BEFORE THE GOA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

PANAJI-GOA

In the matter of First Appeal 67 of 2019 in Consumer Complaint 36 of 2016.

Before:  Dr. Nagesh S. Colvalkar, Member

     Adv.Ms.Rachna Anna Maria Gonsalves, Member

Adv. Shankar Mukund Phadte,

H. No. 109, Shankar Smruti,

Ekoshi, P.O. Betim,

Bardez, Goa.                                          ..…Appellant

V.

Hyundai Motor India Ltd.,

Office at 2^nd, 5^th & 6^th Floor,

Corporate one (Baani Bldg.)

Plot No. 5 Commercial Center,

Jasola, New Delhi. 110025.                .....Respondent-1

M/s Counto Automobiles Pvt. Ltd.,

Represented by its Managing Director,

Sukerkar Mansion,

Opp. Govt. Printing Press,

Panaji, Goa.                                         .....Respondent-2

Appellant present in person.

Adv. Shri. S. Parodkar holding for Adv. S. Karpe present for Respondent-2.

Respondent-1 absent.

Date: 11/08/2023

JUDGEMENT

[per Adv. Ms. Rachna Anna Maria Gonsalves, Member]

1. The Judgment and Order arises out of Appeal FA/67/2019 challenging the Order passed by the District Commission, North dated 31/07/2019.

2. The Appellant herein were the Original Complainant and the Respondents herein were the Opposite Parties at the District Commission, North.

3. Being aggrieved by the Order passed by the District Commission, North, the Appellant have filed the Appeal.

4. The brief facts are herein mentioned below:-

1. The Appellant/Complainant, a lawyer by profession purchased a four wheeler vehicle. Hyundai Verna VTVT 1.6 BS IV by paying an amount of Rs.8,07,393/- on 09/02/2013 which was manufactured by the Respondent No. 1 and the said vehicle was purchased through the Respondent  No. 2 who was the dealer and authorised service provider for the said vehicle which was delivered to the Appellant on 14/02/2013. And the Appellant was not quite satisfied with the performance of the vehicle with respect to pick up and the mileage.

2. As stated by the Appellant that on the intervening night of 12/05/2014 and 13/05/2014, at 2.30 hours, the vehicle caught fire when it was parked in front of the Appellant’s/Complainant’s house and   the front part of the vehicle was burnt. Further the Complainant lodged complaint with Respondent No.2 of manufacturing defect to the said vehicle and called upon Opposite Party No. 2 to inform Opposite Party No. 2 about the exact cause of fire and it is further alleged that the Opposite Party informed the Complainant that the Technical Team of the Respondent No. 1 would visit on 21/05/2014. Additionally at the same time the said representative of Respondent No. 3 advised the Complainant to process the insurance claim and offered assistance for the same.

3. Further to the aforesaid that in the course of the Police Investigation the Motor Vehicle  Inspector attached to the office of the Assistant Director of Transport, Mapusa, conducted the inspection of the vehicle on 19/05/2014 and in the report submitted by the Motor Vehicle Inspector it was observed that the cause of the fire could not be ascertained as  most of the vital parts of the vehicle was burnt and charred and it was particularly observed in the report that the front bonet and the total engine was burnt, battery and radiator burnt and that the vehicle could not be road tested due to the impact of the accident.

4. Additionally on 20/05/2014, the vehicle was inspected by the Technical Expert of Respondent No. 1 at the workshop of Respondent No. 2 and the area was inspected where the car had caught fire and samples were collected of the charred components from the said site.

5. The vehicle was also inspected by surveyor Dhanesh Y. De who was deputed by the insurance provider ICICI Lombard General Insurance Co. Ltd., in his report observed that the vehicle parts were badly impacted and damaged and also identified the different Parts which are damaged/charred.

6. Also for the purpose of preparing a repair estimate the said vehicle was further assessed and inspected by the team of service station of Respondent No. 2 wherein the repair estimate was submitted on 24/05/2014 which was estimated at Rs.13,35,139.41/- signifying the extent of loss and damaged caused to the vehicle, which far exceeded the cost of the vehicle.

7. It is further submitted by Appellant that there was no report of the Fire Officer, M.V. Inspector, Insurance Surveyor or the investigation conducted by the Police to find any mention of incriminating material to suggest any possibility of an outside source as the cause of the accident.

8. On 23/06/2016, the Appellant/Complainant received a mail from the representative of the Respondent No. 2, wherein it was stated that the “inspection of the vehicle was conducted and after thorough check-up it was found that the vehicle caught fire due to an external source” to which the Appellant/Complainant wrote back to the Respondents vide mail dated 25/06/2015 and sought the copy of the investigation report.

1. It is further submitted by Complainant that representative of Respondent No. 2 forwarded a letter from Mr. Shyam Menon (Regional Parts Service Manager) who reiterated that the fire was caused on account of external source and further this Complainant hence addressed a mail dated 10/07/2014 to the Regional Parts Manager of Respondent No. 1 the Managing Director of Respondent No. 2 and their representative stating that their statement is vague and baseless. Further to which the Complainant called upon the Respondents to honour the warranty and to provided with a new car of the same make within 15 days from the date of the letter to which the Respondent chose not to reply to the mail but instead the customer care manager of Respondent No. 2 instructed the Complainant to meet the Managing Director of Respondent No. 2 to work out a settlement but no settlement could be arrived at, as according to the Respondent did not take-up the issue with the seriousness it deserved.

10. As stated by the Appellant/Complainant that he had to hire an Alto Car for about three months i.e. June 2014 - August 2014 and thereafter a Maruti Celerio Car from September 2014 to October 2014 hence  incurring a cost of Rs.15,000/- per month.

11. The Appellant/Complainant further stated that the fire occurred in the car on account of some electrical fault in the car. That the cause of action for filing the complaint first arose on 13/05/2014 when the car caught fire and therefore in the month of October 2014 when the Respondents declined settlement and replacement of the car which was under warranty.

5. The Appellant/Complainant prayed that:

1. The Respondent Nos. 1 and 2 jointly and severally be directed to refund the on road value of the car of the same make as on date which is Rs.10,27,290/-. The Respondent Nos. 1 and 2 be jointly and severally be directed to compensate for the loss suffered by the Complainant on account of the instalments and loss of utility of the car vehicle is quantified at Rs.51,600/- and towards the loss of interest amounting to Rs.18,516/-

2. The Respondents be jointly and severally directed to pay an amount of Rs.75,000/- towards the reimbursement of the cost incurred by the Complainant for hiring a car for his personal use.

3. The Respondent Nos. 1 and 2 be jointly and severally be directed to pay consolidated damages of Rs.1,50,000/- towards the emotional stress and physical hardships and the loss caused on account of negative leveraging of social status and standing. Hence being aggrieved, the Complaint was filed.

4. The case of Opposite Party is that the Complainant has to prove the manufacturing defect and hence resisted the complaint.

5. That the Complainant has failed to prove with cogent and direct evidence that due to manufacturing defects, the front portion of the said vehicle burst into flames or there was short circuit resulting in fire to the stationery vehicle.

6. That the Opposite Party No. 1 had raised preliminary objections and further contended that the Complaint is barred by limitation and that the Commission has no Territorial Jurisdiction furthermore the Complainant suppressed material facts with respect to the settlement of the insurance claim by ICICI General Insurance Company Ltd. to the satisfaction of the Complainant and additionally that the Complainant had already claimed insurance on account of accidental fire, also that the Complainant is not a consumer qua the Opposite Party No. 1 and hence cannot turn around and file complaint for manufacturing defect in the said vehicle, thus the Complaint is not maintainable.

7. That the Complainant further examined himself and Mr. Kashinath Halarnkar, Vijay Laxman Bhike. Additionally expert opinion of Mr. Ameya Kerkar was produced.

8. That the Complainant had filed additional Affidavit-in-Evidence. Opposite Party No.1 examined its authorized representative Aditya Sharma. Also Thermal Inspection of the investigations carried on examination by Mr. Nupur Borgohain, Head of Technical Support Team of Opposite Party No. 1. Also Opposite Party No.2 examined Sayeesh Kerkar, Service Manager of Opposite Party No. 2.

1. The Order passed by District Commission, North, dated 31/07/2019 dismissed the Complaint. Hence being aggrieved by the Order passed by District Commission, North, dated 31/07/2019, the Complainant preferred Appeal.

10. Opposite Party filed Written Version and both Parties filed Affidavit in Evidence and Written Argument before District Commission, North.

11. Both Parties filed Written Arguments before this Commission and we heard Oral Arguments of both the Parties.

• We observed that the Order of District Commission, North, rightly pointed out that it is not established by the Complainant that the short circuit is due to a manufacturing defect in the said vehicle and it is not for the Opposite Parties/Respondents to prove the manufacturing defect.

13. Also that the Complainant has claimed insurance claim for the total loss of the vehicle from his Insurance Co. ICICI Lombard General Insurance Co. Ltd, Panaji, due to accidental fire of the said vehicle and this fact of settlement of the claim is suppressed by the Complainant. The Order also noted that the Complainant has only produced one unsigned Motor (final) survey Report (Loss Assessment).

• The Order also pointed out that the Complainant has not only come with unclean hands but also is guilty of suppressing the material facts which sufficiently discloses the insurance claim amounting to Rs.4,88,000/- which was processed and was satisfactorily accepted the claim from the insurance company.  

• The Appellant, we find, has failed to produce any evidence to show that the fire was caused due to manufacturing defect in the vehicle and as per the requirement of Section 13 of CPA 1986 no expert report has been produced. Whereas the Respondent had produced a through Thermal Inspection report which provided that the Thermal incidence was not due to any manufacturing defects/shortage in electric circuit/fuel leakage, and also that no abnormality was found in the vehicle and the same was communicated to the Appellant.     

16. We are in complete agreement with the Order of the District Commission, North, in paragraphs 25 and 26, where in the Complainant failed to established that sudden fire in the front portion of the said car was due to manufacturing defect and also that since the Complainant had failed to established that the said vehicle was defective, was hence not entitled for any reliefs as claimed by the Complainant.

17. We find that the Complainant has clearly suppressed the fact that he has accepted the insurance claim in full and final settlement of the damaged caused to the vehicle and therefore on this ground itself the Complainant is not entitled for any reliefs.

18. Additionally also no documents pertaining to Insurance claim were produced by the Complainant except for loss assessment report. Therefore we concur that the Appellant has approached the Commission with unclean hands, even though this is a beneficial legislation for the consumers who knock on the doors of courts seeking justice, the Complainant/Appellant has chosen otherwise and approached this Commission suppressing material facts and thus leaving the Commission unable to grant reliefs in the said Appeal.

19. Hence we pass the following:

ORDER

1. The Appeal is dismissed.
2. In the facts on the matter there shall be no Order as to Costs.
3. Proceedings in the matter stands closed.
4. Pronounced on 11/08/2023, ready on 05/09/2023.

  [Dr. Nagesh S. Colvalkar]

Member

[Adv. Ms. Rachna Anna Maria Gonsalves]

Member

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