KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL Nos. 649/2017, 676/2017 & 773/2017
COMMON JUDGMENT DATED: 18.04.2023
(Against the Order in C.C. 274/2016 of CDRF, Alappuzha)
PRESENT:
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
SRI.RANJIT. R : MEMBER
SRI. RADHAKRISHNAN K.R. : MEMBER
APPEAL No. 649/2017
APPELLANT:
M/s Pothens Hyundai, Opp: CSI Church, Mannamthala White House, M.C. Road, Maruthoor, Near Mar Ivanious College, Thiruvananthapuram represented by its Manager.
(By Adv. Nair Ajay Krishnan)
Vs.
RESPONDENTS:
- Dr. Iran Shah, S/o Shamsudeen Mohammed, Medical Practitioner, Lotus, Varavila P.O., Vavvakkavu (via), Clappana, Kollam-690 528.
(By Adv. G.S. Kalkura)
- S.S. Hyundai, Opp: CSI Church, Mavelikkara-Thiruvalla Road, Near Mitchel Junction, Mavelikkara, Alappuzha-690 101 represented by its Manager.
- Hyundai Motor India Ltd., 5th & 6th Floor, Corporate One, Baani Building, Plot No. 5, Commercial Centre, Jasola, New Delhi-110 076.
(By Adv. M/s IPN Associates & R. Suja Madhav for R3)
APPEAL No. 676/2017
APPELLANT:
S.S. Hyundai, Opp: CSI Church, Mavelikkara-Thiruvalla Road, Near Mitchel Junction, Mavelikkara, Alappuzha-690 101 represented by its Manager.
(By Adv. Narayan R.)
Vs.
RESPONDENTS:
- Dr. Iran Shah, S/o Shamsudeen Mohammed, Medical Practitioner, Lotus, Varavila P.O., Vavvakkavu (via), Clappana, Kollam-690 528.
(By Adv. G.S. Kalkura)
- M/s Pothens Hyundai, Opp: CSI Church, Mannamthala White House, M.C. Road, Maruthoor, Near Mar Ivanious College, Thiruvananthapuram represented by its Manager.
- Hyundai Motor India Ltd., 5th & 6th Floor, Corporate One, Baani Building, Plot No. 5, Commercial Centre, Jasola, New Delhi-110 076.
(By Adv. M/s IPN Associates & R. Suja Madhav for R3)
APPEAL No. 773/2017
APPELLANT:
M/s Hyundai Motor India Ltd., 5th & 6th Floor, Corporate One, Baani Building, Plot No. 5, Commercial Centre, Jasola, New Delhi-110 076.
(By Adv. M/s IPN Associates & R. Suja Madhav)
Vs.
RESPONDENTS:
- Dr. Iran Shah, S/o Shamsudeen Mohammed, Medical Practitioner, Lotus, Varavila P.O., Vavvakkavu (via), Clappana, Kollam-690 528.
(By Adv. G.S. Kalkura)
- S.S. Hyundai, Opp: CSI Church, Mavelikkara-Thiruvalla Road, Near Mitchel Junction, Mavelikkara, Alappuzha-690 101 represented by its Manager.
- M/s Pothens Hyundai, Opp: CSI Church, Mannamthala White House, M.C. Road, Maruthoor, Near Mar Ivanious College, Thiruvananthapuram represented by its Manager.
COMMON JUDGMENT
SRI. AJITH KUMAR D. : JUDICIAL MEMBER
The appellants in Appeal Nos. 676/17,649/17 & 773/17 are the opposite parties 1 to 3 in C.C. No. 274/2016 before the District Consumer Disputes Redressal Commission, Alappuzha (District Commission for short). The District Commission allowed the complaint and directed the opposite parties to replace the car purchased by the complainant with a new Hyundai car, awarded compensation of Rs. 10,000/- and costs Rs. 3,000/-. A direction was also issued to pay Rs. 13,45,196/- on failure, as the purchase price of the car with interest @ 9% per annum from the date of the complaint.
2. The averments contained in the complaint in brief are stated below:-
On 10.03 2016 the complainant had purchased a new Hyundai White Model Creta Petrol Car from the 1st opposite party by paying a total consideration of Rs. 11,62,824/-. He had also spent an additional sum of Rs. 1,82,372/- towards insurance, tax, registration fee and for accessories. A sum of Rs. 3,000/- was also paid for getting a fancy number and thus he incurred a total expense of Rs. 13,48,196/-.
3. On 22.5 2016 at about 7:00 a.m. when the complainant was driving the car from Karunagappally to Anayara he could hear a noise from inside the car and after proceeding a distance of about 15 km he felt giddiness and suffocation and he got down from the car. In the meantime, the temperature in the car increased tremendously and fumes and smoke came through the sides of the bonnet. Immediately he lifted the bonnet and noticed that the engine cabin was fully filled up with smoke. The complainant somehow drove the vehicle to the showroom cum service centre of the 2nd opposite party. Nobody was available in the service centre and on contacting the helpline engineer over phone it was stated that smoke was formed due to a defect of water pump pulley system and informed that the matter will be intimated to the service engineer. The 3rdopposite party told him that at least two weeks’ time is required for curing the defect. The vehicle was taken to the service station at Marathur which is 15 km away from the showroom by tagging with another vehicle. They told the complainant that Engineers from Chennai were requested to look into the matter. The complainant waited for about 10 days, but there was no response from the side of the 2nd opposite party. On 01.06.2016 the complainant caused issuance of a lawyer notice which was served on the 1st opposite party but still there was no response from either of the opposite parties. On 20.06.16 the second opposite party sent an undated letter informing that the vehicle is ready for delivery. On 21.06.2016 the complainant issued another lawyer notice to the second opposite party for which again an undated letter was issued as reply asking to take the vehicle back. The complainant sent a reply seeking replacement of the car, but the opposite party was not ready to comply with the request of the complainant. The complainant lost faith in the quality of the product of the opposite party and hence he is not ready to suffer with a car having manufacturing defects. He is aggrieved on account of the conduct of the opposite party in providing a car with manufacturing defects.
4. The first opposite party filed a version that there was no manufacturing defect. According to them the problem narrated in the complaint happened on account of the negligent act of the complainant and the first opposite party is unnecessarily cited as a party to the proceedings.
5. The second opposite party had also filed a version that there was no defect as alleged. According to the second opposite party the complainant brought the vehicle to the service centre on 22.05.2016 as the vehicle had water pumping pulley problem which was rectified and informed the complainant and from 30.05.2016 onwards intimations were issued to the complainant to take back the vehicle but he didn't turn up and he cooked up a false case.
6. The third opposite party also filed a version with contentions identical to that of the other opposite parties. According to them replacement of defective parts alone is required and the request for replacement of the car or refund of price cannot be ordered in view of the rulings of the National Commission reported in 1993CPJ 225 (NC) and CPJ 2005 102( NC). The opposite parties would seek for dismissal of the complaint.
7. The District Commission had allowed the complaint on a finding that the car supplied to the complainant has got manufacturing defects and hence replacement was ordered.
8. Heard the Counsel for the appellants and the complainant, perused the records of the District Commission.
9. According to the appellants the complainant was not able to establish the existence of any manufacturing defect to the car and replacement cannot be ordered. As the problem arose within the warranty period the defects were rectified and the complainant was informed to take delivery but he declined to take delivery by raising a demand for replacement of the car. The counsel for the complainant would submit that the complainant had clearly narrated the hardships caused to him on account of the use of the car bearing manufacturing defects. The complications arose in the third month after purchase. He has given convincing evidence with regard to his sad plight on account of the manufacturing defect of the vehicle. The problem faced by him had caused much agony to him. The District Commission was inclined to place reliance on his testimony. The opposite parties would treat this as giving undue importance to the testimony of the complainant and as a fault in appreciation of the evidence by the District Commission. The inconvenience and hardships faced by a consumer could be brought before the District Commission only through the evidence of the concerned person. Therefore, it cannot be found that the District Commission had placed undue importance to the testimony of the complainant. While appreciating the evidence the commission must be able to conceive the grievances of a consumer so as to reach a proper conclusion. Therefore, we do not find any error committed by the District Commission in placing importance to the deposition of the complainant because apart from him there will be no one to explain the mental trauma faced on seeing emission of smoke while driving a newly purchased car. The testimony of an expert in mechanical engineering examined as CW1 is also available to support the complainant's statement. Ext. C1 is the report issued by the expert. The expert had examined the vehicle at the garage of the opposite parties. At the time of inspection it was stated by the service engineers that they have replaced the water pump under warranty but the cause of the defects could not be ascertained as the replaced parts were not available with them. The expert reported that the problem arose when the vehicle had just covered 4850 kms and at that stage it was not supposed to undergo replacement of cooling water pump unless it has got some serious defects and he would consider it as a manufacturing defect. According to him the reason for the failure of pulley has to be traced out, otherwise chances of recurring such a damage cannot be ruled out. The expert is an Assistant Professor in Mechanical Engineering working in a College of Engineering. At the time of inspection, the service engineers of the opposite party had told the expert that the damaged pump was sent to the research and development department of the company. The evidence let in by the complainant is amply supported by the expert evidence. There is no dispute for the opposite party that the vehicle was brought at their service centre with a complaint of water pulling system. When the cause of the complaint is not known to the opposite party one cannot ask the complainant to use the very same vehicle as a possibility of recurring such a complaint cannot be ruled out. Any defect to the water pulling system would result in drastic consequences as regulation of the heat of the vehicle is done by it when the vehicle is moving and the matter cannot be lightly viewed as argued by the appellants. In the current scenario instances of burning and explosion of vehicles on road are not uncommon.
10. The counsel for the appellants cited a ruing of the Apex Court reported in 11(2006) CPJ(SC) in Maruthy Udyog Ltd Vs Susheel Kumar Gbgothra & another and argued that replacement of vehicle cannot be ordered if the defect is repaired by replacing damaged parts. The facts dealt with in the precedent are different. There the complainant had declined to hand over the vehicle to the dealers for effecting repairs. A precedent can be applied only to an identical situation. Apprehension of the complainant with respect to the possibility of recurrence of such an episode cannot be ruled out as the problem arose within three months after the purchase.
11. In 2011(1) SCC 460 in C.M. Anantharam Vs. Fiat India Limited and others the Apex Court took a view that replacement of the vehicle can be ordered if it suffers with manufacturing defects.
12. On a cumulative analysis of the evidence tendered by the complainant and the expert evidence it is found that the vehicle supplied to the complainant suffers serious manufacturing defects and hence his claim for replacement of the car is only to be answered in his favour.
13. The District Commission had appreciated the evidence in its proper perspective and reached at a correct conclusion. The appeals lack merits and hence they are liable to be dismissed.
In the result Appeal Nos.649/2017,676/2017 & 773/2017 are dismissed. The appellants shall pay costs @Rs 3,000/- each to the 1st respondent/complainant.
Sd/-
AJITH KUMAR D. : JUDICIAL MEMBER
Sd/-
RANJIT. R : MEMBER
Sd/-
RADHAKRISHNAN K.R. : MEMBER
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