BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.429 of 2016

Date of Instt. 05.10.2016

Date of Decision: 08.04.2019

Mrs. Punam Pathak, aged years wife of Sh. Anil Pathak, resident of House No.ND-22, Bikrampura, Mai Hiran Gate, Jalandhar.

..........Complainant

Versus

1 Hyundai Motor India, having its Head Office at A-30, Mohan Co-operative Industrial Area, Phase-I, Mathura Road, New Delhi-110044 Through its Managing Director.

2. M/s Goyal Automotive Limited, Through its General Manager/Authorized Signatory, G. T. Road, Pragpur, Jalandhar.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Jyotsna (Member)

Present: Sh. Manish Sidana, Adv Counsel for the Complainant.

Sh. M. S. Sachdev, Adv Counsel for the OP No.1.

Sh. Jatinder Sharma, Adv Counsel for the OP No.2.

Order

Karnail Singh (President)

1. This complaint has been filed by the complainant, wherein alleged that she purchased a Hyundai Car make I20 from OP No.2 bearing Registration No.PB-08-CT-9200 in the year 2014 and the said car is still under warranty as provided by the company. Since the day of purchase, the car in question is not running properly and is giving problem to the complainant. This fact has been brought to the notice of the OP No.2 by the complainant that there is some inherent defect in the car in question, but the OP No.2 never paid any heed to the genuine request of the complainant for the reasons best known to the OPs. That on 09.07.2016, the complainant along with her family, was on her way to New Delhi on the car in question and when they reached near BSF Chowk, Jalandhar, the car started creating problem and unbearable noise and then the complainant straight way approached the OP No.2 for detecting the problem in the car in question. The officials of the OP No.2 informed the complainant that there is problem in the gear box of the vehicle in question due to the leakage of the gear oil. The OP No.2 filled up the gear-box with gear-oil, but even then there was no improvement in the condition of the car and the car is still creating unbearable noise. The said fact was brought to the notice of the OP No.2 and the OP No.2 stated that the vehicle in question has to be retained in the workshop for the inspection of the vehicle in question and it may take 2-3 days for tracking out the actual problem in the vehicle in question. It is pertinent to mention here that the car in question is still under warranty and all the responsibility for replacement of the defective parts, if any, is of the OPs. On the same day, one Baldev Singh, employee of the OP No.2 talked with the husband of the complainant very rudely and insulted him for the reasons best known to the said Baldev Singh employee of the OP No.2. It is pertinent to mention here that the husband of the complainant felt very insulted and it appeared to the husband of the complainant that the OP No.2 would intentionally delay the present matter just to harass and humiliate the family of the complainant. Thereafter, the complainant arranged a private taxi and proceed to Delhi and came back to Jalandhar from New Delhi on 10.07.2016. The husband of the complainant had verbally informed by the OP No.2 that the part is not available in the company and the same is to be imported from South Korea and it may take few days.

2. That the complainant again approached the OP No.2 to know about the status of the vehicle in question, but to no avail, as such, the complainant was left with no other alternative, but to approach the higher officials of the Hyundai Motor India, at Chandigarh and where-from he got a message that to contact Mr. Joginder, General Manager of OP No.2 and then the complainant contacted the said General Manager of the OP No.2, but he did not pay any heed to the genuine request of the complainant and as such, the husband of the complainant submitted a written representation dated 20.07.2016, which was duly received by said Joginder Singh on 20.07.2016, but till date no clarification whatsoever has been received from the OP No.2 for the reasons best known to the OP No.2, which shows the wrongful conduct of the OP No.2 in providing insufficient services to the complainant.

3. That the OPs returned the car to the complainant on 27.07.2016 and charged Rs.800/- from the complainant on account of oil change of the vehicle in question. It is pertinent to mention here that the OP No.2 did not provide any detail with regard to the fact as to which number part has been replaced by the OP No.2 nor the old part which was alleged to be replaced, was returned to the complainant nor had been shown to the complainant inspite of specific request made by the complainant. The complainant is under the apprehension that no part of the car has been replaced and the OPs have kept the car of the complainant in their possession without any reasonable cause, with sole intention to harass and humiliate the complainant. The car was received by the complainant under protest when the OPs refused to provide the necessary details as asked by the complainant. Then a legal notice was served to the complainant, but all in vain and further alleged that the act and conduct of the OPs is tantamount to deficiency in service and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the defective car with a new one or to refund amount of the car of Rs.7,25,604/- and further OPs be directed to pay compensation of Rs.1,00,000/- for causing mental agony and harassment to the complainant and further OPs be directed to pay litigation expenses of Rs.20,000/-.

4. Notice of the complaint was given to the OPs and accordingly, OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the instant complaint is liable to be dismissed qua the answering OP on the sole ground that no cause of action has arisen against Hyundai Motor India Limited. The Hyundai Motor India Limited has been unnecessarily impleaded as OP No.1 and is neither a proper nor necessary party to the present proceedings and further submitted that the complaint of the complainant is time barred because the vehicle in question was purchased/delivered to the complainant on 09.08.2014, whereas the instant complaint filed in the month of February 2017 and further submitted that the complainant is not a consumer qua the answering OP and therefore, the complaint of the complainant is liable to be dismissed. It is further averred that the car delivered to the complainant was perfectly fine and there are no concern of manufacturing defects in the vehicle and as such, the complainant has made vague and false accusations of manufacturing defects without any proof for the same. It is further alleged that the complainant has concealed material facts that the car of the complainant is already repaired and delivered to the complainant. It is further submitted that as per the information available with the answering OP, the said vehicle of the complainant was reported for accidental repairs on 21.08.2014, then on 15.06.2015 and then on 28.03.2016 and as such, the vehicle met with 3 major accidents and thereafter, the alleged defects in the vehicle arose. Therefore, the complaint is concocted to gain undue profits at the expenses of the answering OP and ought to be dismissed on this ground alone. It is further submitted that the car of the complainant has been repaired and delivered to the complainant on 27.07.2016 after rectification of all the defects and therefore, there is no cause of action accrued to the complainant to file the present complaint nor there is any deficiency in service on the part of the OP. It is further submitted that there is two years warranty period and after the warranty period, the complainant cannot ask for repair free of cost. On merits, the averments made in the complaint are controverted and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

5. OP No.2 filed its separate reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in this Forum, as the same is based upon wrong, false and frivolous facts, as the complainant is guilty of materially concealing and suppressing material facts. It is further submitted that the complainant's suppression and concealment is evident from the fact that cogent, technical factors show that the defect in the gear box of the vehicle of the complainant is caused due to negligence of the complainant. On merits, it is admitted that the complainant purchased the car from replying OP and it is also admitted that the car was brought to the service centre, where it was repaired and handed over to the complainant with a running condition. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA along with some documents Ex.C-1 to Ex.C-15 and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP1/A along with some documents Ex.OP1/1 and Ex.OP1/2 and closed the evidence.

8. Similarly, counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A along with some documents Ex.O-1 to Ex.O-4 and closed the evidence.

9. We have heard the argument from learned counsel for the respective parties and also gone through the case file very minutely.

10. It is admitted fact that the complainant purchased the I20 Hyundai Car from OP No.2, who is a dealer of the manufacturing firm i.e. OP No.1 and its warranty has been given two years by the OP as per Warranty Card Ex.OP1/2. So, it means the warranty period started from the day of purchase i.e. 09.08.2014 till 09.08.2016, but the instant complaint filed by the complainant on 05.10.2016, therefore the period of warranty has been already expired, but the complainant alleged that some defect was occurred in the car since the day of purchase, but there is no Job Sheet available on the file or service report showing that the complainant has ever reported any defect in the car since the day of purchase upto the month of July 2016 when first time a defect was occurred as per own version of the complainant as alleged in Para No.3 and this fact has been admitted by the OP No.2 and OP No.2 categorically alleged that on 09.07.2016, the husband of the complainant Anil Pathak came to the workshop of OP No.2 for getting checkup the vehicle and after checking the vehicle, it was found that oil leakage in the gear box and from the inspection, it was found that there is some other problem in the gear box as oil is leaking from the gear box and the expert of answering OP after thorough checkup told the complainant that the gear box of the vehicle of the complainant will have to be changed with a new one and at that time gear box was not available with the company and also reported to the complainant that the same will be imported from country Korea and it will take about 20-25 days and after getting the said part from Korea, the OP changed the gear box of the vehicle of the complainant with a new one and then handed over the vehicle to the complainant on 27.07.2016 after getting charges of Rs.800/- from the complainant i.e. the price of the oil, but price of the gear box was not obtained from the complainant, regarding that repair, the OP has brought on the file Job Sheet Ex.OP1/1 and further delivery was given to the complainant, vide Satisfaction Note Ex.O-2, no doubt thereon the complainant gave a remarks “Received Under Protest”, but we failed to understand why such remarks was given by the complainant nor have explained in his affidavit or in the complaint what was the problem whether vehicle was not running. So, these remarks was given by the complainant due to his personal revenge with the OP No.2, because the complainant could not able to bring on the file any defect in the car, if so, then what was the necessity to give such remarks i.e. under protest.

11. Furthermore, the complainant has brought on the file his own affidavit Ex.CA and Legal Notice Ex.C-1 and one Email Message from the OP and application given to the General Manager Ex.C-7 and Invoice of the Vehicle, these are the relevant documents in this case. It is admitted that the complainant has not produced on the file any report of the mechanic/engineer, who checked the vehicle and declared that there is any mechanical defect in the vehicle of the complainant, so, in the absence of any mechanical defect in the vehicle, the complainant is not entitled for the relief as claimed and in support of this version, we like to refer a pronouncement of Hon'ble National Commission, cited in 2010(1) C.P. J. 235, titled as “Classic Automobiles Vs. Lila Nand Mishra and Anr.”, wherein his Lordship categorically held that “the manufacturing defects in the vehicle was not proved”, and therefore, the complainant is not entitled for the relief.

12. So, in view of the above detailed discussion, we are of the opinion that the complainant is not entitled for the relief as claimed.

13. Further, we have also considered the submission made by the learned counsel for the OP No.1 that the Hyundai Motor India Limited i.e. OP No.1 is not a necessary party in the present proceeding because no cause of action has arisen against the OP No.1 and further alleged that the complaint of the complainant is time barred because the complainant purchased the vehicle in question on 09.08.2014 and instant complaint filed after the warranty period of two years six months and the instant complaint filed in February, 2017. We have considered the above queries raised by learned counsel for the OP and find the OP No.1 is the manufacturing firm of the vehicle in question, if so, then the OP is a necessary party in this case and furthermore, the plea taken by OP No.1 that the instant complaint is time barred, is not established because the vehicle was purchased on 09.08.2014 is admitted, but the defect first time occurred in the vehicle i.e. within a warranty period on 09.07.2016 i.e. the cause of action accrued to the complainant for filing the present complaint and two years period is to be reckoned from the accrual of cause of action i.e. 09.07.2016 and the complainant can file the complaint within two years from aforesaid date. So, we find that the complaint of the complainant is within limitation.

14. In the light of above detailed discussion, the complaint of the complainant fails and the accordingly, the same is dismissed with no order of cost. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Jyotsna Karnail Singh

08.04.2019 Member President