ORDER

SRI.H.R. SRINIVAS, PRESIDENT

1.     This is the complaint filed by the complainant against the Opposite Parties herein referred to as OPs) under Section 12 of the Consumer Protection Act, 1986 for the deficiency of service in selling a defective vehicle and for replace of the same and in the alternate to refund the value of the car i.e.Rs.5,60,750/- along with expenses incurred for repair i.e.Rs.2,41,717/- with interest and other reliefs as the commission deems fit.

2.     The brief facts of the complaint are: the complainant purchased Mahindra KUV 100 K2+D vehicle from OP No.1 on 31.03.2017 and took the delivery of the vehicle on 05.04.2017 by paying a sum of Rs.5,60,753/-. At the time of purchase, the sale representative one Satish Nayak.C informed the availability, use and its opening at the time of the accident in respect of the airbag. Believing his words, he purchased the said vehicle and the same was registered in his name bearing No. KA-50 P- 8746.  The said vehicle met with an accident on 31.01.2018 and the entire left portion of the vehicle and the body of the vehicle got completely damaged. When the accident took place, the air bag did not open hence his son sent an email to one Arithrasen of Mahindra and Mahindra manufacturers. The sale representative has given a false assurance and further the guidelines have not been printed in kannada language and thereby they have deceived the complainant. After the accident on 31.01.2018 the said vehicle was towed to the service station i.e. to OP-4. 

3.     The said service center did not repair the vehicle in time, whereas he took 5 months 6 days and on 07.06.2018 the same was delivered at 5.30 pm. For the repair of the said vehicle due to the said accident a sum of Rs.19,000/- was paid by him apart from the insurance claim of Rs.2,22,717/-. On the same day when he was driving the vehicle near Bashettihalli Village on the out skirts of Doddaballapura, after repair, all of a sudden stopped as there was jam in the break. The same was informed to OP-4 who directed him to press the break pad for about three times so that the jam would get released, and requested him to bring back the vehicle on the next day. Again on 08.06.2018 also while bringing the said vehicle to OP-4, again, there was a jam in the breaking system and also found that there was severe heat in the engine and the tyre rim and found that the coolant pipe was leaking. He was instructed to put some water and bring the vehicle. Again on 09.06.2018 when he was proceeding to have the darshan of the Gramadevathe, again his car all of a sudden stopped and lorry which was coming behind controlled and avoided hitting his car. The said lorry driver scolded and defamed the driver of the vehicle i.e. son of the complainant in front of others.

4.     Again the same was informed to the OP-4.  OP-4 informed that as the vehicle is nearing completion of  covering 10,000 kms, it is due for 2^nd free service and all the issue would be addressed. Inspite of repeated complaints, OP-4 did not repair the said vehicle in a proper manner and hence there is deficiency inb service and prayed the forum to allow the complaint.

5.     Upon issuance of notice OPs appeared through their advocate and filed separate versions. OP-1 and 2 have filed their separate version, contending that the complaint is not maintainable either in law or on facts and it is filed on false, frivolous and baseless allegation which are far from truth. Complainant is misusing the provisions of Consumer Protection Act and there is no basis and proof to support the allegation made in the complaint which is liable to be dismissed. 

6.     The vehicle purchased by the complainant was equipped with air bag.  It has denied that when the accident took place as alleged by the complainant the air bag did not open. It is stated by OP-1 and 2 that if the air bag requires to be open or bloom the accident must be serious and bonnet to be crushed. The accident as reported by the complainant, is to the left side of the vehicle and the left door of the car got damaged. The accident is nothing to do with the air bag.  In respect of the manual being in other language than in kannada it is contended that the manufacturer the Mahindra and Mahindra company has printed the said manual in English language and the same has been provided.

7.     In respect of waiting for 5 months 6 days in getting back the vehicle, it is submitted that, after complainant approaching OP-1 and 2, they prepared the estimation and submitted to the insurer namely Liberty Videocon. The same was not approved by the company in time. Only OP-1 and 2 started repairing the vehicle after getting the approval from the insurer. Further due to non-availability of the spares, it took considerable time to get the vehicle repaired and hand over the same which cannot be considered as will full default and  deficiency in service. Since the insurance company reimbursed only Rs.2,22,717/- the remaining amount has been received from the complainant which is the liability on the complainant as per the terms and conditions of the insurance. 

8.     In respect of the jam of the break, it is contended that the vehicle got stopped due to jam of the break as contended is true as the problem occurred due to lack of expertise in driving the vehicle and not following the instructions printed in the user manual. When the complainant called the service center of OP-1 and 2, the complainant was advised properly. Inspite of it, complainant did not follow the instructions of the service persons due to which the said problem persisted. The complainant was not maintaining the vehicle properly and correctly followed the instruction. There is no proof of manufacturing defect adduced by the complainant and there is no expert opinion in respect of the same. Complainant is not entitle for any of the relief and the relief sought is exorbitant, illegal, opposed to principles of natural justice, and prayed the forum to dismiss the complaint.

9.     OP-3 has filed his separate version, contending that, the complainant has to prove the allegation of manufacturing defect in the vehicle in respect of non-opening of the air bag due to the accident and also in respect of jammed breaks. The allegations have not been supported with any documents in respect of the air bag of the car not opening and the same was explained that due to technical reasons the same did not open. It is stated that many number of time the complainant reported jam in the break, whereas he never demanded in the service request in respect of the said issue. The service records in respect of the said vehicle do not show any complaint regarding the jam in the break.

10.   It has admitted the purchase of the vehicle by the complainant and the features assured were present in the vehicle purchased by the complainant.  He used the vehicle without any complaint and left the vehicle on 03.08.2017 for free service. At that time there was no complaint of any nature. On 31.01.2018 it was reported the said car met with an accident and the same was brought to the service center of OP-4 for repair. There were major repairs required as it met with an accident and the major portion of the cost involved in repair in the vehicle is met by the insurance company. 

11.   After a month after the repair of the vehicle, the son of the complainant posted comments in respect of the non-diployment of the air bag in his car in the social media. Hence the representative of OP-3 addressed an email explaining the reason for non-diployment of air bag. It was explained that the air bags opens or deployed only when there is a front on collusion and deceleration in the vehicle as to be sudden and significant in order to deploy the air bags. On examination of the complainant’s car, it was found that the underside of the car and left side of the car was damaged due to rolling over. Afterwards on 23.08.2018 complainant availed the 2^nd free service. Even at that time also, there was no complaint regarding the break jam. There was no complaint regarding the performance of the vehicle. On 29.08.2018 the complainant informed that the breaks are not effective and same was attended on 10.11.2018. The vehicle was brought with a problem of non-starting, and the same was repaired under warranty and it appeared that due to coolant issue in the engine the engine was not functioning properly and the same was addressed. On 12.02.2019 the vehicle was brought for repair again in respect of noise  when driving on bumpy road and that power window was not working.

12.   Only on 29.08.2019 the complainant made a complaint in respect of the break not effectively working and not at all complained regarding a continuous jamming of the breaks.  Whenever the complainant brought the vehicle, the same was attended. Even the engine problem resolved as it was under the warranty.   The alleged non-deployment of the air bag is a nonissue in the light of the clarification issued on 20.03.2018, and hence, there is no defect in the car and there is no manufacturing defect. Relying on several decisions in respect of proof of manufacturing defect by an expert, prayed the forum to dismiss the complaint.

13.   In order to prove the case, both parties have filed affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1. Whether the complainant has proved deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled to the relief prayed for in the complaint?

14.   Our answers to the above points are:-

POINT NO.1 & 2: In the Negative

                        For the following.

REASONS

POINT NO 1:

15.   It is not in dispute that the complainant is the owner of the car i.e. Mahindra KUV 100 K2+D vehicle purchased from OP No.1 on 31.03.2017 and took the delivery of the vehicle on 05.04.2017. It is also not in dispute that the vehicle met with an accident and at that time the air bag did not open.  The photos produced clearly shows that the left side of the vehicle dashed to some object and then rolled over on the road.  (Capsized).  It is not made clear by the complainant as to any person occupying the passenger seat on the left side got injured due to the said accident and due to the non-opening of the air bag.

16.   It is specific defence of the OPs that, the air bag to get bloom at the time of accident the accident must be serious and the bonnet must be crushed. In the present case, the accident happened to the left side of the vehicle and left side doors were damaged and that is nothing to do with the opening of the air bags.  Further the complainant has failed to follow the instructions mentioned in the owner’s manual.

17.   There is no expert opinion in respect of the manufacturing defect of the vehicle. Further the job cards produced do not mention any complaint in respect of the jam of break, though it is contended by the complainant that several times the breaks of the vehicle got jammed and the same was reported to OPs and on the direction the vehicle was taken to the OPs service station to get it repaired.  When all these facts and circumstances are taken in to consideration, we are of the opinion that there is no sufficient proof of the allegations made in respect and has failed to prove the manufacturing defect and negligence on the part of OPs.  In view of this, we answer POINT NO.1 AND 2 IN THE NAGATIVE and pass the following:-

ORDER

1. The complaint is hereby dismissed. No order as to cost.
2. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Commission on this day the 9^th  day of February 2022)

MEMBER                                PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the Tax Invoice dt: 31.03.2017 given by Op.1 &  2, Insurance document, Delivery Note and receipts.

Ex P2: Copy of the receipts in respect of the towing the vehicle.

Ex P3: Copy of  quotation for the repair for the accident vehicle.

Ex P4: Copy of the receipt in respect of service of the vehicle.

Ex P5:Copy of the spare parts details.

Ex P6. Copy of the 2^nd free service receipts

Ex P7: Copy of the panchanama and endorsement given by the police.

Ex P8: Photographs of the vehicle.

Ex P9: CD in respect of photographs.

Ex P10: Copy of the notice dated 23.01.2018.

Ex P11: Copies of reply given OP-1 to 3.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri Gopinath BS, Authorized Signaotry of OP-3

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the Vehicle history.

Ex R2: Copy of the email

Ex R3: Copy of the Service information.

Ex R4: Copy of report in respect of the tyre.

MEMBER                PRESIDENT

RAK*