Date of Filing: 06-10-2015 Date of Final Order: 09-08-2016
Smt. Runa Ganguly, President-In-charge.
The gist of the complaint as culled out from the record is that the Complainant intended to purchase one Luxury car i.e. MAHINDRA XUV500 FWD W8-JC PRPL from O.P. No.1, The Branch Manager, Khokon Motors Works & Pvt. Ltd., Cooch Behar but because of paucity of fund the Complainant approached to the Proforma O.P. No.4, The Manager, State Bank of India, Cooch Behar Branch through their local representative for financial assistance. Both the parties came to mutual agreement and the proforma O.P intended to disburse the loan to the Complainant for purchasing the said vehicle. The total price of the said vehicle was of Rs.14,02,423/- and the O.Ps assured that they will render proper service towards the Complainant. After completion of all formalities the O.P. No.1 delivered the said vehicle i.e. MAHINDRA XUV500 FWD W8-JC PRPL under Chassis No. MA1YT2HJUF6A-12947, Engine No. HJF4A13180, Year of manufacturing 2015 to the Complainant on 03/05/2015, and thereafter the O.P No.2, The Manager, Khokon Motors Works & Pvt. Ltd. Siliguri issued Tax Invoice in favour of the Complainant on 15/05/2015 and the said vehicle was duly registered bearing No. WB-64-L/2372, authenticated to the Proforma O.P. No.4 by the R.T.O, Cooch Behar and subject to hypothecation in favour of S.B.I, Cooch Behar Branch.
After 10 to 12 days from the date of vehicle purchasing after a brief journey the Complainant follows roof ceiling of the said vehicle is swelling and the Complainant took the vehicle to the O.P. No.1, showroom the following day and also informed the matter over telephone to the O.P. No.2 and narrated the problems faced by them to its proprietor who assured the Complainant that all the problems would be solved very soon but the Complainant did not get any response from the O.Ps.
Afterwards the Complainant snapped this defective ceiling of the said vehicle and also on several occasions dated 06/07/2015 & 29/08/2015 the Complainant submitted two complaint petition along with photo before the O.P. No.2 for replacing defective ceiling and thereafter on 28/07/2015 & 31/08/2015 respectively the O.P. No.2 changed the defective ceiling of the said vehicle.
After such repair the same problem again cropped up along with some other related problems and the said defects were arisen within the warranty period for which the Complainant is entitled to get this benefit. But after long run, the Complainant made several contact orally and over telephone to the O.P. No.1 & 2 to replace the defective vehicle or solve the said defects but all efforts were in vain.
Finding no alternative the Complainant submitted a written complaint dated 14/09/2015 before the office of the Assistant Director, Consumer Affairs & Fair Business Practices, Cooch Behar, for the purpose of redressing the above disputes and the said office sent a letter to the O.P. No. 1 & 2 for resolving the disputes through the process of mediation on 28/09/2015. But the O.Ps. did not take any positive measures which can be treated as breaking promise and deficiency in service.
Due to such activities of the O.Ps the Complainant is in hard –up and facing hindrance as well as suffer irreparable loss for which the Complainant could not run the said vehicle properly. The Complainant also suffered from acute mental pain and agony, pecuniary loss and unnecessary harassments. There was also deficiency in service and unfair trade practice adopted by the O.Ps.
Hence, the Complainant filed the present case praying for issuing a direction upon the O.Ps to pay (i) Rs.14,02,423/- for refund value of the said car along with Insurance fee and Road taxes or replaced the said car free of cost, (ii) Rs.2,00,000/- as compensation for mental pain and agony and unnecessary harassment, (iii) Rs.2,00,000/- for deficiency in service and unfair trade practice, (iv) Rs.15,000/- towards litigation costs, besides other relief(s) as the Forum deem fit, as per law & equity.
The O.P. No.1, The Branch Manager, Khokon Motors Works & Pvt. Ltd. Cooch Behar and the O.P. No.2, The Manager, Khokon Motors Works & Pvt. Ltd. Siliguri and the O.P. No. 3 have contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. This case proceeded with Ex-parte against the O.P. No. 4. The main contention of the O.Ps that the Complainant correspondent to these answering O.Ps for her dispute regarding the vehicle, it also fact that the O.Ps always ready to solve the problem of the said vehicle as she alleged. The Complainant purchased the said vehicle and thereafter on several times free servicing of the said vehicle was done by the O.P. No.1 & 2 in their workshop within the warranty period.
The O.P. No.1 & 2 further contended in their W/V that some disputes had been cropped up on the ceiling of the vehicle and after getting such information from the Complainant, These answering O.Ps changed the dispute ceiling of the vehicle free of cost and their after the driver of Complainant take the vehicle from the workshop with full satisfaction. Further stated there is no dispute of the vehicle regarding the engine, chassis or other valuable parts of the vehicle as such she plying the vehicle on rode smoothly, so there is no question to replace the vehicle at this stage. The dispute which arose on the ceiling of the vehicle it is not major dispute, and the these O.Ps always ready to change the ceiling of the vehicle as her demand at any time but the O.Ps did not demand any co st regarding the changing the selling of the vehicle. Therefore, there was no deficiency in service and unfair trade practice adopting by the O.P. No.1 & 2.
In view of above statement, These O.Ps are not liable to pay any compensation or replace the vehicle, so it is prayed that considering the above fact and circumstances to dismissed the present complaint petition with cost.
The O.P. No.3, Mahindra & Mahindra Ltd., Mumbai has contested the case by filing Written Version denying all material allegation of the complaint contending inter-alia that the case is not maintainable and the Complainant has no cause of action to bring the case. The main contention of the O.P that it would be relevant to explain the relationship between the company and its authorized dealers. The relationship between the manufacturer and dealer is on principal to principal basis meaning thereby, dealers i.e. the O.P. No.1 & 2 are authorized to purchase the vehicles manufactured by the O.P. No.2 in bulk quantities and in turn to resell them to their own customers. In other words, all the transactions with dealers are on principal to principal basis and the O.P. No.2 is not aware of the ultimate customer of dealers and as such there is no privacy of contract between the O.P. No.2 and the ultimate customer of the vehicle i.e. the Complainant as far as the subject vehicle is concerned. The O.P. No.3 is not responsible for any of the act, omissions or commission of any act by its dealers. The dealer is a separate principle and not an agent of the manufacturer. Thus, dealer being separate legal entity can sue and can be sued on its own. The relationship is admitted and there is no dispute with regard to that. The liability of the answering O.P is limited to the terms and conditions of the warranty policy. It is pertinent to mention here that the sale and services of the said vehicle is the prerogative of the dealer. The ultimate customer pays the price of the vehicle and the charges of the services to the dealer and dealer issues the receipts. Further, it is submitted by the O.P. No.3 that regarding obtaining finance of the vehicle, the O.P. No.3 is unaware of the same, as S.B.I. is a separate company and is separate legal entity for which The O.P. No.3 has nothing to do with the operations of the O.P. No.4.
It is the case of the O.P. No.3 that sale and service of the vehicle is entirely the prerogative of the dealer. This O.P has no role to play in the service of the vehicle. The liability of the O.P. No.3 is limited to the extent of the terms and conditions of the warranty policy. So far the allegations are against the dealer and the dealer is answerable to the same. The present O.P is given to understand by the dealer that after the O.P. No.1 received the complaint verbally the order was placed on 20/06/2015 and after receiving the said spare parts, the Complainant was contacted to send the vehicle and Complainant has sent the vehicle on 28/07/2015 for 1st Free Service along with the registered complaint (RO16B001636). The said spare parts were again changed on 31/08/2015 as the customer was not satisfied with the changed spare parts on 20/06/2015. It is pertinent to note that the O.P. No.1 borne the expenses to bring the vehicle from the Complainant's home town. Even after the second time fitment the Complainant was not satisfied and raised new complaint. For the new complaint, an order was placed on 21/09/2015 and 22/09/2015. After receiving the spare parts, the O.P. No.1 has informed the Complainant but the Complainant straightly declined to replace the said spare parts.
It is the further case of the O.P. No.3 that the Complainant has miserably failed to prove any manufacturing defect. It is settled law that in order to establish manufacturing defect expert opinion is required. In this case there is nothing on record to establish the defect. It is settled law that manufacturing defect cannot be assumed but it has to be proved by way of leading cogent piece of evidence. Therefore the Complainant is put to strict proof thereof. The O.P. No.3 is unaware about such mediation process as the letter was only sent to the O.P. No.1 & 2 for resolving the said dispute, hence not commented upon. Further it has been alleged by the O.P. No.3 that some issue with the ceiling of the vehicle was reported and the same was resolved by the O.P. No.1 & 2 free of cost and the driver of the Complainant has taken the delivery of the vehicle after checking the vehicle duly. As far as the problem of the ceiling was concerned the Complainant has herself denied to bring back the vehicle to the O.P. No.1 & 2 where the O.Ps are ready to address the issue concerned at any time. Thus, the O.P. No.3 is not liable to pay any compensation or replace the vehicle.
Ultimately, the O.P. No.3 prayed for dismissal of the case with costs.
It appears that in spite of due service of Notice upon the proforma O.P. No.4, The Manager, State Bank of India, Cooch Behar Branch did not turn up before the Forum and accordingly the case proceeded in Ex-parte against them.
In the light of the contention of both parties, the following points necessarily came up for consideration.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service by not replacing the vehicle and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
We have gone through the record very carefully. Perused the entire documents in the record and also heard the argument as advanced by the parties at length. Perused the evidence on affidavit of the Complainant and the O.P. No. 1&2. No evidence on affidavit is filed by the O.P. No.3.
The Ld. Agent for the Complainant referred some rulings as follows.
[2015] CJ 319 (NC), [2014] CJ 402 (NC), 2013 (4) CPR 114 (NC), 2013 (2) CPR 360 (NC), 2009 CTJ 180 (CP) (SCDRC), 2013 (2) CPR 595 (NC). Perused and considered.
Point No.1.
Admittedly, the Complainant purchased one MAHINDRA XUV500 FWD W8-JC PRPL under Chassis No. MA1YT2HJUF6A-12947, Engine No. HJF4A13180, from the O.P. No.1 on 03.05.2015 and the O.P. No.2 issued a Tax Invoice of Rs.14,02,423/- in favour of the Complainant. The O.P. No. 3 is the manufacturer. Thus, having heard the Ld. Agents of both sides and on considering the facts and circumstance, we have no hesitation to hold that the complainant is a consumer as per provision u/s 2(1)(d)(ii) of C.P. Act, 1986.
Point No.2.
The complainant in this case has claimed Rs.18,17,423/- in total under different heads which is less than the pecuniary limit of this Forum. The complainant has brought this case against the Opposite Parties from which O.P. No. 1 and pro. O.P. No. 4 are under Kotwali P.S, Cooch Behar which is within the territorial jurisdiction of this Forum.
In our view, this Forum has sufficient jurisdiction i.e. pecuniary as well as territorial jurisdiction to entertain the instant case.
Thus, both the points are decided in favour of the Complainant.
Point No.3 & 4.
These points are taken up together for the sake of convenience and brevity.
Admittedly, the Complainant purchased one vehicle from the O.P. No.1 for consideration of Rs.14,02,423/- on 03.05.2015.
It is the case of the Complainant that within a very short period of purchasing the said vehicle, the Complainant noticed some defects in the roof ceiling of the vehicle and the said matter brought to the notice O.P. NO. 1 & 2. After receiving the complaint from the Complainant the O.Ps took measures and repairs the defect in the ceiling of the vehicle on 28.07.2015 and on 31.08.3015. The Complainant requested the O.Ps to replace the vehicle that was unheeded.
It is the further case of the Complainant that he received the vehicle from the O.P. No.2 after necessary repairing but after few days the problem cropped up along with other related defects. Thereafter, the Complainant made several contacts and requested the O.Ps to change/replaced the vehicle as even after repairing the roof ceiling the problem did not cure properly. Due to aforesaid reason the Complainant did not ply the vehicle properly that cause huge mental disturbance, agonies of the Complainant.
It is the case of the O.P. No.1 & 2 is that admittedly the Complainant purchased the vehicle on 03/05/2015 appeared defects on the roof ceiling and for which the Complainant servicing the vehicle from the O.Ps workshop without cost within warranty period. The O.Ps after getting complaint from the Complainant without delay repaired the same free of cost. There is no allegation about engine and chassis i.e. the valuable parts of the vehicle. The O.Ps changed the ceiling of the car and provided best services to the Complainant. The O.Ps are always ready to change the ceiling but not in a position to pay compensation or replace the vehicle.
Annexure “A” i.e. the Invoice proves that the Complainant purchased the said vehicle by paying an amount of Rs.14,02,423/- from the O.Ps, Khokon Motors.
Annexure “A1” is the Registration Certificate of the vehicle clearly shows that the Complainant is the owner of the vehicle No. WB-64-L/2372 and the said vehicle is hypothecated to S.B.I., Cooch Behar.
Annexure “B” “B1” is the complaint letters to the O.P. No.1 from the Complainant. These were received by the O.P. No.1 on 06/07/2015 & 29/08/2015 respectively. Thus it is crystal clear that the newly purchased vehicle started problem within a short period, the O.Ps gave service but the defects could not be removed.
Annexure “B3” is the Job Sheet dated 31/05/2015 with a note in the demanded column that “wrinkles in roof ceiling”.
Annexure “C” series are some photographs show the wretched condition of the ceiling of the newly purchased car of the Complainant.
Fact remains that the Complainant for her personal use purchased the vehicle bearing No. WB-64-L/2372 from the showroom of Khokon Motors at Cooch Behar i.e. the O.P. No.1 on 03/05/2015 within a very short period the Complainant noticed some defects in the roof ceiling of the vehicle.
The O.Ps was informed accordingly time to time, the vehicle was brought to the company and the O.P. No.1 changed the roof ceiling. The documents made available in the record and the statement made in W/V also evidence of the O.Ps it has seen that the O.Ps. changed the roof ceiling and made essential repairs. But the defect could not be removed. There was repeated failure on the part of the O.Ps to carry out complete and effectual repairs. Thus, it is reasonably be presumed that there is some inherent defect that cannot be removed after repeated servicing.
The O.P. No.3 in W/V frankly stated that he is only a manufacturer and the O.P. No.1 & 2 are the dealer. They sold the vehicle and received amount. There is no direct nexus with this O.P to the purchaser i.e. the present Complainant. The sale & service of the vehicle is entirely the prerogative of the dealer. The relationship between the manufacturer and dealer is on principal to principal basis meaning thereby, dealers i.e. the O.P. No.1 & 2 are authorized to purchase the vehicles manufactured by the O.P. No.3 in buck quantities and in turn to resell to their own customer. The dealer has a separate legal entity thus; the O.P No.3 is not responsible for any of the act, omission or commission of any act by its dealers.
It is pertinent to mention that responsibility of manufacturing defects would always lie with the manufacturer, but responsibility for the above conduct the O.P. No. 3 is squarely liable with O.P. No. 1&2. Thus, in our considered view the O.P. No. 3 cannot shift entire liability to the O.P. No. 1&2.
In this premises we placed reliance upon the ruling reported in [2015] CJ 319 (NC) where in it is decided that “In case of manufacturing defect and warranty, the dealer as well as manufacturer can be made liable on account of conduct of the dealer”.
It is the further case of the O.P. No.3 that the O.P. No.1 & 2 provided best service to the Complainant but the Complainant himself being not satisfied has filed the present case for illegal gain. Thus, this case liable to be dismissed. Moreover, no expert opinion regarding manufacturing defect has been produced by the Complainant. In this juncture, it is pertinent to mention that it is the duty of the manufacturer to maintain the quality and standard of the vehicle before launching in the market also to establish that the vehicle in question was free from any defect including manufacturing defect. In the present case the O.P. No. 3 did not file any Evidence on affidavit and the allegation of the Complainant against the O.P. No.3 is uncontroverted and it is well settled that when the allegation of the Complainant uncontroverted the same is stands prove.
The Ld. Agent for the O.Ps vehemently argued that there is no expert opinion to prove that there is any manufacturing defect in the vehicle in question. In this premises reliance has been placed upon ruling reported in 2013 CJ963 (NC) in where it is decided that “No expert advice is required to be obtained where defects are glaring.”
In the case in hand it is admitted fact that the roof ceiling of the vehicle of the Complainant was not up to the mark and swelling and wrinkle appeared in the ceiling of the newly purchased vehicle of the Complainant within a very short period. The O.P. No. 2 changed the ceiling of the vehicle but the defect remains the same. From the documents made available in the record clearly go to show that the Complainant compelled to brought the vehicle to the workshop of the O.Ps for repairing of his newly purchased vehicle on two/three occasion. Thus it is to be said that there is some inherent defect in the vehicle that is, why it required some repair/change in the ceiling. Facts and circumstances prove the allegation of the Complainant. Thus, it is clearly a case of Res ipsa loquitur” and the plea has taken by the O.Ps that no expert report is available in this case is not sustainable. More so, when it is already settled in a case reported in 2016(2) CPR 39 (NC) where the National Commission pleased to hold that “Expert opinion is not necessary where manufacturing defect is admitted by O.P”. In this juncture we may also rely upon the ruling reported in 2013 (2) CPR 595 (NC) where, in a similar case, Tata Engineering & Locomotive Co. Ltd. & Other Vs. Subhash Ahuja, it has been decided that “In a case of Res- ipsa locquitur evidence in form of opinion of technical expert is not required to prove the case”.
The Ld. Agent for the O.Ps also argued that the defect in the Roof Ceiling is the mere defect and the Complainant faced no obstruction to ply the vehicle for the said defect. The O.Ps provided best service and repaired the defect for which the Complainant is not entitled to get any relief as to the said car as and when there is no problem in the engine of the alleged vehicle. The O.Ps are always ready to change the body of the vehicle as and when required but it is not the ultimate solution to a bonafied consumer. It is the moral duty of the O.Ps to set right the same with ultimate goal for customer satisfaction. In the present case the same was not properly taken up for which the O.Ps cannot avoid their liability.
Besides, it appears that the newly purchased vehicle had to be towed towards the service station time and again for repairing. All the facts and circumstances clearly go to show that obviously the car was supplied to the Complainant with manufacturing defect. Thus, the desire of using a new car of the Complainant has been totally frustrated. The Complainant felt discomfort instead of comfort by purchasing the said car. It must have caused mental agony, harassment, and inconvenience to the Complainant.
In this case the Pro. O.P. No.4 did not appear to contest the case seems that it has nothing to say also the Complainant has no allegation or claim against the SBI.
In the light of foregoing discussion and considering the materials on record we have no impediment to hold that the O.Ps supplied a vehicle to the Complainant with manufacturing defect that tantamount to deficiency in service for which the O.Ps are liable to compensate the Complainant. In this juncture, we invite an authority reported in 2016 (2) CPR 498 (NC) wherein it has been decided that “Huge compensation must be awarded for supplying a car with manufacturing defect.” In such a situation this Forum has four option to direct the Trader/manufacturer/dealer (i) to remove the defect (ii) to replace the goods with a new good with same standard and specification free from all defect (iii) to refund the price (iv) to pay compensation for any loss, injury suffered by the consumer due to negligence of the O.P.
Considering the fate of the present complaint also the facts and circumstances as appeared we are in considered opinion that the direction to return the price of the vehicle with compensation for mental agony and harassment of the complainant will met the proper justice as and when it is also settled in a similar case, Tata Motors Ltd. Vs. Manoj Gandhi & Others reported in 2009 CTJ 180 (CP) (SCDRC) where it was decided that “In a dispute of defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution as such goods may not be up to the satisfaction of the consumers”.
Hence,
It is ORDERED that,
The present complaint be and the same is allowed on contest with cost of Rs.10,000/ against the O.P. No.1, 2 & 3 and dismissed in ex-parte against proforma O.P. No.4.
The O.Ps are directed to refund the cost of the vehicle i.e. Rs.14,02,423/- to the Complainant on return of the defective vehicle. The O.Ps are further directed to pay Rs.25,000/- as compensation for mental pain & agony also harassment of the Complainant.
The entire amount shall be paid by the O.P. No. 1,2 & 3 jointly and/or severally to the Complainant within 45 days from the passing of this order, in default, the O.Ps shall pay Rs.100/- jointly and/or severally for each day’s delay and the amount to be accumulated shall be deposited to the State Consumer Welfare Fund, West Bengal.
Let a plain copy of this Order be supplied to the parties concerned by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action, as per rules.
