BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,  PANCHKULA

Sandeep Bansal s/o Sh.Mahabir Parsad, r/o House No.466(Presently residing at #460), Sector-21, Panchkula.

                                                                          ….Complainant

Versus

1.     Hisar Hyundai, Unit of Hisar Motors, 11 K.M. Stone, Delhi Bye Pass Road, Hisar, Haryana-125001 through its Managing Director.

2.     Berkeley Hyundai, 375, Industrial Area, Phase-I, Panchkula-134109 through its Director.

….Opposite Parties

COMPLAINT UNDER SEC. 12 OF THE CONSUMER PROTECTION ACT, 1986.

Before:              Sh. Satpal, President.

Dr. Pawan Kumar Saini, Member.

Dr. Sushma Garg, Member.

For the Parties:   None for the complainant.    

OP No.1 already given up vide order dated 19.02.2018.

None for OP No.2.

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that the complainant purchased Hyundai Verna FL 1.6CRDI Diesel car on 15^th January 2016 from the OP No.1. The complainant had been running the car exclusively himself and is getting the vehicle serviced from the authorized centre i.e. OP No.2 but there is some noise within the car and the same has been brought to the notice to the officials of OP No.2 by the complainant. The officials of OP No.2 investigated and surveyed the car many times and replaced HUB Assy-RR Wheel twice but there is still continuous voice in the car. The OP No.2 had called up Senior officials also to examine the vehicle but they also could not detect the problem in the car. The last service of the vehicle was done on 07.06.2017 and during the service, the vehicle was thoroughly checked and scanned by the engineers for any defect and after satisfactory test drive the vehicle was delivered back to the complainant. He also stated that after the last service of the car it was still making continuous voice and the OP’s were not able to detect the problem. He also stated that after few days of its purchase the vehicle started creating problem and the same was told to the OP No.2 at the Ist service as well and afterwards on every service. But till date the voice is still persisting. The complainant approached the OP No.2 again and requested to check and disgnose the problem in the vehicle. Further, the HUB ASSY has been changed twice by the OP No.2 but till date the voice is the same as was earlier. The OP’s are not able to detect the problem in the car and are using Hit and Trial method and randomly changing parts to detect the problem but they have failed miserably. Due to the act and conduct of the OPs, the complainant has suffered harassment, mental agony and financial loss. Hence, the present complaint.

2.             Upon notice, notice was issued to the OP No.1 through registered post which was not received back either served or unserved. However, the learned counsel for the complainant on 19.02.2018 by making a separate statement has given up OP No.1 stating that there was no dispute between the complainant and OP No.1 as OP No.1 is a seller only.

                Upon notice, OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; the complainant has not come with clean hands; the complaint is bad for non joinder necessary parties and concealed the true material facts. On merits, it is stated that the complainant had purchased the vehicle in question i.e. Hyundai Verna FL 1.6 CRD Diesel Car from OP No.1 on 15.01.2016 and approached the authorized workshops on the following dates for following services:-

        It is also stated that the complainant had approached the OP No.2 with the complaint of noise in the vehicle in question/Tyres. A perusal of the said visits also shows that once the defective parts were replaced, the vehicle in question did not suffer the said problem again and it had honored its commitment under the warranty conditions of the vehicle by replacing the parts found defective free of costs. Moreover, the defective parts are replaced under the supervision of Engineers of Hyundai, the manufacturer of the vehicle. The remaining visits also shows that they are for free services, attending service camp, regular services or replacement of wear and tear parts. The visits of the complainant again and again would also shows that the there was any inherent manufacturing defect but the complainant did not lodge any complaint. The last visit to the workshop of the OP No.2, was for regular service, which shows that vehicle is defect free at present. It is further stated that the complainant had run the vehicle more than 80000 Kms till August, 2017 i.e. in the period of less than 19 months which means the complainant is driving 140 Kms every day(including Saturday, Sunday and other holidays). The vehicle is thus run a good mileage inspite of the allegations of defects so made by the complainant. Had there been really any defect, the vehicle could not have run this much till date. Further, it is wrong that the last service of the vehicle was done on 07.06.2017 but the last service of the vehicle was conducted on 12.08.2017 and that day no defect was got noted by complainant on job car. It is further vehemently denied that on first service or afterward any complaint regarding any defect was made. No such defect noted except for the visits dated 19.07.2016, 22.08.2016, 07.06.2017, 29.06.2017 and 13.07.2017. Thus, the first time any defect was pointed out was only on 19.07.2016 when the vehicle had run 23897 Kms. The vehicle had run more than 80000Kms in 19 months also falsifies that there is any defect and the said defects is affecting the running or comfort of the vehicle. Moreover, the engineers of manufacturing company Hyundai Motor India had twice inspected the vehicle and got the defective parts replaced in their own presence. Even on 13.07.2017 the said engineers inspected the vehicle, however no defect was found. Thus, there is no deficiency in service on the part of the OP No.2 and prayed for dismissal of the present complaint.

3.             The learned counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the Law Officer on behalf of the OP No.2 has tendered affidavit Annexure R2/A alongwith documents Annexure R2/1 and closed the evidence. The OP No.1 has already given up vide order dated 19.02.2018.

                At this stage of arguments, the learned counsel for the complainant has filed an application to get expert opinion regarding unusual sound in the car on 30.11.2018 and Ops filed the reply of the said application on 11.12.2018 and adjourned the case for consideration 07.01.2019. On 07.01.2019 arguments heard on the said application and the same was allowed. Therefore, the Director/Incharge of PEC University of Technology, Chandigarh was hereby directed to appoint the technical engineer who will inspect the vehicle after issuing notice to both the parties and send the report of this Forum. The complainant was directed to produce the vehicle in question to PEC University of Technology for testing. Complainant was also directed to deposit the requisite fee for testing the vehicle in PEC University of Technology and adjourned for 13.02.2019 and further adjourned for 18.03.2019 for awaiting report of PEC. On 18.03.2019, a letter Memo No.PEC/MED/6274-277 dated 11.03.2019 has been received from PEC stating that the vehicle in question was not produced before the expert committee and direct the complainant  to produce the vehicle before the expert committee of PEC for inspection on 04.04.2019 and case was adjourned to 12.04.2019 for awaiting report of PEC. After 18.03.2019, neither the report has been received from the PEC nor the complainant or his counsel has been appearing to apprise us about the status of the expert opinion. The complainant has availed as many as 8 opportunities for appearance as well as awaiting report of the PEC. Further, it is pertinent to mention here that the case was fixed for awaiting the report on 12.04.2019 but none appeared on behalf of the complainant nor the report has been received and case was adjourned to 05.07.2019 and further 20.08.2019 for the same purpose. On 20.08.2019, proxy counsel for the complainant has been appeared and case was adjourned at the request of the proxy counsel for the complainant to 17.09.2019 for awaiting report of the PEC. Further, on 17.09.2019, none has appeared on behalf of complainant as well as report was not received and case was adjourned to 30.10.2019 & 02.12.2019 for the same purpose. On 02.12.2019 none has appeared on behalf of the complainant and report was also not received and case was adjourned to 09.01.2020 subject to last opportunity. On 09.01.2020, neither the report has been received from the PEC nor has the complainant appeared subject to last opportunity and case was adjourned to 27.01.2020, 06.02.2020 and 20.02.2020 for the same purpose.

 4.            The OP No.1 has already been ordered to be given vide order dated 9.02.2018. None is appearing on behalf of complainant as well as OP No.2 for the last several dates to advance their respective oral arguments in support of their contentions. Hence, we have no option to dispose of the case on the basis of the record available on the file including the written arguments filed by the learned counsel for the complainant, which we have gone through minutely and carefully.

5.             In the present complaint, the complainant has prayed for replacement of the car in question or its repair on the basis of manufacturing defect in it. It has been alleged that there was some noise within the car during its driving due to some manufacturing defect and the OPs have replaced the hub RR vehicle twice but the basic defect could not be removed. In support of his contention jobsheet(Annexure R-2(colly)) has been produced by the complainant.

6.             On the other hand, the OPs have denied that there is any basic manufacturing defect in the car. It has been alleged that there is no report of mechanical expert substantiating the allegations of the complainant. In this regard the complainant filed an application seeking the appointment of the mechanical expert which was allowed with the directions to the Director/Incharge of PEC University of Technology, Chandigarh to appoint a technical engineer to inspect the vehicle in the presence of both the parties and send the report to this Forum. The complainant was directed to produce the vehicle in question before the technical engineer so appointed by the Director/Incharge of PEC University of Technology, Chandigarh for its testing. The complainant was also directed to deposit the requisite fee for testing of the aforesaid vehicle with the aforesaid institution and the case was adjourned to 13.02.2019. On 13.02.2019, the case was adjourned to 19.03.2019 for awaiting the report of mechanical expert. In the meanwhile, the complainant was directed by the Head, Mechanical Engg. Deptt. PEC University of Technology, Chandigarh vide his letter dated 12.02.2019 to produce the vehicle on 06.03.2019 for inspection before the expert committee and deposit an amount of Rs.23,600/-with the institution. However, the complainant did not produce the vehicle on 06.03.2019 for inspection before the expert committee as conveyed by the mechanical engineering department vide its letter dated 11.03.2019. Upon receipt of this letter, the complainant was directed to produce the vehicle on 04.04.2019 for inspection before the expert committee and the case was adjourned to 12.04.2019. After 12.04.2019, the case has repeatedly been adjourned on 17.05.2019, 05.07.2019, 20.08.2019, 17.09.2019, 30.10.2019 and 02.12.2019 for awaiting the report of expert committee but  neither the complainant appeared on the aforesaid dates except  a proxy counsel on 20.08.2019 nor the awaited report from expert committee has been received in the forum. On 02.12.2019, the case was adjourned to 09.01.2020 for awaiting the report of expert committee subject to the last opportunity. On 09.01.2020 again neither the complainant nor anybody else on his behalf appeared before the Forum nor the awaited report was received and the case was again adjourned to 27.01.2019 subject to last opportunity. Regrettably, on 27.01.2019 also, the expert report was not received and none was present on behalf of the complainant to apprise the forum as to whether the vehicle in question was ever produced before the expert committee and thereafter, the case was adjourned to 06.02.2020 and 20.02.2020 for arguments. Again none appeared on 06.02.2020 and 20.02.2020 and today itself. It is well settled proposition of law that basic manufacturing defect can be established on the basis of report of mechanical engineer. In this regard, we may safely rely upon the following case laws decided by the Hon’ble National Commission, New Delhi as under:-

1. Krishnpal Singh Vs. Tata Motors Limited, II(2014)CPJ 731(NC)

2. Ram Bhagat Vs. M/s New Holland Fiat(India) Pvt. Ltd & another in Revision Petition no.2088 of 2013 as decided  on 03.10.2013.

3. Khanna Automobiles, Opposite Aggarsen College & Another V. Shri Rajesh Kumar in Revision Petition no.1115 of 2012 as decided on 23.04.2013.

4. Baljit Kaur Vs. Divine Motors and Ors. 2017(3)CPR 224(NC), Revision Petition no.1336 of 2017.

7.             In the present case, as stated above, there is no report of mechanical expert, hence, the averments of the complainant alleging manufacturing defect in the vehicle, are not proved. Moreover, the vehicle in question has run a distance of 80000kms till August 2017 in a period of less than 19 months, which means that the complainant had been running the vehicle 140kms every day including holidays, Saturday and Sunday. As per vehicle history described in detail in para no.4 of the affidavit (Annexure R-2/A) the vehicle was found having no defect in it on 13.07.2017 by the engineers of the OP and thereafter, the complainant visited the OP for regular service on 12.08.2017 but no complaint of any kind was alleged.

8.             In view of the aforesaid discussion, we find no force and substance in the version of the complainant; hence, the complaint of the complainant deserves to be dismissed and accordingly, the same is hereby dismissed with no order as to cost. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:19.03.2020

Dr.Sushma Garg          Dr. Pawan Kumar Saini         Satpal          

        Member                           Member                               President

Note: Each and every page of this order has been duly signed by me.

                                        Dr. Pawan Kumar Saini                                 

      Member