Common Order in First Appeal No.118 of 2013 + First Appeal No.334 of 2013 Per – Hon’ble Mr. Dhanraj Khamatkar, Member First Appeal No.118 of 2013 is filed by M/s. Hyundai Motor India Ltd., who is the manufacturer of ‘Hyundai Getz Prime Car’, whereas First Appeal No.334 of 2013 is filed by M/s. Kothari Cars Pvt. Ltd., who is the dealer of the said car. (Hereinafter for the sake of convenience and brevity, M/s. Hyundai Motor India Ltd., shall be referred to as ‘the manufacturer’ and M/s. Kothari Cars Pvt. Ltd., shall be referred to as ‘the dealer’). Both these appeals take an exception to an order dated 19/03/2013 passed by the District Consumer Disputes Redressal Forum, partly allowing Consumer Complaint No.298 of 2010 and directing the manufacturer and the dealer jointly and severally to pay to the Respondent No.1/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) an amount of Rs.1,00,000/- by way of compensation in addition to an amount of Rs.10,000/- by way of compensation towards mental and physical agony besides costs quantified at Rs.5,000/-. Since, both these appeals are arising from the same order and since both these appeals identical facts and common question of law both these appeals are clubbed together and are disposed of by this common order. [2] Facts leading to these appeals can be summarized as under:- On 15/05/2008, Complainant purchase a car from the dealer for a consideration of Rs.6,50,000/-. Complainant alleged that he reported various problems and defects such as wobbling and mileage etc., in his car. However, neither the dealer nor the manufacturer and even for that purpose nor the Respondent/original Opponent No.3 – M/s. Goodyear India Ltd. (manufacturer of tyres) had rectified the problems reported and the problems reported pertained to manufacturing defect. In support of his contentions, the Complainant had attached e-mails and correspondence, which he had with the Opponents. Complainant further alleged that the manager of the dealer had wrongly and illegally insisted upon the Complainant to write down that wobbling problem in the car had occurred due to tyres manufactured and supplied by the Respondent/Opponent No.3 to the car. Complainant was not satisfied with the defective vehicle and the services rendered by the dealer. He alleged that model of the vehicle was having inherent manufacturing defect and hence, the manufacturer of the vehicle had withdrawn that model from the market due to defects. Alleging deficiency in service on the part of the Opponents, the Complainant knocked the doors of the District Forum and filed a consumer complaint seeking for a direction against the Opponents either to replace the vehicle sold to him or to refund the entire purchase price together with interest thereon. Complainant also claimed compensation of Rs.10,00,000/- for deficient service and loss caused to him besides costs quantified at Rs.10,000/-. [3] Dealer as well as the manufacturer of the car contested the complaint by filing their joint written version, inter-alia contending that on 15/05/2008, a brand new vehicle was sold and delivered to the Complainant and at the time of delivery, the car was in perfect running condition without having any technical or mechanical defect whatsoever. It is further contended that the Complainant has suppressed material facts. Complainant’s car had met with an accident on 30/03/2009 and the Complainant is trying to seek replacement of the car with a new one by raising frivolous allegations. In support of these contentions, they have enclosed a copy of repair order dated 30/03/2009. It is their contention that as a goodwill gesture, all four tyres of the Complainant’s car were replaced on 05/03/2010 by the dealer of tyres and the Complainant, after a test-drive with a service-advisor of the dealer, took the delivery of the car in a perfect running condition. In support of their contentions, they have enclosed the repair order dated 05/03/2010. They further contended that problem in wheel-alignment and pulling may occur due to many reasons like road conditions, driving habit, improper tyre-pressure, accident, bending of rim, driving on potholes and the same cannot be attributed to manufacturing defect. It is stated that the Complainant has used his vehicle extensively for a period of two years and within this period the vehicle approximately ran covering a distance of 35,504 km. In support of these contentions, they have attached a copy of repair order dated 17/06/2010. Dealer and manufacturer of the car further contended that warranty with regard to tyres, tubes and batteries originally equipped on a new car is warranted by their respective manufacturers. Relevant clause of the owner’s manual containing the warranty policy reads as under:- “What is not covered: Batteries, tyres and tubes originally equipped on Hyundai vehicles are warranted directly by the respective manufacturers and not by HMIL.” [4] Dealer as well as the manufacturer have contended that warranty of two years lays down that authorized dealer shall either repair or replace any Hyundai genuine part that is acknowledged by the manufacturer of the car to be defective in material or workmanship within the warranty period at no cost to the owner of the vehicle for parts or labour. Thus, according to them, it will be clear that replacement of the defective part does not contemplate replacement of the car or refund of purchase price. It is further contended that at the time of second free service on 11/12/2008, during inspection, it was noticed by service-advisor of the dealer that right-hand front wheel of the car was bent, which showed that the car had some sort of severe impact on the said wheel during driving. Accordingly, said defect was rectified. Copy of repair order dated 11/12/2008 has been enclosed to show that repairs were carried out. On 30/03/2009, vehicle was brought for accidental repairs. On third free service on 08/06/2009, concern of the Complainant was to check poor mileage, wheel-alignment and wheel balancing. Accordingly, service was carried out and the Complainant again test-drive the vehicle for checking average fuel consumption, which was clocked in presence of the Complainant @ 20 km. per liter and the Complainant was satisfied. On 16/12/2009, the vehicle was reported for service and the concern of the Complainant was for checking the wheel-alignment, wheel-balancing and wobbling at a speed @ 90 to 100 km. per hour. Dealer observed that wobbling was due to wear and tear of the tyres and the Complainant was advised to approach the manufacturer of the tyres. It is contended that manufacturer of the tyres inspected the car in question on 04/01/2010 and reported that tyres were severely worn out from one side due to disturbed wheel-alignment or disturbed mechanical system. On these main grounds and other grounds, as set out in the written version, dealer as well as manufacturer of the car prayed that the complaint may please be dismissed. [5] Respondent/Opponent No.3 viz. manufacturer of the tyres, in its written version, contended that there is no privity of contract between the Complainant and the manufacturer of tyres. It is also contended that wobbling cannot occur due to defective tyres and while inspecting the car it was found that there was no proper wheel-alignment and wheel-balancing and that resulted in wobbling. On these grounds, it is prayed that the complaint may please be dismissed. [6] District Forum, after going through the complaint, written versions filed by the Opponents, evidence led by the parties on affidavits and pleadings of advocates, came to a conclusion that there is deficiency in service on the part of dealer as well as manufacturer of the car and came to pass the impugned order, partly allowing the consumer complaint. However, no order was passed as against the manufacturer of tyres. Aggrieved by the said order, dealer as well as manufacturer of the car have filed these two appeals. [7] We have heard learned Adv. Smt. Vandana S. Mishra on behalf of Manufacturer viz. Hyundai Motor India Ltd., learned Adv. Aditya Bapat on behalf of Dealer viz. M/s. Kothari Cars Pvt. Ltd., learned Adv. Nilesh K. Bhandari on behalf of Respondent/original Complainant – Mr. Gopal Ajit Zavar and learned Adv. Shekhar Sawant on behalf of manufacturer of tyres viz. M/s. Goodyear India Ltd. With the help of learned counsel we have also carefully perused the entire material placed on record. [8] Admittedly, Complainant purchased the car in dispute from the dealer on 15/05/2008 for a price of Rs.6,50,000/-. Complainant has alleged that there were inherent manufacturing defects in the car and those were brought to the notice of the dealer at the time of first free service. However, from the documentary evidence adduced by the parties it transpires that the Complainant had informed the dealer as well as the manufacturer of the vehicle, vide his e-mail dated 24/09/2009 that the vehicle is just 1.3 years old and they were requested to look into the matter. No doubt, when the vehicle was sent to the dealer for servicing, it was mentioned that the vehicle was wobbling at a speed above 90-100 km. per hour. Vehicle was delivered to the Complainant after repairs and he had signed the voucher. [9] At page (39) of the appeal compilation in First Appeal No.118 of 2013, there is a copy of Customer Home Visit Form wherein, the Complainant has written that he visited the service centre on 25/09/2009 and he was attended by Mr. Vinayak and on 26/09/2009 he was attended by Mr. Ajay, who assured the Complainant that the problems will be rectified in the next servicing due. Complainant has signed this form. [10] All repair orders are signed by the Complainant. At page (45) of the appeal compilation in First Appeal No.118 of 2013, there is a copy of letter dated 16/01/2010 written to the Complainant by the dealer informing that tyre warranty is given by vendor. [11] Till the time of filing of consumer complaint, the vehicle had run for approximately a distance of 35,504 km. A vehicle having a manufacturing defect will not run for such a distance. Problem in wheel-alignment and pulling may occur due to many reasons like road-conditions, driving habit, improper tyre-pressure, accident, bending of rim due to driving on pot-holes etc. Also, it is on record that at the time of second servicing to the vehicle on 11/12/2008, it was noticed that rim of right hand front wheel of the car was bent, which showed that the car had sustained some sort of severe impact on the said wheel while driving. Not only this, on 30/03/2009, accidental repairs were carried out to the vehicle. Learned District Forum relied on report of manufacturer of tyre that there was no proper wheel-balancing and wheel-alignment and on that count, there was wear and tear of tyres. However, that particular fact cannot be attributed as, ‘inherent manufacturing defect’ (which cannot be cured or repaired) or as, ‘negligence’ or ‘deficiency in service’ either on the part of the dealer or the manufacturer of the car. [12] Complainant has miserably failed to adduce on record any cogent documentary evidence or an opinion/test-report from an appropriate laboratory to corroborate his allegation that there is, ‘manufacturing defect’ in the car, which cannot be cured or repaired and as such, the vehicle needs replacement. [13] As regards withdrawing the model of the car from manufacturing, it cannot prove that model itself was defective. [14] Learned District Forum overlooked these vital aspects of the matter and had gone overboard while arriving at an incorrect conclusion that there was deficiency in service on the part of the dealer as well as manufacturer of the car. In fact, the Appellants herein have attended the grievances of the Complainant from time to time. Thus the order passed by the learned District Forum suffers from infirmity and it cannot be sustained in the eyes of law and as such, it deserves to be set aside. Hence, we proceed to pass the following order:- ORDER First Appeal No.118 of 2013 and First Appeal No.334 of 2013 are hereby allowed. Impugned order dated 19th March, 2013 passed by District Consumer Disputes Redressal Forum, Pune partly allowing Consumer Complaint No.298 of 2010 is hereby set aside. Consequently, consumer complaint stands dismissed. Parties shall bear their own costs. Pronounced on 08th June, 2015 |
