SRI BIJAYA KUMAR DAS,PRESIDENT:-
Deficiency in service in respect of non-rectification of manufacturing defect in the Complainant’s newly purchased vehicle are the allegations arrayed against Ops.
2. Complaint, in a brief reveals that complainant being unemployed purchased a Mahindra make Jeetox716 model vehicle on dt.9/3/2016 from Op no.1-dealer by paying an amount of Rs.3,27,238/- being financed by CANARA BANK, Kendrapra(Op no.3) and the said vehicle is registered as OD-29-C-0396. After few months of its purchase it was noticed that there was leakage of oil from left side housing shaft of the vehicle of back wheel. Complainant reported the defects to Op No.1-dealer on dt.7/6/2016 and dt.7/7/2016, but such defects remained as it is. It is revealed from the Complaint petition that Complainant produced the vehicle before another authorized Service centre of Op No.2 namely Aditya Motors, where some parts were changed, but defects existed . As a result the Complainant could not ply his vehicle and incurring expenses by poring oil due to leakage of oil in the wheel housing for which the vehicle remains idle. Further, when the vehicle was produced before Op no.1-dealer for its rectification of defects same could not be possible due to non-availability of spare parts. It is also revealed from the Complaint petition that due to wrong acts of Op no.1&2 complainant sustained financial loss and was not able to pay the installments and interest to Op no.3-Bank and Op No.1&2 are contractually obliged to deliver the service as per the warranty and by not doing so Op no.1&2have committed delivery in service and complainant prays this Forum seeking a direction to Op No.1 &2 to replace the components under the observation of this Honbl’e Forum for 6 months and if such defects is again noticed, the Op no.1&2 be directed to replace the vehicle of similar Model or any other
Model of same Price. It is further prayed that a compensation of Rs.10,000/- be awarded in favour of the Complainant for financial loss and mental agony along with the interest of the loan amount to be realized from Op No.1&2 along with cost of litigation of the dispute.
3. Being noticed UTKAL Automobiles, Cuttack-Op no.1 appeared through their Ld. Counsel and filed written statement by way of preliminary objection and parawise reply. In the written statement it is averred that this complainant as liable to be dismissed in violation of sec.13 of C.P.Act,1986 as there was no expert opinion from the appropriate laboratory or analysis, the complainant lacks the claim to file the present complaint against Op no.1. Op no.1 in the parawise reply averred that the vehicle in question is not having any inherent manufacturing defect and the Op No.1 has very carefully removed and repaired the problems without any extra charge. It is also averred that Op no.1 received the vehicle on dt. 7/6/16 and repaired, the job card with leak transmission/tranaxle oil from LH driving shift oil seal of complainant removed with satisfaction. On dt. 17/8/16 as per the discussion and understanding the saft was not available and on its availability it was informed to complainant on dt. 19/9/2016 by Op No.2 through Regd. Post A.D, but Complainant did not turn up. The vehicle is totally made for running condition dt. 7/6/16 and 26/7/16. It is further averred that complainant is not maintaining the proper standard of pressure in front and back side tyres as per the guide lines, which shows the negligent way of handling of the vehicle and faulty driving of Complainant. The allegations of the complainant are vague and baseless and the Op No.1 has acted promptly to render service to complainant and the circumstances the complainant be directed to pay compensation to the Ops for such vague and defamatory allegations.
Op No.2, manufacturing Company, Mahindra & Mahindra Pvt. Ltd. made their appearance through ld. Counsels in receipt of the Notice and filed written version. The written version of Op no.2 contains preliminary objection and parawise reply. In the written statement Op no.2-Company introduced their credentials being the manufacturing Company with widest network of service centre throughout the country to satisfy their valued customers Op No.2-Company in their preliminary objection states that the complaint is not maintainable as the complainant fails to define himself as a ‘consumer’ as per the definition of C.P.Act.1986, secondly, the allegation of manufacturing defect is not supported by any expert evidence and citing the decision of Honbl’e Apex Court in the case of Bharati Knitting Company Vs DHZ world Express Courier(19996)4,SC704 and as per the terms & condition of the warranty complainant is debarred from claiming any compensation and the complaint is liable to be dismissed U/S 26 of the C.P. Act, further the fate of the complaint to be decided first as per this preliminary objection. Op No.2 Company in the parawise reply averred that on complaint the vehicle of complainant on dt.7/6/16, was checked by TEK limer, and the oil seal drive shaft(LH) –R had been replaced under warranty and the said defects were removed on dt. 20/6/2016 as well as on dt. 6/8/2016 for which the complainant paid a total sum of Rs. 729/-. It is also averred that due to non-availability of spares the complainant was requested to leave the vehicle at the workshop, but the complainant did not agree to the proposal. After availability of spares OP-Company on dt. 29/8/16, on telephonic message and in sending of letters, on 19/9/2016, informed the Complainant, instead of availing the spare parts complainant filed the present case. It is also averred that answering OPNo.2 has tried their best to intimate the complainant for replacement of the spare on its availability and has not committed any deficiency in service and complainant is not produced the vehicle intentionally for which the complaint is liable to be dismissed. CANARA BANK, kendrapara, Op no.3 upon receipt of the Notice appeared through their Ld. Counsel and filed written statement supporting the version of complainant and further averred that complainant has intimated the Op no.3-Bank regarding existance of defect in the said vehicle even after Checking by Op no.1-dealer. It is also stated that the present disputes and reliefs, if any are claimed against OP no.1&2 and not against Op no.3-Bank and if the present complaint is allowed Op No.3-Bank has no objection.
4. Heard the arguments advanced by Ld. Counsels for the Complainant and Op no.2 and case of the other Ops on merit. The addmitted fats of the case are that complainant purchased a Mahindra make Jeeto x 716 Model vehicle from Op no.1 being financed by Op-Bank. It is also admitted that some defects of the vehicle were removed by authorized service centre of Op-Company during the existance of the warranty period on payment by the Complainant. It is further admitted that certain spare parts were not replaced due to its non-availability at that time and till date same is not replaced.
Op No.1 &2 in their written statement raised the question of maintainability of the Complaint on grounds that the Complaint is excluded from the definition of ‘Consumer’ as per the sec2(d)(ii) of C.P.Act,1986 as the case vehicle is used for commercial purpose, further as per the sec13 of the Act, Complainant has not produced any expert opinion or labrotary test report to substantiate the allegations. In these contentions Op No.1&2 do not filed a single scrap of paper that complainant has purchased the disputed vehicle to make huge profit out of the same and it was not used for ‘self-employment’ as revealed from the complaint petition, Further, In this regard we rely on a decision of Honbl’e Apex Court in case of Chima Engineering services vs Ranjan Singh (1997)1SCC131 where Honbl’e Apex Court opined that if a person buys a machine, motor vehicle etc. for his self-sustenance, he is well within the definition of ‘consumer’ as per C.P.Act, 1986. When the defects of a vehicle is detected and removed within 3 to 6 months of the purchase during its warranty period as averred by the Op-Company, it is not always necessary to take expert opinion for just maintainability of the complaint. Hence, the complaint is well within purview of C.P.Act,1986.
The crux of dispute between the parties relates to non-replacement of spare parts. It is the version of the Op no.1&2 that the defect of the vehicle was reported on dt. 17/8/2016as the spare part ‘shaft’ was not available, complainant was asked to left the vehicle for replacement of the shaft on its availability. Op no.1 dealer informed the complainant on dt.19/9/16 and 29/9/16 requesting to bring the vehicle for replacement of spare part as the same was available. Complainant filed the copy of the letter dt.19/9/16 and 29/9/16, and submitted that as the matter was pending sub-judice before this Forum and as the vehicle remains idle for non-functioning and the complaint is not financially sound enough to bring the vehicle into Op No.1’s dealer work shop for replacement of spare parts and the vehicle was not road worthy for ply.
It is crystal clear from the complainant, written statement of Op no.1&2 and the documents presented that complainant purchased a Jeetox716 Model vehicle from OP no.1-dealer and the manufacturing Company is OP No.2. The defects of the vehicle was repaired on payment on two occasions prior to dt.17/8/16, when the spare parts ‘shaft’ was not available for replacement. According to our opinion if a newly purchased vehicle shows defects in few months of its purchase it may not be a inherent manufacturing defect, but the defects and its repairing definitely gives financial loss, mental agony and emotional pain to its customers. It is further aggravates when the spare is not available for a period for more than a month, which extends the financial loss to the complainant who purchased the vehicle for self-sustenance.
However, when the Op no.1&2 fairly admits that the spare parts is available with them for its replacement, complainant should avail the opportunity. As, we have observed earlier, the vehicle has shown defects within few months of the purchase, and the said defects are to be rectified, but it definitely should be a defect free one, We feel quite surprise that none of the parties have filed copy of warranty and its terms & conditions for better appreciation of the Forum and for ends of Justice.
Having observations reflected above, it is directed that on production of the case vehicle before Op no.1-dealer by the complainant the ‘shaft’ of the vehicle to be replaced by a new one and other minor repairs if required is to be carried out by Op No.1-dealer on free of cost. With the assistance from Op no.2-Company. Further, Op no.2 will pay Rs.5,000/- (Rs. five thousand only) to the complainant as compensation for financial loss, within one month of receipt of this order, failing which 9% interest will be imposed for the delayed period for non-compliance of the order. We, freed Op no.3-Bank for any such liability of deficiency in service.
Accordingly, Complaint is allowed in part without cost.
Pronounced in the open Court, this 16th day of March,2017.
