Hon’ble Mr. Subhas Ch. Guin, Member.
The concise fact of complaint petition is that the Complainant, Sri Pratap Mitra, a resident of Village Nababganj Balashi, P.O- Dewanhat, P.S-Kotwali, Dist:- Coochbehar purchased one Mahindra Jeeto Vehicle from Sona Wheels Pvt. Limited, Mahindra Authorised Sales and Service, Silver Jubilee Road, Subhach Pally, Ward No-4 P.O & Dist – Coochbehar (OP-1) on 01-01-18 for his livelihood through self employment which was registered under R.TO, Coochbehar having Registration No.WB63A-5617. In the month of April 2019, the said vehicle was out of order suddenly and the engine was not started. Then the Complainant Contacted the O.P.-1 and as per advice of the O.P.-1 the vehicle was handed over to Friends Motors as the vehicle was within warranty period. Subsequently, the O.P.-1 opened the engine of the vehicle and sent the engine to the Sona wheels Pvt. Limited (Mahindra Division) 3rd Mile, Sevok Road, Siliguri-734008 (OP-2). Thereafter, the OP-1 told the Complainant that the engine of the vehicle was defective which was required to be replaced. But after lapse of some months the O.P.-1&2 did not take any steps for repairing or replacing the defective engine and the vehicle was abandoned in open air. Despite repeated request, the OPs did not take any step towards repairing the vehicle. Now, the vehicle was in the custody of the O.Ps and Complainant suffered financial loss, mental pain and agony due to their negligence and deficiency in service. Afterward the Complainant filed a written complaint before Consumer Affair Department but the O.Ps did not settle the dispute after appearing in the said office. Later, the Complainant sent a lawyer's notice through his Ld. advocate Mr. S.K. Sah on 18-03-20 to the O.Ps but after receiving the notice the O.Ps gave false reply to the Complainant and did not repair the vehicle till today. These activities of the O.Ps were gross deficiency in service. Finding no other alternative, the Complainant filed the case before the commission. He prayed for a direction to the ops to repair the vehicle or replace the vehicle and to pay Rs 1000/- per day for loss and to pay Rs 100000/- for deficiency in service and mental agony and Rs 10000/- towards cost of litigation. The cause of action of the present ease arose on April 2019 when the Complainant's vehicle suddenly became out of order and on 18-03-20 when he sent lawyer’s notice and still continued.
Summons were served upon the O.Ps, All O.Ps contested the case by filing W.V, evidence on affidavit and written arguments except the O.P-4. The summon upon the O.P-4 was treated as served under section 27 of General Clauses Act as the S/R was endorsed with "Not found, returned to sender". So, the commission decided the case to be heard ex-parte against the O.P-4. The O.P.-1&2 marked their appearance in the instant case and filed the written version which was prayed to be treated as evidence by O.P1&2 later. The said prayer was granted by the commission. The O.P.-1&2 took defence plea that before filling this case, the Complainant filed written compliant before the office of the consumer Affairs and Fair Business Practices, Coochbehar for mediation but he did not bother to be present on the date of mediation. Thus, he totally suppresed the fact. The statement of the Complainant in the complaint petition exposed his lies. On one hand he said that he has handed over the vehicle to Friends Motors while on the other hand the O.P.-1 sent the engine to the O.P.-2. Just after one paragraph without explaining how the vehicle was brought to the O.Ps he claimed that the vehicle was in the custody of the O.P. and was stacked in the open place. The complainant no where disputed the content of the note sheet of the office of the Consumer Affair and Fair Business Practices, Coochbehar wherein it was written that the Complainant had not contacted the service centre of the O.P-1 & O.P-2 nor did he submit his vehicle to the O.P-1 rather he submitted his vehicle to Friend Motors, coochbehar. Irrespective of all these facts, the Complainant stated that the vehicle was in the custody of the O.Ps. This blatant lie made by the Complainant makes this case liable to be dismissed with compensatory cost.
The O.P-1&2 further stated that the Complainant made them parties to the present case unnecessarily and there was no cause of action that accrued against any of the O.Ps. Actually the dispute of the Complainant was with another party namely Friends Motors (a local garage) but since the said Friends Motors was no more in existence, the Complainant tried to twist the fact to drive unlawful gain from the present O.Ps. The said vehicle was registered with Regional Transport. Authority, Coochbehar and vehicle in question had a Commercial registration and accordingly the present complaint was not within the purview of the CP Act 2019. Moreover, the Complainant instead of handing over the vehicle directly to the O.Ps handed the same to one "Friend Motor" (unauthorized service centre) without knowledge of the O.Ps. The actual state of affairs was that the Complainant on his own accord handed over the vehicle to Friends Motors but when Friends Motors was unable to repair the said vehicle they brought the entire engine assembly to the O.P.-2 but soon took back the same stating that customer i.e. Complainant was not willing to pay any amount for the same. That Friend Motors being an unauthorised garage had opened the engine of the vehicle as such the warranty of the vehicle became void. The O.P.-2 had neither retained the engine nor was there any job card, opened against the said vehicle, which is a basic and mandatory document to show that a vehicle was delivered at Workshop/showroom for repair/service. If a vehicle is given for repair, the complaints will not be memorized by the mechanic. So, it is written on a document technically called job card. Each job card bears a unique number where a signature of the customer is taken and a copy of the same is given back to the Customer who may follow up with this document and reference number. As the Complainant could not produce a job card opened to that effect so the allegation of the vehicle being given to O.P. is preposterous and illogical. He was not able to produce any invoice or any other documents that the vehicle was handed over to the O.P. for repair. The Instant case is a blatant lie all through and due to the instant fact he had not been able to show that the vehicle was taken for servicing. Therefore, the case deserved to be dismissed.
The O.P-3 in his defence stated that the complaint is not maintainable and is liable to be dismissed as no cause of action has arisen in favour of the Complainant to file the present complaint against the O.P-3 as the O.P-3 and the complaint under reply is nothing but an abuse of the process of law. He also asserted that the content of some paragraph are unsubstantiated allegation made by the Complainant as such the O.P-3 places no reply, however, craves leave to deal with the same in course of the proceedings as and when need may arise or may be directed by the Ld. Commission for appropriate adjudication of the case, especially in the light of the service record maintained in the chronological order of the event beginning from the date of purchasing of the vehicle by the Complainant and thus the allegation of the Complainant are denied by the O.P-3. There are some averments of the Complainant which is beyond the purview of the O.P-3 because the responsibility of the O.P-3, being the manufacture of the subject vehicle ends with issuence the purview of the O.P-3 of the sales certificate for a vehicle, in favour of the authorised dealer. Such allegation of the present consumer complaint are also baseless and unjust and have been made in order to divert the attention of the commission from actual and the triable issues. The Complainant’s case does not allege any manufacture defect and or any kind of defect that is possible to be rectified under the warranty clause as contemplated by the Complainant. Therefore, the allegation of the present consumer complaint under reply are baseless and unjust and in view of the said fact, the O.P-3 is not at all necessary party to this case. However it is also stated that repairing of the said vehicle has lost warranty entitlement and such repairing is subject to payment of cost and expenses payable by the Complainant as the warranty of the said vehicle became void due to service done by a local garage. So, it is prayed by the O.P-3 that under the facts and circumstances that the instant complaint may kindly be rejected and dismissed in limine with exemplary costs and compensation upon the Complainant to be paid to the OP-3.
Perused the pleadings, and documents filed by the Complainant and O.Ps. Heard the argument advanced by the parties at length. The allegation and counter allegation by the complainant and O.Ps raise some important points regarding the conflicting matter which are required to be decided on the basis of the evidence available in the case record. With a view to adjudicating the case properly as well as the assessment of the evidence, the following points are required to be determined.
Points for determination
1) Whether there is any deficiency in service on the part of the O.Ps.
2) Whether the complainant is entitled to get any relief whatsoever.
Decision with reasons
Point No.1 & 2.
The Complainant, Mr. Pratap Mitra purchased the vehicle from the O.P-1(Anex-A) on 01-01-18 and the said vehicle was registered under RTO, Coochbehar having Registration No WB63A5617 (Anex-B). The vehicle was suddenly stopped and out of order in the month of April 2019 when it was within the warranty period of the vehicle. Anex-C clearly shows that the warranty was for a period of 2 yrs/40000km whichever occurred earlier from the date of retail sale to the customer. Anex-D is the free services coupon wherein it is seen that the vehicle was serviced three times freely by some other service centre and the last one on 13.10.18 at 17105 km by Friend’s Automobile, In the month of April 19 when the said vehicle did not start, the Complainant approached the O.P-1 and as per advice of the O.P-1, he handed over the vehicle to Friends Motor at coochbehar. But in the next paragraph of the complaint petition he stated that the after opening the vehicle the O.P-1 sent the engine to the O.P-2 and declared it defective which required to be replaced/changed. Anex-E is the note sheet of Consumer Affairs and Fair Business Practices where the Complainant alleged that after the vehicle being out of order and did not start he approached the O.P-1 to repair it but they demanded money for the same though the sand vehicle was within the warranty period. Thus, this statement of allegation is not in consonance with averments made in the complaint petition.
So, it is not clear that now who is the custodian of the said vehicle, the O.P-2 or Friend’s Motor, coochbehar. In the next paragraph, the Complainant again alleged that after lapse of some months the O.P-1 & O.P-2 did take any step for repairing the vehicle or replacing the defective engine and the vehicle was stacked in open place. So, it is presumed that the vehicle is in the custody of O.P-2 and remained there without repairing/replacing the engine. Now, the question arises how the vehicle came to the O.P-2 although it was sent to the Friends Motor as per advice of the O.P-1. From the statement of Mr. Sanjit Kr. Paul, Service GM of the O.P-2 in the note sheet of consumer Affair and Fair Business Practice, coochbehar it is seen that the Complainant had not contacted his service centre nor did he submit his vehicle to the O.P-1 rather he submitted his vehicle to some Friend’s Motors coochbehar who could not fix it and sought technical help from the O.P-1.
With reference to the above narrative, the Ld. Advocate of the O.P. No.1 & 2 referred few case laws of Hon’ble Supreme Court of India such as SJS Business Enterprise (P) Ltd. -Vs- State of Bihar & Others, MCD -Vs- State of Delhi & Others, K.D Sharma -Vs- Steel Authority of India Ltd. & Others, Dalip Singh -Vs- State of U.P & Others, Kishore Samrite -Vs- State of U.P & Others and Shri K. Jayaram & Others -Vs- Bangalore Development Authority & Others where in the Apex Court emphasis on suppression of fact by the litigant. Thus, this case falls within the guidelines laid down by Hon’ble Supreme Court of India.
At that point of time, the O.P-1 did not repair/replace under warranty as the warranty became void because of failure to get it serviced as par terms and conditions of the warranty and the vehicle was water logged due to manhandling. So, they demanded money for repairing/replacing as that would be a paid service. As per section 14-5 of standard warranty it is stated that this warranty shall not apply to and the company shall in no way be liable for any vehicle which shall have been repaired outside an authorised Mahindra service Station or which has been altered or modified or built upon in any way or which has been subject to misuse, negligence or accident. Therefore, as the vehicle was opened by an unauthorised service centre e.g. Friend Motor and they tried to repair it. But they could not repair the vehicle and sought technical help from the O.P-1. Hence, the warranty of the said vehicle was void and the Complainant ought to pay for it. The Complainant vehicle was serviced on three occasions by two authorised service centre of Mahindra by using free service coupon. Last one was from Friend’s Automobile, coochbehar. But in April 2019 when the vehicle did not start and became out of order, he went to some Friend’s Motor, coochbehar for repair/service which was not an authorised service centre of Mahindra Company which caused the warranty void. Therefore as per warranty clause, the Complainant can not claim his vehicle to be serviced free of cost although it was within warranty period. There is no specific allegation against the O.P. No.3 by the Complainant in the complaint petition.
The O.P. No.3 is the manufacturer of the said vehicle and there is no manufacturing defect detected by any of the service centre where the vehicle was serviced. If there was any manufacturing defect, the O.P. No.3 should been liable for the same.
Hence, the commission comes to a conclusion that there was no deficiency in service on the part of the O.P. No.1, 2 & 3 and as such the Complainant is no entitled to get relief what so ever.
In the result, the complaint case fails on contest.
Hence, it is
Ordered
That the complaint case no. CC/36/2020 be and same is dismissed on contest without cost.
D.A. to note in the trial Register.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official website: www.confonet.nic.in.
Dictated and corrected by me.
