Kerala

StateCommission

A/15/62

M/S HYUNDAI MOTOR INDIA LTD - Complainant(s)

Versus

DR DAMODARAN N - Opp.Party(s)

SUJA MADHAV

30 Sep 2016

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL

COMMISSION, VAZHUTHACAUD, THIRUVANANTHAPURAM

 

APPEAL NOS.62/2015 & 319/2015

COMMON JUDGMENT DATED 30/9/2016

  (Appeal filed against the order in C.C No.17/2014  dt. 1/2/2014 on the file of CDRF, Pathanamthitta)

 

PRESENT:

SMT. A. RADHA                                       :         MEMBER

SHRI. K. CHANDRADAS NADAR           :        JUDICIAL MEMBER

 

APPEAL NO.62/2015

APPELLANT:

 M/s. Hyundai Motor India Ltd., 2^nd, 5^th & 6^th Floor,

Corporate One (Baani Building), Plot No.5,

Commercial Centre, Jasola, New Delhi-110 025.

(Rep: by its Assistant Manager, Legal & Secretariat)

 

(By Adv:  Suja Madhav for  M/s. IPN Associates LLP)                    

                        Vs

RESPONDENTS:

1.  Dr. Damodaran.N., Palathitta Thundiyil House,

 Podiyadi P.O., Thiruvalla Taluk, Pathanamthitta District.

(By Adv:    S. Manoj & Rajeev S.S)  

2.  Manager, Popular Motor World Pvt Ltd., Popular Hyundai,

 Sales Office, Sastri Road, Kottayam P.O., Kottayam-01.

 

 

3. Service Manager, KTC Automobiles (P) Ltd., Thrissur.

 

4. Proprietor, Pamba Fuels, Podiyadi P.O., Thiruvalla.

 

(By Adv:  Idicula Zachariah)  

 

5. Divisional Manager, Indian Oil Corporation Ltd.,

 

Divisional Office, Panampally Nagar, Kochi.        

 

(By Adv:  M. Nizamudeen)  

 

 

APPEAL NO.319/2015

APPELLANT:

          Service Manager,

KTC Automobiles (P) Ltd.,

Authorised Service Centre,

Hyundai Motors India Ltd.,

Poonkunnam, Thrissur.       

                                             

(By Adv:  Shyam Padman)  

RESPONDENTS:

1. Dr. Damodaran.N.,

Palathitta Thundiyil House,

Podiyadi P.O., Thiruvalla Taluk,

Pathanamthitta District.    

 

2.  Hyundai Motor India Ltd., Jasola,

 New Delhi-110 076

(Rep: by its Managing Director)       

 

3.  Manager, Popular Motor World Pvt Ltd.,

Popular Hyundai, Sales Office, Sastri Road,

Kottayam P.O., Kottayam-1.

 

                                                          

4. Proprietor, Pamba Fuels, Podiyadi P.O.,

Thiruvalla, IBP Authorised Pump. 

(By Adv:  Idicula Zachariah)  

 

5.  Divisional Manager, Indian Oil Corporation Ltd.,

Divisional Office, Panampally Nagar, Kochi.        

 

COMMON JUDGMENT

SMT. A. RADHA  :  MEMBER

          Both these appeals arise out of the order in C.C.No.17/2014 on the file of CDRF, Pathanamthitta.  The 1^st opposite party is the appellant         in A-62/2015 and the 3^rd opposite party is the appellant in A-319/2015.         The Forum Below allowed the complaint against the opposite parties 1 to 3.

          2.  The brief facts of the case are that the complainant purchased a Hundai i20 DSL BS IV Model Car manufactured by 1^st opposite party on 16/3/2013 from the 2^nd opposite party on payment of Rs.8,62,979/-.          On 9/11/2013 at about 9 pm while journey from Thiruvalla to Mysore at about  1.00 am on 10/11/2013 the vehicle suddenly stopped and could not start the vehicle.  By that time the complainant reached Thrissur after covering 166 kms and had to contact the 2^nd opposite party and on information given by 2^nd opposite party the complainant contacted the representative of the 3^rd opposite party, the authorized service centre at Thrissur.  The vehicle had to be towed to the service centre and tried to rectify the defect.  After attending the vehicle  the mechanic of 3^rd opposite party opined that the fuel is contaminated with water content.  Thereafter the diesel tank after emptying filled with fresh diesel.  It was told by the mechanic on observation and investigation that the main 4 injectors and fuel pump are to be dismantled from the engine.   As the complainant had to continue his journey the vehicle was left with the 3^rd opposite party.           On 16/11/2013 the complainant informed the 2^nd opposite party that the vehicle is having major manufacturing defect and requested for replacement of the vehicle with a brand new one or to repair the vehicle with full warranty.  It was informed by the Assistant Service Manager of            3^rd opposite party stating that the water entry inside the fuel pump and injector does not extent warranty and the complainant had to bear the cost of repair.  The approximate amount to rectify the defect comes to Rs.2,25,000/-.  It is the allegation of the complainant that the vehicle broke down due to manufacturing defect of the car.  The entry of water in fuel tank as alleged by 3^rd opposite party is also due to manufacturing defect of the vehicle. The complainant alleges manufacturing defect in the vehicle and requested for direction to replace the vehicle with a brand new one or to pay the value of the vehicle and also to pay compensation of  Rs. 5 Lakhs.  In the complaint it is also prayed for cost of proceedings. 

3.  Before the Consumer Forum the opposite parties 1, 3 and 4 appeared and filed version.  The opposite parties 2 and 5 remained absent and were ex-parte.

          4.  The main contention raised by the 1^st opposite party is that the complainant had no complaint of manufacturing defect till 10/11/2013 when the vehicle broke down.  After the preliminary inspection the water content in diesel was observed which does not come under manufacturing defect.  It is also contended that the defects except for manufacturing defect the    1^st opposite party is not liable to rectify the defects.  As per the warranty conditions the 1^st opposite party cannot be made liable for the contamination of fuel and the repair cannot be done under warranty policy.  The vehicle has covered more than 9500 kms and considering the fact that the vehicle is in use for around 1 year that there cannot be any manufacturing defect.  The manufacturing defect is to be strictly proved with expert  evidence.

          5.  In the version filed by 3^rd opposite party it is contended that the complainant is not entitled to claim any relief for manufacturing defect against the service centre.  The 3^rd opposite party was unnecessarily dragged into litigation as the complaint is not maintainable for non jointer and mis-jointer of parties.  The 3^rd opposite party is only authorized dealer and service centre of 1^st opposite party and provide service to the complete satisfaction of the customers.  This opposite party extended all possible services to the complainant when the vehicle was brought to the service centre.  On examination it was observed that the fuel pump and indicators are to be opened for which the consent of the complainant was highly necessary as the work would not be done under warranty.  The warranty is not covered against the fuel contamination.  It is stated in the version that the complainant had not given the consent for the work nor has he taken back the vehicle.  The complainant’s vehicle had occupied the space in the service centre for that the complainant is liable to pay demurrages.          No deficiency in service can be attributed upon the 3^rd opposite party as the vehicle which does not have the warranty should be followed by the consent of the complainant.  In the instant case, the complainant had not given the consent to open the engine nor he had taken back the vehicle.  The 3^rd opposite party is eligible for compensatory cost. 

          6.  The 4^th opposite party admitted the sale of diesel to the complainant.  The 4^th opposite party is the retail outlet of the 5^th opposite party.  The supply of diesel was made after all required purity test as per law.  It is stated in the version that 4^th opposite party maintains a record of water dip daily basis which will form part of the daily stock register.  Before commencing daily sales the opposite party draw products sample from the pump nozzle in the morning.  The 4^th opposite party had taken all the measures required to check quality and quantity of the products on daily basis.  On observation though it is found contamination of diesel it is to be pointed out that even after the diesel tank is filled with fresh diesel the alleged complaint was prevalent and complaint was not due to contamination of diesel.  The opposite party is not a necessary party in this case.  Other customers who purchased diesel from the 4^th opposite party on that date had not made any complaint.  Hence there is no reason to include the 4^th opposite party in the party and the complaint is to be dismissed.

          7.  The complainant was examined as PW1 and the oral depositions of PW2 and PW3, and Exbts: A1 to A8 were marked.  The commissioner was examined as CW1 and C1 was marked to substantiate the case.

          8.  The counsel for the appellant/1^st opposite party submitted that the 1^st respondent alleged the defect only on 10/11/2013 whereas he purchased the vehicle on 16/3/2013.  Only on 10/11/2013 when the           1^st respondent filled fuel from the 4^th respondent the vehicle broke down.       As per the available information and observation of the vehicle the service centre of 3^rd respondent found out the defect was occurred due to the use of contaminated fuel.  The water content in the diesel tank caused the stoppage.  It is also reported by the main mechanic of the 3^rd respondent that the 4 injectors and fuel pump are to be dismantled from engine.        The request for replacement of the vehicle cannot be considered as the water entry into the fuel pump and injector cannot be repaired under warranty.  The approximate repair charge calculated was Rs.2,25,000/- by the 3^rd respondent for rectifying the complaints.  It is only on 10/11/2013 after filling the fuel from the 4^th respondent the damage caused to the vehicle due to adulteration of fuel.  The appellant cannot be made liable for the same and the repair cannot be done under warranty policy as the defects occurred due to use of improper fuel fluid or lubricants.  The vehicle had already covered extensive mileage of 9500 kms and there had no reporting of prior defect to the vehicle.  Hence no inherent manufacturing defect in the vehicle and no deficiency in service on the part of the appellant/the 1^st respondent  proved that there is any manufacturing defect in the vehicle.  The manufacturer cannot be made liable for any defects other than the manufacturing defect and the complaint is only to be dismissed.

          9.  The appellant in Appeal 319/15 is the 3^rd opposite party in the complaint.  The 1^st respondent is the complainant who brought his vehicle for rectification of defect.  On 10/11/2013 when the vehicle suddenly stopped the vehicle was brought to the service station of the appellant/3^rd opposite party.  On examination it was found that the complaint was due to use of contaminated fuel and major repair is required for rectifying the complaints.  It is submitted that the permission of the complainant for rectifying the defects were highly necessary as the repairs were not covered under warranty.  The 2^nd and 3^rd respondents were not ready to rectify the defect under warranty as it was due to the fuel contamination which is out of the scope of warranty.  The fuel was filled from                    4^th respondent who is the authorized agent of 5^th respondent.                    On examination this appellant found water content in diesel and the defects in the vehicle was due to the use of adulterated fuel.  It is argued that the appellant is not a consumer of the 2^nd respondent/1^st opposite party as the vehicle was stopped at Thrissur it was on direction from the 3^rd respondent the vehicle was brought to the appellant’s service station.  It is true that the appellant is the authorized dealer and service centre of 2^nd respondent and can act only as per the terms of warranty and any rectification of the complainant’s vehicle comes outside warranty.  It is highly necessary to get the consent of the 1^st respondent to continue the rectification of defects. So far the 1^st respondent had not given any consent for rectifying the repairs after opening the fuel pump and injectors.  Hence the vehicle is lying idle at the service centre of the appellant and also prayed for taking back the vehicle from the appellant’s service station.  The appellant is entitled for the demurrage charges as the vehicle was kept in the service station of appellant.  No deficiency can be attributed upon the appellant.  The expert commissioner in his report had specifically stated that the breakdown of the vehicle was due to jamming of the injector parts due to the presence of rust articles in injector and due to prolonged use of contaminated fuel and there is no manufacturing defect in the vehicle. The District Forum directed this appellant that the injectors of the vehicle have manufacturing defect and allowed the complaint holding the appellant being the authorized service centre and the present custodian of the vehicle in question is directed to repair and return the vehicle in perfect running condition.  As per the direction of District Forum the 2^nd respondent was also directed to pay repairing  cost to this appellant in view of the warranty period provided to the complainant.  It is argued that the material fact that the breakdown of the vehicle was due to adulterated fuel and the same was proved and established in the report of the expert. The District Forum has not considered this view.  It has also come to the conclusion that there is manufacturing defect.  It is settled law that it is the responsibility of the respondent/complainant to prove manufacturing defect and if at all any manufacturing defect, the manufacturer is liable to rectify.  A vehicle which is having inherent manufacturing defect in all the   4 injectors can never ply on the road.  In the instant case, the complainant’s car had run more than 9500 kms.  The defects in the vehicle could not be rectified only on account of the fact that no permission was given by the    1^st respondent or by the 2^nd respondent/manufacturer, if it is on warranty.   Hence no liability can be fastened upon the appellant for the defects in the car of the 1^st respondent.

          10.  The counsel for the 1^st respondent in both appeals, submitted that while he was travelling from Thiruvalla to Mysore on the way the vehicle stopped and was taken to the appellant/3^rd opposite party’s service station on direction from the 2^nd opposite party.  It is observed by the appellant that the complaint was due to use of contaminated fuel and major repair is required for rectifying the complaints.  In order to rectify the major defects the permission of the complainant is highly required as there is no warranty for the repair of contamination of fuel as per warranty policy.  It is argued that the complaint is due to manufacturing defects and the repairs are to be carried out under warranty as the warrantee is still in force.  The appellants were not ready to repair the car under warranty as it is excluded from warranty.  The non-repairing of the vehicle which is having a warranty for one year from the date of purchase amounts to deficiency in service on the part of appellants/opposite parties.  The evidence of the expert (PW2) who is the retired Deputy Transport Commissioner and the evidence of PW3 is highly relevant to prove the case of the respondent herein.          The counsel pointed out that though the appellants alleged contamination of fuel, appellants have not proved the contamination of fuel by any evidence.  The prolonged use of contaminated fuel caused the defect in the injectors was also not proved properly.  It is also clear from the contention of the 4^th respondent herein that they are using the fuel with all proper testing and quality checking.  This was not contradicted by any evidence on the part of the appellants.  The counsel also pointed out that as per the commission report, C1, after replacing all the 4 injectors with brand new injectors the vehicle started smoothly.  The commissioner noticed diesel flooding on the walls of injectors which reveals that no firing of fuel was pertaining in the cylinder which shows that all the 4 injectors are damaged and the diesel being injected to the cylinders properly as the plunger inside the injectors damaged due to rusting.  He also found that the rusting of injector will not happen in a day and it was happened due to the prolonged use of contaminated fuel and his conclusion is break down is not due to any manufacturing defect.  Whereas in cross examination it is revealed that in Hundai i20 vehicle there is an indicator light for showing fuel contamination and no such an indicator light is seen in the vehicle.  Since an indicator light is in the vehicle no one will allow to drive the vehicle with contaminated fuel.  PW3 who is the driver also stated that the indicator light was not shown any contamination of the fuel.  It is argued that it is purely a manufacturing defect without showing the indicator light even if the contaminated fuel is used.  It is a manufacturing defect which resulted in the defect in the injectors.  The main complaint of the vehicle is to the injectors and due to the manufacturing defect of the injectors resulted in the breakdown of the complainant’s vehicle.  Hence prayed for replacement of vehicle or for directing to pay the value of the vehicle along with compensation of  Rs.5 Lakhs.

          11.  We have heard the counsels in detail and had gone through the records.  Due to the sudden stoppage of Hundai i-20 vehicle of the complainant the vehicle was towed to the appellant/3^rd opposite party service centre at Thrissur.  On observation it was found that the defect caused due to contamination of fuel and on further observation it is realized that the 4 injectors got rusted.  For rectification of the injectors due to contamination of fuel does not cover warranty, the appellant/3^rd opposite party requested for the consent  of the complainant to carry out the complaint of the vehicle on payment of Rs.2,25,000/-.  It is the case of the complainant that the vehicle stopped due to manufacturing defect.  It is clear from documents that the 4 injectors got rusted due to contamination of fuel for a long period.  It is evident that the vehicle covered around     9500 kms and rusting could not come in a day or 2 and it should be a continuous process.  The appellant/3^rd opposite party found out that the rusting goes to all the 4 injectors and that can happen only on contamination of fuels.  Now coming to the filling of diesel from the 4^th respondent on the day of journey, on 9/11/2013, the 4^th respondent clearly stated that the diesel received from the 5^th respondent, the Indian Oil Corporation, the 4^th respondent used filter paper to check the quality of the product.  The 4^th respondent keeps the record of water dip every day and entered in the stock register.  Every day the sample is also taken from the pump nozzle in the morning and ensured the quality of products at correct quantity and quality and this was not controverted by the appellants.  The respondent was not a regular party who uses the service of the                 4^th respondent.  It is also evident from the commission report that the Hundai i20 car is having an indicator light for showing the contamination of fuel used in the car.  From the deposition of PW3 who is the driver of the respondent revealed that there had no indication of contamination of fuel through the indicator light.  The indicator light is visible for any driver while using the car.  It is clear from the evident that the indicator light showing the contamination of fuel in the car was not working.  If at all any contamination of  fuel happened while showing indicator light the rusting could have avoided in the injectors.  Hence we are of the firm view that in the absence of  proper functioning of the indicator light showing the contamination of fuel which was not working  resulted in the defect of the vehicle and we find that the vehicle of the complainant is having manufacturing defect and for that the manufacturer is solely liable to replace the vehicle or to pay the value of the vehicle.

          In the result, Appeal 62/15 is dismissed and Appeal 319/15 is allowed.  We direct the appellant/1^st opposite party to repair and return complainant’s vehicle in perfect running condition within one month from the date of the receipt of this order.  The appellant is also directed to pay the repairing cost if it is carried out by the complainant himself.  The appellant/1^st opposite party is also directed to pay Rs.10,000/- as compensation and Rs.10,000/- as cost to the 1^st respondent.  Failure to comply the order within the stipulated time, will entitle the 1^st respondent to realize the repairing cost, compensation and cost with 9% interest from the date of complaint till realization.

The office is directed to send a copy of this order to the Forum Below along with LCR.

 

A. RADHA           :         MEMBER

 

 

K. CHANDRADAS NADAR  :  JUDICIAL MEMBER

 

Sa.

 

 

 

 

 

 

        KERALA STATE CONSUMER

              DISPUTES REDRESSAL

COMMISSION, SISUVIHAR LANE,

VAZHUTHACAUD   

                           THIRUVANANTHAPURAM.

 

 

 

 

APPEAL NOS.62/2015

& 319/2015

COMMON JUDGMENT

DATED 30/9/2016

 

 

 

 

Sa.