COMPLAINT FILED: 26.05.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 24th OCTOBER 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI. A. MUNIYAPPA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1186/2008<br /> <br /> <br /> COMPLAINANT Mr. Shafeeq Ahmed Khan,<br /> S/o. Mr. Anwar Ulla Khan,<br /> Residing at No. 54, D-6 Block,<br /> 7th Floor, Kendriya Vihar,<br /> Bellary Main Road,<br /> Bangalore – 560 064.<br /> <br /> <br /> Advocate (Imran Pasha)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. M/s. Hyundai Motor India Ltd.,<br /> No. A-30, Mohan Co-operative Industrial Estate, Mathura Road,<br /> New Delhi,<br /> Represented by its <br /> Managing Director.<br /> <br /> <br /> Advocate (B.K. Manjunath)<br /> <br /> <br /> 2. M/s. Trident Automobiles <br /> (P) Ltd.,<br /> No.1, Lower Palace Orchards,<br /> Bangalore – 560 003.<br /> Represented by its <br /> Managing Director.<br /> <br /> <br /> Advocate (Srivatsa D. Hardar)<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to replace the defective car No. KA-50-M-2084 or refund the cost of the said car and pay a compensation of Rs.1,00,000/- on an allegations of unfair trade practice and deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant Mr. Shafeeq Ahmed Khan purchased the Santro Car bearing No. KA-50-M-2084 from OP.2 the authorized dealer which is manufactured by OP.1 for a valid consideration of Rs.4,22,994/- on 30.07.2007. When he took deliver of the said vehicle and proceeding to his house on 01.08.2007 he experienced certain defects including that of vehicle getting pulled towards left side and also noticed the noise, etc. Immediately he intimated the OP.2 about the defect, he has also noticed the leakage in the petrol tank, remote locking not functioning, window glass not operating, etc. OP.2 directed him to bring the vehicle, complainant took the vehicle to OP.2 within a span of 6 days, though OP.2 attended to the said defects it is unable to detect the real problem, the same defects continued. Complainant again made representation to OP on 14.08.2007. One Mr. Kumar from Technical Department of OP.2 examined the said vehicle, he has confirmed the defect and promised to rectify the same. Unfortunately OP.2 failed to rectify the said defect in spite of the repeated requests and demands made by the complainant. Complainant being fed up with the hostile attitude of the OP sought for replacement of the defect free car or refund of the cost. Again there was no response. OP.2 deputed some other officials to examine the said vehicle, it was examined by them. Though OP contended that they have attended to the said defects of wobbling along with other defects pointed out earlier but they still continued. Complainant was made to leave the said vehicle for repairs every now and then to OP.2 and most of the time the vehicle is in possession of OP.2 only to attend to the said defect. With all that OP.2 is unable to cure the said defect. Hence complainant felt that there is an inherent manufacturing defect in the said vehicle. Though he has invested his hard earned money, he is unable to reap the fruits of his investment. Under such circumstances complainant felt the deficiency in service on the part of OP’s. He even issued the legal notice, there was no response. For no fault of his, he is made to suffer both mental agony and financial loss. As such he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. On appearance, OP.1 and 2 filed their respective version independently. But the defence set out by both the OP’s is almost similar and identical. The brief averments as could be seen from the contents of the said version are as under. Though OP.2 attended to the said defects and cured the same and get ready the vehicle on 31.10.2007, complainant failed to take delivery of the same. As and when there was a requirement of replacement of the spare parts, they are replaced free of cost. Complainant pointed out certain defects within the warranty period, hence it is attended to. But somehow complainant is not satisfied with the said repairs. There is no inherent manufacturing defect in the said vehicle as contended and alleged. The minor problems pointed out by the complainants are attended to and rectified free of cost, but still complainant went on making correspondence alleging one or the other defect. Those allegations are false and baseless. The complaint is devoid of merits. OP’s neither indulged in any unfair trade practice nor caused any deficiency in service. As such they are not liable either to replace the car or refund the cost of the car. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP has also filed the affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant Mr. Shafeeq Ahmed Khan purchased the Santro Car manufactured by OP.1 through its authorized dealer OP.2 for a valid consideration on 30.07.2007. The said vehicle is bearing No. KA-50-M-2084. During the course of trial complainant expired, his LR’s are brought on record. It is contended by the complainant that when he took delivery of the said vehicle and proceeding to his house on 01.08.2007 he observed the wobbling and the vehicle was pulling to the left side of the road, there was a leakage in the petrol tank, remote locking was not working properly, window glass was not operating, etc. Immediately he brought the said defects to the notice of the OP.2. All these defects are noticed within a span of 6 days. On the perusal of the version of OP.2, para.3 of the version shows that the defects as pointed out by the complainant were minor and they were rectified free of cost. So one thing is made clear that the leakage in the petrol tank, window problem, remote locking, wobbling problem occurred within a span of one day from the date of delivery is admitted.<br /> <br /> 7. It is further contended by the complainant that he left the vehicle with OP.2 for attending the repairs, all his efforts went in vain. Not only on day but subsequently also he experienced the same problem, wobbling, engine was very rough, poor pick up, suspension, body titling, shock absorbers problem, gear shifting problem, etc. Complainant was forced to leave the said vehicle for repairs. The correspondence made in that regard by the complainant repeatedly with the OP are produced. The said correspondence along with the job card clearly speaks to the fact that there are some inherent defects in the said vehicle which was delivered to the complainant by the OP. In response to the demand made by the complainant OP has replied otherwise admitting the defect with the said vehicle as could be seen. That is why they thought of extending the warranty. The extending of warranty is not a solution with a defect found with a said vehicle. Complainant has invested his hard earned money to get defect free vehicle, unfortunately he is unable to reap the fruits of his investment.<br /> <br /> 8. As and when complainant made complaint, OP has come up with a defence stating that they will depute their officials concerned with the Technical Department, technical service, etc. The fact that the said vehicle was tested by the officials of OP by name Mr. Kumar. Mr. Amjad, Commander Kumar and AGM Ramdev having knowledge of the defects is not at dispute. One of the letter addressed by the OP dated 15.10.2007 speaks to the fact of admitting the joint road test by T. Ashwin the official of OP and they directed the complainant to leave the vehicle at their workshop. OP not got filed the affidavits of his officials referred to above so as to substantiate their defence that the problems are very minor problems and that they were cured. Under such circumstances an adverse inference will have to be drawn.<br /> <br /> 9. The document No. 15 produced by the complainant speaks to the defects noted in the said car on 31.10.2007. Those defects corroborates with the say of the complainant. There is nothing to discard the sworn testimony of the complainant. Though OP has come up with a defence that after road test they attended to all defects and made the said vehicle road worthy, for this basically there is no proof. If it would have been a fact, OP would have intimated the complainant well in advance. No such steps are taken. There was no proper response from the OP to the repeated correspondence made by the complainant alleging one or the other defects with the said vehicle. The fact that since 30.10.2007 the vehicle still lies with the OP is not at dispute, that is nearly for one year from the date of alleged purchase. Complainant is almost prevented from using the said vehicle. The another letter dated 31.03.2008 addressed by the OP intimating their desire to have joint road test of the said car. But thereafter it appears it was not materialized. So viewed from any angle, on the close scrutiny of the respective documents as well as the evidence of litigating parties, we are satisfied that the complainant is able to prove the deficiency in service on the part of the OP.<br /> <br /> 10. The contention of the OP that even though they attended to all the repairs and kept ready the vehicle for the delivery, complainant failed to take delivery of the same rather does not hold much force. Admittedly when OP intimated the complainant to take delivery after joint road test drive, complainant has faced some family problems, thereby he was prevented. That fact is admitted by the OP that complainant was prevented in taking part in the joint road test. Thereafter complainant made representation to OP to deliver him a car after the joint road test, for that there was no response. Again we feel the hostile attitude of the OP must have naturally caused both mental agony and financial loss to the complainant. <br /> 11. With regard to the facts and circumstances of the case, we find it is a fit case, wherein the complainant is entitled for certain relief, though not the replacement of the car in place of the defective vehicle and refund of the cost of the vehicle. In our view the justice will be met by directing the OP to rectify the said defects which have occurred within the warranty period to the satisfaction of the complainant and hold the joint road test of the said vehicle in presence of an expert Automobile Engineer in the field and deliver the said vehicle to the complainant. With these reasons we answer point nos.1 and 2 accordingly and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP’s are directed to rectify the defects pointed out by the complainant to his satisfaction, make the said vehicle road worthy and carry out the joint road test of the said car in presence of a technically qualified Automobile Engineer of repute an expert in the field. The assistance of the said technical expert be obtained with a mutual consent at the cost of OP and then deliver the vehicle to the complainant. It is further directed to OP not to collect any charges towards the service, repairs or replacement of some parts. In view of the nature of dispute no order as to costs. This order is to be complied within 4 weeks from the date of its communication. <br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 24th day of October 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> p.n.g. <br />