicated questions of law and facts can be decided only by a Civil Court.      As regard to the averments made at para 2 and 3 of the complaint, it is stated that this OP-2, as a matter of business practice, does not deal with any customer for sale of the new vehicle, hence cannot comment what transpired between the complainant and the 1^st OP at the time of sale.   OP-2 has been further given to understand that there was no problem with the vehicle at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction.  The utility vehicle of the complainant reported on 2.12.2011 at 7,579 kms., approximately, for breakdown and engine oil leakage when upon visual inspection, engine oil level on dip stick was found below the minimum level, oil films were thick and an external damage due to stone hitting during the running was found on the oil filter leading to oil leakage.   On further investigation, heavy white smoke emitting was observed in the silencer pipe and screeching noise in engine was observed at ignition.   The oil sump was dismantled and metal pieces were found mixed with the oil because of the external damage.   On further dismantling the connecting rod bearing, No.1 cylinder connecting rod bearing was found badly worn and broken which has consequently damaged crank shaft surface scoring and all connecting bearing scoring mark.    It is pertinent to note that the complainant instead of immediately reporting the vehicle to the workshop after the damage and leakage has continued using it which has caused the engine failure.   As subject act/omission on part of the complainant was on account of an operational failure and negligence by the complainant and not due to any manufacturing defect, it cannot be covered under warranty.   The engine was required to be changed and the complainant was requested to give his approval to carry out the replacement on paid basis.   The preliminary repairs were carried out on the utility vehicle by 15.12.2011 and the workshop was waiting for the approval from the complainant to replace the engine on paid basis.    But, the complainant was adamant and did not give his approval and demanded free replacement.   Subsequently, OP-2 decided to change the engine under goodwill basis in March, 2012.  The averments made at para 4 of the complaint are denied as false, save and except, which are matters of record.   The utility vehicle in question reported on 12.4.2012 at 9,367 kms., for the problem of break down, engine overheating and radiator service wherein after inspection, it was found that radiator hose pipe has been externally damaged causing leakage and engine overheating.   On further investigation, it was revealed that the head gasket has been damaged resulting into break down of the utility vehicle.   It is strenuously denied that there was any failure of engine.    The complainant has failed to operate the utility vehicle as advised in the owner’s manual and has acted in a negligent way by causing external damages and thus, the repairs/replacements cannot be covered under warranty.  The same was informed to the complainant requesting his approval to perform the repairs on charge basis.   The complainant, instead of giving his approval, made an illegal demand to replace the utility vehicle alleging manufacturing defect.   This OP, as a gesture of goodwill and to settle the matter amicably, once again attended to the problems in the utility vehicle by replacing piston set, cylinder liners, cylinder ‘o’ ring, piston pin, gasket, radiator assey, etc. free of costs.    Free of cost repairs done on the utility vehicle under good will basis cannot be, by any stretch of imagination, construed as admission of any deficiency in service on part of this OP or manufacturing defect in the vehicle.   The utility vehicle in question was fully repaired and a test trial was taken on 1.5.2012 wherein it was found to be roadworthy.   Afterwards, the complainant was requested to take back the delivery of the vehicle after proper satisfaction.   However, the complainant has failed to come to take the delivery despite recurrent requests.   Whatever complaint raised by the complainant, was due to external damages caused by his own negligence and improper operation of the utility vehicle.   In this case, whatever grievance has been brought by the complainant, the same was attended and rectified satisfactorily under the goodwill policy free of costs by way of exceptional services provided by the workshop hence, there cannot be any question of manufacturing defect or deficiency in service meriting replacement of the utility vehicle.   Moreover, the complainant is debarred under the warranty policy to demand any damages or compensation for losses, incidental or indirect, or inconvenience or consequential damages, loss of car, or loss of time, or otherwise, incurred or accrued.   The averments made at para 5 of the complaint is against the terms and conditions of the warranty of the utility vehicle when there is no defect.    It clearly stipulates that the obligation of the manufacturer shall be limited to repair and replacement of such parts, free of costs, if found to be defective.    The averments made at para 6 of the complaint, is a bald statement of manufacturing defects without producing expert report as per the provisions of the Act and in absence of the same, the allegations are baseless and misconceived and merits dismissal.   The complainant has failed to adhere and conform to the instructions of the owner’s manual, which resulted in such problems in the vehicle.   It is thus apparent that there is negligence on the part of the complainant himself for the alleged problem and there is no inherent defect in the utility vehicle.   Consequently, no cause of action ever arose in favour of the complainant against this OP-2 and the instant complaint merits dismissal.   The contents of Para 7 and 8  of the complaint do not require any traverse.   The claims made at Prayer Clause of the complaint by the complainant are unsustainable and without any merit.   The complainant cannot have any grievance against the answering OP-2.   Therefore, it is prayed to dismissed the complaint, in the interests of justice.

6.      The complainant to prove his case filed his affidavit evidence, which is marked as PW-1 and relied on five documents, which are marked as Exh.P-1 to P-5.    On the other hand, OPs, to prove their case, have filed their affidavit evidence, which are marked as RW-1 and RW-2, and no documents filed.

7.      Arguments heard on both sides.

8.      The points that arise for our consideration are;

1)      Whether the complainant has proved deficiency in service on the part of OP?

2)      Whether the complainant is entitled for the reliefs prayed for?

3)      What order?

9.      Our answer to the above points are as follows;

1)      In the affirmative.

2)      Partly in the affirmative. 

3)      As per final order for the following;

:: REASONS ::

10.  Point No.1 :  

      The complainant in his complaint sought for relief in the nature of replacement of the vehicle purchased by him with new one alleging that the vehicle purchased by him is having manufacturing defect.   But, to prove that the said vehicle is having manufacturing defect, the complainant has not produced any expert’s evidence before this Forum.   The requirement of law is that, some expert must examine and test the said vehicle and must ascertain whether the said vehicle is having manufacturing defect or not.   But no such expert’s report is produced before us, which proves that the vehicle is having manufacturing defect.  Unless and until, the complainant proves the manufacturing defect with the opinion of an expert, he is not entitled for replacement of the vehicle purchased by him with the new one.   In support of this, the conclusion arrived at by us, we rely on the decision of Hon’ble NCDRC reported in 2010 CTJ 1039, wherein it is held that, until and unless the alleged manufacturing defect in vehicle is proved, the manufacturer cannot be ordered to replace the same.

11.  As regards the alleged defect in the engine, as admitted by both the sides, the engine was replaced with new one.   So the OPs by replacing the engine with new one gave suitable relief to the complainant.   However, with regard to the complainant’s allegations that, there developed some problem with the replaced engine, there is no evidence.     As per the complainant, with regard to the problem developed in the replaced engine, it was informed to the OP-1 and they had sent their workman and brought the vehicle to their showroom and there he was informed that the engine had failed and has to be replaced.    But there is no evidence which proves this contention of the complainant.  So the contention of the complainant that the replaced engine had failed and it has to be replaced, has to fail for want of proper evidence.   Besides this, expert’s evidence is also not produced by the complainant, which shows that the replaced engine had also failed.  Therefore, the complainant is not entitled for replacement of engine or vehicle in question with new one.    However, on perusal of materials placed before us, it is found that there occurred some degree of deficiency in service on the part of the OPs at the time of sale of the vehicle in question to the complainant and subsequent to it.   First of all, as admitted by the OPs and as disclosed by, Exh.P-2 issued by the OP-1, the engine of the vehicle sold to the complainant had some defect.   The supply of vehicle with defective engine amounts to deficiency in service on the part of the OPs.    Though the said defective engine was replaced with new one, the OPs took about three months to replace the engine and deliver the vehicle to the complainant, which is admitted by the OP-1.    However, the OP-1 stated that the said delay was due to the complainant himself as he had not come to take delivery of the vehicle after replacement of the engine.   But, there is no evidence which proves this allegation of OP-1.   So, there was inordinate delay in delivering vehicle replaced with new engine to the complainant.   This delay caused must have resulted in loss and hardship to the complainant, he being a businessman, as could be made out by going through the cause title of the complaint.   The complainant in his complaint stated that, he was in need of the vehicle for his business purpose as he was to travel regularly to various places.   So, the  non-availability of the vehicle for this purpose, definitely must have caused loss and hardship to the complainant for which he is entitled for compensation from the OPs towards deficiency in service, which we would, under the circumstances of the case, asses at Rs.25,000/-.   Accordingly, this point is answered in the affirmative.

12.  Point No.2 :   

      For the reasons discussed under the Point No.1, as we had come to the conclusion that, there was deficiency in service on the part of the OPs towards the complainant and assessed the compensation towards deficiency in service at Rs.25,000/-, the complainant is entitled for the same along with the cost of the proceedings which shall be as per final order.    Accordingly, this point is partly answered in the affirmative.

:: ORDER ::

            The complaint filed by the complainant is partly allowed.

            The OPs, jointly and severally shall pay Rs.25,000/- (Twenty Five Thousand only) to the complainant towards deficiency in service along with Rs.1,000/- (One Thousand only) towards cost of the proceedings.

            The OPs shall pay the amount awarded to the complainant within                    30 days.

            Inform the parties accordingly.

(Dictated to the Stenographer, transcribed by him, corrected by me and then pronounced in the open Court on this the 16^th day of  November 2013)