IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 10th day of July, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C. No. 25/2011 (Filed on 31.01.2011)
Between:
Rachel Philip, aged 41 years,
Wife of Philip Mathew, Lilly Financiers,
Residing at Srambickal House,
Kallooppara P.O., Kallooppara Muri,
Kallooppara Village, Mallappally Taluk,
Pathanamthitta Dist. … Complainant.
(By Adv. P. Pradeep)
And:
1. T.V. Sundram Iyyankar & Sons,
Makkamkunnu P.O.,
Pathanamthitta.
2. T.V. Sundram Iyyankar & Sons,
M.C. Road, Nattakom P.O.
Kottayam.
3. T.V. Sundram Iyyankar & Sons,
TVS Building, 7B West Veli-
Street, Post Box No.21,
Madurai, Tamil Nadu.
(By Advs. V. Krishna Menon & Lalu John)
4. M/s. Mahindra & Mahindra Ltd.,
Marketing Department,
Automotive Sector, Road No.13,
Worli, Mumbai – 400 018. … Opposite parties.
(By Adv. Saji Mathew)
ORDER
Smt. K.P. Padmasree (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The case of the complainant is as follows: On 22.04.2010 complainant purchased a Mahindra Xylo e4 Meagle CRDE 7 Seater with tools and equipments from the 2nd opposite party. The said Xylo e4 is manufactured by the 4th opposite party and opposite parties 1 to 3 are the dealers of the 4th opposite party. The above said vehicle registered with Mallappally R.T.O and its Reg.No.KL.28-8184.
3. Before completing two months and 2000 kms. journey the air condition system, wind screen system, door lock system, brake system etc. of the vehicle become defective. Moreover suspension and alignment system are also damaged. Complainant brought the defects to the notice of the 2nd opposite party and complained at their Kottayam office. They rectified the defect and assured the complainant that the vehicle become perfect and genuine and the same defects will not repeat. Even though 2nd opposite party repaired the vehicle they refused to state the defect of the vehicle to the complainant.
4. All the same defects were again taken place on 10.07.2010, which was repaired by the 2nd opposite party. But before completing 4000 kms. of journey all the above said defects has again occurred. From the very beginning the gear system became defective and it is difficult to drive the vehicle in 2nd and 3rd gear. Moreover door lock nuts, head rest lever, wind shield, clutch etc. are damaged and some portions of the engine is also damaged by rust. The vehicle cannot safely drive even in a minimum speed because of the mechanical defect.
5. Complainant send a legal notice to the 2nd and 4th opposite party on 10.09.2010 and 20.10.2010 demanding the replacement of the vehicle or refund of cost of the vehicle. On receipt of the 1st notice, two representatives of the opposite parties inspected the vehicle and convinced of the defects and they are ready to take vehicle to the workshop for repairs and agreed to set another gear box in spite of existing one. Complainant suggested that the defects noted should be reduced in writing and serve a copy to her, which they were not amenable. After that they issued a letter with baseless and false allegations.
6. Now the vehicle is not in running condition and is kept in the car porch since 15.08.2010. The complainant is not interested to hold a defective vehicle. Opposite parties are liable to the complainant for the deficiency in service. The complainant is also entitled to get damages for the mental agony and financial loss sustained to him on account of being provided with a defective vehicle. Hence this complaint for the refund of an amount of ` 7,19,700 received from the complainant or to replace the defective motor car with a new one, along with cost and compensation of ` 1,10,000.
7. All the opposite parties entered appearance and filed version. Opposite parties 1 to 3 filed joint version and 4th opposite party filed separate version. Opposite parties 1 to 3 filed version with the following contentions. According to them, complainant can’t be treated as a consumer and on that ground petition is liable to be dismissed. Whenever the complainant brought the vehicle to the workshop of the opposite parties alleging complaint, the service personnel of the opposite parties attended the complaints under warranty to the satisfaction of the complainant. Complainant had taken the vehicle with full satisfaction. The opposite parties denies the allegation of the complainant that the representative of the opposite parties who had inspected the vehicle assured the complainant to replace the gear box of the vehicle especially in view of the fact that these opposite parties had at no point of time noticed any manufacturing defect in the said gear box.
8. Opposite parties 1 to 3 are only the dealers of the manufacturer so they cannot liable or responsible for replacement of the vehicle or refund of the price of the vehicle. Hence these opposite parties are in no way liable to compensate the complainant. Hence these opposite parties pray for the dismissal of the complaint with cost.
9. 4th opposite party filed detailed version with following contentions: Their main contention is that the vehicle is purchased for commercial purpose therefore the complaint is not maintainable. The transactions between the 4th opposite party and 1 to 3 opposite parties are on Principal to Principal basis. The 1st and 2nd opposite party used to place bulk orders for vehicles and 4th opposite party used to supply vehicles in large numbers. 4th opposite party will not know about the ultimate buyer of the vehicle at the time of purchase. 4th opposite party has no transaction with the complainant and therefore the complaint against this opposite party is liable to be dismissed.
10. Every new model of vehicle is released from vehicle manufacturing company after a number of road tests and after getting approval of certifying authorities as specified in Rule 126 of Central Motor Vehicle Rules. Mahindra & Mahindra vehicle is sold with specific warranty. The terms and condition s of warranty is also specified in the standard warranty. The standard warranty policy in the owner’s manual issued to the purchaser of every vehicle. Complainant is fully aware of the warranty conditions. The complainant has been filed this complaint suppressing the terms and conditions of warranty.
11. 4th opposite party always provide after sales service through its wide net work of authorized service centres. 4th opposite party is ready to provide the service as per the terms and conditions of warranty. This complainant never contacted the complainant or its officers with any grievance. So there is no deficiency in service from the part of the company or its officers. 4th opposite party is ready and willing to provide the service as per the terms of warranty. Hence the opposite party prays for the dismissal of the complaint with compensatory cost.
12. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
13. The evidence of this complaint consists of the oral testimony of PW1s.1 and 2, DWs.1 and 2, CW1 and Exts. A1 to A10, B1 to B3 and C1. After closure of evidence, both sides were heard.
14. The Point:- The complainant’s allegation is that he purchased a Mahindra Xyclo e4 Meagle CRDE 7 seater from the opposite parties on 22.04.2010. The newly purchased vehicle even before completing 2 months time and 2000 kms. of journey, the air condition system, wind screen system, door lock system and the brake system of the vehicle become defective. Moreover, suspension and alignment systems are also damaged. Complainant brought the defect to the notice of the opposite parties. They rectified the defects and assured that the defect will not repeat. But the same defects still existing. Now the vehicle is not in running condition. The complainant who purchased the vehicle hoping a better service could not so far avail of defect free service from the opposite parties. Opposite parties have not rectified the defect so far which is a manufacturing defect. Hence opposite parties are liable to the complainant.
15. In order to prove the complainant’s case, the Power of Attorney Holder of the complainant and one witness filed proof affidavits in lieu of their chief examination. On the basis of the proof affidavits, the Power of Attorney Holder of the complainant was examined as PW1 and witness was examined as PW2. The documents produced were marked as Exts. A1 to A10. Ext. A1 is the Power of Attorney dated 10.01.2012 executed by the complainant in favour of Philip Mathew. Ext. A2 is the order form dated 19.04.2010 issued by the first opposite party to the complainant. Ext. A3 is the detail invoice dated 22.04.2010 issued by the second opposite party to the complainant. Ext. A4 is the slip issued by service centre. Ext. A5. Ext. A5 is also the slip of service centre. Ext. A6 is the copy of legal notice dated 10.09.2010 issued to the second and 4th opposite parties by the complainant. Ext. A7 is the copy of the legal notice dated 20.10.2010 issued to the third opposite party by the complainant. Ext. A8 to A8(d) (5 in number) series are the postal receipts. Ext. A9 is the photocopy of the certificate of registration. Ext. A10 is the warranty book of Xylo.
16. As per the order in IA. 153/2011, an Expert Commissioner was appointed and the Commissioner was examined as CW1 and the report filed by him was marked as Ext. C1.
17. On the other hand, the contention of the opposite parties is that the complainant purchased the vehicle for commercial purpose and therefore this complaint is not maintainable. According to the opposite parties 1 to 3, they are only the dealers of the 4th opposite party. So they are not liable or responsible for replacement of the vehicle or refund of the vehicle. Whenever the complainant approached the opposite parties alleging complains to the vehicle, the service personnel of the opposite parties inspected the vehicle and attended to under warranty to the satisfaction of the complainant. There is no deficiency on the part of the opposite parties.
18. 4th opposite party denies all the allegations of the complainant. 4th opposite party has never any transaction with the complainant and therefore there is no privity of contract between the complainant and 4th opposite party. 4th opposite party denies the allegation that the vehicle delivered was defective. Every new model of vehicle is released from vehicle manufacturing company after a number of road tests and after getting approval of certifying authorities as specified in Rule 126 of Central Motor Vehicle Rules and other wise the vehicle will not be registered. The standard warranty policy is in the Owners’ Manual issued to the purchaser of every vehicle. 4th opposite party is ready to provide the service as per the terms and conditions of warranty. There is no deficiency in service from the part of the 4th opposite party. So they are not liable for any of the reliefs sought for in the complaint.
19. In order to prove the contentions of the opposite parties, opposite parties 1 to 3 filed affidavit in lieu of chief examination and one witness was examined as DW1 and Ext. A10 marked through DW1. 4th opposite party filed proof affidavit in lieu of chief examination and one witness was examined as DW2. The documents produced were marked as Exts. B1 to B3. Ext. B1 is the standard warranty booklet. Ext. B2 is the copy of certificate issued by Automotive Research Association of India. Ext. B3 is the copy of retail invoice.
20. On the basis of the contentions of the contentions and arguments of the parties, we have perused the entire materials on record and found that there is no dispute with regard to the purchase and sale of the vehicle. The only dispute is with regard to the alleged defects of the vehicle. According to the complainant, the vehicle is having manufacturing defect. Whereas the contention of the opposite parties is that the said vehicle is having no manufacturing defect and the alleged defects are only minor defects which can be cured by normal repair. Though the complainant alleges serious manufacturing defect to her vehicle, she has not adduced any evidence to show that her vehicle was repaired by the opposite parties on such and such dates for such and such complaints. None of the exhibits marked from the side of the complainant’s reveals anything in respect of any repairs or any manufacturing defects. Ext.C1 commissioner’s report is not reliable for the following reasons. The commissioner inspected the vehicle after one and a half years from the date from which the complainant had kept the vehicle in his porch without using. Further the commissioner has not adopted any scientific method for his inspection. The defects noted by the commissioner can be expected from a vehicle lying idle for one and a half years. So the alleged defects cannot be treated as manufacturing defects. Ext.A10 owner’s manual shows that the vehicle was not subjected for periodical services. Everything shows that the complainant has failed to prove her allegations of manufacturing defect and the alleged defects are only mechanical defects which can be rectified by normal repairs. So we find no reason to allow this complaint as prayed for, as the complainant had failed to prove any deficiency of service against the opposite parties. Therefore, this complaint is not allowable.
21. However, opposite parties expressed their willingness to rectify the alleged defects. In the circumstances, this complaint is disposed with the following directions.
(1) Opposite parties are directed to rectify the defects pointed out by the complainant and noted by the commissioner in Ext.C1 commission report to the full satisfaction of the complainant free of cost within 15 days from the date of receipt of this order.
(2) Opposite parties are also directed to give a further warranty to the vehicle for a period of 12 months from date of delivery of the vehicle after repairs.
(3) In the event of non-compliance of this order by opposite parties, complainant is allowed to realize entire price of the vehicle from second opposite party and in that event, the complainant has to return the vehicle and its accessories to second opposite party.
Declared in the Open Forum on this the 10th day of July, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Philip Mathew.
PW2 : A.P. Job.
Exhibits marked on the side of the complainant:
A1 : Power of Attorney dated 10.01.2012 executed by the
complainant in favour of Philip Mathew.
A2 : Order form dated 19.04.2010 issued by the first opposite
party to the complainant.
A3 : Detail invoice dated 22.04.2010 issued by the second
opposite party to the complainant.
A4 : Slip issued by service centre.
A5 : Slip of service centre.
A6 : Copy of legal notice dated 10.09.2010 issued to the
second and 4th opposite parties by the complainant.
A7 : Copy of the legal notice dated 20.10.2010 issued to the
third opposite party by the complainant.
A8 to A8(d) : Postal receipts (5 in number).
A9 : Photocopy of the certificate of registration.
A10 : Warranty book of Xylo.
Witness examined on the side of the opposite parties:
DW1 : Bijith. P.B.
DW2 : P.T. Baiju.
Exhibits marked on the side of the opposite parties:
B1 : Standard warranty booklet.
B2 : copy of certificate issued by Automotive Research
Association of India.
B3 : Copy of retail invoice.
Court Witness:
CW1 : Anilkumar. G.
Court Exhibits:
C1 : Commissioner’s Report.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) Rachel Philip, Srambickal House, Kallooppara P.O.,
Kallooppara Village, Mallappally Taluk,
Pathanamthitta Dist.
(2) T.V. Sundram Iyyankar & Sons, Makkamkunnu P.O.,
Pathanamthitta.
(3) T.V. Sundram Iyyankar & Sons, M.C. Road, Nattakom
P.O., Kottayam.
(4) T.V. Sundram Iyyankar & Sons, TVS Building,
7B West Veli Street, Post Box No.21, Madurai,
Tamil Nadu.
(5) M/s. Mahindra & Mahindra Ltd., Marketing Department,
Automotive Sector, Road No.13, Worli,
Mumbai – 400 018.
(6) The Stock File.
