Date of Filing      : 05.11.2015

                                                                                                                    Date of Disposal: 15.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                       .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                                 ..… MEMBER-I

                 THIRU.P.MURUGAN,B.Com.                                                                           ....MEMBER-II

CC. No.48/2015

THIS FRIDAY, THE 15th DAY OF JULY 2022

 

Mr.P.Raja,

No.125. Ward -1, Pootheri Murugakoil,

Pullavakkam, Pootheri Pulakam,

Thiruvnnamalai - 604 407.                                                                ……Complainant.

 

                                                 //Vs//

1.The Managing Director,

   Mahindra and Mahindra Limited,

   Automotive Sector,

   Mahindra Towers,

   3rd Floor, Akuril Road,

   Kandaveli (E), Mumbai - 400101.

 

2.The Managing Director,

   Zulaikha Motors private Limited,

   10/8(SP), 3rd Main Road, Ambattur Indusrial Estate,

   Ambattur, Chennai- 600 058.

 

3.The Customer Care Manager,

   Zulaikha Motors Private Limited,

   10/8(SP), 3rd Main Road, Ambattur Indusrial Estate,

   Ambattur, Chennai- 600 058.

 

4.The Service Manager,

   Zulaikha Motors private Limited,

   10/8(SP), 3rd Main Road, Ambattur Indusrial Estate,

   Ambattur, Chennai- 600 058.

 

5.The Managing Director,

   Jain Cars and Auto Sales Private Limited,

   108, Venkatapuram New Vasoor,

   Vellore - 632 009.                                                                   ..........Opposite parties. 

 

Counsel for the complainant                                           :   M/s.C.Uma Shankar, Advocate.

Counsel for the 1st opposite party                                 :   Mr.G.Nanthagopal, Advocate. 

Counsel for the 2nd to 5th opposite parties                :   exparte

                         

This complaint is coming before us on various dates and finally on 29.06.2022 in the presence of M/s.C.Uma Shankar Advocate, counsel for the complainant  and the 1st opposite party remaining absent for oral argument and upon perusing the documents and evidences, this Commission delivered the following: 

ORDER

PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI,   PRESIDENT.

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties in selling defective vehicle along with prayer to direct the opposite parties to replace the defective vehicle viz., Mahindra XYLO bearing model XYLO D4 MDI CRDE BS4 2WD 8 SEAT with new a Mahindra XYLO D4 vehicle with same features without seeking any excess amount and to pay a sum of Rs.7,00,000/- as compensation with 24% interest per annum from the date of complaint till the date of realization to the complainant. 

 

Brief facts culminating in to complaint:

 

Present complaint was filed for the reliefs mentioned above contending that the complainant is a graduate hailing from a poor family believing the advertisements and other media publicities booked opposite party vehicle brand mahindra XYLO, Opposite parties sales personal has promised that the opposite parties company’s vehicle is having a very good quality and customer service. It is stated by the complainant that right from the day of taking delivery of the above said vehicle it was tilting towards the left side and that too when the brakes are applied with the passengers are inside the vehicle. The vehicle gets pulled towards left side and the body hits the road. The complainant had purchased the said vehicle through hire purchase by hypothecating with cholamandalam finance, Chennai-2., by paying monthly instalment of Rs.19,220/-. The said vehicle is not fit for any road conditions and whenever passengers travel the vehicle pulls towards left side and the front left side of the vehicle is lowering day by day. The Complainant noted the said defect and brought it to the notice of the service manager and customer care manager of Mahindra at Chennai Zulaika Motors Pvt Ltd., who are the authorised service providers of Mahindra. The said defect was informed in the first service itself and from june 2015 he had been repeatedly leaving the vehicle for repair for the said defect at zulaika Motor Pvt ltd., and it was not all rectified and to this effect several Email complaints regarding the fault in the said new vehicle was made but the same was neither rectified nor the spare were replaced inspite of warranty. Moreover the service personal verified and had stated that the vehicle contains manufacturing defect which could not be rectified by them. Even after several services the main defect of tilting towards left side because of bend in the chassis was not rectified by the service personnel’s. Due to which the complainant was put to great loss, hardship and irreparable damages because of the poor service and quality of the vehicle which have been sold to the complainant. Further the lower arm and chassis in the said vehicle were confirmed to be fault and the coil spring was also changed during service. But even then the problem subsisted. On several occasions the vehicle was left for service to rectify the mistake but the same cloud not be rectified as it is manufacturing defect. Hence the complainant called upon the opposite parties to replace a new vehicle in place of the present vehicle which is defective and not suitable for any road condition. Further all the passengers travelling in the vehicle are at risk and the complainant is put to financial loss where he is paying the EMI for the said vehicle out of his pocket and the warranty for the said vehicle has also not lapsed and within one month from the date of his purchase he had faced hardship with regard to quality and service of the above branded vehicle, hence the opposite parties are fully responsible and the complainant was driven pillar to post by authorised dealer on one hand and service centre personnel’s on the other hand. The opposite parties caused deficiency in service and mental stress and agony to the complainant and his family members. Finally with no other option the complainant caused a legal notice on 9.10.2015 having received the said notice none of the opposite parties replied or communicated for the same. Thus aggrieved by the acts of the opposite parties the present complaint came to be filed before this commission. 

Crux of Defences raised by the 1st opposite party:

The 1st opposite party filed a detailed version stating that no deficiency in service on it,  the vehicles manufactured at the plant of this opposite party are thoroughly inspected for control systems, quality check and test drive before passing through factory works for dispatch to the authorised dealers appointed on a ‘Principal to principal’ basis for sale of the vehicles. The 2nd to 5th opposite parties are having excellent work shop setup for sales and servicing of the vehicles which are manned by qualified and experienced personnel across the country through a large net work of authorised dealers, authorised service centres and authorised service points providing scheduled services, running repairs, major repairs, spare parts support and even dedicated helpline for repairs to the vehicles and also to attend break down 24x7 toll free help line. The manufacturers of the vehicles and vehicle owners are bound by terms and conditions of the warranty policy applicable for the vehicles. Further the complainant is not a consumer within the meaning of the term “consumer’ as defined under section 2(1) (d) of the consumer protection Act, 1986 as the vehicle in question has been used extensively by the complainant for commercial activities and as such the complainant is not entitled for any relief from this Commission. The Hon’ble supreme court of India in the case of Laxmi Engineering works Vs PSG Industries Institute (1995 II CPJ I (SC) held that, if any person has obtained goods for commercial purpose with a view to using the said goods for carrying on any activity of profit, other than exclusively for self employment, such person is excluded from the purview of the consumer protection Act and accordingly this complaint is not maintainable. Further the vehicle require mandatory servicing and replacement of specified components for smooth running and optimum performance and the same are mentioned in the owner’s manual and the do’s and dont’s of the utility vehicle. Further the vehicle was delivered after carrying out pre-delivery inspection by the dealer and approved by the Automotive Research Association of India and any repairs, the complaints/grievances of the customer are recorded in the job card which do not imply admission of any defects in the vehicle, but a mere representation of the customer’s grievances on the said vehicle. The vehicle is checked by the workshop inspector and by diagnostic expert cum trainer during pre and post repairs to ensure quality workmanship and all is done by trained personnel’s and at the time of delivery of the vehicle after every service /repairs to the entire satisfaction of the customer. Hence, there cannot be any complaint of deficiency of service against this opposite party by the complainant and the complaint deserves to be dismissed with cost. Further in the case of Dr.Kumar Advisor (engineering), Maruti Udyog Ltd. Vs Dr. A.S. Narayana Rao & another (I (2010) CPJ (NC) for the necessity of expert evidence to prove the submissions of manufacturing defects in the vehicle made in the complaint. Further the vehicle has covered 20,333 kms from 13.5.2015 till 7.11.2015 and it is road worthy. In the case of Maruti Udyog ltd vs Susheel Kumar Gabgotra & Anr (JT 2006 (4) Sc 113) supreme court has held that “the manufactures cannot be ordered to replace the car or refund it price merely because some defects appears which can be rectified or defective part can be replaced under warranty”.  And in the Supreme court case of Bharti Knitting Company Vs DHL Worldwide express courier (1996) 4 SCC 704 were by it was held that when  the complainant signs the contract documents he is bound by its terms and conditions and the onus would be on him to prove the terms and circumstances in which he has signed the contract. Thus submitting that there is no manufacturing defect and it will not fall under the consumer protection Act and the complainant has to approach the civil court.  

On the side of complainant proof affidavit was filed and documents Ex.A1 to Ex.A8 were marked.  On the side of 1st opposite party proof affidavit was filed and documents Ex.B1 to Ex.B8 were marked. Though sufficient opportunities was given to the 2, 3, 4 and 5th opposite parties they have not filed vakalath and written version and hence these opposite parties were set exparte on 18.01.2016.

Point for consideration: 

Whether the complainant has proved that the opposite parties have committed deficiency in service?

If so to what relief the complainant is entitled?

 Point;

On the side of the complainant following documents were filed in support of his allegations;

The Invoice issued by the 5th opposite party to the complainant dated 30.04.2015 was marked as Ex.A1;

Registration Certificate in the name of complainant was marked as Ex.A2;

Service history of the vehicle was marked as Ex.A3;

Notice issued by the 3rd and 4th opposite parties to the complainant dated 26.08.2015 was marked as Ex.A4;

Repayment schedule issued by the Cholamandalam Investment and Finance Company Limited to the complainant dated 21.09.2015 was marked as Ex.A5;

Email conversations was marked as Ex.A6;

A legal notice issued by the complainant to the opposite parties dated 09.10.2015 was marked as Ex.A7;

Acknowledgement card for receipt of notice was marked as Ex.A8;

On the side of the 1st opposite party following documents were filed in support of its contentions;

Warranty information and Maintenance Guide was marked as Ex.B1;

 

Repair order receipt issued by the opposite party to the complainant dated 13.05.2015 was marked as Ex.B2;

Tax invoice in the name of complainant dated 27.06.2015 was marked as Ex.B3;

Satisfaction note was marked as Ex.B4;

Tax invoice dated 22.08.2015 was marked as Ex.B5;

Tax invoice (Duplicate Copy) dated 31.08.2015 was marked as Ex.A6;

Owner’s manual was marked as Ex.B7;

Tax invoice was marked as Ex.B8;

 The pleadings and documents submitted by both the parties were perused. The counsel for the complainant submitted that the vehicle was found with defects right from the day of purchase and it is informed to the repairer on each and every service which had been done periodically, Where in the defect was persisting even after replacement of certain parts as specified by the service personnel of the opposite party as the same could not be rectified even thereafter. So, the same was found as manufacturing defect in the said vehicle and not because of any improper usage.

The crux of the written arguments by the 1st opposite party is that there is no deficiency of service on the part of the opposite parties as the vehicle was delivered after pre delivery inspection and the complainant had neglected to follow the guidelines given in the owner’s manual as recommended for smooth and maximum performance of the vehicle and correct operating procedures for effective maintainance and smooth running of the vehicle. Thereafter the authorised personnel of the opposite party has done the repairs as complained by the complainant and the vehicle does not suffer from defects on the above said reasons.

We considered the pleadings and documents, written and oral arguments advanced by both the parties. It is an admitted fact that the vehicle new Mahindra XYLO D4 vehicle was purchased by the complainant from the 5th opposite party by invoice dated: 30.4.2015 as evidenced by Ex.A1 and the same is registered as per the registration certificate filed as Ex.A2. The service history of the vehicle is filed as Ex.A3 which shows that the vehicle was left for first service on 01.8.2015 with the 2nd opposite party which also extracts one of the job was that the Front Left hand side suspension hight very low to check and accordingly service was done. Further the second service history of the vehicle is also filed as Ex.A3 which shows that the vehicle was left for service on 22.8.2015 with the 5th opposite party and the customer demanded Repair/customer verbatim which mentions about the Front Left hand side suspension not action for turning Time. The Ex.A4 is the letter addressed to the complainant by the 3rd & 4th opposite parties which refers to the subject that “your feed back: “complaint still in vehicle not rectified”. Further the Email conversations filed as Exhibit A6 for the period of 25.9.2015 to 1.10,2015 shows the problem in the vehicle has been informed to the opposite parties and the same was rectified in the subsisting warranty. Further even after several services the defect of tilting towards left side is not rectified by the service personel’s of the opposite parties. The coil spring was also changed during the service but the said problem was persisting. The legal notice issued by the complainant which is filed as Ex.A7 have been received by all the Opposite parties and the Acknowledgement for the same are also filed which is filed as Ex.A8. But none of the opposite parties have chosen to reply the notice and could not rectify the problem. The Documents produced by the 1st opposite party the Ex.B2 to 6 are concerned it is the Tax Invoice, Repair orders with the satisfaction note which does not contain the signature of the complainant and therefore the contention made by the 1st opposite party that the complainant was satisfied with the car cannot be taken for consideration. Moreover the tilting of vehicle to left side as made by the complainant is not answered properly by the 1st opposite party. The Ex.B7 i.e. The owner’s manual produced by the 1st opposite party on handling the vehicle is complied by the complainant and accordingly the services were also made with the opposite parties but the said problem was not rectified by the opposite parties which makes us to come to a conclusion that the vehicle is defective.   

Further it is found from the documents filed by the complainant that even after the replacement of the parts as specified by the service personel’s of the opposite parties the problem was persisting. In these circumstances we have no other option other than to come to a conclusion that there is defect in the said vehicle. 

With regard to the owner’s manual it is seen from the documents filed by the complainant that the vehicle has been maintained with the opposite parties by the periodical services and complaints made to this effect which would go enough to prove that the vehicle is maintained with the 3rd opposite party who is none other than the authorised personnel of the 1st opposite party and accordingly the allegation made by the opposite party to this cannot be sustained. 

The 1st opposite party being a well established company with all the facilities and equipped with all the spare parts is not able to rectify the complaint made by the complainant.  Therefore the allegation made by the 1st opposite party to this effect does not hold good on this aspect, when there is a specific allegation by the complainant on the problem persisting in the vehicle which is from the initial stage of purchase which is evidenced through the documents filed by the complainant. Further there is no specific answer to this complaint made by the complainant by the opposite parties except a mere denial on the same.

The contention by the 1st opposite party that the complainant is not a consumer within the meaning of “consumer” as defined under section 2(1) of the consumer protection Act, 1986 as the vehicle is used to commercial activities and it has covered more than 20,333 kms in 6 months as extensively. With regard to this aspect is concerned the complainant is very well within the perview of this section as a consumer having purchased the vehicle for a valuable consideration and the contention made by the opposite party on the usage of the vehicle is baseless. 

With regard to the contention by the 1st opposite party that the vehicle has covered 20,333 kms from 13.5.2015 till 7.11.2015 and it is road worthy and  that the manufactures cannot be ordered to replace the car or refund the price merely because some defects appears which can be rectified or defective part can be replaced under warranty is concerned, this complaint is specific that vehicle is pulling to left and the defect could neither be repaired nor corrected by replacement of any defective part under warranty. Wherein the defect of the vehicle is unidentified one and the same could not be rectified even after several services which was persisting from the date of purchase. Therefore the contention made by the opposite party to this aspect is concerned is not covered under the aforesaid defect on the complaint issue of the said vehicle which from the date of purchase was tilting towards the left side and that too when the brakes are applied with the passengers are inside the vehicle. The complainant has purchased the vehicle believing that the vehicle would run in a proper manner as he followed all the instructions specified by the opposite parties. But even after replacement of the parts and periodical services the problem persisted in the vehicle which needs to be addressed as the defects cannot be rectified by the opposite parties. Hence, only the vehicle has to be replaced.  

With regard to the contention by the 1st opposite party that if the complainant signs the contract documents he is bound by its terms and conditions and the onus would be on him to prove the terms and circumstances in which he has signed the contract. As far as this aspect is concerned the complainant is a consumer under the Consumer protection Act 1986 and has purchased the vehicle believing that the vehicle would run in a proper manner and there is no any such contract as contended by the 1st opposite party except as a lawful purchaser of the vehicle as a consumer. With regard to the contentions made by the 1st opposite party is concerned,  that the manufacturing defect in the vehicle without relying on any expert report from recognised and notified laboratory under section 13 (1) of the Consumer Protection Act and deficiency in service without any documentary evidence in support is concerned a question arises before this commission as to whether the alleged manufacturing defects of the vehicle was successfully proved by the complainant without production of any expert evidence. As we have gone through critically over all the documents produced by the complainant we could see that EX.A3 & A4 shows that the vehicle was often taken to the service station for various issues including the complaint that the vehicle gets pulled towards left side and the body hits the road and for other allied services and every time the complainant had paid for service. In such circumstances, the defect of the vehicle was proved by the service history produced by the complainant. This commission is of the view that the principle of ‘res ipsa loquitor’ will apply and no expert evidence has required to prove the manufacturing defects. Our view is fortified by various definitions and one such definition is rendered by the National Consumer Disputes Redressal Commission in Tata Motors Ltd Vs Navin Nishchal and another dated: 7.8.2012 wherein it is held that “It is clear that reference to an appropriate laboratory (or, Expert) for determination of defects in goods is not entirely mandatory. In this case, based on the admitted evidence that the complainant was required to take his newly purchased car to the workshops of the opposite parties repeatedly practically every month, the District forum specifically observed- counsel for the 1st opposite party in written arguments submitted that there is no expert opinion that there is manufacturing defect in the vehicle. In our view no expert opinion is required in the circumstances of the case as noted above. The vehicle did not run smoothly even for a month and within two months of the purchase it was taken to the workshop of the opposite parties almost every month with one problem or the other and one problem, which continued persisting is high consumption of engine oil and emission of smoke impels us to the inference that there is some manufacturing defect which is beyond notification”.

Thus there is no impediment for this commission to arrive at a conclusion that the vehicle delivered to the complainant as a brand new vehicle suffered inherent with manufacturing defects. Hence we hold that the complainant was successful in proving that the vehicle was having inherent manufacturing defects and the opposite parties have committed negligent and deficiency in service in delivering the vehicle to the complainant as the complainant could not use the brand new vehicle without any interference though he purchased for huge amount. We are of the view that it should be compensated adequately along with replacement of the defective vehicle with brand new vehicle of the same specification.  

In the result, the complaint is partly allowed. The Opposite Parties 1 to 5 are jointly and severally liable 

a)to replace the Mahindra XYLO bearing model XYLO D4 MDI CRDE BS4 2WD 8 SEAT, Chassis No. No.MA1YA2JJKF2D31232, bearing Registration No.TN 25 AT 9499 with a new vehicle of the same model within six weeks from the date of receipt of copy of this order; 

 b) to pay a sum of Rs.50,000/- (Rupees fifty thousand only) towards compensation for mental agony caused to the complainant;

c) to pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

 

         -Sd-                                          -Sd-                                             -Sd-

  MEMBER –II                             MEMBER-I                               PRESIDENT

 

Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 15th day of July 2022

 

List of document filed by the complainant:-

 

Ex.A1 30.04.2015 Invoice in the name of the complainant given by the 5th opposite party. Xerox

Ex.A2 14.05.2015 Registration Certificate. Xerox

Ex.A3 27.06.2015

22.08.2015 Service History of the vehicle. Xerox

Ex.A4 26.08.2015 Letter issued by the 3rd and 4th opposite party to the complainant. Xerox

Ex.A5 21.09.2015 Repayment schedule given by Cholamandalam Investments and Finance Company Limited. Xerox

Ex.A6 25.09.2015

01.10.2015 Email Conversations. Xerox

Ex.A7 09.10.2015 Lawyer’s Notice. Xerox

Ex.A8 .............. Acknowledgement card. Xerox

 

List of documents filed by the 1st opposite party;

 

Ex.B1 .............. Warranty information & maintenance Guide. Xerox

Ex.B2 13.05.2015 Tax Invoice. Xerox

Ex.B3 27.06.2015 Tax Invoice. Xerox

Ex.B4 .................. Satisfaction Note. Xerox

Ex.B5 22.08.2015 Tax Invoice. Xerox

Ex.B6 26.09.2015 Tax Invoice (Duplicate copy) Xerox

Ex.B7 .......... Owner’s manual Xerox

Ex.B8 ............ Tax Invoice. Xerox

 

 

 

    -Sd-                                                            -Sd-                                                  -Sd-

MEMBER-II                                               MEMBER I                                    PRESIDENT