BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.
Complaint No: 849 of 12.12.2014. Date of Decision: 27.06.2016.
Sheetal Vaid aged 32 years wife of Shri Sanjay Kumar Batra, resident of House No.3329, Street No.5, Kailash Nagar, Ludhiana.
..… Complainant
Versus
- Hyundai Motor India Ltd., np-54, Developed Plot, Thiru-v-ka Industrial Estate Ekkaduthangal Guindy, Chennai-32, through its Director/M.D.
- M/s. MRG Auto Private Limited, G.T. Road, Sherpur, Ludhiana, through its Manager.
- M/s. Pioneer Hyundai Service Centre, 2693/2, New Kuldeep Nagar, Basti Jodhewal, Ludhiana.
…..Opposite parties
Complaint under the Provisions of Consumer Protection Act, 1986
QUORUM:
SH. G.K. DHIR, PRESIDENT
MS. BABITA, MEMBER
COUNSEL FOR THE PARTIES:
For complainant : Sh. K.S. Bhogal, Advocate.
For OP1 : Sh. Vishal Gupta, Advocate.
For OP2 and OP3 : Sh. Harpreet Singh, Advocate for OP2 & OP3 (defence struck of vide order dated 15.04.2015)
ORDER
PER G.K. Dhir, PRESIDENT
1. Complaint under Section 12 of The Consumer Protection Act, 1986 (herein-after in short to be referred as ‘Act’) filed by complainant by claiming that she after purchase of i10 Hyundai car from OP2 on 11.01.2014 got the same insured from New India Assurance Company Ltd. with validity period from 11.01.2014 to 10.01.2015. This car was purchased from OP2, the authorized dealer of OP1 on assurance that the car is of good brand and has good response from the market. Ops represented as if there is warranty of five years of engine of new car and in case of defects, those will be removed free of costs. Complainant got regular check up of vehicle conducted. Two months prior to filing of the complaint, complainant felt problem in the engine because the same was emitting noise. Thereafter, complainant took the vehicle to OP3 on 13.10.2014. The same was kept by OP3 for 12 days, but despite that engine problem was not removed. Rather vehicle of complainant was returned by claiming that complainant will have to pay Rs.1,22,000/-. OP3 demanded Rs.70,000/- by claiming that repair of engine problem not covered by the insurance policy. Complainant used the vehicle for distance of 9000 Kms, but despite that the same was not working properly due to manufacturing defect. OP3 disclosed as if there is a crank problem in the engine of the car, but said problem was not removed. Complainant agitated the matter and thereafter Ops returned the vehicle by leaving the same at house of complainant. Complainant claimed to have suffered huge loss and mental tension and as such, she prays for grant of compensation/damages of Rs.1,00,000/-. Registered legal notice dated 29.10.2014 was served upon Ops through counsel Sh. J.S. Bhogal, Advocate, but Ops failed to do needful and that is why this complaint filed for seeking directions to Ops for replacement of vehicle with new one or repair the same free of costs. Compensation of Rs.80,000/- for physical as well as mental pain, agony and harassment and litigation expenses of Rs.10,000/- claimed.
2. In written statement filed by OP1, it is pleaded, interalia, as if complaint is frivolous; this Forum has no territorial jurisdiction and that complainant failed to establish the manufacturing defect in the vehicle. OP1 provides 24 months warranty of grand i10 car from the date of delivery to first purchaser irrespective of mileage. Under warranty, authorized dealer will either repair or replace any Hyundai genuine part i.e. acknowledged by HMIL to be defective in material or workmanship. Defective part after replacement will become the property of OP1. Replacement of complete vehicle is beyond the scope of warranty. As per information gathered from OP2 and OP3, vehicle in question was returned on 13.10.2014 at the mileage of 9009 Kms with concern of engine noise. It is claimed that thereafter vehicle was inspected and it was observed that engine needs overhauling because the oil pan (chamber) was damaged due to external impact and vehicle was driven in dry condition after leakage of engine oil. So damage to the engine took place due to driving of the same after leakage of engine oil. Further it was observed at that time, that damaged vehicle got repaired from unauthorized local garage. As damage was due to external impact/accident work and as such, job to be performed was not under the warranty. That fact is also recorded in the repair order dated 13.10.2014, which is signed by complainant also. Earlier the vehicle returned on 25.03.2014 at mileage of 3052 Kms; on 01.07.2014 at mileage of 4128 Kms and also on 01.10.2014 at mileage of 8287 Kms for accidental repair. It is claimed that complainant is facing problem due to frequent accidents and not due to any defect in the car. Frequency of accident affects the performance of the vehicle. The warranty clause not to apply due to negligence of proper maintenance as per owner’s manual. Even the warranty not to apply in respect of damage owing to misuse, abuse or accident etc. It is claimed that complainant failed to show the manufacturing defect despite the fact that it is the responsibility of complainant to prove the manufacturing defect and as such, complaint does not disclose any cause of action. OP1 deals with its dealers on principal to principal basis and as such it is not its vicarious liability for the errors/omissions committed by dealers. Registered office of OP1 is at Chennai and as such, this Forum has no jurisdiction. Each and every other averment denied and prayer for dismissal of complaint made.
3. Defence of OP2 and OP3 was struck of due to non-filing of written statement despite grant of numerous adjournments vide orders dated 15.04.2015.
4. Complainant to prove her case tendered in evidence her affidavit as Ex. CA along with documents Ex. C1 to Ex. C20 and even affidavit Ex. CB of Sh. Sanjay Kumar Batra tendered and then closed evidence.
5. On the other hand, Sh. Vishal Gupta, Advocate for OP1 tendered in evidence affidavit Ex. RA of Sh. Manish Kumar along with documents Ex. RW1/1 & Ex. RW1/2 and then closed evidence.
6. Written arguments submitted by OP1, but not by complainant. Oral arguments heard and record gone through carefully.
7. As per law laid down in case of Gulzar Abdul Rahim Mulla Vs Manager, Auto Industries Goa Pvt. Ltd. & others 2004(4) C.P.J. 226 (Goa State Consumer Disputes Redressal Commission, Panaji), it is not always necessary for the consumer to give expert testimony because if the documentary evidence in the form of job cards, letters from dealers/authorized service points of the Ops themselves lean in favour of holding the existence of major defects, then consumer complaint liable to be accepted. So the overall material placed on record has to be taken into consideration for finding, if really major defects in the vehicle under warranty are there or not. In case the major defects established without report of the expert, then allegation of deficiency in service and of adoption of unfair trade practice to be deemed as proved, due to which manufacturer and dealer will be jointly liable to refund the price with interest along with compensation and mental agony. In holding this view, we are fortified by the law laid down in Kinetic Engineering Ltd. & another Vs Kanan Bala Biswal and another 2009(1) C.P.J. 500 (Orissa State Consumer Disputes Redressal Commission, Cuttack). The joint verification report of the members of District Forum along with non submission of written version by manufacturer/dealer even can be considered as the circumstances for holding as if there is manufacturing defect, is virtually ratio of the above cited case.
8. Even Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled as Scooters India Limited and another Vs Madhabananda Mohanty and others 2005(2) C.P.J. 136, has held that new vehicle is bound to be mechanically perfect, but if the same found defective, then complainant entitled to seek replacement or refund of the price. Further it is held in this reported case that warranty is given for whole of the vehicle and would be breached even if no individual part could be identified as defective. Expert testimony not always necessary is also the ratio of above cited case. Liability is upon the manufacturer to maintain sufficient repair facilities reasonably close to all areas, where vehicles are sold, is also law laid down in the above cited case. So in view of cited cases, submission of complainant has force that even if expert evidence not proved, despite that in case the material available on record points out to the manufacturing defect or major defects, then replacement of the vehicle should be ordered.
9. It is vehemently contended by Sh. K.S. Bhogal, Advocate for complainant that though vehicle purchased on 11.01.2014, but problem of crank as well as of engine noise erupted when the vehicle travelled distance of 9009 Kms. It is vehemently contended by counsel for complainant that no accident took place, but the minor scratches suffered due to natural wear and tear and as such, due to defect in the engine, Ops liable to replace the vehicle or refund the price amount, particularly when these defects occurred during warranty period of 2 years. These submissions stoutly opposed by counsel for OP1 by contending that vehicle visited premises of OP2 and OP3 due to impact of accident. Besides the vehicle was driven despite leakage of engine oil resulting in the problem in question and as such, Ops not liable for negligent acts of complainant, is also submission of counsel for OPs.
10. Ex. C1 to Ex. C6 and Ex. C8 are the documents produced to show that the vehicle in question was purchased by complainant from OP2 and thereafter, the same was got registered with Motor Vehicle Registration authority. Insurance of the vehicle got done for period from 11.01.2014 to 10.01.2015 is a fact borne from contents of Ex. C7, the insurance cover note. Delivery of the car was got by complainant from OP2 through Ex. C8 on 11.01.2014.
11. Repair order Ex. C9 dated 25.03.2014 shows that the car in question travelled distance of 3052 Kms up to that date. In Ex. C9, it is mentioned as if accidental repair carried out. Ex. C10 is the invoice/cash memo showing as if accidental service qua LAMP ASSY-RR COMBINATION RH; MIRROR ASSY-RR VIEW O/S; BRACKET-RR BUMPER SIDE MTG.RH; BRACKET-RR BUMPER SIDE MTG.LH; COVER-RR BUMPER; RETAINER ASSY-BUMPER COVER MTG parts done by changing them and the invoice issued in name of insurer i.e. New India Insurance. Such parts of bumper or of lamp or of the mirror as such were got changed by complainant on 27.03.2014 for carrying out accidental repair. Ex. C12 repair order dated 03.02.2014 shows as if the vehicle brought for free service at the time when it travelled mileage of 1125 Kms. For general check up this vehicle taken on 04.02.2014 itself when it travelled mileage of 1133 Kms is a fact borne from Ex. C13, card/invoice dated 04.02.2014. Ex. C14 the invoice cash memo dated 04.07.2014 shows as if the vehicle was brought for accidental repair when it covered mileage of 4128 Kms. This invoice is also in the name of New India Insurance, even though the others like Ex. C13, Ex. C12, Ex. C11 are in the name of complainant herself. Ex. C15 is the invoice/cash memo showing as if the vehicle brought on 01.10.2014 to OP3 for washing and cleaning at the time when it travelled mileage of 8287 Kms. Policy schedule cum certificate of insurance Ex. C16 to Ex. C19 along with pollution control certificate Ex. C20 are also produced in evidence by complainant. So from the documents produced by complainant herself, it is made out as if the vehicle in question taken for accidental repair on 25.03.2014 and 04.07.2014. Ex. RW1/2 is the document produced by Ops to prove that the damage to the oil pan (chamber) was due to external impact and as such, the same is not covered by the warranty. As change of the bumper, mirror etc. took place due to accidental impact is a fact borne from the record produced by complainant as discussed above and as such, certainly submission advanced by counsel for Ops has force that defects in the vehicle or in the engine took place because of the accidental impact.
12. Clause No.3 of the terms and conditions of the warranty policy contained in Ex. RW1/1 provides that warranty not to be applied to, “Damage resulting from “misuse, abuse, accident, theft, flooding or fire”. As damage to the vehicle in question caused due to accidental impact and as such, submission advanced by counsel for Ops has force that actually manufacturing defect in the vehicle is not established. Rather due to accidental impact the defects of engine noise or of damage to oil pan (chamber) took place and as such, certainly complaint has been filed by concealing material facts. As required services provided by Ops and for the accidental repair, charges claimed as per terms and conditions of the warranty and as such, in the absence of any kind of proof of manufacturing defect, certainly deficiency in service on the part of Ops cannot be inferred. Even unfair trade practice on the part of Ops is not proved.
13. In case Sumeet Aggarwal Vs Pioneer Honda & another 2011(1) C.P.J. 347 (Punjab State Consumer Disputes Redressal Commission, Chandigarh) vehicle was frequently taken to workshop, which itself was found to be proving something wrong in working and that is why compensation was granted with direction of repair. However in the case before us, accidental repair got carried out twice, which in fact is not the position in the cited reported case and as such, benefit from the ratio of above cited case cannot be availed by counsel for complainant.
14. As a sequel of above discussion, complaint dismissed with no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
(Babita) (G.K. Dhir)
Member President
Announced in Open Forum.
Dated:27.06.2016.
Gobind Ram.
