DATE OF FILING : 26.11.2015

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.344/2015

Between

Complainants       :  1.   Darli Varkey, W/o. Sebastian,

     Muthalakkuzhiyil House,

     Udumpannoor P.O., Idukki.

2.  Sebastian Abraham,

    Chirackal Purayidathil House,

    Marygiri P.O., Idukki.

    (By Adv:  K.M. Sanu)

And

Opposite Parties                                          :   1.  The Manager,

       Autoline, Thodupuzha,

       Thodupuzha P.O.,  Idukki.

  2.  The Manager,

       Mithra Motor World,

       JMJ Arcade, 4 line bypass road,

       Thodupuzha East P.O., Idukki.

  3.  The Manager,

       Mahindra Two Whellers 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 3rd opposite party, on 28.11.2013, by paying an amount of Rs.53444/-.  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 first service to 1st opposite party.  Thereafter the further services were done by 2nd opposite party.  From the beginning days of use of the vehicle, it showed less mileage and   low pulling and missing.    All these defects are reported  to 1st opposite party,  at the 

   (cont.....2)

-  2  -

 time of its service.  Moreover, it showed slipping in its gear after its 5th periodical service.  This also intimated to the 1st opposite party.  But the 1st  opposite party has not cared to cure the defect and 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, 3rd 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.

 

3rd 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 3rd 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

(cont.....3)

-  3  -

worthy condition.  Moreover, the complainant cannot have any grievances against 3rd opposite party 

 

and the complainant has failed to prove any cause of 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.  2nd complainant was examined as PW1 and Exts.P1 to P3 were marked.  Ext.P1 is the copy of RC Book. Ext.P2 is the brochure of Mahindra Centuro motor bike.  Ext.P3 is receipt and retail invoice dated 29.11.2013.  From the defence side, vehicle job card dated 21.12.2015 and copy of warranty card is produced and marked as Exts.R1 and R2 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 2nd 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

   (cont.....4)

-  4  -

stated that on inspection, he found that, the mileage of the vehicle is 73 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 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 73 km/ltr.  At the same time as per Ext.P2, the assured mileage of the vehicle is 85.4 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 73 km/ltr that is 12 km less than the actual mileage which the 3rd opposite party assured and as per Ext.P2 brochure of the manufacturer / dealer.

 

In this case, 1st opposite party is the dealer and 2nd opposite party is the authorised service agent.  Except 3rd opposite party, 1st and 2nd opposite parties 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 on 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 to 3 miserably failed to adduce any expert evidence to fortify the version of 3rd opposite party.

 

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

   (cont.....5)

-  5  -

and points which he noted in the report.  In the report,  the  commissioner has not stated that, for inspecting the gear shifting complaint, he rode the vehicle through an uphill road, since the case of the  complaint  is that, this defect is happened while he using the vehicle in high terrain roads.  Except  low mileage, the other defect noted by the commissioner is denied by the complainant as the reason that, the 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 the commissioner and his report.  On evaluating the point, Forum finds that the act of the commissioner is biased and the commission report is prepared by him is one sided and it is favourable to the opposite party.  Hence the allegation against the commissioner cannot be brushed aside and the Forum is of a considered view that, except the written version of 3rd opposite party, no plausible evidence is produced by the opposite party either orally or documentarily to strengthen the pleadings of the written version.

 

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.   Opposite parties 3 is directed to replace the vehicle discussed above with a new one to the complainant or else pay the purchase price of the vehicle as per Ext.P3 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, 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)

-  6  -

 

APPENDIX

 

Depositions :

On the side of the Complainant :

PW1               -    Sebastian Abraham.

On the side of the Opposite Party :

Nil.

Exhibits :

On the side of the Complainant :

Ext.P1            -     copy of RC Book. 

Ext.P2           -   brochure of Mahindra Centuro motor bike.  

Ext.P3           -   retail invoice dated 29.11.2013.   

On the side of the Opposite Party :

Ext.R1            -    vehicle job card dated 21.12.2015.  

Ext.R2            -    copy of warranty card.

 

 

Forwarded by Order,

 

 

     SENIOR SUPERINTENDENT