IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 11thday of February, 2022
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 212/2019 (filed on 25-11-2019)
Petitioner : Thomaskutty Antony,
Parakadavil House,
Kurumpanadom P.O.
Changanacherry – 686536.
Vs.
Opposite Parties : Proprietor,
T.V. SundaramIyengar& Sons
Pvt. Ltd. Opp. Govt. Poly Technic,
M.C. Road, Nattakom – 686 013.
(Adv. Sony Sebastian and
Adv. Eldo Jacob Philip)
O R D E R
Sri. Manulal V.S. President
The case is filed under Section 35 of Consumer Protection Act, 2019.
Brief facts of the case are that the complainant had purchased a Mahindra Jeeto minivan manufactured by Mahindra &Mahindra from the first opposite party who was the authorized dealer of Mahindra &Mahindra Ltd. The complainant was regular in carrying out the required service at every 5000 kms. It is averred in the complaint that when the vehicle completed 15,000kms due to uneven wear and tear of the tyres Mahindra and Mahindra offered two tyres at free of cost. However, the opposite party delivered one tyre and charged Rs. 3200 for the same which have only rs. 2200/ in open market. The opposite party did not carry out the repair of back side lower arm of the vehicle. It is further alleged in the complaint that on 30-4-2019 when the vehicle was entrusted to the opposite partyfor the service at 39,000kms which is before the expiry of first warranty, the complaints raised were not cured by the opposite party after retaining the vehicle for 10 days stating the reason that the spare parts were out of stock. However, on 9-5-2019, the opposite party carried out minor repairs and delivered the vehicle to the complainant without repairing the steering box and upper arm stating that they will inform the complainant when the parts made available. Later on enquiry, it was informed that the operation of opposite party was terminated and directs the complainant to approach another dealer. When the complainant approached,the dealer informed him that the warranty coverage was over and opposite party did not register the complaint with the manufacturer. It is further alleged in the complaint that the warranty coverage was denied by the service centre. Though the complainant purchased the extended warranty for the vehicle that was also denied by the service centre. When the complainant enquired about the same Harikrishnan who is in charge of the opposite party assured that he will contact him. But there was no response from the opposite party.
It is alleged in the complaint that due to the act of the opposite party, the fruits of the extended warranty were denied to the complainant and the cost for repairing the water pump was borne by him. Hence, this complaint is filed praying for an order directing the opposite party to pay expenses incurred by the complainant and compensation and cost of this litigation.
Upon notice opposite party appeared before the commission and filed version contending as follows:
The complainant is not a consumer under the consumer protection act and the complaint is not maintainable. The complaints regarding the engine complaint and the warranty issued by the manufacturer of the vehicle can only be alleged against the manufacturer hence the complaint is bad for non-jointer of necessary parties.
The complainant purchased a Mahindra Jeeto Minivan Lxd D+4 manufactured by the M/s Mahindra and Mahindra Ltd from the opposite party. The complainant was irregular in carrying out the required services of the vehicle at every 5000kms as prescribed in warranty policy. Whenever the vehicle was brought for services, prompt and efficient service was being carried out by the opposite party. The complainant didnot carry out the 35,000 Km service and 45,000 kmsservice and the complainant had carried out some works on the vehicle at a not authorized service centre, which were made the warranty void. While so, the dealership of the opposite party with M/s Mahindra and Mahindra came to an end by April 2019. While the complainant had brought the vehicle to the opposite party for service after April 2019 certain parts were not supplied to the opposite party by the manufacturer,could not be replaced and the complainant was thereon requested to take the vehicle to the newly authorized service centre.
It is further submitted in the version that during 20,000Kms service, the complainant complained for uneven tyre wear, and repeated on 24,754kms ,the shock absorbers of the vehicle were replaced under warranty and two tyres were supplied to the complainant with 50% of their price being borne by the manufacturer, though the tyres had already covered 24,754 KMs as the normal life of the tyre is only 30,000kms.
The vehicle was brought to the opposite party on 29-4-2019 after 39,000kms complaining of steering box sound however, as the dealership business was closing, the said part was not supplied by the manufacturer, and the absence of the same, the opposite party had to request the complainant to take the vehicle to the new authorized service centre. The allegation that the upper arm at the rear end of the vehicle was not repaired, but the repairs were postponed to latter time is false. There is no deficiency in service from the side of the opposite party.
Evidence of this case consists of deposition of Pw1 and exhibits A1 to A16 from the side of the complainant. Niran Kumar who is the Senior Service Manger of the opposite party filed proof affidavit in lieu of chief examination and got B1 and B2 marked.
On evaluation of complaint, version, and evidence o record we would like to consider the following points.
- Whether the complaint is maintainable?
- Whether there is any deficiency in service or unfair trade practice on the part of the oppositeparty?
- If so what are the reliefs?
Point no. 1 to 3 together.
There is no dispute on the fact that the complainant purchased a Mahindra Jeeto Minivan Ltd D+4 manufactured by the M/s Mahindra and Mahindra Ltd from the opposite party who was an authorized dealer of the manufacturer. Opposite party resisted the compliant on the ground that thecomplainant purchased the vehicle for commercial purpose engaging a driver hence he is not a consumer under the Consumer Protection Act. Exhibit A1 proves that the vehicle was registered with the registering authority as motor cab taxi. Exhibit A4 is the driving license of the complainant which is validup to 21-10-2014.
As per Section 2(1(d)) of the consumer protection act 1986 Act, consumer is any person who buys goods or avails any service for a consideration and includes any user except for the person who has availed such services or goods for the purpose of resale or commercial use. Though the opposite party contended that the complainant is riding the vehicle by engaging a driver and the complainant have other source for income, they did not adduce any evidence to substantiate their contention. Admittedly, the complainant is a consumer of the opposite party by availing the periodical service of the vehicle at the service centre of the opposite party. Thus, we are of the opinion that complainant is a consumer under the provisions of the consumer protection act and the complaint is maintainable.
According to the Pw1 who is the complainant on 30-4-2019 when the vehicle was entrusted to the opposite party for the service at 39,000kms which is before the expiry of first warranty, after retaining the vehicle for10 days, complaints raised by him were not rectified by the opposite party stating the reason that the spare parts were out of stock.
The learned counsel for the opposite party contended that the warranty is granted by the manufacturer and denied the applicability of warranty in the present case on the ground that there was negligence on the part of the complainant in maintaining the vehicle. Learned counsel referred to the following portion of the warranty:-
" This warranty shall not apply and we shall in no way liable for any vehicle which shall have been repaired outside an authorized Mahindra service station or which have been altered or modified or built upon in any way or which has been subject to misuse, negligence or accident.”
Further in clause 13.7 note 1 for pre-requisites for Warranty state that “Regular maintenance services, both labour free and paid as mentioned in the Owner’s handbook are an absolute pre-requisite for availing the vehicle warranty. Failure to perform scheduled maintenance as specified in the owner’s handbook will invalidate warranty coverage on parts affected by the lack of maintenance.”
It was claimed by the opposite party that the complainant did not avail three free services in time. On perusal of exhibit B1, we can see that on 13-8-2018 complainant had entrusted the vehicle to the opposite party at a mileage of 19430kms. Further, the periodical services at a mileage of 24754 had done on 3-11-208 and at mileage of 31480 were done on 25-1-2019. The complainant had done the next service on 29-4-2019 at 39320kms. According to the opposite party, the dealer who is an agent of principal Mahindra &Mahindra ltd cannot take up the repairs under warranty when the principal has denied the operation of the warranty itself. In such situation, the dealer is not responsible for repairs not done. It was further stated that even if there is any responsibility for repairing under the warranty, it will be on the principal/ manufacturer and they should be liable to bear the expenses of the repairs and not the dealer who is only an agent of the principal Mahindra&Mahindra Ltd.
On the other hand complainant stated that his vehicle was well within warranty and there was no negligence on the part of the complainant in the regular maintenance of the vehicle, therefore, services were rightly claimed. However, the opposite party disentitled the complainant from the benefit of the warranty.
We have given a thoughtful consideration to the arguments advanced by the both the parties and have examined the material on record. However, there were certain defects, which were required to be rectified under the warranty. It is admitted by all the parties that vehicle was under the warranty. However, the opposite party did not repair the vehicle under the warranty. There has been some delay in getting the free services done. However, this does not imply that the complainant was negligent in maintenance of the vehicle resulting in revoking of the warranty. The main argument advanced by the learned counsel for the opposite party is that they are not responsible for any deficiency as they were only the agent of the principal, Mahindra &Mahindra Ltd. We agree with the point raised by the opposite party that the warranty has been issued by the Mahindra &Mahindra Ltd. and they are responsible for allowing repairs under the warranty. However, so far as the warranty is concerned, the manufacturer Mahindra &Mahindra Ltd is equally responsible. The opposite party had not filed agreement between them and the manufacturer, hence, it is not known what type of relationship the opposite party had with the Mahindra &Mahindra. In practice, the dealer repairs the vehicle under the warranty and then settles claim with the manufacturer under terms of their agreement. In this case, the opposite party refused to repair the vehicle under the warranty and therefore, they are liable for dishonouring the warranty.
Admittedly, the vehicle was brought to the opposite party on 29-4-2019 after 39,000kms complaining of steering box sound. According to the opposite party, as the dealership business was closing, the manufacturer did not supply the spare part and the absence of the same, the opposite party had to request the complainant to take the vehicle to the new authorized service centre. Though the opposite party contended that the dealership was terminated by the endof April 2019, they did not produced any evidence to prove the date on which the dealership was terminated. They have no case that the vehicle was entrusted to them after the termination of the dealership. In exhibit B1 it is stated that the steering box failure in not rectified due to the non-availability of parts. It is further stated as such defects were “carry forward‘. As an authorized dealer of the manufacturer, the opposite party is bound to rectify the defects to the vehicle which are entrusted to them during the period of dealership. If the spare parts which are required to rectify the defect are not in stock it is the duty of the opposite party to make available the same from manufacturer and rectify the defects when the parts are received by them. Here in this case the opposite party evaded from their duty as a dealer merely stating that the dealership is going to be terminate within a short period. Moreover, the opposite party has no case that they refused receive the vehicle for service on the reason that the dealership would be terminating within a few days. Exhibits A16(c) and B1 proves that the service was done by the opposite partyon 29-4-2019.Thus, from the evidence we can see that the act of the opposite party lead to the denial of warranty when the complainant rectified the said defect subsequently. The above discussed act of the opposite party is imperfection and inadequacy in service by the opposite party and amounts to deficiency in service.
Exhibit A14 proves that the steering box assembly and left upper arm of the vehicle had been replaced on 22-11-2019 at Bharath automobiles at Thengana and thecomplainant had paid Rs. 8,150/- for the same. The opposite party has no case that the said Bharath automobiles are not an authorized service centre of the Mhaindra&Mahindra. No, doubt the complainant had suffered much loss and hardship due to the deficiency in service committed by the opposite party for which they are liable to compensate him.
Based on the above discussion, the complaint is partly allowed and we pass the following order.
- We here by direct the opposite party to pay Rs. 8,150 to the complainant as cost incurred him for replacement of the steering box assembly and left upper arm of the vehicle.
- We herby direct the opposite party to pay Rs. 5000/- as compensation for the deficiency in service on the part of them.
The order shall be complied within a period of 30 days from the date of receipt of Order. If not complied as directed, the award amount will carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 11th day of February, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Witness from the side of complainant.
Pw1 – Thomaskutty Antony
Exhibits marked from the side of complainant
A1 – Copy of RC book
A2 – Copy of tax license
A3 –Copy of contract carriage permit dtd.09-03-18
A4 – Copy of driving licence in the name of complainant
A5 –Copy of insurance issued by National Insurance Co. Ltd.
A6 – Copy of GST invoice
A7 –Copy of delivery note
A8 – Estimate dtd.09-02-18 (subject to objection)
A9 – Estimate dtd.21-02-18 (subject to objection)
A10 – Order form dtd.09-02-18 by SundramIyengar& Sons Pvt. Ltd.
A11 – SBI statement of account
A12 – Copy of sale invoice dtd.09-10-19 by intrepid works pvt. Ltd.
A13 – Cash bill dtd.10-10-19 by St.Antony’s Automobiles.
A14 – Quotation Dtd.22-11-19 from Bharath Automobiles.
A15 – Copy of Aadhar card in the name of complainant.
A16 – Manual repair order form issued by opposite party
A16 series – Manual repair order form (3 nos.)
Exhibits marked from the side of opposite party
B1 - Vehicle history (KL33K1784)
B2 – Owners Manual
By Order
Assistant Registrar
