Delhi

North East

CC/485/2015

Sunil Kr. - Complainant(s)

Versus

Himgiri Cars Pvt. Ltd. - Opp.Party(s)

05 Mar 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 485/15

 

In the matter of:

 

	Sunil Kumar S/o Shri Ravi Das 618-F/5/1-B, Ambedkar Park Pandav Road, Vishwas Nagar Shahdara Delhi-110032	Complainant
	Versus
	Himgiri Cars Pvt. Ltd. (also known as “Himgiri Hyundai”) A-9/1, Jhilmil Industrial Area New Delhi-110095	Opposite Party

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

08.12.2015 05.03.2019 05.03.2019

 

   

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Concise facts of the complaint sufficient for deciding the case of merits are briefly recapitulated as complainant was the owner of Hyundai i10 Car bearing Registration No. DL 3C BR 8319 purchased by him in 2011 for his travel to office and day to day work and outstation visits. In March 2015, when complainant observed some unusual noises from the front side of the car, he approached the authorized service centre of OP on 02.04.2015 for handing over the said car for servicing and removal of noise defect therein. However, whole undertaking repairing work, the OP replaced the steering of his car with a new one without the consent of the complainant. The OP raised an invoice bearing no. B201503382 dated 02.04.2015 for a sum of Rs. 21,206/- which included amount of Rs. 5,992/- towards cost of gear assy steering and Rs. 748/- as labour charges for the same totaling Rs. 6,740/-. The said bill was paid in full by the complainant to OP. But just two days after service, the complainant realized that the same sound persisted in the car and he again went to OP on 09.04.2015 for rectification and OP repaired the same and handed over the car to the complainant with assurance that the defect has been removed and no noise shall be heard but the same was falsified in a week’s time and the complainant was again forced to take the car to OP’s workshop on 19.04.2015 on which occasion too, the defect was rectified but on a temporary basis. On both dates i.e. 09.04.2015 and 19.04.2015 the repair work was done by OP free of cost against job cards issued. The complainant unfortunately had to visit to OP for the fourth time on 06.06.2015 yet again complaining of the same defect of noise and met the General Manager of OP infirming him about deficiency of service rendered by his workshop. An invoice of zero amount was raised on 06.06.2015 but it was never handed over to the complainant. The complainant gave a negative feedback to the call later made by the customer care of OP on 10.06.2015 and called up one Mr. Sachin, attendant of OP on 18.06.2015, 22.06.2015, 26.06.2015, 27.06.2015 and 28.06.2015 for rectification of the defect in the car asking him to arrange for pickup of car from complainant’s residence but the same was not arranged despite repeated assurances given by the said attendant. On 29.06.2015, the complainant called up the customer care of OP and asked for the invoice dated 06.06.2015 which the OP assured to send via e-mail but never sent the same and complainant has alleged that this act was done by OP to conceal its deficiency of service. Lastly, the complainant issued a legal notice dated 13.07.2015 through his counsel to OP demanding removal of defects in his car and a reminder notice dated 12.10.2015. However both the notices went unresponded / unacted  upon by OP and the complainant therefore was constrained to file the present complaint praying for issuance of directions against the OP to rectify the defects in his car on permanent basis by repairing / replacing any part free of cost, refund Rs. 6,740/- charged for changing of steering despite which the noise persisted in the car and pay a compensation of Rs. 80,000/- for deficiency in service, infringing complainant’s right to get quality service and invoice raised in respect of service or repair and for mental and physical harassment forcing the complainant to take legal recourse.

Complainant has attached copy of the invoice dated 02.04.2015 of Rs. 21,206/- including Rs. 6,740/- towards change of steering, copy of job card dated 09.04.2015, copy of bill dated 19.04.2015 FOC, copy of itemized mobile bill highlighting calls made by complainant to OP’s attendant Mr. Sachin and OP’s customer care, copy of legal notice dated 13.07.2015 and reminder notice dated 12.10.2015 to OP.

2. Notice was issued to OP on 22.12.2015. OP entered appearance and filed written statement on 18.03.2016 in which, while admitting the factum of the complainant having brought the said vehicle to its workshop on 02.04.2015 for service and rectification of unusual defect of noise, took the preliminary defence that the said defect was cured by replacing steering assembly and the vehicle was road tested and delivered in satisfactory condition to the complainant. When the complainant again came to OP with the complaint of front side noise in the car on 18.04.2015 and 06.06.2015, on both occasions the vehicle was taken for joint test drive and no noise was found in the car after which the complainant never brought the said vehicle to OP for the alleged defect. Thereafter, when the complainant made telephonic calls to OP about the noise defect, he was asked to bring the vehicle to the workshop or give some time for a pickup but there was no response from him for either. The feedback given by the complainant for repair / service was also positive. Lastly, the OP denied having avoided complainant’s request for removal of defect in his car or any deficiency of service on its part and submitted that it has not received legal notice dated 13.07.2015 and prayed for dismissal of the complaint.
3. Rejoinder to the written statement of OP was filed by complainant in rebuttal to the defence taken by OP in which the complainant submitted that OP is misleading the Forum by submitting that on 18.04.2015, the vehicle was taken for joint test drive and no noise was found therein for which a satisfaction note was taken by the OP from the complainant on grounds that if that were the case, the OP would have filed the said ‘satisfaction note’ alongwith its written statement. Further complainant alleged that not handing over invoice dated 06.06.2015 was a deliberate tactic by OP to avoid any further legal consequences since the very fact that an invoice was raised on the said date goes to prove that vehicle was repaired by OP on that date too. The complainant controverted OP’s submission of having given an optimistic feedback to customer care of OP or OP having requested the complainant to bring the vehicle to his workshop or have a pickup from his house arranged by submitting that the complainant never called up the OP and gave a negative feedback to the customer care owing to negligence on the part of OP and deficiency of service. The complainant further urged that the OP ignored his repeated requests for arrangement of pickup his car in the entire month of June 2015 due to which he was constrained to issue a legal notice in July 2015 and a reminder notice in October 2015 to OP. The complainant placed on record copy of mobile message dated 29.06.2015 by complainant to customer care of OP asking for invoice dated 06.06.2015 and copy of track report of delivery of reminder notice dated 13.10.2015 to OP alongwith rejoinder.
4. Evidenced by way of affidavit filed by the complainant reiterating his grievance against the OP and exhibited documents as exhibit CW/1 to CW/7. Additionally, the complainant submitted that he had visited Samara Hyundai  located at Patparganj Industrial Area, Delhi on 13.01.2016 which is also one of the ASC of OP and a job card / repair order no R201600376 dated 13.01.2016 was issued showing work done for “noise from the front ” and estimated cost for the same and exhibited it as CW/8. Further complainant also placed on record copy of letter dated 25.01.2015 from GM Service of OP to complainant urging him to take a joint test drive post last repair work done on 06.06.2015 on his car at the OP’s work shop when no noise  / abnormality was found in the said car. The complainant exhibited same CW/9.
5. Evidence by way of affidavit filed by OP reiterating defence taken in the written statement.
6. Written arguments were filed by the both party in re-emphasis of their respective grievance / defence.
7. We have carefully considered the arguments advance by both the parties and have examined the pleadings and evidence placed on record before us.  It is not in dispute that the subject car was brought to the OP’s workshop in April 02.04.2015 by the complainant for problem of noise from the front side. The dispute arose when the invoice of Rs. 21,106/- was raised for repairs including Rs. 6,740/- towards cost of change of steering assembly. During the course of oral arguments, the complainant argued that firstly his consent was not taken for replacement of the same and was saddled with additional financial liability for replacement of same and secondly even after replacement of the steering, the noise problem persisted in his car for which it had to be repeatedly taken to OPs workshop for repair on three occasions, twice in April and once in June 2015 and on all occasions the OP did repair work only on temporary basis leading to dissatisfaction and accordingly negative feedback was given to the customer care of OP by the complainant  and the OP deliberately withheld the job card dated 06.06.2015 to avoid any consequence. On keen perusal of documentary evidence, the written statement by OP is silent and non committal on the aspect of the job card dated 06.06.2015 and the absence of it and did not file it either with its written statement or with its evidence to prove its bonafide. Even the letter dated 25.01.2015 exhibited by complainant as CW/9 alongwith his evidence has been incorrectly dated as 25.01.2015 instead of 25.01.2016 since it refers to repair job done on 06.06.2015 leading a possible inference that the said letter was doctored or sent hurriedly / belatedly by OP to the complainant after filing, the present complaint & when OP entered appearance on notice as an after thought / cover up mechanism to shift the onus. The postal stamp and seal on the envelope is dated 27.01.2016 and 28.01.2016 which is why the complainant could not file it with his complaint and filed the same with his evidence in July 2016.
8. In proceeding held on 07.05.2018, the AR of OP had offered amicable settlement in the matter since the complainant had already got repaired the defect in the said car from other service centre of Hyundai and the dispute was limited to refund of cost of repairing assembly but later on gave no response or offer of settlement and no proper representation was made on behalf of OP thereafter resulting in unnecessary delay in disposal of case for which cost of Rs. 500/- imposed on the OP payable to the complainant vide order dated 28.08.2018. However, in view of the non compliance of the said order and non appearance of OP, this Forum had closed its right to address oral arguments vide order dated 15.11.2018. 
9. Admittedly, the car in question was 2011 Model and the problem therein of noise in front side arose in 2015 which in our view was due to regular and extensive use of the vehicle and was obvious case wear and tear in the components in the vehicle since it had run more than 25,000 Kms till 02.04.2015 when it was brought to workshop. Nowhere in the written statement, has the OP submitted that the complainant had given instruction to change the steering since the complainant has refuted / denied having given any such instructions. The Hon’ble National Commission in Mercedes-Benz India Pvt Ltd, Tata Motor Ltd. Vs Natwarlal M Badiani and Ors IV (2017) CPJ 214 (NC) had observed that ordinarily the manufacturer of the car would take written instructions for effecting major changes in a car which will not be done merely on oral instructions . The question before the Hon’ble National Commission in the aforementioned case was whether the complainant had made an oral request or not. The Hon’ble National Commission after appreciating the affidavit and inspection report, concluded that even though the complainant had not given any instruction, oral or written, held the view that the OP acted in the good interest of the complainant but since OP has not produced any cogent evidence that the complainant had consented for making major changes in his car OP therefore was guilty deficiency of service and was liable to pay compensation to the complainant.
10. Placing reliance on the aforementioned case law and applying the ratio to the present case in hand since the facts are more or less similar in as much as the allegation by complainant of making changes / replacements without consent in his car which have gone unrebutted by OP in having failed to prove any cogent evidence and keeping in view the fact that despite change of steering assembly of the vehicle, the noise problem admittedly persisted in the said vehicle for which the complainant had to bring it to the OP’s workshop repeatedly, we are the considered view that the said replacement was not only unauthorized / unpermitted / unconsented to but also did not solve the problem. On the contrary, it saddled the complainant with additional expenditure and ultimately the complainant had to get the noise problem in his vehicle rectified from other service centre of Hyundai when there was no response from OP and no resolution of his problem in sight.
11.  We therefore hold OP guilty of deficiency of service and direct the OP to refund Rs. 6,740/- to the complainant towards steering assembly and labour charges. We further directed to OP to pay to complainant  a sum of Rs. 6,000/- as compensation for mental and physical harassment, failure to provide copy of invoice dated 06.06.2015 inclusive of litigation charges.  
12. Let the said order be complied with the OP within 30 days of receipt of copy of the same failing which OP shall be liable to pay penal interest @ 6% on the awarded amount of Rs. 12,740/- from the date of passing of this order till realization to the complainant.

 

13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  05.03.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member