| Final Order / Judgement | OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI-03 C.C.42/2010 Present:- 1) Md.Sahadat Hussain, A.J.S. - President 2) Smti ArchanaDekaLahkar - Member 3) Md Jamatul Islam -Member Dr Rekibuddin Ahmed -Complainant S/O- Lt Sirajuddin Ahmed R/O- Six mile, Khanapara,Chandan Nagar Tribeni Path, H.No-43(A),Guwahati-22 Kamrup(M),Assam -VS- 1) Hyundai Motor India Ltd. -Opp.party East Regioanl Office -Plot No-F-4 Ground Floor,Block-GP,Sector-V, Salt Lake City ,Kolkata-700091 Represented by is Chairman & CEO 2) Mukesh Hyundai Represented by the Branch Manager, Kushan Plaza,Ganeshguri,Guwahati-06 Kamrup(M),Assam 3. Office Manager/ Depot Supervisor MRF Limited ,N.H.-37,Near Indira Bhawn Guwahati-781022,Khanapara Appearance: Ld advocate Ms Mompi Sutradhar for the complainant and Ld advocate Shri Gitumoni Deka for the Opp. Party No-2 and Ld advocate Shri P.C. Goswami for Opp.Party No-3. Date of oral argument -09/01/2018 and 27/08/2018 Date of judgment - 01/10/2018 JUDGMENT This is a proceeding U/S- 12 of the Consumer Protection Act, 1986 - The complaint filed by Dr Rekibuddin Ahmed against Hyundai Motor India Ltd., East Regional Office , Salt Lake City,Kolkata-700091 , Mukesh Hyundai represented by Branch Manager ,Ganeshguri ,Guwahati-06 and Office Manager/Depot Survisor -MRF Ltd. ,Guwahati-22 was admitted on 12/04/2010 anfd notices were served upon them and Opp.Party No-1 and 2 severally filed their written statements, and Opp.Party No-3 also filed their written statement seperately. The complainant filed his evidence in affidavit on 25/09/2013 and he was also cross examined by Opp.Party No-2 and 3 seperately but Opp.Party No-1 side failed to cross examine CW-1 ; and accordingly this forum did not allow further time to Opp.Party No-1 to cross examine CW-1 vide order dtd. 04/12/2015 but fixed the day of 28/04/2016 for filing evidence by the opp. parties and they also got several dates for filing evidence ;and on 05/01/2017 , Opp.Party No-1 and 2 informed this forum that they have declined to file evidence and on that day Opp.Party No-3 is found absent without steps and hence , this forum on that day passing an order closed of hearing of the evidence of opp. party and fixed the day of 21/02/2017 for filing written argument by the parties and Opp.Party No-3 side’s Ld advocate Mr Pulin Chandra Goswami filed written argument for the Opp.Party No-3 and on 15/06/2017 Ld advocate Ms Mompi Sutradhar filed written argument for the complainant and on that day Ld advocate Ms Gitumani Deka filed written argument for Opp.Party No-2 and thereafter on 03/08/2017 Ld advocate Ms T.Devi filed written argument for Opp.Party No-1 .Thereafter, on 09/01/2018, Ld advocate Ms Mompi Sutradhar forwarded oral argument for the complainant side , Ld advocate Ms Gitumoni Deka for Opp.Party No-2 and Ld advocate Mr Pulin Ch Goswami for Opp.Party No-3 biut on that day time was allowed for Opp.Party No-1 for forwarding their oral argument on 27/03/2018 but Opp.Party No-1 is failed to forward their oral argument and on 24/05/2018 the complainant side’s Ld advocate filed an additional written argument . Thereafter , on 27/08/2018 we have heard further oral argument of ld counsel of the complainant and the reply argument of Ld counsel of Opp.Party No-2 and today we deliver the judgment which is as given below:
- The case of the complainant, in brief, is that , the vehicle of the complainant which is a car, model- Santro GL , Chassis No-MALAA 51Hr8M352942H, Engine No-G4HGAN587437 ,Key No-R-0146,Registration No-AS01AJ3794, which was purchased from Opp.Party No-2 on 27/12/2008 at a consideration of Rs.3,02,591/- excluding the charge for accessories and registration, on being financed by Axis Bank Ltd. ,Guwahati showed some irregularities like balancing problem beyond reasonable understanding; and about that on 12/02/2009 at the time of 1st free servicing he informed about the irregularities ; and again on 03/06/2009 at the time of 2nd free servicing he again mentioned the said irregularities before the servicing authority and in both occasions the expert of Opp.Party No-2 tried to solve the problems but he again faced the same problem after a few days and at the time of 3rd free servicing on 16/01/2010, he again lodged previous complain dtd. 12/02/2009, 03/06/2009 before the Opp.Party No-2 regarding the alignment as well as balancing problem, of his vehicle and the Opp.Party No-2 registered his complaints. The balancing problem which consequences rapid erosion of the tyres specially the front two tyre was repeatedly described before Opp.Party No-2 but Opp.Party No-2 verbally denied the claims but they said that , the tyre of the wheels may have some manufacturing defects, which is the root cause of the balancing and alignment problem; and ultimately at the time of final free servicing , Opp.Party No-2 sent four wheels of the vehicle to the proforma opp. party and proforma opp. party in its inspection report respectively for i) Sl No-60162583208 and ii) Sl No-60290023208 both dtd. 16/01/2010 therein it is stated that the tyres were damaged due to uneven wear and for iii) Sl No- 60510293208 and iv) Sl No- 60433703208 both dtd. 16/01/2010 it is mentioned that tyres were damaged due to not manufacturing defect which means this is not due to any manufacturing defects of the product . Accordingly they return the tyres to Opp.Party No-2 . The complainant, vide an application dtd.18/01/2010 ,requested Opp.Party No-2 to take necessary steps either to replace those defective wheels or to remove the technical difficulties from his car and informed them that the vehicle was within warranty period as warranty period exists for 24 months from purchase of the vehicle but Opp.Party No-1 and 2 did not dispose of his claim and as a result they are liable to pay him proper compensation i.e. to return the value of the car- Rs.3,02,591/- , to pay Rs.1,00,000/- as compensation for causing harassment and mental agony to him by not disposing his claim and also to pay Rs. 15,000/- as cost of the proceeding.
- The pleading of the Opp.Party No-2 namely Mukesh Hyundai is that the servicings of the vehicle of the complainant were done by them on 03/06/2009 and 16/01/2010 respectively, but 1st servicing was done at King Hyundai situated at Shillong on 12/02/2009, and at the time of servicing, no complaint of allignment problem as well as balancing problem was made by the complainant . At the time of 3rd free servicing there was only complaint of rear wheels noise made by the complainant ,and it was duly attended by them. The vehicle of the complainant had met with an accident on 02/02/2009 before 1st servicing and again it met with another accident on 19/05/2009 before the 2nd free servicing of the car, and the complainant delivered the vehicle to them for repairing the accidental damage which they mentioned in the Job Card issued by the complainant . The defect of the wheel of the vehicle is not due to the manufacturing defect but it is only for mishandling of the vehicle by the complainant, since it had already met with 2nd accidents before and after 2nd servicing respectively, and therefore , complainant do not make out a case of manufacturing defect as alleged and as such the complaint is liable to be dismissed.
- The pleading of the Opp.Party No-1 namely Hyundai Motor India Pvt Ltd. Is that the vehicle of the complainant was delivered to him on 27/12/2008 in perfect running condition as any other new car without any technical or mechanical defect . The car of the complainant had met with three accident on 02/02/2009 , 19/05/2009 and 08/07/2011, which the complainant has not disclosed before this forum but is now trying to seek refund the price of the said car by raising frivolous allegations . The complainant also failed to adhere to the norms of vehicle maintenance and the servicing guidelines, which are necessary for smooth functioning of the vehicle, like at proper intervals change of engine oil, oil filter , fuel filter etc, although he was warranted by the owners manual . The servicing should not exceed more than six months but he did not get his vehicle serviced in proper intervals . He produced the vehicle to the Opp.Party NO-2 workshop on 16/01/2010 at a mileage of 16264 KM for 3rd servicing ,and thereafter it was not produced for periodic service ,and thereby he abused the process of law . He used his vehicle to his entire satisfaction and covered extensive mileage about 33507 KM within a period of more than three years from the date of its purchase. Had there been any defect in the said car, he could not have covered such an extensive mileage . He has driving his car in a rush and negligent manner and failed to adhere to the vehicle maintenance and servicing guidelines leading to alleged wearing of the tyres. The degree of wear and tear of the tyres depends on various parameters, like driving habits , road conditions, usage of brakes , proper maintenance of car , correct tyre pressure etc . It is incumbent upon the user of the car to regularly check up any wear and tear in the tyre and make necessary correction and replacement if required . There could be number of external factors acting on the tyre due to which the tyres suffers irregular wear and if these factors are not corrected in time, it could led to rapid wear of tyres. Some adjustment like wheel alignment could get disturbed during running of the car if the car is driven rashly and over potholes and bad road etc. and in such case customer has to immediately arrange for getting the adjustment check up to eliminate any complaint of rapid tyre wear . The alleged problem of wheel alignment , tyre wear etc. were checked to the satisfaction of complainant after thorough examination of the vehicle and no mechanical or technical defects were found in the said car . The tyre manufacturer -MRF Ltd. (Opp.Party No-3) inspected the tyre of the car of the complainant and submitted report on 16/01/2010 stating that there was no manufacturing defects of the tyre. For argument sake if there exist any defects in the tyres , the complainant can not seek replacement of the vehicle as per judgment of Hon’ble National Commission -Mahindra & Mahindra Ltd VS BG Thakurdesai and another( 1993) CPJ 225 (NC) where it is said that if a part could be replaced or a defect could be removed , the replacement of the vehicle cannot be ordered . The warranty with regards to tyres , tubes and batteries originally equipped on a new car is warranted by their respective manufacturer not by answering Opp.Party No-1. All the tyre relating issues are directly dealt by manufacturer of the tyres (Opp.Party No-3) as per Clause -3 of Owners Manual. Opp.Party No-1 engaged in manufacturing various cars under the brand name Hyundai and it deal with all the dealers including Opp.Party No-2 on principal to principal basis, and the concerned dealer is solely responsible for error /omission / mis-representation if any at the time of Sales /services / repairs of the car . Opp.Party No-3 is the manufacturer of tyres of the said vehicle and any issue relating to the tyres is directly dealt by manufacturing company of the tyres (Opp.Party No-3). The said vehicle was delivered by Opp.Party No-1 to Opp.Party No-2 for retail sale free from all defects . At the time of 1st and 2nd free servicing no report of defects was given to the servicing authority by the complainant and at the time of 3rd free servicing the complaint of wheel noise was reported . Opp.Party No-2 sent four tyres to Opp.Party No-3 for inspection who submitted the report to Opp.Party No-2 stating that the same was damaged due to no manufacturing defects and this is not due to the manufacturing defects of the product . After 3rd free servicing, the vehicle was delivered in perfect running condition . The complainant has driven the car in rash and negligent manner and he also failed to adhere to the vehicle maintenance and servicing guidelines leading to the alleged wearing of the tyres . Degree of wear and tear depends on various parameters like driving habit, road condition , usage of brakes , proper maintenance of car , correct tyre pressure etc. It incumbent of the complainant to regularly check any wear and tear in the tyre and make necessary correction and replacement if required . There could be a number of external factors acting on the tyres, due to which the tyre suffers irregular wear and if these factos are not corrected in time , it could lead to rapid wear of the tyres . Some adjustments like wheel alignment could get the disturbed during running of the car and if the car is driven rashly and over potholes anmd bad roads etc. The customer has to immediately arranged for getting the adjustment check up to eliminate any complaints of rapid tyre wear . The complainant has failed to adhere to the vehicle maintenance and service guidelines, which are necessary for smooth functioning of the vehicle . The complainant produced the vehicle for 3rd free service on 16/01/2010 at a mileage of 16,284 KM and there after the car was not reported for any periodic servicing although it should be reported after every six months . The complainant has not disclosed before this forum that his car met with three accident on 02/02/2009, 19/05/2009 and 08/07/2009. All the tyres directly dealt by concerned manufacturing company (Opp.Party No-3) as per Clause-3 of Owner’s Manual . Opp.Party No-1 had not received any complaint from the complainant . Opp.Party No-1 deals with all dealers including Opp.Party No-2 on principal to principal basis and the concerned dealer is solely responsible for error /omission / misrepresentation , if any at the time of retail sales / services / repairs of the car and therefore Opp.Party No-1 has not been any negligence . The warranty with regards to tyres , tubes and batteries equipped on a new car is warranted by their respective manufacturer as per Clause-3 of Owner’s Manual .The complaints including alleged problem of wheel alignment , tyres wear , tyres and wears were set up to the satisfaction of the complainant after through examination of the vehicle ; and no mechanical or technical defects found in his car and Opp.Party No-3 also found no mechanical defects in the tyres of the vehicle and hence the complaint is frivolous and misconceived and deserved to be dismissed.
- We have perused the pleading of the parties as well as their evidence. It transpires to us that both side admits that the complainant did three free servicing of the vehicle through Opp.Party No-2 and on the request of the complainant, the tyres of the vehicle were sent to Opp.Party No-3 for check up and they checked up the tyres and they reported back that there was no manufacturing defects of the tyres and that wear and tear of the tyres were caused due to rash and negligent driving by the complainant like driving over potholes and bad roads and driving it without doing adjustment of the wheel alignment in regular intervals as Clause -3 of Owners manual . In this case Opp.Party No-1 further submits that the vehicle of the complainant had met with an accident on 02/02/2009 ,19/05/2009 and 08/07/2011 which the complainant denies . Now position is that whether the opp. party side has succeeded to prove that allegation. It is found from the case record that Opp.Party No-1 & 2 has not filed any evidence of their own to establish their plea and Opp.Party No-3 has also filed no evidence to prove their plea . Secondly, in the course of cross-examination of CW , Opp.Party No-2 sides put a suggestion to CW that the defect in his vehicle had arisen due to mishandling and due to the accidents it had met with ,which the CW denies. The main plea of the complainant is that all the four wheels of his car were defective from beginning which are manufacturing defects and that caused balancing and alignment problem of the said vehicle and in three free servicings that was done on 12/02/2009, 03/06/2009 and 16/01/2010 the servicing authority failed to solve the said balancing and alignment problems . It is seen that the opp. party adduces no evidence to prove their plea that the vehicle had met with three accident on 02/02/2009, 09/05/2009 and 08/07/2011 and that is why balancing and alignment problem arose in the said vehicle . Thus , it is crystal clear that the Opp.Party No-1 & 2 side have failed to establish their plea that the vehicle met with accident on 02/02/2009, 09/05/2009 and 08/07/2011 and in result balancing and alignment problem got caused and retained in the said vehicle . Secondly, Opp.Party No-1 & 2 indirectly admit that , in all three servicing dates the complainant raised the balancing and alignment problems in the said vehicle . The suggestion of the Opp.Party No- 2 which was put to the CW-1 that the defects in the vehicle of the complainant has arisen due to mishandling and due to accidents that it had met with , which the CW-1 totally denies , infers that Opp.Party No-1 & 2 indirectly admits that the vehicle has been retaining balancing and alignment problem in all three free servicings , the complainant raised the alignment and balancing problem. It is also seen that , Opp.Party No-1 & 2 side has failed to prove their plea that due to mishandling and prior accident the defects had arisen in the said vehicle . From the evidence and the written statements of Opp.Party No-1 , 2 & 3 it is found that after 3rd free service , Opp.Party No-2 had sent all four tyres to Opp.Party No-3 to give opinion whether the tyres had manufacturing defects, but Opp.Party No-3 submitted report to Opp.Party No-2 stating that none of the four tyres has manufacturing defects . So , in the face of failure of the Opp.Party No-2& 3 to prove that the defect in the vehicle has arisen due to rash and negligent driving by the complainant i.e. driving it over potholes and bad roads and driving without maintaining the vehicle and without doing servicing in time as per Clause-3 of Owners Manual as well as in the event of filing report by the Opp.Party No-3 that none of the four tyres has any manufacturing defects , we have to hold that , the plea of the complainant that his vehicle has been retaining balancing and alignment problem from the very day of its purchase and the servicing authority of Opp.Party No-2 has failed to solve this problem although they have done all three free servicing , stands established . So, it is crystal clear that, the vehicle of the complainant has been retaining balancing and alignment problem from the very day of its purchase and those are manufacturing defects which were not caused due to negligence of the complainant i.e. rash and negligent driving.
- It is found from the evidence that the servicing authority of the Opp.Party No-2 has failed to rectify the said defects even after servicing it in three free servicings done by them and that the defects had been properly reported to the servicing authority of Opp.Party No-2 in all three servicings and that was done within warranty period . It is also found that, after repeated requests made by the complainant none of Opp.Party No-1 and 2 has tried to rectify the said defects afterwards . Hence, we hold that the complainant has sufficient reason to seek refund of the cost price of his vehicle . Hernce , we hold that the complainant has sufficient cause of action against Opp.Party No-1 and 2 .Presently, the vehicle is in the possession of the complainant with the said defects / problems unsolved and that compelled the complainant to drive the said vehicle uncomfotably and bearing high cost in its maintenance .
- It is found from the pleadings of the parties that in the written statement , Opp.Party No-1 states that the complainant purchased the vehicle from Opp.Party No-2 and hence Opp.Party No-2 has to address the complainant of such defects . Opp.Party No-1 and 2 are also to found to have stated that states that for the sake of argument if actually it is found that the vehicle has such manufacturing defects then also complainant is not entitled to replacement of his vehicle or refund of the price of the said vehicle. This type of argument is not sustainable because balancing and alignment problem of a vehicle is a major defects in a vehicle which make the vehicle unpliable. As the said problems/ defects in the said vehicle found to be manufacturing defects retaining from it very day of purchase and as Opp.Party No-1 and 2 side has failed to rectify the said defects and left the said vehicle in the possession of the complainant .
- By failing to rectify the said defects in the said vehicle and refusing to replace the vehicle with a new one inspite of repeated request of the complainant, they committed deficiency of service towards the complainant and harassment to him for which he is entitled to get compensation for facing such harassment to the tune of Rs.10,000/- .Moreover due to fault on the part of the Opp.Party No-1 and 2, the complainant was compelled to prosecute them before this forum by incurring a handsome amount . For such reason , we hold that , Opp.Party No-1 and 2 are liable to pay to the complainant another amount of Rs.10,000/- as cost of the proceeding having that very day the complainant became entitle to replace his vehicle with a new one due to retaining of said incurable major defects which made the vehicle unpliable.
It is crystal clear that Opp.Party No-1 is the manufacturer of the vehicle of the complainant and Opp.Party No-2 is the dealer of the all sorts of vehicle produced by Opp.Party No-1 . The case in hand , is that Opp.Party No-1 sold the said vehicle having manufacturing defects through its dealer Opp.Party No- 2 . Hence, for selling the said vvehicle to the complainant both of them are equally liable. Hence, they are jointly and severally liable to satisfy the award to be passed by this forum. 9. Because of what has been discussed as above, we hold that , the complainant has a prima facie case against Opp.Party No-1 and 2 , which he has succeeded to prove. Hence , the complaint against Opp.Party No-1 and 2 is allowed on contest but against Opp.Party No-3 is dismissed with a direction to Opp.Party No-1 and 2 to return the price of the vehicle i.e. Rs.3,02,591/-with interest @6% per annum from 12/02/2009 and get back the vehicle from him and also to pay him Rs.10,000/- as compensation for causing harassment to him as well as Rs.10,000/- as cost of the proceeding ,to-which, both Opp.Party No-1 and 2 are jointly and severally liable. They are also directed to pay the awarded amounts within 45 days , in default, other amounts shall also carry interest on the same rate. Given under our hands and seal today on this day of 1st October, 2018. (Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md Sahadat Hussain) Member Member President | |
