Punjab

Rupnagar

CC/17/18

Yadwinder Singh - Complainant(s)

Versus

Bhakra Service Station Pvt. Ltd. & Another - Opp.Party(s)

Sh. Jaswinder Kumar Kaushal, Adv.

14 Nov 2017

ORDER

BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR

                                   Consumer Complaint No. :  18 of 12.04.2017

                                    Date of decision           :      14.11.2017

 

 

Yadwinder Singh aged about 30 years, son of Tejinder Singh, resident of V & P.O Marauli Kallana, Tehsil Morinda, District Rupnagar.

                                                        ......Complainant

                                             Versus

1.    Bhakra Service Station Pvt. Ltd., Rupnagar-Kurali Road, NH-21, Near Toll Barrier, Rupnagar, Tehsil and District Rupnagar, through its Managing Director.

2.    Hyundai Motor India Ltd., Regional Office, Unit No.C-113-114, 1^st Floor, Office Suites Elaate, Plot No.178-178A, Industrial & Business Park, Phase-1, Chandigarh through its Regional Manager.

                                                                                   ....Opposite Parties

 

           Complaint under Section 12 of the          Consumer Protection Act, 1986

 

QUORUM

 

                             MRS. NEENA SANDHU, PRESIDENT

                             SMT. SHAVINDER KAUR, MEMBER

 

ARGUED BY

 

Sh. S.K. Bhanot, Advocate, counsel for the complainant

Sh. Mandeep Moudgil, Advocate, counsel for Opposite Party No.1

Sh. Ram Avtar, Adv. counsel for Opposite Party No.2

 

 

ORDER

                                       MRS. NEENA SANDHU, PRESIDENT

 

Sh.  Yadwinder Singh has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’)  praying for the following reliefs:-

i)       To remove the manufacturing defect in the car or refund the amount of Rs.4,24,900/- along with interest @ 18 % per annum, 

ii)      To pay Rs.50,000/- as compensation for mental agony and physical harassment suffered by him,

iii)     To pay Rs. 20,000/ as litigation costs,  

 

2.       In brief the case of the complainant is that in order to buy a new car, he visited the premises of the O.P. No.1, who is the authorized dealer of Hyundai Motors India Private Limited, which is having its regional office at Chandigarh, i.e. O.P. No.2. The sale supervisor of O.P. No.1 persuaded him to buy EON Magna, 1.0 L, Model 2015, worth Rs.4,24,900/-. The said sale supervisor promised him to give discount. He deposited Rs.10,000/- as booking amount vide receipt No.5432 dated 09.09.2015. On 17.9.2015, he paid the remaining amount of Rs.4,14,900/- and the official of the O.P. No.1 gave him the delivery of the vehicle EON Magna, 1.0 L, Model 2015 and told him to take the complete paper of the vehicle, later on. There was defect in the engine of the said vehicle from the very beginning of its purchase. He complained about the same to the official of the O.P. No.1, who told him to ply the vehicle and defect would be checked at the time of service. On 16.11.2015, he again complained to the official of the O.P. No.1 regarding throttle body, Igniter cold and center locking module system but the said official, assured him that the problem would be solved very soon. On 28.6.2016, at the time of service he pointed about the defect in the engine to the technician but he did nothing. On 22.1.2017, he again visited the premises of the O.P. No.1 and requested its official either to remove the defect in the engine or to replace the vehicle with the new one. The O.P. No.1 noted the defect of the vehicle on the cash invoice No.B201700277 dated 22.1.2017, itself and requested him to visit again. On 09.02.2017, he again visited the O.P. No.1 and requested the official of the O.P. No.1 to remove the defect. The said official issued him invoice No.B201700560 dated 09.02.2017. However, the official of the O.P. No.1 had shown his  inability to set right the said defect and kept the complaint pending and requested him to visit on 11.2.2017. On 11.2.2017, the official of the O.P. No.1 requested him to visit again only on receipt of the call from him. On 16.3.2017, he again visited the premises of the O.P. No.1 but its official did nothing. It is further stated that when the defect could not be removed by the mechanics of the O.P. No.1 then ultimately they took his vehicle for its repair to another authorized dealer namely Joshi Motor, Industrial Area, Mohali. However, the said manufacturing defect could not be removed by the mechanic of the Joshi motors. During these visits to the premises of the O.P. No.1 and Joshi Motors, Mohali, he came to know that the O.P. No.2 stopped manufacturing the EON Magna, 1.0 L. He also came to know that O.P. No.1, by misrepresenting that the car was of 2015 model,  had sold the car model 2014. In this way, the O.P. No.1 has cheated him and has indulged into unfair trade practice. Hence, this complaint.

3.       On being put to the notice, the O.P. No.1 has filed written version taking preliminary objections; that the complaint is not maintainable; that that the complainant has no locus standi to file the present complaint; that the complainant has no cause of action to file the present complaint; that the complainant has not come to this Forum with clean hands; that the complainant has concealed the material facts from this Hon’ble Forum; that the complainant is not consumer of the answering O.Ps.; that there is no deficiency in service on the part of the answering O.P.; that the complaint has been filed by the complainant on the basis of the totally wrong, false and vague facts and such frivolous complaint filed by the complainant in order to drag the answering O.P. into such an unnecessary and uncalled for litigation. On merits, it is stated that on 17.9.2015, complainant purchased Eon Magma 1.0 L, 2014 Model, on discount. Sale certificate was issued to him on the same very date. The said car was got insured from Oriental Insurance Company Limited. Discount of Rs. 60339/- was given to the complainant on 17.9.2015, itself. The complainant had given an undertaking with regard to the purchase of the Eon Magma 1.0 L, 2014 2014 Model and also furnished the satisfactory report and signed the checklist and delivery customer satisfactory report. On 16.11.2015, complainant approached the O.P. for first free service of the said car and no defect as alleged by the complainant was pointed out at that time. He again approached for the second free service, even at this time, complainant had not pointed out any defect as alleged by him. On 22.1.2017, complainant approached for wheel alignment. On 09.10.2017, again visited the O.P. for rear suspension noise in the said car and same was rectified. On 11.2.2017, complainant visited the O.P. for checking of the central locking system. On the said date, no complaint with regard to the engine or any manufacturing defect was reported by the complainant. On 16.3.2017, complainant approached the O.P. for repair of the engine misfiring check. The said problem was rectified to his satisfaction. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof, with cost.

4.       The O.P. No.2 has filed written version taking preliminary objection; that the complainant has not approached the Ld. Forum with clean hands and has suppressed the material facts from this Hon’ble Forum. The record of the vehicle reveals that the complainant reported for accidental repair on 14.3.2017, thereafter he reported about the engine misfiring problem, when the said car had already run 21,743 KMs. The allegation with regard to manufacturing defect is an afterthought and just to get unlawful gains; that the complainant has no cause of action has arisen to the complainant to file the present complaint against the answering O.P.; that no specific allegation has been leveled by the complainant against it; that the complainant is not a consumer qua it as the complainant had not paid any consideration to it and even he has not produced the report of any recognized laboratory to establish that if there is any manufacturing defect in the said car; that this Forum lacks territorial jurisdiction to adjudicate upon the matter. On merits, it is admitted that the O.P. No.1 is its authorized dealer and it has its relation with its dealer on principal to principal basis, thus, the answering O.P. could not be held liable to any acts or omissions of the dealer. The O.P. being manufacturer of the car has no role in retail sale/after sale service/registration of the car. It is further stated that from the record of the said car, it is evident that on 14.3.2017, complainant approached the O.P. No.1 for accidental repairs and thereafter on 16.3.2017, for the first time, he reported about the engine misfiring when the said car had already covered a mileage of 21.743 Kms. Had there been any manufacturing defect, the vehicle could not have covered such an extensive mileage. As per available information, no complaint has ever been lodged by the complainant with the O.P. No.1 as alleged in the complaint. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof, with cost.

 

          5.      On being called upon to do so, the complainant has tendered his     affidavit Ex.CW1/A, affidavit of Sh. Gurinder Singh, proprietor of M/s Sony        Motor Palace, Morinda Ex.CW2/A along with documents Ex.C1 to Ex.C8 and closed the evidence. The learned counsel for the O.P. No.1 has tendered    affidavit of Sh. S.K. Chhabra, Managing Director Ex.OP1/A along with          documents Ex.OP1/1 to Ex.OP1/14 and closed the evidence. The learned     counsel for the O.P. No.2 has tendered affidavit of Sh. Sukomal Satyen,       Assistant Manager of M/s Hyundai Motor India Limited Ex.OP2/A           alongwith documents Ex.OP2/1 to Ex.OP2/6 and closed the evidence.

6.       We have heard the learned counsel for the parties and have gone through the record of the file carefully.

7.       The learned counsel for the complainant argued that the complainant   purchased the car in question on 09.09.2015 from the O.P.No.1. At the time of purchased the said car it was told to him that it was of 2015 model, whereas the O.P.No1 sold him the car of 2014 Model. The O.P.No.1 by selling him, a old model car has cheated him. On the contrary, the learned counsel for the O.P.No.1 has submitted that complainant himself purchased the car in question, as he got heavy discount Of Rs. 60,339/-. He has also given an undertaking to the effect that he had purchased the car i.e Eon Magna 1.0L, Model 2014.

8.       From the perusal of voucher cum receipt Ex.O.P1/14, it is evident that the discount of Rs. 60,339/- was given by the O.P.No.1 to the complainant for the purchased the car i.e. Eon Magna 1.0L, manufacture year 2014. In the undertaking, EX.OP1/8, it has been stated by the complainant  that he has purchased the new car i.e. Eon Magna 1.0L,Model 2014 having Chasis No. MALA351BLEM331875, Engine No. G3LAEM200309 and he is fully satisfied with the vehicle and has received all the documents. From the documents referred above, it is abundantly clear that the complainant himself opted to buy the car in question. Thus, we do not find any substance in this argument of the learned counsel for the complainant.

9.       The learned counsel for the complainant further argued that there were defects in the car in question from the very beginning of its purchase. However, the O.P.No.1 could not rectify the said defect and the kept the job pending, as is evident that From the job sheets dated 22.01.2017, 09.02.2017, 11.02.2017. 16.03.2017 and 17.03.2017 (Ex. C3 to Ex.C7). Meaning thereby, the said car was suffering from inherent manufacturing defect . This fact got collaborated from the statement of Sh. Gurinder Singh, the Prop. of Sony Motor Palace, Maruti  Authorized Service, Morinda, Ex.C-8. The learned counsel for the O.P.No.1 has submitted that complainant has wrongly alleged that the car in question was defective from the very beginning of its purchase because he brought his car to the O.P.No.1 for free service and not for removal of any defects, as is evident from the job sheets dated 16.11.2015 (Ex.O.P.No.1/10 ) and 28.06.2016 (Ex.O.P.No.1/11). He complaint about the problem of engine misfiring for the first time  on 17.03.2017, when the car in question had covered the mileage of 21846 KMs, as is evident from the job sheet dated 17.03.2017 Ex.C7/ Ex.OP1/13.Had there been any manufacturing defect then the car could not have covered the mileage of 21846 KMs. The learned counsel for the O.P.No.2 has also submitted that there is no manufacturing defect in the car in question. From the screenshot- Global Dealer Management System(GDMS) Ex. OP2/1, it is clear that on 14.03.2017 the complainant had taken his car to the O.P.no.1  for accidental repair and reported about engine misfiring on 16.03.2017, when the car had already covered the mileage 21846KM.

9.       From the invoice  dated 17.09.2015, Ex.OPNo.1/3 it is evident that the complainant purchased the car in question from O.P.No.1.From the job sheets dated 16.11.2015 and 28.06.2016 (Ex.OP1/10 & Ex.OP1/11),it is apparent that the complainant has taken his car  to the O.P.No.1  for free service. From the job sheet Ex.C3, it is evident that the complainant had taken his car for service to the O.P.No.1 on 22.01.2017 but the O.P.No.1  kept the job pending and there was noting that throttle body, igniter cold  & cantar locking module need to be changed. No doubt from the screenshot, it is evident that on 14.03.2017 the complainant has taken his car for accidental repairs but this fact cannot be ignored that before 14.03.2017, the complainant had taken his car to the O.P.No.1, twice for replacement of the requisite parts but it did not replace the same and kept the job pending, as is evident from the job sheets 09.2.2017, 11.2.2017,(Ex.C4 & Ex.C5). It may be stated here that the complainant, in order to prove, this fact that the car was suffering from manufacturing defect, has placed on record the statement of Sh,. Gurinder Singh, Prop. of Sony Motor Palace, Maruti Authorized Service Station Morinda. In the said statement Sh. Gurinder Singh, has stated that after doing the screening, he arrived at a  conclusion that car in question was having  manufacturing  defect. Since the report of the screening done by the said Sh. Gurinder Singh, has not been placed on record by the complainant, therefore, no reliance can be placed on the said statement, to arrive at any conclusion that the car in question has any inherent manufacturing defect. No other document has been placed on record by the complainant, to prove that there is a manufacturing defect in the said car. From the record it is born out that upto 17.03.2017, the car in question had covered the mileage of 21846 Km. Had there been any manufacturing defect, it could not have cover the mileage of 21846KM. Taking all these fact and circumstance into consideration, we are of the view that there is no manufacturing defect in the car in question, therefore, prayer made for  the refund of Rs. 4,24,900/- of the car cannot be accepted, as such, the claim is declined. However, this fact cannot be denied that the O.P.No.1 did not change the requisite parts as mentioned in the job sheet dated 22.01.2017, inspite  of the fact that complainant had taken his car for it repair twice to the O.P. No.1 before 14.03.217.Admittedly, the car in question was having a warranty of two years. The complainant has taken his car for removal of the defects with in the warranty period. As per terms and conditions of the warranty, the O.P.No.1, being authorized dealer and the O.P.No.2, being manufacturer were bound to repair/replace defective parts, free of cost but they  failed to do so, which amounts to  deficiency in service. The O.Ps., thus, are not only liable to repair/replace the defective parts, free of cost but are also liable to compensate the complainant for the mental agony and physical harassment suffered by him alongwith litigation expenses.

10.     In view of the aforesaid discussion, we partly allow the complaint and direct the O.Ps. No. 1 & 2 in the following manner:

        (i)  To repair/replace the defective parts of the car in question,                                 free of cost

(ii)  To pay Rs.5000/- as compensation for the mental agony                          and physical harassment suffered by the complainant

(iii) To pay Rs.5000/- as litigation cost

The O.Ps. No.1 &2 are further directed to comply with the order jointly and severally  within the period of 30 days from the date of receipt the certified the copy of the order.

  11.  The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed and consigned to Record Room.

 

          ANNOUNCED                                                                       (NEENA SANDHU)

          Dated 14.11.2017                                       PRESIDENT

 

                                                           (SHAVINDER KAUR)

                                                                              MEMBER