cccccPBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 31st day of October 2012
Filed on : 22/02/2011
Present :
Shri. A Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member
C.C. No.102/2011
Between
M.A. Varghese, : Complainant
Melapillil house, (By Adv. Tom Joseph, Court
Near SBI Puliyanam P.O., Road, Muvattupuzha)
Angamaly via.
And
1. Managing Director : Opposite parties
M/s. Mahindra & Mahindra Ltd., (1st O.P. by adv. Saji Mathew,
Gate way Building, S.G. Chancery Chambers,
Appollo Bunder, 64/3147, Kalabhavan road,
Mumbai-400 039. Cochin-18)
2. M/s. T.V. Sundaram Iyengar & : (2nd O.P. by Adv. M. Ramanathan
Sons Ltd., N.H.Bye Pass, 96/39 West Perumal Maistry
Near BTH Sarovaram, Street, Madurai-625 001)
Maradu-682 034, Kochi.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
On 03-01-2011 the complainant purchased a Bolero SLX white vehicle from the 2nd opposite party at a price of Rs. 6,17,600/-. After the delivery of the vehicle, the complainant noticed defect on the left side doors of the vehicle. On a thorough examination, several other deformities including dent on the left front door, difference in chassis fixation of both sides, marks in the chassis, hand brake cable hanging, vibration during journey, inferior quality painting, gap in the back door portion etc. were found on the vehicle. Due to the variation of the body alignment, the chromium kit could not be fixed also. All the above said defects would prove that the vehicle supplied to the complainant was involved in an accident before delivering it to the complainant. The opposite parties delivered it to the complainant after carrying out repairing works and repainting. The act of the opposite parties amounts to unfair trade practice. The matter was brought to the notice of the 2nd opposite party and they replaced the rear left door. But the other defects are still persisting. Due to the unfair trade practice adopted by the opposite party. The complainant suffered great mental agony, hardships and financial loss. The complainant is entitled to get refund of Rs. 6,76,000/- which he spent for purchasing the new vehicle along with interest at the rate of 12% p.a. from the date of complaint till realization. He is also entitled to get Rs. 1,00,000./- towards compensation and the costs of the proceedings. This complaint hence.
2. The version of the 1st opposite platy is as follows:
There is no privity of contract between the complainant and the 1st opposite party. The complainant had taken delivery of the vehicle after examining the vehicle to his satisfaction. There was no defect in the vehicle as alleged. The vehicle was duly attended to by the 2nd opposite party as per the warranty policy. The 2nd opposite party replaced certain parts for the satisfaction of the customer and as a gesture of goodwill. There is no defect existing in the vehicle as alleged. The complainant is not entitled to get any of the reliefs as prayed for.
3. The 2nd opposite party filed a separate version stating the similar contentions that of the 1st opposite party.
4. The complainant was examined as PW1. Exts. A1 to A3 were marked. Witness for the 2nd opposite party was examined as DW1. Exts. B1 to B4 were marked. The witness for the 1st opposite party was examined as DW2 and Ext. B5 was marked. Heard the counsel for the parties.
5. The points that came up for consideration are as follows:
i. Whether the complainant is entitled to get refund of the price
of the vehicle?
ii. Whether the opposite parties are liable to pay compensation
and costs of the proceedings to the complainant. ?
6. Point Nos.i&ii. Admittedly or apparently the complainant purchased a Balero vehicle from the 2nd opposite party on 03-01-2011 which was manufactured by the 1st opposite party at a price of Rs. 6,17,600/-. It is not in dispute that 365 days standard warranty has been provided to the vehicle by the 1st opposite party and also provided extended warranty for engine and driveline for a further period of 24 months. According to the complainant the vehicle had met with an accident and the 2nd opposite party sold the vehicle suppressing the damages sustained to the vehicle. The opposite parties vehemently refuted the allegations of the complainant and submitted that the vehicle is free from any defect and there is no expert evidence on record to prove the averments of the complainant.
7. The Hon’ble National Consumer Disputes Redressal Commission in Kumari Narmata Singh Vs. Manager Indus A Division of Electrotherm & Anr. 2012 (3) CPR 570 (NC) has held that for proving fact of manufacturing defect of a vehicle expert opinion is essential. There has been no attempt on either party to bring in the same in the instant case. The learned counsel for the opposite parties argued that if at all the vehicle suffers from any defect the relevant parts only need to be replaced. They relied on the celiberated decision of the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and Another 2006 (4) SCC 644.
8. In the case at hand apart from the oral testimony of PW1 nothing is on record to show whether any other part of the vehicle suffers from defects.
9. In view of the above the complainant is neither entitled to get refund of the price of the vehicle nor to get any other parts replaced. However since the vehicle is within the warranty period the complainant is entitled to get the defect if any of vehicle repaired to make the same road worthy free of cost . With the above observation the proceedings in this complaint stands closed.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of the order.
Pronounced in the open Forum on this the 31st day of October 2012
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext. A1 : Copy of New vehicle delivery note
A2 : Copy of letter dt. 19/01/2011
A3series :
Opposite party’s Exhibits : :
Ext. B1 : Owners Mannual
B2 :
B3 : PDI request form
B4 : Copy of new vehicle arrival
report cum delivery
checklist.
B5 : Copy of New Vehicle
Receipt Report
Depositions:
PW1 : M.A. Varghese
DW1 : Eldho N.C.
DW2 : Benny John
