BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 21^st day of December 2013

Filed on : 22-10-2011

PRESENT:

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No. 584/2011

Between

C.R. Harikumar, : Complainant

S/o. C. Ramaswamy, (By Adv. Lakshmanan T.J.

Deputy Commandant, Penta Queen, Padivattom,

Indian Coast Guard, Kochi-24)

residing at Tharangini Apartments,

Marine Drive, Kochi-682 031.

Vs

1. Hyundai Motor India Ltd., : Opposite parties

Registered Office, Irrugattukottai, (1^st O.P.By Adv. Nishana Venkitesh

N.H. No. 4, Sriperumbudur Taluk, Fox Mandal & Associates

Kancheepuram District, Solicitaors & Advocates,

Tamilnadu, 602 105, F.M. house, No. 56, Girina

rep. by its General Manager. Gar housing colony,

2. Planet Automotive Pvt. Ltd., Kadavanthra, Planet

Planet house, Radhe Circle, Kochi-682 02)

Maninagar, Ahemmedabad-380 008.

rep. by its Manager. (2^nd O.P. absent)

3. Popular Hyundai, (3^rd O.P. by Adv. George Cherian

Popular Motor World Pvt. Ltd, Karippaparambil, Karippapa-

33/2361-A, Geethanjali Junction, rambil Associates, HB 48,

N.H. 47, Vytilla P.O., Panampilly Nagar, Cochin-

Kochi-682 019. 682 036)

rep. by its Manager.

O R D E R

A Rajesh, President.

The case of the complainant is as follows:

The complainant purchased a brand new i10 car from the 2^nd opposite party on 08-02-2011 at a cost of Rs. 4,21,553/- which was later registered as GJ 18/AM 2475. The 1^st opposite party manufacturer had granted 2 years warranty and extended warranty for one year to the vehicle. The complainant was working at Gandhinagar when the vehicle was taken delivery and the first service was conducted there. The complainant was transferred to Cochin on 10-07-2011. He plied the vehicle up to 1370 kms. After that the engine of the vehicle was getting stopped frequently in the 1^st and 2^nd gear and further the engine was not getting accelerated properly. The complainant entrusted the vehicle with the 3^rd opposite party on 27-08-2011 who is the dealer of the 1^st opposite party and all the defects of the vehicle was narrated to the 3^rd opposite party. The complainant along with the service manger of the 3^rd opposite party had gone for a test drive and the service manager himself came to know about the defects. The 3^rd opposite party had issued a repair order to the complainant. On 22-09-2011 the 3^rd opposite party had sent an e-mail to the complainant informing him that the repair works can be done only on payment basis and also informed that while inspecting the vehicle it was found that there was no engine oil and also the engine was dismantled. The 3^rd opposite party also provided an estimate of Rs. 71,845/- for the repair and also informed that the repair will not be covered under the warranty. The defects of the vehicle started within the warranty period and as per the warranty it is the duty of the 3^rd opposite party to repair the vehicle free of cost. The denial of warranty amounts to deficiency in service and unfair trade practice. Thus the complainant is before us seeking the following reliefs against the opposite parties.

1. To direct the 1^st opposite party to replace the complainant’s vehicle with a new one or to refund its price

2. To direct the 3^rd opposite party to repair the vehicle free of cost in warranty

3. To direct the 3^rd opposite party to refund Rs. 67,856/- to the complainant

4. To direct the opposite parties to pay a compensation of Rs. 50,000/- and Rs.10,000/- towards costs of the proceedings.

2. The version of the 1^st opposite party is as under.

On 08-03-2011 the complainant purchased a car from the 2^nd opposite party. The complainant has 3^rd year extended warranty also from the date of delivery. On 11-05-2011 the complainant’s car reported at Punjab Hyundai Gandhinagar for the 1^st service. The car was handed over to the complainant after the 1^st service in perfect running condition. The complainant’s car reported at the 3^rd opposite party on 27-08-2011 with the request to check engine misfiring, starting trouble and to carry out under body coating. The car was delivered to the complainant in perfect running condition. The complainant’s car reported at the workshop of the 3^rd opposite party on 30-08-2011 for accidental repairs. After thorough inspection and examination the following observation was made.

1. Engine number was missing in the cylinder block which was found to be scrapped

2. Non genuine sealant was found in oil sump

3. There was complete leakage of oil on the front side of the engine.

4. Non genuine bolts were found on valve door mounting

5. Engine oil level was found low

6. Scratches and damages were found on engine oil filter.

As per the warranty terms and conditions damages or repairs due to accident, fire, tampering or improper repairs, negligence of proper maintenance of the vehicle is not covered under the warranty. So the 3^rd opposite party informed that the repairs would be carried out on chargeable basis and as a gesture of goodwill they offered discount also. The matter was intimated to the complainant vide letter dated 29-09-2011 and e-mail dated 03-10-2011. The complainant did not give approval for the start of repair work under chargeable basis and instead choose to file the complaint. The complainant is not entitled to get refund of Rs. 67,856/- being collected towards repair charges. The liability of the 1^st opposite party is limited and extends to its warranty obligations alone. There is no deficiency in service on the part of the 1^st opposite party.

3. The contention of the 3^rd opposite party is as follows:

The 3^rd opposite party is the authorized service centre of the 1^st opposite party. The 3^rd opposite party has accepted the complainant’s vehicle for accident repair on 27-08-2011. The reported complaint was roof leveling and painting said to have been caused while transporting the car through the truck of a private carrier. The complainant has further reported complaints of engine misfiring to check and rectify starting complaint in cold condition and poor acceleration of the vehicle. When the vehicle was attended to for the reported complaints it was found that there was no engine oil and that the engine was found to be dismantled earlier. The screws of the oil sump were found to be spurious and the bounding material of the engine and sump was also found to be spurious. Accordingly the work was stopped and the matter was informed to the complainant. The complainant was summoned to the service centre and the spurious parts found were shown to the complainant and was informed that the vehicle can not be repaired under warranty. Thereafter since there was no response from the complainant an e-mail dated 22-09-2011 was sent to him. As requested by the complainant for asserting the defect in the engine, the engine head was opened, and was noticed that the engine which engraved in the engine head was removed by grinding. The 3^rd opposite party had given the complainant the repair estimate for Rs. 71,845/- for mechanical repair and estimate for Rs. 6,000/- for leveling and painting. The 3^rd opposite party had requested the complainant for work order with 50% advance payment of the estimated amount. Thereafter the complainant had filed this complaint. As directed by the 1^st opposite party the 3^rd opposite party has given free labour charge and further the 1^st opposite party had given an assistance of Rs. 10,000/- to the complainant for service. On 21-01-2012 the complainant took delivery of the vehicle. There is no deficiency in service or unfair trade practice on the part of the 3^rd opposite party. This complaint deserves dismissal.

4. The 2^nd opposite party was served with a notice of this complaint, but they opted to keep away from the proceedings. No oral evidence was adduced by the complainant and the 1^st opposite party. Exts. A1 to A8 and B1 to B5 were marked on their side. The witnessess for the 3^rd opposite party were examined as DWs 1 to 3 and Exts. B6 to B20 were marked. Heard the learned counsel for the contesting parties.

5. The points that arose for consideration are

i. Whether the complainant is entitled to get replacement of the

vehicle or to get refund of its price ?

ii. Whether the 3^rd opposite party is liable to repair the

complainant’s car free of cost?

iii. Whether the 3^rd opposite party is to refund Rs. 67,856/- the

amount collected from the complainant towards repair

charges

iv.Whether the opposite parties are liable to pay compensation

and costs of the proceedings to the complainant

6. Point No. i. It is not in dispute that on 08-03-2011 the complainant purchased a brand new car from the 2^nd opposite party at a price of Rs. 4,21,553/- which was manufactured by the 1^st opposite party evident from Ext. A1. It is also not in dispute that 3 years warranty has been provided by the 1^st opposite party for the vehicle evidenced by Ext. A3. It is to be noted that the complainant does not have a case that the vehicle as such suffers from inherent manufacturing defect to get replacement of the vehicle or to get refund of its price. Moreover nothing is on record to substantiate the claim of the complainant that he is entitled to get replacement of the vehicle or to get refund of its price. In that case the complainant is not legally entitled to get replacement of the car or to get refund of its price.

7. Point No. ii & iii. During the proceedings in this Forum at the instance of the complainant vide order in I.A. No. 613/2011 this forum passed the following order.

“4. Be things as it may, we pass the following order.

1. The petitioner shall deposit a sum of Rs. 71,845/- in this Forum

within 7 days from the date of this order as agreed to by him.

2. The 3^rd respondent shall repair the vehicle within 15 days from

the date of receipt of a copy of this order.

3. The 3^rd respondent is at liberty to approach this Forum to get

an amount of Rs. 36,000/- being the 50% of the deposited

amount after the delivery of the car to the complainant in road

worthy condition”.

However the complainant opted to pay the repairing charges of Rs. 67,856/- and took delivery of the car from the 3^rd opposite party.

8. According to the complainant the defects of the vehicle were caused during the warranty period and the opposite parties are liable to repair the vehicle free of cost. The opposite parties 1 and 3 vehemently contented that the complainant had violated the terms and conditions of the warranty since the engine of the vehicle was dismantled earlier. They maintain that they are only to rectify the defects of the vehicle on payment basis.

9. Ext. A2 is the repair order prepared by the 3rd opposite party at the time of entrustment of the vehicle by the complainant on 27-08-2011. As per Ext. A2 the customer’s request and the service advisor’s instruction to shop floor are as follows:

“Customers request

Running Repair

Engine misfiring

Ch & Rectify Starting Trouble-cold C

Anti rust coating

Number plate screw provide (new)

Service Advisor’s instruction to shop floor

Starting trouble at cold condition, poor acceleration

Misfiring at starting”

10. Thereafter the 3^rd opposite party issued Ext. A5 e-mail dated 22-09-2011 to the complainant which reads as under

“This is regarding the concern with reference to your Hyundai i10 vehicle bearing Reg No: GJ18AM2475. After inspection, we have given an estimate of parts and labour cost to you based on the preliminary observation, While inspecting your vehicle we found that engine oil was not there and also the looks like engine was dismantled before. So the repair work will do under payment basis only. Please do not have any apprehensions in this regard.”

11. The DWs 1 to 3 the witnesses for the 3^rd opposite party categorically deposed that the defects of the complainant’s vehicle can not be covered under warranty because of the following reasons.

i. No oil in the engine

ii. Looks like engine is dismantled

They rely on Exts. B8 to B20 photographs to substantiate their contention.

12. It is worthwhile to note that the above findings of the DWs 1 to 3 do not find a place in Ext. A2 dated 27-08-2011 the document prepared at the very beginning. During evidence DW1 admitted that the 3^rd opposite party intimated the fact of earlier dismantling and the deficiency of engine oil to the complainant only on 22-09-2011 by Ext. A5 e-mail. During evidence DW2 the service advisor who prepared Ext. A2 deposed that on 27-08-2011 he found that the engine oil was in minimum state, but the same as well was not recorded in Ext. A2. DW3 is the floor in charge of the 3^rd opposite party who took Exts. B8 to B20 photographs of the vehicle and its accessories. He deposed that there is no indication in Exts. B8 to B20 to show that these photographs are of the complainant’s vehicle.

13. Admittedly the complainant had plied the vehicle only for 1369 kilometers. It is highly unbelievable that the complainant had dismantled the engine of such a vehicle even after availing 3 year warranty from the 1^st opposite party and comprehensive insurance policy for the same. Indisputably the 1^st service of the vehicle was conducted in an authorized service centre of the 1^st opposite party at Gandhinagar and the 2^nd free service was yet to be conducted at the time of entrustment of the vehicle with the 3^rd opposite party on 27-08-2011.

14. In short for want of convincing reason on record to prove the contentions raised by the opposite parties 1 and 3, they are contractually and legally bound to provide the warranty as stated in Ext. B1 to the complainant’s vehicle. The 1^st opposite party contended that the relationship between the 1^st and 3^rd opposite party is principal to principal basis as per Ext. A5 dealership agreement. We are not to accept the said averment since the warranty has been provided by the 1^st opposite party alone. Thus the complainant is entitled to get the repair of the vehicle within warranty for the reasons stated above. Since the complainant has paid the repair charges to the 3^rd opposite party the 1^st opposite party and 3^rd opposite party are to refund the amounts to the complainant.

15. Point No. iv. The primary grievances of the complainant having been met adequately we are not to award compensation and costs of the proceedings.

16. In the result, we partly allow the complaint and direct that the 1^st and 3^rd opposite parties shall jointly and severally refund the amount collected from the complainant towards repairing charges with interest @ 12% from the date fixed for compliance of this order till realization.

The above said order shall be complied with within a period of 30 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 21^st day of December 2013.

Sd/-A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/-Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix                                                                                

            Complainant’s exhibits :

Ext. A1 : Copy of retail invoice

A2 : Copy of repair order

A3 : Certificate

A4 :   Copy of certificate of registration of

motor vehicle

A5 : Copy of letter dt. 22-09-2011

A6 : Copy of letter dt. 29-09-2011

A7 : Copy of repair estimate

A8 : Receipt voucher

          Opposite party’s exhibits:

Ext. B1 : Copy of warranty policy

B2 :   Copy of letter dt. 29-09-2011

B3 : Copy of service details

B4 : Copy of vehicle details

B5 : Copy of dealership agreement

B6 : Copy of letter dt. 12-10-2011

B7 : “ “

B8 : Copy of photos

B9 : “ “

B10 : “ “

B11 : “ “

B12 : “ “

B13 : “ “

B14 : “ “

B15 : “ “

B16 : “ “

B17 : “ “

B18 : “ “

B19 : “” “”

B20 : “ “

          Depositions

Dw1 : Basil Eldhose

DW2 : Ali K.M.

DW3 : Vikas K.V