DOF.9.2.2009

DOO.29.1. 2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Preethakumari:  Member

Smt.M.D.Jessy:               Member

Dated this, the 29^th  day of January    2011

CC.41/2009

C.P.Muhammad Shameel,

Mumthaz Mahal, P.O.Peringadi,

New Mahe.                                                     Complainant

(Rep. by Adv.K.Ajith Kumar)

1. M/s. KTC Automobiles (P) Ltd,

    Kannothumchal,

    Chovva, Kannur.

2. M/s. KTC Automobiles (P) Ltd,

    KTC Building, VMCA Road,

    Calicut.

    (Rep. by Adv.K.Krishnan)                                             

3. M/s. Hyundai South Regional Office,

    Thiru-Vika Industrial Estate,

    Chennai, Tamil Nadu.

    (Rep. by Adv.M.Kishore Kumar)                          Opposite parties

O R D E R

Sri.K.Gopalan, President

          This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite parties to give proper service to the damaged vehicle of the complainant at the earliest from a nearest service station and to give an amount of  `1,00,000 as compensation  with cost of this proceedings.

          The case of the complainant in brief are as follows:  The complainant purchased a Hyundai Car bearing the number KL.58A/4554 on 12.12.07/ The  car met with an accident on 11.6.08 and it was removed to workshop of 2^nd opposite party, the authorized service station. Complainant was permitted to carry one repair. On the basis of the opinion of 2^nd opposite party the complainant was forced  to change the recommended spare parts of the vehicle and an amount of  `61,091 was charged by the workshop. The vehicle was handed over after their trial running. But after a short while vehicle was found defective while using the air condition. Within a short journey itself the overheating of the radiator and other accessories causes to the stoppage of vehicle. Matter was informed to 1^st opposite party. Two times 1^st  opposite party carried out repairs but complaint was repeated.  On 26.12.08 on the second checkup 1^st opposite party represented that they are fully satisfied with the functions of vehicle. Thus complainant sent lawyer notice. Opposite parties 1 and 3 did not sent reply but 2^nd opposite party sent reply with untenable contentions. At the time of Purchase Company guaranteed for extented warranty for three years in all the parts of the engine and gear box of the vehicle. Opposite parties are liable to give proper service to the damaged vehicle. Hence this complaint.

          Pursuant to the notice opposite parties 1 and 3 entered appearance and filed version. Opposite parties 1 and 2 filed version contending as follows: Opposite parties have no knowledge of purchase of the vehicle bearing No.KL.58A/4554 from the company on 17.12.2007. Complainant had approached the 2^nd opposite party for accident repair on 2.2.2008. All repair works were done and complainant had taken delivery of the vehicle on 22.2.2008 after being fully satisfied with the repair and service done by 1^st opposite party. Thereafter the vehicle was brought to 2^nd opposite party on 12.5.08 again for accident repair due to a front on collusion and vehicle was repaired and taken back delivery by full satisfaction on 3.5.08. The vehicle again met with accident on 11.6.08. It was a front on collusion. The vehicle was brought to workshop of 2^nd opposite party on 14.6.08. Opposite party had attended the rectification work as instructed by the complainant and the vehicle was repaired ready for delivery on 30.6.08 and the same was taken delivery on 7.7.08. The odometer reading showed 9100 KMs at the time of delivery. On all the three occasions ICICI Lombard General Insurance Company had inspected the vehicle and claim settled after being satisfied about the work done as per their specifications. No complaints raised thereafter till the issuance of notice. The allegation of overheating of radiator and other accessories, repeated complaint was affected etc. are false. No such complaints made to opposite parties. It is false to say two times the vehicle was repaired by 1^st opposite party as recommended by 2^nd opposite party for which complainant spent so much money. The vehicle was brought to 1^st opposite party on 24.12.008 with request to check complaints of engine overheating. On verification it was found that the coupler pin on the wiring system was broken, inspiring the function of the fan of the cooling system. It was to be rectified by replacing the relevant wiring system, and the cost comes to the tune of `11,000.

          As the said replacement  was not  covered under the terms of warranty on account of the breakage and on account of the history of repeated accident repairs, the complainant wanted time to enquire whether the same could be  got replaced under the insurance  policy and had taken back the vehicle  without the  defects being rectified. The very fact of involving the vehicle in repeated accidents indicates that the vehicle was being used in rash and negligent manner. The complaint thereafter did not come for any repair work. He did not approach 2^nd opposite party demanding replacement and issuance of lawyer notice is only an off shoot of malafide intention withulterior motive for unjust enrichment. Opposite arties issued reply informing the willingness to attend the repair and satisfaction work, if the complainant is ready to pay the charges. But he filed the complaint on  26.12.08 the vehicle was again taken to1st opposite party and the vehicle was repaired and returned after observation  with a representation that the vehicle is free of all problems and the over heating of engine was cured.

          The contentions of 3d opposite party in brief  are as follows: complainant has not raised any allegation against this opposite party. He has been unnecessarily impleaded as a party Complainant  purchased a Hyundai car bearing VIN MALAN 51 BR7MO12169 and Engine No.G4HG7M304579 from M/s.Popular Hyundai from the authorized dealer of the 3^rd opposite party. The car was delivered in perfect running condition on 12.12.2007. The first accidental repair reported on 2.2.08 before 1^st opposite party and thereafter before 2^nd opposite party on 12.5.2008 and again on 14.6.2008. The allegation of the complainant with respect to engine overheating was because of the coupler pin of the wiring system was broken impairing the functioning of the fan of the cooling system, which requires an amount of ` 11,000 for rectification. Since it was not covered under the warranty policy due to the history of accidents of complainant’s car the complainant did not agree to carry out the repair.

Complainant’s car reported accidental repairs on 14.8.08 before 2^nd opposite party at a mileage of 9100 kms. This was repaired and delivered on 7.7.2008. On 24.12.08 at a mileage of 15432 kms complainant reported his car before 2^nd opposite party with a request to check the problem of engine overheating The alleged problem was reported after six months of accidental  repairs carried out in the car and after the car was driven a 6000 kms. There was no complaint with respect to the air-conditioning of the car after the accident repairs were carried out in the complainant’s car on 14.6.2008. The answering opposite party is not in receipt of any notice of complainant. The complainant has been driving his car in a very rash and negligent manner which resulted in three major accidents of the car within a period of just about seven months from the date of purchase. The present complaint is a sheer abuse of process of law and deserves to be dismissed.

          On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled for the relief as prayed in

     the complaint?

3. Relief and cost.

          The evidence consists of the oral testimony of PW1, DW1, DW2, Exts.A1 to A9, and B1 to B3.

Issue Nos.1 to 3

          Admittedly complainant purchased a car from Hyundai Company on 12.12.2007. The case of the complainant is that his car met with an accident on 11.6.08 and then taken to the workshop of 2^nd opposite party for the service on 12.6.2008, 2^nd opposite party authorized service station of 3^rd opposite party Hyundai company carried out the repair charging an amount of `61,091 and an amount of `12,411 was charged by 2^nd opposite party as the additional amount for which 2^nd opposite party issued receipt. Complainant was granted permission to do all necessary works as asked by 1^st opposite party including the change of entire necessaries of Radiator and cooling system. The vehicle was returned after three weeks. According to 1^st opposite party the vehicle showed the problem of over heating of radiator and other accessories within the running of a short distance itself. The same was informed to 1^st opposite party. Later two times the vehicle was repaired by 1^st opposite party which was recommended by the 2^nd opposite party. On 26.12.2008 on the second check up 1^st opposite party represented that all the repairs were done and they are satisfied with the function.

          3^rd opposite party has taken a contention that they are unnecessary party since there is no allegation against them in the complaint. Opposite parties 1 and 2 have the case that the engine overheating complaint is because of the reason that the coupler pin of the wiring system was broken impairing the function of the fan of the cooling system. It could be repaired only by replacing the wiring system which cost about `11000. Since the said replacement was not covered under the warranty policy due to the history of accidents of the complainant’s car which the complainant did not agree to carryout the said repairs in the car.

          Both parties filed affidavit, evidence in lieu of chief affidavit in tune with the pleadings. Complainant deposed in chief that his vehicle was met with an accident on 11.6.2008 and immediately taken to the workshop of 2^nd opposite party for repair, the vehicle was repaired and charged `61,091. Complainant directed 1^st opposite party before when the vehicle was taken for repair to carry out a total rectification work of the vehicle. Complainant agreed to have the repair of the entire cooling system as directed by 1^st opposite party. Vehicle was returned after three weeks telling that it was repaired fully. It was represented that opposite party tested and taken trial run when it was delivered. But complaint of over heat started within a short period. The matter was informed to 1^st opposite party and on the recommendation of   2^nd opposite party vehicle was repaired twice. On 24.12.08 when the second time repaired the vehicle 1^st opposite party told that the vehicle is delivered with full satisfaction. The complainant further states that the defect of the vehicle was not cured.

          In the cross examination complainant has deposed that the vehicle was met with accident within two months. It was a hit by lorry on the back side and the same was repaired by 2nd opposite party. The vehicle after repair   was delivered on 22.2.08. He further deposed that second accident was taken place after one month of the first accident. It was a head on collusion but the vehicle was given with two weeks time after repair. Complainant continued to depose that the vehicle was met with another accident after three weeks. It was also a head on collusion. He has also deposed by answering another question that he was not aware of the contention of opposite party in their version that the approximate amount of the repair cost was `11000. He has admitted in cross examination that all these three accidents were not taken place out of manufacturing defect. He added that the complaint is in respect of the work carried out in the service centre. He further deposed that there is no defect for the vehicle now and wanted to get compensation from opposite parties 1 and 2. His demand is not for new vehicle but for repairing the vehicle hence there substances in the contention of 3^rd opposite party.

          However, there is no doubt that the complainant had purchased the vehicle from the company and opposite parties 1 and 2 are aware of this fact at least at the time of repair of the vehicle. 3^rd opposite party already admitted that the complainant has purchased the vehicle. Opposite parties 1 and 2 are contended that the defect of the complainant’s vehicle was to be rectified by replacing the relevant wire system, the cost of which comes to the tune of  `11,000. As the said replacement was not covered under the terms of warranty on account of the breakage,  and on account of the history of repeated repairs. If opposite parties 1 and 2 are aware of terms of warranty there is no need to say that it is within their knowledge from whom the vehicle was bought. In other words there is no meaning in saying that they are unaware of the fact that the complainant purchased the vehicle bearing NO.KL.58A/455A (Reg.KL.58A4554) from the company on 12.12.2007. Ext.B3 produced by KTC alone is sufficient to establish that opposite parties 1 and 2 are fully aware that the complainant Mr.Muhammed purchased the vehicle MALAN51BR7MD12169 on 12.12.2007 from Hyundai Company.

          Undoubtedly the vehicle was repaired by opposite parties 1 and 2. Ext.B3 proves that on 24.12.08 the alleged vehicle was taken to 1^st opposite party for repair. It is admitted by opposite partitas 1 and 2 that the vehicle was brought to 1^st opposite party on 24.12.08 with request to check complaints of Engine overheating. Opposite parties 1 and 2 contended that on verification it was found that the coupler pin on the wiring system was broken, impairing the function of the fan of the cooling system, which could be rectified by replacing the wiring system, the cost of which comes to the tune of  `11000.

          Ext.A4 is the notice sent by complainant to opposite parties. The version of opposite parties 1 and 2 narrated that the complainant first approached 2^nd opposite party for accident repair on 2.2.08 and delivered the vehicle after repair on 22.02.08. Again brought 2^nd opposite party for repair due to heed on collusion and the vehicle was repaired and delivered on 30.5.08. It was again brought for accident repair on 14.6.08 and complainant took delivery after repair on 7.7.08. Further stated that ICICI Lombard General Insurance Company had also inspected the vehicle and the insurance claims settled. The complainant also paid the depreciation amount at the time of taking delivery after being fully satisfied about the work carried out by these opposite parties. Complainant had raised any objection or complaints at the time of taking delivery or later till the issuance of the notice. That means opposite parties 1 and 2 contended that after 7.7.08 till the issuance of notice Ext.A4 on 8.1.2009 complainant had raised any complaints. Opposite parties 1 and 2 on the other hand admitted in Para 8 of the version that the vehicle was brought to them on 24.12.08. It is contrary to above contention. More over opposite parties 1 and 2 contended that they found the defect of the vehicle that the coupler pin on the wiring system was broken impairing the function of the fan of the cooling system. It was also contended that the cost of rectification comes to the tune of  `11,000 but  since it was not covered under the terms of warranty complainant wanted to enquire whether the same could be got replaced under the insurance policy and  had taken back the vehicle on 26.2.08 without the  defects being rectified. The version further stated in Para 9 that the complainant had not brought the vehicle there after to the opposite parties for doing necessary repairs and replacement work. Complainant had approached 2^nd opposite party demanding that the said replacement has to be done for free of cost and making baseless allegation. The lawyer notice issued is an offshoot of ulterior motive for unjust enrichment. Ext.A4 notice was  sent by the complainant on 8.1.09 and it is undoubtedly clear that opposite parties 1 and 2 had not repaired the vehicle after taking back it on 26.2.08.

          In Para ten of the version what is stated by opposite parties  1 and 2 is that on 26.12.08 the vehicle was taken to first opposite party and the vehicle was repaired and the same returned after observation of two days with a representation that the vehicle is free of all problems and the over heating of the engine was cured. What they have stated in Para 8 of the version is that the complainant has taken back the vehicle on 26.2.08 without being rectified the defects. It is also added that he had not brought the vehicle thereafter. This contradicting versions reveals unfair trade practice on the part of opposite parties 1 and 2. It is pertinent to note that Ext.A10 dt. 28.1.09 reply notice of opposite party stated that

“My client has been and is always ready and willing to attend to the repair and rectification work provided your client is ready to pay the requisite charges”. In cross examination DW2 deposed that “adp]Sn t\m«o-kn R§Ä h­n dnt¸-bÀ sN¿p-¶-Xn\p 11,000 cq] Bh-i-y-s¸-«n-«p-­v.-C-t¸mÄ Fs¶ ImWn¨Xv (Ext.A10) R§Ä Ab¨ t\m«okv BWv”. ` 11,000 demanded for the repair  of alleged defect of engine over heat when the vehicle was brought to the service centre at Kannur on 24.12.2008. Hence the contention of opposite parties 1 and 2 stated in Para 10 of the version that on 26.12.2008 the vehicle was again taken the 1^st opposite party and the vehicle was repaired and the same returned after observation of two days with a representation that the vehicle is free of all problems and the over heating of the engine was cured cannot be believed at all. There is no reason to disbelieve the  evidence given by complainant by way of chief affidavit that “ 24.12.08\p cWv-Sm-a-XpT ]cn-tim-[\ \S¯n dn¸-bÀ sNbvX 1þmT FXr-I£n hml-\T \¶mbn dn¸-bÀ sNbvXp-sh-¶pT ]qÀ® kT-Xr-]vXn-tbm-Sp-Iq-Sn-bpT hni-zm-k-¯n-ep-amWv hml-\T Xncn¨p Xcp-¶-sX-¶pT lc-Pn-¡m-c-t\mSv ]d-ªn-cp-¶p-sh-¦n-epT hml-\-¯nsâ XI-cmdv am{XT ]cn-l-cn-¡-s¸-«n-Ô. Ext.A8 reveals that service advisor instructions to shop floor: primary jobs: “check over heating” which is confirmed by DW1 deposing in cross examination that “Ext. A8 tcJ R§Ä sImSp-¯-Xm-Wv. Ext.A8 tcJ bn check over heating  F¶v ImWn-¨n-«p­v”. 1^st opposite party has not sent any reply to Ext.A4 legal notice Ext.A5 series proves that all the opposite parties received the notice. But 1^st opposite party has not given any explanation for keeping silence without sending reply. It is also a deficiency in service on the part of 1^st opposite party.

          The analysis of available evidence and facts of the case reveals that opposite parties 1 and 2 failed to carry out the repair works of the complainant’s car satisfactorily. Ext.A2 cash receipt for  `12411, Ext.A6 receipt for  `28614 shows that complainant promptly paid the amount towards  the repair charges. Ext.A9 is the extended warranty certificate that certifies that the vehicle is covered under Hyundai Extended warranty scheme valid up to 11.12.2010 or up to 60000 kms.

          In the light of the above discussion we have no hesitation to say that there is deficiency in service on the part of opposite parties 1 and 2. As a businessman it is quite natural that he would have suffered to certain extent his business and journey. Hence we find opposite parties 1 and 2 are liable to pay compensation to the tune of `20,000 and an amount of `1,000 as cost of this litigation. The issues 1 to 3 are found in faovur of complainant.

          In the result, the complaint is allowed directing the opposite parties 1 and 2 to pay `20,000 (Rupees Twenty thousand only) as compensation together with an amount of `1000/- (Rupees One thousand only) as cost of these proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is entitled to execute the order against the opposite parties 1 and 2 as per the provisions of consumer protection Act.

                             Sd/-                      Sd/-                   Sd/-

President              Member                Member

APPENDIX

Exhibits for the complainant

A1.Copy of the credit invoice issued by OP

A2.Copy of the cash receipt issued by OP

A3. Copy of the repair order issued by OP

A4.Copy of the lawyer notice sent to OP

A5. Postal AD

A6.Receipt dt.7.6.08 issued by OP

A7.Copy of credit invoice issued by OP

A8.Copy of repair order issued by APCO vehicles Pvt.Ltd.

A9. Warranty Certificate issued by OP

Exhibits for the opposite party

B1.Copy of repair order issued by APCO Vehicles

B2.Copy of letter of authorization issued by OP

B3. Copy of details obtained from GDMS system about accident repair of the vehicle.

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite party:

DW1.Jaikish.K.

                                                         /forwarded by order/

Senior Superintendent

Consumer Dispute  Redressal Forum, Kannur.