SMT. RAVI SUSHA: PRESIDENT
Complainant filed this complaint under Consumer Protection Act 1986, for getting an order directing the opposite parties to take back the vehicle from the complainant and return Rs.5,34,000/- as the price of the vehicle and Rs.3,00,000/- as compensation for mental agony together with cost of the litigation.
The facts, in brief of the complainant’s case that the complainant’s husband has a Rubber estate and he is conducting a Chicken Farm also. The complainant has a Mahindra Maximo Vehicle and her husband is using the vehicle for Agricultural and business purpose. In the month of December 2015, the complainant contacted Mr. Ajith, who is the sale executive of Mahindra Motors, for purchasing a new vehicle for the Agricultural and business purpose. Mr. Ajith informed that Mahindra company launching a new vehicle named Mahindra Supro Maxitruck T2 BSSIII WD and the said vehicle is very useful for the purpose of the complainant. Believing the words of Mr. Ajith the complainant has decided to purchase the said vehicle and booked the vehicle in the 1st week of December 2015 and the company assured that they will deliver the vehicle within a week. But the OP delivered the vehicle with No. KL 13 AG 465 to the complainant on 19/02/2016. On 22/02/2016 the complainant’s husband taken the vehicle to the Rubber estate, the vehicle was not in a position to move in the off road. Further two times also it was repeated. When the vehicle was loaded there was no problem to move the vehicle in off road. But the vehicle is in unloaded position it cannot be drive in off road. The complainant informed the matter to the OP. A mechanic and a Driver from Mahindra came to the complainant’s house and inspected the vehicle. They also understand the problem of the vehicle and informed the matter to the mechanical chief of the company.
Further as directed by the OP, the complainant’s husband came to the office of OP and informed that the complainant cannot use the vehicle and it has to be taken back the company and given a Mahindra pick up 4 wheel drive double gear vehicle to the complainant. But the OP not ready for the same and informed the complainant’s husband that they are ready to take back the vehicle after deducting Rs.1,00,000/- from the value of the vehicle. Further the OP not given the RC book of the said vehicle till this date.
The vehicle was used by the complainant only few days and for the last 4 months the vehicle is in the shed. The OP was not ready to solve the problem of the vehicle or to take back the vehicle from the custody of the complainant.
The complainant issue a lawyer notice dated 14/05/2016 to the OP. The OP received the notice on 24/05/2016, even then the OP not ready to settle the matter or replied so far. Hence this complaint.
After receiving notices 1st OP filed version admitting the purchase of Mahindra Supro Maxitruck T2BSIII WD Vehicle by the complainant from this OP on 19/02/2016.
This OP submits that the complainant and her husband came to office of this OP and enquired about the vehicle Supro Maxitruck T2 BSIII WD. The staff of this OP clearly informed about the technology and specification of the vehicle. At that time the staff clearly informed that the vehicle is not an off road vehicle. As the complainant’s husband is an experienced driver, he said that he has knowledge about the vehicles and this vehicle is fit for his needs. So they purchased the above vehicle. The averment in the complaint to the effect that the vehicle was purchased by the complainant on believing the words of the executive is not correct. When the complainant had complained about the vehicle immediately the OP send technician for inspection. From the inspection it is understood that there is no defect or complaint to the vehicle. The road to the rubber estate of the complainant’s husband was not a normal road and the above vehicle is not an off road vehicle, it is compatible to normal roads. The complainant decided to purchase the above vehicle for her on notion. Now the complainant needs an off road vehicle and so she has moulded up a false case to create a cause of action and filed this complaint as an experiment. The very intention of the complaint is to get unlawful gain from this OP and also to harass this OP. Complainant is not entitled to claim any relief and this OP is not liable to compensate the complainant as demanded and prayed for the dismissal of complaint.
On the basis of the contention in the version of OP No.1, complainant has taken steps to implead manufacturer of the vehicle and impleaded OP No.2 as per IA No.108/2020 dated 17/12/2020,
On receiving notice, OP NO.2 entered appearance through counsel and filed version. It is submitted by OP NO.2 that the transaction between Mahindra & Mahindra Ltd. and Eram Motors are on principal to principal basis. The dealers’ places bulk orders for vehicles and Mahindra & Mahindra Ltd. supplies vehicles in large numbers. Mahindra & Mahindra Ltd. does not know about the ultimate buyer of the vehicle at the time of purchase. The OP 2 never had any transactions with the complainant and therefore there is no privity of contract between the complainant and Mahindra & Mahindra Ltd. Therefore the complaint as against this OP is liable to be dismissed. It is submitted that the there is no deficiency in service involved in the case. It is learnt from the dealer that vehicle specification and technical details has been explained to the customer during their visits to the showroom. It is submitted that retail sales is in the exclusive domain of the dealer and the 2nd OP as manufacturer is not involved in such matters. It is submitted that said Mr. Ajith or Mr.Ashraf were not the employees of this OP and there was no transaction whatsoever with the complainant and this OP. It is further submitted that after purchasing a vehicle and registering the same, the complainant is not entitled to seek replacement of a vehicle with other model of the vehicle. Further submitted that the terms and conditions of warranty and warranty coverage is specifically motioned in the Owner’s Manual. The complainant is not entitled to make any claim against the terms and conditions of warranty as specified in the owner’s Manual. The present complaint is filed suppressing terms and conditions of warranty. The vehicle is in fully road worthy condition. It is submitted that het vehicle has covered 29723 Kilometers while reporting at the dealership lastly as on 15/10/2019.
The complainant is not entitled for any of the reliefs sought in the complaint. The complainant is not entitled to seek replacement of the vehicle as prayed in relief (a) or to get refund of a sum of Rs.5,34,000/- as the price of the vehicle and prayed of the dismissal of the complaint.
While pending of this case, complainant has been taken steps to appoint an expert commissioner. Petition was allowed, Mr. Biji PV MVI of RTO office Mattannur was appointed as expert commissioner. He inspected the vehicle in the presence of complainant and authorized representative of OP No.1 and filed report.
At the evidence time all parties led their evidence. Complainant’s husband filed chief affidavit and submitted documents. HE was examined as Pw1, and the documents were marked as Ext.A1 to A7 and expert commissioner’s report Ext.C1. OPs 1 and 2 filed separate proof affidavit and were examined as Dws 1 and 2 marked the warranty condition as Ext.B1.
After that complainant and OPs made oral argument and OP NO.2 filed written argument note also.
The case of the complainant is that she had purchased a new vehicle named Mahindra supro maxitruck T2BS111 WD for using for agricultural and business purpose to her husband, from the showroom of OP NO.1, manufactured by OP NO.2. The vehicle was not in a position to move in the off road. When the vehicle was loaded there was no problem to move the vehicle, in off road. But the vehicle is in unloaded position it cannot be drive in off road. Thus the vehicle did not performed as promised on behalf of OP NO.1. Complainant informed the matter to the OP. A mechanic and a driver form Mahindra came to the complainant’s house and inspected the vehicle. They also understand the problem of the vehicle and informed the matter to the Mechanical chief of the company.
The expert commissioner has reported that the odometer reading of the vehicle was 54117 kms at the time of inspection. Recommended tyre pressure specified by the manufacturer was maintained. Coolant level and oil level were maintained. After attaining normal temperature, the vehicle was driven through normal and rough roads nearby the testing station. On conducting the test the following complaint was noticed. The vehicle was found skidding while driving without load in graveled roads and muddy roads (off-road conditions). On perusing the service history of the vehicle it is noticed that this complaint was registered by the owner of the vehicle on 18/03/2016 (repair order No. RO16G014204) immediately after the purchase of the vehicle. Since the above said complaint exists in the vehicle, the arguments raised by the complainant is genuine.
Thus the expert has categorically stated that the vehicle was found skidding while driving without load in graveled roods and muddy roads (off road conditions) and the complainant has registered this complaint on 18/03/2016 immediately after the purchase of the vehicle.
Complainant’s case is that she had purchased the vehicle for using the agricultural and business purpose of her husband in off-road. Here the complainant does not have an allegation that the subject vehicle is having manufacturing defect. The expert commissioner also reported that the vehicle is not able to use in off-road condition. According to complainant the sales executives of OP NO.1 had given assurance to her and her husband that the particular vehicle is very useful for the purpose to use in the off road. On the other hand OP NO.1 contended that the staff of OP No.1 clearly informed about the technology and specification of the vehicle and clearly informed that the vehicle is not an off road vehicle. Then the husband of the complainant purchased the said vehicle as it is fit for his needs. But OP NO.1 could not prove the said contention by examining any staff of OP NO.1 present at that time. Dw1 the Assistance service manager of OP NO.1 deposed during cross-examination that tin page No.3 “വാഹനം വാങ്ങുന്ന സമയം Field executive ഉം വാഹന ഉടമയുമായിട്ടുള്ള ഇടപാട് എന്താണെന്ന് എനിക്കറിയില്ല. വാഹനം വാങ്ങുന്ന സമയം എന്തുതരം Vehicle ആണ് എന്ന് Sales executive ഉം വാദിയും പറയുന്നത് ഞാന് കേട്ടിട്ടില്ല Executive പറഞ്ഞതിന്റെ അടിസ്ഥാനത്തിലാണ്”. Hence from the evidence of Dw1 it is clearly evident that the complainant had purchased the vehicle as per the representation made by sales executive of OPNo.1. Further form the evidence it is revealed that the vehicle could not be used in the off road. Hence it is evident that though vehicle is not defective but not able to use in off road ie the vehicle is not an off road vehicle. So the misrepresentation of the sales executives of OP NO.1 dealer about the performance of the vehicle amounts to unfair trade practice. OP NO.1 alone held liable. Since there is no evidence that the subject vehicle is having manufacturing defect and more over the relationship between OPs 1 and 2 as principal to principal OP NO.2 is not held liable, for the misrepresentation made by OP No.1 by selling vehicle not able to use in the off road. Though OPs filed objection to expert report, the contentions in the objections could not discard the findings of the expert commissioner in Ext.C1 report.
On considering the facts and circumstance of this case, there is deficiency in service and unfair trade practice on the part of OP NO.1. Here complainant’s plea is that he had used the vehicle only few days and after that the vehicle is in the shed. But from the expert report it is seen that at the inspection time the odometer reading of the vehicle was 54117 KMS. Coolant level and oil level were maintained. Recommended tyre pressure specified by the manufacturer was maintained. The said contentions show that the vehicle is using by the complainant and her husband.
Hence we are not inclined to order to take back the vehicle by OP No.1 from the complainant and return the price of the vehicle. Our considered view is that OP NO.1 has to pay compensation to complainant, by making false representation and selling the vehicle not able to ply in off road.
In the result complaint is allowed in part. Opposite party No.1 the dealer of the vehicle, is directed to pay Rs.1,00,000/- towards compensation for mental agony, to the complainant. Opposite party No.1 is further directed to pay Rs.10,000/- towards cost of the proceedings of the complaint. Opposite party No.1 shall comply the order within one month from the date of receipt of this order, failing which the awarded amount carries interest @ 7% per annum from the date of this order till realization. Complainant is at liberty to execute the order as per provisions in Consumer protection Act 2019.
Exts.
A1-Invoice
A2-Copy of RC
A3-Insurance policy
A4-Copy of driving license
A5- Copy of lawyer notice
A6-Postal receipt
A7-Acknowledgement card
C1-Commission report
B1-Warranty policy
Pw1- Kunhikannan T- complainant’s husband
Dw1-Vinesh M-Witness of OP
Dw2- N Sreenivasan-OP2
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
