DATE OF FILING : 17.12.2010

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, IDUKKI

Dated this the 31^st day of March, 2011

Present:

SRI.LAIJU RAMAKRISHNAN PRESIDENT

SMT.SHEELA JACOB MEMBER

SMT.BINDHU SOMAN MEMBER

C.C No.280/2010

Between

Complainant : Biju A.T,

Aikkarathekkethil House,

Nedumkandam P.O.

Idukki District, Pin : 685 553 And

Opposite Parties : 1. The Manager,

T.V. Sundram Ayyankar & Sons,

Kattappana P.O.,

Idukki District, Pin : 685 508.

2. The Manager,

T.V. Sundram Ayyankar & Sons,

Kaimanam P.O.,

Thiruvananthapuram District.

(Both by Advs: Sony Sebastian & Mary John)

3. The General Manager/ Chief Executive,

Mahindra & Mahindra Ltd.,

Registered Office : Gate Way Building,

Appollo Bandar,

Mumbai – 400 039,

Maharashtra State.

(ByAdvs: Saji Mathew , Lissy M.M.

& Jufin George Valooran)

O R D E R

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

The complainant purchased a Mahindra Maximo vehicle (L.M.V. Goods Carriage) bearing register No.KL-37A-745 from the 3^rd opposite party through the 1^st opposite party at Kattappana. The loan for the vehicle was arranged from the Shriram Transport Finance. After a few days of purchase of the vehicle, the vehicle showed several complaints. The tyres of the vehicle were bulged outside and the iron threads of the tyres were appeared outside the tyre. So the four number of tyres became defective and the complainant purchased four new tyres for the vehicle. The pump of the vehicle became defective and it was changed by the opposite party after 40 days at their workshop at Thiruvananthapuram. Again the vehicle became break down and the complainant entrusted the vehicle on 23.11.2010 at Kattappana. It was reported by the opposite party in writing

that the parts were not available with them. The vehicle was delivered after repairing, only on 13.12.2010, eventhough they were told that it would be repaired on the very next day. Continuous defect of the vehicle was due to manufacturing defect and the complainant constrained to send a lawyer's notice on 1.12.2010 to the 1^st opposite party. The opposite party received the same and no reply was given. So this petition is filed for getting a fresh vehicle to the complainant and also for compensation for the delay in repair.

2. As per the written version filed by the 1^st and 2^nd opposite parties, the opposite party promptly serviced the vehicle when it was brought to the opposite party for service. The vehicle was being extensively used by the complainant and plying between Nedumkandam and Thiruvananthapuram. The complainant used to take his vehicle for service, both to the Kattappana and Thiruvananthapuram of T.V.S. Ltd. The 5,000 kms routine 1^st service of the vehicle was carried out by the complainant at Thiruvananthapuram, the 10,000 kms routine 2^nd service was carried out at Kattappana and the complainant took delivery of the vehicle to his full satisfaction. Thereafter on 14.10.2010, the complainant informed the 2^nd opposite party that the vehicle had some problem while it reached “Karette”, near Thiruvananthapuram and thereon the vehicle was brought to the 2^nd opposite party's workshop by 5.30 p.m. The next two days were pooja holidays, that is 15^th and 16^th, 17^th being Sunday, the workshop remain closed and the job card was opened on the next working day, that is on 18^th . On an inspection of the vehicle, it was seen that the Fuel Injection Pump of the vehicle which had covered 17,124 kms had some trouble and immediately after getting the approval of the 3^rd opposite party, the manufacturer of the vehicle, a standby FIP was fixed and the vehicle delivered to the complainant. Subsequently, the FIP of the vehicle was replaced with a brand new FIP under warranty by the manufacturer. The vehicle has never reported to these opposite parties with any complaint on the FIP. Thereafter, the vehicle was brought by the complainant for the 20,000 kms routine service to Thiruvananthapuram with general check up of the vehicle, he had also requested to check up the L/H side wheel and the 3^rd opposite party workshop after inspection of the L/H side wheel, replaced the wheel cylinder assembly and the other general works were also carried out. The vehicle delivered to the complainant to his satisfaction. However the complainant reported of tyre wear at Kattappana and a progressive investigation was necessary, to determine such a complaint of the nature of tyre wear, which can be detected only by driving the vehicle for some distance, the tie rod ends were ordered from the manufacturer of the vehicle and the same were replaced as soon as they were received from the manufacturer of the vehicle. However, as the complainant still complained of tyre wear, the vehicle was taken to the Thiruvananthapuram workshop of TVS and considering the complainant's request and to satisfy the complainant, the entire front suspension of the vehicle was replaced and the vehicle delivered to the complainant to his complete satisfaction. It is pertinent to note that the vehicle thereafter came for 30,000 kms routine service to these opposite parties and no complaint regarding the alleged tyre wear or the FIP were ever reported. Even now the complainant is extensively using the above vehicle and the same does not suffer from any defect or complaints as alleged. The allegation that the vehicle is bought for the self-employment of the complainant is not correct. The complainant is engaged in running a vegetable shop at Nedumkandam and is using the vehicle which is shuttling between Nedumkandam and Thiruvananthapuram by engaging a driver, for commercial purposes. The complaint is not at all maintainable. When the complainant complained of minor tyre wear itself, the wheel cylinder assembly was replaced and the vehicle returned to him to his full satisfaction. However, when he complained of tyre wear again, as a gesture of goodwill and to satisfy him, the front suspension as such was replaced and the vehicle never reported of any such complaint. The complainant in any case, never reported of any serious tyre wear or of changing the tyres alleging that they got worn out. If at all, the tyres had any defects, these opposite parties cannot be held responsible for the same. It is submitted that as per the warranty policy of the manufacturer of the vehicle, for proprietory parts like tyres, battery, alternator etc. manufactured by third parties, the respective warranty policy of the manufacturers will only apply. Further, excessive tyre wear may also happen due to the irregular driving habits of the driver like sudden acceleration, sudden breaking, over speed during curves, bad road conditions, over loading, not maintaining proper tyre pressure, lack of proper maintenance etc., for which the complainant can only be held responsible. The 1^st opposite party does not seem to have received any notice from the complainant. There is no manufacturing defect to the vehicle. The complainant never referred to the manufacturer of the tyres and an authoritative report obtained in respect of the defects in the same. The complainant was highly frivolous, vexatious and without any merit or bonafides and may be dismissed.

3. As per the written version filed by the 3^rd opposite party, the 1^st and 2^nd opposite parties shown in the complaint are mangers of M/s T.V. Sundaram Iyengar & Sons Ltd., Kattappana and Thiruvananthapuram respectively. The transactions of the company are with M/s T.V. Sundram Iyengar & Sons Ltd., which is also company incorporated under the Companies Act. The complaint is bad for mis-joinder and non-joinder of parties and hence the complaint is not at all maintainable. The vehicle is purchased by the complainant for commercial purpose and so the petition is not at all maintainable. There is no privity of contract with the complainant and 1^st and 2^nd opposite parties because the transactions between M/s Mahindra & Mahindra Ltd., and M/s T.V. Sundram Iyengar & Sons Ltd., are on principal to principal basis. The 1^st opposite party M/s T.V. Sundram Iyengar & Sons Ltd., used to place bulk orders for vehicles and the company used to supply vehicles in large numbers. The complainant is running the vehicle with paid drivers and this opposite party is not aware of the loan facility availed by the complainant from M/s Sreeram Transport, Kattappana or any other finance company. In the 5000 kms service of the vehicle which was done on 4.9.2010 and no complaint relating to wheels or suspension was reported. It is submitted that tyres are proprietory items manufactured by the respective manufacturers and Mahindra & Mahindra Ltd had never given any warranty for the tyres. The complaint may happen to the tyres due to operational abuse or many other factors including over loading, continuous usage in bad road conditions, improper maintenance etc.. The FIP was later replaced with a new one on its arrival at the expense of the manufacture, as a gesture of goodwill eventhough there is no warranty for proprietory items. The non-availability of the spare parts of the vehicle is not aware by the opposite party. Every new model of vehicle is released from the vehicle manufacturing company after a number of road tests and after getting approval of certifying authorities as specified in Rule 126 of Central Motor Vehicles Rules. As per the prevailing law a vehicle can be launched only after getting certification as provided under the Central Motor Vehicle Rules and otherwise the vehicle will not be registered by the concerned transport authority. The “Mahindra Maximo” vehicle manufactured by M/s Mahindra & Mahindra Ltd is performing within expectation and there is no complaint to such model of vehicle as alleged. The standard warranty for Mahindra Maximo vehicles is for one year or 40000 kms whichever occurs earlier from the date of delivery of the vehicle to the original purchaser. The warranty obligations are specified in the warranty policy. The terms and conditions of warranty and the extent of warranty is also specified in the standard warranty. The complaint has been filed suppressing the terms and conditions of warranty. The complainant never contacted the company or its officers with any grievance. Hence no proof adduced by the complainant that he had a loss of Rs.75,000/- due to the delay in repair of the vehicle. Hence the petition is not at all maintainable.

4. The point for consideration is whether there was any deficiency in service on the part of the opposite parties, and if so, for what relief the complainant is entitled to?

5. The evidence consists of the oral testimony of PW1 and Exts. P1 to P4 marked on the side of the complainant and oral testimony of DW1 and Exts. R1 to R6 marked on the part of the opposite parties.

6. The POINT :- The complainant produced evidence as PW1. PW1 purchased the vehicle on 29.7.2010 from the opposite party through the 1^st opposite party. Ext.P1(series) are the copy of the RC Book of the vehicle, tax token and insurance policy of the vehicle in the name of the complainant. After few days of the purchase of the vehicle, the vehicle showed several defects. The tyres of the vehicle bulged outside and all the tyres were became defective and so the complainant purchased fresh tyres for the vehicle. Ext.P3(series) are the photographs of the vehicle showing the defect of the vehicle. Outside portion of the tyres appeared the iron rods, fuel injection pump of the vehicle also became defective and so the complainant entrusted the vehicle at Kattappana in their office. But they have transferred the vehicle to the head office at Thiruvananthapuram and got repaired only after 14 days, on 23.11.2010. When the vehicle was entrusted to the opposite party's office at Kattappana for the defect of the vehicle, the opposite party reported that the parts were not available with them and a letter was given for the same. Ext.P2 is the letter given by the 1^st opposite party for the non-availability of parts of the vehicle. It was repaired and delivered only on 13.12.2010. A notice was issued by the complainant to the opposite party on 1.12.2010 informing the continuous defect of the vehicle. The opposite party received the notice and nothing was done for the same. Ext.P4 is the letter issued by the complainant to the 1^st opposite party on 1.12.2010. On cross examination by the learned counsel for the opposite parties, PW1 admitted that the vehicle is plying between Thiruvananthapuram and Nedumkandam and the vehicle was also serviced at 1^st and 2^nd opposite parties' office. There was no complaint at the time of service and it was satisfied by the complainant. After running 5000 kms, the vehicle showed defect. The defect of the vehicle was informed to the opposite party only after the 2^nd service of the vehicle, while the vehicle was returning from Thiruvananthapuram. The fuel pump was became defective and the vehicle was entrusted to the opposite party for repairing and after the repair there was no complaint noted in the fuel pump. The warranty details were not produced by the complainant. The vehicle was not inspected by an expert. No bill for the purchase of the tyres were produced by the complainant. The defect of the tyres were not noticed to the manufacturing company of the tyres. PW1 also admitted that the tyre can be defective if any misuse of the driver and the conditions of road. The Service Engineer of the 1^st and 2^nd opposite party is examined as DW1. The defect of the vehicle was informed by the complainant only on 14.10.2010 while the vehicle was driving to Thiruvananthapuram and brought to the 2^nd opposite party in the evening. But 15^th and 16^th were pooja holidays and 17^th was Sunday and the workshop remain closed and the job card was opened on the very next day that is on 18^th. On an inspection of the vehicle, in the fuel injection pump of the vehicle, some trouble was noticed and immediately after getting the approval of the 3^rd opposite party, the manufacturer of the vehicle, a standby FIP was fixed and the vehicle delivered to the complainant. Subsequently, the FIP of the vehicle was replaced with a brand new FIP under warranty by the manufacturer and the vehicle has never reported any complaint about the same. Thereafter, the complainant produced after 20,000 kms routine service and requested to check up L/H side wheel. After inspection of the side wheel they have replaced the wheel cylinder assembly and the other general works were also carried out. The complainant reported about the tyre wear at Kattappana and as a progressive investigation was necessary about the tyre wear and tie rod ends were ordered from the manufacturer of the vehicle and the same were replaced as soon as they were received from the manufacturer. Again there was complaint and the vehicle was taken to the Thiruvananthapuram workshop of TVS and considering the complainant's request and to satisfy the complainant, the entire front suspension of the vehicle was replaced

and the vehicle delivered to the complainant to his complete satisfaction. The vehicle was thereafter came for 30,000 kms routine service to these opposite parties and no complaint regarding the alleged tyre wear or the FIP were reported. The complainant is extensively using the vehicle and the same does not suffer from any defect or complaints as alleged and it is shuttling for commercial purposes. The owner's manual of the warranty policy of the Maximo vehicle issued by the 3^rd opposite party is produced and marked as Ext.R1. The job card for the 1^st service of the vehicle and the gate pass of the same are marked as Ext.R2(series). The job card and the gate pass of the vehicle for the 2^nd service are marked as Ext.R3(series). The job card and other details of the service on 17124 kms are marked as Ext.R4(series). The job card and other details of the service on 20174 kms are marked as Ext.R5(series). The job card and other details of the service on 5.2.2011 are marked as Ext.R6(series).

As per the complainant, the vehicle was in continuous mechanical trouble after a few days of the purchase of the vehicle and the matter was reported to the opposite party. Fuel pump of the vehicle was became trouble and it was replaced by the opposite party. The tyre of the vehicle became defective, bulged outside and it was noticed to the opposite party, but it was not cured by them. The vehicle while giving for service to the opposite party by the complainant, they have delayed for 35 days for getting deliver of the vehicle after repair and it caused heavy loss to the complainant. As per the opposite party, the fuel injection pump of the vehicle was replaced as per the request of the complainant in warranty with free of cost and no complaint was noticed by the complainant after the same and it also admitted by the complainant. As per the Ext.R2 job card, there is no complaint reported in the 1^st service. In the 2^nd service conducted on 21.9.2010 in the job card it is written the complaint as “tyre wear check, indicator lever check, top paint checking maximo etc.”. The fuel injection pump assembly was replaced on 7.12.2010 and in the service on 3.11.2010, the wheel cylinder assembly was done. There is no defect in the fuel injection pump on 21.10.2010. As per the complainant, the vehicle is having manufacturing defect, because 4 tyres of the vehicle became damaged and bulged outside, iron rods were appeared on the tyre. But the fuel injection pump was replaced by the opposite party and there is no complaint for it after the same. As per the opposite party, they have replaced entire front suspension of the vehicle, replaced cylinder assembly with free of cost, tie rod ends were also replaced and the complainant received the vehicle with full satisfaction. As per the complainant, he purchased new tyres, but no bills for the same has been produced by the complainant showing the same. The complainant never produced any expert evidence to show that the vehicle is having some manufacturing defect and no such inspection has been done by complainant. No commission application was filed by the complainant to appoint an expert to inspect the vehicle and show that there is manufacturing defect. The opposite party admitted that there was a complaint in the fuel injection pump and it was replaced by the opposite party and it is also admitted by the complainant. The opposite party also admitted that the complaint about the tear and wear of the tyres and it was completely cured and delivered after full satisfaction of the complainant. As per the complainant, there is a long delay caused to the vehicle for the repair and it caused a heavy loss to the complainant. But there is no evidence to show that long delay was caused and it was due to the latches from the part of the opposite party for the service and caused loss of issuance. The complainant himself admitted that the vehicle is plying from Nedumkandam to Thiruvananthapuram and now also the vehicle is using for that purpose and it is not kept idle in any workshop for mechanical trouble. The complainant is using the vehicle for shuttling and there is no evidence produced by the complainant to show that the vehicle is having manufacturing defect. If some defect was caused to the vehicle, it was cured by the opposite party, some delay was caused because the opposite party has closed the workshop for the pooja holidays. So we think that there is no manufacturing defect to the vehicle and no deficiency is proved against the opposite parties.

Hence the petition dismissed.

Pronounced in the Open Forum, on this the 31^st day of March, 2011

Sd/-

SRI. LAIJU RAMAKRISHNAN (PRESIDENT)

Sd/-

SMT. SHEELA JACOB (MEMBER)

Sd/-

SMT. BINDHU SOMAN (MEMBER)

APPENDIX

Depositions :

On the side of the Complainant :

PW1 - Biju. A.T.

On the side of the Opposite Parties :

DW1 - Renjith. N.

Exhibits :

On the side of the Complainant :

Ext.P1(series) - Copies of R.C. Book of the vehicle, tax licence of the vehicle, policy schedule

cum certificate of Policy of the vehicle and collection receipt cum adjustment

voucher of the opposite party.

Ext.P2 - The letter given by the 1^st opposite party dated 23.11.2010.

Ext.P3(series) - The photographs of the vehicle showing the defect of the vehicle - 7 Nos.

Ext.P4 - The letter issued by the complainant to the 1^st opposite party on 1.12.2010.

On the side of the Opposite Parties :

Ext.R1 - Owner's manual of the vehicle.

Ext.R2(series) - The gate pass, parts indent, job card, vehicle care inspection check list and

kanban sheet of the 1^st free service of the vehicle.

Ext.R3(series) - The job card and vehicle care inspection check list of 2^nd free service

of the vehicle.

Ext.R4(series) - The gate pass, parts indent, job card, vehicle care inspection check list,

kanban sheet and other details of the service on 17124 kms of the vehicle.

Ext.R5(series) - The gate pass, parts indent, job card, vehicle care inspection check list and

kanban sheet of the 4^th free service of the vehicle.

Ext.R6(series) - The job card and other details of the service on 5.2.2011.