Date of Filing:       30.12.2016

                                                                                                                       Date of Disposal:  12.04.2019

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR.

PRESENT:     THIRU.J.JUSTIN DAVID M.A., M.L.,                                       :   PRESIDENT

                        TMT.K.PRAMEELA, M.COM.,                                     :   MEMBER I

                       THIRU.D.BABU VARADHARAJAN, B.Sc., B.L.,       :   MEMBER-II

CC.No.54/2016

FRIDAY, THE 12^th     DAY OF APRIL 2019

Mr.Bipin Babu,

Represented by his power agent

Mr.Babu Alexander,

No.5, 2^nd Street,

Rukmani Nagar,

Maduravoyal,

Chennai -600 095.                                                     ….. Complainant.                            

                                           //Vs//

1.Kun Hyundai, (Service Centre)

   Kun Auto Company private Limited,

   Rep by its Managing Director/Director,

   D-5, Ambattur Industrial Estate,

   Chennai -58.

2.Area Manager,

   Hyundai Motor India Limited,

   No.54, Developed plot,

   Thiru-vi-ka Industrial Estate,

   Ekkaduthangal,

   Guindy, Chennai - 600 032.

3.Hyundai Motor India Limited,

   Irugattukottai, NH No.4,

   Sriperumbudur Taluk,

   Kanchipuram District,

   Tamil Nadu - 602 117.

4.Mobis India Limited,

   G-1, SIPCOT Industrial Park,

   Irungattukottai,

   Sriperumbudur Taluk,

   Kancheepuram District,

   Tamil Nadu -602 117.                                          ……..  Opposite parties.

This complaint is coming on for final hearing before us on 12.04.2019 in the presence of M/s.N.Ramesh, counsel for the complainant, and M/s.A.Naveen Kumar, counsel for the 2^nd and 3^rd opposite parties and M/s.JP.Karunakara, counsel for the 4^th opposite party and 1^st opposite party filed vakalat and written version, subsequently he has not filed proof affidavit and therefore the 1^st opposite party was set ex-parte on 29.10.2018 and upon hearing argument and having perused the documents and evidences on both sides, this forum delivered the following.

ORDER

PRONOUNCED BY THIRU J.JUSTIN DAVID, PRESIDENT.

 This complaint has been preferred by the complainant under section 12 of the consumer protection act -1986 against the opposite parties for seeking direction to pay a sum of Rs.2,00,000/- towards compensation for the damages incurred due to the negligence of leaving the car unattended in open area for more than six months and to pay a sum of Rs.1,00,000/- towards compensation for the improper and deficiency in service and to pay a sum of Rs.20,000/- as compensation towards loss suffered by the complainant in using cab service.

2. The averments of the complaint is brief as follows:-

The complainant is the owner of the Hyundai i10 vehicle bearing No.TN 20 AP 5106.  The said car was in good condition both interior as well as exterior and there was no problem with the car before.  There was cyclonic rain-fall and heavy flood on 01.12.2015 in Chennai.  It was only at the time of this cyclonic rainfall and floods, the car got affected.  Immediately on 17.12.2015 it was handed over for service with authorized service centre, the 1^st opposite party M/s.Kun Hyundai, Ambattur, Chennai by towing the vehicle, at the cost of Complainant. One Mr.Loganathan, the service advisor of the opposite party inspected the vehicle on 17.12.2015 and confirmed as Flood-B in his inspection report and confirmed the repair would be simple and would be made it ready within five days of insurance Authorities inspection. Even after a week’s time, there was no response from the 1^st opposite party.  The complainant kept calling the 1^st opposite party on alternative weeks to know about the condition and the date of delivery. The vehicle was not attended in spite of repeated reminders. Whenever called, the complainant was given an inconsistent and irresponsible answer as follows:-

“Will call you back after ascertaining the position of car

Will deliver the car in five days,

One of the spare parts not available,

We are yet to receive the spare parts, will surely deliver the vehicle within five days”

The complainant visited the workshop to ascertain the fact on 19^th April 2016 after four months follow up.  It was shocking to see the condition of the vehicle that is fully dismantled and was totally spoiled in hot scorching sun and night weather.  The dashboard, seat covers are fully discolored due to scorching sun.  Most of the body areas are corroded including the interior of the window panels.  It was sure that the battery life would have gone and the AC also would have damaged. Suspension also needs repair due to rust /corrosion.  It was horrible to see the condition of the car which was left unattended almost four months in the dump yard/scrap yard in the hot scorching sun and night weather without any due care and protection.  It was the complete negligence of the 1^st opposite party which made the complainant and his family to come across lot of difficulties and stress both mentally and financially to manage the transportation of family till 25^th June 2016. The 1^st opposite party, the suppliers of the Kun Hyundai who are the 2^nd opposite party and the 3^rd opposite party are jointly and severally liable for the delay caused in supplying the appropriate spare parts till now.  The 4^th opposite party is also liable for not looking after the service that has been rendered by their company. Despite the innumerable request and demands, the opposite parties delayed to return the car which forced the complainant to issue legal notice.  The said legal notice was duly received by the opposite parties but no action has been taken either to rectify the problem or to send any reply till 24.06.2016.  On 25.06.2016 the 1^st opposite party’s manager called the complainant over the phone and informed the complainant that his vehicle is ready and the 1^st opposite party also sent an SMS with respect to the total bill payable which was mentioned as 1,73,114/-. It was to the shock and surprise that date of the invoice was mentioned as 31.05.2016 and the complainant could not make out till now, the reason behind the printing of the earlier date on it.  Moreover the bill amount also quoted too high by the opposite parties and it is only due to the consequent damages caused at the Kun Hyundai dump yard, having left out the car unattended for nearly six months.  The vehicle was delivered and released on 26.06.2016 after payment.  The car out and on the way back found out that the indicator lamps were not working and other problems with suspension, gear and also hearing some loud noise from the engine.  The complainant also found lot of corrosion and scratches on the body of the car.  The complainant highly disappointed with the poor service, but with no other option got the delivery of the car and facing huge problems every day.  The complainant again approached another service center namely M/s Actif Automobiles private limited for further repairs and the photos of the car after service and estimation from the M/s. Actif automobiles private limited for further repairs also been attached.  The real fact is there are only few vehicles left for service and the 1^st opposite party also promised to the complainant that within five working days, the vehicle would be delivered but instead they just dragged nearly six months to service the complainant’s car. This has put the complainant to lot of stress and untold hardship and therefore prayed this Hon’ble forum may be pleased to direct all the opposite parties jointly and severally to pay a sum of Rs.2,00,000/- towards compensation for the damages incurred due to the negligence of leaving the car unattended in open area for more than six months and to pay a sum of Rs.1,00,000/- towards compensation for the improper and deficiency in service and to pay a sum of Rs.20,000/- as compensation towards loss suffered by the complainant in using cab service.  Hence this complaint.

3. The contention of written version of the 1^st opposite party is briefly as follows:-

It is true that vehicle bearing No.TN 20AP5106 was entrusted with this 1^st opposite party on 17.12.2005 under flood damaged vehicle and the said vehicle was with Bajaj Alliance General Insurance coverage and that that complainant had concurred to dismantle the vehicle as the vehicle was flood damaged and hence this 1^st opposite party had initiated the repair works on 31.12.2015. It is pertinent to mention here at this juncture that no point of time had this 1^st opposite party assured to complete the repair works by 5 days as leveled by the complainant.  The vehicle was allotted to floor only after the concurrence of the complainant and there were enormous vehicle affected by flood.  The 1^st opposite party had to carry out the repairs on first come first serve basis and only on 11.03.2016 they were able to place order for parts.  As the said vehicle was flood damaged it had to be kept in the yard for drying seat assembly in drying all wires for cleaning the battery had been removed and mostly the window panels were corroded due to the submerging of the flood water and battery, AC and the electrical equipments were totally damaged.  The vehicle which was inundated in the flood and fully damaged and only when the damaged parts were received replacement fitting were also completed and on the vehicle satisfying the road test then alone the vehicle would be delivered to the customer. The 1^st opposite party had duly informed the complainant of the vehicle being ready and the invoice amount was Rs.1,73,114/- and as there was some typographical error in the bill date which was neither willful nor wanton.  The complainant had taken delivery of the said vehicle to his utmost satisfaction and had now preferred to air malicious allegation against to this 1^st opposite party for reasons best known to him.  This complaint with ulterior motives and had not proved with any iota of truth that neither deficiency of service nor negligent service had been provided to him as it is proved that this complainant had preferred this complaint with a malafide intention.

 4. The contention of written version of the 3^rd  opposite party and adopt by the 2^nd opposite party are briefly as follows:-

The present complaint is frivolous, misconceived and has been formulated on wrong and misleading facts.  The above complaint is devoid of any merits and liable to be dismissed in limine.  The complainant purchased a Hyundai I-10 car manufactured by the 3^rd opposite party through its authorized dealer, Kun Hyundai, Chennai on 10.12.2007.  As admitted by the complainant, the vehicle was sold to the complainant in a perfect condition and was damaged in the floods which hit Chennai during December 2015. The above complaint is filed is in respect of a dispute between the complaint and the 1^st opposite party.  The 3^rd opposite party being the manufacturer of the vehicle does not have any role to play in this episode.  The aspects of repairing of accidental vehicles are strictly inter-se between the complainant, insurance agency and the concerned service provider.  The liability of this opposite party being the manufacturer is limited and extends only to its warranty obligations and nothing more.  As a matter of fact, the opposite party does not supply spare parts to the dealers as alleged by the complainant and the dealers procure spare parts directly from the 4^th opposite party.  It is made clear that this opposite party has no role to play in the supply of spare parts.  There is absolutely no manufacturing defect in the vehicle and the vehicle was sold to the complainant in a perfect condition and hence this opposite party is not liable to compensate the complainant in any manner.  There is absolutely no negligence of service on the part of this opposite party and hence the present complainant is filed for extraneous reasons and deserves to be dismissed at the threshold.

5. The contention of written version of the 4^th  opposite party is briefly as follows:-

The present complaint has been filed by the complainant through his power agent.  The power of attorney document made by the complainant in favour of his agent is not a registered or unregistered one.  As per the Tamil Nadu Registration Act-2012, the registration of any document related to power of attorney had been made compulsory from 1^st December 2012.  Hence the power of attorney dated 04.06.2016 filed by the complainant is not a valid document.  The complainant’s father, who is representing the complainant herein has no knowledge about such experience.  Hence the complainant’s father will not be able to prosecute or undergo trial to prove the case on behalf of the complainant.  For this ground itself this complaint is liable to be dismissed.  The 4^th opposite party is supplying their spare parts to the 1^st opposite party as and when required.  Further the 4^th opposite party responsibility is limited to deliver the spare parts as required by the 1^st opposite party and there was no direct transactions between the complainant and 4^th opposite party.  However the complainant added the 4^th opposite party with an ulterior motive of unjust enrichment.  Admittedly the complainant’s car got affected in the cyclonic rain fall and heavy flood.  Due to the said act of God the entire situation was beyond the control of human power.  In fact there were hundreds of cars and bikes got damaged in a single day which was totally unpredicted and nobody was prepared to handle it.  It took several months for the car manufactures, service centers and insurance companies to complete their job.  Under such circumstances, knowing pretty well that nobody in this world can increase the process of manufacturing the spare parts to many hundred times all of a sudden or within a day, the complainant had raised such frivolous averments against the opposite parties and the 4^th opposite party is neither related nor responsible for any of the services provided by the 1^st opposite party.  Hence it is clear that the 4^th opposite party had been unnecessarily made as party to the above complaint. Therefore prayed that this forum may be pleased to dismiss the complaint with cost and thus render justice.

 6. In order to prove the case, on the side of the complainant, the proof affidavit submitted as his evidence and Ex.A1 to Ex.A10 were marked.  While so on the side of the 2^nd to 4^th opposite parties proof affidavit filed, but documents has not filed on their sides.   Further written argument filed on both sides and oral argument adduced. The 1^st opposite party was set ex-party.

7. At this juncture, the point for consideration before this Forum is:-

(1) Whether there is any deficiency in service on the part of the opposite parties?

(2) Whether the complainant is entitled for compensation and cost from the opposite parties?

(3) Whether the complainant is entitled for compensation towards loss suffered by the opposite parties in using cab service?

(4) To what other reliefs, the complainant is entitled?

8. Point Nos.1 and 2:-

The case of the complainant is that the complainant’s Hyundai I-10 Car Bearing Registration No.TN 20 AP 5106 was damaged due to heavy flood in Chennai on 01.12.2015.  The complainant has handed over the vehicle to the 1^st opposite party on 17.12.2015 for repair.  The 1^st opposite party assured to repair the vehicle within five days.  But the 1^st opposite party has not delivered the vehicle even after four months from the date of handing over the vehicle to the 1^st opposite party and the vehicle was kept open place in hot sun.  Most of the body areas are corroded including the interior of the window panels were damaged due to hot sun.  The complainant requested the 1^st opposite party through e-mail, but the 1^st opposite party delivered the vehicle only on 26.06.2016 and the opposite parties committed deficiency in service.

9. The 1^st opposite party contended that the vehicle was damaged due to flood and the vehicle was entrusted to the 1^st opposite party on 17.12.2015 and the 1^st opposite party has initiated the repair works on 31.12.2015.  Only after receipt of the damaged parts, the 1^st opposite party completed the work.  The complainant has also taken delivery of the vehicle to his utmost satisfaction and there is no negligence or deficiency of service on the part of the 1^st opposite party.

10. The 2^nd to 4^th opposite parties contended that there is no connection between the complainant and 2^nd to 4^th opposite parties and there is no manufacturing defect in the vehicle.  The 4^th opposite party supplied the spare parts to the 1^st opposite party as required by the 1^st opposite party and there is no deficiency in service on the part of the opposite parties 2 to 4.

11. It is admitted by the both parties that the car bearing No.TN 20 AP 5106 was damaged due to heavy flood in Chennai on 01.12.2015.  It is also admitted by both parties that the vehicle bearing Registration No.TN 20 AP 5106 was entrusted to the 1^st opposite party on 17.12.2015 for repair works.  Ex.A2 is the copy of repair work order dated 17.12.2015.  The inspection of the vehicle was done by the one Mr.Loganathan, the service adviser on 17.12.2015 and conform the damages of the vehicle due to flood.

12. The complainant alleged that the 1^st opposite party assured to hand over the vehicle within five days.  On the other hand, the 1^st opposite party contended that the repair work was initiated on 31.12.2015 and in point of time the 1^st opposite party assured to complete the repair works within five days.  The complainant has not filed any document to prove that the 1^st opposite party assured to the complainant to complete the repair works within five days.  Further there are enormous vehicle affected by the flood and the 1^st opposite party has to carry out the repair on first come first serve basis.  Hence there is no evidence on the side of the complainant to prove that the 1^st opposite party assured to complete the repair works within five days.

13. The complainant’s vehicle was entrusted to the 1^st opposite party on 17.12.2015 and initiated the repair works on 31.12.2015.  But the 1^st opposite party placed an order of spare parts only on 11.03.2016.  The 1^st opposite party has not placed the order of parts immediately on initiating the repair works on 31.12.2015.  The 1^st opposite party has not stated the reason for delay in placing order for spare parts of the vehicle after two and half months from initiating the repair works. 

14. The complainant alleged that the complainant visited the work shop on 19.04.2016 and found that the vehicle was totally spoiled in hot scorching sun and night weather.  Most of the body areas of the car including the interior of the window panels were damaged.  The complainant also issued e-mail letters to the 1^st opposite party regarding negligence attitude of the 1^st opposite party.  Ex.A3 serious are the email letters issued by the complainant’s son to the 1^st opposite party, in which the complainant has clearly stated for more than four months in dump yard/ Scarp yard due to body corrosion seat cover/ dash board damage due to exposure to open sun without attending to it.  The complainant has written email dated 19.04.2016, 22.04.2016, 17.06.2016 and 25.06.2016.  But the 1^st opposite party has not sent any reply to the email and the 1^st opposite party has kept the vehicle for more than four months in the open place under the sun without proper care and due to this, the vehicle body and window panels were damaged.  The complainant also spent additional amount for repairing the damages and the above attitude of the 1^st opposite party amounts to deficiency in service.

15. The complainant has taken the vehicle on 25.06.2016 from the 1^st opposite party after repair.  Ex.A8 is the copy of the invoice dated 31.05.2016.  In which last page of Ex.A8 the complainant written as follows;- “without prejudice my right to claim compensation damages and other costs, Bipin Babu, 25.06.2016”.  Therefore the complainant has taken delivery of the vehicle on 25.06.2016 without prejudice his right to claim compensation.  The contention raised by the 1^st opposite party that the complainant has taken delivery of the vehicle with utmost satisfaction is in correct.  Further the opposite party in Ex.A8 invoice date is written as 31.05.2016 but the date of delivery as on 25.06.2016.  The 1^st opposite party also accepted the mistake and stated that there was some typographical error in the bill date.  The complainant entrusted the damaged vehicle to the 1^st opposite party on 17.12.2015 for repair.  The 1^st opposite party initiated the repair work on 31.12.2015 and placed order of spare parts only on 11.03.2016 that is after two and half months after initiating the repair works.  Further the vehicle was kept in the open yard under hot sun for more than four months without proper care and the above attitude of the 1^st opposite party amounts not only deficiency in service and also negligence in service on the part of the 1^st opposite party.

16.  The complainant has written many emails to the 1^st opposite party making allegation about keeping the vehicle in open place under hot sun.  The 1^st opposite party has not sent any reply to the emails and therefore the complainant has issued a legal notice to the 1^st and 2^nd opposite party on 25.04.2016.  Ex.A5 is the copy of the legal notice.   The 1^st and 2^nd opposite parties received the notice. Ex.A6 is the copy of acknowledgment.  The 1^st opposite party has sent a reply to the complainant counsel on 01.07.2016.  Ex.A10 is the copy of reply notice.  The 1^st opposite party received the legal notice on 27.04.2016, but the sent reply only on 01.07.2016 that is after handing over the vehicle to the complainant.  The 1^st opposite party had handed over the vehicle after receipt of the legal notice.  The 2^nd opposite party is the Area Manager, Hyundai Motor India Limited, and the 3^rd opposite party is the Hyundai Motor India Limited and 4^th opposite party is the Sipcot Industrial park.  There is no manufacturing defect in the vehicle and the vehicle was damaged due to heavy flood.  Further the 4^th opposite party is spare parts supplier to the 1^st opposite party and there is no connection between the complainant and 2^nd to 4^th opposite party.  There is no evidence on the side of the complainant to prove that the 2^nd to 4^th opposite parties has committed deficiency in service.  Under these circumstances there is no deficiency in service on the part of the 2^nd to 4^th opposite parties.  But there is deficiency in service on the part of the 1^st opposite party and therefore the complainant is entitled for compensation towards deficiency in service from the 1^st opposite party only.

17. Point No.3:-

The complainant prays for compensation towards loss suffered by the opposite parties in using cab service.  Ex.A7 series are the receipt for payment charges to the cab service.  The vehicle was damaged due to flood, it is due to natural calamities and therefore the opposite parties are not responsible for the damage of the vehicle.  The complainant has taken cab for his own use.  For which the opposite parties are in no way responsible.  Hence the complainant is not entitled for compensation towards loss suffered in using cab service.

18. Point No.4:-

In the result, this complaint is allowed in part.  Accordingly, the 1^st opposite party being the service centre is directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for causing mental agony and hardship to the complainant due to the deficiency in service on the part of the 1^st opposite party and also to pay a sum of Rs.10,000/- (Rupees ten thousand only) towards cost of litigation to the complainant.  In respect of op2 to op4, this complaint is dismissed without cost and regarding other reliefs sought in the complaint also dismissed.

The above said amount shall be payable by the 1^st opposite party within two months from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% interest per annum till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the president and pronounced by us in the open forum of this 12^th April 2019.

MEMBER-II                        MEMBER-I                                   PRESIDENT

List of document filed by the complainant:-

List of document filed by the opposite parties:-

-Nil-

      -Sd-                                          -Sd-                                                    -Sd-

MEMBER-II                         MEMBER-I                                      PRESIDENT