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Arun Kumar filed a consumer case on 03 Jun 2016 against Hyundai Motor India Pvt. Ltd. in the Rupnagar Consumer Court. The case no is CC/15/101 and the judgment uploaded on 06 Jun 2016.
BEFORE THE DISTT. CONSUMER DISPUTES REDRESSAL FORUM, ROPAR
Consumer Complaint No. : 101 of 09.12.2015
Date of decision : 03.06.2016
Arun Kumar son of Sukhram, resident of House No. 523, Meera Bai Chowk, Rupnagar, Tehsil & District Rupnagar.
......Complainant
Versus
1. Hyundai Motor India Pvt. Ltd., 5th and 6th Floor, Corporate One (Baani
Building) Plot No. 5, Commercial Centre, Jasola, New Delhi and
Registered Office at Irrugattukottai, NH No. 4, Sriperumbudur Taluk
Kanchipuram, District Tamil Nadu-602105.
2. Bhakra Service Station Private Limited, Ropar, Kurali Road, NH 21
Near Toll Barrier, Ropar, Pin Code 140108, authorized dealer of
Hyundai.
....Opposite Parties
Complaint under Section 12 of the Consumer Protection Act, 1986
QUORUM
MRS. NEENA SANDHU, PRESIDENT
MRS. SHAVINDER KAUR, MEMBER
ARGUED BY
Sh. Dheeraj Pasricha Advocate, counsel for complainant
Sh. Ram Avtar Advocate, counsel for Opposite Party No. 1
Sh. Mandeep Moudgil Advocate, counsel for Opposite Party No. 2
ORDER
MRS. NEENA SANDHU, PRESIDENT
Sh. Arun Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to O.Ps. No.1 & 2:-
i) To repair and replace the damage parts of his car
ii) To pay Rs.50,000/- as compensation for mental agony & unnecessary harassment caused to him,
iii) To direct the O.P. No.2 to release his car after its repair.
2. In brief, the case of the complainant is that in the month of May, 2014, a representative of the O.P. No. 1 approached him at his shop and told that Hyundai Company had launched a new i10 Grand Sports Car with very attractive finance and maintenance schemes. Being swayed by the allurements of the said representative, he had shown his interest for purchase of the said car. The said representative got filled some performa from him and invited him to the premises of the O.P. No. 1. Accordingly, he visited the premises of the O.P. No. 1, whose official told him that the Hyundai (i10) is equipped with advanced equipments and expert mechanism and every type of service is being provided by the said O.P. and every type of defect could be rectified here and that the O.Ps. are providing 24x7 days road assistance, free of cost throughout India. On 28.05.2014, he had purchased the said i10 Grand Sportz Diesel car from the O.P. No. 1. Its employees had taken his signatures on so many papers, without disclosing anything, on the pretext of completing paper formalities. The car in question bears Registration No. PB-12-V-4232, chassis No. 062147 and Engine No.055513. At the time of purchase of the said car, the concerned official of O.P. No.1 informed that the car is having 2 years’ warranty and if any problem arises, during the said period, then the same would be resolved, free of cost. The said official had also told that if any defect, due to defective material or workmanship is found in the said car, within warranty period, then the said defect would be repaired without any cost. It is further stated that on 10.03.2015, he along with his family had gone from Rupnagar to Kiratpur Sahib and when he was coming back to Rupnagar and had reached near village Malikpur, then suddenly, the said car stopped functioning. He, immediately, tried to contact the official of the O.P. No. 1, but nobody attended his call. Therefore, he had to tow the car to the O.P. No.1. On the next date i.e. 11.03.2015, an acknowledgement was issued by the official of the O.P. No. 1, in which it was mentioned that the engine had damaged. Due to breakdown of the car, he and his family members faced great difficulty and harassment. It is further stated that the engine of the car got damaged, when its meter reading was only 14500 KM. It is further stated that complainant filed a complaint against the O.Ps. before this Hon’ble Forum and O.Ps. appeared and filed written version. During the arguments the O.P. No.1 has submitted that O.Ps. are still ready to replace the damaged part of the engine assembly along with defective parts, free of costs. Even as per the terms and conditions of warranty the O.P. No.1 had shown their willingness to repair the car in question and also tendered one letter dated 23.3.2015. The Hon’ble Forum while disposing of the said complaint had given liberty to the complainant to take his car to the workshop of O.P. No.2 for doing necessary repair as conveyed to him vide letter dated 23.3.2015. As per the order of Hon’ble Forum he approached the O.P. No.2 and requested to repair and release his car but the O.P. No.2 has denied to repair and return his car. He approached the O.Ps many time and made request to comply with the order but they were putting off the matter on one pretext or the other. He also issued legal notice dated 3.11.2015 to the the O.Ps. No.1 & 2, which were duly received by them, but even after receipt of the said notice the O.Ps. No.1 & 2 neither repaired nor returned his car. The car of the complainant got defected within warranty period, the O.Ps. No.1 & 2 were bound to rectify the defects free of costs, therefore, O.Ps. No.1 & 2 be directed to remove the defects either by repair/replacement or of the damaged parts, free of costs and a direction be also issued to O.P. No.2 to release his car after its repair.
3. On being put to notice, the O.P. No.1 filed written version stating therein that the present complaint is frivolous, misconceived and has been formulated on wrong and misleading facts and is devoid of merits. The allegations concerning refusal to carry out repair work is solely against the O.P. No.2 i.e. dealer. The answering O.P. has enquired from O.P. No.2 about repair of the vehicle and it has been informed that it is ready to repair the vehicle as per letter dated 23.3.2015, but the complainant was not ready to pay parking charges as per terms and conditions of the repair order. O.P. No.2 also sent a letter dated 4.11.2015, intimating that replacement of short assembly has been proved by manufacturer and seeking his concurrence for the same. However, no approval was given by the complainant. The answering opposite party operates with all dealers on principal-to-principal basis and error/omission if any at the time of retailing of services of the car is the sole responsibility of the concerned dealer. The liability of the answering O.P. being manufacturer is limited and extends to its warranty obligation only and error/omission/misrepresentation if any at the time of retail sales of the car on part of the Dealer cannot be fastened upon the answering O.P. It is further stated that every Hyundai vehicle is covered under warranty of two years and any defect or problem due to defective material or workmanship within warranty period would be resolved under warranty on free of cost basis, subject to the terms and conditions. It is specifically mentioned in owner’s manual that damages or failure resulting from negligence or proper maintenance as required in owner’s manual would not be covered under warranty. In the owner’s manual it is specifically mentioned that what is covered and what is not cover under the warranty. It is further stated that on the basis of available information the complainant reported his vehicle at the workshop of O.P. No.2 on 11.3.2015 at the mileage of 15,171 Kms with regard to starting problem. The service centre thoroughly inspected the vehicle and approved the work under warranty. Accordingly, a letter was sent on 23.3.2015 clarifying that affected part would be replaced under warranty on free of cost basis and consent for start the work was requested from complainant. However, complainant did not given consent to start the work. The answering O.P. never refused to repair the car in question. It is also to be noted that the complainant has alleged manufacturing defect in the vehicle without producing any proof to that effect. It is to be noted the said vehicle has undergone two accidents and had already covered an extensive mileage of 15,171 Kms as on 11.3.2015 in less than a year of its purchase, which could not have been possible, if vehicle had manufacturing defect as alleged. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof, with exemplary costs.
4. The O.P. No.2 has also filed written version taking preliminary objections; that the complaint is not maintainable in the present form under the provision of the Act; that the complainant has no cause of action to file the present complaint against the answering O.P.; that the complainant is not a consumer of the answering O.P.; that the complainant has not come to the Forum with clean hands, as he has concealed the material facts from this Forum; that the second complaint does not lie as the complainant has filed the similar complaint before this Hon’ble Forum earlier on the same grounds which was dismissed by this Hon’ble Forum. On merits, it is stated that the complainant himself had approached the answering O.P. for purchase of the car in question. He is an educated person and had gone through all the papers before signing the same. Moreover, no such practice is being adopted by it to get the documents signed from any customer, without disclosing about the said documents. It is further stated that if any loss or damage occurs to the vehicle due to any rash, negligent, wrong driving or any lapse on the part of the driver or the customer, then the same is not covered under the warranty. The complainant himself has disclosed the fact that he had gone to Bilaspur on the said car and had driven it on an uneven and Katcha route, due to which it got damaged. His car had stopped on the uneven road. If the warning light had appeared and the car was started again & again, then it was the gross negligence on the part of the driver, who did not even bother about the warning lights and tried to start it again & again. It is further stated that whenever any vehicle is brought in the premises of the answering O.P., then an entry is recorded at the gate and the answering O.P. charges parking fee of Rs.350/- per day, from the owner of the said vehicle. The car of the complainant was got checked from Er. Shingara Singh, Surveyor & Loss Assessor, who opined that the driver of the car had not stopped the car, even after appearance of warning lights and had started it time & again. The damage had occurred to the car of the complainant, due to negligence of the driver and not due to any manufacturing defect in it. Neither there is any deficiency in service on the part of the answering O.P. nor adoption of any unfair trade practice on its part. Rather, it is the complainant who is harassing the answering O.P. by filing a false & frivolous complaint. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, the same being without any merit.
5. On being called to do so, the learned counsel for the complainant tendered affidavit of complainant Ex.C1 along with documents Ex.C2 to Ex.C10 and closed the evidence. On the other hand, the learned counsel for the O.P. No.1 tendered affidavit of Sh. Munish Kumar, Dy. Manager Legal and Secretarial with Hyundai Motors Ex.OP-1 and letter dated 4.11.2015 Ex.OP2 and closed the evidence. The learned counsel for the O.P. No.2 tendered affidavit of Sh. S.K. Chabra, MD of O.P. No.2 Ex.OP2/A and documents Ex.OP2/B to Ex.OP2/L and closed the evidence.
6. We have heard the learned counsel for the parties and have gone through the record of the file including written arguments filed by the learned counsel for the O.P. No.2, carefully.
7. At the outset, the learned counsel for the O.P. No.2 raised objection that the present complaint is not maintainable because the matter has already been decided by this Forum vide order dated 01.10.2015. It is settled law that second complaint is not maintainable.
8. The learned counsel for the O.P. No.1 has also taken the same stand as taken by the learned counsel for the O.P. No.2
To this effect, the learned counsel for the complainant vehemently argued that in the earlier complaint filed on 09.04.2015, the complainant has averred that his car suffers from manufacturing defect, therefore, the same be replaced with the new one, but his prayer was not accepted and the said complaint was dismissed by this Forum vide order dated 01.10.2015. However, liberty was given to take the car for repairs to Bhakhra Service Station. Accordingly, he approached and requested the Bhakhra Service Station i.e. O.P. No.2 to hand over his car after its repair. But the said O.P. did not pay any heed to his request and by not repairing the said car, the O.Ps. were deficient in providing services and totally new/fresh cause of action has arisen to him to file the present complaint. Thus, it cannot be said to be a second complaint and this objection is not sustainable.
After going through the contents of the complaint and the written versions and the arguments put forth by the learned counsel for the parties. We have come to the conclusion that the present complaint is not on the same point of facts and cannot termed as a second complaint on the same issue. It is against the O.Ps. No.1 & 2 on different facts and grounds and thus maintainable before this Forum.
9. The next objection raised by the learned counsel for the O.P. No.2 is that no cause of action has arisen to the complainant to file this complaint against it because it is still ready to repair the car provided complainant give consent for repair of the same. He further argued that after receipt of the certified copy of the order dated 01.10.2015 passed by this Forum, it informed the complainant vide letter dated 04.11.2015 that replacement of short assembly engine has been passed please visit and after his acceptance the work would be done. But the complainant instead of giving the consent has filed this complaint. He further submitted that the car of the complainant is still lying with the O.P. No.1, who has not given the consent to the O.P. No.2 to repair the same as the complainant has not given his consent to repair his car. Therefore, as per condition No.7 printed on the back side of the repair order Ex.Ex.OP2/H, the complainant is liable to pay parking charges but he refuse to pay the same. As such, there is no deficiency in service on the part of the O.P. No.2. Therefore, the complaint filed qua it be dismissed with costs.
10. The learned counsel for the O.P. No.1 submitted that vide letter dated 23.3.2015, the complainant was asked to give the consent for start of the work but complainant has not given the consent, therefore, due to the fault of the complainant the car could not be repaired and he himself responsible for the same. Therefore, the complaint filed qua it is liable to be dismissed.
11. In rebuttal, the learned counsel for the complainant submitted that after receipt of the certified copy of order dated 01.10.2015 passed by this forum, he approached and requested Bhakhra Service Station i.e. O.P. No.2 to hand over his car after doing the needful. The complainant also told to the said O.P. that there is no need to give any fresh consent as after the accident, his brother namely Deepak brought the car for its repair to it and he had already given the consent on 11.3.2015 as is evident from repair order Ex. OP2/H. He further submitted that the O.P. No.2 has adopted double standards, on one hand, it is relying on the said repair order qua charging of parking charges from him and on the other hand by ignoring the said repair order has not repaired his car, whereas, the same repair order contains the consent regarding authorization to O.P. No.2 carry on repairs work and also for agreeing to the terms and conditions absolutely and unconditionally mentioned on the reverse side of the repair order, which is duly signed by his brother namely Deepak. The complainant has also sent a legal notice dated 3.11.2015 Ex.C3 to the O.Ps. to repair and hand over the car within seven days. In response to which, the O.P. No.2 purported to have sent a letter dated 4.11.2015 asking the complainant to give his consent so that work could be started. It is pertinent to mention here that the consent already stands given vide repair order. The O.P No. 2 is thus, unjustified in asking for consent again which is already with it. He further argued that as regards the parking charges being asked for by the O.P No.2. It would have been entitled to parking charges only if it had repaired the same but the O.P. No.2 has not repaired his car as yet. Due to non repair of the car, he is suffering as he is unable to use his car for which he had paid such a huge amount. He further submitted that the repair order being relied upon for charging of parking charges as per term No. 7 printed on the backside of the repair order which reads as under:
I/we the Owner Customer undertake to the delivery of the vehicle within 12 hours of receiving the information regarding the completion of service repair work, or within 48 hours of receiving the information regarding the completion of accidental repair work completed my vehicle, failing which I shall stand liable to pay Bhakra Hyundai Rs.350/- per day parking and protection charges the during the entire duration of the delay. This shall be over and above the charges that I am liable to pay for its repair, parts etc.
It, clearly shows that the parking charges would start in case the delivery of the vehicle is not taken of. In the present case, the car has not yet been repaired, thus, the O.P. No.1 is not entitled to the parking charges.
As per the version of the complainant that his brother had gone to O.P. No.2 to hand over his accidental car to it and signed the repaired order, carries weight, because the taking over of the car for repairs on 11.3.2015 clearly proves that the O.P. No.2 had consented to his signatures on behalf of the complainant. Even from the perusal of legal notice Ex.C3, it is clear that complainant had requested to the O.Ps. No.1 & 2 to repair and hand over his car. Thus, we do not find any forced in this contention of the O.P. No.2 that complainant has not given the consent. It may be stated that as per condition No.7, the parking charges can only be levied after completion of the job. The O.P. No.2 is, thus, not entitled to any parking charges till the repair is completed. In view of the above facts, we do not hesitate to conclude that the O.P. No.2 is deficient in providing services and it is not only liable to set the engine of the car in questions right either by repairing or replacing the damaged parts, free of costs but is also liable to compensate the complainant for the mental agony and physical harassment suffered by him along with litigation expenses. From the letter dated 4.11.2015, it is clear that replacement of short assembly engine has been passed by the O.P. No.1 i.e. Hyundai Motors. Even otherwise, neither any specific allegation has been leveled by the complainant against it nor it has been proved. Therefore, the O.P. No.1 cannot be said to be deficient in providing services and the complaint filed against it is liable to be dismissed.
12. In view of the aforesaid discussion, we dismiss the complaint against the O.P. No.1 and allow the same against O.P. No.2, who is directed in the following manner:-
i) To set right the engine of the car in question either by repairing or replacing the defective part (s), free of cost, without charging any parking charges
iii) To pay Rs.10,000/- as compensation to the complainant.
iv) To pay Rs.10,000/- as litigation expenses to the complainant.
The O.P. No.2 is further directed to comply with the aforesaid directions within a period of 30 days from the date of receipt of certified copy of this order.
13. The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.
ANNOUNCED (NEENA SANDHU)
Dated: 03.06.2016 PRESIDENT
(SHAVINDER KAUR)
MEMBER.
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