Haryana

Panchkula

CC/145/2015

LAKHWINDER SINGH. - Complainant(s)

Versus

BERKELLEY HYUNDAI. - Opp.Party(s)

ANIRUDH KUSH.

04 Feb 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA.

                                                                  

Consumer Complaint No	:	145 of 2015
Date of Institution	:	06.08.2015
Date of Decision	:	04.02.2016

                                                             

                       

Lakhwinder Singh s/o Sh.Darya Singh, R/o House No.885, Near Health Centre, VPO Barwala, Distt. Panchkula.

 

                                                                                      ….Complainant

Versus

 

 

1. Berkeley Hyundai, Plot No.375, Industrial Area, Phase-1, Panchkula through its Proprietor/Managing Director.
2. Hyundai Motors India Ltd., Registered office at Plot No.H-1, SIPCOT Industrial Park, Irrungattrukotal Sriperumdudur Taluk, Rancheepuram, District Tamilnadu through its Managing Director.

                                                                                      ….Opposite Parties

 

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

 

Before:                 Mr.Dharam Pal, President.

              Mrs.Anita Kapoor , Member.

              Mr.S.P.Attri, Member.

 

 

For the Parties:     Mr.Anirudh Kush, Adv., for the complainant. 

                             Mr.Sandeep Jasuja, Adv., for the Op No.1.

                             Mr.Tejvir Singh, Adv., for the Op No.2.

 

ORDER

(Dharam Pal, President)

 

1. The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against the Ops with the averments that he booked a Xcent VTVT Car with Catalyser Colour Sleek Silver with the Op No.1 on 15.06.2015 and paid Rs.2500/- as booking amount. The OP No.1 told that the car had to come from Chennai directly from the manufacturing unit and it would take 3-4 days to reach at Panchkula. On 19.06.2015, the official of Op No.1 called the complainant and told that booked car has come in agency and the complainant could take the delivery anytime. The complainant reached the agency and paid the amount of Rs.4,96,158/- vide invoice No.H2013P04165 dated 19.06.2015 and the car was handed over/delivered to the complainant after completing all the formalities. While going home, the complainant noticed that light for power steering was being shown by the meter. The complainant immediately contacted the Op No.1 but nobody picked the phone. Thereafter, the complainant called the executive sales representative-Gurmeet Singh and told him about the light occurring in the meter of the car who told that agency has been closed and asked him to come in the morning. On 20.06.2015, the complainant visited the agency of Op No.1 and told it about the trouble as steering light showing. The OP No.1 told the complainant that sometime such trouble occurred in new cars and the OP No.1 fixed the trouble in the car & delivered to him. On 28.06.2015, the same trouble occurred in the car i.e. steering heavy and meter showing light. On 29.06.2015, the complainant again visited the OP No.1 who fixed/removed the problem and assured that the problem would not occurred in future but after two days, the same problem occurred in the car. On 03.07.2015, the complainant have to visit again to Op No.1 who asked the complainant to leave the car in agency as they would go through complete check and the problem would be removed. On 15.07.2015, the complainant visited the agency for first service and after the service at the time of delivering the car, the complainant came to know from the job card that the date of delivery of car was mentioned as 31.05.2015 whereas the car was delivered to him on 19.06.2015. On 18.07.2015, the complainant contacted the executive sales representative-Gurpreet Singh, who admitted that software picked the date of actual delivery of car and the Op No.1 has taken the car from any other Hyundai agency and the fault of Op No.1. The complainant also recorded all the conversation in his mobile phone. It is further alleged that in the documents of car, the manufacturing year was mentioned January, 2015 not of June, 2015. The complainant requested the Op No.1 several times to replace the car with new one as the same was having manufacturing defect but to no avail. This act and conduct of Ops amounts to unfair trade practice and deficiency in service on their part. Hence this complaint.
2. The Op No.1 appeared before this Forum and filed its written statement by taking some preliminary objections submitted that the complainant wanted to purchase the car on loan and was not sure about getting the loan. It is submitted that the complainant told that the car sought to be purchased by him was available in the stock of Op No.1 & as and when the loan should be sanctioned. It is submitted that the complainant applied for loan from HDFC Bank through Op No.1. It is submitted that the intimation of the passing of the loan was received by the finance department of the Op No.1 from HDFC Bank on 18.06.2015 and the same was given to the Sales Department of Op No.1 by issuing delivery order. It is submitted that the sales department informed the complainant and requested him to take the delivery of the car. It is submitted that the complainant approached the sales department of Op No.1 on 19.06.2015 and deposited Rs.50,000/- in cash as booking amount and signed the booking form on which the amount of booking & the price of the vehicle was clearly mentioned so that there might not remain any dispute regarding the price. It is submitted that the complainant also signed the said form consenting with the same. It is submitted that the complainant also paid an amount of Rs.3300/- in cash and Rs.925/- in cash (against the purchase of accessories) for taking the delivery of the vehicle. It is submitted that amount of Rs.8700/-remained as balance towards the complainant which he promised to pay on the next day and the complainant also signed an undertaking to that effect. It is submitted that before taking the delivery of the car, the complainant had satisfied himself regarding running of the vehicle by taking a test drive, the physical appearance of the vehicle by checking it minutely and the date of manufacturing which stood mentioned on the sale certificate also. It is submitted that after taking the delivery of vehicle, the complainant did not come forward to deposit the amount of Rs.8700/- which was due towards him. It is submitted that the complainant wanted that the Op No.1 waived off the said amount as a discount whereas while booking the vehicle, the deal was finalized. It is submitted that when the official of Op No.1 insisted the complainant to pay the amount, the complainant paid the amount on 15.07.2015. It is submitted that the complainant approached the OP No.1 with complaint of showing of the steering light in the display panel on 20.06.2015 and 29.06.2015 which was removed by making minor adjustments. It is submitted that on 23.07.2015, the complainant again approached the Op No.1 with the same defect, the said defect was checked by updated G scan and it was found that the sensor was not working properly. The sensor was changed under the warranty without charging any money from the complainant. It is submitted that after the replacement of sensor, the problem in car did not arise. It is denied that on 15.06.2015, the complainant had booked the vehicle and paid Rs.2500/- as booking amount and that the vehicle in question directly came from Chennai. It is denied that on 19.06.2015, the official of Op No.1 called the complainant for delivery of the vehicle. It is denied that on the same day, the complainant noticed power steering light or the complainant contacted the Op No.1. It is submitted that on the next day, the complainant had pointed out the said problem which was removed after minor adjustments. It is submitted that the complainant brought the vehicle with complaint of steering light on in the display panel on 29.06.2015 and the same was corrected with minor adjustments. It is further submitted that on 03.07.2015, the complainant again brought the vehicle with the abovesaid complaint. It is denied that the vehicle of the complainant had become old as the same was manufactured in January, 2015. It is submitted that the complainant was doing the business of clothes at Barwala and wanted to use the car for business purpose. Thus, there is no deficiency in service on the part of OP No.1 and prayed for dismissal of the complaint with costs.
3. The Op no.2 appeared before this Forum and filed its written statement by taking some preliminary objections and denied that the vehicle in question has any manufacturing defect as alleged by the complainant. It is submitted that when the complainant reported the complaint of steering in his vehicle, the same was attended by the technician of Op No.1 and the same was returned after checking & necessary adjustments. It is submitted that when the complainant continued to raise concern of steering, the wheel speed sensor was replaced under warranty on 03.07.2015. It is submitted that even the warranty policy of Op No.2 which offers two year unlimited mileage warranty from the date of delivery of vehicle to the first purchaser did not under any circumstances contemplate neither replacement of the vehicle nor refund of the purchase price. The relevant warranty policy is as under:-

“…….Authorized dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period…. At no cost to the owner of the Hyundai vehicle for parts or Labour.”

It is submitted that the OP No.2 operates with all its dealers on a principal-to-principal basis and errors/omission, if any at the time of retailing or servicing of the car is the sole responsibility of the concerned dealer. It is submitted that liability of Op No.2 being the manufacturer of the Hyundai cars is limited and extends to its warranty obligations alone and error/omission/misrepresentation, if any, at the time of retail sales of the car on the part of the dealer could not be fastened upon the OP No.2. It is submitted that every vehicle is assembled with hundreds of major/minor parts. Since this is machinery and any part may have problem any time because of different driving conditions, OP NO.2 provides warranty for its various products to re-assure its performance and take the responsibility to support its customers within/after the warranty period as per the policy.  Thus, there is no deficiency in service on the part of OP No.2 and prayed for dismissal of the complaint with costs.

4. In order to prove the case, the complainant has tendered evidence by way of affidavit Annexure C-A alongwith documents   Annexure C-1 to C-8 and closed the evidence. On the other hand, the Op No.1 has tendered evidence by way of affidavit Annexure R1/A alongwith documents Annexure R1/1 to R1/7 and closed the evidence. Similarly, OP No.2 has also tendered evidence by way of affidavit Annexure R2/A alongwith document Annexure R2/1 and closed the evidence.
5. We have heard the learned counsel for the parties and appraised the material on record carefully.
6. Fact regarding purchasing of vehicle from OP No.1 vide retail invoice (Annexure C-3) is not disputed. It is also not disputed that   there was problem with steering light in display penal of the vehicle and the same was rectified by replacing the sensor of the same. Learned counsel for the complainant has argued that there is manufacturing defect in the vehicle and the vehicle went out of order time and again. On the other hand learned counsel for the OP No.1 has argued that there is/was no manufacturing defect in the vehicle except the minor repair work and in support of his arguments he has drawn the attention of this Forum towards Annexure R1/6 i.e. vehicle repair history. The plea taken by the complainant is not supported by any expert evidence and in the present case no expert opinion has been produced on the case file to prove that there was manufacturing defect in the car. Had there been any manufacturing defect in the vehicle then it would not have run 1226 KM as shown in Annexure R1/6 i.e. vehicle repair history at the time of first free service. Learned counsel for the Ops have relied on case law titled as R.Baskar Vs. D.N.Udani & Ors IV (2006) CPJ 257 (NC) and argued that if any part of the vehicle/ machinery is defective then the same can be replaced and in the present case it has happened as when the sensor was not working properly then it was changed free of costs and the complainant had taken the vehicle without any objection. Hon’ble National Commission in case titled as Mahindra & Mahindra Ltd. Vs. B.G.Thakurdesai and Anr. II (1993) CPJ 225 (NC) has held that If a consumer purchases some machinery and some part of it is found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the whole machinery without sufficient cause.  Learned counsel for the Ops have rightly argued that the minor repair works had been done and there was no inherent and latent defect in the vehicle. In support of his arguments reliance of case law titled as Vikram Bajaj Vs. Hind Motors 2009 (2) CLT 670 (NC) has been placed. In the said citation it has been held by Hon’ble National Commission that Consumer Protection Act, 1986, sections  2 (1) (f) and 21 (b)- Car- Defective car- Concurrent findings- There was no expert evidence to prove that the vehicle has got any defect- Only minor repairs were carried out and it has not been proved that there was any inherent or latent defect in the engine- The concurrent findings of two Fora below- No case made out by the complainant so as to interfere with the well reasoned findings. The case law titled as Krishan Pal Singh Vs. Tata Motors Limited & Ors.  2014 (June) Vol.II (NC) page 731  relied upon by learned counsel for the complainant is of no help to the case of the complainant as the complainant has failed to prove on the case file that there was manufacturing defect in the vehicle. The plea taken by the complainant that the manufacturing year was January 2015 but the Op No.1 in his retail invoice has mentioned the manufacturing year June, 2015 and therefore, the OP No.1 has sold the old car to the complainant is not sustainable as the OP No.1 in its reply has specifically denied this fact and has submitted that it was a clerical mistake and the complainant cannot take the benefit of the same without leading cogent and authentic evidence. We are in agreement with the contention raised by the OP No.1 as the complainant has failed to rebut this plea taken by the OP No.1 by filing replication to the reply.
7. Keeping in view the discussion made above and the verdict made in case laws titled as Mahindra & Mahindra Ltd. Vs. B.G.Thakurdesai and Anr. II (1993) CPJ 225 (NC) and Vikram Bajaj Vs. Hind Motors 2009 (2) CLT 670 (NC) we have no hitch to reach at a conclusion that the complaint of the complainant deserves dismissal. Accordingly, we dismiss the same. The parties are left to bear their own costs. A copy of this order be sent to the parties free of cost and file be consigned to record room after due compliance

 

 

Announced

04.02.2016      S.P.ATTRI           ANITA KAPOOR           DHARAM PAL

                         MEMBER          MEMBER                      PRESIDENT

 

 

Note: Each and every page of this order has been duly signed by me.                              

 

                                            

                                                DHARAM PAL                                                                                         PRESIDENT