JUSTICE SUDIP AHLUWALIA, MEMBER

         This Revision Petition has been filed by the Petitioner/ Opposite Party No. 3 against Respondents/Complainant and Opposite Parties No. 1 and 2 challenging the common impugned Order dated 08.08.2018 passed by the State Consumer Disputes Redressal Commission, U.T. Chandigarh, in First Appeal bearing Nos. 27 of 2018 and 23 of 2018. Vide such Order, the State Commission had modified the Order dated 01.12.2017 passed by the District Consumer Disputes Redressal Forum-II, U.T. Chandigarh, in Consumer Complaint No. 536 of 2017 while deciding the First Appeal bearing No. 27 of 2018. Vide the same Order, the Ld. State Commission had also allowed the Appeal bearing No. 23 of 2018 while setting aside the Order of Ld. District Forum qua Opposite Party No.1.

2.      The brief facts of the case are that the Complainant had purchased a Creta SUV Car from the Opposite Party No.1 on 21.04.2017 for Rs.12,58,641/-. Subsequently, the Complainant spent Rs.32,438/- on insurance of the vehicle and Rs.68,959/- on registration. At the time of delivery, the Opposite Parties had handed over a Service Book and Warranty Card to the Complainant enlisting all the conditions of Warranty. It was the case of the Complainant that in the first week of May, 2017, while driving the said vehicle, the Complainant came to know about an unusual sound coming from the vehicle at the time of applying breaks. Consequently, the Complainant approached the Opposite Party No.1 on 04.05.2017 but the Complainant was asked to come after one week due to the lifts installed in the Workshop being out of order. Thereafter, the Complainant took the vehicle to the Workshop of Opposite Party No. 2 on 08.05.2017, which is also an Authorised Service Station of Opposite Party No.3. The Opposite Party No.2 informed the Complainant that the brake drums of the vehicle were required to be changed and they installed used drums in order to check the defects in the brake but they could not detect the real cause of unusual sound coming from the vehicle. Further, on 15.06.2017, an engineer from Ludhiana was called by the Opposite Party No.2 who got the brake drums changed but the defect in the vehicle could not be repaired. Again, the Opposite Party No.2 changed the brake drums and leather pads of the brakes on 16.06.2017, however, the defect could not be repaired. It was contended that the Opposite Party No.1 and 2 failed to detect the defect in vehicle despite changing different things. The Complainant also came to know about another defect in the vehicle while driving the vehicle in rain i.e., leakage of water from the left front door. Consequently, the Complainant took the vehicle to Opposite Party No.1 on 20.06.2017 but they did not have the required machinery to repair the vehicle. The Complainant being fed up by the attitude of the Opposite Parties No.1 and 2, took the vehicle to Raja Hyundai Motors, Mansa Road, Bathinda, which also an Authorized Service Station of Opposite Party No.3 who stated that there is some major defect in the car which cannot be repaired and asked the Complainant to approach the Opposite Party No.3. Consequently, the Complainant approached the Opposite Party No.3.  However, the Complainant was returned by saying that he same could not be repaired and no Job Card was issued. Also, on 20.06.2017, the Manager of Opposite Party No.3 stated that the entire suspension of vehicle is required to be changed but again no Job Card was issued. During the said period, the wipers and right suo wiser of the vehicle also stopped functioning which was again conveyed to the Opposite Parties.

3.      Therefore, the Complainant, being aggrieved by such acts of the Opposite Parties and further on their failure to replace or refund the sum paid, filed a complaint before the Ld. District Forum alleging deficiency in services and cheating by the Opposite Parties, as a defective vehicle was sold to the Complainant, seeking refund of the sum paid along with interest and expenses of insurance and registration, Rs.5,00,000/- as compensation and litigation costs.    

 4.     The Opposite Party No.1 appeared before the Ld. District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party No.1 that the Warranty Policy issued by the Hyundai Motors India Limited highlights that in case of a manufacturing defect, it would be the sole responsibility of the manufacturer.  However, the Complainant has failed to show any manufacturing defect and the Complainant has also failed to show any deficiency in service qua the Opposite Party No.1. It was the case of this Opposite Party that when the vehicle was brought in for its first service on 04.05.2017, no issue qua any defect was raised and the Complainant at the time of receiving the vehicle had categorically signed that he had received the vehicle to his satisfaction. The Complainant approached the Opposite Party No. 2 on 08.05.2017 for issue qua the switch assembly back of lamp which was rectified free of cost under the Warranty, and the Complainant had never raised any issue of abnormal noise in the brake system till 08.05.2017. Thereafter the issue of brake was raised to the Opposite Party No.2 which was rectified, however, this issue was never raised with the Opposite Party No.1. Moreover, the Complainant has failed to file any document to establish his contentions. Further, the Opposite Party No.1 works on a principal to principal basis and has no role in stipulating the Warranty Policy conditions, and after 04.05.2017, the Complainant had never brought the vehicle to the Opposite Party No.1.

5.      The Opposite Party No. 2 appeared before the Ld. District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party No.2 that no cause of action has arisen against it. The Opposite Party No.2’s only obligation was to repair or to replace the defective components at its sole discretion during the warranty period when the Opposite Party No.2 acknowledged such defects.  However, in the present case; the vehicle was in perfect condition and had no manufacturing defect. It was further contended that the vehicle was attended to most efficiently and effectively by the Expert Technical Team of the Opposite Parties No.2 and 3 under the conditions of the Warranty, as and when the vehicle was reported to the Workshop of Opposite Party No.2. It was also submitted that the Complainant himself had refused for further work on the vehicle as per the advise/ instruction of the Technical Team from Hyundai Plant. Also, during the pendency of the Complaint, the vehicle was again called on 31.10.2017 but the Complainant was not interested to leave the vehicle for further repairs.  Hence, the vehicle was delivered on 01.11.2017. It was contended that the Opposite Party No.2 had not sold the vehicle rather had only performed repairs on the instructions of Opposite Party No.3 under the conditions of Warranty. Therefore the Opposite Party No.2 prayed for dismissal of the Complaint.  

6.      The Opposite Party No.3 appeared before the Ld. District Forum and resisted the Complaint and denied all the allegations thereby denying deficiency in service on its part. It was contended by the Opposite Party No. 3 that it operates with all its dealers on a principal-to-  principal basis and its liability being a manufacturer 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 cannot be fastened upon the Opposite Party No.3. It was further contended that no money was paid to the Opposite Party No.3.  Hence, it cannot be liable to pay the same because the cars are purchased by the concerned Dealers against a payment and thereafter, the cars are sold by the Dealer to the customer under a Sale Invoice. Further, the Complainant had failed to establish that the Opposite Party No.3 had promised or assured services which were not fulfilled. It was contended that the car was delivered to the Complainant in perfect running condition and it had no manufacturing defect and the claim of the Complainant is without any evidence. It was further contended that the Complaint is liable to be dismissed for non-joinder of parties as the Complainant has not made M/s. Raja Hyundai Motor, a party to the present Complaint. Moreover, the dealerships took care of the vehicle with utmost sincerity whenever it was reported to them. Therefore, the Opposite Party No. 3 prayed for dismissal of the Complaint with costs.       

7.      The Ld. District Forum vide its Order dated 01.12.2017 had allowed the Complaint against opposite Parties No. 1 and 3 jointly and severally while observing that the Car in question has manufacturing defect and directed them to pay Rs.13,60,038/- along with interest @ 9% p.a. from 21.04.2017 till its realisation with Litigation Costs of Rs.10,000/- to the Complainant.

8.      Aggrieved by the above Order, First Appeal bearing No. 27 of 2018 was filed by Appellant/ Opposite Party No.3 against the remaining parties and First Appeal bearing No. 23 of 2018 was filed by the Appellant/ Opposite Party No.1 against the remaining parties before the State Consumer Disputes Redressal Commission, U.T. Chandigarh. Those Appeals were decided by the common impugned Order dated 08.08.2018. The Ld. State Commission had observed that the view taken by the Ld. District Forum that there was a manufacturing defect in the vehicle is perfectly justified. 

9.      The Ld. State Commission vide its impugned Order dated 08.08.2018 in First Appeal bearing No. 27 of 2018 had dismissed the Appeal and upheld the Order dated 01.12.2017 of the Ld. District Forum while modifying the Order to the extent of relief granted. The Ld. State Commission observed that at the time of arguments, it was intimated to them that the car had covered more than 34,000 kms which showed that the car was being used. Therefore, there was no reason to grant interest on the refund amount and there was no justification to grant refund of amount paid towards insurance and registration. Therefore, the Ld. State Commission modified the Order passed by the Ld. District Forum and directed the Appellant/ Opposite Party No.3 to refund Rs.12,58,641/-.

10.    The Ld. State Commission vide the same impugned Order had allowed the First Appeal bearing No.23 of 2018 filed by the Opposite Party No.1 because it opined that as the vehicle had manufacturing defect, hence, the liability could not be fastened upon the Dealer especially when the car was under Warranty, and no deficiency in service had been proven against the Dealer. The Ld. State Commission relied upon the decision of Hon’ble Supreme Court of India in ‘Hindustan Motors Ltd. and Another v. N. Siva Kumar and Another’ 2000 (10) SCC 654 and the judgement of this Commission in ‘Classic Automobiles v. Lila Nand Mishra and Another’ 2010 (1) CPJ 235.

11.    Hence, the present Revision Petition has been filed by the Petitioner/Opposite Party No.3 against the above-mentioned impugned order of the Ld. State Commission.

12.    Heard Ld. Counsel for Petitioner and Respondent No.3 and Respondent No.1, party–in–person. Perused the material available on record.

13.    The Petitioners have relied upon an earlier decision of this Commission in RP No. 2854 of 2014 decided by a coordinate Bench on 14.8.2014 in the case of “Hyundai Motor India Limited  Vs. Surbhi Gupta and Ors.”.  In that case, the Revision Petition incidentally preferred by the present Petitioner itself against some other Complainant was dismissed by the Bench concerned with the following observations, inter alia –

“8.   I am in agreement with the learned counsel for the Manufacturer, Hyundai Motors India Ltd. that had there been some inherent manufacturing defect in the vehicle it would not have been possible for the vehicle to run for about 48,689 kms for over a period of more than 3½ years. The likelihood in such a case can be that some parts of the vehicle had a defect in it but the vehicle remained in drivable condition despite that defect. Had the suspected defect been serious, the owner of the vehicle would not have been able to drive it for more than 3½ years and to the extent of 48,689 kms. It is evident from the affidavit of the Service Manager that the defect if any in some parts of the vehicle, stand fully removed on account of replacement of the gear and linkage assembly. The vehicle, after change of the gear and linkage assembly has been driven on the road for 6 kms and Senior Officers of the Company has found it to be running in perfect running condition though it had already ran more than 4080 kms. The plea taken by the complainant that despite replacement of the assembly the problem in the vehicle continued to persist can not be accepted in view of the above referred affidavit of the Service Manager/Manufacturing Company. The complainant was not getting the old vehicle replaced despite the fact that he used it for more than 3½ years and it ran it for 48,689 kms.

9.   Moreover, as per the warranty given by the manufacturer, it was liable to replace only that part, which it acknowledged to be defective. In the present case, the petitioner replaced the part in question, with a view to satisfy the complainant, though it did not acknowledge any manufacturing defect in it.”

14.    In the present case also, it has been emphasizd on behalf of the Petitioner that the Complainant has driven the car in question for more than 34000 kms , which would go to show that it had no manufacturing defect, or at least any major defect which would render it unfit for driving.  This contention would appear superficially to have some substance.  But there is a fundamental difference in the facts and circumstances of the present case with those in the case of “Hyundai Motor India Limited Vs. Surbhi Gupta” (supra).  That happens to be the fact that while in the previous case, the Commission had found that the defects, if any in some parts of the vehicle had stood fully renewed on account of the replacement of the gear and linkage assembly, and that the vehicle after such changes had been driven on the road for 6 kms and Sr. Officers of the Company had found it to be in perfect running condition thereafter.  Consequently, its replacement was not justified especially in view of the fact that the Complainant had not got it replaced despite having used it for more than 3 ½ years and had run it for 48689 kms.

15.    In the present case, however, the Complainant had found the effect of unusual sound coming from the vehicle at the time of applying its brakes very soon after having it purchased on 21.4.2017 and when such defects could not be rectified by the Opposite Party in spite of their best efforts, he filed his complaint on 14.7.2017 which was less than 03 months after having taken delivery of the same.  Thereafter, he had been visiting the Dealers time and again for rectification of defects, but unfortunately it could not be actually rectified.  The problem of unusual sound at the time of braking could not be eliminated in spite of changes in many major parts like fuel tank, rear shockers, coil springs and dead axle assembly.  As rightly noted by the Ld. State Commission in the report submitted by specialised Team of Engineers from the Petitioner Company on 31.10.2017 before the District Forum, it was specifically stated that despite thorough checking, they had failed to identify the problem. The car had been checked by even removing all loose items in the car like seats, spare wheel, dicky tray etc. and even then the source of noise could not be identified. For this purpose cushioning thickness of the fuel tank was also increased but to no avail.  It was further said that in the given circumstances, the car was required to sent to Faridabad for some further examination by the Specialists to identify the problem. This statement in itself is a clear give away that there was some defect in the vehicle of such a nature which could not be found even by the Specialist Engineers.  The Complainant who is a Government employee and had invested his hard earned money in purchasing the vehicle was, therefore, put to a thoroughly unreasonable peril of being deprived of the opportunity of actually using the vehicle for his necessity.  It was out and out unreasonable in the given facts and circumstances to deprive him of such usage “for atleast 12 days” after all the ordeal he had gone through in the preceding months, and which deprivation would have certainly necessitated unnecessary expenses and burden to him for having to commute to his place of work by other alternate means not to be provided or paid for by the Petitioner/manufacturer.  He therefore cannot be faulted for having refused to give up his daily necessity of commuting to his place of work for an indefinite period of time, and instead to again and again run after the Opposite Parties for removal of the defects in his vehicle, and in the given circumstances, the fact that he had run the vehicle for about 34000 kms in spite of the persistence of unidentifiable defect of the sound in the braking system, cannot be used against him.

16.    This Commission, therefore, finds no impropriety or illegality in the impugned decision of the Ld. State Commission.

17.    The Revision Petition is, therefore, dismissed after affirming the impugned Order of the Ld. State Commission.  No order as to costs.

18.    Pending application(s), if any, also stand disposed off as having been rendered infructuous.