IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 13th day of October, 2020
Filed on 28. 09. 2017
Present
1. Sri.S.Santhosh Kumar, Bsc.LLB(President)
2. Smt. C.K.Lekhamma. BA. LLB(Member)
In
CC/No. 264/2017
Between
Complainant:- Opposite parties:-
Mrs. Rosetta Robello 1. T.V.Sundaram Iyangar & Sons
W/o Tomy Robello Pvt. Ltd, NH-47, .
Rose Dale Years Thiruvambady
Arattuvazhy Alappuzha
Alappuzha ( Adv. C.Mureleedharan)
(Adv.V.Alex Joseph) 2. KTC Automotive company
NH-47, Muttom Kalamassery Kochi-683106
(Adv. Biju Abraham)
3. Mahindra & Mahindra Ltd
Gate way Building
Appollo Bunder
Mumbai-400039.
(Adv.Jayan.C.Das )
O R D E R
SRI. S. SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
1. Material averments briefly discussed are as follows:-
Complainant purchased a brand new Mahindra & Mahindra XUV 500 RFWD W6-HEO NPWH model vehicle from the 1st opposite party on 21.8.15 spending an amount of Rs.15,00,000/-. 2nd and 3rd opposite parties are the authorized service persons and manufacturer respectively. After about 7 months of purchase an abnormal sound started emanating from the engine portion of the vehicle and it was intimated to the opposite parties.
As per the direction of the opposite parties the vehicle was produced before the 2nd opposite party on 11.4.14 for investigation. The 2nd opposite party took two months to correct the defect and thereafter the vehicle was handed over and the warranty was extended from 09.09.2018 to 09.09.2019. Complainant was told that the abnormal sound occurred due to some minor defects in the engine and the delay occurred due to non availability of spare parts.
Later complainant realized that the vehicle had undergone large mechanical repairs and over haul of the engine and cylinder head. It was also realized that the abnormal sound occurred due to some complex manufacturing and mechanical defects. The large mechanical work subjected to the vehicle was clear violation of terms of warranty and amounted to the deficiency of service. As a result of the elaborated repairs and over haul the value of the vehicle had come down heavily especially the history of the vehicle is accessible to the public in all the outlets of the company. When the complainant wanted to sell the vehicle it was found that there was no genuine purchaser since the vehicle had undergone rectification for the inherent mechanical defect. The defect found in the vehicle is a manufacturing defect and inherent defect of the engine and instead of replacing the said engine with a new one the large scale mechanical repairs and over haul have considerably reduced the value of the vehicle. On 18.04.2017 complainant sent a notice to the opposite parties out of which 3rd opposite party initially sent a reply seeking time to go in to the details and thereafter sent a reply on 06.07.2017 disowning their liabilities. Hence the complaint is filed for realizing an amount of Rs.5,00,000/- or to direct them to replace the existing engine with brand new one.
2. 1st opposite party filed a version mainly contenting as follows:-
As per the admitted statement of the complainant it can be seen that she had purchased the vehicle with the intention of resale. Hence she will not come under the definition of customer. Complainant has no case that there was deficiency of service on the part of the opposite party. This opposite party is not a necessary party. A party placing an order for a vehicle manufactured by 3rd opposite party the said aspect is forthwith uploaded on the website on the 3rd opposite party based on which the claim for warranty is provided.
Complainant had booked and subsequently taken delivery of a Mahindra XUV 500 vehicle after inspecting and being satisfied. During the period from 30.12.2015 to 22.09.2017 the vehicle was brought to the workshop on 6 occasions which included the periodic services prescribed by the manufacturer. On none of these occasions there was any complaint regarding the sound. As per the warranty if any part is found defective it will be replaced free of cost. It will not bring down the value of the vehicle.
There was no manufacturing defects. There was no deficiency of service from the part of these opposite parties and the complaint filed without any bonafides may be dismissed with cost.
3. 2nd opposite party filed a version mainly contenting as follows:-
This opposite party was the authorized dealer of the 1st opposite party till April 2017. At present they are not dealing with vehicles. Whenever a vehicle had been received by this opposite party as an authorized dealer, the complaint of the entrusted vehicle should have been looked into and ought to have been cleared in consultation with the owner of the vehicle. If the warranty period is extended it will be with the consent of the manufacturer. Without specific reason or instruction the warranty will not be extended. Since the vehicle was running smoothly even after 2 years of purchase shows the good work done by the opposite party. After 1 ½ years of the works and relieving of this opposite party from the authorized dealership of 3rd opposite party the attempt of the complainant is to fasten some liability over this opposite party. The complaint deserves no consideration and hence it may be dismissed.
4. 3rd opposite party filed a version mainly contenting as follows:-
Complainant had purchased a Mahindra XUV 500 RFWD W6-HEO NPWH model vehicle from the 1st opposite party manufactured by this opposite party on 08.09.2015. There was no defect in the vehicle at the time of carrying out the 1st service at 4,839 Kilometers on 31.12.2016. On 12.04.2016 at 9,317 Kilometers the vehicle had reported for checking a sound in the engine. The service personnel of the dealership attended the vehicle immediately and initiated the corrective measures. There was nothing serious regarding the functioning of the engine. The complainant had agreed for the rectification under warranty. The repairing was done as per Mahindra & Mahindra tech liner guidelines and as per the standard procedure. Every engine is made by assembly of various components by the manufacturer. By replacing certain parts as per the standard procedure no way affect the original performance of the engine. Time was required to comply the standard procedures. The time of repair was fixed by the dealer only. The vehicle was delivered after all the required tests on 24.05.2016. The original warranty of the vehicle had expired on 09.09.2018. It was extended for a further period of one year ie upto 09.09.2019. The complainant was compensated with Rs.15,000/- as goodwill to take care of transportation expenses when the vehicle was in dealership for repairs. There was no large mechanical repair.
The engine of the vehicle is manufactured by assembling different components and if any component is replaced for getting the required performance the same will not affect the quality or performance of the engine but it will only augment the life of the engine. The repairs were done in accordance with the procedures of the manufacturing company. The allegation that the price of the vehicle was lowered is not true. There was no large scale mechanical defects the complainant is not entitled to claim any compensation. The alleged repairing was done at 9317 kilometers and the vehicle was delivered on 24.05.2016. After repairs an additional warranty for 1 year was given. There was no deficiency of service or no unfair trade practice on the part of the opposite party. Hence the complaint may be dismissed.
5. On the above pleadings following points were raised for consideration.
- Whether the complainant is entitled to realize an amount of Rs.5,00,000/- from the opposite parties as prayed for?
- Whether the complainant is entitled to get a direction to replace the existing engine with brand new one ?
- Reliefs and costs?
6. PW1 is the son of the complainant. He filed an affidavit in tune with the complaint and marked Ext.A1 to A6. Opposite parties have not adduced any oral evidence Ext.B1 was marked by the 2nd opposite party.
7. Point No.1 and 2:-
The case of the complainant is that on 21/8/2015 she purchased a Mahindra & Mahindra XUV500 RFWD W6..HEO NPWH model vehicle from the 1st opposite party for Rs. 15,00,000/- 2nd opposite party is the authorized service center and the 3rd opposite party is the manufacturer of the vehicle. After about 7 months of purchase some abnormal sound was heard from the engine and it was entrusted to the 2nd opposite party for repairs on 11/4/2016. Repairs were done during the warranty period and the warranty was extended. It was informed that the abnormal sound occurred due to some minor defects. However it was realized by the complainant that there were major repairs to the vehicle and overhauling was done to the engine and cylindrical head. According to the complainant as a result of the repairs the value of the vehicle was reduced considerably and hence she is claiming an amount of Rs.5,00,000/- and in the alternative for a direction to replace the engine with a brand new one. Opposite parties 1 to 3 entered appearance and filed separate version denying the allegations in the complaint. According to them the vehicle had some minor complaints and it was rectified during the warranty period. The warranty was also extended. It was pointed out that due to the repairs the life of the engine was increased and the complaint is baseless. To prove the case the son of the complainant who is also her power attorney holder was examined as PW1 and marked Ext.A1 to A5. Ext.A6 was marked on 7/10/2020 by consent. Opposite parties have not adduced any oral evidence. Ext.B1 copy of warranty was marked.
The case of PW1, son of the complainant is that some major repairs were done to the vehicle by over hauling the engine and cylinder head it came to their notice by Ext.A2 which is the vehicle history. The main grievance is that due to the overhauling of engine and cylinder head the value of the vehicle had come down heavily and so they are seeking an amount of Rs.5,00,000/- or in the alternative replacement of the engine. At the time of hearing the learned counsel appearing for the complainant produced Ext.A6 sale agreement dtd. 2/7/2019 and pointed out that the vehicle was sold for an amount of Rs.6,40,000/- and hence the relief of replacement of engine is not pressed. So now the only question to be decided is whether complainant is entitled to realize an amount of Rs. 5,00,000/- from the opposite parties on account of deficiency of service from their part. According to PW1 they purchased the vehicle on 21/8/2015 and the defect was noticed after about 7 months and it was handed over to the opposite parties for repairs on 11/4/2016. However in the version filed by 3rd opposite party who is the manufacturer it is stated that the vehicle was sold on 8/9/2015. So it is seen that either the complainant or PW1 is not sure about even the date of purchase of the vehicle. Grievance of the complainant is that due to the overhauling of the vehicle the value of the same came down heavily and there was no purchasers when it was put on sale. According to PW1 the vehicle was purchased for Rs.15,00,000/- on 21/8/2015 and from Ext.A6 it is seen that it was sold for Rs.6,40,000/- on 2/7/2019. Ext.A6 is a sale agreement. It was produced at the fag end of trial and it was marked on 7/10/2020 when the case is posted for final hearing. As rightly pointed out by the learned counsel appearing for the 3rd opposite party the contents of Ext. A6 document cannot be acted upon since it was marked without examining either seller or the purchaser. It is not known whether the vehicle was sold for a higher amount it was contented. Anyhow from the available evidence it can be seen that the vehicle purchased during 2015 was sold for Rs.6,40,000/- during 2019. Hence it can be seen that the value of the vehicle was not heavily came down as contented in the complaint and deposed by PW1. Moreover it is to be noted that to prove the case the solitary interested testimony of PW1 is available. No independent witnesses were examined to prove that the value of vehicle has come down. Complainant is relying upon Ext.A2 document which is vehicle history to prove that overhauling was done to the engine. Ext.A2 was also marked without examining the person who prepared the same. Ext.A5 is a letter addressed to the learned counsel for the complainant sent by the 3rd opposite party. In Ext.A5 it is stated that the vehicle was repaired free of cost during warranty period and also offered one year extended warranty. An amount of Rs.15,000/- was given as transportation compensation for the period when the vehicle was under repairs. In cross examination, PW1 admitted that there was no occasion when the complaint of the vehicle was not attended. The only case is that from Ext. A2 vehicle history he came to know that there was overhauling for engine and so the value of the vehicle had come down. However as discussed earlier no witness was examined to prove such a contention. Expert evidence was also not available to prove that the value of the vehicle was diminished. During the cross examination by the learned counsel appearing for opposite party No.2, he admitted that there is no deficiency of service from the part of the opposite party No.2.
The learned counsel appearing for the 3rd opposite party relying upon Ext.B1 warranty pointed out that there is no term in the warranty for replacing the engine and the engine warranty covers only repairs. To substantiate such a contention he relied upon a ruling of the Hon’ble Supreme court reported in (2006) 4 SCC 644 (Maruti Udyog Limited Vs. Susheel Kumar Gabgotra & another). It was held that if there is no agreement to replace the engine system no order can passed for the same. Here in this case also the defect of the engine was cured during the warranty period free of cost and admittedly PW1 stated that there was no deficiency of service and the complaints were promptly attended. Only on the basis of averment in the complaint and interested testimony of PW1 we cannot jump into the conclusion that the value of the vehicle was reduced due to the overhauling and so he is entitled for compensation. In other words there is no satisfactory and sufficient evidence to prove the claim of the complainant that the value of the vehicle was reduced due to the overhauling. As discussed earlier no independent evidence is available and expert was also not deputed to ascertain the allegations in the complaint. In the circumstances in the light of the discussions made above we are of the view that complainant is not entitled for any compensation and so these points are found against the complainant.
8. Point No.3
In the result, complaint is dismissed with cost of Rs.3000/-(Three thousand only).
Dictated to the Confidential Assistant, transcribed by him correct by me and pronounced in open Commission on this the 13th day of October, 2020.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. C.K.Lekhamma(Member)
Appendix:-Evidence of the complainant:-
PW1 - Reyanson Rebellow(Witness)
Ext.A1 - Power of Attorney dtd.24/2/2018.
Ext.A2 - Vehicle History
Ext.A3 - Lawyers notice dtd.18/5/2017
Ext.A4 - Reply Notice dtd.24/5/2017.
Ext.A5 - Reply Notice dtd.6/7/2017.
Ext.A6 - Vehicle sale deed.
Evidence of the opposite parties:-
Ext.B1 - Warranty Information and Maintenance Guide.
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
