Date of Filing :   29.07.2013 

    Date of Order :   16.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT             

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 237/2013

FRIDAY THIS 16TH   DAY OF JUNE 2017

 

Mr. G. Balaji, 

No.15, Daniel Street, 

Adambakkam, 

Chennai 600 088.                                        .. Complainant

 

          ..Vs.. 

1.   The Managing Director, 

Mahindra & Mahindra Ltd., 

Automotive Division, AFS, 

Mhindra Tower, 3rd Floor, 

Akurli Road, Kandivali (East), 

Mumbai 400 101. 

 

2. The Managing Director, 

Zulaikha Motors Pvt. Ltd., 

Authorized Dealer of Mahindra & Mahindra, 

398 & 398A, Velachery – Tambaram Main Road, 

Velachery, 

Chennai 600 042.                                            .. Opposite parties. 

 

 

Counsel for Complainant            :    M/s. N.A.S. Richard & another     

Counsel for opposite party-1      :    M/s.Shivakumar & Suresh 

Counsel for opposite party-2    :     Exparte.      

 

ORDER

THIRU. M. MONY, PRESIDENT 

This complaint has been filed by the complainant against the opposite parties under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of 13,83,026/-  towards the cost of the vehicle and also to pay a sum of Rs.2,00,000/- towards compensation for mental agony and Rs.1,60,000/- towards damages for unfair trade practice and also to pay a sum of Rs.8,000/- towards travelling expenses and Rs.25,000/- as cost of the complaint. 

 1. The averments of the complaint in brief are as follows: 

 The complainant submit that he purchased XUV500 W6 vehicle from the opposite party on 7.5.2012 for a sum of Rs.13,83,026/- as per invoice.  Thereafter on account of the repeated malfunction, the complainant felt it hard and risk to use the vehicle continuously and the same was duly brought to the knowledge of the service engineers of the 2nd opposite party on 6.7.2012 for fixing the same.   Again the said vehicle was taken to the 2nd opposite party service station.   The complainant also state that the service engineers attached to the 2nd opposite party on checking up the vehicle thought it fit to replace the front tyres as the same would put an end to the recurring malfunction.   

2.    Further the complainant state that it is very unfortunate and appalling that inspite of the said repeated services given by the service Engineers and their failure to rectify the reported malfunctions clearly shows that an irretrievable defect has been intrigued in the vehicle.    Despite of repeated requests and demands the opposite parties not rectified the above said manufacturing defect.  Accordingly the complainant issued a legal notice dated 7.3.2013 to the opposite parties and the 1st opposite party replied that they are in the process of collecting the relevant details for sending.   Even though the engineers replaced some parts the vehicle again showed the reported malfunctions / defects and inspite of the notice both the opposite parties evaded to replace the defective vehicle till this day.   As such the act  of the opposite parties amounts to deficiency in service  which caused mental agony, trauma and hardship to the complainant.  Hence the complaint is filed. 

3. The brief averments in  the Written Version of  the  1st opposite party    are as follows: 

The 1st opposite party deny all the averments made therein except those that are specifically admitted herein.   The 1st opposite party states that after the purchase, the utility vehicle in question reported first time on 6.7.2012 at 1713, k.ms for the purported complaints of left pulling, gear shifting hard and was addressed satisfactorily by replacing bolt, gear oil and hose pressure pump under warranty.   Subsequently the utility vehicle reported on 21.8.2012 at 5,290 kms for 1st free service along with the complaints of LHS Pulling 2nd and reverse gear shifting time noise, brake noise etc. and front number plate.   Thereafter the utility vehicle reported on 17.9.2012 at 6,357 kms.  For the purported complaints of LHS pulling, gear shifting hard, wobbling at 30 to 40 km speed & RHS indicator not centering.  When the opposite party No.2 thoroughly diagnosed the vehicle no such complaints were found to be present in the vehicle.  

4.    Further the 1st opposite party  also state that the observations recorded by the service advisor on the job card and steps taken for resolution of the complaint, would clearly establish whatever complaints raised by the complainant were only the apprehension of the complainant and there are no such problems present in the utility vehicle.   The 1st opposite party further state that  whenever the complainant has reported for the alleged problems of vehicle pulling & gear shifting hard, the vehicle has been thoroughly checked and no such alleged problems has been found.   The workshop has also conducted test drive of the vehicle wherein the pulling as well as gear shifting has been found normal.   Hence it is cleared that whatever grievance has been brought by the complainant, the same was attended and rectified satisfactorily under the warranty policy free of costs by way of exceptional services provided by the workshop hence, there cannot be any question of manufacturing defect or deficiency in service meriting replacement of the vehicle.    Further the complainant has alleged a bald statement about selling a defective vehicle without producing expert report from an authorized laboratory as per the provisions of the Act and in the absence of the same, the allegations are baseless and misconceived.    Hence there is no deficiency in service on the part of the 1st opposite party and the complaint is liable to be dismissed. 

5.     Inspite of service of notice, the opposite party-2 is called absent and set exparte. 

6.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A24 marked.  Proof affidavit of  1st opposite party  filed and Ex.B1 marked on the side of the 1st  opposite party and also Ex.C1 is marked. 

7.   The points for the consideration is:   

 

 

1) Whether the complainant is entitled to a sum of Rs.13,83,026/- towards cost of the vehicle as prayed for ? 

 

2) Whether the complainant is entitled to a sum of Rs.2,00,000/- towards mental agony and Rs.1,60,000/- towards unfair trade practice and Rs.8,000/- towards travelling expenses and Rs.25,000/- towards cost of the complaint as prayed for ? 

 

 

8. POINTS 1 & 2 :-

 

Heard Both sides.  Perused the records.  Admittedly the complainant purchased XUV500 W6 vehicle from the opposite party  on 17.4.2012 for a sum of Rs.13,83,026/- as per Ex.A1 invoice.   From the date of purchase itself the complainant experienced the manufacturing defect in the said vehicle and was taken to the opposite party service centre for 1st free service on 6.7.2012 at the stage of crossing 1713 k.m. and reported the defects in the car.  The opposite parties after routine service gave a job card Ex.A5 stating that 

1. Vehicle LHS pulling. 

2. 2nd & reverse gear shifting time noise, 

3. Break noise 

4. RR LHS door inner handle to be fix 

5. Hand brake not effective 

6. Front number plate to be fix properly. 

7. Front RHS indicator not auto cut off 

8. USB Port to be check. (small USB)

9. Check mileage to 12.5 

10. Seat adjust 

11. Head Light to be adjust 

Even after the first service the complainant experienced such defects in the vehicle continuously for a long time.   The complainant informed the opposite parties and took the vehicle to the opposite parties for 2nd service on 1.9.2012 after crossing 5518 k.ms.  The opposite party after service handed over the vehicle with the following defects.  

1. Vehicle LHS pulling 

2. USB port not working 

3. Gear shifting hard.

Thereafter till date the said defects namely. 

1. LHS dragging, 

2. Steering hard

3. Gear & Reverse gear hard 

4. The clutch shuddering 

5. Remote key lock not working 

6. Gear rod knob getting crack & broken, 

Check B/TN/W when ignition is ON after parking but B/T already paired before. 

7. Check engine and OBD glowing and vehicle not starting, were  not repaired, but persisted. After repeated requests and demands the opposite parties are not inclined to rectify the above said manufacturing defect.  Hence the complainant issued legal notice Ex.A14 dated 7.3.2013 for which the opposite parties sent reply stating that they are in the process of collecting the relevant details for sending.   Since the opposite parties has not come forward to rectify the said manufacturing defect,   the complainant was constrained to file this case.  When the case is pending the complainant filed CMP No.236/2013 for sending the vehicle to MIT for examining the car and giving expert opinion who is authorized by Government.   The MIT also after complying all the formalities like checking, driving etc. sent a report Ex.C1 dated 8.10.2014 with observation that 

1. The vehicle was tested with well experienced driver, mechanics and    

      teaching faculty. 

2. The vehicle was tested both in running condition as well as stationery 

  condition 

3. Before starting the test, the tyre pressure in the front wheel has kept 

  at 32 PSI and rear wheel has kept at 30 PSI. 

 

4. The vehicle was tested under various operation conditions with the vehicle speed of 10 km/hr to 140 km/hr, under test conditions. 

 

5. The vehicle is having left drag during all operating conditions. 

 

6. A service symbol has appeared in the dash board display, when the ignition switch is on and glows during the running condition also.   But normally when the engine is started that symbol will disappear. 

7. A 3mm rust information appears at just above the driver seat in the roof. 

The only objection to the expert opinion of MIT  filed by the opposite party is that at the time of inspection of the vehicle by MIT authority he was not available is not acceptable because due notice was given to the opposite parties’ counsel on 21.9.2014 with regard to the inspection of the vehicle by MIT.   But neither the opposite party nor the opposite party’ counsel chosen to be present at the time of examination of vehicle by the complainant.  The manufacturing defect alleged by the complainant is confirmed by the expert opinion given by MIT also.   The complainant  is claiming a sum of Rs.13,83,026/- towards cost of the car and Rs.2,00,000/- towards mental agony on the ground of risk taken and a sum of Rs.1,60,000/- towards unfair trade practice and other incidental expenses.  

9. The learned counsel for the opposite party would contend that the alleged defect is not a manufacturing defect. The complainant still holding the vehicle and using the vehicle continuously.  The claim of the complainant for a new car or cost of the car cannot be granted after a lapse of 5 years, but it is seen from the records from the very inception of the purchase of the vehicle the complainant experienced such manufacturing defects and it was duly informed to the opposite parties service centre from the 1st  service itself after crossing 1713 k.m.    The said defects also noted  all the job cards namely Ex.A1, Ex.A5, Ex.A6, Ex.A7,  Ex.A12, Ex.A13 and Ex.A15.  The opposite parties has not stated any reason for  the  above said defects in the vehicle and has not taken any steps to rectify the same.   Thereby the opposite parties failed and neglected to rectify the defect; it amounts to manufacturing defect.  If the defects are not a manufacturing defect the opposite parties’ service centre can very well rectified the defects.   Further the learned counsel for the opposite parties contented that the claim of cost of the vehicle i.e. Rs.13,83,026/- by the complainant cannot be granted after lapse of such long five years and using the vehicle till date is not acceptable, since the said manufacturing defect has been identified by the opposite parties and failed to rectify the same without any reason.  Equally the complainant shall not  put to take such risk while travelling the vehicle.    Further the learned counsel for the opposite party contended that the claim of mental agony and unfair trade practice never arise in this case.   The claim towards travel expenses and other expenses are unwarranted. Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 & 2 are jointly and severally liable to replace the entire unit causing such defect in the Motor Vehicle within one month failing which the opposite parties shall pay the cost of the vehicle (i.e.) Rs.13,83,026/-  and compensation of  Rs.40,000/- towards mental agony and cost of Rs.5,000/- to the complainant and points 1 & 2 are answered accordingly.   

 In the result, the complaint is allowed in part.   The opposite parties 1 & 2 are jointly and severally liable to  replace the entire unit causing such defects in the Motor vehicle  within one month from the date of this order i.e. 16.6.2017 failing which the opposite parties shall pay the cost of the vehicle (ie.) Rs.13,83,026/- (Rupees Thirteen lakhs eight three thousand and twenty six only)  and  compensation of Rs.40,000/- (Rupees Forty thousand only) towards mental agony and also cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.   

The above  amount shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.       

  Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  16h   day  of  June 2017.   

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 17.4.2012 - Copy of Profoma Invoice.

Ex.A2- 23.4.2012 - Copy of Tax invoice issued by 2nd opposite party. 

Ex.A3- 23.4.2012 - Copy of Tax invoice issued by 2nd opposite party. 

Ex.A4- 7.5.2012 - Copy of vehicle registration certificate. 

Ex.A5- 21.8.2012 - Copy of Job order 

Ex.A6- 1.9.2012 - Copy of Job order. 

Ex.A7- 1.9.2012 - Copy of Job order. 

Ex.A8- 10.9.2012 - Copy of vehicle given for service. 

Ex.A9- 16.9.2012 - Copy of holiday voucher and reservation receipt. 

Ex.A10- 16.9.2012 - Copy of Toll Plaza receipt. 

Ex.A11- 17.9.2012 - Copy of letter issued by the complainant. 

Ex.A12- 17.9.2012 - Copy of job order. 

Ex.A13- 19.12.2012- Copy of Job order. 

Ex.A14- 7.3.2013 - Copy of legal notice issued to the opposite parties. 

Ex.A15- 11.3.2013 - Copy of job order 

Ex.A16- 2.4.2013 - Copy of reply issued by 1st opposite party. 

Ex.A17- 13.5.2013 - Copy of job order 

Ex.A18- 14.5.2013 - Copy of Tax Invoice issued by VST Auto Agency. 

Ex.A19- - Copy of vehicle history issued by 2nd opposite party. 

Ex.A20- 23.1.2015 - Copy of job work order. 

Ex.A21- 18.2.2015 - Copy of job work order. 

Ex.A22- 11.3.2015 - Copy of job Work order. 

Ex.A23- 23.3.2015 - Copy of Job work order. 

Ex.A24- - Copy of reviews / opinion about the vehicle. 

 

Opposite parties’ side document: -   

Ex.B1- 14.5.2013 - Copy of Repair Order. 

Court’s Exhibits: 

Ex.C1 : Expert opinion from the MIC, Chennai 44. 

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.