State Consumer Disputes Redressal Commission
Mahindra & Mahindra Limited vs Shri Rajinder Singh on 30 March, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.
First Appeal No.72 of 2010
Date of institution : 19.1.2010
Date of decision : 30 .3.2012
1. Mahindra & Mahindra Limited through its duly authorized signatory,
Gateway Building, Apollo Bundar, Mumbai-400 039.
2. Mahindra & Mahindra Limited, Zaheerabad, 502 200, District Medak
(Andhra Pradesh) through its duly authorized signatory.
.......Appellants
Versus
1. Shri Rajinder Singh s/o Jangir Singh, r/o Near Bus Stand, Bhagta Bhai Ka,
District Bhatinda, Punjab.
2. Imperial Motors, GT Road, Bhatinda through its
Proprietor/Partner/Manager.
......Respondents
First Appeal against the order dated 13.11.2009 of
the District Consumer Disputes Redressal Forum,
Bhatinda.
Before :-
Hon'ble Mr. Justice S.N. Aggarwal President.
Mr. B.S. Sekhon, Member.
Present :-
For the appellants : Shri N.P. Sharma, Advocate.
For respondent No.1 : Shri Rajinder Singh (In Person). For respondent No.2 : Shri Mukand Gupta, Advocate. JUSTICE S.N. AGGARWAL, PRESIDENT:
This order will dispose of two appeals, namely, First Appeal No.72 of 2010 (Mahindra & Mahindra Limited v. Rajinder Singh and anr.) and First Appeal No.137 of 2010 (Imperial Motors v. Rajinder Singh and others) as the questions of law and facts involved in both these appeals are identical and both these appeals are directed against the same impugned judgment dated 13.11.2009 passed by District Consumer Disputes Redressal Forum, Bathinda (in short "District First Appeal No.72 of 2010. 2 Forum"). The facts are taken from First Appeal No.72 of 2010 and the parties would be referred by their status in this appeal. VERSION OF RESPONDENT NO.1:
2. Rajinder Singh respondent No.1 (in short "the respondent") had purchased Bolero Camper DI 2 WD CMVR from Imperial Motors respondent No.2 (appellants in FA No.137 of 2010) vide bill No.230 dated 20.2.2008. The temporary registration certificate number of the vehicle was PB-03-Temp-P-0307.
It carried warranty also.
3. It was further pleaded that chassis of the vehicle had gone out of order within warranty period due to rust and rust had eaten the said vehicle. The respondent had shown the vehicle to various mechanics including to the technicians of the appellants and respondent No.2 and it was told by them that the chassis in the vehicle was not new one. Rather it was an old one and was of a used vehicle. The respondent was also told that the rust has damaged the vehicle and the respondent was entitled to get the vehicle replaced with a new one. Since there was manufacturing defect in the chassis, therefore, appellants and respondent No.2 had committed fraud with the respondent and cheated him and also indulged into unfair trade practice.
4. It was further pleaded that the respondent had contacted respondent No.2 Imperial Motors and requested them to do the needful but no attention was paid to his request. Rather respondent No.2 had refused to hear the respondent and the respondent had to face lot of harassment, humiliation and botheration.
5. It was further pleaded that the respondent got issued legal notice dated 23.12.2008 through his counsel to the appellants and respondent No.2. It was replied by the appellants. The respondent not only lost his image in the society but also suffered mental tension/agony, financial loss and physical harassment. Therefore the respondent was entitled to the compensation to the tune of Rs.1,00,000/- besides replacement of the vehicle. Costs were also prayed. Hence the complaint.
First Appeal No.72 of 2010. 3VERSION OF RESPONDENT NO.2:
6. Respondent No.2 filed the written reply. It was admitted that the respondent had purchased Bolero Camper DI Long vide Bill No.230 dated 20.2.2008 from respondent No.2. The respondent had availed free service, from the workshop of respondent No.2 and the service was done to the entire satisfaction of the respondent. It was denied if any warranty was given for rusting or corrosion. The deterioration of the paint could be due to normal exposure or normal wear and tear and, therefore, it is not covered by the terms and conditions of the warranty in any manner. It was, however, specifically denied if the chassis of the vehicle was old one or if it was a used vehicle or if there was any rust or if the damage to the vehicle was caused. It was denied if respondent No.2 was liable to replace the vehicle.
7. It was further pleaded that since the respondent had made allegations of cheating and fraud, therefore, the proceedings under the Consumer Protection Act, 1986 were not maintainable. The vehicle was attended immediately. It was brought to the workshop of respondent No.2. It was admitted that respondent No.2 was the dealer of the appellants and the appellants were the manufacturers of the vehicle. It was pleaded that if a person keeps the vehicle in water or does not take proper care, then loss will surely happen to the body of the vehicle for which neither the manufacturer nor the dealer could be held liable. It was denied if there was any deficiency in service on the part of respondent No.2. Dismissal of the complaint was prayed.
VERSION OF THE APPELLANTS:
8. Reply was also filed by the appellants. It was pleaded that relations between the appellants and respondent No.2 were on principal to principal basis.
It was pleaded that the respondent has not come to the District Forum with clean hands and he was estopped by his own act and conduct from filing the present complaint.
First Appeal No.72 of 2010. 4
9. It was further pleaded that the respondent had availed free services of the vehicle on 3.4.2008, 5.6.2008 and on 21.7.2008. He had not lodged any complaint about the rusting of the chassis of the vehicle. Obviously therefore the allegations now made by the respondent were an afterthought and constituted a concocted version. It was admitted that warranty was given but under the terms of the warranty chassis was only for a period of six months. Moreover the vehicle was used by the respondent for commercial purpose. Therefore he was not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. It was denied if there was any manufacturing defect in the vehicle. Dismissal of the complaint was prayed.
PROCEEDINGS BEFORE THE DISTRICT FORUM:
10. The respondent produced documents Ex.C-1 to Ex.C-13 and he also filed his own affidavit as Ex.C-14. The respondent also filed the affidavit of Sukhmander Singh as Ex.C-15 and the affidavit of Baldev Singh as Ex.C-17. He also produced documents Ex.C-16, Ex.C-18 to Ex.C-21. He further filed his own affidavit as Ex.C-22. He also produced photographs Ex.C-23 to Ex.C-44. He also proved copies of extended warranty as Ex.C-45 and Ex.C-46.
11. On the other hand, respondent No.2 filed the affidavit of Sanjiv Devgan, General Manager as Ex.R-1. They also proved documents Ex.R-2 to Ex.R-9. Respondent No.2 also filed affidavit of Deepak Sharma, Service Manager as Ex.R10. They also proved documents Ex.R-11 and Ex.R-12. They also filed the affidavit of Benny John, Deputy Manager, Commercial as Ex.R-13.
12. The Local Commissioner also filed his report dated 19.10.2009. It reads as under:-
"I was appointed as local commissioner in the above noted complaint by this Hon'ble Forum vide letter No.DCF/BTI/1896 dated 14.10.2009 to examine the vehicle in the Maruti workshop in presence of counsel for both the parties on 15.10.2009 at 04:00 PM & to First Appeal No.72 of 2010. 5 submit the report to the effect as to whether the chassis/engine No.83A5774, model 2008 & bearing temporary no.PB03(T)P 0307, of the vehicle is brand new or otherwise.
As per instruction, I inspected the vehicle physically in the workshop of Tara Automobiles (Authorized Maruti Suzuki Dealer) workshop in the presence of both the parties & their counsels. Kilometer reading of the vehicle at the time of inspection was 58578 KM. I physically verified the chassis no. of the vehicle & got it tallied with the chassis no: mentioned in the aforesaid letter which is same. But however the identification plate which contains chassis & engine no: is not fixed/reverted as per the manufacturing norms. It is screwed on the body of the vehicle & creates the confusion about its authenticity. The chassis no:
punched on the frame of the vehicle confirm that the vehicle is manufacturing of year 2008. The front wind shield fitted in the vehicle is stamped 2007 Model & the quarter glasses of both the rear door of the vehicle stamped 2006 model. Vehicle also got rusted badly it may be due to poor quality of paint & metal sheet used for the body."
13. The parties also filed written arguments.
14. Learned District Forum accepted the complaint with costs of Rs.10,000/- vide impugned judgment dated 13.11.2009. The appellants were directed to replace the vehicle with a new one or in the alternative to refund the amount of Rs.4,84,000/- with interest at the rate of 9% per annum. Rs.1,00,000/- were awarded as compensation.
First Appeal No.72 of 2010. 6
15. Hence the present appeal (FA No.72 of 2010) by the appellants against the said impugned judgment dated 13.11.2009.
16. Similarly, respondent No.2 has also filed the appeal (F.A. No.137 of 2010). DISCUSSION:
17. The submission of the learned counsel for the appellants was that no complaint was ever lodged by the respondent about any defect in the chassis of the vehicle nor any expert evidence has been proved if the rusting of the chassis had taken place due to its manufacturing defect. It was also submitted that although the respondent alleged manufacturing defect in the chassis but the learned District Forum has directed the replacement of the vehicle with a new one besides compensation and costs. Hence it was prayed that the appeal be accepted and the impugned judgment dated 13.11.2009 be set aside.
18. Learned counsel for respondent No.2 has also made a similar prayer and it was submitted that the appeal (FA No.137 of 2010) be accepted and the impugned judgment dated 13.11.2009 be set aside.
19. However Rajinder Singh respondent who is present in person submitted that there was no merit in any of these two appeals and both the appeals be dismissed.
20. Record has been perused. Submissions have been considered.
21. The admitted facts are that the Bolero Camper DI was purchased by Rajinder Singh respondent from M/s Imperial Motors respondent No.2 vide bill no.230 dated 20.2.2008. Its temporary registration certificate number was PB-03- Temp-P-0307. It was manufactured by the appellants. The documents of sale have been proved by the respondent as Ex.C-1, Ex.C-2 and Ex.C-3.
22. It is also proved that the respondent had got conducted the first free service from the workshop of respondent No.2 on 3.4.2008. The service card has been proved by the respondent himself as Ex.C-4. It is nowhere mentioned if the respondent had ever lodged any complaint about rusting of the chassis. The second free service was got done by the respondent from respondent No.2 on First Appeal No.72 of 2010. 7 5.6.2008 and the job card has been proved by the respondent as Ex.C-5 dated 5.6.2008. In this job card also there is no complaint by the respondent about the rusting of the chassis.
23. The third free service was availed by the respondent on 21.7.2008 and the job card has been proved by the respondent himself as Ex.C-6. In this job card again there is no complaint of rusting of the chassis.
24. The respondent has pleaded that the rusting of the chassis and on the upper part of the body of the vehicle had started after third service. The respondent, however, had not placed on the file any complaint lodged by the respondent either with the appellants or with respondent No.2 except the legal notice which was served for the first time on 23.12.2008 (Ex.C-8).
25. The photographs reveal that there was rusting at some places of the vehicle. Although the respondent has not produced any expert evidence if rusting of the vehicle had taken place due to manufacturing defect but the photographs clearly reveal that the rusting had taken place at number of places within a period of 10 months from the date of purchase of the vehicle. It is clearly indicative that there was manufacturing problem in the vehicle.
26. Moreover the report of Local Commissioner dated 19.10.2009 also reveals that the vehicle was badly rusted. Since the vehicle was rusted so early i.e. only a few months after its purchase, obviously it was of inferior quality for which the manufacturers are liable.
27. Since the vehicle was purchased on 20.2.2008, it is already four years old, therefore, it would not be advisable to ask the respondent to get the vehicle re- painted or repaired from the appellants. Replacement of the vehicle after such a long time would amount to miscarriage of justice. In the circumstances of the case, it would meet the ends of justice if the respondent is awarded compensation which in the circumstances is assessed to be Rs.1,25,000/-. It would be payable by the appellants who are the manufacturers of the vehicle. First Appeal No.72 of 2010. 8
28. This appeal is accordingly accepted partly and Rajinder Singh respondent is held to be entitled to the compensation amount of Rs.1,25,000/-. The impugned judgment dated 13.11.2009 is modified accordingly.
29. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 19.1.2010. They had also deposited an amount of Rs.75,000/- in this Commission on 23.2.2010. Both these amounts i.e. Rs.25,000/- and Rs.75,000/- along with interest, if any, be remitted to respondent Rajinder Singh by the registry by way of crossed cheques/demand drafts after the expiry of 45 days under intimation to the appellants.
30. The remaining amount shall be paid by the appellants to Rajinder Singh respondent within a period of two months after the receipt of a copy of this order. FIRST APPEAL NO.137 OF 2010:
31. Since this appeal has been filed by Imperial Motors who are dealers of Mahindra and Mahindra Limited respondent No.2 (appellants in FA No.72 of 2010) and since the dealers are not liable for any manufacturing defect in the vehicle, therefore, Imperial Motors appellants in the present appeal (respondent No.2 in FA No.72 of 2010) are held not liable to pay any amount to respondent Rajinder Singh.
32. Accordingly this appeal (FA No.137 of 2010) is accepted and the impugned judgment dated 13.11.2009 qua Imperial Motors appellants in the present appeal (respondent No.2 in F.A. No.72 of 2010) is set aside.
33. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 1.2.2010. They had also deposited an amount of Rs.25,000/- with this Commission on 19.3.2010. Both these amounts of Rs.25,000/- each with interest accrued thereon, if any, be refunded by the registry to the appellants Imperial Motors by way of a crossed cheque/demand draft after the expiry of 45 days.
34. The arguments in these cases were heard on 28.3.2012 and the orders were reserved. Now, the orders be communicated to the parties. First Appeal No.72 of 2010. 9
35. The appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE S.N. AGGARWAL)
PRESIDENT
March 30 , 2012 (BALDEV SINGH SEKHON)
Bansal MEMBER