IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 26th day of August, 2021.
Filed on 13-11-2018
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Sholy P.R, B.A.L,LLB (Member)
In
CC/No.291/2018
between
Complainant:- Opposite parties:-
Sri.Aneesh.M.N 1. The Manager
S/o Mohanan TV Sundaram Iyengar &
Netumpurathu (H) Sons Pvt. Ltd
Valamangalam North Mahindra,
Thuravoor.P.O Door No.50/1897-1899
Cherthala, Alappuzha V.I.Pady, Cheranalloor Road
(Adv. Sri. Harish Chand) Near Edappally Railway Gate
Kochi.
(Adv. Sri.P.V.Thomas)
2. The Manager
Mahindra & Mahindra Ltd
Gate way Building
Appollo Bunder
Mumbai-400039,
(Adv. Jayan.C.Das)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly discussed are as follows:-
On 21.11.2016 complainant purchased an Alfa goods model Mahindra 3 wheeler vehicle from the 1st opposite party. It was manufactured by the 2nd opposite party. After completing 791 Kms on 09.01.17 it was found that the rear tyres of the vehicle were badly damaged. Due to the extra ordinary damage caused to the tyres, complainant contacted the 1st opposite party on 09.01.17 itself and the vehicle was handed over for necessary repairs. The service personnel checked and found that the alignment issue was due to the ‘RH arm bush’ complaint. Instead of replacing the alignment in full, they replaced the bush alone and having done necessary repairs including replacement of rear tyres, the vehicle was returned to the complainant. It was assured that the irregularities were cleared and it will not happen in future. The above manufacturing defect was noticed on 09.01.17 ie, about 49 days from the date of purchase of the vehicle. The defect is seen now a day’s also. The repairs made by replacing the bush instead of replacing the alignment in full is nothing but deficiency in service on the part of 1st opposite party. The assurance made by the service personnel of 1st opposite party is in vain. Complainant is unable to manage the vehicle due to the recurring defect of the vehicle. The defect can be cured permanently only if the alignment is replaced by a new one.
Complainant is entitled to get the vehicle in good condition at the expense of the opposite parties. Though the complainant issued a lawyers notice demanding repairs, 2nd opposite party sent a reply contenting false allegations. Complainant is suffering huge loss by replacing the rear tyres within 4 to 6 months. Complainant is facing a loss of Rs.10,000/- for changing the rear tyres and for maintaining the vehicle. Complainant sustained mental stress for which he is calculating an amount of Rs.10,000/-. Hence opposite parties may be directed to cure the defects of the vehicle by replacing the alignment. Complainant may be allowed an amount of Rs.1,00,000/- for maintenance and replacing tyres and an amount of Rs.25,000/- for the mental stress.
2. 1st opposite party though filed vakalath did not file version.
2nd opposite party filed a version mainly contenting as follows:-
2nd opposite party is a public limited company incorporated under the companies Act and the director or employees cannot be fastened with any liability for any of the transactions of the company. Since the vehicle was purchased for commercial purpose, the complaint is not maintainable. Complainant is not a consumer. The transactions between Mahindra & Mahindra Ltd. and M/s T.V Sundaram Iyyengar & Sons are on principal to principal basis.
Complainant had purchased a Mahindra Alpha goods vehicle from the 1st opposite party on 21.11.2016. The warranty of the vehicle was limited to 8 months for unlimited kilometers whichever is earlier. Hence the manufacturer’s warranty of the vehicle expired on 20.07.2017. The tyre wear and tear issue was due to the RH side alignment and after doing necessary inspection, the dealer’s technician changed the bush suspension arm assembly under warranty. It is learnt that the complainant is using the said vehicle with extra fabrication, since the vehicle is used for gas cylinder (LPG) load transportation. There was no need for any replacement of alignment in full as claimed.
There is no manufacturing defect to the vehicle. The vehicle was last reported to the workshop on 25.05.18 at 21234 kilometers after expiry of warranty stating LH tyre wear and on necessary inspection, it was noticed by the dealer technician that the complainant had replaced SUS arm bush by non-genuine parts from unauthorized workshop. Complainant had done servicing at unauthorized service centers using non genuine parts. There was no issue for the alignment which requires its replacement as a whole. This opposite party had given detailed reply to the notice dated 08.08.18.
It is denied that complainant is replacing rear tyres within 4 to 6 months causing huge loss. It is denied that the complainant is facing loss of Rs.10,000/- for changing the rear tyres and maintenance of the vehicle. There was no deficiency of service and so complainant is not entitled for compensation. Complainant is not entitled for any relief and so the complaint may be dismissed with compensatory cost.
3. On the above pleadings following points were raised for consideration :-
- Whether the complainant is entitled to get an order to replace the alignment in full as prayed for?
- Whether the complainant is entitled to realize an amount of Rs.1,00,000/- for maintenance and replacing tyres?
- Whether the complainant is entitled to realize an amount of Rs.25,000/- for deficiency of service?
- Reliefs and costs?
Evidence in this case consists of the oral evidence of PW1 and Exts.A1 to A8 series from the side of the complainant. Opposite parties has not adduced any evidence either oral or documentary.
Point Nos.1 to 3
PW1 is the complainant in this case. He filed an affidavit in tune with the complaint and marked Ext.A1 to A8 series.
PW1, complainant in this case purchased an Alfa Goods model Mahindra 3wheeler from the 1st opposite party on 21/11/2016. It was manufactured by the 2nd opposite party M/s Mahindra & Mahindra Ltd, Mumbai. On 9/1/2017 when the vehicle had run 791 kms rear tyres of the vehicle were badly damaged and it was entrusted for repairs with the 1st opposite party. The 1st opposite party after inspecting the vehicle found that the complaint was due to right hand arm bush. It was changed during the warranty period free of cost and the vehicle was returned on 11/1/2017. Now the case of the complainant is that the vehicle is having alignment problem even now also. The complaint is shown repeatedly. Hence he filed the complaint for a direction to the 1st opposite party to replace the alignment. According to PW1 he had changed tyres several times. He is seeking an amount of Rs.1,00,000/- for the maintenance and replacement of tyres and Rs. 25,000/- as compensation for deficiency of service. 1st opposite party though filed vakalath did not file version. 2nd opposite party who is the manufacturer contented that the relationship between 1st opposite party and 2nd opposite party is principle to principle basis. Only if it is brought to the notice that there is any manufacturing defect to the vehicle they are liable to repair the same during the warranty period. Since complainant failed to prove any mechanical defect the complaint is not maintainable against the 2nd opposite party.
On going through the complaint it is noticed that the 1st opposite party is having its office at Kochi and the 2nd opposite party is having its office at Mumbai. Complainant is residing at Cherthala in Alappuzha District. The vehicle was purchased from the 1st opposite party who is having its office at Kochi and the maintenance was also done there. The complaint is silent about where the cause of action, wholly or in part, arised. As per Sec.11(2)(a) “Complaint has to be filed where the opposite party resides or the cause of action, wholly or in part ,arises.”
Here in this case since both the opposite parties are residing outside the limits of this Commission and so that complaint is silent about the cause of action it is not known how it is maintainable before this Commission.
Coming to the merits of the case according to PW1 the vehicle was purchased on 21/11/2018 and it was having a warranty of 8 months. On 9/1/2017 ie, on the 49th day of purchase when the vehicle had run 791 kms it was noticed that there is uneven wear and tear to the rear tyre. On 9/1/2017 it was entrusted at the workshop of 1st opposite party and after inspecting it was found that the complaint was due to ‘RH arm bush’. It was changed and the vehicle was returned on 11/1/2017. According to PW1 even now also the same complaint is occurring and has to change the tyres for which he has to spend a lot of money. During cross examination PW1 admitted that expert evidence is not available to prove the defects of the vehicle. Complainant has not taken pain to appoint an expert to inspect the vehicle and produce the report showing the defects of the vehicle. According to him there is problem for alignment but it is not known from where he received such information. He has not produced any document to show that the vehicle is having any manufacturing defect to fasten the liability upon 2nd opposite party who is the manufacturer.
When the defects occurred PW1 had sent Ext.A5 notice on 2/7/2018 to the opposite parties for which on 11/7/2018 2nd opposite party had sent Ext.A8(a) brief reply and on 8/8/2018 Ext.A8(b) detailed reply. The vehicle was purchased on 21/11/2016 with a warranty of 8 months. Ext.A5 notice is seen sent on 2/7/2018 ie, after the warranty period informing that there was complaint during 2017. PW1 admitted that even now also he is using the vehicle. PW1 was examined before Commission on 8/3/2021. So it can be seen that even after 5 years of purchase the vehicle is in running condition. The so called defect in alignment is not brought to the notice of the Commission by producing expert evidence. It is to be remembered that when the complaint occurred on 9/1/2017 it was promptly attended by the 1st opposite party by changing the bush free of cost during the warranty period and the vehicle was returned on 11/1/2017. Though PW1 has got a case that he has to change the tyre occasionally no evidence is available except his interested testimony. It is to be read along with the admission of PW1 that even now also ie, after 5 years of purchase he is using the vehicle. In said circumstances we are of the opinion that complainant could not prove his case as alleged and so he is not entitled for any relief. These points are found against the complainant.
6. Point No.4:-
In the result complaint is dismissed. Parties are directed to bear their respective cost.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Commission on this the 26 th day of August, 2021.
Sd/-Sri.S.Santhosh Kumar(President)
Sd/-Smt. Sholy.P.R(Member)
Appendix:-Evidence of the complainant:-
PW1 - Anish(Complainant)
Ext.A1 - Owners Manual
Ext.A2 - Retail Invoice dtd. 11/1/2017
Ext.A3 - Copy of Repair Order Form
Ext.A4 - Letter dtd. 13/9/2017
Ext.A5 - Notice dtd.2/7/2018
Ext.A6 - Postal Receipt
Ext.A7 - Acknowledgment card
Ext.A8 series(a) - Brief Reply letter dtd. 11/7/2018
Ext.A8(b) - Detailed Reply dtd. 8/8/2018
Evidence of the opposite parties:- Nil
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-