IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT S I L I G U R I.
CONSUMER CASE NO. : 28/S/2016. DATED : 12.02.2018.
BEFORE PRESIDENT : SMT. KRISHNA PODDAR,
President, D.C.D.R.F., Siliguri.
MEMBER : SMT. PRATITI BHATTACHARYYA.
COMPLAINANT : SRI SWAPAN KUMAR BANERJEE,
S/O Late Satya Ranjan Banerjee,
aged about 67 years, Hindu by faith,
Business by occupation, residing at Usha Villa,
3rd Floor, Lala Lajpath Roy Road, Ashrampara,
P.O. & P.S.- Siliguri, Dist.: Dajeeling – 734 001.
O.Ps 1. : HYUNDAI MOTOR INDIA LTD.,
a limited company within the meaning of the
Companies Act, 1956 having its registered office at
2nd, 5th & 6th Floor, Corporate One (Baani Building),
Plot No.5, Commercial Centre, Jasola,
New Delhi – 110 025.
2. : HYUNDAI MOTOR INDIA LTD.,
Infinity Benchmark, 8th Floor, Plot-G1,
Block-EP & GP, Sec-V, Salt Lake,
Kolkata – 700 091.
3. : KOUSHAL HYUNDAI,
A unit of Kaysons Infrastructure Private limited
company within the meaning of the Companies Act,
1956 having its registered office at Paul Para, NH-31,
Opposite Jesu Ashram, Matigara,
P.O. & P.S.- Matigara.
4. : M/S S.S. TYRES,
Labanya Weigh Bridge,
Dajreling More, P.O. & P.S.- Pradhan Nagar,
Dist.- Darjeeling.
FOR THE COMPLAINANT : Sri Saurab Sarkar, Advocate.
FOR THE OP Nos.1 & 2 : Sri Satadal Gupta, Advocate.
FOR THE OP No.3 : Sri Marjit Sarkar, Advocate.
J U D G E M E N T
Smt. Krishna Poddar, Ld. President.
The brief facts of the complaint case are that on 26.11.2015 the complainant purchased one i20 Active Car from the OP No.3 and took delivery of
Contd….P/2
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the same. OP Nos.1 & 2 is a Limited Company engaged in manufacturing and selling of passenger cars throughout India and OP No.3 is a Private Limited Company engaged in selling of passenger car manufactured by OP Nos.1 & 2. On 21.11.2015 complainant noticed that the front right hand side tyre of the car has gone flat. The complainant then replaced the flat tyre with the spare tyre. The complainant took the flat tyre to a nearby tyre shop where he was informed that there is manufacturing defect of the tyre and the same is not in a position to be repaired. Complainant then contacted Sri Dipesh Gurung, Service Manager of the OP No.3 and intimated him the very facts and then Dipesh Gurung advised him to visit the workshop of OP No.3 on 30.11.2015. On 30.11.2015 the complainant visited the workshop of OP No.3 wherein the flat tyre was inspected by Sri Dipesh Gurung and he advised the complainant to take his car to the OP No.4 and deposit the defective tyre by removing the same from the alloy wheel as the OP No.4 is having the specified tools and qualified labours for the said job. As per his advice the complainant on 30.11.2015 took his car to the OP No.4 where the flat tyre was removed from the alloy wheel by OP no.4 and the said tyre was kept in the custody of OP No.4 as per direction of the OP No.3. The OP No.3 informed the complainant that he has to leave the flat tyre with OP No.4 as the same is required to be inspected by the tyre manufacturing company. The complainant thereafter several times made contact with the OP No.3 for knowing the status of his claim with regard to the flat tyre and after lapse of almost one month, the OP No.3 informed the complainant that his claim has been rejected. Due to such reckless and irresponsible behaviour of the OP No.3 the complainant was restricted to use his new car and the complainant and his family members are availing rental car for outstation business and personal visits and they have to pay huge amount of money for the same. The OP Nos.1, 2 & 3 are duty bound to replace the said flat tyre with a new one as the same was within the warranty period and no reason whatsoever has been shown by the OPs for refusal of the claim of the complainant.
The OPs are jointly guilty of unfair trade practice and deficiency in service and on account of dereliction of duty and negligence on the part of the OPs the complainant suffered harassment mental agony and loss of professional practice for which the complainant is entitled to compensation, hence this case.
OP Nos.1, 2 & 3 entered appearance and contested the case by filing two separate written versions. OP No.4 received notice but did not turn up to contest the case, hence the case was proceeded exparte against the OP No.4.
Contd….P/3
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It has been submitted by OP Nos.1 & 2 being the manufacturer of the vehicle that they have no role in the retail sale of vehicle and they deal with the dealers on a principle to principle basis. It has been further contended by OP Nos.1 & 2 that no cause of action has arisen against the Hyundai Motor India Limited and as the allegations are against tyre company, the said tyre company was required to be impleaded as a party for proper adjudication of the case. It has been further stated by OP Nos.1 & 2 that the owners’ manual clearly specifies that “batteries, audio systems, tyres and tubs originally equipped on Hyundai Vehicle are warranted directly by the respective manufacturers and not by the OP Nos.1 & 2 and the relevant portion of the manual book is as follows : “ (iii) …………. batteries, audio systems, tyres and tubs originally equipped on Hyundai vehicles are warranted directly by the respective manufacturers and not by HMIL”. It has been further contended by the OP Nos.1 & 2 that there is no deficiency in service on the part of the OP Nos.1 & 2 and as such this case is not maintainable against OP Nos.1 & 2 and liable to be dismissed.
OP No.3 is contesting the case by filing a separate written version wherein it has been contended that the case of the complainant suffers from non-joinder of necessary parties. It has been further contended by OP No.3 that OP No.3 is a show room and not a tyre manufacturer and the alleged defect of tyre of the vehicle is not as per the mentioned terms of the owners’ manual. It has been stated by the OP No.3 that OP No.3 is only tried to help the complainant and the complainant was told in numerable times that the claim should be addressed directly to the tyre manufacturer and the OP No.3 on behalf of the complainant intimated the problem to the tyre manufacturer and initially sought the help of the OP No.4 but the complainant for reasons best known to him kept on misbehaving and trying to allege the OP No.3 for a service, the OP Nos.3 is not duty bound to provide as already before purchase of the vehicle made clear by way brochure and in view of above submissions the OP No.3 prays for dismissal of the case with cost.
To prove the case, the complainant has filed the following documents:-
1. Tax Invoice No.KIPL/00416/2015-12 dated 26.11.2015.
2. Money receipt being No.2327 dated 26.11.2015.
3. Money Receipt being No.2328 dated 26.11.2015.
4. 13 nos. bills issued by Raju Travels.
Complainant has filed examination-in-chief supported by affidavit.
Complainant has filed written notes of argument.
OP Nos.1 & 2 have filed examination-in-chief.
Contd….P/4
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OP Nos.1 & 2 have filed Written Notes of Argument.
OP No.3 has filed examination-in-chief by way of affidavit.
Points for determination
1. Whether the instant case is bad for mis-joinder and non-joinder of necessary parties ?
2. Whether there is any deficiency in service on the part of the OPs ?
3. Whether the complainant is entitled to get any relief as prayed for ?
Decision with reason
All the three issues are taken up together for the brevity and convenience of discussion.
This is the specific case of the complainant that on 26.11.2015 the complainant purchased i20 Active Car from the OP No.1 vide Invoice No.KIPL/00416/2015-16 and took delivery of the same and on 29.11.2015 the complainant noticed that the front right hand side tyre of the vehicle has gone flat. Complainant then replaced the flat tyre with the spare tyre and he took the flat tyre to a nearby tyre shop where he was informed that there is manufacturing defect of the tyre which cannot be repaired. Thereafter, the complainant made contact with Dipesh Gurung, the Service Manager of OP No.3 and reported him the entire facts and as per advice of Dipesh Gurung he visited the workshop of OP No.3 on 30.11.2015 with the vehicle wherein the flat tyre was inspected by Dipesh Gurung and he advised the complainant to take his car to OP No.4 and deposit the defective tyre by removing the same from the alloy wheel. As per advice of OP No.3 the complainant on 30.11.2015 took his car to OP No.4 where the flat tyre was removed from the alloy wheel by the OP No.4 and the said tyre was kept in the custody of OP No.4 as per direction of OP No.3. The OP No.3 informed the complainant that he has to leave the flat tyre with OP No.4 as the same is required to be inspected by the tyre manufacturing company. The complainant thereafter several times made contact with OP No.3 to know the status of his claim with regard to the flat tyre and after lapse of almost one month the OP No.3 informed the complainant that his claim has been rejected. The OPs are jointly guilty of unfair trade practice and deficiency in service and due to negligence and dereliction of duties on the part of the OPs, the complainant suffered loss and injury, harassment and mental agony.
In order to substantiate the case the complainant has submitted his examination-in-chief by way of affidavit and relevant documents which have been marked annexure 1 to 4 respectively.
Contd….P/5
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The OP Nos.1 & 2 and OP No.3 also led evidence by way of affidavit.
It is admitted fact that complainant has purchased one i20 Active Car from the shop room of OP No.3 on 26.11.2015. Complainant also submitted the invoice and money receipt in respect of purchase of the said vehicle.
The case of the complainant is that he purchased the vehicle on 26.11.2015 from the shop room of OP No.3 and on 29.11.2015 he noticed that the front right hand side tyre of the vehicle has gone flat. It is expected that when the complainant ascertained that the front right hand side tyre of the vehicle in question has gone flat he must inform the OP No.3 from where he purchased the vehicle about the defect of tyre but here we find that complainant instead of doing so, he himself replaced the flat tyre with the spare tyre and then he took the flat tyre to a nearby tyre shop for inspection. Complainant claimed that the said tyre shop after inspection of the tyre informed him that there was manufacturing defect of the tyre and the same is not in a position to be repaired. But in this regard, complainant has failed to file any document/report of the alleged tyre shop. In order to establish the manufacturing defect of the tyre in question it was necessary to submit the expert’s view but the complainant did not file any document to establish that there was manufacturing defect of the tyre and the same was not in a position to be repaired. The further case of the complainant is that he made contact with Dipesh Gurung, the Service Manager of the OP No.3 and according to the advice of said Dipesh Gurung he visited the workshop of OP No.3 on 30.11.2015 with the vehicle wherein the flat tyre was inspected by Dipesh Gurung and said Dipesh Gurung advised the complainant to take car to OP No.4 and deposit the defective tyre by removing the same from the alloy wheel and as per advice of OP No.3 the complainant on 30.11.2015 took his car to OP No.4 and the OP No.4 removed the flat tyre from the alloy wheel and kept the tyre in the custody of the OP No.4 as per direction of OP No.3. But in this regard, save and except the oral testimony of the complainant not a single document is furnished before this Forum. It is not established by sufficient cogent evidence that the complainant as per advice of Service Manager of OP No.3 visited the workshop of OP No.3 on 30.11.2015 and then the Service Manager of OP No.3 Dipesh Gurung inspected the tyre in question and advised him to take the tyre to OP No.4 and deposit the same to OP No.4 on the plea that the said tyre is required to be inspected by the tyre manufacturing company. It is expected that if the defective tyre is removed by the OP No.4 and kept in his custody the complainant must claim a receipt in this regard from the OP No.4 in order to establish his claim.
Contd….P/6
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In this case complainant has made OP Nos.1 & 2 as party. This is the case of the complainant that immediate after purchase of the vehicle he noticed that the front right hand side tyre of the vehicle has gone flat. But from the statement of the complainant as well as evidence of both sides, we find that OP No.1 & 2 are the manufacturer of the vehicle in question but they are not the manufacturer of the tyre.
In this regard, on the side of the OPs one owners’ manual cum Hyundai Warranty Policy has been submitted. The owners’ manual clearly states that “batteries, audio systems, tyres and tubes originally equipped on Hyundai vehicle are warranted directly by the respective manufacturers and not by HMIL” and not covered by the warranty.
From the above discussion we find that OP No.1 & 2 are the manufacturer of the vehicle in question and OP No.3 is the dealer. The owners’ manual further disclosed that batteries, audio systems, tyres and tubes originally equipped on Hyundai vehicles are warranted directly by the respective manufacturers and not by HMIL. As the allegation of the complainant is in respect of the front right side tyre which was found flat immediate few days of purchase, so, the complainant was required to make the tyre manufacturing company as a party but in this case the complainant did not take any initiative to implead the tyre manufacturing company as a party. Complainant also failed to submit any document to establish that few days after purchase of the vehicle the front right hand side tyre has gone flat. In this case complainant has failed to establish his claim by adducing sufficient cogent evidence. Under such circumstances, this Forum is of the view that the complainant’s case is not established by sufficient cogent evidence and as such the complainant is not entitled to get any relief.
In the result, the case fails.
Hence, it is
O R D E R E D
that the Consumer Case No.28/S/2016 is dismissed on contest against the OP No.1, 2 & 3 without cost and dismissed exparte against the OP No.4 but without cost.
Let copies of this judgment be supplied to the parties free of cost.
