Madhya Pradesh

StateCommission

FA/13/997

MAHINDRA & MAHINDRA - Complainant(s)

Versus

SMT.SHIVANI - Opp.Party(s)

SH. R.B. TIWARI

04 Aug 2017

ORDER

M. P. STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,                         

                             PLOT NO.76, ARERA HILLS, BHOPAL

 

                                 FIRST APPEAL NO. 997 OF 2013

(Arising out of order dated 30.03.2013 passed in C.C.No.1143/2009 by District Forum, Indore)

 

MANAGING DIRECTOR,

MAHINDRA & MAHINDRA LIMITED,

GATEWAY BUILDING, APPOLLO BANDAR,

MUMBAI & ONE ANOTHER.                                                         ….        APPELLANTS.

 

Versus

 

1. SMT. SHIVANI,

    W/O SHRI DR. OM PRAKASH TAWANI,

    R/O 115, SANGHI STREET,

    MHOW DISTRICT-INDORE (M.P.)

 

2. MANAGING DIRECTOR,

    PATWA AUTOMOTIVES PVT. LTD.

    LASUDIA MORI, DEWAS NAKA,

    A.B.ROAD, INDORE (M.P.)                                                             …RESPONDENTS.                                

                                 

BEFORE :

            HON’BLE SHRI JUSTICE RAKESH SAKSENA  :    PRESIDENT

            HON’BLE SHRI SUBHASH JAIN                         :    MEMBER

COUNSEL FOR PARTIES :

                Shri R. B. Tiwari, learned counsel for appellants.

            Respondent no.1 is present in person.

           None for the respondent no.2.                                                              

                                                  O R D E R

                                           (Passed On 04.08. 2017)

                   The following order of the Commission was delivered by Shri Subhash Jain, Member:

           

                   This appeal under Section 15 of the Consumer Protection Act, 1986 has been filed by the opposite party no.1 and 2 Mahindra & Mahindra Limited (hereinafter referred to as ‘appellant’) being aggrieved by the order dated 30.03.2013 passed by the District Consumer Disputes Redressal Forum, Indore in C.C.No.1143/2009 whereby the complaint filed by the complainant/respondent no.1 is allowed.

2.                     Facts of the case in brief are that the respondent no.1/complainant Smt. Shivani Tawani (hereinafter referred to as ‘respondent no.1’) on 20.12.2007

after getting finance from opposite party no.2 Mahindra Finance had purchased LMV Logan DSL from opposite party no.3/respondent no.2 herein (hereinafter

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referred to as ‘respondent no.2’) Patwa Automotives PVt. Ltd in Rs.6,40,197/-.  The said vehicle was purchased relying on the details given in the advertisement.  As per respondent no.1 immediately after its purchase the vehicle started giving troubles like consumption of more engine oil, leakage, noise from engine and defects in piston.  It is alleged by the respondent no.1 that due to manufacturing defect, the defects as pointed out by her were not rectified by the respondent no.2, in the result, on 07.12.2008, the engine opened, even then defects were not rectified.  She therefore filed a complaint against the appellants and respondent no.2 alleging deficiency in service and unfair trade practice claiming refund of cost price Rs.6,40,197/- along with compensation for mental and physical pain.

3.                     Appellants while resisting the complaint raised preliminary objection that the respondent no.1 purchased the said vehicle for commercial purpose and since the complaint is not filed within a period of two years from the date of its purchase, the complaint is not maintainable and barred by limitation. It has been submitted that in service manual of vehicle it has been specified that in case of any dispute between the parties, the dispute can be resolved only in the jurisdiction of Greater Mumbai and therefore, the Forum has no jurisdiction to hear this case. In the reply it has been submitted that there is no manufacturing defect in the vehicle, the respondent no.1 run the vehicle 14225 km in one year and if there was any manufacturing defect, the vehicle could not run for such a long distance. Three free services of the vehicle in question were also done but there was no complaint during free services. It has been submitted that the vehicle met with an accident and the vehicle was given for service on 22.10.2008 which was returned to her on 24.10.2008 in full satisfaction.  As per them, she could not get benefit for defects due to accident in warranty.  There was no manufacturing defect in the vehicle and since the respondent no.1 run the vehicle

 

 

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without engine oil and it met with an accident, technical defects were found for which respondent herself is responsible.  Thus they pray for dismissal of complaint.

4.                     The respondent no.2 while resisting the complaint before the Forum also took preliminary objection that respondent no.1 purchased the vehicle for commercial purpose to earn profit, thus she does not fall under the category of consumer.   It has been submitted in the reply that the vehicle in dispute had no manufacturing defect.  The respondent no.1 after taking delivery of vehicle on 07.11.2007 run the vehicle 14225 kms till 18.11.2008 and if there could have been any manufacturing defect, it can’t run for such a long time.  During this period three free service of vehicle were also done but during servicing also respondent no.1 never complained about any defect.  As per them the respondent no.1 not followed the instructions given in the service manual. After running 13566 Kms, the vehicle due to carelessness of respondent no.1 met with an accident, which was repaired to the satisfaction of her and satisfaction letter was obtained. Thereafter after running 14225 Kms, on 18.11.2008 when the vehicle was brought for servicing, the complaint of black smoke and consumption of more engine oil was recorded in the job-card.  On inspecting the vehicle it was found that the vehicle was being run without engine oil and therefore technical defects were come.  It has been specifically told her that since the vehicle met with an accident she could not get benefit under the warranty, she may claim the loss sustained to the vehicle due to accident from the insurance company.  Thus after apprising of factual situation to the respondent no.1, she was told that approx. Rs.72,000/- will incur in repairing the accidental vehicle but she at her own instead of replacing the parts got it repaired.  The respondent no.1 has not come with clean hands before the Forum, she never referred fact of accident in her complaint, thus prayed for dismissal of complaint filed by the respondent no.1.

 

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5.                     The learned Forum after going through the evidence adduced by the parties found that the vehicle purchased by the respondent no.1 was not normal, there was defect in the engine and it consumed much engine oil.  The Forum also found that before running 15000 km, the engine of the vehicle was opened and some new and some old parts were found in the engine. The Forum found those defects as manufacturing defects.  The Forum also considered the objections raised by the opposite parties that after running for such a long distance, it is not proper to give new vehicle in place of vehicle in question.  The Forum concluded that though the respondent no.1 run the vehicle for 15000 kms in such a situation, on giving her a new vehicle, the depreciation value of the old vehicle for running 15000 km should be deducted from the cost price of the new vehicle.

6.                     The District Forum partially allowed the complaint and vide impugned order directed the opposite parties in paragraph 21 of the order as follows :

(1)       The opposite parties may provide new LMV Logan DSL of same model to complainant.

(2)       The opposite parties may valued the depreciation value for running 15000 km from the expert, and after getting the said depreciation value from the complainant, will provide new vehicle to complainant.

(3)       If the vehicle of same model is not in manufacturing process then in such a situation will provide value of the new vehicle after deducting depreciation value of the old vehicle and will get the old vehicle.  The complainant may execute necessary documents in favour of opposite parties.  If the vehicle is hypothecated, then the complainant after making payment may obtained NOC. 

(4)       The opposite parties as per above mentioned, at first, will give the cost price of new vehicle to complainant, thereafter the complainant will give the old vehicle and papers to the opposite parties.

 

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(5)       The complainant for the mental and physical pain for the use of vehicle is entitled to get Rs.10,000/- as compensation from the opposite parties.

(6)       The opposite parties will also bear litigation cost of complainant which is amounted to Rs.1000/-.

(7)       For compliance of the said order, the opposite parties are jointly or separately liable.

7.                     Being aggrieved with the order of the Forum, the opposite parties (manufacturer) has filed this appeal and prayed for dismissal of complaint.

8.                     Facts mentioned in appeal were examined in two parts while hearing.  Counsel for appellant drew our attention to different facts whereas none appeared for the opposite party no.3/respondent no.2 herein the retailer.  Thus different documents annexed in the record were examined.

9.                     In the present case, appellant/opposite party no.1 is manufacturer of the vehicle in dispute and respondent no.2/opposite party no.3 is a dealer who sold the vehicle.  From the job-cards of different dates of service of vehicle it is evident that first free service of the vehicle was done on 20.12.2007, second free service on 12.05.2008 and third free service was done on 08.10.2008.  While examining the job-cards it is found from the job-card of first free service which is at page no. 115 in the record of the Forum, that complaint of noise was made, which was rectified and after servicing, the respondent no.2 returned the vehicle having reading 1898, to the complainant on 20.12.2007.  Thereafter the second free service was done on 12.05.2008 when the vehicle was having reading of 7582 km in which the complaint of noise from the door was rectified. Diesel Filter was also changed and the vehicle was given to respondent no.1 to this extent customer satisfaction voucher dated 09.10.2008 is enclosed at page 113.  Thereafter on 08.10.2008, the third free service was done at the reading 13566 km and no defect was found as manufacturing defect and different service such as change of filter and fuel oil and setting of dikky was done.     Thereafter the vehicle was found parked in the workshop of respondent no.2 from 08.10.2008 to

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24.10.2008 and the reading was found at 13566 km till 24.10.2008.  This voucher is annexed at page no.105 from which it is clear that Rs.632/- were taken as Front Bumper and nothing was charged towards painting and fitting charges of door.  Thereafter again service of the vehicle was done on 18.11.2008 which is evident from the document annexed at Page 103, in which the reading was recorded as 14225.  From 24.10.2008 till 18.11.2008 during running of vehicle 14225-13566=659 km, service of vehicle got done by the respondent no.2. and in all these services no complaint except door noise was made.  Thereafter again servicing was done on 18.11.2008 in which reading was found at 14225 km.

10.                   From the aforesaid and detailed marshalling of job-cards it is clear that the respondent no.1 time to time got different services of vehicle from the respondent no.2 at different kms.  During all these services no complaint regarding manufacturing defect was recorded in the job-cards.  The respondent no.2 had done one type of service of vehicle in question.  When the respondent no.1 lodged complaint regarding manufacturing defect in the Forum, the Forum got examine the vehicle from G. S. Institute of Technology & Science, Indore and obtained report regarding defects in the vehicle.  G. S. Institute of Technology and Science Indore after examining the vehicle sent their Technical Inspection Report to the Forum vide letter dated 1199 dated 12.10..2012 which is enclosed at Page 92 of the record of the Forum in which it has been mentioned:

Visual Inspection of the vehicle was made, Following were the observations.

• Engine was removed from the body and it was in disassembled position.
• Tyres were deflated.
• No indications of severe accident of the vehicle were visible on the body.
• Vehicle was under total immobile condition.

 

Service record of the vehicle provided following observations:

• No indication of abnormal running of the vehicle/engine during first and second service is mentioned (Annex I II) (Copy enclosed of the given document)
• Damage of Front side is mentioned in the third free service, 8/10/08 (Annex III) (Copy enclosed of the given document)
• Annex IV mentions that intercooler is damaged due to the accident (Copy enclosed of the given document)

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• Annex V, VI mentions that engine needs to undergo a major repair (Copy enclosed of the given document)

 

The inferences that can be made are

• Engine is reported major damage after the third service.
• Major components needs to be changed in the engine to make it operable.
• No damage in turbocharger is mentioned.

Probable cause of engine damage for above case could be

• Engine running on i. Low oil, ii. Used Oil, iii. Leakage of oil after last refill iv. Increased consumption of oil by engine.

 

Sources of Oil Leakage/Oil Consumption

• Damaged Oil pan
• Damaged turbocharger seals
• Damaged piston rings/Liner
• Damaged Valve guides.
• Clogged breather pipers.

 

11.                   The aforesaid conclusion drawn by such an institution who technically examined the vehicle and from the conclusion drawn as aforesaid it is evident the vehicle run continuously in different time. If there could have been any manufacturing defect, the vehicle could not run for such a long distance.  In the Job-card of repeat service dated 18.11.2008 which is annexed at page 102, different repairs have been mentioned and such repairs appears to be done after the alleged accident of the vehicle, thus the loss sustained to the vehicle because of accident is not covered under the warranty.

12.                   During arguments, learned counsel for appellant has drawn our attention to the decision of the National Commission in Tata Motors Limited Vs Deepak Goyal & Ors. I (2015) CPJ 607 (NC) where in the National Commission after referring its earlier orders in Classic Automobiles Vs Lila Nand Mishra & Anr. I (2010) CPJ 235 (NC), Sushila Automobiles Pvt. Ltd. Vs Dr. Birendra Narain Prasad & Ors III (2010) CPJ 130 (NC) and Surendra Kumar Jain Vs R. C. Bhargava & Ors. III (2006) CPJ 382 (NC) has held that “Merely because the vehicle has been taken for repairs number of times, it cannot be inferred that vehicle was having manufacturing defects particularly when vehicle had run more than 56,000 kms in a short span of one year.”

 

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13.                   The National Commission in Kiran Mishra Vs Dentsply India Pvt. Ltd. II (2016) CPJ 101 (NC) has held that “As machinery was repaired as per directions of the District Forum after that there was no occasion for District Forum to direct replacement of machinery/refund of price.”  Similarily the National Commission in Honda Siel Cars India Limited Vs Major General M. J. S. Virk & Anr. 2016 (3) CPR 369 (NC) has held that “Expert opinion must be taken in cases of automobiles having manufacturing defect”. From all the above decisions of the National Commission it is clear that in cases of automobiles having manufacturing defects, expert opinion is must. 

14.                   In the present case, the expert opinion was obtained from G.S.Institute of Technology & Science, Indore by the Forum which is enclosed in the record of the District Forum from page 92 to 94 which clearly shows that there was no manufacturing defect in the vehicle in dispute.

15.                   In such a situation on analysing the above mentioned facts, we find that the argument of the appellant manufacturer is acceptable that the vehicle was not having manufacturing defect but the defects were of normal nature which were rectified from time to time.  Thus the inference and conclusion drawn by the Forum that vehicle was having manufacturing defect cannot be accepted and consequently, the order of the District Forum regarding replacement of vehicle/refund of price in the present facts and circumstances of the case cannot be sustained. Accordingly, the order of the District Forum is modified to the extent that the directions given by the District Forum in clause 1 to 4 of para 21 are set-aside.  Directions given by the Forum in clause 5 to 7, so far as they relate to appellant only are set-aside.

16.                   In the result, appeal of the appellant is allowed and the order of the District Forum is modified to the extent indicated hereinabove.  Parties to bear their own cost.