BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 7^th day of April 2018

                                                                                                Filed on : 27.10.2015

PRESENT:

Shri. Cherian K. Kuriakose,                                                 President.

Shri. Sheen Jose,                                                                 Member.

Smt. Beena Kumari V.K.                                                      Member.

                        C.C.No. 711/2015

                                               O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had purchased a Mahindra XUV- 500 Vehicle from the 2^nd opposite party outlet Thiruvananthapuram on 28.06.2012 and the vehicle was manufactured and marketed by the 1^st opposite party. The vehicle was provided with extended warranty and Road Assistance since the date of its delivery and the same is valid up to July 2017.  The vehicle showed some multiple complaints after taking delivery especially the brake system problem and also popping and hissing sounds emanated from the vehicle.  The complainant has been reported to the 2^nd and 3^rd opposite party’s at the time of routine check-up and they informed to the complainant that whole complaints in the vehicle were intact.  The complainant entrusted his vehicle to the 2^nd and 3^rd opposite party’s service centre on 04.10.2012, 23.03.2013,19.04.2013, 15.05.2013, 30.07.2013, 25.09.2013, 08.11.2013, 26.03.2014, 22.05.2014, 10.06.2014, 08.08.2014, 24.10.2014, 21.12.2014, 30.12.2014, 01.04.2015, 29.05.2015, 18.06.2015, 23.06.2015, and 29.06.2015 respectively  for verification of various complaints including brake system.  The 2^nd and 3^rd opposite parties are the authorized dealers of the 1^st opposite party.  The vehicle had valid insurance policy till 26.06.2016 issued by the National Insurance Company Ltd. On 28.05.2015 when the complainant was travelling to a tourist centre, Athirapally with family and friends, while driving the vehicle with average speed, suddenly the brake system of the vehicle completely failed and the brake pedal gone all the way to the floor.  The complainant is an expert driver and by his proficiency in driving he managed to control the speed of the vehicle by downshifting and finally the vehicle stopped by hitting the side of the mud and some passengers also sustained minor injuries also.  The incident caused mental shock, distress and pain to the complainant and his family, including the persons who travelled along with the complainant. The complainant entrusted his vehicle to the 2^nd opposite party’s service centre on 28.05.2015 and the vehicle was redelivered to the complainant on 03.06.2015 after informing him that all defects were rectified. It is also submitted that the complaints still exist in the vehicle and the complaints were not fully rectified, besides some other complaints were also developed after the delivery of the vehicle by the 2^nd opposite party, such as rat in infestation etc. The vehicle was again entrusted to the 3^rd opposite party’s service centre at Kottayam on 18.06.2015 for the above brake problems in addition to that of the fuel gauge error, head light complaints, remote key problems, DTE error etc. various complaints were recorded in Manuel repair order form dated 18.06.2015 and the vehicle was delivered to the complainant on 25.06.2015 after informing that all complaints were rectified.  Again the complainant faced the same problems in the vehicle even after entrusting it to the 2^nd opposite party’s service centre at Kottayam on 29.06.2015 and the vehicle was kept at the workshop till 11.07.2015 and re-delivered to the complainant on 11.07.2015 without rectifying any of the defects and the problems still persists. It is evident that the above vehicle was kept under the custody of the 2^nd and 3^rd opposite parties for more than 28 days which caused great monetary loss, mental agony, and hardships to the complainant.  The complainant is a business man and he had suffered a lot of inconvenience due to the non-availability of vehicle and also spent hard-earned money to hire taxi for his day to day affairs. The complainant had sent a legal notice to the opposite parties and he sought for compensation due to the negligent attitude shown by the opposite parties.   Inspite of receipt of advocate notice, the opposite parties did not take any action to solve the complaints raised by the complainant.  Thus the complainant is before us seeking direction to the opposite parties to pay Rs.15 lakhs as compensation for mental agony and hardships suffered by him.  He also sought for an amount of Rs. 4,20,000/- towards expenses incurred for rented vehicle for 28 days.    Further he prayed an amount of Rs. 5000/- towards cost. Hence this complaint.

2)                Version filed by the 1^st opposite party is as follows:

It is submitted that the transactions between the 2^nd and 3^rd opposite parties and the 1^st opposite party are on principal to principal basis.  The opposite party is not having any direct transactions with the complainant and therefore there is no privity of contract between the complainant and the 1^st opposite party.  Therefore it is contended that this complaint as against the 1^st opposite party is liable to be dismissed in-liminie on the above mentioned ground. The allegations raised by the complainant that since the date of delivery, the vehicle had multiple complaints especially to the brake system, hearing of popping and hissing sounds etc were incorrect and hence denied.  It is learnt that the complainant entrusted the vehicle to the 2^nd and 3^rd opposite parties service centers on different dates from 04.10.2012 to 29.06.2015 for routine services and minor running repairs.  It is contended that there was no major complaints pointed out by the complainant at any time.  The 1^st opposite party denied the allegations of the complainant that the vehicle showed various complaints including brake system.  It is learnt from the 2^nd opposite party that the vehicle was reported at TVS Thallakem workshop on 29.05.2015.  Only the brake power assistant function was malfunctioning due to the vacuum booster failure. It is also submitted that the failure of vacuum booster will not affect the efficiency of the brake and it only results in harder pedal due to less assisting by vacuum booster pressure. The above defects had not been occurred due to any manufacturing problem. The allegation of the complainant that the 2^nd opposite party informed the complainant that the vehicle had brake fluid leakage and master cylinder problem was not admitted by the 1^st opposite party. The 1^st opposite party denied the rat infestation due to the manufacturing defect of the vehicle as alleged by the complainant. It is submitted that the problem of rat entry may occur due to improper usage of air recirculation vent in on position which can lead to bent being open to expose to fresh air which is a function in modern vehicles.  The use of food/beverages inside the vehicle may also be a reason for rat entry.  The external wiring for sensors are exposed and may not be covered always for the purpose it serves.  The 1^st opposite party also contended in their version that the allegation of the complainant that the vehicle was produced before the 3^rd opposite party on 18.06.2015 due the brake problem in addition to that fuel gage error, headlight complaints, remote key problem, DTE shows error etc. and that the vehicle was delivered on 25.06.2015, were also denied by the 1^st opposite party. It is submitted that the 1^st opposite party is not aware of the allegation that the vehicle was kept in the custody of the 2^nd and 3^rd opposite party’s workshop for more than 28 days and that caused great monetory loss, injuries and hardships to the complainant and hence not admitted.  The 1^st opposite party is not aware of the profession of the complainant and his business, as alleged.  There is no relevance for the allegation that the vehicle is necessary for the daily use which is available for day to day business purpose.  It is evident from the averments in the complaint that use of the vehicle was for commercial activities, which makes the complainant out of the purview of the  definition of ‘consumer’ in the Consumer Protection Act. The allegation that the complainant had hired vehicles for personal and business reasons and spent Rs.15,000/- daily for 28 days and paid Rs.4,20,000/- is not admitted by the 1^st opposite party.  It is submitted that exorbitant claims are made with malafide intentions therefore; the 1^st opposite party is not liable to compensate any such claims.  The only obligation of the 1^st opposite party is as per the conditions of warranty issued by the 1^st opposite party. The 1^st opposite party denied the allegation of the complainant that the vehicle had suffered from manufacturing defects.  The vehicle in question delivered by the 1^st opposite party to the dealer was free from any manufacturing defects. The 1^st opposite party is no way liable to pay any compensation and costs to the complainant as prayed for in this complaint. The Hon’ble Forum may be pleased to uphold the submission of the 1^st opposite party and the complaint may be dismissed with compensatory costs to the 1^st opposite party, discarding the contention of the complainant, in the interest of justice.

3)      Version filed by the 2^nd and 3^rd opposite parties are as follows:

It is submitted that the above complaint filed by the complainant is barred by limitation under Section 24 A of the Consumer Protection Act, 1986.  The complainant has filed the complaint alleging manufacturing defect in the vehicle purchased by him, on 28.06.2012.  The 2^nd and 3^rd opposite parties are advised to state that as per the decisions of the Apex Court and the Hon’ble Kerala State Commission, the present complaint is filed after over 3 years alleging manufacturing defect in the vehicle purchased in June 2012.  Hence the complaint is hopelessly barred by limitation.  Hence the above complaint petition is liable to be dismissed under Section 24 A of the Consumer Protection Act.  It is submitted, assuming without admitting and for the sake of argument that the complaint petition is not barred by limitation, it is submitted that the Hon’ble Forum does not have the territorial jurisdiction to determine the issues raised in the compliant.  Admittedly neither the 1^st opposite party nor the 3^rd opposite party were amenable to the jurisdiction of this Hon’ble Forum.  The 2^nd opposite party has been arrayed in the party array with malafide intention only for the purpose of maintaining this complaint before this Hon’ble Forum.

4)      It is submitted that the warranty/extended warranty provided for the vehicle purchased by the complainant, is subject to the terms and conditions prescribed therein.  There is also no merit or basis in the allegation of the complainant that from the date of purchase of the vehicle he has been facing several problems with the vehicle.  The complainant has raised the said allegation without any bonafides.  It is submitted during the period from 04.10.2012 to 29.06.2015 referred to in paragraph 1 of the complaint many times the vehicle had been brought for carrying out the periodic services.  On the other occasions it was brought for attending to certain running repairs.  On each of those occasions the needful had been done and the vehicle returned to the complainant.  On each occasion the complainant/his driver used to take delivery of the vehicle after being convinced of the works done and expressing satisfaction over the work done. The allegations raised in the complaint in paragraph 2 and 3 are denied as misconceived and without merit. The 1^st and 2^nd opposite parties are not convinced of the proficiency of the complainant’s driving and hence do not admit the statement of the complainant in that regard.  The complainant is put to strict proof of the same.  It is further submitted that the vehicle of the complainant had been towed and brought to the workshop of the 2^nd opposite party with a complaint that the brake pedal was going completely down.  The service personnel in the workshop after inspecting the vehicle, had rectified the said complaint by replacing the master cylinder assembly under warranty.  Thereupon the complainant/his driver had taken delivery of the vehicle after being convinced of the work done and expressing satisfaction over the same. The 2^nd and 3^rd opposite parties denied the allegation of the complainant that after the repair the same complaint continued to repeat. The 1^st and 2^nd opposite parties submitted that the complainant has raised the same allegation with intention to mislead this Forum. The complaints of the disputed vehicle were only running repairs and rat infest complaint. The complainant has filed this complaint with no merit or basis and the 2^nd 3^rd opposite parties are not liable to pay any amount towards compensation and costs of the proceedings.  There has been no deficiency of service on unfair trade practice on the part of the 2^nd and 3^rd opposite parties.

5)      It is submitted that no cause of action, either in whole or in part has arisen within the jurisdiction of this Hon’ble Forum.  Hence this complaint is not maintainable before this Forum.  It is submitted that the complainant is not entitled either in law or on facts to any of the reliefs sought for in this complaint.  Further the reliefs sought for are beyond the scope and jurisdiction of this Forum as  per Section 11 of the Act. It is also submitted that for the reasons stated above, the 2^nd and 3^rd opposite parties prayed that this Hon’ble Forum may be pleased to dismiss the above complaint with appropriate orders as to costs to these opposite parties under section 26 of the Act.

6)      Evidence in this case consisted of the proof affidavit filed by the complainant and he was examined as PW1. Exbt. A1 to A6 were marked on his side. Witness of the 1^st opposite party was examined as DW1. Exbt. B1 to B3 were marked on the side of the opposite parties. Heard the learned Counsel for both parties.

7)      Issues came up for considerations are as follows:

1. Whether the complaint in maintainable before this Forum?
2. Whether the complainant has proved any deficiency in service and unfair trade practice on the side of the opposite parties?
3. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant as prayed for in this complaint?

8)      Issue Nos. (i) and (ii)

According to the complainant he had purchased a Mahindra XUV- 500 Vehicle from the 2^nd opposite party outlet Thiruvananthapuram on 28.06.2012 and the vehicle was manufactured and marketed by the 1^st opposite party. The above said vehicle had showed some defects right from the beginning of its purchase. Subsequently the vehicle repeatedly stopped on the way while running. The complainant frequently approached the authorized service centre of the manufacturer. But the opposite parties failed to rectify the defects of the vehicle and to make the vehicle in a road worthy condition. The complainant alleged in his complaint in page no. 2 para 7 that the vehicle of the complainant had suffered manufacturing defects and due to this reason, he and his family sustained mental agony, pain, and suffering, fear of death, physical distress and mental shock. For the above case, 1^st to 3^rd opposite parties are bound to compensate the complainant and his family.

9)      The 1^st opposite party stated in their version that the vehicle had suffered from inherent manufacturing defects and they delivered the vehicle to the dealer free from manufacturing defects. The 2^nd and 3^rd opposite parties contended in their version that the above complaint is barred by limitation under Section 24 A of the Consumer Protection Act, 1986.  The complainant has filed this complaint alleging manufacturing defect in the vehicle purchased by him on 28.06.2012.  He filed this complaint only on 27.10.2015 after the limitation period. The opposite parties are advised to state that as per the decisions of the Apex Court and the Hon’ble Kerala State Commission, the present complaint filed after over 3 years alleging manufacturing defect in the vehicle.  The vehicle was purchased in June 2012 therefore this complaint is hopelessly burred by period of limitation.  Hence this complaint is found liable to be dismissed as barred by limitation under Section 24 A of the Act. The complainant is keep silent for the above contention raised by the 2^nd and 3^rd opposite parties. We find that the complainant had purchased the vehicle on 28.06.2012 and he filed this complaint after 3 years from the date of its purchase. The complainant alleged that the vehicle in question had showed defects right from the beginning of its purchase. In that case, we accept the contention raised by the 2^nd 3^rd opposite parties. We think that the complainant has filed this complaint after the limitation period of 2 years as per Section 24 A of the Consumer Protection Act 1986.

10)    The complainant alleged that his vehicle was suffering from manufacturing defect and he produced Exbt.A1 copy of the registration certificate of the disputed vehicle which was registered before the Regional Transport Office. Exbt. A2 is the service history of the disputed vehicle period from 15.05.2013 to 01.04.2015 which shows that the complainant’s vehicle had serviced 19 times before the 2^nd and 3^rd opposite parties.  On going through the Exbt.A2 service history we could not find any manufacturing defects in the vehicle in question.  It is seen that periodical services were being done by the 2 and 3^rd opposite parties. Exbt. A4 is the legal notice issued by the complainant to the opposite parties and as per the legal notice the complainant raised the very same issues in this complaint and he also demanded compensation and costs of the proceedings from the complainant. Exbt A5 is the postal acknowledgement card showing that the Exbt.A4 legal notice was received by the opposite parties 1 to 3. Exbt.A6 is the reply notice issued by the 1^st opposite party..  

11)    We have gone through the above evidence filed by the complainant, the above evidences do not establish any manufacturing defects, deficiency in service or unfair trade practice on the part of the opposite parties. The complainant miserably failed to take an expert opinion by appointing an Expert Commissioner to examine the disputed vehicle.  In the absence of any expert evidence we are only to discard the allegation made by the complainant that the vehicle had suffered from inherent manufacturing defect. Further the complainant alleged that the vehicle entrusted to the 2^nd opposite party’s service centre at Kottayam on 29.06.2015 and the vehicle was kept on the workshop on 11.07.2015 and redelivered to the complainant on the same day ie.,11.07.2015. The above vehicle was kept under the custody of the 2^nd opposite party more than 28 days. During that time the complainant hired the vehicle for his personal and business purposes and he spent an amount of Rs.15,000/- each for 28 days and total amount expended by the complainant amounted to Rs.4,20,000/-.  The complainant stated that he is entitled to receive the above amount from the opposite parties. Except for the averments made in the complaint, the complainant failed to produce any substantial evidence to prove the above statement. The complainant mounted to the box as PW1 and he deposed that he has no evidence to prove that he had spent Rs.4,20,000/- to hire the vehicle. In the absence of any evidence, we find that the claim to reimburse Rs.4,20,000/- is not allowable.  Hence dismissed.

12)    In the above facts and circumstances, we are of the opinion that the this complaint is not maintainable before this Forum and the complainant could not prove with substantial evidence that any deficiency in service or unfair trade practice on the part of the opposite parties.  Hence the 1^st and 2^nd issues are found against the complainant.

13)    Issue No. (iii)

Having found the issue Nos. (i) and (ii) against the complainant, we are not inclined to consider and decide issue No. (iii).

14)  In the result, the complaint is dismissed.

Pronounced in the open Forum on this the 7^th day of April 2018.

Sd/-Sheen Jose, Member

Sd/-Cherian K. Kuriakose, President

Sd/-Beena Kumari V.K. , Member

                                                     Forwarded by Order

                                                     Senior Superintendent

APPENDIX

Opposite party’s Exhibits     ::   

Depositions  :

          PW1  :         Sajan C. Mathew 

DW1  :         Sriraj 

Date of Despatch   ::

          By Hand      ::

          By Post       ::

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