DATE OF FILING : 3.12.2015

IN THE CONSUMER DISPUTES  REDRESSAL FORUM, IDUKKI

Dated this the  22nd   day of  June,  2018

Present :

SRI. S. GOPAKUMAR PRESIDENT

SRI. BENNY. K. MEMBER

CC NO.355/2015

Between

Complainants       :   Sibi Thomas,

Thevarkattil House,

Peringasseri P.O., 

Udumpannoor, Idukki. 

(By Adv:  K.M. Sanu)

And

Opposite Parties                                          :   1.  The Manager,

       Autoline, Thodupuzha,

       Thodupuzha P.O.,  Idukki.

  2.  The Manager,

       Mahindra Two Wheelers Ltd.,

       Chinchwad,

       Pune – 411 019.

   

O R D E R

SRI. S. GOPAKUMAR, PRESIDENT

 

Case of the complainant is that,

 

The 1st complainant purchased a motor vehicle from 1st opposite party, branded Mahindra Centuro manufactured by 2nd  opposite party, on 29.11.2013, by paying an amount of Rs.56000/-.  The vehicle is registered in the name of 1st complainant, but it is using by the 2nd complainant.  At the time of delivery of the vehicle, 1st opposite party assured that this vehicle is having high quality in its performance and also having 85.4 km mileage per one litre petrol and having 5 years warranty.  The complainant entrusted the vehicle for four services to 1st opposite party.    From the beginning days of use of the vehicle, it showed less mileage and   low pulling and missing. After the 1st service, its odometer was dead and the breaking system showed serious complaint.  After the services, the complainant got only 55 km per litre instead of 85.4 km as the manufacturer confirmed.   All these defects are reported  to 1st opposite party,  at the time of its service.  Moreover, it showed oil leak from its 2nd periodical service and slipping in its gear from its 3rd  periodical service.  This also intimated to the 1st opposite party.  But the 1st  opposite party has not cared to cure the defect and 

(cont.....2)

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neglected the request of the complainant.  Due to the persisiting defects of the vehicle, the complainant is not in a position to use it, with full trust and satisfaction.

 

The complainant further stated that the defects stated above are the recurring and persisting and is the manufacturing defect and eventhough the vehicle was entrusted so many times to the 1st opposite party, they failed to cure it.  Hence alleging deficiency in service and unfair trade practice on the part of the opposite party, complainant filed this petition, for getting the relief such as to direct the opposite parties to replace the vehicle with new one or to return the purchase price of the vehicle along with cost and compensation.

  

Alongwith the complaint, complainant filed an Interim Application for appointing an expert commissioner for inspecting the vehicle and to report its condition.  This petition is allowed and expert commissioner was appointed.

 

Upon receipt of notice, opposite parties entered appearance and filed detailed reply version.  In their version, 2nd opposite party contended that the problem of mileage as alleged by the complainant was only on apprehension and it cannot be treated as inherent defect of the vehicle.  The mileage figure as shown in the advertisement of the motor vehicle was certified by ARAI.  It is an authorised agency of Government.  ARAI mileage is certified under the standard test condition and has standard parameters which may and can vary from actual driving condition like traffic conditions, driving at high speed, tyre pressure, engine oil and clean oil filters and road condition etc.        

 

2nd opposite party further contended that, it may be clarified that the observations recorded by the service adviser on the job card and steps taken for resolution of the complaint, complainant would clearly establish whatever complaints raised by the complainant were just running complaints and recommended service which were required to be attended for extensive usage and improper maintenance of the motor vehicle.  If there was any problem of pulling after the repair, the complainant would not have taken the delivery of the vehicle and he was completely satisfied with the performance of the vehicle.  The 2nd opposite party further contended that in each ad every visit to the service centre, the complainant has been provided exceptional service by the workshop and the motor cycle in question has been repaired to the satisfaction of  the  complainant  every  time  and  as of new,  the  vehicle  is in a good road worthy condition.  Moreover, the complainant cannot have any grievances against 2nd  opposite party and the complainant has failed to prove any cause of 

(cont.....3)

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action or prima facie case in the complaint against 3rd opposite party and hence the 3rd opposite party is fit to be discharged from the instant proceedings in the absence of any prima facie case.

 

Evidence adduced by the complainant by way of proof affidavit and document.  Complainant  was examined as PW1 and Exts.P1 to P3 were marked.  Ext.P1 is the copy of RC Book. Ext.P2 is the copy of owner's manual.  Ext.P3 is receipts dated 15.10.2013 and 29.11.2013.  From the defence side, Exts.R1 to R3 marked.  Copy of affidavit for withdrawing CC No.384/15 is marked as Ext.R1. The vehicle job card dated 27.1.2016 and copy of warranty card is produced and marked as Exts.R2 and R3 respectively.

 

Heard both sides.  The point that arose for consideration is whether there is any deficiency in service from the part of opposite parties and if so, for what relief the complainant is entitled to ?

 

The POINT :-  We have heard the counsels for both sides and gone through the evidence on record carefully.  It is an admitted fact that complainant purchased a Mahindra Centuro bike from 1st opposite party dealer in the month of November, 2013.  While the  complainant using this vehicle, it showed complaints of low pulling and low mileage.  Alongwith the complaint, complainant filed an interim application for appointing an expert commissioner for assessing the defects of the vehicle and report the same.  On considering his application, Forum appointed one retired RTO, Mr. C.S. David and after executing the order, the commissioner filed report on 10.8.2016.  This report is objected by the complainant, with written objection on the ground that the expert commissioner filed report without conducting proper inspection.  In this objection, complainant pointed out that, at the time of inspection, the vehicle was rode by the technician of 1st opposite party and the expert himself has not ride the vehicle and without having any direct knowledge of the defects, he filed report before the Forum.  In this objection, complainant further stated that, under the above said circumstances, the commission report cannot be considered as the part of evidence and it is liable to be set aside. 

 

On going through the expert report, it is seen that expert inspected the vehicle in the presence of the 2nd complainant and the service engineer and service  in  charge  of  1st opposite party.   In  the report,  the expert specifically stated that on inspection, he found that, the mileage of the vehicle is 67 km/ltr.  Moreover he has not noticed any low pulling and any gear slipping as alleged by the complainant.  But the opinion of the expert was flatly denied by the 

    (cont.....4)

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complainant.  But on the other hand, opposite party has not adduced any supporting evidence to convince the Forum that, the expert conducted inspection after complying all formalities and the report is genuine and bonafide and can be considered as a part of evidence.

 

Complainant was examined as PW1 and Exts.P1 to P3 were marked.  In the box, complainant categorically deposed that, the expert has not conducted any inspection by riding the vehicle personally and more over, he has not acted as per the interim commission application.  Eventhough the learned counsel cross examined him lengthily, he failed to put any question to the witness regarding this aspect.  As per the opinion of the expert, after inspection he noticed the mileage of the vehicle is 67 km/ltr.    The version of the 3rd opposite party in this regard is that, it is the certification of ARAI, as per the standard test condition and it varies due to some other fact, which is discussed already.  In this case, the commissioner conducted inspection as per the norms of standard test conditions and he got only 67 km/ltr that is 15 km less than the actual mileage which the 3rd opposite party assured.

 

In this case, 1st opposite party is the dealer and 2nd opposite party is the manufacturer.  Except 2nd opposite party, 1st  opposite party has not filed any written version or adduced any evidence to counter the allegation levelled against them by the complainant.  It is the bounden duty of the dealer to convince the Forum that, the allegations are false and baseless with material evidence.  Here, 1st opposite party being the dealer miserably failed to do so.  It is believable that, the complainant is intended to purchase this vehicle only one of the reason of its fuel efficiency and due to the lower fuel efficiency he had to face much mental and financial hardships.  It is the bounden duty of the opposite party to convince the Forum that, why this vehicle shows low fuel efficiency as opined by the commissioner, with the aid of expert in this field.  Here opposite parties 1 and 2 miserably failed to adduce any expert evidence to fortify the version of 2nd opposite party.  Moreover, the 2nd opposite party has not denied the assurance relating to mileage of 85.4 km/ltr.

 

On the basis of above discussion, the Forum is of a considered view that eventhough the complainant prayed for   setting aside the commission report, the Forum is considering the opinion of the expert in the matter of low mileage and some other points which he noted in the report. The commissioner specifically noticed the low fuel efficiency and oil leakage from the engine through the chain shaft.  Except  low mileage, the other defect noted by the commissioner is denied by the complainant on the reason that, the 

  (cont.....5)

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commissioner acted unilaterally and through the report he tried to help the opposite parties.  It is the duty of the commissioner to ride the vehicle personally and convince the defects directly.  Challenging the report of the expert commissioner, complainant filed a petition for setting aside it.  But the opposite party has not raised any objection to this. This means that opposite party also admitted the version of the complainant regarding the inspection of the vehicle by him and his report. Hence the allegation against the commissioner cannot be brushed aside and the Forum is of a considered view that, except the written version of 2nd  opposite party, no plausible evidence is produced by the opposite party either orally or documentarily to strengthen the pleadings of the written version.  It is also noticed that the 1st opposite party miserably failed to convince the Forum that what is the reason for low mileage and oil leakage and whether it is curable or not.   Since  opposite party has not adduced evidence to state that these defects are curable permanently, the Forum is of a considered view that these defects are inherent manufacturing defect

 

On the basis of above discussion, forum finds that the claim of the complainant is bonafide and the complainant clearly proved that the defects of the vehicle in question is manufacturing defect and he is entitled to get a new defect free vehicle or else the amount which he spent for that.  Moreover, all the defects are occurred to the vehicle in its warranty period.

 

Under the above circumstances, complaint allowed.   2nd opposite parties   is directed to replace the vehicle discussed above with a new one to the complainant or else pay the purchase price of the vehicle  and the 2nd opposite party, being the authorised dealer of 3rd opposite party is directed to pay Rs.5,000/- as litigation cost to the complainant, for the sale of defective vehicle, within 30 days of receipt of a copy of this order, failing which the amount shall carry 12% interest per annum from the date of default till its realisation.

 

Pronounced in the Open Forum on this the  22nd  day of June, 2018

 

Sd/- 

   SRI. S. GOPAKUMAR, PRESIDENT

 

Sd/-  

          SRI. BENNY. K., MEMBER

 

 

 

       (cont.....6)

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APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               -    Siby Thomas.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1            -   copy of RC Book. 

Ext.P2          -  copy of owner's manual.  

Ext.P3          -  receipts dated 15.10.2013 and 29.11.2013.   

On the side of the Opposite Party :

Ext.R1            -   Copy of affidavit for withdrawing CC No.384/15  

Exts.R2         -  vehicle job card dated 27.1.2016 

Exts.R3         -  copy of warranty card.

 

 

 

Forwarded by Order,

 

 

 

SENIOR SUPERINTENDENT