IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,

Dated this the 31^st day of October, 2014.

Present : Sri. Jacob Stephen (President)

Smt. K.P. Padmasree (Member-I)

Smt. Sheela Jacob (Member-II)

C.C.No.17/2014 (Filed on 01.02.2014)

Between:

Dr. Damodaran. N,

Palathitta Thundiyil House, 

Podiyadi.P.O.,

Thiruvalla Taluk,

Pathanamthitta Dist.

(By Adv.S. Manoj)                                                 ….    Complainant

And:

1. Hyundai Motor India Ltd.,

    Jasola, New Delhi – 110 076,

    Rep. by its Managing Director.

(By Adv. Anzil Zachariah)

2. Manager,

    Popular Motor World (P) Ltd.,

    (Popular Hyundai),

    Sales Office, Sastri Road,

    Kottayam.P.O., Kottayam – 1.

3. Service Manager,

    KTC Automobile (P) Ltd.,

    Thrissur.

    (Authorised Service Centre,

     Hyundai Motors India Ltd.)

(By Adv. Mathew Kuriakose)

4.  Proprietor, Pamba Fuels,

     Podiyadi.P.O., Thiruvalla.

     (IBP Authorised Pump).

(By Adv. Sasi Philip)

5.  Divisional Manager,

     Indian Oil Corporation Ltd.,

     Divisional Office,

     Panampally Nagar, Kochi.

     (IBP is now under IOC)                           …..  Opposite parties

O R D E R

Sri. Jacob Stephen (President):

                 Complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                 2. The complainant’s case is that he is the owner of a Hyundai i20 DSL BS IV Model Car manufactured by the 1^st opposite party.  The said car was purchased by the complainant on 16.03.2013 from the 2^nd opposite party by paying Rs.8,62,979/-.  The complainant was using the car from its purchase onwards.  While so on 09.11.2013 at about 9 p.m. the complainant along with his sister and her 2 children started a journey from Podiyadi, Thiruvalla to Mysore in connection with the treatment of his sister.  Before starting the journey the car was filled with 45.86 liters diesel from the 4^th opposite party.  When they reached Thrissur at about 1 a.m. on 10.11.2013 the vehicle suddenly stopped and could not started even after repeated attempts.  Immediately, the complainant contacted the 2^nd opposite party, who is the authorized service centre and informed the matter and in turn 2^nd opposite party informed the complainant that they have no authorized service centre at Thrissur and further told to contact the 3^rd opposite party.  Accordingly the complainant contacted the 3^rd opposite party who in turn send mechanics to the site.  They tried to rectify the defect.  But they have not succeeded.  So the vehicle was towed to the workshop of the 3^rd opposite party.  The main mechanic of the 3^rd opposite party attended the vehicle in the morning at about 10 a.m and opined that the fuel is contaminated with water content and therefore the diesel tank is to be filled with fresh diesel after emptying the diesel tank and it was done.  Thereafter the vehicle got started, but the vehicle was stopped during trial run at about 3 p.m.  Then the main mechanic told that for further investigation the main 4 injectors and fuel pump are to be dismantled from the engine.  On realizing that the journey could not be continued in his vehicle, complainant arranged another vehicle and continued the journey.  Thereafter on 16.11.2013 the complainant sent a complaint to the Kochi office of the 2^nd opposite party stating that the vehicle is having major manufacturing defect and requested for replacing the vehicle with a brand new one or to repair the vehicle under full warranty.  Thereafter on 19.11.2013, the Assistant Service Manager of the 3^rd opposite party sent an e-mail to the complainant requesting the permission of the complainant for opening the fuel pump and the injector as they presumed water entry into the fuel pump and injector, since the said repairs cannot be done under warranty.  But the complainant has not given consent as the complaint of the car is due to manufacturing defect and warranty is in force.  Thereafter on 22.11.2013 the 3^rd opposite party advised the complainant to take up the matter with the 4^th opposite party from where the diesel was filled by stating that HMIL has also rejected the warranty.  Thereafter on 26.11.2013, the 3^rd opposite party requested the complainant for giving his approval for dismantling the fuel pump and injector for sending it to Delhi either for repair or for replacement.  3^rd opposite party also told the complainant then an approximate amount of Rs.2,25,000/- is required for rectifying the complaints.  The breakdown of the car and entry of water is due to manufacturing defects.  The said defect was occurred during the warranty period and hence opposite parties 1 to 3 are liable to rectify the defect free of cost.  At the same time, opposite parties 4 and 5 are liable to the complainant if the breakdown is due to contaminated diesel.  So the complainant sent legal notice to opposite parties 1 to 3 on 30.11.2013 for redressing his grievances but they have not responded.  The above said act of the opposite parties is a clear deficiency in service which caused financial loss and mental agony to the complainant and hence they are liable to the complainant for the same.  Hence this complaint for an order directing opposite parties 1 to 3 for the replacement of the car with a brand new car or in the alternative to pay an amount of Rs.8,62,979/-, the value of the vehicle along with compensation of Rs.5 lakhs for the mental agony, physical strain and financial loss sustained to the complainant.  Complainant also prays for allowing the cost of this proceedings.

                 3. In this case, opposite parties 1, 3 and 4 entered appearance and filed separate versions.  Opposite parties 2 and 5 are exparte.

                 4. The main contention in the version of the 1^st opposite party is as follows:  Opposite party had admitted the sale of the Car to the complainant on 16.03.2013 through the 2^nd opposite party.  But the complainant had no complaints of any manufacturing defect till 10.11.2013.  However, the vehicle broke down only on 10.11.2013 when the complainant had got his vehicle filled with fuel from the 4^th opposite party and the vehicle was reported at the workshop of the 3^rd opposite party on 11.11.2013 who in turn, after inspection, observed water content in the diesel and the same was informed to the complainant.  The said broke down was due to the use of adulterated fuel.  So the 1^st opposite party cannot be made liable for the same and repair cannot be done under warranty. The same was also communicated by the workshop to the complainant on 22.11.2013.  It is admitted that there is 2 year warranty.  But as per the terms and conditions of the warranty, warranty is not applicable for the defects occurred due to the use of improper or insufficient fuel, fluid or lubricants.  Further the vehicle in question had already covered 8900 kms. and 8 months.  If there had been any manufacturing defect, the same would have been occurred prior to the alleged incident and the vehicle would not have been able to cover such a long distance.  The complainant had never complained about any manufacturing defect prior to the alleged incident.  So the allegation of manufacturing defect is baseless and this complaint is not allowable as there is no deficiency in service from their part.  With the above contentions, 1^st opposite party prays for the dismissal of the complaint with their cost.

                 5. The main contentions of the 3^rd opposite party is as follows:  According to the 3^rd opposite party, the complainant is not a consumer of the 3^rd opposite party as there is no defective goods or deficiency in service from the part of the 3^rd opposite party.  Since the allegation is manufacturing defect for which the 3^rd opposite party is not liable or responsible.  There is no specific allegations of any negligence, deficiency in service or unfair trade practice against the 3^rd opposite party.  3^rd opposite party is a private limited company and as such the company is to be impleaded as a party to the proceedings and the service manager of the company is impleaded as the 3^rd opposite party and hence this complaint is bad for non-joinder or misjoinder of parties.  3^rd opposite party is an authorized dealer and service centre of the 1^st opposite party.    So the 3^rd opposite party can only act as per the terms of warranty and had acted accordingly.  Further, the complainant has not given the requisite consent for checking and effecting the repairs after opening the fuel pump and injector till date.  3^rd opposite party had acted properly and without any delay in attending the complaints of the complainant’s car.  3^rd opposite party tried to rectify the defect but it was not succeeded as major works are required due to the entry of water.  Since the complaint of the car is out of warranty, they have to get the permission of the complainant for doing the said repairs which was not given by the complainant in spite of the communications given to the complainant.  3^rd opposite party has been and is always ready and willing to do the repairs upon getting the consent of the complainant or on the instructions if given by the 1^st opposite party for doing the said work under warranty.  In the circumstances, the 3^rd opposite party cannot do anything further in the matter.  Thus they have not committed any deficiency in service.  With the above contentions, 3^rd opposite party prays for the dismissal of the complaint with their cost.

                 6. The main contention of the 4^th opposite party is as follows:  4^th opposite party admitted the sale of the diesel to the complainant.  According to them, they are the retail outlet of the 5^th opposite party and they are supplying the diesel to the customers received from the 5^th opposite party.  The supply of diesel was made after all required purity test as prescribed by law.  In the retail outlet proper facilities are also provided to the customers for testing the purity of the fuel before the purchase by the customers.  Further, the retailers including the 4^th opposite party ensure quality of the fuel daily before commencing the daily sales.  In the circumstances, the fuel supplied to the complainant is good in quality and is not contaminated as alleged.  Further, no complaints of contamination is brought to the notice of the 4^th opposite party ever including the day on which the complainant purchased the diesel.  Thus, there is no negligence or deficiency in service from their part.  With the above contentions, 4^th opposite party also prays for the dismissal of the complaint against them with their cost.

                 7. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                 8. The evidence of this complaint consists of the oral depositions of PWs 1 to 3 and CW1 and Exts.A1 to A8 series and Ext.C1.  After closure of evidence, 1^st opposite party filed argument note and the parties were heard.

                 9. The Point:-  The complainant’s case is that his vehicle manufactured by the 1^st opposite party broke down at about 1 a.m on 10.11.2013 at Thrissur while he was traveling to Mysore from Thiruvalla after filling diesel from the pump of the 4^th opposite party.  On intimation 3^rd opposite party attended the complaints of the vehicle.  But the complaint was not rectified and later it was taken to the workshop of the 3^rd opposite party.  After their check up, they observed that the complaint was due to the use of contaminated fuel and a major repair is required for rectifying the complaints and requested the complainant to give his permission for major repairs as there is no warranty for repairing the said complaint of the vehicle.

                 10. But according to the complainant, the complaint is due to manufacturing defect and hence the repairs are to be done under warranty, as the warranty is still in force.  But opposite parties 1 and 2 are not willing to repair the car under warranty by saying that complaints due to fuel contamination (entry of water) is out of the scope of warranty offered by the 1^st opposite party.  In the circumstances, the above said act of the opposite parties is a clear deficiency in service and opposite parties are liable to the complainant for the same.  Therefore, he prays for allowing this complaint as the brake down was due to manufacturing defect and entry of water in the fuel tank.

                 11. In order to prove the case of the complainant, complainant filed a proof affidavit in lieu of his chief examination along with certain documents.  On the basis of the proof affidavit, complainant was examined as PW1 and the documents produced are marked as Exts.A1 to A8 series.  Apart from the above evidences, 2 witnesses were also examined for the complainant as PW’s 2 and 3.  PW2 is an expert in the field of automobile, who is a retired Deputy Transport Commissioner and PW3 is the driver of the vehicle in question at the time of brake down.  Ext.A1 is the copy of the R.C. Book of the complainant’s vehicle.  Ext.A2 is the cash receipt dated 09.11.2013 issued by the 4^th opposite party for the sale of 43.86 litre of diesel to the complainant’s vehicle.  Ext.A3 is the copy of a letter dated 16.11.2013 issued by the complainant to the Kochi office of the 2^nd opposite party.  Ext.A4 is the e.mail letter dated 21.11.2013 issued by the 3^rd opposite party.  Ext.A5 is the e.mail letter dated 22.11.2013 issued by the 3^rd opposite party.  Ext.A6 is the e.mail letter dated 26.11.2013 issued by the 3^rd opposite party.  Ext.A7 is the copy of the advocate notice dated 29.11.2013 issued by the complainant to the opposite parties.  Ext.A8 to A8(b) are the postal receipts in respect of Ext.A7 advocate notice. 

                 12. On the other hand, the main contention of the 1^st opposite party is that the alleged breakdown of the complainant’s car is not due to any manufacturing defect and it is solely due to the prolonged use of contaminated fuel.  It is revealed by the inspection of the 3^rd opposite party as they observed water content in the diesel.  Since the vehicle is 8 months old and had covered about 9800 kms. and the vehicle was in perfect running condition till 10.11.2013, the allegation of manufacturing defect is baseless as the vehicle could not run this much kilometer if there would have been any manufacturing defect.  So they argued that there is no manufacturing defect as alleged by the complainant.

                 13. The contention of the 3^rd opposite party is that they are only the authorized service centre of the 1^st opposite party and they are not able to repair the vehicle under warranty in the absence of the permission of the 1^st opposite party for doing the repairs under warranty.  In this case, 1^st opposite party has not admitted the warranty as the alleged defect is not a manufacturing defect and the said defect was due to the use of contaminated fuel.  So it is the duty of the complainant to give permission for the repairs at his cost.  But he had not given permission to repair the vehicle in spite of their intimation to the complainant for the same.  Further, 3^rd opposite party had done everything in this case properly other than the repairs and hence there is no deficiency in service from their part.  With the above contentions, 3^rd opposite party argued for dismissing the complaint against them.

                 14. The main contention of the 4^th opposite party is that the diesel supplied to the complainant on the day of breakdown was not contaminated.  They are selling the diesel after ensuring its quality as prescribed by the concerned authorities.  The allegation of the said contamination raised by the 1^st opposite party and the 3^rd opposite party is baseless and is for escaping from their liability.  The complainant is not a regular customer of the 4^th opposite party and he had been purchasing fuel from various outlets of various companies.  In view of this, the allegation of the 3^rd opposite party that the defect of the vehicle was due to the prolonged use of contaminated fuel is baseless.  With the above contentions, 4^th opposite party also argued for dismissing the complaint against them.

                 15. Though opposite parties raised their contentions as above, they have not adduced any oral or documentary evidence in their favour.  But they have cross-examined the complainant and the complainant’s witnesses.

                 16. Apart from the above evidences, the Asst. Motor Vehicle Inspector who was appointed as the commissioner, filed his report, which is marked as Ext.C1 and he adduced oral evidence as CW1.

                 17. On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the parties have no dispute with regard to the sale of the vehicle the validity of the warranty, purchase of the diesel and the breakdown of the vehicle.  The only dispute is with regard to the cause of the breakdown of the car.  According to the complainant, the breakdown is due to the manufacturing defect. But according to the opposite parties 1 to 3 the breakdown is due to the prolonged use of contaminated fuel and it is not due to any manufacturing defect.  According to the 4^th opposite party, the breakdown is not due to the contamination of the diesel as the diesel sold by them is not contaminated.

                 18. In view of the above contentions and in the nature of this case, we are constrained to look into the evidences adduced by the experts for finding the real truth of this case as other evidences are not relevant.

                 19. As per Ext.C1 Commission Report, the commissioner stated as follows:  First injector which is in contact   with cylinder head is corroded and rusting was therein and it was replaced with a new injector and tried to start the vehicle.  But it was failed.  Thereafter he had replaced the 2^nd injector then also the attempt for starting the vehicle ended in failure.  Thereafter he replaced all the 4 injectors with brand new injectors and then the vehicle was started, it started and worked smoothly.  He also stated that he noticed diesel flooding on the walls of the injectors which reveals that no firing of fuel was pertaining in the cylinder, which shows that all the 4 injectors are damaged and no diesel was being injected to the cylinders properly as the plunger inside the injectors were damaged due to rusting.  Rusting will not happen due to diesel, but may happen due to the contamination of diesel due to water particles.  He further stated that the breakdown was due to jamming of the injector parts due to the presence of rust particles in injector parts.  The rusting of injector part will not happen in a day and it was happened due to the prolonged use of contaminated fuel.  In this case, all the injectors are damaged due to rust and the rusting is due to the contaminated fuel and his conclusion is that the breakdown is not due to any manufacturing defect.  But in cross-examination, CW1 the expert commissioner, who prepared Ext.C1 report stated that in Hyundai i20 vehicles there is an indicator light for showing fuel contamination if any and such an indicator is also seen in the vehicle in question.  But according to his report, rusting of injector will not happen in a day and it was happened due to the prolonged use of contaminated fuel.  The deposition of CW1 that the presence of the indicator lights in the vehicle in question and his report that the rusting of the injector parts of the vehicle in question was occurred due to the prolonged use of contaminated fuel are not corroborating.  Since an indicator light is in the vehicle, nobody can say that the said vehicle in question had been using contaminated fuel continuously as nobody will allow to drive the vehicle with contaminated fuel.  In the cross-examination, he further deposed that rusting will not occur if contaminated fuel is used only for a single day.  So the contention of 1^st and 3^rd opposite party and the evidence of CW1 is not sustainable.

                 20. At the same time, it is revealed from Ext.C1 and the depositions of CW1 and PW2 that the complaint of the vehicle in question is due to the complaints of the injectors.  It is further revealed that the vehicle had run only 9800 kms. from the date of its purchase and as such it is a new vehicle.  The injectors of the new vehicle should not become defective within a short time from its purchase.  At the same time, opposite parties 1 and 3 has not adduced any cogent evidence to show that the complaint of the vehicle in question is not due to any manufacturing defect.  Further, they ailed to prove that the complaint of the vehicle was due to the use of contaminated fuel. Thus the allegation of contaminated fuel is not proved.  Therefore, we find that the basic complaint of the vehicle is the complaints of injectors, which is an important part of a vehicle which cannot become defective within 9000 kilometer.  So it is clear that the complaints of the injector is none other than manufacturing defect.  So we find that the complaints of the complainant’s vehicle is due to the manufacturing defect of the injectors and hence opposite parties 1 to 3 are liable to rectify the defect of the vehicle in question under warranty conditions, as the warranty is not expired on the date of the breakdown of the complainant’s car.  Since fuel contamination is not found, we find no deficiency in service against the opposite parties 4 and 5.  The non rectification of the defects of the complainant’s vehicle by opposite parties 1 to 3 is a clear deficiency in service from the part of opposite parties 1 to 3.  Therefore, this complaint is allowable against opposite parties 1 to 3.  Though the above said act of the opposite parties put the complainant to mental agony and financial losses etc, he had not adduced any cogent evidence to substantiate his claims in the complaint. 

                 21. In the result, this complaint is allowed as follows:

1. 3^rd opposite party being the authorized service centre and the present custodian of the vehicle in question is directed to repair and return the complainant’s vehicle in perfect running condition within 20 days from the date of receipt of this order.
2. The 1^st opposite party is directed to pay the repairing cost to the 3^rd opposite party in view of the warranty provided by them.
3. Opposite parties 1, 2, and 3 are directed to pay an amount of Rs.10,000/- (Rupees Ten Thousand only) each as compensation to the complainant.
4. 1^st opposite party is further directed to pay an amount of Rs.10,000/- (Rupees Ten Thousand only) to the complainant as cost of this proceedings.
5. Opposite parties are directed to comply this order within 20 days from the date of receipt of this order.
6. In the event of non-compliance of this order by the opposite parties, complainant is allowed to repair his car at his cost and allowed to realize the repairing cost equally from opposite parties 1 to 3 and the cost and compensation ordered herein above with 10% interest from today till the realization of the whole amount.         

                 Declared in the Open Forum on this the 31^st day of October, 2014.

                                                                                      (Sd/-)

                                                                             Jacob Stephen,

                                                                                  (President)

Smt. K.P. Padmasree (Member – I)   :   (Sd/-)

Smt. Sheela Jacob (Member – II)      :   (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Dr. N. Damodharan

PW2  :  P.S. Jose

PW3  :  Vshnu Sasidharan   

Exhibits marked on the side of the complainant:

A1 :  Copy of R.C. Book of the complainant’s vehicle.

A2 :  Cash receipt dated 09.11.2013 issued by the 4^th opposite  

        party to the complainant. 

A3 :  Copy of a letter dated 16.11.2013 issued by the  

        complainant to 2^nd opposite party. 

A4 :  E.mail letter dated 21.11.2013 issued by the 3^rd opposite  

        party. 

A5 :  E.mail letter dated 22.11.2013 issued by the 3^rd opposite  

        party. 

A6 :  E.mail letter dated 26.11.2013 issued by the 3^rd opposite  

        party. 

A7 :  Copy of the advocate notice dated 29.11.2013 issued by the  

        complainant to the opposite parties. 

A8 to A8(b) :  Postal receipts of Ext.A7 advocate notice.

Witness examined on the side of the opposite parties:  Nil.

Exhibits marked on the side of the opposite parties:  Nil.

Court Witness:

CW1  :  Girish. S 

Court Exhibits:

C1  :  Commissioner’s Report

                                                                                (By Order)

Copy to:- (1) Dr. Damodaran. N, Palathitta Thundiyil House,   

                    Podiyadi.P.O., Thiruvalla Taluk,

                    Pathanamthitta Dist.

1.  Managing Director, Hyundai Motor India Ltd.,

     Jasola, New Delhi – 110 076,

              (3) Manager, Popular Motor World (P) Ltd.,

                   (Popular Hyundai), Sales Office, Sastri Road,

                   Kottayam.P.O., Kottayam – 1.

              (4) Service Manager, KTC Automobile (P) Ltd.,

                   Thrissur.

              (5) Proprietor, Pamba Fuels, Podiyadi.P.O., Thiruvalla.

              (6) Divisional Manager, Indian Oil Corporation Ltd.,

                   Divisional Office, Panampally Nagar, Kochi.

              (7) The Stock File.