SMT. RAVI SUSHA: PRESIDENT
Complainant has filed this complaint under Consumer Protection Act for getting an order directing opposite parties to replace the vehicle in dispute with a new one or pay an amount of Rs.15,00,000/- as compensation with interest together with cost of the proceedings to the complaint
Briefly stated, the facts of the case, are that the complainant is an agriculturist. He had booked a Diamond White colour Bolero ZLY 2WD7 Seater AC&PSBS3 on 02/02/2014 by remitting an amount of Rs.10,000/- through the 1st OP by attracting the adds given by 3rd OP in various medias. As per the mutual understanding between the complainant, 1st and 2nd OP, the above mentioned featured vehicle was delivered by the 2nd OP on 22/02/2014 by paying ready cash from their show room. The 2nd OP had duly issued vehicle data sheet dated 21/02/2014 certifying that the delivery of the vehicle, sale certificate dated 22/02/2014, certificate for complying the safety standards, Invoice dated 22/02/2014, cash receipt dated 22/02/2014 at the time of taking delivery of the vehicle. Thereafter, the vehicle was got registered with Registration No.KL59 J3339 on 24/03/2014. The chassis Number and the Engine Number are MAIXX2GPKE5A42792 and GPE4A75585 respectively. The accessories fitted in the vehicle are also approved by OPs. The complainant had spent a total amount of Rs.10.5 lakhs for the said vehicle. The complainant had availed a vehicle loan later on 10/11/2014 from Mahindra and Mahindra Fin Service Ltd, 4th floor, Noel House, Thrikkakara, Kakkanad, Kochi. The said loan is promptly repaying by complainant. After just 3 weeks of delivery the complainant was shocked by seeing that brown colour rust was formed on the roof, door, front, back and both sides glass frames, bonnet etc. Immediately the complainant had duly informed the matter to 1st and 2nd OPs. It is true that the 1st and 2nd OP had offered all measures to rectify the defects and subsequently the OPs requested the complainant to keep the issue as secret for safeguarding the goodwill and reputation of the company. The complainant agreed and patiently waits for a remedy. After repeated reminders, the 2nd OP had directed to bring the vehicle to his service station situating at Chunkam, Calicut,. Thereafter in the name of the so called repair works the 2nd OP intentionally kept the vehicle for a period of one month with him. The repair works was not satisfactory. No permanent measures were taken by the1st OP to resist the rust on the body and other parts of the vehicle. The service rendered by the 1st OP was quite unsatisfactory. In this circumstance, the complainant had registered a complaint with the 2nd OP and the same was numbered as CCF16A002332. The 2nd OP also assured all helps to replace the Jeep but no action has been taken by him so far. Thereafter new defects were started to appear day by day. The silencer pipe was broken and on another day the Lower Arm Bush of the vehicle was also broken. Some expert mechanics by seeing the rust and other complaints, opinioned that the vehicle delivered by the OPs may be an old one or a vehicle dumped in an open yard without proper care. Now the said vehicle is not fit for safe journey. Iron rust is spreading especially in the bottom, under the Bonnet, roof, door, door beading, front and back glass frames and all junctions etc. The OPs intentionally and deliberately cheated the complainant by delivering such old vehicle having serious manufacturing defect. The OPs totally failed to replace the vehicle with a new one or take measures to rectify the defects even after repeated requests and reminders. In this circumstance, on 08/02/2016 the complainant had sent a legal notice to the OP demanding replace the Bolero Jeep bearing Registration No. KL-59-J-3339 with a brand new one having same features within a period of 10 days from the date of receipt of the notice. They had duly received the notice but no action has been taken by them so far. Hence this complaint.
Reply is filed by OP No.1, where in it is stated that this OP submits that the ITL Motors Pvt. Ltd is known as M/s. Eram Motors which is the parent company of ITL motors Pvt. Ltd. This OP admits the purchase of Mahnndra Bolero Vehicle manufactured by OP No.3 by the complainant from this OP on 22/02/2014. However, the averment to the effect that complainant spent Rs.10.5 lakhs for the said vehicle is not correct and hence denied. Further denied the averment that after 3 weeks of delivery brown colour rust was formed on the roof, door, front, back and both sides glass frames, bonnet etc and when informed this OP and 2nd OP offered all the measures to rectify the defects etc. Further denied that OP1 assured all helps to replace the vehicle but no action was taken to fulfill the same. Further the averment that the OP deliberately cheated the complainant by delivering such an old vehicle having manufacturing defect and OP totally failed to replace the vehicle with new one or to take measures to rectify the defects even after repeated requests etc. are false hence denied. It is submitted that the vehicle sold to the complainant was a brand new vehicle which was manufactured on January 2014 and the same was delivered to the complainant on 22/02/2014. At the time of delivery there were no defects in the vehicle and the complainant took delivery with full satisfaction. If occurred any defect in the vehicle it is due to careless use of the vehicle by the complainant. The continuous use of the vehicle in the coastal area without proper maintenance may cause early rusting. When the complainant reported the matter this OP took proper measure to repair the same. Further averment to the effect that this OP kept the vehicle for one month to repair is not correct. The vehicle was produced to this OP on 21/10/2014 and same was returned after service on 28/10/2014, and at the time the vehicle plied more than 20000 Km. The complainant produced the vehicle for third service along with other running repair works. All the complaints were due to careless usage of the vehicle and the all the complaints were attended and cleared in the service. The complaint of silencer pipe and lower arm Bush is due to careless and rough usage of the vehicle in the off road. Later the complainant registered complaint as PSF16A002332. Immediately this OP attended the matter and offered to replace the door but the complainant had not produced the vehicle for repair work. Later he sent a lawyer notice by stating false allegation and filed this complaint. There is no deficiency of service or unfair trade practice form the side of this OP and prayed for the dismissal of complaint.
Reply is filed by OP No.3, where in it is stated that there is no privity of contract between the complainant and this OP. Therefore the complaint as against the OP3 is liable to be dismissed in limine on the above mentioned grounds. The OP3 submits that for the reason aforesaid, the OP is not vicariously or otherwise liable for acts of commission and omission if any of the OP No.1. The OP No.1 and 2 are not agents of this OP. This OP says that the allegation of the complainant that just after three weeks of delivery of the vehicle brown colour rust was formed on the roof, door, front, back and both side glasses frames, bonnet etc. is false and hence denied. The vehicle had undergone 1st free service on 28/04/2014 that is after 14 weeks of delivery of the vehicle on the completion of 5926Kms. As per vehicle history no complaint of rust is mentioned, the service was only for general check up, washing. The vehicle had undergone 2nd free service, on 18/06/2014, on the completion of 10203 Kms and in this service also no complaint with regard to rusting is mentioned. On the said service the complainant also requested for accidental repairs in which the complainant himself requested for painting and changing of certain parts of vehicle damaged in accident. Thereafter on the third free service on 21/10/2014 on completion of 20476 Kms, the complainant had raised the issue of body rust for the 1st time that is around 8 months from the date of delivery of the vehicle and after 4 months after accidental repairs. It is evident from the records that the 1st instance where some rust in the vehicle was indicated by the complainant in the 3rd free service, which is after the accident. The manufacturer and dealer being a customer friendly organization did the painting work of the vehicle during the 3rd free service, free of cost. The complainant is put to strict proof of the allegation that rust was found within 3 weeks from the date of delivery of the vehicle. Further submits that the complainant is put to strict proof of the allegation that the repair works are not satisfactory. It is submitted that there was no complaint of rusting due to any manufacturing defect. There was no rusting on the body and other parts of the vehicle as alleged due to any defect in the vehicle. It is denied that the 2nd OP assured the complainant all help for replacing the jeep. There is no truth in the allegation that new defects started to appear day by day. This OP No 3 says that the vehicle delivered to the complainant is an old one and was dumped in opened yard without proper care is frivolous and incorrect. The complainant is not entitled to get replacement of the vehicle with a new one as claimed. Mahindra BOLERO vehicles are having a standard warranty and the warranty policy is given 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 only obligation of the manufacturer is as per the agreed terms of the warranty. As the vehicle is a brand new and suffered no manufacturing defects at the time of delivery of the vehicle there is no basis for any allegation of cheating. Hence prayed for the dismissal of the complaint.
The parties led evidence, in support of their case. Complainant has filed his chief affidavit with documents. He has been examined as Pw1 and the documents marked as Ext.A1 to A11 and expert commissioner’s report with photos as Ext.C1. On the side of OPs, service manager of 1st OP filed his chief affidavit and was examined as Dw1 marked two documents from the side of OP NO.1 invoice and service history of the vehicle as Ext.B1 and B2 respectively. The customer care manager of OP No.3 has filed his chief affidavit and produced document. He has been examined as Dw2 and marked Ext.B3 warranty conditions. All witnesses were subjected to cross-examination for other parties.
After that the learned counsels of complainant and OP3 have filed their written argument notes OP No.1 argued the matter.
The learned counsel for complainant, submitted that the complainant approached OP No.1 for the purchase of Bolero ZLY 2WD7 Seater AC&PSBS3 manufactured by OP No.3. The cost of the vehicle was 10.5 lakhs. He had booked a diamond white colour vehicle by remitted Rs.10,000/- through 1st OP. As per the mutual understanding between the complainant, OPs 2 had delivered the vehicle to complainant on 22/02/2014 by paying ready cash from their showroom. After that complainant had availed vehicle loan on 10/11/2014 from Mahindra and Mahindra Fin Service Ltd. It is further submitted that just after 3 weeks of delivery rust was found on the roof, doors, around the glass beadings, bonnet etc. Immediately the complainant had duly informed the matter to 1st and 2nd OPs and subsequently a complaint had registered with the company 3rd OP and same was numbered as CCF16A002332. Initially the 1st and 2nd OPs had offered all measures to rectify the defects and for that the OPs requested the complainant to keep the issue a secret for safeguarding the goodwill and reputation of the company. After repeated reminders from the side of the complainant the 2nd OP had directed to bring the vehicle to his service station situating at Chunkam, Calicut. But nothing has been done by the 2nd OP for a period of one month. No permanent measures were taken by the 2nd OP to resist the rust on the body and other parts of the vehicle. The service rendered by the 2nd OP was quite unsatisfactory. Further submitted that one day when the complainant was riding the vehicle in issue to his estate near Madikkery, Karnataka, the silencer pipe was broken and on another day the lower arm bush of the vehicle was also broken. Some expert mechanics opinioned that the vehicle delivered by the OPs may be an old one or a vehicle dumped in an open yard without proper care and protection.
On the other hand OP No.1 though admitted the purchase of the vehicle in dispute from them, denied the averment of the complainant that after 3 weeks of delivery of the vehicle brown colour rust was found on the roof, door, front, back and both sides glass framer, bonnet etc and the said fact informed to them and they offered to rectify the defect. Further denied the allegation of complainant that they cheated the complainant by delivering an old vehicle having manufacturing defect. Further submitted that during 1st and 2nd service of the vehicle the complainant had not proposed any complaint regarding the body rust of the vehicle. Only at the time of 3rd service of the vehicle, complainant raised the complaint of rust. According to OP NO.1 and 2 at the time of delivery there was no defects in the vehicle and if there occurred any defect in the vehicle, it is due to careless use of the vehicle by the complainant in the coasted area without proper maintenance.
Learned counsel of OPNo.3 submitted that there is no privity of contract between the 3rd OP and other OPs, that the OP 1 & 2 are not agents of 3rd OP that the complainant is not a consumer under section 2(1) d (i) of the consumer Protection Act, 1986. Further contended that at the time of 1st free service on 28/04/2014 after 14 weeks of delivery of the vehicle at 5926 Kms and 2nd free service on 18/06/2014 at 10,203 Kms no complaint regarding rusting was made. In the 2nd service, the complainant requested for accident repairs in which the complainant himself requested for painting and changing of certain parts of the vehicle damaged in the accident. The 3rd free service was conducted o 21/10/2014 on completion of 20,476 Kms. around 8 months of delivery of the vehicle and after 4 months after accident repairs, when the complainant had raised the issue of body rust. The 3rd OP specifically contended that body rusting of every vehicle vary and differ due to several external factors such as water and supplements used to clean the vehicle on manner of usage, whether conditions, exposure industrial waste, long exposure to sunlight, accident damages etc. The vehicle history of the subject vehicle reveals that there are 4 or more accident repairs conducted in the vehicle. The damages caused due to usage of vehicle cannot be treated as manufacturing defect. The vehicle delivered to the complainant is a new vehicle and the chassis number specifies that the vehicle is manufactured in January, 2014 and the vehicle was delivered in February, 2014.
During pendency of the complaint, complainant has taken steps to appoint an expert commissioner to inspect the vehicle in dispute and to prepare the condition of the vehicle. The petition has been allowed and appointed Assistant Motor Vehicle Inspector Sub RTO, Taliparamba as expert commissioner. He was given due notice prior to inspect the vehicle and in the presence of both complainant and OPs, conducted inspection of the vehicle and filed the Expert report, marked as Ext.C1. In the report the Expert commissioner reported that “the corrosion is spreading metal portion of the vehicle shell (whole body), detailed as that Panel sheets rusted and paint peeled off, all doors rusted around the glass beadings and paint peel off, holes formed on the right hand and left hand sides of rear doors, due to rusting of panel sheets. Roof panel rusted and paint peel off, tail door rusted at the top side where brake light is fitted, above the wind shield glass. Right hand and left hand sides of bonnet bellow the wind shield glass, inner portion of bonnet, plat form below of driver seat, above running board all sides are rusted hence in my opinion due to corrosion is spreading all over the shell of the vehicle, shell should be replaced with another one for further use. It is also revealed that the rust found in this vehicle body panel and body parts are not normal to the age of this vehicle. This vehicle has deterioration much more than a normal vehicle to the similar age and make of the vehicle” and enclosed 28 photos of the vehicle for verification.
On verification of photos 28 in Nos. submitted by expert commissioner it is seen that most part of the vehicle got rusted.
Though OPs filed objection to the expert report, they have not make any steps to examine the expert to rebut the contents of the report. Hence the report can be taken as an unchallenged report and so there is no reason to disbelieve and discard Ext.C1 report. Even though believe the contention of OPs that, complainant has raised the body rust complaint only at 3rd free service time, it is clearly evident that the 3rd service was done within the warranty period issued by 3rd OP. Further OPs do not have a case that within the warranty period complainant has taken the vehicle to another service centre than OPs 1 and 2, for doing repair work or accidental work. Thus there is no evidence that the complainant has violated the warranty conditions. OPs raised another contention that if defects of rusting occurred in the vehicle, it is due to careless use of the vehicle by continuous use of the vehicle in the coastal area without proper maintenance. With regard to this point, from the evidence it is seen that complainant’s residential area is at Kudiyanmala and farm is at Chemberi. Here OPs failed to prove that the vehicle is using at coastal area or keeping it in coastal area. Moreover it is to be noted that the expert commissioner has executed the order in the presence of OPs also. Then OPs could have convinced the expert that the rusting shown in the vehicle was happened due to careless use of the complainant and by using it in coastal area. The expert has not mentioned nothing about the said contention. Hence OPs failed to prove the said contention. Further the vehicle history (Ext.B2 series) shows that the complainant raised the complaint of body rusting of the vehicle on 04/06/2015. Ext.C1 report shows that on 11/01/2017 the condition of the vehicle is in a worse condition. The expert commissioner has opinioned that due to corrosion is spreading all over the shell of the vehicle, shell should be replaced with another one for further use. It is also revealed that the rust found in the vehicle body panel and the body parts are not normal to the age of this case. This vehicle has deterioration much more than a normal vehicle to the similar age and make of the vehicle.
Thus Ext.C1 report would give an indication that since the corrosion in spread whole body of the vehicle, shell should be replaced with another one for further use. It is seen that there is no serious allegations about C1 report. So this commission have no hesitation to rely on Ext.C1 expert report submitted by Expert commissioner Valsarajan TP(assistant Motor vehicle Inspector).
The expert commissioner has categorically report about the replacement of whole body shell, of the Subject vehicle. The aforesaid finding of the expert itself would definitely give the inference that the OPs 1 and 2 effected sale of a vehicle, which was having inherent defects in body shell as well as parts are not normal to the age of the vehicle. Thus sale of the vehicle with inherent defect would amount to deficiency in service and unfair trade practice. The reason for corrosion as stated by the OPs due to several external factors such as water, supplements used to clean the vehicle on manner of usage, weather conditions, expose industrial waste, long exposure to sun light, accident damages, no valid and acceptable explanation is came out from the side of OPs. OPs could have proved their contention through expert commissioner. No attempt were seen made by the OPs at the time of inspection conducted by the expert commissioner. So it can very well come to a conclusion that OPs 1 to 3 being the authorized dealer, service centre and manufacturer of the vehicle Mahindra of Mahindra Ltd. committed deficiency of service and unfair trade practice in manufacturing of the vehicle with low quality material of body shell and body parts are not normal to the age of this subject vehicle on effecting sale of such a vehicle to the complainant.
From the aforesaid facts and circumstances of this case we are of the considered view that the allegation raised by the complainant is proved through the available documents especially Ext.C1 the expert commissioner’s report. Since there is no evidence, the body rusting was happened not due to the careless use of the complainant, it is due the manufacturing defect. Further expert has reported that the rust found in this vehicle body panel and body parts are not normal to the age of this vehicle, it is also manufacturing defect.
On the perusal of entire facts, circumstances and evidence on record, it can be found that there was deficiency of service and unfair trade practice on the part of OPs as dealer of the vehicle, and manufacturer of the said vehicle by effecting sale of a defective vehicle which was having inherent / manufacturing defects. The complainant suffered mental agony, inconveniences and financial loss on account of the aforesaid deficiency of service and unfair trade practice committed by OPs 1 to 3. So OPs 1 to 3 are to be made liable for the aforesaid deficiency of service and unfair trade practice on their part.
In the result complaint is allowed in part. Opposite parties are directed to replace the whole body shell of the vehicle with new defect free, quality material. If the complainant has already replaced it, opposite parties shall pay the expense incurred to the complainant for replacing the body shell by submitting bill for replacing it by complainant or by assessing an expert. Since Opposite parties have delivered a vehicle having manufacturing defect as stated above, the Opposite parties are directed to give Rs.1,50,000/- as compensation to the complainant. Opposite parties 1 to 3 are jointly and severally liable to comply the order. Opposite parties are further directed to pay Rs.10,000/- as cost of the proceedings of the case. The order shall be complied within 45 days, after receipt of this order. Failing which Opposite parties are directed to pay interest @ 9% per annum to Rs.1,50,000/- from the date of this order till realization. Complainant can file execution application for realization of the awarded amount against opposite parties 1 to 3 as per provisions in Consumer Protection Act 2019.
Exts.
A1- Driving liscence
A2- Copy of data sheet issued by company (subject to proof)
A3-Sale Certificate
A4-Certificate of safety standards- copy(subject to proof)
A5-Invoice
A6-Cash receipt issued by OPs
A7-Copy of RC
A8-Copy of Lawyer notice
A9-Postal receipts
A10-Acknowledgement care (2 in numbers)
C1- Commission report with photographs
B1-Invoice- form-8B
B2-Vehicle service history
B3-Warrenty condition
Pw1-Complainant
Dw1-Ramit Gangadharan-witness of OP
Dw2-Akash Das- witness of OP
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
