DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Amit Bhalla s/o Sh. Sham Lal Bhalla, r/o H.No. 857, Sec.11, Panchkula, District Panchkula.

              ---Complainant

Vs

1.   Hyundai Motors India Ltd., Regional Office – North through its Regional Manager (Service), DLF Tower-B, 3^rd Floor, Rajiv Gandhi Chandigarh Technology Park, Manimajra, Chandigarh, U.T. 160 101.

2.   M/s Ultimate Automobile Private Ltd., through its Managing Director, 355, Industrial Area, Phase II, Panchkula (Haryana).

---- Opposite Parties

BEFORE:    SH.LAKSHMAN SHARMA              PRESIDENT

MRS.MADHU MUTNEJA               MEMBER

           SH.JASWINDER SINGH SIDHU        MEMBER

Argued By:    Complainant in person.

Sh. Gaurav Bhardwaj, Proxy Counsel for

Sh. Vishal Gupta, Counsel for Opposite Party No.1.

Sh. Aftab Singh Khara, Counsel for Opposite Party No.2.

PER MADHU MUTNEJA, MEMBER

1.          The instant complaint relates to alleged deficiency in service by the Opposite Parties for not being able to rectify the alleged manufacturing defects in the vehicle purchased by the Complainant.

          Factually, speaking the Complainant had purchased a new i10 Era 1.1. vide invoice bearing No. 0665, dated 30.10.2008 from Opposite Party No.2 for a sum of Rs.3,71,588/-. The Complainant has stated that when the car had run merely 400 Kms he noticed that there was oil leakage from the engine which percolated on the ground below the vehicle. This fact was immediately brought to the notice of the dealer, but the Complainant was assured that the leakage must have been due to extra oil and hence cause of no concern. However, the oil leakage persisted and the Complainant reported the same to the dealer at the time of first service as well as second service. The Complainant was assured that the oil seal would be replaced. The Complainant accordingly was asked to bring the vehicle to the service station. The gear box, oil seal and oil chamber were repaired by the Opposite Party No.2 vide invoice dated 16.05.2009 (Annexure C-4) and the Complainant was assured that the problem would not re-occur. However, the problem continued and the exercise was once again repeated vide invoice dated 10.08.2009 (Annexure C-5). When the problem could not be rectified the Complainant informed Opposite Party No.1. The Complainant was asked to take the vehicle to the Chandigarh Dealer for check up. He was informed by the Service Area Manager of the Company that the exact problem had been found and rectified and the car was accordingly repaired vide invoice dated 29.08.2009 (Annexure C-7). The Complainant was informed that the Chamber casing had been replaced. However, despite repeated requests, the oil leakage problem still persisted. Eventually, the officials promised to replace the full engine and gear box but at the time of replacement on 14.11.2009 (Annexure C-13), the Complainant noticed that only one chamber was replaced and not the gear box. As the oil leakage in the engine still persisted, the Complainant once again brought this fact to the notice of Opposite Party when he was informed that it was only extra oil which was falling down from the engine. The Complainant has also stated in the complaint that he was given verbal assurance by the company officials that if the problem occurs in the car in future, the company would replace the old car with a new one.

          After running 26000 Kms in extended warranty the oil leakage problem occurred again. The Complainant again contacted the officials of the Opposite Party No.1. The Complainant was accordingly asked to bring the vehicle to the Opposite Party on 20.7.2012. The car was eventually taken to the service station on 26.7.2012 (invoice Annexure C-16), when it was checked and the Complainant was told that there was no oil leakage in the car. The Complainant requested the officials of the Opposite Party to take test drive of the vehicle. The oil leakage was found still existing at the time of test drive but this time it was from the gear box left side wheel axel. The Complainant has thus filed the instant complaint alleging great harassment and inconvenience due to repeated repair work of the car. He has prayed that the Opposite Parties be directed to deliver a brand new vehicle to him, besides paying compensation and costs of litigation. The Complainant has attached all repair bills with the complaint from Annex. C-1 to C-16 to substantiate his claim.    

2.          Notice of the complaint was sent to Opposite Parties seeking their version of the case.

3.          The Opposite Party No.1 in its reply has denied each and every allegation made by the Complainant in the preliminary objections itself. It has been submitted that Section 24A of the Consumer Protection Act, 1986 requires that the complaint should be filed within 02 years and the present complaint is liable to be dismissed on this ground alone, as the complaint has been filed only in October, 2012, which is beyond two years from the date of purchase. It is settled law that limitation has to be reckoned from the date of purchase of vehicle and not from the date of defect. Answering Opposite Party has also stated that the Complainant has not produced any report to establish his right u/s 13(1)(c) of the Consumer Protection Act, 1986. Also, the prayer of the Complainant for replacement of the vehicle cannot be ordered if the alleged defect is rectifiable. The Complainant has failed to lead any evidence to prove manufacturing defect in the vehicle. The vehicle was delivered to the Complainant on 30.10.2008 by Opposite Party No.2 in perfect running condition and free from all defects. The vehicle reported for first free service at the mileage of 849 Kms when no such problem was reported. To remove the apprehension of the Complainant with respect to vehicle performance, free of cost extended warranty of 3^rd and 4^th year warranty or 80000 Kms was provided which was valid till 29.10.2012. After using the vehicle for 4 years under warranty he has now filed the instant complaint on the expiry of the warranty on frivolous grounds. The vehicle is in perfect running condition and the complaint is nothing but an abuse of the process of law.  

          On merits, Opposite Party No.1 has reiterated the submissions given above. It is admitted that the vehicle was sold to the Complainant by Opposite Party No.2. A two years warranty had been offered on the vehicle. The problem of oil leakage was reported at the time of second free service on 25.4.2009 at the mileage of 1761 Kms. The vehicle was duly inspected and the seal crankshaft real oil was changed under warranty and vehicle was delivered to the Complainant in perfect running condition. The gear box, oil seal and oil chamber were not defective. The Complainant again reported the concern of oil leakage on 16.5.2009 at the mileage of 2298 Kms. The vehicle was duly inspected free of cost and no defect as alleged was found. Vehicle repair history card dated 16.5.2009 is at Annexure R-1/B.  Opposite Party has also stated that whenever the vehicle was reported at the authorized service station, necessary repair work was carried out under warranty. However, the Complainant has kept on lingering the dispute with the unjust demand of replacement of vehicle. No such verbal assurance has been given to the Complainant by the answering Opposite Party. There is no such evidence placed on record by the Complainant to prove any manufacturing defect. It is settled law that it is the responsibility of the Complainant to prove the manufacturing defect in such a situation. The vehicle is currently also running in good condition without any problem. On 26.7.2012 when the vehicle was brought for checking the axle seal was replaced under warranty only. The axle seal replacement has nothing to do with the oil leakage as alleged by the Complainant. The answering Opposite Party has thus submitted that the Complainant is raising oil leakage problem again and again just to seek replacement of old car with a new one after driving it for more than 26549 Kms and after 04 year of purchase. Bringing the vehicle repeatedly to the service station for repair cannot be a ground to hold the vehicle to be suffering from manufacturing defects. Denying all other contentions of the Complainant, Opposite Party No.1 has prayed for dismissal of complaint.  

4.          Opposite Party No. 2 in reply has taken the preliminary objection that the complaint has been filed 04 years after purchase of the vehicle and is barred by limitation. The purpose for which the vehicle was brought to the workshop for repair have been tabled date wise by the answering Opposite Party in para 2 of the preliminary objections. A perusal of the same shows that the Complainant has brought the car to the Opposite Party No.2 for engine oil leakage problem on 25.4.2009, 16.5.2009, 8.8.2009, 19.8.2009, 29.8.2009, 8.11.2009 and 21.11.2009 respectively and not thereafter. From the perusal of the said details it is evident that the vehicle had a problem of engine oil leakage which was rectified under the warranty, without charging any amount from the Complainant in terms of the Hyundai Warranty Policy. It is submitted that for the grievance addressed to the Opposite Party No.1 for necessary replacement the work was carried out under supervision of Opposite Party No.1. The officials of Opposite Party No.1 had replaced the chamber of the vehicle (Engine Assembly Short) under the warranty. The Complainant never alleged for gear oil leakage during this time. The Complainant had also taken extended warranty of two years issued by HMIL, and the problem of gear oil leakage had occurred almost 2 ½ years after the earlier defect of engine oil leakage. Answering Opposite Party has alleged that the new defect could have occurred due to abuse, misuse and neglect or due to the normal running of the vehicle. Hence the allegations of the Complainant linking the defect in the vehicle with the earlier problem of engine oil leakage has nothing to do with the present complaint (all job cards from 8.11.09 to 26.7.12 are at Annexure R-2/1 collectively). Opposite Party No.2 has also maintained that the Complainant had even approached KLG for work on the car who are also authorized dealers of Opposite Party No.1 but they have not been made a party to the complaint. The recent complaint of gear oil leakage in July 2012 has no co-relation with the engine oil leakage complaint of 2009. The problem has been rectified by replacement of axle seal and there is no problem now.    

          On merits, Opposite Party No.2 has admitted the purchase of the vehicle by the Complainant. All other allegations of the Complainant have been denied having stated to be wrong, misconceived and misleading. The submissions given above in the preliminary objections have been reiterated. Opposite Party No.2 has submitted that the vehicle was repaired as per terms of warranty properly and all repairs were done in consultation with the engineers of Opposite Party No.1. There is a 2 ½ years gap in the allegation of re-occurrence of the engine oil leakage. Opposite Party No.2 has, therefore, prayed for dismissal of complaint.  

5.          Parties were permitted to place their respective evidence on record in support of their contentions.

6.          We have heard the learned counsel for the Parties and have perused the record.

7.          There is a gap of 2 ½ years from 21.11.2009 to 26.07.2012 when the vehicle was brought for the same problem once again. On this date the axle seal was repaired under warranty. 

8.          The Opposite Parties have taken the preliminary objection that the complaint is not maintainable as the Complainant has purchased the car in 2008 and has enjoyed the benefit of warranty and extended warranty and has now come forward with his complaint for replacement of the vehicle by alleging manufacturing defect due to the persisting engine oil leakage. According to the Opposite Parties, no application under section 24A of the Consumer Protection Act, 1986 has been filed by the Complainant and as such, the complaint is barred by limitation.

          Though at the initial stage it had seemed that the alleged defect was continuous, it is now brought out that the oil leakages defect was finally rectified on 21.11.2009. A perusal of the invoice placed on record by the Complainant and the job cards placed on record by the Opposite Parties show that the vehicle has been taken to the Opposite Parties for oil leakage problem on 25.4.2009, 16.5.2009, 8.8.2009, 19.8.2009, 29.8.2009, 8.11.2009 and 21.11.2009 respectively and not thereafter. The Complainant has again approached the Opposite Party on 26.7.2012 when the problem has been found to be different.

9.          The Complainant has also not placed on record any expert opinion to prove and substantiate his claim for the alleged manufacturing defect in the car, for which he demands replacement. A similar situation came before the Hon’ble Apex Court in the case titled C.N. Anantharam V/s Fiat India Ltd. & Others, (2011) 1 Supreme Court Cases 460.

          In this case, the Hon’ble National Consumer Disputes Redressal Commission had given a direction for the vehicle to be repaired and to be handed over to the Complainant in the presence of a technical expert, who was to certify that the vehicle was free from any defects. The Opposite Parties were also required to give fresh warranty of one year.

          The Hon’ble Apex Court has held that in addition to the directions given by the Hon’ble National Consumer Disputes Redressal Commission if the independent technical expert was of the opinion that there were inherent manufacturing defects in the vehicle, the Petitioner would be entitled to refund of the price of the vehicle, along with life time tax and EMI along with interest and costs.

          The Complainant in the present case has not even made an application for appointment of an expert to check the vehicle and to testify whether it is suffering from the defects made out in the complaint. It is evident that the car is well beyond warranty and the vehicle has not been taken to the Opposite Party for rectification of the alleged defect after 21.07.2009. Hence, relying on the observations of the Hon’ble Apex Court in the above cited case, as well as the factual position before us, we do not find any merit in the complaint and dismiss it accordingly. No costs.

10.        Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

18^th March, 2013.                                              

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

 (JASWINDER SINGH SIDHU)

MEMBER

“Dutt”