DIST.CONSUMER DISPUTES REDRESSAL COMMISSION, KHURDA, BHUBANESWAR:

                                                            -ooOoo-

C.C. CASE NO. 287/2018

Sourav Pharma Care,  Represented  through its Proprietor,

Mr. Gaurav Agarwal, aged about 37 years,

S/o- Rajendra Prasad Agarwal, Shop No.7, Katuri Estate,

Ashok Nagar, Bhubaneswar, Dist – Khurda – 751001

….       Complainant

-Vrs.-

1. Aditya  Hyundai,

Represented through its Managing Director.

Plot No.11, NH-5, Dasbatia, Tamando, Bhubaneswar,

Dist – Khurda – 752054

2. Hyundai Motors India Limited, having its registered office at Plot No-5,

            Corporate One, Baani Building, Commercial Centre, Jasola Vihar,

            New Delhi – 110025.

3. TATA AIG General Insurance Company Ltd., having its registered office at

Peninsula Business park, Tower-A, 15^th Floor, GK Marg, Lower Parel,

Mumbai – 400013, its area Branch office atUnit No.3B, 5^th floor, BMC Bhawani

Commercial Complex, Saheed Nagar, Bhubaneswar, through its In charge of

Area Office.

          (Deleted vide order  dated 06/07/2023)                       ...         Opp. Parties

For the complainant                :           Mr. B.K.Badajena & Associates  (Adv.)

For the OP.1                           :           Mr.  P.K.Dash & Associates (Adv.)

For the OP.2                           :           Mr.K.Mohan  & Associates (Adv.)

DATE OF FILING                :           28/11/2018

DATE OF ORDER                :           30/11/2023

ORDER

S.TRIPATHY, MEMBER 

1.         This Consumer Complaint is filed by the complainant  U/s 12 of the C.P.Act, 1986  alleging  deficiency in service against the OPs.

2.         The brief  fact of the complaint is that, the  complainant purchased one CRETA 1.4 CARD car from OP No.1 by paying  Rs.11,96,444/-  vide retail invoice No: E7A01H201800189 on 18/06/2018. It is to his bad fortune that,  on 03/07/2018, while his newly purchased car was parked in front of his house, a branch of a tree fell down on the back portion of his car causing damage to the back glass and roof of the car. In order to repair the same, the complainant handed over his vehicle to the OP.1 on 03/07/2018 and was supposed to receive the vehicle on 12/07/2018. But he was denied delivery on that day and also on the next two dates due to incomplete repairing work. In the meantime, due to heavy rainfall on 21/07/2018, the complainant’s car got submerged in rain water as it was parked in an open place by the OP No.1.  The  complainant was utterly devastated to see his brand new car in such a bad condition and requested the OPs to replace his car.  The OPs did not respond to the replacement request of the complainant. Instead, they generated an estimation of Rs.1,57,661.04/- towards  repair cost and asked for the approval from the complainant to repair the car either by making self payment or through insurance claim. The complainant did not agree to either condition and insisted upon replacement of the vehicle or in alternative refund of the cost of the vehicle.  He also sent legal notice to the OPs but it yielded no result. Being aggrieved to this, the complainant approached to this Commission to seek relief against the OPs.   Hence, this complaint.

3.         Upon notice, the OPs appeared before this Commission through their advocates and  filed  their written versions.

            It is contended in the written version of the OP No.1  that, on 03/07/2018 he received the damaged vehicle of the complainant on his workshop for denting, colouring and other repairing work. The repairing work was done and the vehicle was ready for delivery on 18/07/2018. The complainant had a test drive and after having it, he requested the OP. No.1 for some additional work in his car. As per the request of the complainant, the vehicle was kept in the workshop for another two days. On 20/07/2018 the vehicle was ready for delivery. The complainant was informed about the same but he did not turn up to receive his vehicle. On the very next day, there was heavy rainfall in the city causing flash flood in the workshop and the vehicle of the complainant submerged in the rain water. After receding of the rain water, the complainant was contacted for carrying out necessary repairing work in his vehicle which was caused due to rain water. He was requested to provide additional money to carry out the repairing work. Also, he was requested to provide the Insurance policy details in order to enable the OP.1  to lodge claim before the insurance company. But the complainant did not  respond to the letter of the OP.1 nor did he approach to the OP.1 to receive his vehicle by paying the repairing cost. Moreover, he issued a legal notice to the OPs to avail him a new vehicle in replacement of the vehicle in question or to refund him the  cost of the vehicle and subsequently filed this complaint before this Commission.  In this respect, the OP.1 submits that he  has provided service to the complainant and there is no negligence or deficiency of service while dealing with the vehicle of the complainant. Hence, the present complaint bears no merit and is liable to be dismissed with exemplary cost.

            OP No.2 has denied each and every allegation  made against him. He averred in his written version that, he is the manufacturer of Hyundai Cars and his liability is restricted to the extent of performance of the car and to its warranty  obligations only. OP No.1 and OP No.2 work on a principal –to- principal  basis and one is not liable for the acts / omissions of the other. The whole grievance of the complainant is solely against OP.No.1 regarding servicing and delivery of the vehicle. There is no privity of contract between the complainant and the OP No.2. OP No.2’s warranty terms & conditions do not apply to damages caused to the car by accidents, poor maintenance, abuse, problem arising out of actions of external factors like rain, atmosphere, etc. The circumstances of submerging of the car in flood is an Act of God and therefore, any demand / claim  made against  the OP.2 is not tenable in the eyes of law nor is he liable to pay any compensation or refund to the complainant. Hence the present complaint be dismissed against him with cost.  

4.         After filing of evidence on affidavit, hearing was taken up. During the course of hearing, the complainant expressed his pain for not having the scope and being deprived of using his brand new car due to the negligence of the OPs and unsatisfactory service. His car was only 11 days old when it was sent to the service centre and  severely got damaged in rain water while it was parked in the service centre. So, he claimed  for a replacement of the vehicle or in alternative refund of the cost of the vehicle. In counter, the OP.1 submitted that the vehicle of the complainant was ready for delivery after the repairing work. It was  only the complainant who asked for some additional work and did not turn up  on the scheduled date to receive the delivery despite intimation. Moreover, the complainant insisted upon replacement of the vehicle and got into litigation. After giving a thoughtful listening of the submissions of the parties and going through the materials  available on record, it is observed that the terms and conditions of the “Hyundai New Vehicle Warranty” does not allow for the replacement of the vehicle unless there is found any defect in material and workmanship [Annexure-R/2 (23)]. So, the claim of the complainant regarding replacement or refund of the cost of the vehicle find no substance.   

5.         Now the question is whether the OP No.1 is negligent in delivering satisfactory service to the complainant or not ? OP No.1 submitted that the vehicle was ready for delivery on the scheduled date,  but he had to keep it for two more days in his workshop on the request of the complainant only for some additional work in the vehicle. Further, he intimated to the complainant to take delivery of the car after the work was done but the complaint did not turn up. However, there is not a single scrape of paper to support this submission of the OP.1 and to show that the complainant  was intimated to receive his vehicle  before the occurrence of rain. Also,  there is no evidence to establish that the vehicle was kept on request of the complainant for some additional work. If this was so, the OP No.1 would have charged extra money  and generated another estimation slip for extra work. So, this does not inspire confidence upon us to believe that the vehicle was ready for delivery.

            Further, it was submitted by the OP.1 that the flashflood submergence caused damage to the vehicle which was not in his control. Undoubtedly,   there is no control over natural calamities, but the OP NO.1 could have taken appropriate measures to safe guard the vehicles which were left in his custody.  It can be noticed from the photographs filed by the complainant that the vehicles were left submerged in the rain water and no effective step was taken by the OP No.1 to prevent water logging. This shows that the OP No.1 is not well equipped to deal with such emergency situation. Moreover,  he imposed the entire repairing cost upon the complainant either to be paid by the complainant or through insurance claim. He rather should have taken the responsibility of the damage which was caused due to his negligence.

6.         Taking all these points into consideration,  this Commission felt it proper to direct the  complainant and the OP No.1 to appoint their technical persons for a joint inspection of the vehicle  and to  evaluate the present condition of the vehicle as the vehicle has not run for more than five years. Accordingly, a joint examination of the car was conducted by Mr. Kundan Singh and Mr. Gaurav Agarwal, Proprietor of  M/s Sourav Pharma Care, Bhubaneswar at Aditya Hyundai and the report dated 12/10/2023 was submitted before this Commission. Perused the report. It includes the following observations.

1. AC of the car is not working.
2. All the five tyres including the stepney has become very hard and will become useless as the car starts running on the road.
3. After taking the test drive of the car we found that the engine is delivering deep black smokes and a typical sound is coming from the engine. And the gear is also not functioning properly.
4. Even  the body of the car has started rusting and the colour of the car has also faded.
5. The headlights of the car are also damaged.
6. The crome  items have also started rusting.
7. The seats of the car and the interior parts of the car has also found damaged.
8. Wiper of the car not functioning. 
9. Almost all the rubber items of the car are damaged.
10. Battery of the car is also completely dead.
11. And lots of mechanical repairs and checking needs to be done which can only be possible after dismantling engine and body parts of the car.

After going through the said inspection report, this Commission is of the opinion that the  OP No.1 is to undertake the following repair works to make the vehicle properly functional and roadworthy.

1. Replacement of all the tyres.
2. Replacement of battery.
3. Replacement of all the rubber items.
4. Replacement of AC and wiper of the car.
5. Replacement of headlights.
6. Replacement of break shoe and clutch pad.
7. Repairing of the portion of the car that has been rusted.
8. Necessary repair of the engine so as to prevent emission of black smoke and producing abnormal sound.
9. Repair of Gear Box.

Accordingly, it is ordered that :-

ORDER

The complaint is  dismissed  against the OP No.2 and allowed  on contest against the OP.No.1.  The OP No.1 is  hereby directed to make  the replacements / repairs such as:-

1. Replacement of all the tyres.
2. Replacement of battery.
3. Replacement of all the rubber items.
4. Replacement of AC and wiper of the car.
5. Replacement of headlights.
6. Replacement of break shoe and clutch pad.
7. Repairing of the portion of the car that has been rusted.
8. Necessary repair of the engine so as to prevent emission of black smoke and producing abnormal sound.
9. Repair of Gear Box.

The OP.1 is to repair the vehicle in question  as stated above with Company certified components and to supply the original bills with warranty cards of the replaced items to the complainant. The OP No.1 is   further directed to pay a sum of Rs.10,000/-   (Rupees ten thousand) only towards mental agony suffered by the complainant and a further sum of Rs.5000/-  (Rupees five thousand) only towards litigation expenses.  The order be complied with by the OP No.1    within a period of  sixty  days from the date of communication of this order,   failing which the complainant will be  at liberty to execute the order  against the OP No.1    in accordance with law.

The order is pronounced on this day the 30^th November  2023  under the seal & signature of the President and Member (W) of the Commission.

                                                                                                (S.TRIPATHY)

                                                                                                   MEMBER(W) 

Dictated & corrected by me

           Member ( W) 

                                                                                                I agree

                                                                                                                                                                                    President        

                                                                                                (K.C.RATH)

Transcribed by Smt.M.Kanungo, Sr.Steno :