Complaint filed on: 18-06-2012
Disposed on: 08-02-2013
BEFORE THE BANGALORE IV ADDITIONAL DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052
C.C.No.1227/2012
DATED THIS THE 8th FEBURARY 2013
PRESENT
SRI.J.N.HAVANUR, PRESIDENT
SRI.A.MUNIYAPPA, MEMBER
Complainant: - Sri.Anjaneya Reddy,
S/o. Chikka Chowda Reddy,
R/o. Malappalli,
Chintamani Town,
Chintamani-563 125
V/s
Opposite parties: -
1. Mahindra and Mahindra Ltd,
Corporate office, 3rd Floor,
Mahindra Tower,
Dr.G.M.Bhosle Marg Road,
No.13, Worli, Mumbai-18
Manufacturing Unit at
Mahindra Vehicles
Manufacturers Limited,
A-1 MIDC Phase-4, Chaken
Ind Area Village, Nighoje Tal
Khed, Pune, Maharastra-01
Reptd by Managing Director
2. Rahul Vaidya,
South Head Sales,
Mahindra and Mahindra Ltd,
Raheja Chamber, 1st Floor,
No.12, Museum Road,
Bangalore-01
3. Siresh Auto Pvt. Ltd,
Authorized dealer for Mahindra and Mahindra Ltd, Reg. Office No.97/B, 1st Floor, 6th Block,
Koramangala, Bangalore -95
Reptd by Manager
4. P.Sanjay Joel,
Assistant General Manager-Service, Siresh Auto Pvt. Ltd,
Authorized dealer for Mahindra and Mahindra Ltd, Reg. office No.97/B, 1st Floor, 6th Block, Koramangala, Bangalore-95
ORDER
SRI.J.N.HAVANUR, PRESIDENT
This is a complaint filed by the complainant against the OPs no.1 to 4, under section 12 of the Consumer Protection Act, praying to pass an order, directing the OPs to pay Rs.2.00 lakh towards cost of engine, and Rs.20,000=00 towards labour charges for replacement of engine or in the alternative direct the OPs to replace the damaged engine with a brand new engine, and to pay cost of Rs.1.00 lakh towards hiring a private car for daily commuting, and to pay Rs.1,000=00 per day towards conveyance charges, and also to pay compensation of Rs.4.00 lakh alongwith 18% interest per annum from 30-3-2012 till the date of realization.
2. The brief facts of the complaint can be stated as under.
The complainant is an owner of Mahindra Bolero Light Motor Vehicle bearing Reg. No.KA-40-M-2495 which is registered on 9-5-2011 before the Chikkabalapur RTO. The said vehicle was purchased from an authorized dealer at Bangalore in the month of March 2011; the vehicle was registered in the name of the complainant. The said vehicle accidentally met with an accident on 27-1-2012 at Bhadrakunkdi, Kundapur Taluk, and a complaint has been filed before the Kollur police station, and the vehicle was extensively damaged, and the said vehicle was brought by toeing vehicle to the authorized service station i.e. OP no.3. Thereafter, the vehicle was inspected by the insurance authorities and also the service mechanics in the garage, and the damage of the vehicle was estimated, and thereafter a quotation was given by the OP no.3 and in the said quotation, he mentioned that, the Radiator needs to be replaced and the complainant had agreed for all repair work as advised by the service engineers. Thereafter the OP no.3 carried out the repair work of the said vehicle, as per the advice of the services in charge. After completing the repair work, the OP no.3 has raised a bill towards repair work and as per the bill OP no.3 has also claimed bill for having replaced the radiator assembly and accordingly, the complainant has cleared the entire bill. After completing repair work of the vehicle, the vehicle was delivered to the complainant on 29-3-2012 and after taking the delivery, the vehicle has not even travelled for about 15 km and all of a sudden the engine stopped running on the road and immediately the driver stopped the vehicle and immediately informed the OP no.3 and 4, and the vehicle was brought back to the service centre and also the complainant has lodged the complaint with the OP no.3, and the OP no.3 has issued an endorsement to the complainant. After inspection by the service mechanic, it was told that, there was no coolent in the radiator and because of which the engine is completely damaged, and it was informed by the OP no.3 and 4 through email to the complainant’s son. Thereafter a reply was given by the OP no.4 through email stating that as there was no visible damage to the radiator so it was not replaced and the engine was tested before the delivery and no leak was found thus have admitted the negligence and deficiency of service. The OP no.3 and 4 evenafter collecting money towards replacement of the radiator assembly have not done so and due to the negligence of OP no.3 and 4, the engine was fully damaged. The complainant’s son Shankar Reddy met the service engineer and it was informed to him that the engine will be repaired at their cost and refused to replace the engine with the new engine. Thereafter he met the OP no.2 in the office and informed about the same and in turn, he told that since there are no manufacturing defects in the engine, they cannot replace the engine, and the damage to the engine has occurred due to the negligence of the service centre and told the complainant’s son to contact the authorized service centre for the same. Again the complainant and his son met OP no.2 and 4 on several occasions and requested them to replace the engine but the OP no.3 and 4 have refused to do the same, and in turn assured the complainant they will repair the engine under free of cost basis and deliver the engine in running condition. In this regard he has sent a mail to the complainant’s son on 14-4-2012. The vehicle in question has not even year old vehicle and has run about 14000 kms. The vehicle was in the service centre of the OP no.3 for about 50 days, despite the vehicle being in the service centre for such a long period to carryout repair works, the service engineers of the OP no.3 have not properly carried out the repair works. Thus it clearly establishes that there is deficiency of service by the OP no.2 and 3 and the other OPs have also failed to rectify the complaint made by the complainant. The service engineers of OP no.3 have not properly checked the coolant level in the radiator and have also not replaced the radiator assembly and as a result of which the engine was completely damaged. The complainant has purchased the said vehicle by obtaining a loan from the bank and he has to pay Rs.10,500=00 every month towards the said loan, the complainant who is a trustee of an educational institution was forced to hire a vehicle for his daily travelling and he is incurring about Rs.1000=00 every day for hiring a private car. Due to the negligence of the OP no.2 to 4, the complainant is undergoing mental agony and harassment for which the OPs are liable to pay damages and compensation. Hence the present complaint is filed.
3. After service of the notice, the OPs no.1 to 3 have appeared through their counsel and filed objections, but the OP no.4 did not appear before the forum, and he was called out absent and he has been placed exparte.
4. The averments of the version of OPs no.1 and 2 can be stated as under:
The present complaint is bad for mis-joinder of parties. In order to cater to the customers within the country, the company has its dealership network all across the country. The OP no.3 is one such dealer in the state of Karnataka to cater to the sales and services of the automobiles and its allied products manufactured and sold by the company. The OP no.3 is on a principal to principal basis and they share a purely business relationship. OP no.3 buys automobiles, service parts and accessories from the company on full payment of price and subsequently sells them to its customers on retail basis. Hence, there is no privity of contract quo the customers and the replying the OPs. The OP no.1 keeps a tab on the performance of the vehicles and the grievances of the customers of its dealers. It is on this background and on the feed back received by it from OP no.3 that replying the OPs counter the averments made in this complaint. It is denied that, the complainant had paid money for replacement of the radiator assembly. The complainant was charged only for the radiator grill assembly component. There is a vast difference between the radiator assembly and radiator grill assembly component, the engine was not completely damaged. On examination of the vehicle by the OP no.3, it was observed that, the piston rings had some problem which was probably caused by the complainant owning to the history of rash and negligent driving by the complainant. In any event, as a gesture of goodwill, the OP no.3 has undertaken to oversee that, the vehicle was repaired to the satisfaction of the complainant herein. It is true that, the complainant’s son Shankar Reddy was informed by the OP no.3 that the engine would be repaired and that the vehicle in question would be handed over in a road worthy condition to the satisfaction of the complainant. However, the complainant demanded that the existing engine of the vehicle to be replaced with a new one. The complainant was assured that the vehicle in question would be repaired under free of cost basis. There is no deficiency of service on the part of the OPs. The complainant’s demand for replacement of the engine, which has been subjected to a major accident to be replaced with a new engine is not only impermissible but is extremely unethical. There is no negligence on the part of the answering the OPs, answering the OPs were not a privity to the accident which damaged the vehicle but on the other hand it was the complainant who is solely responsible for the multiple collisions which was a result of his rash and negligent driving. The complainant is making a highly unreasonable demand of having the existing engine replaced with a new engine for a collusion caused by the complainant himself. Since unreasonable demand of the complainant was not complied with the complainant has caused a legal notice and the OP no.1 has aptly replied. The complainant cannot be permitted to take advantage of his negligent act of rash driving which met with an accident and then seek a relief against the OP for replacing the existing engine with a new one. The complainant out of his own volition has refused to accept the offer of free of cost and then make an unreasonable and unjustified demand for alleged tax bills. The complainant is not entitled to any relief; hence it is prayed to dismiss the complaint.
5. The averments of the version of OP no.3 can be stated as under:
The complaint is not maintainable either in law or on facts. The complainant has suppressed various facts before the forum. It is true that, the complainant is an owner of the vehicle and he has purchased the vehicle in the showroom maintained by this OP, and his vehicle met with an accident on 27-1-2012, and he left the vehicle for repair with the OP no.3. An impact of the accident was very grievous multiple damages caused due to the rash and negligent drive of the complainant. It is true that, the OP no.3 has issued a quotation to repair the vehicle, but OP no.3 specifically denies the allegations of the complainant with regard to replacement of the radiator assembly. As per the quotation issued by the OP no.3 there has been reference with regard to the replacement of the Radiator Grill and the cost of the Radiator Grill was mentioned as Rs.1,271=00 and the same was replaced and the charges have been taken for replacing the radiator grill a sum of Rs.981=00. Therefore, the claim of the complainant with regard to the charges taken for replacing Radiator assembly in the complaint as stated in para no.6 of the complaint is hereby denied as false. It is true that, the vehicle was delivered to the customer on 29-3-2012 and the vehicle was stopped and the same was brought back and after verification, there was coolant leakage in the radiator obviously the coolant leakage was occurred due to the impact of the damage caused to the vehicle out of the accident happened to the said vehicle. The service engineers of the OP no.3 have inspected the vehicle and assured the complainant to replace the spare parts which have been damaged and make the vehicle road worthy. Inspite of sincere request made by the OP no.3 the complainant with an adamant intention has approached this forum to make unlawful gain out of the unwarranted incident. The OP no.3 has replaced the radiator grill only and they have not replaced the entire assembly as claimed by the complainant. The OP no.3 engineer has honestly and politely requested the complainant to cooperate with the OP no.3 till the vehicle gets ready and they have assured the road worthy conditions. Inspite of repeated requests, the complainant has approached this forum with a malafide intention to make unlawful gain and the OP no.3 will assure the complainant, they will make the vehicle with good conditions, thus it is prayed to dismiss the complaint. The OP no.3 is not aware of the claim of the complainant that they are paying Rs.1,000=00 towards hiring taxi etc. and there is no cause of action to file the present complaint. The complainant is not at all liable to pay any kind of relief from this forum; hence, it is prayed to dismiss the complaint with exemplary cost.
6. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.
1. Whether the complainant proves that, the OPs have failed to rectify the mistake in the engine and negligence committed and also deficiency of service on the part of the OPs?
2. If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?
3. What order?
7. Our findings on the above points are;
Point no.1: In the negative
Point no.2: In view of the negative findings on the
Point no.1, the complainant is not entitled
to any relief as prayed in the complaint
Point no.3: For the following order
REASONS
8. So as to prove the case, the complainant has filed his affidavit by way of evidence, and produced documents alongwith the complaint which were marked as annexure-A to M. On the other hand, one Rahul Vaidya, an authorized signatory of the OP no.1 and 2 has filed his affidavit on behalf of the OPs and produced one document. One Nagesh, who being the Director of the OP no.3 has filed his affidavit on behalf of the OP no.3. We have heard the arguments of both sides, and we have gone through the oral and relevant documents of both parties meticulously.
9. One Anjaneya Reddy, who being the complainant has stated in his affidavit filed by way of evidence that, he is an owner of Mahindra Bolero Light Motor Vehicle bearing Reg. No.KA-40-M-2495 which was registered in his name on 9-5-2011 before the Chikkabalapur RTO. The said vehicle was purchased from an authorized dealer at Bangalore in the month of March 2011. The said vehicle accidentally met with an accident on 27-1-2012 at Bhadrakunkdi, Kundapur Taluk, and a complaint has been filed before the Kollur police station, and the vehicle was extensively damaged and the vehicle was brought by toeing the vehicle to OP no.3 who being an authorized service station and the vehicle was inspected by the insurance authorities and also the service mechanics in the garage and the damage of the vehicle was estimated and quotation was given by the OP no.3 wherein it has mentioned that, the Radiator needs to be replaced and agreed for all repair work as advised by the service engineers. The OP no.3 has carried out the repair work of the said vehicle, as per the advice of the services in charge. After completing the repair work, the OP no.3 has raised a bill towards repair work and has also claimed bill for having replaced the radiator assembly, he has cleared the entire bill accordingly the vehicle was delivered to him. On 29-3-2012 after completing the repair work, and after taking the said vehicle has not travelled evenafter for about 15 km and all of a sudden the engine stopped on the road and the driver stopped the vehicle and immediately informed the OP no.3 and 4 and the vehicle was brought back to the service centre and the complaint has lodged with the OP no.3, and the OP no.3 has issued an endorsement. After inspection by the service mechanic it was told that there was no coolent in the radiator and due that the engine is completely damaged, and thereafter a reply was given by the OP no.4 through email stating that as there was no visible damage to the radiator it was not replaced and the engine was tested before the delivery and no leak was found thus he has admitted the negligence and deficiency of service. The OP no.3 and 4 after collecting money towards replacement of the radiator assembly have not done so and due to the negligence of OP no.3 and 4, the engine was fully damaged. The complainant’s son Shankar Reddy met the service engineer and it was informed to him that the engine will be repaired at their cost and refused to replace the engine with the new one. Thereafter he met OP no.2 in the office and informed about the same, he told that since there are no manufacturing defects in the engine, they cannot replace the engine, and the damage to the engine has occurred due to the negligence of the service centre and told his son to contact the authorized service centre for the same. Again he and his son met OP no.2 and 4 on several occasions and requested them to replace the engine but the OP no.3 and 4 have refused to do the same, and in turn assured them, they will repair the engine under free of cost basis. The vehicle in question has not even year old vehicle and has run about 14000 kms. The vehicle was in the service centre of the OP no.3 for about 50 days, but the service engineers of the OP no.3 have not properly carried out the repair works though they have mentioned in their quotation that the radiator assembly needs to be replaced and they have also claimed bill for replacement of the radiator assembly, and so it is clearly established that there is deficiency of service on the part of the OP no.2 and 3 and the other OPs have also failed to rectify the complaint made by the complainant. The service engineers of OP no.3 have not properly checked the coolant level in the radiator and have also not replaced the radiator assembly and as a result of which the engine was completely damaged. He has purchased the said vehicle by obtaining a loan from the bank and he is paying Rs.10,500=00 every month towards the said loan and he is a trustee of an educational institution and he was forced to hire a vehicle for his daily travelling and he is incurring about Rs.1000=00 every day for hiring a private car. Due to the negligence of the OP no.2 to 4, he has been going through mental agony and harassment for which the OPs are liable to pay damages and compensation, and issued legal notice to the OPs. Even till today, the OPs have not replaced engine with a new one, so the present complaint is filed, and prays to pass an order, directing the OPs to pay Rs.2.00 lakh towards engine cost, and Rs.20,000=00 towards labour charges for replacement of engine and Rs.1.00 lakh towards hiring a vehicle and Rs.4.00 lakhs towards mental agony and interest at the rate of 18% per annum from 30-3-2012 to till the date of discharge.
10. By a careful reading of the averments of the complaint and evidence of the complainant as mentioned above, it is made unambiguously clear that, the complainant has tendered his evidence in accordance with the averments of the complaint. Let us have a look at the important documents of the complainant, so as to know, whether the oral evidence of the complainant stands corroborated by documentary evidence or not. Sl.no.1 of the document of complainant is the copy of registration certificate issued by the Transport department in the name of the complainant in respect of Mahindra Bolero LMV car vehicle bearing Reg. No.KA-40-M-2495 on 9-5-2011. Annexure-B of the complainant’s document is the copy of FIR registered by police on 27-1-2012 on the complaint of the complainant by name Sharanappa against the driver of Mahendra Bolero vehicle of the complainant for having driven the vehicle rashly and negligently and the case has been registered u/s 279 by Kollur PS. Annexure-C is the copy of certificate of insurance issued by the TATA AIG insurance in the name of complainant who being the policy holder for a period from 30-3-2011 to 29-3-3012 in respect of Mahindra Bolero vehicle by collecting premium of Rs.25,271.00. Annexure-D is the copy of service quotation given by the OP dated 7-2-2012 in the name of the complainant in respect of vehicle bearing Reg.no.KA-40-M2495 for total a sum of Rs.2,37,629.58 which included the price of various parts of vehicle and labour charges and as per the said quotation in all 33 spare parts are to be replaced and to make repair of vehicle by fixing the said spare parts. Annexure-E is the copy of Tax Invoice of OP no.3 issued in the name of the complainant for a sum of Rs.76,467=00 and alongwith the said annexure, one email letter of TATA AIG General Insurance company dated 27-3-2012 is found addressed to OP no.3 stating that, the claim has been settled for Rs.56,597=00 towards full and final settlement, cheque dated 27-3-2012 has sent to him through courier. Annexure-F is the copy of letter of RTO, Udupi in the name of the Sub Inspector of Police, Kollur police station stating that, the vehicle has been inspected on 28-1-2012 and detailed report will be sent shortly. Annexure-G consists of email correspondences between OP no.3 and son of the complainant, out of two emails, upper portion of email is email letter of OP no.3 issued in the name of son of the complainant stating that, they will complete the work under FOC basis and deliver and their vehicle will be delivered at the earliest. Below portion of email of the said document is the letter of complainant addressed to OP no.3 stating that, since the damage has happened to the engine repair is not acceptable and requested to replace the engine, on page 28 of the said document, we have found the copy of letter of OP no.3 stating that, as there was no visible damage to the radiator, it was not replaced and the engine was tested exhaustively and no leak was found. Unfortunately, they understood that the coolant has leaked soon after delivery and the vehicle was brought back to workshop, and they assured that they will get the necessary parts replaced and make the vehicle road worthy, and in the said document, below portion of email of Shankar Reddy who being the son of complainant is found wherein it is stated that after the delivery the vehicle has travelled on national highway for the radiator leakage to occur on travel and there was no accident, this is happened only because of negligence of the concerned engineer, and they want replacement of the engine and not the repair, and on page no.29 of the said document, we have found a letter of OP no.3 addressed to the son of complainant stating that they will proceed for the repairs without any advance payment towards the same. Annexure-H is the copy of legal notice of complainant addressed to OP dated 5-5-2012 praying to replace the damaged engine with a new engine and to pay loss suffered by him and charges of notice. Annexure-J and K consists of copies of postal receipts and acknowledgement cards. Annexure-K is the copy of reply of OP no.3 denying the allegations of legal notice of complainant.
11. By a careful reading of the complaint and evidence of complainant, it is the specific case of the complainant that, the service engineers of OP no.3 have not properly carried out the repair works, though they have mentioned in their quotation that, the radiator assembly needs to be replaced and they have also claimed bill for replacement of the radiator assembly. The service engineers of OP no.3 have not properly checked the coolant level in the radiator and have also not replaced the radiator assembly and as a result of which the engine was completely damaged. At this juncture, if we go through the annexure-D being the service quotation of OP no.3 produced by complainant at Sl.No.17 of the said documents, it is stated as radiator grill assembly component and not radiator assembly. The said quotation shows that, the OP no.3 has shown at Sl.no.17 as radiator grill assembly component for Rs.1,271.05, so also in the Tax invoice produced by complainant at annexure-E at Sl.No.10, it shows as radiator grill assembly component and not as radiator assembly and the value of the said component is mentioned as Rs.981.58. The said documents of complainant go to demonstrate in all probability that, the OP no.3 has shown radiator grill assembly component as one of the spare parts in the quotation and he replaced the same by mentioning it in the Tax invoice and not the radiator assembly particularly. When the OP no.3 came forward to get the vehicle repaired free of cost, the complainant started demanding to replace a new engine in place of old one, and he has not agreeable for repair of the engine. Except stating in one of the email and copy of legal notice of complainant that engine found in the vehicle was damaged because of negligence of engineers of OP no.3, no believable documentary evidence is forthcoming on behalf of complainant to show before the forum that engine of the vehicle was damaged completely, on account of negligence of engineers of OP no.3. The oral evidence of complainant that, the service engineers of OP no.3 have not replaced the radiator assembly and due to that, the engine was completely damaged is not countenanced by clear and tangible documentary evidence. Besides, the complainant ought to have taken assistant of qualified mechanic as a court commissioner to prove the defects in the engine of vehicle. In the absence of report of qualified mechanic as a court commissioner, it is inequitable and unjust to hold on the solitary testimony of complainant that the engine found in the vehicle was damaged on account of negligence of service of OP no.3, this is all about material evidence of complainant.
12. Let us have a look at the material evidence of OPs. One Rahul Vaidya who being the authorized signatory of OP no.1 has stated in his affidavit evidence that, it is not stated that, the radiator was to be replaced, but in fact, it was the radiator grill assembly component, there was a vast difference between the radiator assembly and radiator grill assembly component. It is denied as false that, the complainant had paid money for replacement of radiator assembly, the complainant was charged only for the radiator grill assembly component. The engine was not completely damaged. On examination of the vehicle by OP no.3, it was observed that, the piston rings had some problem which could have happened due to rash and negligent driving the vehicle by the complainant. In any event, the OP no.3 has under taken to oversee that, the vehicle is repaired to the satisfaction of complainant. The complainant’s son was informed by the OP no.3 that, the engine would be repaired and that the vehicle in question would be handed over in a road worthy condition to the satisfaction of the complainant. However, the complainant demanded that, the existing engine of the vehicle is to be replaced with a new engine. The claim of the complainant to replace a new engine is an unethical and exorbitant claim one. So the complaint of the complainant be dismissed with cost. The said witness has produced one document to show that, the radiator grill assembly component is different from radiator assembly.
13. One Nagesh who being the Director of OP no.3 has deposed in his affidavit by way of evidence that, the complainant has not approached this forum with clean hands, and he has suppressed material facts as per the quotation given by them, there has been reference with regard to the replacement of radiator grill, the claim of the complainant with regard to the charges taken for replacing radiator assembly is hereby denied as false, they are not aware of the claim of the complainant in respect of payment of Rs.1,000=00 towards hiring taxi, there is no cause of action to file the present complaint. The complainant is not entitled to any kind of relief. Having considered the totality of material evidence of both parties, it is vivid and clear that, the complainant who knocks the doors of the forum seeking relief has miserably failed to establish with clear cogent and consistent material evidence that, the OPs have failed to rectify the mistake of the engine, and because of their negligence, there is a damage caused to engine of the vehicle in question, and the OPs are negligent totally, and there is deficiency of service on their part, and as such, we hold that, the material evidence of the OPs placed before the forum is more believable and acted upon than the material evidence of the complainant, so due to paucity of material evidence, we are inclined come to straight conclusion that, the complainant has utterly failed to prove this point satisfactorily, and accordingly, we answer this point in a negative.
14. In view of our negative findings on the point no.1, the complainant is not entitled to any relief as prayed in the complaint. So, we answer this point in a negative. In the result, for the foregoing reasons, we proceed to pass the following order.
ORDER
The complaint of the complainant is hereby dismissed. So, under the circumstance, both parties shall bear their own cost.
Supply free copy of this order to both parties.
Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 8th day of February 2013.
MEMBER PRESIDENT
