Karnataka

Bidar

CC/77/2014

HARISH S/O SHANKER BANDI - Complainant(s)

Versus

SCORPIO MAHINDRA & MAHINDRA LTD, MUMBAI - Opp.Party(s)

P M DESHPANDE

31 Mar 2017

ORDER

::BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT BIDAR::

 

 

                                                                                                         C.C.No. 77/2014

 

                                                                                           Date of filing: 06/09/2014

 

                                                                                       Date of disposal : 31/03/2017

 

 

P R E S E N T:-              (1) Shri. Jagannath Prasad Udgata,

                                                                                         B.A., LL.B

                                                                                                       President.

    

                                         (2) Shri. Shankrappa  (Halipurgi),

                                                                      B.A.LL.B.

                                                                                  Member.

 

                                   

 

                                               

COMPLAINANT:              Harish, s/o Shanker Bandi,

                                           Age: 38 years, Occ: Self employment

                                        R/o Vijaynagar Colony,

                                        Opp. NEKRTC Bus Stand, Bidar.   

 

                                       (By Shri. P.M. Deshpande, Advocate)

 

 

                                                      VERSUS

 

OPPONENT/S   :-          1.   Scorpio Mahindra and Mahindra Ltd.

                                                Mahindra Towers, Warli road, no.13,          

                                             Warli, Mumbai-4000018 ( India)

 

                                          2.   Raja Rajan and sons,

                                                R.S.No.136, Venteshwara Nagar,

                                                Ariyur, Vilanur Commune,

                                                Puducherry-102,

 

 

 

                                       3.   Automotive Manufacture Pvt. Ltd.,

                                                 Sy.no.73 ( Part) Suchitra Electronics,

                                             beside Rama Raju Nagar, Jeedimetla,

                                                Hyderabad-5500 055.

 

                                       4.   S.B.H. Branch,

                                                Shivanagar Bidar.

                                     

 

                                 (O.P.No.1 By Sri. Madan Rao.B.,Advocate)

                                 ( O.P.No.2 By Sri. Amol Kumar E Adv., since retired)

                                 ( O.P.No.3 By Sri. Satish Kulkarni,Advocate)

                                 ( O.P.No.4-Exparte )

 

 

 

 

: : J U D G M E N T  : :

 

 

 

By Shri. Jagannath Prasad Udgata, President.

 

    The complainant has filed the complaint u/s.12 of the C.P.Act, 1986, alleging  deficiency of service in the part of the O.Ps.  The origin and genesis of the case is as follows:

2.                The complainant for self employment, to earn his  livelihood and maintenance had purchased a Scorpio Mahindra & Mahindra vehicle  from the O.P.no.2 under hypothecation loan. The O.P.no.1is the manufacturer, O.P.no.2 Dealer and the O.Pno.3 is the service provider.  O.P.No.4 was the financier.   The complainant avers that due to  manufacturing defect in the major part of the vehicle, i.e. Turbo Engine, even after three services and repairs it could not be rectified.  The Turbo Engine even after replacement by the service operator was found not to be of standard one and no warranty was issued after replacement.   Due to defect in the vehicle,  the vehicle was kept idle and the complainant was unable to ply the vehicle and for that reason, the complainant has sustained  loss(s). The complainant had invested heavy amount in purchasing the vehicle and he had also extra burden of additional payment of margin money, insurance, taxes and HPA loan, EMI payments.    Hence the respondents are liable to either to replace the vehicle with  a new one or to repay the price   of the vehicle and other investment made for it.  According to complainant the amount recoverable from the O.Ps totally works out to Rs. 14,00,000/- and Rs. 1,00,000/- towards costs and damages.   Hence, the complainant is before this Forum claiming compensation against the O.Ps.

 

3.            On service of Court’s notices O.P.no.4 has not appeared and O.P.no.4 has been placed exparte.  The O.P.no.2 had appeared before this Forum through his counsel but, his counsel had retired from the  case and the O.P.no.2 not never filed written version.  The O.P.no.1 & 3 have appeared before this Forum and filed their respective written versions.  The O.P.no.1 in his written version states that, the averments made in the complaint are vague, baseless and with malafide intention.  The complainant has made misconceived and baseless allegations of manufacturing defect in the utility vehicle without relying on any expert report form a reorganized and notified laboratory under sec.13(1) of the Consumer Protection Act, and deficiency in service is alleged without any documentary evidence in support of the allegations made in the complaint.   The Forum has no jurisdiction under section 11 of the Consumer Protection Act. to entertain, try and adjudicate the present complaint as in the instant complaint, the entire cause of action stated in the petition based on a utility vehicle, Mahindra Scorpio VLX, purchased by the complainant from the O.P.no.2 at Pondicherry.  Further, the utility vehicle in question had reported for all its services/ repairs at workshop of the O.P.no.3 at Hyderabad.   The O.P.no.1,2 & 3 have neither any branch office at Bidar nor they carry business over there.  Needless to mention that though the complainant has impleaded the O.P.no.4 in the complaint, has not avered any statement against it.  It is clear that O.P. no.4 has been impleaded by the complainant only to seek jurisdiction  to file the complaint.  Under the circumstances, the cause of action if any in the present case has arisen either in Pondiecherry or Hyderabad and not at Bidar.  The complainant is not a ‘Consumer’ within the meaning of the term “Consumer’s defined under section 2 (1) (d) of the Consumer Protection Act, 1986 as the complainant had purchased the said utility vehicle for business purposes.  The answering O.P. has been given to understand that the complainant has been giving the utility vehicle for hire to third parties.  It is submitted that the utility vehicle in question has been used for commercial activities in order to generate profit and has covered more than 15,672kms. within a mere span of aprox. 13 months. The extensive usage of utility vehicle in question itself establishes that this is not a normal personal usage.

 4.         Without prejudice to the foregoing submission, 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.  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 the O.P.no.1

5.              Further O.P.no.1 in para wise reply states that, averments in  para 1 of the complaint as a matter of business practice, does not deal with any customer for sale of the new car or utility vehicle, hence cannot comment what transpired between the complainant and the O.P.no.2 at the time   of sale .  However, it may be noted that all the utility vehicles manufactured by this O.P undergo strict quality checks, certified and thereafter dispatched to the dealers across the country.  The utility vehicle sold at the dealership point also undergoes pre-delivery inspection and being satisfied with the condition and performance of the vehicle, it is sold to the consumers and in this case also, the said process ought to have followed at the O.P.no.2.  The O.P.no.1 has been further given to understand that there was no problem with the utility vehicle at the time of delivery and the complainant had taken the delivery after proper inspection and satisfaction and has acknowledged the same by signing the tax invoice dated 20/06/2013.

6.              The averments made in para no. 2 of the complaint are denied as false, save and except which are matters of record, and the complainant be put to strict proof of the same.  It is strenuously denied that there was any defect/problem in the turbo engine of the vehicle since the beginning.  As a matter of fact, the utility vehicle reported first time after the purchase on or around 23/10/2013 at 4,585kms. (approx.) to the O.P.no.3 for 1^st service beside minor complaints of central  lock not working and ABS wiring check wherein scheduled service and standard checks were done and neither any issue of turbo engine was reported by the complainant nor observed by the workshop.   The utility vehicle was checked for the complainant of ABS wiring where in was found that rat bite had caused severance of the wire.  The problems in the utility vehicle were addressed and a joint test drive was undertaken along and the complainant when the complainant was satisfied with the vehicle.  The complainant has also shown his satisfaction by signing the satisfaction column on the vehicle admission slip.  A copy of the vehicle admission slip, repair order, pre invoice, tax invoice, road test check sheet and gate pass dated 23/10/2013 are furnished.    The utility vehicle reported on or around 22/01/2014 at 8,667kms. (approx.) to the O.P.no.3 for 2^nd free service wherein recommended services such as change of differential oil, gear oil, etc. were carried out and neither any issue was raised by the complainant nor noticed by the workshop.  A joint road test was taken along with the complainant where the vehicle was found to be running in a good condition.  The complainant was again satisfied with the services rendered by the workshop and has signed the satisfaction note.  A copy of the repair order, pre-invoice, road test check sheet, check list and gate pass and satisfaction note dated 22/01/2014 are submitted.    Eventually, the utility vehicle reported on or around 08/08/2014 at 15,672kms. (approx.) for 3^rd free service to the O.P.no.3  and apart from the problems of check light glowing when during inspection, turbo charger inlet hose was removed and oil was found therein.  It was observed that there was n o movement of actuating stem of the turbo charger.  The vehicle was then repaired by replacing turbo charger under warranty.  A road test of the vehicle was taken along with the complainant wherein he was fully appeased with the road worthiness of the vehicle.  The complainant was totally satisfied with the vehicle and has taken the delivery after signing the satisfaction note.

7.                 The averments made in para 3 to 9 in the complaint are false and denied the complainant be put strict proof of the same.  The complainant has been operating the vehicle on a hiring basis to earn profits.  Further, the complainant has not produced to show that vehicle has been used for his livelihood and in the absence of the same, the complainant cannot seek status of a ‘Consumer’ under the Act.  The complainant has neither a requisite knowledge nor infrastructure to arrive at a conclusion that vehicle would not ply properly in the future.  Further, the alleged contention of the complainant is against the terms and conditions of the warranty of the utility vehicle to replace or refund its price when there is no problem.  The warranty of the utility vehicle clearly stipulates that the obligation of the manufacturer under the warranty shall be limited to repair and replacement of such parts free of cots, if found to be defective when the said vehicle being brought to the manufacturer or the authorized dealers within the warranty.  In the present case, the problem was duly attended by the workshop by replacing turbo charger under warranty.  Moreover, the complainant is debarred as per the warranty policy to demand any damages or compensation for losses, incidental or indirect, or inconvenience or consequential damages, loss of vehicle, or loss of time, or otherwise, incurred or accrued.  The contents of para no.10 and 11 of the complaint do not require any traverse.   The claims made at prayer clause of the complaint by the complainant are denied as false, unsustainable and without any merit and the complainant be put to strict proof of the same.  It is submitted that the complainant has no and cannot have any grievance against the O.P.no.1 and the complainant has failed to prove any cause of action or prima facie case in the complaint against the O.P.no.1.  Hence, the complaint filed by the complainant may be dismissed with costs. 

 8.           The O.P.no.3 in his written version claims that, the complaint filed by the complainant is neither maintainable in law nor on the facts of the case.  A meaningful perusal of the complaint shows that the present complaint is only a chance litigation initiated by the complainant to unjustly enrich himself, by indulging into gross suppression and misrepresentation of material facts.    In reply to para no. 2 to 4 of the complaint, regarding the complainant had availed three services at this O.P’s workshop.  The allegation that it was found defective since the beginning and that there was a manufacturing defect in the major part of the vehicle i.e. the Turbo Engine and even after three services and repairs it could not be rectified and that the Turbo Engine was replaced and it was found not to be of standard and no warranty has been issued for replacement and it shows that the replaced part had no standard and as such the vehicle is kept idle and as such the complainant has sustained losses day by day and also lost the earning capacity required for livelihood and maintenance is absolutely incorrect and false and hereby specifically denied and the complainant is put to strict proof of the same.  

 

9.              The O.P. no.3 denied all the allegations made in para no. 5 to 9.  The complainant had earlier delivered the vehicle at the service centre of the O.P. for carrying out 1^st and 2^nd free servicing.  On the first occasion the vehicle was given on 23/10/2013 on the said occasion the complainant had expressed problem with the central locking and ABS wiring (suspecting wire cutting by rats) the O.P.no.3 had carried out free servicing and had addressed the issue raised by the complainant.  The complainant had taken back the vehicle, after having a test drive and after being satisfied with the repairs.  The complainant had subsequently delivered the subject vehicle at the service centre of the O.P.no.3 on 22/01/2014 for carrying out 2^nd free servicing.  On the said occasion also the O.P. also had carried out free servicing and the complainant had taken back the vehicle, after having a test drive and after being satisfied with the servicing carried out.   The complainant on the said occasion  had not suggested for carrying out any repairs.  Thereafter the complainant was delivered the vehicle on 08/08/2014 for 3^rd free servicing, on the said occasion the complainant had addressed issues as to check light glowing continuously in running mode, checking the wheels and head light focus accordingly a job card dated 08/08/2014 was opened.  Upon inspection the technicians of the O.P. had found that there was problem with the Turbo Charger.  As the said part was under warranty, The O.P. on it’s own had replaced the Turbo Charger (costing Rs.25,389/-) under warranty. After servicing and repairs to the vehicle the complainant had also taken a road test after being duly satisfied with the same and the complainant had taken the delivery of the vehicle on 11/08/2014.  It is rather surprising and inconceivable to understand as to why the complainant has rushed to this Court, that too on the basis of concocted and created grounds.  The complainant has not issued any communication or notice to this O.P. regarding the alleged defects in the vehicle.  The above said facts itself goes to show that the entire story as stated by the complainant is cooked up to somehow maintain the present case.  The allegation that the O.P. are liable to replace new one vehicle or to repay the price paid for the vehicle and other investment totally to the extent of Rs.14,00,000/- and damages of Rs.1,00,000/- is emphatically denied and the complainant is put to strict proof of the same.   The allegation that part of cause of action has occurred at Bidar and there is fresh cause of action constituted to file this complaint well within the jurisdiction of the Forum is hereby denied.  Therefore, the complaint may be dismissed with costs.

 

 

10.               Both the sides have filed their evidence affidavits and written arguments reiterating their respective contentions and documents relied upon as described at the end of the order.  Certain documents submitted by the parties are not relevant to the proceeding and hence are not marked.

 

11.         Considering the rival contentions of the parties, the following points arise for our consideration:-

 

 

 

1. Does this forum has no jurisdiction to try this case as claimed by the contesting O.P.s?
2. Does the complainant prove that, there has been a deficiency of service in the part of the Opponent?
3. Do the contesting O.P.S. prove that, the complainant is not a consumer?
4. What order ?

 

 

12.           Our answers to the points stated above are as follows:-

 

1. In the negative.
2. In affirmative in part.
3. In the negative.

               4 . As per the final order, for the following:

 

                                                                                                       :: REASONS ::

13.       Point No.1.   It is seen from the documents that, vide Ex.P.1, the booking amount of Rs.25,000/- was received by the O.P.No.2 on 21.06.2013.  vide Ex.P.2, a further amount of Rs.75,000/- was received by the same party on 25.06.2013 and it contains on endorsement that, “BALANCE AMOUNT REGED RTGS” which would have been generated through the non contesting O.P.NO.4, the financier of the vehicle.  Vide, Ex.P.3, the non contesting dealer at Pondichery receives the total amount of Rs.10,89,528-00 with taxes and releases  the vehicle in favour of the complainant, and prior to that vide Ex.P.4 date: 05.07.2013 acknowledges receipt of further amount of Rs.1,00,000/-.  Vide Ex.P.5 date. 19.07.2013, the Dealer acknowledges further payment of Rs.9,50,000/- still endorsing balance amount received RTGS.  Consequent upon finality of Transaction, the vehicle was registered with Transport department of Government of Puduchery and was assigned registration mark of PY 01 BY 3461 of course with an address of the complainant at Puduchery (Ex.P.6).  The vehicle information sheet was issued by the O.P.No.2 vide Ex.P.7 with address of the complainant recorded to be at Bidar.  The descriptions stated above, prove that,  a part of cause of action had arisen at Bidar from where the amount was transferred through RTGS to Pudduchery.  Hence the claims of the contesting parties that, the cause of action arose only at Puduchary or Hyderabad is hollow per se, and we hold that, vide section 11 (c) of the Consumer Protection Act, 1986 this Forum has the jurisdiction to try this case and decide point No.1 accordingly.

 

14.       Point No.2.   From the averments of the contesting O.P.NO.1 and3, it is seen that, the complainant has been regularly taking the vehicle totheO.P.No.3 (service Provider) which fact is born out from the document like Ex.P.12 to Ex.P.16 for routine repairs.  The O.P.No.3 has also submitted documents vide Ex.R.1 to R.7 which are more or less replicas of the documents filed by the O.P..  FromEx.R.5 submitted by the O.P.No.3 it is evident that, on 08.08.2014 the Turbo Charger was ordered to be replaced being found          defective.  For the said replacement, an amount of Rs.25,389.60ps was claimed (2^nd page ofR.6).  Thereafter the vehicle was given delivery to the complainant on 11.08.2014.  Inspite of such replacement, the vehicle was not fully functional.  We may infer that, in a high end vehicle like Scorpio, Turbocharger is an important and most vital component and if that was to be  replaced before availing all the free services and after plying the vehicle for only 15762 K.M, doctrine of “Resipsa Loquitor” would squarely apply to the case, holding that, there is latent defect in the vehicle.

 

15.                   Point o.3.                  The contesting O.P.s have raised a much hyped hoopla that, the complainant was utilising the vehicle by hiring to third parties and in the process has covered more that 15672 K.M.s in thirteen months, which establishes that, this was not a normal personal usage.  We wonder by the surmisation of the O.P.s in such manner.  Calculating from the mileage factor mentioned by the opponents in average, the vehicle has run 1205 Km. Pm., which is not factor denoting extensive use of the vehicle.  That apart, the service dealer, O.P.NO.3 in the repair order date: 22.01.2014 has recorded the classification of the vehicle as “NON TAXI” (ExP.13).  Once appreciating the personal and private use of the vehicle, the O.P.s cannot be permitted to claim that, the vehicle was being used for hire to gain commercially.  No such proof has been produced by the O.P.s and their mere saying cannot be accepted as a gospel truth. Hence, we answer the point in the negative.

 

16.                   The contesting O.P.s in their defence had raised a vital question that, without getting examined by an expert, the defect in function of the vehicle cannot be accepted at the asking of the complainant.  Considering their please seriously, on 24.12.2016,  this court passed an order and directed that, the vehicle be taken for testing by the O.P.No.1 at its’ own cost.  From internet, the particulars of two such approved laboratories (1) National Automotive Testing R &D Infrastructure project at N.B.C.C. place, South Tower. 3^rd Floor, Bhisma Pitamaha Marg, Pragati vihar, Lodhi road, New Delhi-110003 and/ (OR) Global Automotive Research Centre (GARC) (NATRIP) Plot E1, SIPCOT Industrial Growth centre1 Orgadam, Mathur Post, Sri perumbuddur Taluk, Kanchipuram Dist. PIN-602105            were searched and option was given to the O.P. No.1 to choose either of the labs concerned by 03.01.2017 and thereafter defray the testing fee of Rs.5000/- by 09.01.2017.  Surprisingly after passing that order, the O.P.s NO.1 and 3  absented themselves from the proceedings.  The order was never complied nor any submission was made from the side of the O.P.s and it compels us to draw an adverse inferences against them that, should their MIACULPA  be discovered, they have opted to abstain from the case.  The attitude and actions of  O.P.No.1 and 3 prove that, there is clear cut case of deficiency of service and unethical trade practice is established beyond reasonable doubt.

 

17.                   The complainants’ side in course of pleadings has submitted the following ratios of higher Foras detailed underneath.       

 

 

 2015(1) CPR 840(NC)

M/s New Holland Fiat India Pvt. Ltd. V/s N.K. Mohanlal & ors.

Consumer Protection Act,1986-Sections 15,17,19 and 21- Automobile Manufacturing defect even replaced vehicle was found to be problematic  and allegedly suffered from wobbling and excessive wear and tear while driving Direction for refund of price Defects could not be removed Implied warranty should become enforceable in the event of established failure of specific warranty No case has been made out against impugned order of intervention Revision Petitions dismissed.

 

2015(3) CPR 667 (NC).

Love Kumar Sharma V/s Cargo Motor(P) Ltd. and Anr.

Consumer Protection Act, 1986- Sections 15,17,19 and 21 Automobile Manufacturing defect-Not only fuel pump developed problem within less than four months of purchase of vehicle, leaving Petitioner stranded on read while driving from one city to another, even Engine had to be replaced within same period of four months Plea that engine of vehicle was changed just to maintain good relations is without any substance-Necessity to change two vital parts of vehicle is manifestation of charge of Petitioner that brand new vehicle did suffer from manufacturing defects and no further expert evidence was required to be adduced to prove the fact-Attending the defects in car and even carrying out repairs free of cost, is of no solace to an owner of vehicle and does not absolve a dealer or a manufacturer from its liability to adequately compensate purchaser for inconvenience, harassment and mental and physical agony suffered by him on account of defects in car-Compensation of Rs.1,58,000/- awarded by District Forum was adequate and did not warrant interference by State Commission.

 

Both the case laws quoted above confirms our reasoning’s and hence we answer point No.3 accordingly.

 

18.       Point No.4.   The  complainant in this case has sought a refund in a sum of Rs.14,00,000/-  and cost and damages at a sum of Rs. 1,00,000/- Factually, the complainant has remitted amounts of Rs.25,000/- (Ex.P.1), Rs.1,00,000/-(Ex.P.2), Rs.1,00,000/-(Ex.P.4) and Rs.9,50,000/- (Ex.P.5), thus totalling an amount of Rs.11,75,000/- to the dealer, O.P.No.2.  He might have spent extra amounts towards registration, Insurance and other Sundry Charges, which are not in record.  Hence he deserves that much amount towards refund together with compensation and litigation expenses and fixing our gaze on law of equity, we proceed to pass the following.                       

                       

: :   ORDER : :

 

1.  The complaint is allowed in part.

 

 

2. The O.P.No.1 and 2 are hereby jointly and severally directed to take back the defective Mahindra Scorpio vehicle sold by the later, new assigned Registration mark PYo1BY3461 ad replace the same with a brand new flawless vehicle of similar specification together with proper registration and Insurance coupled with a fresh warranty to the complainant.
3. In the alternative, the O.P.No.1 and 2, refund a sum of Rs.11,75,000/- (Rupees eleven lac seventy five thousand only) to the complainant together with 12% p.a. calculated from the date of lat payment i.e. 19.07.2013 (Ex.P.5) till date of realisation.
4. The opponents are further directed to pay a compensation of Rs.50,000/- (Rupees fifty thousand only) towards the difficulties and mental trauma undergone by the complainant.
5. The opponents No.1 and 2 are further directed to pay a sum of Rs.20,000/- (Rupees Twenty thousand only) towards litigation expenses.
6. Case against O.P. No.3 and 4 is dismissed.
7. Four weeks time to comply this order.

 

             

 

 

 

   (Typed to our dictation then corrected, signed by us and then   
     pronounced in the open Forum on this  31^st  day of February-2017 )

 

 

 

   Sri. Shankrappa H.                                             Sri. Jagannath Prasad                               

           Member                                                                        President

  

 

 

Documents produced by the complainant

                                                                                                                              

1.  Ex.P.1- Original receipt of O.P.No.2 date: 21.06.2013.

2.  Ex.P.2 Original receipt of O.P.No.2 date: 25.06.2013.

3.  Ex.P.3- Original Tax invoice of O.P.No.2 date: 30.06.2013.

4.  Ex.P.4- Original Receipt of O.P.No.2 date: 05.07.2013.

5.  Ex.P.5- Original Receipt of O.P.No.2 date: 19.07.2013.

6.  Ex.P.6-  Certificate of Registration of Government

                 of   Puduchery date.19.07.2013(copy).

 7.  Ex.P.7- Service warranty (copy).

8.   Ex.P.8-P 11- Service coupons. (copy).

9.   Ex.P.12-Original TaxInvoice of O.P.No.3

10. Ex.P.13- Original Repair order of O.P.No.3 date. 22.01.2014.

11. Ex.P.14- Original Repair order of O.P.No.3 date. 08.08.2014.

12.  Ex.P.15- Original Tax Invoice of O.P.No.3 date. 11.08.2014.

13.  Ex.P.16- Original Preinvoice of O.P.No.3 date 11.08.2014.

 

 

 

 

Documents produced by the O.Ps.

 

1. Ex.R1- Repair order ofO.P.No.3 date: 22.01.2014.
2. Ex.R2-Vehicle admission slip of O.P.No.3 (copy).
3. Ex.R3- Pre invoice O.P.No.3 date: 23.10.2013.
4. Ex.R4- Original repair order date: 08.08.2014.
5. Ex.R5-Original Warranty application form date: 08.08.2014-
              
6. Ex.R6- Original Pre invoice date: 11.08.2014.  
7. Ex.R7- Original Gate pass date.11.08.2014. –

 

 

 

 

   Sri. Shankrappa H.                                           Sri. Jagannath Prasad                               

           Member                                                                     President.

 

sb.