Orissa

Jharsuguda

CC/13/2015

Hemanta Pradhan S/O-Late Jaya Pradhan - Complainant(s)

Versus

The Managing Director Mahindra& Mahindra Ltd. - Opp.Party(s)

Self

28 Jul 2015

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JHARSUGUDA

 

CONSUMER COMPLAINT CASE NO. 13 OF 2015

 

Hemanta Pradhan ( 45 Yrs.),

S/O- Late Jay Pradhan,

R/O: Beheramal, PO; Industrial Estate, 

PS/Dist: Jharsuguda, Odisha………………..……………………Complainant.

     

                                           

Versus

 

1. The Managing Director,

Mahindra & Mahindra Ltd.,

Automotive, Sector, Mahindra Towers,

3^rd Floor Akruli Road, Khandivali (E),

Mumbai-400 001, India.

 

2. The Branch Manager,

OSL Auto Care (P) Ltd, A Unit of OSL Autocare (P) Ltd.,

At: Bye Pass Road, Ekatali, Jharsuguda.

 

3. The Regional Manager,

Regd. Office OSL Tower, Link Rad, Cuttack,

Dist: Cuttack, Odisha….………………………..….…....….…...Opp. Parties.

 

Counsel for the Parties:-

For the Complainant                                  Self.

For the Opp. Party No.1                           Shri M.K.Suna, Adv. & Associates.

For the Opp. Party No. 2 & 3                    Shri S.K.Dash, Adv. & Associates.

 

                                                 Date of Order: 28.07.2015

 

Present

 

                                                                                    1. Shri S.L. Behera, President.

                                                                                    2. Shri S.K. Ojha, Sr. Member.

                                                                                    3. Smt. A. Nanda, Member( W).

                                            

Shri S. L. Behera, President: - Brief facts of the complaint are that the complainant has purchase a Bolero Maxxi Truck Plus BS3 bearing Regn. No. OD-23-B-4365 from the O.P.No.2 OSL Auto Care Pvt. Ltd.,Ekatali, Jharsuguda for Rs.4,45,209/- only obtaining financial facilities from Cholamandalam Finance Ltd. Beside payment of down payment in cash amounting to Rs.2,13,729/- only , the vehicle was delivered to

 

the complainant by O.P.No.2 on dtd. 19.09.2014 including its warranty.  The vehicle in question was manufactured by Mahindra & Mahindra Ltd., Mumbai /O.P.No.1 whose authorized dealer is OSL Auto Care (P) Ltd./ O.P.No.2 and the O.P.No.3 is the regional office located at Cuttack of the company.  It is alleged by the complainant that the vehicle became break down on dtd. 21.11.2014 while it was plied on the road on the way of Kanaktora to Belpahar and on intimation to the B.M, Mahindra Show Room as per his advise entrusted the vehicle with the show room workshop, the mechanic who assured set right the defects of the vehicle within 02 hours but after 07 days also when the vehicle was not ready for its delivery O.P.No.2 intimated the complainant, the vehicle would be repaired only by laptop as water flow in pump of the vehicle.  It is alleged by the complainant that without necessary repairing the defects detected in the vehicle. The O.P.No.2 sent a letter to the complainant to take delivery of the said vehicle from the workshop but the same was not taken back by the complainant for want of rectification of the defects.  It is also alleged that the complainant though want to purchase a new Bolero maxi truck but the O.P.No.2 had fraudulently signed agreement paper and provide Bolero Maxxi Truck Plus BS3.  Alleging unfair trade practice as well as deficiency in service against the O.Ps. the complainant prayed this forum for a direction to the O.P.No.1 for replacement of the vehicle or to exchange the Engine of the vehicle and for payment of compensation.       

Being noticed, the O.Ps. contested the case through their respective counsels and filed written version.  The O.P. No.1 manufacturing company in his written version stated that the transaction and dealing between him and O.P.No.2 are on principal to principal basis and the O.P.No.3 is not the agent of O.P.No.1 for any purpose.  The vehicle manufactured by O.P.No.1 is purchased by O.P.No.2 to release the same to its own customer. Denying the allegations of the complaint contended that on dtd. 21.11.2014 the vehicle was produced before the workshop by the complainant for 2^nd free service and the same was done free of cost and delivered to the complainant.  It is also contended by the O.P.No.1 that the vehicle was break down on dtd. 30.12.2014, when the vehicle produced in workshop, on verification of the defect it was found that the fuel used in the vehicle was adulterated with water allowed water entry into the fuel system and intimating the defects those were rectified and delivered the vehicle to the complainant from the show room.  It is further stated by the O.P.No.1 after running the vehicle about 14,000 Km demanding replacement of the vehicle is meaningless. According to the O.P.No.1 despite of written request sent by O.P.No.2 the complainant did not take his vehicle from the Service Centre and foisted this false complaint liable to be dismiss.     

The O.P.No.2 has also contested the case and filed written version through his Advocate denying all the allegations against it and stated that as the complainant had submitted the question of Bolero Maxxi Truck Plus to be purchase under hire purchase  scheme after down payment of Rs.2,13,729/- only , also when the rate of Bolero Maxxi truck and Bolero Maxxi truck Plus are different, there was no question of obtaining signature in the agreement paper fraudulently. It is submitted by the O.P.No.2 that on dtd. 29.12.2014 on getting information of the break down of the vehicle it was brought to the O.P.No.1’s showroom for its necessary repair and the same was covered warranty.  It is also admitted by the O.P.No.2 that the problem in the Engine fitted with the vehicle detected by use of laptop and at the time of repairing it was found that the breakdown of the vehicle arose due to fuel adulteration with water leading to damage of diesel filter element which creates starting problem and the defects were rectified within five days.  The O.P.No.2 denied to have render any deficiency in service or to have adopted any type of unfair trade practice in respect to the complainant and prayed for dismissal of the complaint.

The O.P.No.3 though did not filed his written version but advocate who is defending the O.P.No.2 submitted before the Forum that the written version of O.P.No.2 had been accepted by O.P.No.3.

After hearing of the argument of the counsels for the O.Ps. and going through the complaint petition, written version and available material evidence on record it can be stated that the complainant had detected the defects on his newly purchase vehicle on dtd. 21.11.2014 as the same was suddenly breakdown i.e. after above two months from the date on which the vehicle was taken on delivery by the complainant.  During the continuance of the warranty period the said defects were detected and the vehicle in question was alleged to be entrusted with the service center of O.P.No.2 and it is still lying there.  The complainant has filed his Affidavit Evidence dtd. 14.07.2015 wherein fraudulent act of O.P.No.2 in providing undesired vehicle specified and the statement of the workshop mechanic relating to repairing of the defect will be possible only by laptop has also reflected.  The complainant has also proved affidavit evidence of one of his friend namely Chitaranjan Nayak who had accompanied the complainant at the time of purchase of the said vehicle.  The complainant also has produced a certificate dtd. 06.07.2015 issued by one Krushna Automobile who from his 30 years of experience of repairing of model of Mahindra & Mahindra vehicle has certified that the vehicle of the complainant cannot be repaired without laptop. The said certificate without the maker thereof cannot be proved, but it can be accepted that in whatever method be adopted the O.Ps should take appropriate step to repair any defects found in the vehicle sold by them especially during warranty period to the satisfaction of the purchaser of the vehicle that is the complainant.  The O.Ps claim to have repaired the defects of the vehicle in question after its entrustment by the complainant and had intimated to the complainant to take it delivery. The complainant on the other hand after running the vehicle about 14,000 Km claims that the supply of the vehicle had defrauded him by providing undesired vehicle.  In our opinion not tenable.  The complainant should have taken the delivery of the vehicle from the showroom after being fully satisfied with the repairing or else should had reported the O.Ps if defects were still in exit before delivery of the vehicle.    

Consumer Protection Act, 1986, Section-2(1)(f) Manufacturing defect:- The defect of adulteration with water in the diesel inside the vehicle:- The vehicle in question the defective vehicle when judged from the definition of “defect” as contain in the section-2(1)(f) of the Consumer Protection Act,1986 but whether this kind of situation about the vehicle can be categories as manufacturing defects or not ? In the strict technical terminology , this kind of situation may not be lead to the conclusion that there is a manufacturing defect but still it goes without saying that whatever defect has been observe in the vehicle for which the complainant had to suffered mental agony of taking the vehicle to the workshop many times, has to be attendant to in proper perspective, it is the bound down duty of both the manufacturer and the dealer to attained to the said defect and make it defect free vehicle if they are not in a position to do so , they should either refund the cost of the vehicle or provide a new vehicle to the consumer.

That whenever a new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.

Consumer Protection Act,1986 Section-2(1)(f) is a benevolent social legislation as held by the Hon’ble Apex Court in their judgment from time to time and is aimed at providing for better protection of the interest of the consumers as defined in the preamble to the act itself.

In view of aforesaid discussion and after going the entire material evidence on record,  we allow the complaint  of the complainant with directions as follows;-

ORDER

1. The O.P.No.1 & 2  are  hereby directed jointly and severally to give a new defect-free Engine in exchange of previous Engine to the complainant up to his satisfaction within 15 (fifteen) days from receipt of this order.
2. The O.P No.1 & 2 are hereby further directed to pay a sum of Rs.10,000/- (Rupees ten thousand) only to the complainant towards compensation, due to their deficiency in service withholding the vehicle for a long period causing financial loss as well as mental agony etc. within 30 (thirty) days from the date of receipt of this order, failing which interest @ 10% per annum shall be charged till realization on the above mentioned awarded amount.      

            Accordingly the case is disposed of.

Order pronounced in the open court today the 28^th day of July’ 2015 and copy of this order shall be supplied to the parties as per rule.

                                                 I Agree.                       I Agree,                                                                                                

                                         

                               A.Nanda, Member (W)                S.K.Ojha, Sr.Member           S. L. Behera President           

                                                                           Dictated and corrected by me

 

                                                 S.L.Behera, President