The two appeals bearing No. RBR/A/34/2021 and RBR/A/35/2021 were registered before the Kolkata bench of W.B.S.C.D.R.C.  against one Single Final Order dated 09.08.2016 in CC. No. 91/2015 delivered by Ld. D.C.D.R.F., Coochbehar.

Subsequently, the said two appeals were re-assigned to this bench for disposal.

The original consumer complaint was registered by one Ruma Saha against, Khokon Motors and its branch manager of Siliguri, (OP No 1 &2), the manufacturer of the vehicle M/S Mahindra & Mahindra Ltd. (OP No.3) Financiler S.B.I Cooch Behar (OP No. 4).

OP No. 1,2 & 3 has contested the consumer case by filing W.V. OP No. 4 has not contested the case.

The case was adjudicated by delivering the Final Order which was challenged in the two appeals.

The Mahindra & Mahindra company has registered RBR/A/34/2021 and OP No. 1 & 2 Khokon Motors has registered the RBR/A/35/ 2021.

The complainant as principal respondent of both appeals has conducted the hearing through Ld. Advocate Miss. K. Sen & others.

RBR/A/34/2021 and RBR/A/35/2021 are being represented through Ld. Advocate Smt. Sarbari Dutta and Mr. M. Paul  respectively.

This bench after taking consent of all contesting sides of the appeal took a decision to hear the two appeals analogously and one single Judgment and Final order would be passed in deciding the two appeals on merit.

The consumer complainant case filed by the respondent Ruma Saha U/S 12 of CP Act, 1986 in nut shell is that Complainant intended to purchase one Luxury car i.e. MAHINDRA XUV500 FWD W8-IC PRPL from O.P. No.1, The Branch Manager, Khokon Motors Works & Pvt. Ltd., Cooch Behar but because of paucity of fund the Complainant approached to the Proforma OP. No.4, The Manager, State Bank of India, Cooch Behar Branch through their local representative for financial assistance. Both the parties came to mutual agreement and the proforma O.P intended to disburse the loan to the Complainant for purchasing the said vehicle. The total price of the said vehicle was of Rs.14,02.423/ and the O.Ps assured that they will render proper service towards the Complainant. After completion of all formalities the O.P. No.1 delivered the said vehicle i.e MAHINDRA XUV500 FWD W8-JC PRPL under Chassis No. MA1YT2HJUF6A-12947, Engine No. HJF4A13180, Year of manufacturing 2015 to the Complainant on 03/05/2015, and thereafter the OP No.2, The Manager, Khokon Motors Works & Pvt. Ltd. Siliguri issued Tax Invoice in favour of the Complainant on 15/05/2015 and the said vehicle was duly registered bearing No. WB-64-L/2372, authenticated to the Proforma O.P. No.4 by the R.T.O, Cooch Behar and subject to hypothecation in favour of S.B.I, Cooch Behar Branch.

After 10 to 12 days from the date of purchasing vehicle, after a brief journey, the Complainant follows roof ceiling of the said vehicle is swelling and the Complainant took the vehicle to the O.P No 1, showroom the following day and also informed the matter over telephone to the O.P. No.2 and narrated the problems faced by them to its proprietor who assured the Complainant that all the problems would be solved very soon but the Complainant did not get any response from the O.Ps.

Afterwards the Complainant snapped this defective ceiling of the said vehicle and also on several occasions dated 06/07/2015 & 29/08/2015 the Complainant submitted two complaint petitions along with photo before the OP. No 2 for replacing defective ceiling and thereafter on 28/07/2015 & 31/08/2015 respectively the OP No.2 changed the defective ceiling of the said vehicle.

After such repair the same problem again cropped up along with some other related problems and the said defects were arisen within the warranty period for which the Complainant is entitled to get this benefit. But after long run, the Complainant made several contacts orally and over telephone to the OP. No 1 & 2 to replace the defective vehicle or solve the said defects but all efforts were in vain.

Finding no alternative, the Complainant submitted a written complaint dated 14/09/2015 before the office of the Assistant Director, Consumer Affairs & Fair Business Practices, Cooch Behar, for the purpose of redressing the above disputes and the said office sent a letter to the O.P. No. 1 & 2 for resolving the disputes through the process of mediation on 28/09/2015. But the O. Ps did not take any positive measures which can be treated as breaking promise and deficiency in service.

Due to such activities of the O. Ps the Complainant is in hard -up and facing hindrance as well as suffer irreparable loss for which the Complainant could not run the said vehicle properly. The Complainant also suffered from acute mental pain and agony, pecuniary loss and unnecessary harassments. There was also deficiency in service and unfair trade practice adopted by the O.Ps.

Hence, the Complainant filed the present case praying for issuing a direction upon the O. Ps to pay (1) Rs 14,02,423/- for refund value of the said car along with Insurance fee and Road taxes or replaced the said car free of cost, (ii) Rs 2,00,000/-as compensation for mental pain and agony and unnecessary harassment,) Rs.2,00,000/- for deficiency in service and unfair trade practice, (iv) Rs 15,000/ towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.

The O.P. No. 1, The Branch Manager, Khokon Motors Works & Pvt. Ltd. Cooch Behar and the O.P. No.2, The Manager, Khokon Motors Works & Pvt. Ltd. Siliguri and the O.P. No. 3 have contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. This case proceeded with Ex-parte against the O.P. No. 4. The main contention of the O. Ps that the Complainant correspondent to these answering O. Ps for her dispute regarding the vehicle, it also fact that the O. Ps always ready to solve the problem of the said vehicle as she alleged The Complainant purchased the said vehicle and thereafter on several times free servicing of the said vehicle was done by the O.P. No.1 & 2 in their workshop within the warranty period.

The OP. No.1 & 2 further contended in their W/V that some disputes had been cropped up on the ceiling of the vehicle and after getting such information from the Complainant. These answering O. Ps changed the dispute ceiling of the vehicle free of cost and they’re after the driver of Complainant take the vehicle from the workshop with full satisfaction. Further stated there is no dispute of the vehicle regarding the engine, chassis or other valuable parts of the vehicle as such she plying the vehicle on rode smoothly, so there is no question to replace the vehicle at this stage. The dispute which arose on the ceiling of the vehicle it is not major dispute, and the these O.Ps always ready to change the ceiling of the vehicle as her demand at any time but the O.PS did not demand any cost regarding the changing the selling of the vehicle. Therefore, there was no deficiency in service and unfair trade practice adopting by the O.P. No.1 & 2.

In view of above statement. These O. Ps are not liable to pay any compensation or replace the vehicle, so it is prayed that considering the above fact and circumstances to dismissed the present complaint petition with cost.

The OP. No.3, Mahindra & Mahindra Ltd., Mumbai has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P that it would be relevant to explain the relationship between the company and its authorized dealers. The relationship between the manufacturer and dealer is on principal-to-principal basis meaning thereby, dealers Le. the OP. No.1 & 2 are authorized to purchase the vehicles manufactured by the O.P. No.2 in bulk quantities and in turn to resell them to their own customers. In other words, all the transactions with dealers are on principal-to-principal basis and the O.P. No.2 is not aware of the ultimate customer of dealers and as such there is no privacy of contract between the O.P. No.2 and the ultimate customer of the vehicle i.e., the Complainant as far as the subject vehicle is concerned. The O.P. No. 3 is not responsible for any of the act, omissions or commission of any act by its dealers. The dealer is a separate principle and not an agent of the manufacturer Thus, dealer being separate legal entity can sue and can be sued on its own. The relationship is admitted and there is no dispute with regard to that. The liability of the answering OP is limited to the terms and conditions of the warranty policy. It is pertinent to mention here that the sale and services of the said vehicle is the prerogative of the dealer. The ultimate customer pays the price of the vehicle and the charges of the services to the dealer and dealer issues the receipts. Further, it is submitted by the O.P. No.3 that regarding obtaining finance of the vehicle, the O.P No 3 is unaware of the same, as 5.8.1. is a separate company and is separate legal entity for which The O.P. No.3 has nothing to do with the operations of the OP No 4.

It is the case of the O.P. No.3 that sale and service of the vehicle is entirely the prerogative of the dealer. This O.P has no role to play in the service of the vehicle. The liability of the O.P. No.3 is limited to the extent of the terms and conditions of the warranty policy. So far, the allegations are against the dealer and the dealer is answerable to the same. The present O.P is given to understand by the dealer that after the OP. No.1 received the complaint verbally the order was placed on 20/06/2015 and after receiving the said spare parts, the Complainant was contacted to send the vehicle and Complainant has sent the vehicle on 28/07/2015 for 1st Free Service along with the registered complaint (RO166001636). The said spare parts were again changed on 31/08/2015 as the customer was not satisfied with the changed spare parts on 20/06/2015, It is pertinent to note that the OP. No. 1 borne the expenses to bring the vehicle from the Complainant's home town. Even after the second time fitment the Complainant was not satisfied and raised new complaint for the new complaint, an order was placed on 21/09/2015 and 22/09/2015. After receiving the spare parts, the OP. No.1 has informed the Complainant but the Complainant straightly declined to replace the said spare parts.

Further it has been alleged by the O.P. No.3 that some issue with the ceiling of the vehicle was reported and the same was resolved by the O.P. No.1 & 2 free of cost and the driver of the Complainant has taken the delivery of the vehicle after checking the vehicle duly. As far as the problem of the ceiling was concerned the Complainant has herself denied to bring back the vehicle to the O.P. No.1 & 2 where the O. Ps are ready to address the issue concerned at any time. Thus, the O.P. No.3 is not liable to pay any compensation or replace the vehicle.

The proforma O.P. No 4, The Manager, State Bank of India, Cooch Behar Branch did not turn up before the Forum and accordingly the case proceeded in Ex-parte against them.

                                                                            Decision with reasons

On perusal of the pleadings of both sides one thing is well established beyond doubt the respondent of the appeals Smt. Ruma Saha (De), purchased a four-wheeler luxury car styled as Mahindra XUV 500 Model from the dealer Khokon Motors, Coochbehar having main office of the dealer situated of Matigara, Darjeeling. At a total price Rs. 14,02,423/- taking financial assistance as loan from S.B.I., Coochbehar. After a few days since the purchase, she faced some short of trouble in plying the vehicle particularly roof ceiling was swelling within the Warrenty period.

The state bank of Coochbehar was the financier of the car and no relief was sought for against the bank.

During the course of hearing the two appeals, the principal respondent through her Ld. Legal counsels advanced the argument as follows: -

That after completion of all formalities the authorized dealer i.e. Khokon Motors Works & Pvt. Ltd. Cooch Behar Branch, O.P. No.1 delivered the said vehicle i.e. MAHINDRA XUV500 FWD W8-JC PRPL under Chassis No. MAIYT2HJUF6A-12947, Engine No.HJF4A13180, YEAR OF MANUFACTURE 201, on 03.05.2015, and thereafter the O.P. No.2, issued Tax Invoice in favour of me on 15.05.2015 and the said vehicle was duly registered bearing No. WB- 64/L-2372, authenticated to the Proforma Opposite Party by the R.T.O, Cooch Behar and subject to hypothecation in favour of S.B.I Cooch Behar Branch.

That after purchasing of 10 to 12 days after a brief journey noticed roof ceiling of the said vehicle is swelling and  took the vehicle to the O.P. No. 1, showroom the following day and also informed the matter over telephonic massage to the O.P. No. 2 and narrated the problems faced by them to its proprietor who assured her that all the problems would be solved very soon but no any response has got from the OPs.

That afterwards she snapped this defective ceiling of the said vehicle and several occasions on 06.07.2015 and 29.08.2015 and submitted two complaint petitions along with photos before the O.P. No. 2 for replacing defective ceiling and thereafter on 28.07.2015 and 31.08.2015 respectively the O.P. No.2 changed the defective ceiling.

 That after such repair the same problem again cropped up along with some other related problems and the said defects was arisen within the warranty period and she is entitled to get this benefit.

That in the long run she made several contacts orally and over telephone to the opposite party No. 1, & 2, i.e., Khokon Motors Works & Pvt. Ltd. Cooch Behar and Siliguri, with the request to replace the defective vehicle or solve the said defects but all efforts were in vain/or was ended in smoke.

That it has been alleged by her that due to such manufacturing defects she was compelled to replace the said vehicle and thereby she suffered huge loss for the above vehicle.

That due to such apathy and unethical activities of the Opposite Parties she is in hard-up and facing hindrance as well as suffer irreparable loss and for which she could not run the said vehicle properly.'

That finding no alternative she submitted a written complaint on 14.09.2015 before the office of the Assistant Director, Consumer Affairs & Fair Business Practices, Cooch Behar, for the purpose of redressing the above disputes and the said office sent a letter to the O.P. No. 1 & 2 for resolving the disputes through the process of mediation on 28.09.2015. But the O.Ps. did not take any positive measures which can be treated as breaking promise and deficiency in service.

Ld. Advocate of the respondent further mentioned that the manufacturer and seller of the vehicle in W.V. and evidences categorically admitted on oath by affidavit under took that if any problem or disputes arising regarding the body of the vehicle and swelling of the roof of the vehicle, they were agreed to solve the problems. Unfortunately, the manufacturer and seller of the vehicle did not justify their undertakings.

 Ld. Advocate of the appellant in RBR/A/35/2021 mentioned that the entire final order is based upon assumptions. The Ld. Forum without any cogent documentary evidence has held that the vehicle was suffering from manufacturing defects The Ld. Forum at Page No.6 of the final order has stated a citation being 2016(2) CPR 39 (NC) where the National Commission pleased to hold that "Expert opinion is not necessary where manufacturing defect is admitted by O.P."

Rather on the contrary there is no document to prove that the manufacturing defect was admitted by O.P No.1 & 2. The said citation referred in the said judgment was irrelevant and out of assumptions only

Any question of any mechanical defect/damage in connection with the said vehicle cannot be proved without an opinion of an expert in this field.

The Hon'ble National Commission in the case of Kumari Namrata Singh vs. Manager, Indus; (2012) 3 CPR (NC) 570, has held that

"For proving fact of manufacturing defect expert opinion is necessary” which is lacking in present case

In the case of Royal Enfield Motor Ltd. vs. Kulwant Singh Chauhan, (2011) 4 CPR 208, the Hon'ble National Commission has held that it was duty of the appellant/complainant to establish his case that motorcycle was suffering with any sort of manufacturing defect, which could not be removed in spite of best efforts made by Automobile Engineer. Direction issued by District Forum for replacement of motorcycle is wrong and not justified and liable to be set aside.

In the case of Sukhvinder Singh vs. Classic Automobile & Anr.; I (2013) CPJ 47 (NC), the Hon'ble National Commission has held that the service history only reveals that there was overheating once. No evidence that vehicle became defective again. Report of expert was essential or some other evidence showing manufacturing defect should have been adduced. Mere fact that vehicle was taken to service station for one or two times does not ipso facto prove manufacturing defect.

In the case of Tata Motors Ltd. vs. Deepak Goyal & Ors.; I (2015) CPJ 607 (NC), the Hon'ble National Commission has held that merely because vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects.

The history of the vehicle in dispute reflects that the customer/Complainant has several times visited the service center of the OP No.1 & OP No.2 for various kinds of service work but very surprisingly the customer/Complainant had complaints regarding the ceiling of the vehicle only once on 28.07.2015.

The said vehicle in question as on 08.03.2022 as per the odometer of the vehicle displays that the vehicle has travelled 102121 (One Lakh Two Thousand One Hundred Twenty-One) Kms. As per the said odometer reading the said vehicle is absolutely in a road worthy condition.

It is a is a well settled position that the manufacturer is not responsible for any defect which does not qualify as a true and genuine manufacturing defect and also that any complaint relating to any alleged manufacturing defect is not established without the technical expert's report.

The impugned order dated 09.08.16 is entirely based upon surmise and conjectures. The Ld. Forum below miserably failed to analyze the fact why the complainant surprisingly never attempted to prove why the ceiling lining (which is merely a fitment and not the chassis itself) required repetitive change or whether the same was unscrupulously manhandled for any unlawful usage.

The Ld. Forum below has also observed that the grievance of the complainant was every time addressed the same and replaced the said fitting under warranty in appropriate manner and thus the allegation of 'deficiency' and/or 'unfair trade practice' does not come into picture at all.

The Learned Forum below grossly erred in concluding the observation in the impugned order dated 09.08.16.

Ld. Advocate of the appellant in RBR/A/34/2021 mentioned inter alia that it is reasonably presumed that there is some inherent defect that cannot be removed after repeated service' at Page 5 para 9 of the impugned judgment without referring the subject vehicle for any technical expert's opinion to ascertain whether the alleged defect is really 'inherent defect' or had the alleged defect affected the roadworthiness of the subject vehicle in any cogent manner entitling the complainant to get 100% refund per the criteria benchmarked by the Hon'ble Supreme Court and the Hon'ble NCDRC so far.

After going through the pleadings of the consumer complainants’ case of all sides and on perusal of material documents and evidences placed before the Ld. Forum, it was established beyond any doubt that the authorized dealer of the vehicle in question, whenever the vehicle was brought to them by the driver of the complainant with some problems, the necessary repairs and replacement of defective parts was duly carried out within the warranty period without imposing any charge of repair or cost of replacement of spare parts on 28.07.2015 and 31.08.2015 and defects of ceiling was also removed by replacement.

Ld. Forum in the body of judgement has opined that roof ceiling was not up to the mark and swelling and wrinkle appeared in the ceiling within a few days of purchase indicated inherent and manufacturing defects.

The term manufacturing defect is a wide term. To prove the manufacturing defect expert opinion is mandatory. But here in this case without any expert opinion the Ld. Forum had no opportunity to confirm that the vehicle in question had an inherent manufacturing defect.

The report of expert essential showing manufacturing defects, the mere fact that the vehicle was taken to the service center ( workshop of the dealer), for two or three times for replacement of spare parts or repair of defects, did not ipso facto prove the manufacturing defect.

Rather, by the passage of time the vehicle in question has completed the plying of thousands of kilometer path way and still in running and workable condition.

Therefore, the observation of Ld. Forum regarding manufacturing defects and the order of replacement of the vehicle or refund of the sell proceeds of the vehicle had no justification and judicious one.

On the other hand, the respondent (Complainant) had to face some short of problem regarding the swelling and wrinkle appeared in the roof of the vehicle within a few days of purchase, certainly caused her harassment and mental agony and for that reason the quantum of compensation to that score amounting of Rs. 25,000/- is appreciable.

The respondent (complainant) Smt. Ruma Saha (De) had to fight a long legal battle before the Ld. Forum and this State Commission, the ligation cost should be allowed in her favour to the tune of Rs. 20,000/- instead of Rs. 10,000/-.

Those two appeals in respect of final order of Ld. DCDRF, Coochbehar dated. 09/08/2016 in CC No. 91 of 2015 should be partly allowed with some modifications.

Hence, it is ordered

That the two appeals bearing No. RBR/A/34/2021 and RBR/A/35/2021 are here by partly allowed on contest without any cost.

The final order of Ld. DCDRF, Coochbehar dated 09/08/2016 in CC No. 91 of 2015 is here by modified to the effect that the order upon contesting Ops of the complaint case to make refund the cost of the vehicle of the complainant to the tune of Rs. 14,02,423/- on return of the vehicle, is set aside and rescinded.

The quantum of award regarding compensation of Rs. 25,000/- to be paid by the appellants of the two appeals jointly and severally are here by confirmed and litigation cost Rs. 20,000/- instead of Rs. 10,000/- shall have to be paid by the said appellants.

If they paid the compensation and litigation cost by this modified order within 45 days from this day. No further financial liability will be imposed upon them failing which the order of Ld. Forum to paid Rs. 100/- for each day default shall be come into force.  

Let a copy of this final order to be handed over to the contesting parties of appeal free of cost and the same to be communicated to the Ld. DCDRF, Coochbehar.