The case of the complainant in brief is that 0n 27.08.09 complainant purchased one Mahindra & Mahindra Borelo VLX vehicle bearing Chassis No.MA1XUZKCN92G99512 and Engine No.KC94G27422 which was registered as No.AS-06/H-2199. The vehicle was for two years warranty against any manufacturing defect. The vehicle of the complainant in the first week of June, 2011 gave problem and as such, complainant took the vehicle to the OP for check up. The OP No.2 informed that the first and the third fuel injector was faulty. As such, the OP changed the first and the third fuel injector but before delivery of the vehicle, the OP No.2 on 05.06.11 issued a letter to the complainant informing that they found the first and the third fuel injector faulty due to defective fuel and they found kerosene in the fuel. The complainant denied of finding kerosene because he used high speed diesel to run the vehicle. After being repaired, the vehicle was not released and on 12.06.11 OPs issued a Bill No.482 to the complainant informing the amount as Rs.25637/- for replacing the first and the third fuel injector. The complainant was surprised to see the above bill as the vehicle was within the warranty period and the complainant has done nothing contrary to the warranty procedure. However, the complainant on 13.06.11 paid bill amount to the OPs under protest with a forwarding letter which was duly received by OP No.2 and released the vehicle. In earlier occasion also the vehicle gave some problem and OPs changed the second and fourth fuel injector for which OP did not charge any amount since the vehicle was within warranty period. Charging the amount for changing first and the third fuel injector and receiving the payment by OPs are illegal which is amount to deficiency in service on the part of OP.
After registering the case notices were issued to OP No.1, 2 and 3 who have contested the case by filing written statement. OP No.1 and 2 in their written statement stated inter-alia that the case is not maintainable in law as well as in fact and there is no deficiency in service on the part of OP. Further, it is stated that the complainant written the complaint petition in a twisted manner for wrongful gain. On 08.06.11 the complainant through her representative one Sri P.Poddar brought the vehicle to the workshop of the OP with a starting problem. On inspection the vehicle was found that first and the third fuel injector became defective due to use of fuel mixed with kerosene. Fuel injector is a proprietary item and same is covered under the respective manufacturer warranty policy but not under warranty policy of Mahindra & Mahindra Ltd. It is clearly referred in Standard Warranty Form in Note No.4 of the Warranty. Since the fuel injector first and third are found defective, the complainant was asked to approach the manufacturer dealer of fuel injector i.e. BOSCH and its authorised dealer G.D. Diesels at Guwahati for necessary replacement as per the warranty policy. But the complainant refused to understand and insisted the OP to settle the warranty of the defective injector/nozzles as a dealer of Mahindra & Mahindra Ltd. The OPs were neither authorised to take any decision on the warranty of the injector which is proprietary item, however the OPs informed the complainant that they will help the complainant to take up the matter with the respective manufacturer for the desired warranty replacement. But the complainant insisted the OP for immediate delivery of the vehicle at her own cost. As such, the first and the third fuel injector/nozzles were changed. As the complainant insisted on immediate delivery of the vehicle at her own cost accordingly bill No.482 dated 12.06.11 was prepared and the complainant herself took the vehicle by making payment of the bill amount in cash. But the protest letters regarding the bill was in fact received by the OPs after few days of delivery of the said vehicle. As such, the OP No.1 and 2 are not liable and there is no deficiency in service on the part of OP and prayed to dismiss the case with cost.
OP No.3 in his written statement stated that the Company Secretary is not the appropriate authority to redress any complaint of the complainant and therefore, the present complaint is defective and liable to be dismissed in limine. The Company Secretary neither look after the day to day running of the business of the Company nor attends any consumer complaint and therefore impleading the Company Secretary as OP is neither proper nor necessary. Further, it is stated that the warranty of the vehicle is applicable against manufacturing defect only but the proprietary item are covered by the respective manufacturer’s warranty and the decisions of the respective manufacturer is final and binding to all including the necessary OP. As per record available the complainant used the defective / adulterated fuel and as such, the injector of the vehicle was found faulty. Under the facts and circumstances as stated above OP No.3 is not liable and not bound by the result of the present case and therefore prayed to dismiss the case with cost.
In this case complainant gave her evidence by swearing affidavit and exhibited as many as 7 documents in support of her case. On the other hand, OP examined one Sri Sanjib Kochhar, proprietor of M/s Assam Motors, Hijuguri, Tinsukia as DW-1 and exhibited 7 nos. of documents to rebut the case of the complainant.
DECISION, DISCUSSION AND REASONS THEREOF:
Upon going through the evidence of both the parties and their documentary evidence and the arguments advanced it is found that complainant on 27.08.09 purchased one Mahindra & Mahindra Borelo VLX vehicle being Registration No.AS-06/H-2199 from the OPs. The vehicle has two years warranty period as provided by the Company against any mechanical defect, manufacturing defect or 1,00,000 Kms whichever is earlier. Ext- 2 is the said warranty coverage certificate. During the above warranty period in first week of June, 2011 the vehicle gave some starting problem for which the complainant took the vehicle to the workshop of OP. The OP No.2 after checking the vehicle informed that first and third fuel injector was faulty. As such, the OP changed the first and third fuel injector. But before delivery of the vehicle OP No.2 on 05.06.11 issued a letter to the complainant stating the they found first and third fuel injector faulty due to defective fuel and found kerosene in the fuel. Ext-3 is the said letter. However, the complainant protested against the defective fuel and finding of kerosene. The OP on 12.06.11 gave bill No.482 amounting Rs.25,637/-. However, the complainant was surprised and shocked to see the bill as because the defect was within warranty period. Ext-4 is the copy of the bill. On 13.06.11 complainant paid the bill amount vide Ext.5 & 6 and released the vehicle. The vehicle ran only 15 kms and if there would have been no manufacturing defect the fuel injector would not have been found faulty. Subsequently, the complainant claim refund back of Rs.25637/- with interest and Rs.20000/- compensation by issuing a notice as the defect of fuel injector were found within the warranty period vide Ext.7. The OPs in their argument contended that on 08.06.11 brought the vehicle to the workshop of the OP with some starting problem. On verification it was detected that first and third fuel injector became defective due to use of adulterated fuel. However, fuel injector is a proprietary item mentioned in item No.6 of warranty booklet i.e. owner’s manual, page No.5 which is not concerned with the OP No.1 and 2, same is covered under respective manufacturer’s warranty policy. It is clearly stated in the warranty form in Note 4 i.e. proprietary items in page No-10. As the fuel injector first and third are found defective the complainant was asked by the OP to approach the manufacturer dealer i.e. BOSCH who is an authorised dealer G.D. Diesels at Guwahati for necessary replacement as per the warranty policy. However, the complainant misunderstood the same and insisted the answering OP to settle the matter by the OPs as because it was within warranty period. It is further contended that the OPs are neither authorised to take any decision on the warranty of fuel injector/nozzles which are proprietary items. The OPs informed the complainant that they will help the complainant to take up the matter with respective manufacturer. But the complainant insisted the OPs for immediate delivery of the vehicle at her own cost. As such, first and third fuel injector were replaced and Bill No.482 for amounting Rs.25637/- was prepared which the complainant paid by Ext.4 and 5.
So far the above argument of the OPs are concerned, it is found that the OP prepared the Ext-4 bill amounting to Rs.25637/- which the complainant paid and took the delivery of the vehicle but there is no evident as to the insisting by the complainant to the OP for immediate delivery of the vehicle at her own cost.
So far Note 4 – Proprietary Item is concerned which read as under :
Note 4. –PROPRIETRAY ITEMS
All the proprietary aggregates, as mentioned below, are covered under the respective manufaturer’s warranty policy. In case of complaints, Mahindra Dealer will take up the matter with the respective manufacturer or their authorised agents, on which the final decision will be theirs and binding to all.
- Fuel injection equipment (Pump & Nozzles)
- Starter Motors
- Alternators
- Tyres
- Battery
From the reading of the above note it appears clear that if any complainant made by the complainant regarding defect of proprietary items, Mahindra dealers will take up the matter with the respective manufacturer or their authorised agent on which final decision will be theirs and binding to all. Fuel injection equipment (Pump and Nozzles) are no doubt proprietary items and the dealer was BOSCH. The OP insisted and requested the complainant to approach the manufacturer which is not the duty of the complainant. It was the OP who was to take up the matter with the respective manufacturer. The OP admitted that they will help the complainant to take up the matter with respective manufacturer which is not desired, it was abundant duty on the part of the OP to take up the matter voluntarily to change the fuel injector by dealing with manufacturer or the dealer of fuel injector i.e. BOSCH. It was not the duty of the complainant. The OPs should have not prepared a bill of Rs.25637/- rather they should have made correspondence with the manufacturer of the fuel injector and settled the matter with them instead of receiving the amount of Rs.25,637/-.
From the above discussions it is found that the complainant has disclosed the prima facie material committing deficiency in service and illegal trade practice by the OPs by receiving the amount of Rs.25637/- though the manufacturing defect was within the period of warranty and thereby gave mental harassment to the complainant. There is ample material in the evidence of PW-1 to show that fuel injector was defective and it was within the warranty period and the respective manufacturer was to replace the same at free of cost which was not done in the present case. In earlier occasion also the said vehicle gave problem of second and fourth fuel injector which was change by OPs without charging any amount since the vehicle was within warranty period. If on earlier occasion the OPs replaced the second and fourth fuel injector why not in this time. It is due to the default of the OPs because the OPs are duty bound to take up the matter with the respective manufacturer which is negligent and deficiency in service on the part of OP. As such, this Forum comes to an unassailable conclusion that some order can rightly be passed which the OP failed to retract the evidence of PW-1.
In view of the conclusion arrived this Forum doth order the OPs to pay Rs.25,637/- to the complainant with interest @ 9% per annum from the date of filing this case. Further, the OPs are directed to pay Rs.5000/- as compensation for giving such mental harassment and agony to the complainant by receiving the above amount of Rs.25637/-. Further, OP is directed to pay Rs.2000/- as cost of this case. OPs are directed to pay the above amount through this Forum within one month from the date of this judgment.
Furnish copy of this judgment to OPs for compliance.
