IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated this the 30th day of June, 2022
Present: Sri. Manulal V.S. President
Sri. K.M. Anto, Member
C C No. 09/2020 (filed on 14-01-2020)
Petitioner : Sunil Kumar @ Vikru,
S/o. Prabhakaran Nair,
Kaniyamkunnel House,
Karapuzha P.O. Kottayam - 686013
(Adv. Dinesh S.)
Vs. Opposite Parties : 1) TVSundramIyengar& Sons Pvt. Ltd
M.C. Rod, Nattakom P.O.
Opposite Government Poly Technic
College, Kottayam – 686103
(Adv. Sony Sebastian and
Adv. Eldho Jacob Philip)
2) Mahindra and Mahindra Ltd.
Mahindra & Mahindra Towers,
Dr. G.M. Bhosale Marg,
Worli, Mumbai – 400018.
Rep. by its Manager.
(Adv. Saji Mathew, Adv. Denu Joseph, Adv. George Itty T. and
Adv. BibinBabu)
O R D E R
Sri. Manulal V.S. President
Crux of the complaint is as follows:
Complainant purchased a new Mahindra Supro Four Wheelvehicle bearing chassis number MAIFK2HL and enginenumH2F6L34450 from the first opposite party for a sum ofRs.5,01,620/- on 22-3-2016. The said car is manufactured andmarketed by the second opposite party and the second oppositeparty is the authorized dealer and service agent of the firstopposite party. The complainant paid Rs.28,640/- for registration,insurance road tax etc.
The said vehicle has a warranty for a period of 2 years or60,000/- Kms whichever is earlier from the date of purchase.Thevehicle showed certain inherent manufacturing defects namelycaster and camber defect short time after the date of purchase.On 28-8-2016, when the complainant was driving the vehicle,the vehicle was jerking unusually due to the cambermanufacturing defect on the front wheel portion and tyres. On3-9-2016, when the complainant informed this complaint to thefirst opposite party, after inspecting the vehicle by the skilledMahindra trained technicians they found that there is complaintregarding camber and the wheel alignment. Thought the firstopposite party corrected the wheel alignment, changed theengine oil and oil filter they did not assure the complainant thatthe inherent camber manufacturing defect of the vehicle arerectified. They told the complainant that now the vehicle is showing its defects because of its two front tyres and told thecomplainant to replace it. As per the direction of the service personalsof the first opposite party the complainant on 13-9-2016replaced the damaged tyre with new tyres at first oppositeparty’s service center. Thereafter a full diagnostics of thevehicle was done and the first opposite party assured thecomplainant that the defects were rectified .The complainant did his periodical service regularly with the first opposite party and did vehicle diagnosis on 19-11-2016.
On 14-1-2017 the third free service of the vehicle was done atservice center of the first opposite party. However, after aboutthe one month of the said service, the vehicle was jerkingunusually, an abnormal sound was arising from the front side ofthe vehicle and front tyres were wearing off irregularly. On25-2-2017, the complainant went to the first opposite party torectify the said camber defects and as per the direction of theservice personals of the first opposite party complainantcorrected the wheel alignment at BharathTyresPvtLtdNattakom. However,even after correcting the wheel alignment, the outer side of the front tyres was wearing off unusually. Itis submitted in the complaint that on 30-9-2017 the first oppositeparty conducted a complete diagnosis of the vehicle. But theydid not rectify the manufacturing defects of the vehicle. Ascomplaint is persisting, the complainant approached the firstopposite party again and repeatedly demanded them to rectifythedefects. |In that circumstances, the first opposite partyreplaced the front tyres of the vehicle. However the aforesaiddefects of the vehicle were not rectified and unusual sound,irregular jerking and uneven tyre wear of the front tyrescontinued. Facts being so on 16-12-2017 the complainantapproached the first opposite party and the first opposite partyreplaced the damaged tyres free of cost.
Thereafter on 15-5-2018 the vehicle was entrusted to the firstopposite party for rectifying the same problem. The firstopposite party replaced two bush silent block and thecomplainant had paid Rs.222/- for theses bush replacement.
On 3-10-2018 the complainant sent an email to the secondopposite party along with the photographs of the damagedtyres. The second opposite party replied on 4-10-2018 andinformed that they were planning to send an expert atThellakom to inspect the vehicle. But the expert did not cometo inspect the vehicle. Then on 4-6-2019 the first opposite party did a vehicle diagnosis and wheel alignment. After that also the problem of uneven wear of front tyre persisted. On 6-9-2018when the complainant approached the first opposite party itwas informed that they are not doing the service of the supromodel vehicle now and insisted the complainant to approachanother authorized dealer. So the complainant approachedInterpid Works Pvt Ltd at Alappuzha . After inspecting thevehicle they said that the vehicle have the manufacturingdefects. They changed the oil and oil filter of the vehicle and thecomplainant had paid Rs.1125/- for the same.
It is alleged in the complaint that within a short span of 43000kms of usage of the vehicle 6 tyres had been changed due to theuneven tyre wear pursuant to the camber and caster complaint ofthe vehicle. According to the complainant the first oppositeparty sold the vehicle to him suppressing the inherentmanufacturing defects. By selling a vehicle havingmanufacturing defects amounts to unfair trade practice and deficiency inservice. Hence this complaint is filed by the complainantpraying for an order for replacement of vehicle with a brand newvehicle or in alternative to refund the price of the vehicle andcompensation.
Upon notice the opposite parties appeared before the Commission and filed version.
The first opposite party filed version contending as follows:
The complainant is using the vehicle for commercial purposeand hence the complainant is not a consumer under the purview of Consumer Protection Act. The complaint is bad for non-joinderof the necessary parties. The first opposite party has stopped thedealership business of the second opposite party by the middleof June 2019 and thereafter, M/S Interpid Works Pvt Ltd hasbeen appointed as the dealer of the second opposite party.Hence, the M/S intrepid Works is a necessary party in the case.
The complainant’s vehicle was brought to the first oppositeparty’s service center for services as well as certain minorcomplaints and the same were attended in a proper and efficientmanner. One of the complaints alleged in the complaint wasunder body sound, which was reported on 19-11-2016 andthereafter the same were attended by the first oppositeparty as and when reported. Complaint of alignment wasreported first time on 25-2-2017 and the same was dulycorrected. Thereafter on 30-9-2017 the alignment was furthercorrected and the lower control arm bushes were changed.After that on 15-12-2017, the complainant complained of front tyres being worn out and the oppositeparties replaced the 2 lower arm assemblies under warranty, andas required by the manufacturer, 2 tyres were replaced with 50%of their price being born by the manufacturer as a humanitariangesture, though the tyres had already covered 23,747 Kmsandthe normal tyre life is only about 30,00kms. Subsequently on10-3-2018, abnormal wear of tyres was reported and the alignment was corrected and the bushes were replaced.
Thereafter when the vehicle was brought on 16-10-2018, even though the vehicle was out of warranty from 30-4-2018 since,the complaint reported abnormal tyre wear, both the front tyresand the struck bar assembly were replaced by the manufacturer atfree of cost. Thereafter vehicle was brought to the first opposite party for the last time on 4-6-2019 and he did not report any alignment complaint or abnormal sound from the under body. The first opposite party has always given prompt and proper service to the complainant’s vehicle.The allegation that the vehicle showed certain inherent manufacturing defects, namely caster and camper defects, is false.It is averred in the version that the alignment of the vehicles to be attended to every 5,000kms or less depending on road condition. If the alignment of the vehicle is not routinely maintained, the same would cause uneven tyre wear or excesstyre wear as well as damage to parts associated therewith. It is submitted in the version that if at all any complain had persisted, that was not due to any deficiency of service but on account of manufacturing defects, for which the first opposite party is not responsible. The vehicle was brought to the first opposite partyfor the second free service on 3-9-2016 and the same was carried out to the total satisfaction of the complainant. The fronttyre of the vehicle were not replaced on 13-9-2016 but only on15-7-2017. The allegation contrary to this fact is false. Thecomplaint regarding the abnormal sound under body was also reported to first opposite party on 14-1-2017. No complaint of alignment and uneven tyre wear was reported on 14-1-2017and the alignment issue was reported only on 25-2-107 and thesame was promptly attended. It is submitted in the version thatthe bushes silent block had to be replaced on 10-3-2018 due lackof proper alignment work being carried out by the complainant.There was absolutely no complaint regarding the alignment oruneven wear of tyre or any under body sound of the vehicle on4-6-2019. The allegation to the contrary to this facts is false.There is no fault imperfection shortcoming or deficiency inservice on the part of the first opposite party.
Version of the second opposite party is as follows:
Complainant is not a consumer as defined in consumerprotection act. The second opposite party who is the Manager ofthe Mahindra and Mahindra Ltd is not liable for the anytransaction of the company. The transaction between theMahindra and Mahindra Ltd and first opposite party were onprincipal to principal basis. There is no privity of contractbetween the complainant and the second opposite party.
The complainant had purchased a Mahindra Supro ZX BSIII(5seater)WD from the first opposite party. The vehicle waspurchased on 31-3-2016 and the complaint was haplessly barredby limitation.
The second opposite party is selling every vehicle with warrantyand the standard warranty of the subject vehicle is 2 years or60,000 Kms whichever is earlier from the date of sale which issubject to the terms and conditions of the warranty. It issubmitted that the caster and camber are parameters of wheelalignment. Out of this camber is variable parameter, it dependson various parameters like road condition , vehicle drivingspeed in poor road conditions while crossing speed breakers,driving habits etc. If it is disturbed, it is the owner’s or driversduty to get it cleared and fixed at the earliest. If neglected, it
will result in vehicle side pulling or abnormal tyre wear. When the vehicle is driven high speed in the rough road or speed breakers , the wheel balancing will be disturbed and it will cause unusual jerk/wobbling while driving. It is submitted that there is no inherent manufacturing defects in the camber.
As per the vehicle history, the vehicle neither reported to workshop on 13-9-2016 nor the complaint reported any complaint regarding the tyres when the vehicle was reported to servicecentre on 19-11-2016 , the complainant never reported about the tyre wear issue. The vehicle was sent on 14-1-2017for the third free service and no complaint was reported abouttyre wears. Further on 25-2-2017 complainant made acomplaint about tyre wear, but found that the issue is due to thedisturbance in the wheel alignment. . On 30-9-2017 the vehicle was reported for 3000kms service and the requiredjobs were done as per schedule. It is submitted in the version ofthe second opposite party that whenever the complainantreported for maintenance service, the required jobs were carried out as per the schedule. The second opposite party is not aware of the replacement of tyres by the first opposite party.
On 16-12-2017 the vehicle was reported for the complaint ofsuspension noise in the rough road and tyre wear. The issuesoriginated not due to the manufacturing defect in the vehicle.The tyres were offered to the complainant as a goodwill jesture cost sharing basis to support the customer. There was noservice on 1-5-2018 as per the vehicle history and the previousjob card was closed later only due to the pendency of approvalof the items in the last service. During the said service, thevehicle reported stating engine getting off, front under body sound while running and abnormal tire wear. On inspection, service personnel had noticed that the fuel pump was the issue for engine getting off, so the fuel pump was replaced under warranty. A rubber bush was cut which causes the noise while driving is replaced and the disturbances in wheel alignment was the cause of the issue for tyre wear but the complainant refusedto do wheel alignment , so the vehicle was delivered withoutcompleting the wheel alignment. The second opposite partymade arrangements for inspection and even though there was no manufacturing defect and the suspension issues originated due to operational abuse, decided to replace the complete suspensionto win back the confidence and satisfaction. It was completed on23-11-2018. The suspension was replaced after properinspection by the technicians. It is submitted in the version thatin June 2019 first opposite party had withdrawn from thedealership. The service centerie M/S Interpid Works Pvt ltd oninspection found that wheel alignment was disturbed and thecomplainant did not give approval for correcting the wheelalignment and hence the general service maintenance wascompleted.
It is further submitted in the version that before launching everyvehicle has to be tested and approved by the authorizedagencies under Rule 126 of the Central Motor Vehicle Rules.There is no inherent manufacturing defects as alleged by thecomplainant. There was no unfair trade practice or deficiencyin service on the part of the second opposite party.
Evidence of this case consists of deposition of Pw1 and exhibitsA1 to A18 from the side of the complainant. Nirankumar who isthe Service Manager of the first opposite party filed proofaffidavit for and on behalf of the first opposite Party. AravindaGhosh who is the cluster business manager of the second oppositeparty filed proof affidavit and marked Exhibit B1.
On evaluation of complaint, version and evidence on record wewould like to consider the following points.
1.Whether the complaint is maintainable or not ?
2.Whether the complainant has succeeded t prove that thevehicle is suffering from manufacturing defect.?
3.Whether there is any deficiency in service or unfair tradepractice from
the side of the opposite parties?
4. If so what are the reliefs and costs?
Point number 1
The complaint resisted by the opposite parties on the ground that complainant is using the vehicle for commercial purpose and hence the complainant is not a consumer under the purview of consumer protection act. There is no dispute on the fact that complainant purchased a new Mahindra Supro Four Wheel vehicle bearing chassis number MAIFK2HL and enginenumH2F6L34450 from the first opposite party for a sum ofrs5,01,620 on 22-3-2016 which is manufactured and marketed by the second opposite party. It is proved by exhibitA1 that the complainant had paid Rs.5,01,620 to the firstopposite party towards the price of the said vehicle on 22-3-2016.
Section 2(1) (d)(i) of the consumer protection act 1986 definesthe “consumer” means any person who-
- buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”
The main contention of the opposite parties that thecomplainant had plying the vehicle as a taxi for making profitby engaging a driver and the complainant is not a consumer.The opposite parties havenot adduced any evidence to show that the complainant had engaged a driver to plying the vehicle as a taxy.More over the opposite parties did not adduce any evidence to show that the complainant had other source of income than theincome from this vehicle. The complainant had specificallypleaded that the vehicle in question was purchased by him for personal use or for earning his livelihood by means of self-employment. Therefore we found the point number 1 in thefavour of the complainant and the complaint is maintainable.
Point number 2 to 4 together.
The specific case of the complainant is that the vehicle hasmanufacturing defects of caster and camber. Pw1 in hisaffidavit would depose that from the very inception of driving, he had been dissatisfied with the performance of thevehicle. Main complaint was regarding the performance of thevehicle .According to Pw1 on 28- 8-2016 the vehicle wasjerking unusually due to its camber manufacturing defects onthe front portion and tyres. It is proved by A4,A6,A7,A9andA11job card retail invoices that the vehicle was repaired by thefirst opposite party. It is stated by the opposite parties that thevehicle was sent on 19-11-2016, the complainant neverreported about the tyre wear issue. According to opposite partiesComplaint of alignment was reported first time on 25-2-2017and the same was duly corrected and same was proved byexhibit A7. Thereafter on 30-9-2017 the alignment was furthercorrected and the lower control arm bushes were changed.Exhibt A9 proves that the two tyres of the vehicle was replacedon 15-12-2017 at a mileage of 23747 kms and the complainant paid Rs.2,100 for the same. Subsequently on 10-3-2018, videexhibit A11 the bush silent block were replaced It is admittedby the opposite parties that on 16-10-2018, even though the vehicle was out of warranty from 30-4-2018 since, the struct barassembly were replaced by the manufacturer at free of cost.Thereafter, the vehicle was brought to the first opposite party for the last time on4-6-2019 and he did not report any alignment complaint orabnormal sound from the under body. Opposite parties averred that the complainant is havingassumption about such defect without any basis. It is evidentfrom the records that the all these repair works were donewhen the vehicle has plied 27252 kilometers which was within2 years from the date of purchase. Though the complainantsubmitted that 6 tyres had been replaced due to the inherentmanufacturing defect exhibit A5 proves that the complainanthad replaced only 2tyres. It is pertinent to note that out 5 abovediscussed occasions the vehicle was entrusted 4 times with thefirst opposite party to rectify the defects regarding thecomplaint of wheel alignment and uneven wear of tyres. According to the opposite parties camber is a variable parameter, which depends on various parameters like road condition, vehicle driving speed poor road conditions while crossing speedbreakers, driving habits etc. If it is disturbed, it is the owner’sor drivers duty to get it cleared and fixed at the earliest and if neglected, it will result in vehicle side pulling or abnormal tyrewear. It is evident from the records that the complaint ofalignment was reported first time on 25-2-2017 ie after 10months from the date of purchase. Though the complainantalleges that he had entrusted the vehicle to the first oppositeparty on 3-9-2016 with the complaint of camber but he did notadduce any evidence to prove the same. In order to prove themanufacturing defect the complainant did not adduce any expertevidence .
National Commission in R. Bhaskar vs. D.N. Udani IV (2006)CPJ 257 held that where vehicle has been in use for one year and five months and had run over 9808 km., it is difficult tobelieve that the same suffered from manufacturing defect.
In Sukhvinder Singh vs. Classic Automobile I(2013) CPJ 47 NCheld that to prove manufacturing defect, report of expert isnecessary. Burden of proof is on complainant. Similar view wastaken by Union Territory Commission, Chandigarh in KawaljitSingh vs. Broadway Auto Engg. III(2014) CPJ 212.
In Ajita Chit Fund Pvt. Ltd. vs. Teleco I (2007) CPJ 204 andSwarajMazadevs.P.K. ChaK Kapoor II (2005) CPJ 72, NC heldthat expert opinion is must for proving manufacturing defect.
Consumer Protection Act only defines the word defect by wayof Section 2(1) (f) of the Act which is to the following effect:-
“ Defect means any fault, imperfection or shortcoming in thequality, quantity, potency, purity or standard which is requiredto be maintained by or under any law for the time being in forceor under any contract, express or implied, or as is claimed by thetrader in any manner whatsoever in relation to any goods.”
In such cases we have taken a sustained view that whenever aconsumer goes for a brand new goods like the vehicle hisminimum expectation is that he would not encounter or face anyinconvenience or hardship for few months or a year and if hehad to take the vehicle again and again to the workshop forremoving one defect or the other, he suffers immensely in termsof loss of time, loss of business, physical discomfort andemotional sufferings having not reaped the fruits of payingheavy amount for purchasing a new vehicle.
We have also taken a view that onus shifts to the manufacturerto show that the vehicle does not suffer from manufacturingdefect once complainant has proved and discharged the initialonus that the vehicle was defective. On the basis of largenumber of job cards showing that vehicle was taken on manyoccasion for removing one defect or the other. Large number ofvisits to the workshop from the day of purchase of vehicle forremoving some or other defects is sufficient to draw theinference that the vehicle is a defective vehicle. Thecircumstance of the vehicle having been taken for removal ofdefects within or after the period of warranty leaves no mannerof doubt that the goods sold to the consumer is defective.
Bare perusal of the definition of word defect shows that anykind of fault or imperfection or shortcoming in the quality,quantity, potency, purity or standard which is required to bemaintained by or under any law for the time being in force orunder any contract, express or implied or as is claimed by thetrader in any manner whatsoever in relation to any goods. Thus in our view whenever a manufacturer of the vehicle offersto sell the brand new vehicle to the consumer there is an impliedcontract as to the claim of the manufacturer that the vehiclebeing sold by it 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 bemaintained.
Supreme court has in Ghaziabad Development Authority Vs.Balbir Singh (2004) 5 Supreme Court Cases 65 come downheavily and called upon the Consumer Forum and Commissionsestablished under the Consumer Protection Act, 1986 to not onlycompensate the consumer as to the actual loss suffered by himbut also to compensate him as to the mental agony, harassment,emotional suffering, physical discomfort, loss of business, lossof time by taking vehicle time and again to the workshop.
From the entire factual matrix of the case, it is very clearlybrought out that the vehicle in question is a defective vehiclewhen judged from the definition of defect as containedin section 2(1)(f) of the Consumer Protection Act, 1986. In replyto the legal notice dated 18.07.2003, sent by the secondopposite party to the complainant, there is a non-ambiguousadmission on the part of the opposite parties that the allegationlevelled in the complaint about the defect of uneven tyre wear of the vehicle is true. The basic question is whether this kind ofsituation about the vehicle as admitted in the reply to the show-cause notice can be categorized as manufacturing defect or not.
In the strict technical terminology, this kind of situation may notlead to the conclusion that there is a manufacturing defect; but still, it goes without saying that whatever defect has been observed in the vehicle for which the complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper perspective. It is the boundduty of both the manufacturer and the dealer to attend to the said defect and make it a defect-free vehicle and if they are not in aposition to do so, they should either refund the cost of thevehicle or provide a new vehicle to the consumer.
It is further observed that the Consumer Protection Act, 1986 isa benevolent social legislation as held by the Honble Apex Courtin their judgments from time to time and is aimed at providingfor better protection of the interests of the consumers as definedin the preamble to the Act itself. Given the facts at hand, theinterests of the consumer in the present case can be protectedonly if he is provided a vehicle which is free from defects fromall angles and he is not subjected to the technicalities of provingwhether any manufacturing defect exists or not.
Based on the discussion above, we find that it shall be in thefitness of things if the opposite parties, jointly make anendeavor to remove the defects in the vehicle and give a clear-cut certificate signed by a senior officer of the manufacturer, notbelow the rank of a General Manager, declaring in categorical
terms that the vehicle is free from any defects.
We, therefore,order accordingly and opposite parties are directed to carry out the necessary repairs in the vehicle, make it defect-free and handit over to the complainant along with the certificate asmentioned above within a period of one months from today. Itis further made clear that if the order is not complied as directedopposite parties one and two shall jointly pay a compensationofRs.25,000/- to the complainant together with an interest @9%from the date of this order till realization.
Pronounced in the Open Commission on this the 30th day of June, 2022
Sri. Manulal V.S. President Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Invoice dtd.22-03-16 issued by 1st opposite party
A2 –Owners manual of Mahindra Supro
A3 – Copy of RC book (KL-05-AM-9713)
A4 – Copy of retail invoice dtd.03-09-16 issued by 1st opposite party
A5- Retail invoice dtd.13-09-2016 issued by Cousins Agencies
A6 –Retail invoice dtd.14-01-17 issued by 1st opposite party
A7 – Manual repair order from dtd.25-02-17 issued by 1st opposite party
A8- Bill dtd.25-02-17 issued by New BharathTyres India Pvt. Ltd.
A9- Invoice dtd.16-12-17 issued by 1st opposite party
A10 –Copy of letter dtd.19-02-18 from complainant to the Service Manager, Mahindra, Kottayam (Subject to proof)
A11 – Copy of invoice dtd.01-06-18 issued by 1st opposite party’
A12- Copy of e-mail dtd.04-10-17 to 2nd opposite party (subject to proof)
A13-Copy of e-mail dtd.04-10-17 to 2nd opposite party
A14- Copy of lawyers notice dtd.10-10-19 by Adv. Dinesh S. to the opposite
parties
A15- Postal receipt
A16- Postal AD card addressed to 1st opposite party
A17-Postal AD card addressed to 2nd opposite party
A18 – Legal notice dtd.31-10-2019 by 2nd opposite party to Adv. Dinesh S.
Exhibits marked from the side of opposite party
B1 – Copy of relevant pages of warranty policy (page 145, 146, 148 and 149)
By Order
Assistant Registrar
