SMT. M. SREESHA, MEMBER

1.       Challenge in this Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (in short, the Act) is to the order dated 21-07-2015 passed by Bihar State Consumer Disputes Redressal Commission at Patna (in short, ‘the State Commission’) in Appeal No.468 of 2013. By the impugned order, the State Commission has allowed the Appeal preferred by the General Manager, Mahindra & Mahindra Ltd. (hereinafter referred to as the ‘Manufacturer’) and modified the order dated 30-08-2013 of the District Consumer Disputes Redressal Forum, Muzafferpur (in short, ‘the District Forum) passed in Complaint Case No.122/12.

2.       The District Forum based on the evidence adduced has directed the Manufacturer to pay an amount of Rs.7,28,325/-, being the cost of the vehicle with Rs.37,300/- towards cost of registration, an amount of Rs.30,000/- per month for a period of thirteen months amounting to Rs.3,90,000/- as compensation, Rs.1,339/- for parts changed, Rs.5,000/- for mental agony and Rs.2,000/- towards costs of litigation. The Dealer was directed to provide the Complainant all the accessories which come with the vehicle and as described in the job card. The Dealer was arrayed as Opposite Party No.2 in the original Complaint.

3.       The facts material to the case are that the Complainant purchased a vehicle model XYLO from Mahindra & Mahindra Ltd., bearing Serial No.A2J69082 and Engine No.JGA4H22251 BS4 from the Dealer. It is averred that the Complainant had purchased the said vehicle by taking loan from Shri Ram Transport Finance Company and has paid an amount of Rs.7,28,325/-. M/s. R.J. Enterprises, arrayed as Opposite Party No.4, at the time of delivery of the vehicle handed over two service coupons that come with warranty card in favour of the Complainant. It is averred that since purchase, the vehicle was giving problems and the engine was shutting down at periodic intervals. The same was brought first to the notice of the Service Centre (Opposite Party No.4) but despite several attempts made, the automatic shutdown of the engine persisted. Time and again, the service engineer attended to the rectification but the same was not cured. On 27-02-2012, when the vehicle was sent for servicing to the work shop, an amount of Rs.1,339/- was charged towards shock absorber part. Thereafter, it was informed to the Complainant that an email was received from the manufacturing company with respect to a technical defect in the engine and the gear box of the vehicle. It was informed to the Complainant by Opposite Party No.4 that the same cannot be replaced since there are instructions from the Manufacturer. While so, on 19-07-2012, it was averred that there was a complete breakdown of the vehicle and it was brought to Opposite Party No.3 by towing. The Service Centre issued a job card after technical inspection of the vehicle.  

4.       It is averred that the Complainant was informed by Opposite Party No.3 that it would take 15 days for rectification of the vehicle. Despite repeated requests of the Complainant to replace the vehicle itself since it was having a manufacturing defect in the engine and the gear box, there was no response. Vexed, the Complainant gave a legal notice on 01-08-2012 with respect to the rectification of the existing defects. Thereafter, it was noticed by the Complainant in the service book that the first service of the vehicle was already done on 17-12-2010 much prior to the purchase of the vehicle. Hence, the Complainant approached the District Forum seeking compensation of Rs.5,00,000/- for mental and physical agony, exchange of the old vehicle with a new one, together with interest and costs.

5.       The Opposite Parties Nos.1 and 3 filed their Written Version stating that there is no privity of contract between the Manufacturer and the Complainant with respect to the purchase of the vehicle in question; that transactions between Opposite Party No.4 and Opposite Party No.1 are on principle to principle basis; that the vehicles manufactured by the Manufacturer are purchased by R.C. Enterprises i.e. Opposite Party No.4 to resell the same to their own customers; that the Manufacturer has the reputation and the credibility of manufacturing sports utility vehicles, multi utility vehicles, jeeps and cars, tractors, scooters, etc.; that delay caused in repairing the vehicle was due to the wrong article number quoted by the Dealer; that the Complainant was never sold an old vehicle and that there is no deficiency in service on their behalf as Manufacturer is no way having any concern in the whole transaction.

6.       The Opposite Party No.2 was proceeded ex parte before the District Forum. The material on record does not evidence that the Opposite Parties Nos.2 and 4 have filed any Written Version.

7.       On an Appeal preferred by the manufacturer, the State Commission has modified the order to the extent indicated above.

8.       The State Commission while modifying the order observed as hereunder:

“Upon considering the rival submissions as also the order under the appeal it would appear that the complaint of the complainant was that after purchase of  the vehicle the same stopped after running and even after repair the defect remained the same after sometime. It appears on perusal of the complaint as also the written statements that there was some defects with the engine and the gear box. As disclosed that the above two parts were replaced, no such defects were pointed out by the complainant. As such in our consideration the direction to pay back the price of whole, vehicle as also the other direction for payment said to be the loss @Rs.30,000/- per month does not appears to be justified. At best the appellant can be saddle that the direction to pay the compensation for the reason that the new vehicle necessitated the replacement of the engine and gear box. So far rendering the services is concerned we find that there is no complaint that the representative of appellant did not attend the complaint of repair. In such circumstances, we set aside the order under the appeal. However, we direct the appellant to pay a total sum of Rs.1,00,000/- (One Lac) only by way of compensation along with a litigation cost of Rs.10,000/- (Rupees ten thousand) only as also the return of the price of Rs.1,339/- being the price of  the pump replaced in the vehicle. The appellant is further directed to see that the vehicle in question which is said to be kept in the Service Centre, be handed over to the complainant in a good running condition within a period of six weeks on receipt production of certified copy of the present order.”

9.       It is relevant to mention that the Manufacturer did not challenge this order and, therefore, the finding of deficiency with respect to the defects in the engine and the gear box has attained finality. The only point for consideration here is to whether the limited compensation awarded by the State Commission i.e. Rs.1,00,000/- is justified or not. A perusal of the material on record shows that Opposite Party No.2 was deleted from the array of the parties.

10.     It is an admitted fact that the Complainant has purchased XYLO vehicle by taking loan from Shri Ram Transport Finance Company of Rs.7,28,325/- on 04-07-2011. It is the main case of the Complainant that even during the period of 11 months, after running 27000 kilometers, and even prior to that there were repeated complaints of stopping of the engine which were brought to the notice of the Dealer and the Service Centre and that he was informed that the engine and the gear box had a defect but the same could not be replaced since there were no instructions from the Manufacturer.

11.     Learned Counsel appearing for the Manufacturer vehemently contended that no liability can be fastened upon the Manufacturer if there is any deficiency in service on behalf of the Dealer as the relationship between Manufacturer and the Dealer is on a Principle to Principle basis. The Dealer was set ex parte before the District Forum and did not choose to appear before the State Commission. Also, it is pertinent to mention that though the Complainant has raised the issue of an old vehicle being sold to him which is evidenced from the job card, Annexure P4 clearly states that the date of sale was 30-06-2011 whereas one service was already done on the subject vehicle on 17-12-2010, there is no explanation forthcoming from the Manufacturer except for stating that it is a matter between the Dealer and the Complainant. Even if it is a relationship of Principle to Principle, there are no substantial grounds for the Manufacturer for having kept silent when such an allegation has been raised by the Complainant. There is no whisper in the Written Version with respect to any kind of enquiry which was sought for or done with respect to this allegation by the Complainant. The job card clearly evidences that though the vehicle was purchased on 30-06-2011, the first service was already done on 17-12-2010 which is prior to the date of sale. Additionally, the record shows that the Complainant had got issued a legal notice on 01-08-2012 to the Manufacturer, Dealer and the Service Centre. In the Written Version preferred by the Manufacturer, there is no whisper with respect to their receipt or otherwise of the legal notice. In the legal notice the Complainant has raised the issue with respect to the stoppage of engine periodically and sought for intervention by the Manufacturer. In para 11 of the Written Version, the manufacturer has stated that as a goodwill gesture, the company replaced the engine under warranty by a new one.

12.     The Learned Counsel appearing for the Manufacturer submitted that since the engine has already been replaced no other defect can be attributed to a manufacturing one and, therefore, no liability can be fastened upon the Manufacturer. We find this contention totally unsustainable as admittedly the main part of the car, that is the engine, has been replaced within the warranty period. That admittedly, the Complainant has purchased the said XYLO vehicle by taking a loan through Shri Ram Transport Finance Company and has specifically pleaded that the same was being taken to earn his means of livelihood, the mental agony and financial losses suffered by the Complainant cannot be undermined. It is also pertinent to mention that the vehicle is lying with the Dealer since 09-07-2012 as the engine has ceased and the Complainant has refused to accept the vehicle. The stand of the Manufacturer that though the vehicle is lying with the Dealer for the last seven years and there is a serious allegation that an old vehicle has been sold, that they are not concerned with the said transaction, is deprecated. A person purchased a vehicle manufactured by Mahindra & Mahindra keeping in view its credibility and assurance made in their advertisements and seeing their brand image. In the instant case there is no material on record to establish whether any kind of inquiry or response was sought for from the Dealer and the Service Centre with respect to the said problem. It is also significant to mention that the finding of the defect in the engine and the gear box has attained finality as the Manufacturer did not challenge the order of the State Commission. Keeping in view all the afore-noted reasons, we are of the considered view that the State Commission did not appreciate the evidence on record and has modified the order of the District Forum with respect to the replacement of the vehicle. It is submitted by the Learned Counsel appearing for the Complainant that the vehicle is lying with the Dealer since 09-07-2012 and he has been deprived of the enjoyment of the same, as it was purchased for earning his livelihood.

13.     For all the afore-noted reasons, this Revision Petition is allowed in part and the Manufacturer is directed to refund the price of the vehicle with interest @9% p.a. from the date of filing of the Complaint till the date of realization together with costs of Rs.25,000/-. Since the interest @9% p.a. is awarded towards damages we do not find it a fit case to award additional compensation under different heads. Time for compliance, four weeks from the date of receipt of a copy of this order, failing which the amount shall attract interest @12% p.a. for the same period.