Kerala

Idukki

CC/184/2019

Sivan Pillai - Complainant(s)

Versus

T Vsundaram Iyenkar and sons - Opp.Party(s)

22 Feb 2023

ORDER

#nDATE OF FILING : 22.10.2019

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the  22^nd  day of  February,  2023

Present :

SRI. C. SURESHKUMAR                  PRESIDENT

SMT. ASAMOL P.                             MEMBER

SRI. AMPADY K.S.                           MEMBER

CC NO.184/2019

Between

Complainant                                          :     Shivan Pillai T.K.,

                                                                   Tharayil House,

                                                                   Chenkara P.O.,

                                                                   Kallumedu, Anavilasam, Idukki.

          (By Adv: K.M. Sanu)

And

Opposite Parties                                     : 1. The Manager,

                                                                   T.V. Sundaram Iyengar & Sons, 

                                                                   Govt. College Road, Kattappana,

                                                                   Kattappana P.O., Idukki.

                                                                2. The Manager,

                                                                   T.V. Sundaram Iyengar & Sons, 

                                                                   Nattakam P.O., Kottayam.

           (Both by Adv: Shiji Joseph)

      3. The Managing Director,

                                                                   Mahindra & Mahindra Ltd.,

                                                                   Gateway Building, Appollo Bunder,

                                                                   Mumbai – 400 001.

(By Advs: Saji Mathew, Denu Joseph

& Bibin Babu)

                                                                4. The Manager,

                                                                   Mahindra & Mahindra Financial

Services Ltd.,

                                                                   Sohirom Plaza, Erattayar Road,

                                                                   Kattappana, Pin – 685 508.

                                                                   (By Adv: Saji Augustine)

 

O R D E R

 

SRI. C. SURESHKUMAR, PRESIDENT

 

1. This case originates from a complaint filed under Section 12 of the Consumer Protection Act of 1986 (the Act, for short).  Case of complainant is briefly discussed hereunder :

                                                                                                              (cont.....2)

 

• 2  -

          Complainant had purchased a Mahindra Bolero Pick Up vehicle on 16.2.2019, after paying Rs.7,05,866/- towards it’s price, from opposite parties.  1^st opposite party is manager of Kattappana branch of TV Sundaram Iyengar and Sons.  2^nd opposite party is manager of Kottayam branch of TV Sundaram Iyengar and Sons, 3^rd opposite party is Mahindra and Mahindra Ltd. Company represented by its managing director and 4^th opposite party is Kattappana branch of Mahindra and Mahindra Financial Services Ltd. represented by its manager. Complainant submits that he had availed a loan for purchase of the vehicle from 4^th opposite party which was repayable in equated monthly instalments of Rs.16,400/-, period being 60 months.  Vehicle was purchased by complainant for plying it as a taxi for his livelihood.  Complainant was made to believe that the vehicle was of superior quality and built; that there will be proper service and maintenance for the vehicle from service network of opposite parties.  Vehicle was registered as KL-37D-7642.  While so, on 4.3.2019, it had met with a major accident owing to which substantiating damage was caused to the vehicle.  It was entrusted to 1^st opposite party for necessary repairs.  Vehicle was garaged for 61 days in the workshop of 1^st opposite party and extensive repairs were carried out for which complainant had to pay Rs.92,415/-.  Complainant had received the vehicle after repairs on 5.5.2019.  On 3.10.2019, when the vehicle had covered 5111 km, within warranty period, gear box of the vehicle had stopped functioning properly.  At that time, 1^st and 2^nd opposite parties have shut down their service workshop and their office alone was functioning.  As directed by 1^st opposite party, complainant had entrusted the vehicle for necessary repairs to a private service centre, namely, Friends Automobiles at Kattappana.  Gear box was repaired for which the service concern had given a bill of Rs.15,100/-.  Complainant submits that after covering mere 5111 kms, gear box of the vehicle had started emanating sounds.  Hence complainant is unable to use the vehicle confidently.  Therefore, he had stopped plying the vehicle.  Consequentially, he was unable to pay monthly loan instalments to 4^th opposite party.  Since 1^st opposite party was on the verge of shutting down the service centre, complainant was unable to get full assistance from 3^rd opposite party towards repair and maintenance of the vehicle. Even after repairing gear box, vehicle is not running smoothly.  Due to this, complainant had to approach other private workshops.  Since damage to gear box was within warranty period, complainant is entitled to get back Rs.15,100/- spent for repairs, from opposite parties.  Without plying the vehicle, complainant is unable to earn his livelihood.  If 3^rd opposite party is not prepared to give proper service, he should be directed to pay compensation for the loss occasioned to complainant.  Complainant further submits that aforesaid acts constitute deficiency in service on the part of opposite parties.  Complainant seeks return of  amount paid towards price of vehicle, Rs.2 lakhs as damages for deficiency in service and Rs.10,000/- towards litigation costs from opposite parties.  Hence this complaint.

 

          2.   Complaint was admitted and upon notice, opposite parties 1 to 4 have appeared.  Opposite parties 3 and 4 have filed separate written versions.  Opposite                                                                                                                          (cont....2)

- 2  -

parties 1 and 2 have adopted the written version of 3^rd opposite party.  Case of opposite parties 1 to 3 as disclosed from written version filed by 3^rd opposite party is briefly narrated hereunder :

 

          According to opposite parties 1 to 3, complaint is not maintainable either in law or upon facts.  It is bad for ‘misjoinder’ of parties.  Opposite party No.3 shown in complaint is managing director of Mahindra and Mahindra Ltd.  Managing director or any other directors or managers of the company Mahindra and Mahindra Ltd. are not liable for any liability of the company as such.  Similarly, opposite parties 1 and 2 are shown as managers of M/s. T.V. Sundaram Iyengar and Sons Ltd.  The company as such is not in the party array.  3^rd opposite party specifically contends that it is selling motor vehicle manufactured by it to its dealers who are motor trade licence holders.  3^rd opposite party is not directly involved in the booking or sales process of opposite parties 1 and 2 or other dealers.  Dealings of 3^rd opposite party with opposite parties 1 and 2 and other dealers is on a principal to principal basis.  There is no privity of contract between the 3^rd opposite party and complainant.  It is further submitted that as the vehicle has been purchased for a commercial purpose, complainant cannot be termed as a consumer as per the definition given in Section 2(1)(d) of the Act.   There is no cause of action against 3^rd opposite party.  Intention is to harass opposite parties and therefore complaint is liable to be dismissed on this count alone.

 

          Opposite parties 1 to 3 further contend that they are not aware whether  complainant is a driver by profession or not.  They are also not aware that the complainant had purchased the vehicle for the purpose of his livelihood.  All the Mahindra vehicles are sold with specific warranty.  In case of Mahindra Bolero Pick Up, standard warranty is for 365 days from the date of retail sale without any mileage restriction from the date of delivery of the vehicle to original purchaser.  Complainant himself has admitted that the vehicle had met with an accident on 4.3.2019 and had sustained major damages.  Repairing work was carried out by 1^st opposite party and it was completed on 5.5.2019.  Rs.92,415/- was charged towards repairing costs.  Since repairs on account of accident are not covered by warranty. Opposite parties do not admit that the gear box of the vehicle become defective while it had run 5111 km and that it was entrusted with a private service concern, namely, Friends Automobile, upon instruction of 1^st opposite party.  Complainant had on his own volition got the vehicle repaired from an unauthorised workshop against  warranty conditions. Sound emanating from gear box may be due to unauthorised and unskilled repairs carried out in a  private workshop. Gear box of the vehicle has no manufacturing defect.  If at all, there were to be any defects, this may be due to major accident which took place in March, 2019.  Upon closure of service centre by opposite parties 1 and 2, 3^rd opposite party had made alternate arrangements for providing service to its customers.  It is incorrect to say that closure of service centre of by 1^st and 2^nd opposite parties had lead to non-use of the vehicle owing to which EMIs were defaulted by complainant.  3^rd opposite party had                                                                                                                 (cont....4)

• 4  -

made adequate and effective alternate service arrangements for its customers.  There was no request by 1^st opposite party to complainant for approaching any service centre.  Alternate arrangement for service by 3^rd opposite party include engagement of new service centres, appointment of new dealership and service centres etc..  Arrangements were made for servicing existing vehicles in a very short span of time.  These include free pick up and drop, RSA breakdown support and free fuel etc., to compensate for inconvenience in attending service centres at different places.  There is no deficiency in service on the part of opposite parties.   Warranty is only for defect in material or workmanship at the time of manufacture.  Complainant is well aware of warranty conditions also.  These are applicable both to the manufacturer and purchaser.  Present complaint has been filed suppressing true facts. Complainant is not entitled for any of the reliefs prayed for in the complaint.  it is liable to be dismissed with compensatory costs. 

 

          3.  Fourth opposite party has contended that the complaint is only an abuse of process of this Commission and devoid of any merits.  It is incorrect to say that the complainant is a driver by profession.  He is plying the vehicle by employing drivers and this is not for his livelihood.  It is incorrect to say that complainant had availed vehicle loan from this opposite party through opposite parties 1 and 2.  Complainant had personally contacted 4^th opposite party and had availed the vehicle loan.  4^th opposite party is not responsible for the performance of the vehicle.  4^th opposite party had advanced Rs.6,95,000/- to complainant as loan and complainant had promised to repay the said amount with interest in 60 monthly instalments.  Complainant is bound to honour his commitment.  4^th opposite party is not a necessary party to these proceedings.  No relief is sought against 4^th opposite party.  On 11.11.2019, complainant had defaulted repayment of loan instalments and a sum of Rs.32,636/- is due towards loan repayment in addition to Rs.6,967/- towards additional finance charges.  Complainant is bound to pay this amount.  Complaint is to be dismissed with compensatory costs of 4^th opposite party.

 

          4. After the filing of written version, case was posted for steps and then for evidence.  On the side of complainant, complainant himself was examined as PW1 and Exts.P1 to P5 were marked on his side.  On the side of 3^rd opposite party, its customer care manager was examined as RW1 and Ext.R1 was marked on its side.  No evidence was tendered by 4^th opposite party.  After examination of RW1, evidence was closed and both sides were heard.  Now the points which arise for consideration are :

1)  Whether complaint is bad for non-joinder of necessary parties ?

2)  Whether there is any deficiency in service on the part of opposite parties 1 to 4 ?

3)  Whether complainant is entitled for any of the reliefs prayed for in the complaint ?

4)  Final order and costs ?

 

                                                                                                          (cont.....5)

 

• 5  -

5.  Point Nos.1 to 3 are considered together :

 

          First contention advanced by 3^rd opposite party in its written version is that there is no proper impleadment of the manufacturing company, namely, Mahindra and Mahindra Pvt. Ltd.  Specific contention is addressed to the effect that managing director  shown as 3^rd opposite party or any directors or managers of the company are not liable for the liabilities or actions of the company as such.  Similarly, it is also contended that managers of respective branches of M/s. T.V. Sundaram Iyengar and Sons Ltd. company are arrayed as opposite parties 1 and 2.  T.V. Sundaram Iyengar and Sons Ltd. which is private company has not been  impleaded or represented in these proceedings.  Upon going through the cause title as such and the pleadings addressed, we are of the view that the contentions taken with regard to non-impleadment of respective companies which are necessary parties to this litigation are substantive.  1^st opposite party is shown as manager of Kattappana branch of M/s. T.V. Sundaram Iyengar and Sons Ltd. and 2^nd opposite party is the manager of Kottayam branch of the same company.  There is nothing in the complaint to show that the managers were respectively impleaded in representative capacity of M/s. T.V. Sundaram Iyengar and Sons Ltd. And even if so impleaded they cannot be considered either if not specifically authorized.  Similarly, though managing director of Mahindra and Mahindra Ltd. is arrayed as 3^rd opposite party, neither the cause title or the pleadings reveal that he has been so impleaded in a representative capacity representing the manufacturing company as such. There are no pleadings that T.V. Sundaram Iyengar and Sons Ltd, which has its service centres at Kattappana and Kottayam is represented by its respective service centre manager.  Neither do we think that they can act in representative capacity on their own without any specific authorisation.  Despite there being specific contentions regarding non joinder, no steps were taken for impleading company entrusted with service and maintenance work of manufacturing company and the manufacturing company as such, though postings were given for steps. Therefore, we are of the view that the complaint is bad for non-joinder.

 

          Coming to the defect pointed out viz. defect in gear box, complainant has pleaded that gear box of the vehicle had become defective after the vehicle had run 5111 km, the date being 3.10.2019.  Further down in the complaint, it appears that defect pointed out is noise emanating from gear box while the vehicle is plied.  Complainant has not specified what was the defect as such in the gear box except for his later pleadings that the gear box was emanating sounds.  He himself has specifically pleaded that the vehicle was involved in a major accident on 4.3.2019 for which extensive repair were carried out in the workshop of opposite parties.  That repair works were billed for Rs.92,415/-.  Ext.P3 is a copy of the said repair bill.  Complainant has no case in his complaint or proof affidavit that despite the accident, gear box or parts of engine block had not sustained any damages in accident.  During his cross examination, he would say that the accident took place when he had avoided to hit a wild boar which had suddenly crossed                                                                                                                 (cont.....6)

• 6  -

the road.  Whatever it may be, vehicle was involved in a major accident, repairs of which took 61 days to make the vehicle roadworthy.  Under this circumstances, it was for the complainant to  plead that the sound emanating from gear box or any other complaint occasioned with it are not related to the accident.  He has not even pleaded such a case.  It was up to the complainant to address specific contentions in this regard and to adduce evidence in support of such contentions.  Job cards issued in connection with repairs or other related documents describing the repairs done were not sought to be summoned from 1^st opposite party. Except for cross examining RW1 and bringing out that such documents will be with 1^st opposite party and that these are  essential documents  nothing more was done. Yes, documents are essential for the complainant and it is for him to take necessary steps to produce or cause those to be produced to prove  his case. He ought to have taken steps in this regard as soon as respective managers i.e., OP1 & 2  had entered appearance. He has not done so.  We do not think that 1^st opposite party has any obligation to produce such documents if not called for by complainant , as it is for the complainant to prove his case. However, he has not done so.

 

Ext.R1 is a copy of warranty given to the vehicle.  Ext.P2 proved by complainant is also a copy of warranty conditions.  Standard warranty provided is of 365 days without mileage restriction from the date of retail sale to the customer, as per Ext.R1.  Though In Ext.P2, standard warranty is 2 years or 1 lakh km, whichever occurs earlier from the date of resale to customer. Upon perusal of both warranty copies we find that P2 conditions of warranty are applicable, as this was the warranty addressed specifically to the vehicle in question.  However, considering the dispute, we are of the view that the different is not of any significance. Even as per Ext.P2 warranty will not apply if the vehicle is repaired outside an authorised Mahindra service station.  This warranty covers only defects in manufacture, except those of tyres or other components manufactured by other companies covered by their respective warranties.  The warranty clearly will not apply to any damage which may be caused due to accident.  It was for the complainant to prove that the gear box has not sustained any damages in the accident which took place before the defect was noticed  by complainant.  He has not done so.

 

          Complainant has contended that due to closure of service centres by opposite parties 1 and 2, he did not get requisite repair or maintenance service for the vehicle.  3^rd opposite party has in its written version  stated that alternate arrangements were made.  New service centres were opened, pick up and drop service was given and free fuel was given to compensate for taking vehicles to distant service centres also. Proof affidavit averments of RW1 in this regard remain unchallenged during cross examination by complainant’s counsel. Hence theses are to be taken as admitted. Therefore we find that adequate alternate arrangements were made by manufacturing company for service and maintenance of it’s vehicles when the Company entrusted with servicing and maintenance had closed down it’s service outlets. Complainant has a case that he had got the gear box repaired at a private workshop, namely,  Friends Automobile as                                                                                                                  (cont....7)

• 7  -

directed by 1^st opposite party since their service centres were closed or on the verge of closure. According to complainant ‘Friends Automobile’, is a private vehicle repairing concern, which is authorised by opposite parties 1 to 3 for repairing and maintaining vehicle manufactured by opposite party No.3.  However, this is denied by 3^rd opposite party in its written version which has been adopted by 1^st and 2^nd opposite parties.  We also notice that Ext.P4 bill which the complainant claims was given to him from Friends Automobile, does not bear seal or signature of the proprietor or authorised representative of the workshop.  That apart, nobody from the said concern was summoned and examine to prove repairs as such, as mentioned in Ext.P4.  The fact that Ext.P4 contains logo of opposite parties 1 and 2 and that of 3^rd opposite party is not sufficient proof of the fact that the concern is authorised service centre of the manufacturer.  Therefore, claim for warranty and allegations of deficiency in service fails on this count also. 

 

          3^rd opposite party has also contended that complainant is not a consumer and that he is plying the vehicle for commercial purposes.  In this context, we have gone through the pleadings addressed in the complaint and also proof affidavit submitted by him.  Since proof affidavit averments that vehicle is being plied by complainant for earning his livelihood are not traversed during cross examination, these are to be taken as admitted. Hence we find that vehicle is being plied by complainant exclusively for earning his livelihood and as means of self employment.

 

To sum up we find that complaint is bad for non joinder of necessary parties. There is no deficiency in service. Complainant is not entitled for any of the reliefs claimed in the complaint. Point Nos.1 to 3 are answered accordingly.

 

6.  Point No.4 : 

 

          Restraining order  granted as per order in I.A.58/2019 is vacated and application is dismissed. 4^th opposite party is a separate entity from 3rd opposite party. It is not a necessary party. In view of our findings on points 1 to 3, complaint is liable  to be dismissed. Admittedly, payment of loan instalments were defaulted.  Intention behind filing this complaint was apparently to stall recovery proceedings of OP4. Hence we are of the view that 4^th opposite party is entitled for it’s costs, which upon a fair estimate, could be quantified at Rs.2000/-since 4^th opposite party has filed written version. We notice that complainant had prayed for Rs.10,000/- towards litigation costs. In the result,

 

                                                                                                          (cont.....8)

 

 

 

 

 

 

• 8  -

 

this complaint is dismissed with costs of Rs.2000/- payable to opposite party No.4. Parties shall take back extra sets of copies produced, without delay.

 

                    Pronounced by this Commission on this the   22^nd   day of February, 2023

 

                                                                                                Sd/-

  SRI. C. SURESHKUMAR, PRESIDENT

                             Sd/-

 SMT. ASAMOL P., MEMBER

                   Sd/-

SRI. AMPADY K.S., MEMBER

 

 

APPENDIX

Depositions :

On the side of the Complainant :

PW1         -  T.K. Sivan Pillai

On the side of the Opposite Party :

DW1        -  Rethin Thomas.

Exhibits :

On the side of the Complainant :

Ext.P1      -  Copy of RC Book.

Ext.P2      -  Copy of warranty certificate and conditions.

Ext.P3      -  Copy of bill for the repairs amounting Rs.92,415/- from TV Sundaram Iyengar

                   & Sons Pvt. Ltd., Kattappana.

Ext.P4     -  Copy of cash bill issued by Friends Automobiles for Rs.15100/-.

Ext.P5     -  Copy of loan details issued by Mahindra Finance, Kattappana.

On the side of the Opposite Party :

Ext.R1     -  Copy of brochure regarding  Mahindra customer assistance and 

warranty details.

 

 

 

                                                                             Forwarded by Order,

 

 

 

                                                                       ASSISTANT REGISTRAR