CC Filed on 26.07.2007<br /> Disposed on 08.07.2008<br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR.<br /> <br /> Dated: 08th Day of July 2008<br /> <br /> PRESENT:<br /> Sri. G.V.HEGDE, President.<br /> Sri. T.NAGARAJA, Member.<br /> Smt. K.G.SHANTALA, Member.<br /> ---<br /> <br /> Consumer Complaint No.155/2007<br /> <br /> Sri. Srinivasachari,<br /> S/o Late Reddappachari,<br /> Aged about 45 years,<br /> R/o Shanthinagar,<br /> Chelur Road,<br /> Chintamani Town.<br /> <br /> Rep: by his son-cum-GPA<br /> Holder namely, S.Sudhakar,<br /> S/o Srinivasachari,<br /> Aged about 26 years,<br /> R/o Shanthinagar,<br /> Chintamani Town. Complainant<br /> <br /> (By Advocate Sri. C.N.Basavarajappa)<br /> <br /> V/s<br /> 1. The Sales Manager,<br /> M/s India Garage,<br /> Head Office,<br /> #63, St. Marks Road,<br /> Bangalore-1.<br /> <br /> 2. The Sales Manager,<br /> S.M.Work Shop,<br /> Branch Office,<br /> # C-16, Tamaka,<br /> Induistrial Estate,<br /> Kolar – 563 101.<br /> <br /> <br /> <br /> CC No.155/2007<br /> 3. The Manager,<br /> Mahindra and mahindra Ltd.,<br /> 2nd Floor,<br /> Sadhana House,<br /> No.570, P.B.Marg,<br /> Worli,<br /> Mumbai – 400 018. Opposite parties <br /> <br /> (OP-1 & 2 By Advocate Sri. K.P.Raghottama)<br /> (OP-3 By Advocate Sri. H.V.Harish & Others)<br /> <br /> ORDER<br /> <br /> This is a complaint under section 12 of the Consumer Protection Act, 1986 praying in substance to replace a new vehicle for the one already sold and delivered or to refund the price of the vehicle sold to him with interest, compensation and costs etc., <br /> <br /> 2. Originally the complaint was filed against OP-1 & 2 and during the course of proceedings, OP-3 is impleaded. OP-3 is manufacturer of the vehicle in question. OP-1 is dealer having its head office at Bangalore and OP-2 is branch office at Kolar of OP-1 and also authorized service center under OP-3. <br /> <br /> 3. The material facts of complainant’s case may be stated as fallows: That on 14.05.2005 the complainant purchased a Mahindra Champion Goods Auto bearing Engine No.R5D93394 and Chassis No.MAILC2FJFS3D53812 from OP-2 for a sum of Rs.1,90,969/- and out of the said sum Rs.60,969/- was paid by him by way of cash and the balance amount of Rs.1,45,000/- was arranged from Mahindra Finance a finance company. The said vehicle was registered as KA-07 / 5020 in the office of RTO at Kolar. <br /> <br /> <br /> CC No.155/2007<br /> It is alleged that from the date of purchase of the said vehicle it was giving frequent troubles on the road due to defective engine and it was taken to the workshop of OP-2 for more than 7 times and the complainant incurred more than Rs.50,000/- towards its repairs. Further that inspite of repeated repairs the vehicle was not running properly, hence on 30.01.2007 he left the vehicle with OP-2 requesting either to replace the said vehicle with new one or to return the price, but OP-2 has not taken any steps inspite of legal notice dated 03.02.2007 for compliance of his request. Therefore he filed the complaint on 26.07.2007. <br /> <br /> 4. OP-1 & 2 have in their version admitted the purchase of vehicle by complainant. They denied that the vehicle was defective. It is contended that the complainant has not maintained the vehicle in proper and good condition and that the alleged trouble has started due to the misuse / improper handling and bad maintenance of the vehicle. It is contended that the warranty given was for a period of 6 months subject to terms and conditions mentioned in the warranty policy from the date of purchase of vehicle and the warranty was given by the manufacturer but not by these OPs-1 & 2 and the complaint is bad for non-joinder of the manufacturer. Further it is contended that the vehicle was repaired properly whenever it was brought to workshop and even for the present it is ready for delivery and the complainant has not collected the vehicle inspite of repeated informations. Therefore they prayed for dismissal of the complaint against them.<br /> <br /> OP-3 contested the claim and filed version. It is contended that the complaint is barred by time and there is no privity of contract between complainant and this OP and that the contract between the dealers and <br /> CC No.155/2007<br /> this OP is on principal to principal basis and that the complaint is false and frivolous and the vehicle in question is used for commercial purpose. Further that there is no expert opinion regarding alleged defects of the said vehicle and the alleged defects are not established. Further that the warranty was for a period of six months from the date of purchase and not two years as alleged by complainant. It is stated that within warranty period engine was changed once and thereafter on humanitarian consideration and at the request of complainant engine of vehicle was replaced and that there were no manufacturing defects in the said auto and that the complainant has left the vehicle and not collected the same inspite of reminders. The other allegations in the complaint are denied. Therefore OP-3 requested to dismiss the complaint against it. <br /> <br /> 5. The parties filed affidavits and documents in support of their respective contentions. However OP-3 has not filed any document to show that the contract between OP-1 & 2 and this OP was on principal to principal basis. <br /> <br /> 6. We heard the arguments and perused the records. The contentions that the complaint is barred by limitation and that there is no privity of contract between complainant and OP-3 and that the contract between the dealers and OP-3 is on principal to principal basis are not supported by any legal grounds and materials. The complainant has alleged manufacturing defects during the warranty period. Therefore the complaint is not barred by time. The OP-3 has not produced any document to evidence that the contract between dealers and this OP was on principal to principal basis. The dealers i.e., OP-1 & 2 have denied their liability for manufacturing defects. Therefore in the absence of any written material to establish that the contract between dealers and OP-3 <br /> CC No.155/2007<br /> was on principal to principal basis, the dealers cannot be held liable for manufacturing defects. In that event OP-3 would be liable for manufacturing defects of the vehicle. The complainant has purchased the vehicle for earning his livelihood thereby he becomes a consumer as defined in the Act. Therefore the material questions that arise for consideration are as fallows: <br /> <br /> 1. Whether the vehicle in question is having manufacturing <br /> defects?<br /> 2. If so to which relief the complainant is entitle to?<br /> 3. What order?<br /> <br /> 7. After considering the evidence and the records and the submissions of parties our findings on the above points are as fallows:<br /> <br /> POINT No.1: OP-3 has contended that in the absence of expert opinion the alleged mechanical defect cannot be established and that in the present case the complainant has not produced any expert evidence, hence he failed to establish any manufacturing defect. It is an admitted fact that within the warranty period certain repairs and replacement of engine were effected. The job cards relating to this vehicle disclose that the vehicle was left for service / repair on the following dates after it ran certain distances.<br /> Date Distance covered in Kms.<br /> 01.06.2005 2385<br /> 14.07.2005 6011<br /> 25.07.2005 7304<br /> 19.08.2005 10320<br /> 08.09.2005 13023<br /> 15.09.2008 13975<br /> CC No.155/2007<br /> 07.10.2005 15131<br /> 03.11.2005 17921<br /> 23.11.2005 19124<br /> 02.06.2006 35968<br /> 12.06.2006 35968<br /> 30.01.2007 42301<br /> <br /> Admittedly different engines were replaced thrice when the vehicle was left for repairs on 14.07.2005, 08.09.2005 and 03.11.2005. The vehicle was purchased on 14.05.2005. The warranty period was 6 months from the date of purchase. The warranty period would expire by 13.11.2005. The replacement of engine thrice is within the warranty period itself. There is no reliable evidence that the replaced engines were new engines. In the job cards it is mentioned that each time a new engine was replaced. If really new engine was replaced there could not have been defect in the engine within such a short time, for replacement of different engines. The replacement of engines is not reported to RTO on any occasion for effecting necessary correction in the RC. Subsequent to the replacement of engine on 03.11.2005 the vehicle was left in the workshop of OP-2 on 23.11.2005, 02.06.2006, 12.06.2006 and 30.01.2007. The learned counsel for OPs-1 & 2 submitted on 23.11.2005 and 02.06.2006 the vehicle was left for routine service / minor repairs and even subsequently on 12.06.2006 and 30.01.2007 the repairs effected were not major. Therefore he submits that subsequent to the replacement of engine on 03.11.2005 nearly for a year the vehicle was run without major complaint. The job cards dated 12.06.2006 and 30.01.2007 show that the vehicle was left to check up starting problem / to check up engine not started. Though the OPs-1 & 2 claim that the vehicle was repaired by 01.02.2007 when it was left for repairs on 30.01.2007, it appears the repair might have been effected after lapse of <br /> CC No.155/2007<br /> sufficient time. They have not replied the legal notice dated 03.02.2007 in which it was stated that the vehicle was left in the workshop as it could not be used. It may be true that after replacement of engine on 03.11.2005 the complainant used the vehicle nearly for one year without major defects in the engine. However again the engine started troubling when it was left on 30.01.2007. The replacement of new engine on any occasion appears to be not true. Some other old engine must have been replaced. Considering the above facts and circumstances even in the absence of expert evidence, we hold that within warranty period the vehicle had manufacturing defect which was not properly cured. Hence we hold point No.1 in affirmative. <br /> <br /> POINT No.2: The complainant had used the vehicle without much trouble nearly for an year. It has run a distance of 42000 and odd kilometers from the date of purchase till it was last left on 30.01.2007. The complainant submitted that if a new vehicle is replaced, he does not press for any other compensation and he would pay the arrears of installments to the financer incurred on the present vehicle. We think that offer is just and proper. OP-3 is to be directed to replace the new vehicle in place of the present vehicle. The complainant need not be awarded any other compensation in the above facts and circumstances. Point no.2 is held accordingly. <br /> <br /> POINT No.3: Hence we pass the following:<br /> O R D E R<br /> The complaint is allowed with costs of Rs.1,000/- as against opposite party No.3.<br /> <br /> <br /> CC No.155/2007<br /> The opposite party No.3 shall replace a similar new vehicle to complainant in place of the present vehicle bearing registration No.KA-07 / 5020 with fresh warranty for six months from the date of delivery of new vehicle on the same terms and conditions, within one month from the date of this order. In default OP-3 shall pay Rs.1,90,969/- to complainant with interest at 10% per annum on the said amount from the date of complaint i.e., 26.07.2007 till the date of payment. <br /> <br /> The complainant shall clear the arrears of installments if any to the financer payable on the vehicle KA-07 / 5020 as agreed between him and the financer. <br /> <br /> Dictated to the Stenographer, corrected and pronounced in open Forum this the 8th day of July 2008.<br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br />