Tamil Nadu

North Chennai

CC/109/2016

M/S.DRA Industries Limited - Complainant(s)

Versus

Hyundai Motors India Limited - Opp.Party(s)

A.Swaminathan

24 May 2018

ORDER

                                                             Complaint presented on:  14.06.2016

                                                                Order pronounced on:  24.05.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

THURSDAY  THE 24^th  DAY OF MAY 2018

 

C.C.NO.109/2016

 

 

M/s.DRA industries Limited,

18/26, First Floor,

Loganathan Nagar,

II Street, 100 Feet Road,

Choolaimedu,

Chennai – 600 094.

                                                                                    ….. Complainant

 

..Vs..

1.The Charman,

Hyundai Motors India Limited,

Regional Office & Factory,

Irrugattukottai, NH No.4,

Sriperumbudur Taluk,

Kanchipuram District,

Tamil Nadu – 602 117.

 

2.The Manager, Kun Hyundai,

Kun Auto Co., Pvt., Ltd.,

Showroom at

C48,II Avenue, Anna Nagar East,

Chennai – 600 102.

 

 

.....Opposite Parties

Date of complaint                                 : 14.07.2016

Counsel for Complainant                      : A.Swaminathan, N.Alagappan

Counsel for 1^st Opposite Party                 : M/s.IPN Associates

 

Counsel for 2^nd opposite party                       : M/s.S.V.Udayakumar, D.Johnsamuvel,

                                                                    S.Dinesh  Babu, V.Palanikumar

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to direct the opposite parties replace it with new vehicle or refund the cost of the vehicle  Rs.16,77,976/- with 18% interest and also to pay compensation for deficiency in service and mental agony and  with cost of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant had purchased a Hyundai Creta, White  Car from the 2^nd opposite party by a tax invoice dated 24.09.2015. The complainant made piecemeal payments on various dates and paid a balance sum of Rs.13,84,000/- through the financier Kotak Mahendra. The said vehicle was manufactured by the 1^st opposite party. The vehicle was delivered to complainant on 25.09.2015.

          2. The complainant heard abnormal noise within three months of purchase from the engine and white smoke came from the exhaust pipe. The complainant booked the vehicle with the 2^nd opposite party for service on 11.12.2015. The 2^nd opposite party agreed to deliver the vehicle after service on 12.12.2015 and however, he did not deliver and made further delay. After 17 days, the complainant sent e-mail dated 28.12.2015 to the 2^nd opposite party and after that he received communication from the 2^nd opposite party that there are some defects in the engine spare parts and same has to be replaced. The vehicle was delivered only after a month that too after reminding the 2^nd opposite party that they are taking steps to replace the vehicle through the 1^st opposite party.

          3. However, the problem continued and the complainant booked for service on 01.03.2016. Though the 2^nd opposite party agreed to deliver on 03.03.2016, he did not do the same and the complainant received e-mail form the 2^nd opposite party on 22.03.2016 that the vehicle was inspected by HMIL team and they found that there is defect in engine part and got approval to replace the engine assembly. The vehicle was run only 3448 Kilo meters. The 2^nd opposite party have not rectified the problem and delivered and the vehicle is in the custody of him. The vehicle is having manufacturing defect. Hence the opposite parties have committed deficiency in service. Hence the complainant filed this complaint to direct the opposite parties replace it with new vehicle or refund the cost of the vehicle at Rs.16,77,976/- with 18% interest and also to pay compensation for deficiency in service and mental agony and  with cost of the complaint.  

4. WRITTEN VERSION OF THE 1^st OPPOSITE PARTY IN BRIEF:

          This opposite party admits that the vehicle purchased by the complainant through the 2^nd opposite party was manufactured by him. The car was reported for the first service on 07.11.2015 with the 2^nd opposite party and at that time there was no complaint in the vehicle. On 11.12.2015 the complainant reported to the 2^nd opposite party alleging that the vehicle is with abnormal engine noise and white smoke. After service the vehicle delivered to the complainant. Again the complainant reported on 01.03.2016 for similar problems about the vehicle.

          5. The complainant himself admitted in his complaint that he had purchased the vehicle for commercial purpose. Hence the complainant/company cannot be construed as a consumer and on the score alone the complaint is liable to be dismissed.

          6. The complainant had suppressed the material fact that the injectors of engine were damaged due to seepage of water and that was the reason for the emanation of white smoke and hence there is no manufacturing defect in the engine. Since, there is no manufacturing defect in the vehicle, it is settled portion that the vehicle can never be replaced and refund of money cannot be ordered. Hence this opposite party has not committed any deficiency in service and prays to dismiss the complaint with costs.

7. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          This opposite party is a dealer of the 1^st opposite party. He admits that the complainant purchased the vehicle as stated by him. The complainant entrusted the vehicle for the first service on 07.11.2015 and the vehicle was made ready on the same day and however, he had taken delivery of the vehicle on 19.11.2015 due to flood water in his place. Again the complainant entrusted the vehicle on 11.12.2015 reported the vehicle with the 2^nd opposite party alleging abnormal engine noise and white smoke. After service the vehicle delivered to the complainant.       

       8.  Again the complainant reported the vehicle on 01.03.2016 for similar problems. As a goodwill gesture the 2^nd opposite party agreed to replace the engine assembly. At no point of time this opposite party come forward to place the new vehicle. The vehicle was faulted due to flood damage and not due to any manufacturing defect as alleged by the complainant. The complainant had not come forward to take delivery of the vehicle and the vehicle is also lying in the yard. Hence this opposite party has not committed deficiency in service and prays to dismiss the complaint with costs.

9. POINTS FOR CONSIDERATION:

          1. Whether the complainant is a Consumer?

          2. Whether there is deficiency in service on the part of the opposite parties?

          3. Whether the complainant is entitled to any relief? If so to what extent?

10. POINT NO :1        

          The admitted facts are that the 1^st opposite party  is the manufacturer of Hyundai Creta Car and the 2^nd opposite party is their authorized dealer for the said car and the complainant purchased the said car under Ex.A2  invoice for a consideration of Rs.13,84,337/- and Ex.A4 & Ex.A1 are the registration certificate and insurance for the vehicle and the complainant entrusted the vehicle to the 2^nd opposite party on 11.12.2015 under Ex.A5 that there was abnormal noise in the engine and white smoke emanated and after service the vehicle was delivered to him and again the complainant entrusted the vehicle under Ex.A10 to the 2^nd opposite party for similar complaint and thereafter the vehicle is still  lying with the 2^nd opposite party.

          11.The opposite parties argued that the complainant himself pleaded in his complaint and in the notice that he had purchased the vehicle for business purpose and due to the vehicle got repaired, the complainant sustained loss in his business and this proves that the complainant purchased the vehicle only for making profit in his business and therefore he cannot be considered as a Consumer. Ex.A4 is the registration certificate of the vehicle. The complainant counsel replied that the vehicle was purchased only for the travel of MD of the complainant company. The vehicle was not involved in making profit in the business carried on by the complainant company. The opposite parties also not established that the vehicle was used by the complainant excepting travel, it directly involved in the business carried on by the complainant. Therefore, as contended by the complainant, we hold that  the vehicle was purchased only for the travel of the complainant MD and the vehicle  was not used for making any profit in the business and hence we reject the contention of the opposite parties in this regard and further held that the complainant is a consumer.

12. POINT NO:2

          The 2^nd opposite party himself endorsed in Ex.A5 & Ex.A10 repair order that the complainant alleged problems of abnormal engine noise and white smoke. Even after first time rectification the above problems persisted and again the complainant entrusted the vehicle on 01.03.2016 shows that the engine in the vehicle had irreparable problem and that is why the same problem arose. The 1^st opposite party sent Ex.A11 mail dated 22.03.2016 that the vehicle was inspected by their HMIL team and inspection they found defect in the engine part and also got approval to replace the engine assembly under the warranty. The manufacturer himself admitted in the above mail that the defect found in the engine and agreed to replace the engine assembly establishes that the engine in the complainant vehicle has got manufacturing defect.  The 2^nd opposite party also could not service it. It is not the case of the complainant that leaving the engine the other parts of the vehicle have any defect. Therefore, we hold that in respect of the engine in the vehicle, the opposite parties 1 & 2 have committed deficiency in service.

13. POINT NO:3

          The 1^st opposite party agreed in Ex.A11 mail dated 22.03.2016 that he would replace the engine assembly under the warranty. Only thing is the approval of the complainant sought in the said mail was not given by him to carry out the work. However, on the date of entrusting the vehicle, the warranty is in force and the opposite parties also agreed to replace the engine assemble under the warranty. Therefore, it would be appropriate to direct the opposite parties 1 & 2 to replace the engine assembly with new one and service the vehicle in working condition and hand it over to the complainant without demanding any money from him.

          14. The complainant sought relief either to replace new vehicle or refund the price of the vehicle and also to pay compensation of Rs.3,00,000/- with costs. It is not the case of the complainant that apart from the engine the other parts of the vehicle have any defect. We have already ordered above that the defective engine assembly should be replaced. There is no defect in the other parts of the vehicle. In such circumstances the replacement of new vehicle or refund of the cost price of the vehicle cannot be ordered.

          15. The 1^st opposite party sought for approval for replacement of the engine assembly in Ex.A11 at page 15 of the mail dated 29.03.2016. The complainant has not given any approval for the same. Therefore, in such circumstances the opposite parties was unable to replace the engine assembly and the 2^nd opposite party could not carry on the said work and service the vehicle and hand over it to the complainant. The work could not be carried out due to non approval of the complainant only. Hence, in such circumstances the complainant is not entitled for any compensation from the opposite parties for his own fault. However, the parties can be directed to bear their own cost. 

          In the result the complaint is partly allowed. The opposite parties 1 & 2 jointly or severally are ordered to replace the engine assembly in the complainant vehicle with new one and after service deliver the vehicle to the complainant in a working condition within 30 days from the date of this order. The complaint in respect of the other reliefs is dismissed. Parties are directed to bear their own costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 24^th  day of May 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 15.09.2015                   General Insurance issued by HDFC ERGO

 

Ex.A2 dated 24.09.2015                   Tax Invoice issued by the 2^nd opposite party in

                                                   favour of the complainant

 

Ex.A3 dated 25.09.2015                   Letter issued to the complainant by Kotak 

                                                   Mahindra Prime Limited

 

Ex.A4 dated 25.09.2015                   Certificate of Registration issued by the Chennai

                                                    South West Regional Transport Office

 

Ex.A5 dated 11.12.2015                   Repair Order issued by the second opposite party

 

Ex.A6 dated 28.12.2015                   complainant’s mail to the 1^st opposite party

 

Ex.A7 dated 30.12.2015                   Automated response received from 1^st opposite

                                                    party

 

Ex.A8 dated 07.01.2016                   complainant’s letter to the 1^st opposite party

 

Ex.A9 dated 12.01.2016                   Automated response received from 1^st opposite

                                                    party

 

Ex.A10 dated 01.03.2016                 Repair order issued by the 2^nd opposite party

 

Ex.A11 dated 22.03.2016                 Mail from 1^st opposite party with the complainant

 

Ex.A12 dated 04.04.2016                 Notice issued by the complainant’s counsel to the

                                                    opposite parties

 

Ex.A13 dated 12.04.2016                 complainants Board Resolution

 

Ex.A14 dated 04.05.2016                 Reply from the opposite parties counsel

 

Ex.A15 dated 18.12.2015                 Trip Sheet/Cash bills issued by Agnes Travels in   

                 to 01.04.2016              favour of the complainant

 

Ex.A16 dated 01.04.2015          Ledger copy of the 2^nd opposite party

                  to 31.03.2016       

         

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

                                      ……… NIL …….

 

 

 

 

MEMBER – I                                                               PRESIDENT