Haryana

Karnal

419/2012

Sumitra Devi W/o Naresh Lohchab - Complainant(s)

Versus

Hyundai Motors India Engineering Pvt. Ltd - Opp.Party(s)

Narinder Sukhan

19 May 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM KARNAL.

                                                               Complaint No. 419 of 2012

                                                             Date of instt.: 03.09.2012

                                                               Date of decision:19.5.2017

 

Smt. Sumitra Devi wife of Shri Naresh Lohchab resident of Shastri Colony, Gohana Road, Sonepat.

 

                                                                   ……..Complainant.

                                      Vs.

1. Hyndai Motor India Engineering Pvt. Ltd., Regional office at A-30, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110002, through its Regional Marketing and Sales Manager.

2. Santa Motors Pvt. Ltd. 119/8 Mile Stone, G.T. Road, Karnal, through its Manager.

3. Hyndai Malwa Motors, National Highway no.1, 31 KM Stone, G.T. Road, Kundli, Sonepat-131001, Haryana, through its Manager.

 

                                                                                     ……… Opposite Parties.

 

                     Complaint u/s 12  of the Consumer Protection Act.

 

Before                   Sh.K.C.Sharma……….President.

Ms. Veena Rani….Member

                   Sh.Anil Sharma…….Member.

                            

Present:-     Shri Vineet Rathore Advocate for the complainant.

                   Shri Rajnish Panu Advocate for opposite party no.1.

                   Shri Rajnish Batra Advocate for opposite party no.2.

                   Shri C.J. Wadhwa Advocate for opposite party no.3.

                                       

 ORDER:

 

 

                        This complaint has been filed by the complainant u/s 12 of the Consumer protection Act 1986, on the averments that she purchased Sonata NF1 Diesel M/T Ebony Black Car manufactured by Hyndai Motors from opposite party no.1 on 8.8.2007 for an amount of Rs.14,85,053/-. The said car carried warranty of 48 months/80,000 K.Ms from the date of delivery. Just after purchase of the car she started facing problems in the car, because of some manufacturing defect in the engine. Every time, she had to take the car to the opposite parties, but she was not satisfied with the service of the opposite parties. During free services, the opposite parties carried out the repairs, but despite that the problems continued. The engine of the car seized after sometime. The vehicle was taken to opposite parties no. 2 and 3. She was not satisfied with the service of the opposite parties no.2 and 3. Finding no alternative the car was left at the showroom and workshop of the company, but to no avail. The car was having problems of pick-up, heat etc. The pick-up of the car was also not good. The car was taken to the workshop of the opposite party no.1 on three occasions and many times the same was taken to the workshop of opposite parties nos.2 and 3 due to problems in the car. She had to spend an amount of Rs.1,50,000/- on its repair and apart from that she suffered loss in business and tax fares. She suffered mental agony and harassment due to acts and conduct of the opposite parties. She asked the opposite parties to replace her car or make payment of cost of the same alongwith other expenses, but the opposite parties refused to accept her genuine request.

2.                Notice of the complaint was given to the opposite parties. Opposite party no.1 filed written statement controverting the claim of the complainant. Objections have been raised that the complaint is barred by limitation; that the complainant has concealed the material facts from this forum and that the complaint is baseless and misconceived.       

                   On merits, it has been submitted that the complainant was delivered a new Hyundai Sonata car by opposite party no.2 on 8.8.2007. The said car was delivered in perfect running condition as any other car, without any technical or mechanical defect whatsoever. Complainant, however drove the car in rash and negligent manner, which resulted in five accidents of the car within the period of 4 years of its purchase. The complainant reported for repairs at the authorized dealers of opposite party no.1 on 11.8.2009, 2.2.2010, 5.2.2010, 14.4.2010 and 3.2.2011. The car was extensively used by the complainant for four years and the same had covered distance of about 65726 kms till last reported at Hyundai Motor Plaza, Delhi on 26.7.2011. As per the information, the complainant on 20.12.2007, 28.4.2008 and 13.11.2008 reported the said car for first, second and third free service at Samta Hyundai i.e. opposite party no.2. The free services were duly carried out as per the schedule and the complainant did not report any problem in the engine of the car. Whenever, the complainant reported his vehicle at the authorized service station, prompt and efficient services were provided to him. The complainant’s car reported at Hyundai Motor Plaza, Delhi the company owned workshop on 10.4.2011 with the concern of vehicle not starting. After proper examination and inspection by service engineer, bearing set-crankshaft, pump assembly oil, seal oil-PR, Bracket assembly-engine MTG, Gasket cylinder head, gasket rocket cover, ring set piston, bearing pair set/rod, crankshaft assembly, rod assembly connecting, filter assembly-engine oil and gasket liquid engine was replaced under warranty policy. Thereafter, the car was delivered to the complainant in perfect running condition. The complainant’s car reported at Hyundai Motor Plaza, Delhi on 26.7.2011 and his concern was with regard to starting problem, white smoke; low pick-up, engine overheating and AC not working properly. Necessary inspection was carried out and after inspection it was observed that there was water entry inside the engine, which might have resulted hydrostatic lock of the engine. Traces of water were also observed in the engine oil. Damage or failure resulting from misuse, abuse, accident, theft, flooding or fire does not come within the purview of the Warranty Policy. The service engineer of Hyundai Motor Plaza, Delhi informed the complainant that the repair works shall be carried out on the chargeable basis only after obtaining approval from him to dismantle the engine so that necessary repairs could be carried out. The complainant did not give approval for the same and the car has been lying at the workshop of opposite party no.1 despite several letters and e-mails sent to the complainant. It has been pleaded that the pick-up of the car depends on a number of factors like road conditions, driving habits, improper tyre pressure, wheel alignment etc. and the same can under no circumstances be termed as defect much less manufacturing defect in the car and as such there was no deficiency in service or unfair trade practice on the part of the opposite party no.1.

3.                Opposite party no.3 filed written statement disputing the claim of the complainant. Objections have been raised that the complaint is not maintainable; that the complainant has no locus standi and cause of action to file the complaint; that the complaint is false, frivolous and vexatious and has been filed with malafide intention only to harass the opposite parties and extort money from them.

                   On merits it has been pleaded that the complainant brought his vehicle to the workshop of opposite party no.3 only on two occasions once for general service of the car and second time after accident. She was attended properly and required job was done to her entire satisfaction. No allegation has been leveled against opposite party no.3 and as such there was no deficiency in service on its part.

 3.               Opposite party no.2 did not file any separate written statement and adopted the written statement filed by opposite party no.1.

4.                In evidence of the complainant, her affidavit Ex.CW1/A and documents Ex.C2 to Ex.C17 have been tendered.

5.                On the other hand, in evidence of the opposite parties, affidavit of Manish Kumar Assistant Manager Ex.OP1/A, affidavit of Johney Chand Service Advisor Ex.OP1/B, affidavit of Baldev Khetrapal Director Ex.OP2/1, affidavit of Rajender Singh Ex.OP3/1 and documents Ex.R1 and Ex.OP3/2 to Ex.OP3/4 have been tendered.

6.                We have appraised the evidence on record, the material circumstances of the case and the arguments advanced by the learned counsel for the parties.

7.                The complainant had purchased Hyndai Sonata car from opposite party no.2 on 8.8.2007 and the said car carried the warranty of 48 months/80,000 kms from the date of delivery. As per the case of the complainant there was manufacturing defect in the engine of the car, which could not be rectified by the opposite parties. The opposite parties have submitted that there was no manufacturing defect in the engine of the car.  Every complaint made by the complainant to the opposite parties regarding the problems in the car was duly attended to and the job was done to her entire satisfaction. However, when the car was reported at Hyundai Motor Plaza, Delhi on 26.7.2011, it was observed by the service engineer that there was water entry inside the engine, which might have resulted hydrostatic lock of the engine. Traces of water were also observed in the engine oil. Therefore, such misuse was not covered under the warranty and the repair could be done on paid basis, but the complainant did not give approval for the same.

8.                Learned counsel for the complainant vehemently argued that history of the car shows that the complainant could not use the car properly and she had to visit the workshop of the opposite parties repeatedly, for one or other problem in the engine of the car. The engine unit was overhauled twice apart from regular running repairs. Even mechanical Engineer J.K. Sharma submitted his report Ex.C17 alongwith photographs and vehicle history repair of the car and opined on the basis of the service history and physical examination that the performance of the vehicle was highly unsatisfactory and the vehicle clearly malfunctions due to multiple reasons, and had faults which may not be repairable, especially in the long run. There are manufacturing defects in the car and the same is not fit for an innocent buyer. It has further been argued that evidence on record is sufficient to prove that there was manufacturing defect in the engine of the car, which could not be removed by the opposite parties, therefore, the complainant is entitled to get replaced the engine of the car or for payment of the actual cost of the car.

9.                On the other hand, learned counsel for the opposite parties contended that the car was driven by the complainant in rash and negligent manner, which resulted in five accidents of the car within a period of four years of its purchase, as is evident from the fact that the complainant reported for accidental repairs to authorized dealer on 11.8.2009, 2.2.2010, 5.2.2010, 14.4.2010 an 3.2.2011. The car was extensively used by the complainant for four years and the same had covered distance of about 65726 Kms till last reported at Hyundai Motor Plaza, Delhi on 26.7.2011. The complainant had not reported any problem in the engine at the time of three free services. On 10.4.2011 there was starting problem and the necessary parts of the engine were replaced and the car was delivered to the complainant in perfect running condition. Learned counsel further canvassed that 26.7.2011 when the car was reported by the complainant at the workshop of opposite party no.1 at Delhi with the problems of white smoke; low pick-up; engine overheating and AC not working properly, the service Engineer found water entry inside the engine as well as in the engine oil and observed that the same might have resulted Hydrostatic lock of the engine. Entry of water could be due to fault of the complainant and the car might have been driven through deep water in rainy season, therefore, the engine could not be repaired under warranty. It has further been argued that there was no manufacturing defect in the engine of the car and the report of the mechanical expert of the complainant is not reliable. The report Ex.C17 was prepared during pendency of the complaint whereas it was mentioned by the expert that he had inspected the car on 8.10.2012. This fact alone falsifies his report and shows that he submitted such report just in order to help the complainant. It has lastly been argued that whenever complainant reported the car at the workshop of the opposite parties she was attended properly and job was done to her satisfaction, therefore, there was no deficiency in service on the part of the opposite parties. In support of his contentions he placed reliance upon   Rajiv Dhiman Versus Maruti Udyog Limited and Ors. 2007(1) CPJ 101, Alpha G: Corp Development Private Limited Versus Audi Gurgaon Showroom 2014(1) CPJ 206, Mohand Singh Bisht Versus Tata Motors Ltd. and others 2016 (3) CPJ 28 and R.Baskar Versus D.N. Udani and Ors 2006(4) CPJ 257.

10.              In Rajiv Dhiman’s case (supra) there was Hydrostatic locking due to ingress of water in engine and on account of that there was break down of the vehicle. The complainant alleged that there was manufacturing defect. Under those circumstances it was held by Hon’ble Union Territory, Commission, Chandigarh that water seeped into combustion chamber when the car was driven through deep water during rainy season. The alleged defect was not covered under extended warranty. Defects caused by misuse/negligence/abnormal use/insufficient care are not covered under warranty. In Alpha G: Corp Development’s case (supra)  the complainant purchased Audi car in October, 2010. Rain water had entered into engine of car. Replacement was denied by the company. Prior to the date of incident there was no complaint regarding defect in the car and the same was running smoothly. Under those circumstances, it was held by Hon’ble Haryana State Consumer Disputes Redressal Commission, Panchkula that defect if any developed due to negligence of user of the car and there was no deficiency in service.  In Mohan Singh Bisht’ case (supra)  the vehicle was repeatedly taken to workshop of opposite party in connection with certain defects. Every time vehicle was handed over to complainant with defects duly rectified and in perfect running condition. Inherent defect in vehicle was not proved. It was held by Hon’ble State Commission Uttrakhand that there was no deficiency in service on the part of the opposite party. In R.Baskar’s case (supra) the complainant used the vehicle for one year and five months covering 9808 Kms.  When the vehicle was kept ready after repairs, the complainant hesitated even to test ride vehicle, which showed that complainant was only interested in refund of the amount. Under those circumstances, it was held by Hon’ble National Commission that no manufacturing defect was established, therefore, refund of the price was declined.

11.              There is no dispute regarding the proposition of law laid down in the aforediscussed authorities, but the same do not render any help to the opposite parties, because same were based upon the facts peculiar to those cases whereas the facts of the present case are obviously at different footings. A perusal of the history record shows that on 30.8.2007, 20.12.2007, 28.4.2008 and free services of the vehicle were done. On 28.4.2008 the complainant reported problem of horn sound at the time of free services and horn assembly was replaced. On 13.11.2008 at the time of general service cylinder assembly-concentric slave, flywheel assembly, disc and clutch cover assembly were replaced as there was problem of noise and clutch not engaged. On 1.6.2009 AC was not working properly, therefore, compressor assembly was changed and gas was filled. On 23.3.2009 complainant reported the vehicle for the problem of overheating. Seal walve stem and Gasket Cylinder head were replaced. Adjuster assembly and rocker arm lasa were replaced. On 8.8.2009 diesel pipe was replaced. On 10.8.2009 fuel return pipe was replaced. On 21.8.2009 and 29.8.2009 problem of suspension was reported. On 21.7.2009 there were problems of poor pick up, vehicle puling to one side and battery getting discharged. Again on 30.7.2009 there were problems of smoke, poor pick up, starting trouble, fuel leak. Valve Assembly EGR  and EGR cooler were replaced. On 2.2.2010, 5.2.2010, 14.4.2010 and 3.2.2011 the vehicle was reported by the complainant for accidental repairs, but none of accidental repairs related to the engine of the vehicle. On 8.1.2011 the vehicle was reported for engine noise and suspension noise. In order to fixup the problems of noise from engine and front suspension, the engine was overhauled and suspension work was done under warranty. On 31.3.2011 again there was starting problem. On 10.4.2011 again the problem of starting was reported and numberof parts of the engine were replaced. Thus, it is emphatically clear that the engine of the vehicle was overhauled twice during warranty period, apart from regular running repairs. The necessity of overhauling engine twice without any fault any part of the complainant during warranty period indicates that there was some manufacturing defect in the engine otherwise overhauling of the same twice would have not been required during warranty period. The opposite parties had not reported in any service record that the problem in the engine was on account of misuse/ negligence or any fault on the part of the complainant.

12.              After overhauling the engine twice, there was again problem in the engine and the complainant reported at the workshop of opposite party no.1 on 26.7.2011 with starting problem. Even if, it is accepted that the service engineer found entry of water in the engine and the traces of water in engine oil, then also the same is not sufficient to prove that the water had entered the engine due to misuse or negligence on the part of the complainant. Neither there is any specific allegation nor any cogent evidence to prove that the vehicle was driven by the complainant in deep rainy water. Moreover, the water could not enter  the engine until and unless there was some manufacturing defect in the engine or the gasket/packing were left loose by the service engineer of the opposite parties at the time of overhauling the engine, otherwise, a new engine is expected to be water tight and rainy water cannot enter the same.

13.              The report of Sh. J.K. Sharma Automobile Engineer Ex.C1 was  based upon the vehicle observations and service history record of the vehicle. He has not completely based his report on the assertions made by the complainant to him. No doubt, he mentioned the date of inspection of the vehicle at 8.8.2012 and his report was produced in additional evidence in 2017, but this fact does not make his report doubtful in any manner because the report is not based upon physical inspection alone, rather the same is mainly based upon the service history record.

14.              In view of the aforediscussed facts and circumstances, we have no hesitation in concluding that there was manufacturing defect in the engine of the car purchased by the complainant and on account of that she had to visit workshops of the opposite parties repeatedly, but the defect could not be removed despite overhauling the engine twice and carrying out regular running repairs. The car had run 65726 Kms upto 26.7.2011 during warranty period, but this fact cannot be ignored that the complainant had to visit the workshop of the opposite parties a number of times for getting repaired the car for one or other problem. Admittedly, the car has been lying at the workshop of opposite party no.1 since 26.7.2011 and the same is not in use. As per report of Automobile Engineer, the car is lying in open, due to which parts have rusted and the life of consumable items had expired and if the engine of the car gets started, that would cause unnecessarily wear and tear of the engine parts. He further observed that huge money is required to make the car in running condition. Therefore, in such a situation, the car would not be able to function properly even after replacement of the engine. The company is not manufacturing the same model of the car these days, therefore, it would not be justified to direct the opposite parties to replace the car with a new one. At the sometime this fact cannot be ignored that the car was used by the complainant for a period of about four years and the same had run 65726 Kms. Therefore, it would not be in the interest of justice to direct the opposite parties to pay the entire price of the car for which the complainant had purchased. However, looking into all such facts and circumstances it would be reasonable and justified to direct the opposite party no.1 to pay 75% of the price of the car to the complainant.

15.              As a sequel to the foregoing discussion, we accept the present complaint partly and direct the opposite party no.1 to pay 75% of the cost of the car to the complainant. We further direct the opposite party no.1 to pay Rs.11,000/- to the complainant on account of mental agony and harassment suffered by him and for the litigation expenses. This order shall be complied within 30 days from the receipt of copy of this order. It is made clear, if the abovesaid amount is not paid within stipulated period, then this amount will carry interest @ 9% per annum from the date of announcement of this order till its realization. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

Announced

Dated:19.5.2017

                                                                                      (K.C.Sharma)

                                                                                         President,

                                                                             District Consumer Disputes

                                                                             Redressal Forum, Karnal.

 

 

                             (Veena Rani)   (Anil Sharma)

                               Member                    Member