Assam

Dibrugarh

CC/22/2016

SRI NAVIN KUMAR GOENKA - Complainant(s)

Versus

HYUNDAI MOTORS INDIA LIMITED - Opp.Party(s)

SRI BIKASH AGARWALLA

23 Aug 2023

ORDER

JUDGEMENT

            The case of the complainant is that the complainant is a reputed business man of Dibrugarh town within the jurisdiction of this Forum/Commission and the OP No.1 is the Manufacturer and OP No.2 is the authorized dealer under OP No.1 at Dibrugarh dealing with Manufacturing and selling of Hyundai Grand I-10 Sportz Car at Dibrugarh respectively.

            The complainant purchased his Hyundai Grand I-10 Sportz Car bearing Regd. No.AS06-N-5868 from the OPs on 14.04.2014 and the same was duly insured with Bajaj Alianz General Insurance Co. Ltd. Since after purchasing the car the complainant noticed continuous bad noise /sounds on all the doors including dickey while running the car and it was brought to the notice of the workshop manager of the OP No.2 from time to time. The complainant visited several times to cure of the said bad noise/sound but on each occasion, the workshop team of the O.P. No.2 was not able to resolve the said problem and assured the complainant to resolve the problem on the next visit.

            On 09.11.2015 the car of the complainant met with an accident and the car was damaged. The car was brought to the workshop of OP No.2 at Dibrugarh for accident repairment and at the same time brought to the notice of the OP to cure the noise/sound on doors. The OPs have not issued any repairment order or any document for taking the said care for repairment from the complainant and on his protest the workshop manager threatened not to repair the damaged car.

            That after several enquiry and repeated calls, the complainant was asked on 15.02.2016 to take delivery of the said vehicle. But while the complainant went to take the vehicle from the workshop of O.P. No.2, the complainant was asked to first make payment of a sum of ₹ 53,373/- despite having insurance and only after payment of the said sum of ₹ 53,373 by the complainant, the vehicle was handed over to the complainant but no money receipt or any other document relating to the total repair cost was supplied to the complainant.

            The complainant was thereafter shocked and surprised to see that the said car was not repaired properly and there exists the said mechanical defects regarding abnormal noise, turbocharger, music system and the engine stops automatically while running and the complainant on 08/03/2016 was again forced to handover the car to the workshop manager of OP No.2 and this time, on protest by the complainant, one repair order was issued.

            Thereafter on several visits and repeated requests and reminders by the complainant, the OPs failed to repair the complainant’s Hyundai Grand I-10 Sportz car bearing Regd. No.AS-06-N/5868 for the reasons best known to them thereby causing great loss to complainant’s business and comfort. The complainant was handed over the brand new Hyundai Grand i-10 Spsortz Car bearing Regd. No.AS-06-N/5868 with mechanical defect from its inception which resulted in the continuous bad noise/sound and despite several months after the accident, the damage could not be cured by the OPs thereby causing great prejudice to the complainant. The said car could not be repaired even despite the same being lying in the workshop of the OP for last several months.

            The said Hyundai Grand i-10 Sportz car bearing Regd. No.AS-06-N/5868 was a defective one from the very inception and all these acts have been willingly done by the OPs with full knowledge for wrongful gain to themselves and wrongful loss to the complainant. The complainant was compelled to sent one legal notice dated 07.04.2016 through his lawyer, Sri Bikash Agarwalla, Advocate to all the OPs through registered a/d  post, asking them to replace the existing defective car with a brand new one or to refund the invoice amount of Rs.5,87,934/- together with Rs.53,373/- and Rs.2,100/- being incidental charges of the legal notice within 15 (fifteen) days from the date of receipt of the said legal notice. The OPs received the said legal notice but failed to comply with the same as yet.

            The OPs have caused much wrongful loss and damage to the complainant and also caused mental and physical pain, agony, harassment and torture besides prejudice to him. The OPs have also been grossly negligent and deficient in service and this is an unfair trade practice on their part towards the consumer/complainant. The OPs are as such liable to replace the existing defective car with a brand new one or to refund the invoice amount of Rs.5,87,934/- together with Rs.53,373/- being the cost of repairs taken from the complainant on 15.02.2016 and Rs.2,100/- being incidental charges of the legal notice.

The complainant prayed before the Forum/Commission and submitted his claim as hereunder  –

1. To replace the defective Hyundai Grand  i-10 Sportz Car bearing Regd. No. AS06-N/5868 with a new one    OR
2. To give the amount of Rs. 6,43,407 (Invoice + cost of repairs + incidental charges of the legal notice) to the complainant with cost , compensation and expenses of the litigation and for other reliefs.

After registering the case notices were issued to the Opp. Parties and Opp. Parties contested the case by filing their respective W/S.

O.P. No.1 Hyundai Motor India Ltd. through their W/S denies and disputes the complaint of the complainant saying that the allegations made in the complaint that bare perusal of the complaint will reveal that no allegation is made out against Hyundai Motor India Ltd. and they are unnecessarily impleaded as O.P. No.1. O.P. No.1 in their W/S has also raised question regarding territorial jurisdiction of this Forum/Commission. They claim that a brand new Hyundai (Grand i10 Sportz) Diesel car, bearing VIN-MALA851DLE072488 was delivered to the complainant by the O.P. No.2, Borah Brothers (Pvt. Ltd.), Dibrugarh on 18.04.2014 in perfect running condition without any technical or manufacturing defects, what so ever. It is also submitted that O.P. No. 2 and O.P. No.3 are neither agent nor employee of O.P. No.1 and hence, O.P. No.1 is not liable for any act or omission on the part of O.P. No.2 & O.P. No.3. Being the manufacturer O.P. No.1 has no role in retail sale/after sale service/registering a car. Hyundai Motor India Ltd.’s relationship with its dealer is one of the principal to principal basis and not as a principal to agent. It is submitted on behalf of O.P. No.1 that the liability of the O.P. No.1 being the manufacturer of the Hyundai Car is limited and extends to its warranty obligations alone and error/omission/miss- representation, if any, at the time of retail sale of the vehicle on the part of a dealer cannot be fastened upon the manufacturer. It is also submitted that the cars manufactured by OP No.1 are purchased by concerned dealers like O.P. No.2 in this case from O.P. No.1 against payment and thereafter the registered cars are sold by the dealers to the customers under sale invoice.

It is pertinent to submit that all allegations made in the complaint petition are made against O.P. No.2 and O.P. No.3 and there is not a single allegation against the O.P. No.1 as to how the O.P. No.1 is deficient in providing services. O.P. No.1 claims that repair or refill at workshop after uses for running repair due to normal wear and tear cannot be termed as manufacturing defects. Onus is on the complainant to prove “Manufacturing Defects” in the vehicle and further to prove such a defect, opinion of expert is necessary which is not forthcoming in the instant case. The complainant is alleging manufacturing defect, after using the vehicle for more than 26,261 KM from the date of purchase. Had there been any manufacturing defect in the car, the same would not have covered such an extensive mileage within two years from the date of purchase. Denying the mechanical/manufacturing defect in the car O.P. No.1 has submitted that the problems concerning the car in question started surfacing in the vehicle only after the accident and O.P. No.1 has not caused any loss or damage or mental/physical pain or agony to the complainant and they claim that the complaint is devoid of any merit and the same deserves to be dismissed with heavy cost.

            In their W/S jointly OP No.2 & OP No.3 jointly submitted that the complaint petition is not maintainable in law as well as on facts. Replying to para 4 of the complaint petition these Opp. Parties submitted that the complainant never made any complaint regarding bad noise/sound on all the doors including dickey while running the car to the OP and the job card/repair order of 1^st, 2^nd and 3^rd servicing of the said car is completely silent regarding the same. The said car was received by the authorized person of the complainant after satisfying himself and had put his signature on the cash invoice about his satisfaction relating to work done. They claim that continuous bad noise/sound on the doors including dickey may be due to mechanical problem which may arise in any car after a long run and when the said car was brought to the workshop of the OP for servicing, the OP had done their best to remove all problems of the car.

            In reply to para-7 of the complaint petition these Opp. Parties deny the allegation made in para-7 and submit that the car of the complainant met with an accident on 09.11.2015 in Duliajan and the car was brought to the workshop of the OP at about 9 P.M. on the same day. The Service Manager of the OP Shri Mrinmoy Dey beyond his duty hours remained present in the workshop and at 9:30 P.M. he managed to keep the car of the complainant in the workshop though the workshop was already closed for the day. The Service Manager requested the complainant to come on the next day to take the repair order as it was not possible on his part to issue repair order at that time due to closure of workshop for the day.

            The total repairing bill of the said car after accident as submitted by these Opp. Parties was assessed at Rs.1,37,334/- out of which Insurance company has paid Rs.1,23,961/- and the remaining bill amount of Rs.53,373/- had to be paid by the complainant. When one of the attendants of the complainant came to take delivery of the car from the workshop after repairing he was asked by the OP to make the balance payment of Rs.53,373/- to which he denied to pay the same and went away without taking delivery of the car. The OP requested the complainant to take back his car and at last the Service Manager himself delivered the car to the complainant at his residence and the complainant paid the balance amount of Rs.53,373/- to him for which a money receipt being receipt No.4041 dtd. 15.02.2016 was issued to the complainant by the O.P. It is also submitted by the Opp. Parties that the complainant after taking delivery of his car after accidental repair, i.e. after 15.02.2016 under full satisfaction came to the workshop of the OP on 08.03.2016 with a new problem relating to engine, music system and abnormal sound, to which the O.P. replaced the music system to a new one free of cost and done the engine work free of cost completely. The complainant never made any complaint regarding engine problem and other related problems earlier.

            These Opposite Parties claim that the complainant is not entitled to any compensation as prayed for as the Opp. Parties had always provide their best services to solve all problems of its valued customers. They claim that the complainant was reluctant to pay the accidental bill amount of Rs.53,373/- after deducting insurance payable amount for repairing of the car after the accident. But had been compelled to pay the bill amount, out of grudge and to teach a lesion to the Opp. Parties, the complainant made a clever ploy and filed this false case to extract money from the Opp. Parties for wrongful gain for himself and thereby   causing wrongful loss to the Opp. Parties. They pray before the Forum/Commission to dismiss the complaint petition with compensatory cost of Rs.50,000/-.  

            In this case from the complainant’s side evidence of the complainant Shri Navin Kumar Goenka is adduced in the form of affidavit. The evidence of complainant is discussed below.

            The complainant is the sole proprietor of Industrial Machinery Store, a sole proprietorship firm, having its principal place of business at Room No.16, Goenka Market, R.K.B. Path, Dibrugarh Town, P.O. Dibrugarh 786 001, P.S. and District Dibrugarh, Assam who is a reputed business person of Dibrugarh town within the jurisdiction of this Hon’ble Forum/Commission.

            The Opp. Party No.1 is the manufacturer and dealer of Hyundai Grand i10 Sportz Car, the Opp. Party No.2 is the authorized dealer of the Opp. Party No.1 at Dibrugarh and the Opp. Party No.3 is the managing director of the Opp. Party No.2, carrying on business within the district of Dibrugarh, Assam within the jurisdiction of this Hon’ble Forum/Commission.

            The complainant’s firm is the registered owner of one Hyundai Grand i10 Sportz bearing  registration No.as-06-N-5868 after having purchased the same for valuable consideration from the opposite parties on 14.04.2014 and the same was duly insured. Ext. 1 is the Registration Certificate of Hyundai Grand i10 Sportz car bearing registration No.AS-06-N-5868. Ext. 2 is the Insurance Certificate.

            After purchase of the said car, the complainant was shocked and surprised to notice continuous bad noise/sound on all the doors including dickey while running the car and it was brought to the notice of the workshop manager of the Opp.  Party No.2, from time to time and on 31/03/2015 he assured to have repaired the same but the said defect could not be cured. Ext. 3 is the repair order dtd. 31.03.2015.

            The complainant visited several times for the cure of the said bad noise/sound on each occasion, the workshop team of the Opp. Party No.2 could not be able to resolve the said problem and assured the complainant to resolve the problem on the next visit. Ext. 4 is the repair order dtd. 14.07.2015.

            The car thereafter met with an accident in Duliajan on 09.11.2015 due to mechanical defect in the vehicle and in consequence thereof the said car was damaged. The said car was handed over at the workshop of Opp. Party No. 2 at Dibrugarh for repair and it was also brought to the notice to cure the said sound on doors. To his utter surprise, the Opp. Parties have not handed over any repair order or any document for taking the said car for repair from him and on his protest, the workshop manager threatened not to repair the damaged car.

            After several enquiry and on repeated calls, the complainant was asked on 15.02.2016 to take delivery of the said vehicle. But while he went to take the vehicle from the workshop of Opp. Party No. 2, he was asked to first make payment of a sum of `53,373/- despite having insurance and only after payment of the said sum of `53,373/- by him, the vehicle was handed over to him but without any money receipt or any other document relating to the total repair cost etc. Ext. 5 is the Insurance Certificate of Hyundai Grand  i10 Sportz car bearing registration No.AS-06-N-5868 having validity from 14.04.2015 to 13.04.2016.          

            The complainant was thereafter shocked and surprised to learn that the said car was not repaired properly and there exists the said mechanical defects regarding abnormal noise, turbocharger, music system and the engine stops automatically while running and the complainant on 08.03.2016 was again forced to handover the car to the workshop manager of Opp. Party No.2 and this time, in his protest, one repair order was issued. Ext. 6 is the repair order dtd. 08.03.2016.

            Thereafter despite his several visits and repeated requests and reminders of the complainant, the Opp. Parties failed to repair the Hyundai Grand i10 Sportz  bearing registration No.AS-06-N-5868 for the reasons best known to them, thereby causing great loss to his business and comfort.

            The complainant was handed over the brand new Hyundai Grand i10 Sportz car bearing registration No.AS-06-N-5868 with mechanical defect from its inception which resulted in the continuous bad noise/sound and despite several months after the accident, the damage could not be cured by the Opp. Parties thereby causing great prejudice to him. The said car could not be repaired  despite the same being lying in the workshop of the Opp. Parties for last several months.

            The said Hyundai Grand i10 Sportz car bearing registration No.AS-06-N-5868 was a defective one from the very inception and all these acts have been willingly done by the Opp. Parties with full knowledge for wrongful gain to themselves and wrongful loss to the complainant.

            The complainant was compelled to send one legal notice dtd. 07.04.2016 through his lawyer, Sri Bikash Agarwalla, Advocate to all the Opp. Parties through registered A/D post, asking them to replace the existing defective car with the brand new one or to refund the invoice amount of ` 5,87,934/- together with ` 53,373/- and `2,100/- being incidental charges of the legal notice within 15 (fifteen)days from the date of receipt of the said legal notice. The Opp. Parties received the said legal notice but failed to comply with the same as yet. Ext. 7 is the said legal notice dtd. 07.04.2016. Ext. 8 to 10 are its 3 Nos. of postal registration receipts. Ext. 11 and 13 are its 3 A/D cards.

            The Opp. Parties have caused much wrongful loss and damage to the complainant and also caused mental and physical pain, agony, harassment and torture besides prejudice to him. The Opp. Parties have been grossly negligent and deficient in service and this is an unfair trade practice on their part towards the consumer.

            The complainant file the instant case on 03.05.2016 against the Opp. Parties either to replace the existing defective car with a brand new one or to refund the invoice amount of ` 5,87,934/- together with ` 53,373/- being the cost of repairs taken from the complainant on 15.02.2016 and ` 2,100/- being incidental charges of the legal notice.

            The Opp. Parties after receipt of the notice of the instant case, gave delivery of the car to complainant’s driver on 07.06.2016. But in furtherance of their illegal acts and unfair trade practice, got the signature of his driver on their drafted letter in their letter pad without even any trial run which clearly shows the malafide intentions of the Opp. Parties. Ext. 12 is the copy of the said letter dated 07.06.2016.

            Till date the defects in the said car has not have been repaired by the opposite parties and the complainant is facing immense trouble for the same and hence the complainant filed this complaint submitting his claim :

1. To replace the defective Hyundai Grand i10 Sportz Car.
2. To give to the complainant an amount of ` 6,43,407/- (invoice + cost of repairs + incidental charges of the legal notice) with compensation and cost of litigation and other reliefs.

The O.P. No.1 in this case has submitted evidence in affidavit of one Mr. Sukomal Satyen, Asstt. Manager, Legal and Secretarial, Hyundai Motor India Ltd. In his evidence this D/W stated that he is fully acquainted with the facts and circumstances of this case and such he is competent to depose on behalf of O.P. No.1. He admitted that the Hyundai Grand i10 Sportz Diesel car was delivered to the complainant by O.P. No.2- Bora Brothers (P) Ltd., Assam on 18.04.2014 in perfect running condition, as any other new car without any technical or mechanical defect, whatsoever. The disputes among all the parties arose are purely sales and service related and the aspects of retail sale or service are strictly inter se complainant and the concerned dealer/workshop. O.P. No.2 and O.P. No.3 are neither agent nor employee of this opposite party and hence this opposite party is not liable for any act or omission on the part of O.P. No. 2 and O.P. No.3. O.P. No.1 being the manufacturer of car has no role in retail sale/after sale service/registration of car. The relationship of HMIL’s relationship with its dealer is one of the principal to principal basis and not as a principal to agent basis and hence O.P.No.1 could not be held liable for acts and omission of dealer. He claimed that the concerned vehicle met with an accident as mentioned in para 7 and 11 of the complaint and that most of the problems in that vehicle started occurring after the said accident.

D/W 1 in his evidence stated that the liability of O.P. No.1 being the manufacturer of Hyundai cars is limited and extends to its warranty obligations alone and error/omission/misrepresentation , if any, at the time of retail sale of the vehicle on the part of the dealer cannot be fastened upon O.P. No.1. As per warranty terms and conditions of the O.P. No. 1, two years of warranty is offered from the date of delivery of the car to the purchaser of all Hyundai Grand i10 Sportz car sold in India. But the warranty will not apply to damage or failure resulting from

• Negligence or proper maintenance as required as per the owner’s manual.
• Use of improper or insufficient fuel, fluid or lubricant.
• Misuse, abuse, accident, theft, flooding or fire.
• Use of parts other than Hyundai Genuine Parts.
• Any device and / or accessories not supplied by HMIL.
• Modification, modifications, tempering or improper repair.

He claimed that every vehicle is assembled with hundreds of major/minor parts. Since the vehicle is an assembly of machines, any part of the vehicle may incur problem at any time depending upon various conditions, viz. roads, different driving conditions, driving habits of the owner etc. The reporting of vehicle at workshop after its uses for running repair due to normal wear and tear cannot be termed as manufacturing defect and there is no allegation in the complaint that there was any manufacturing defects and allegation is only against the O.P. No.2 and O.P. No.3 and hence O.P. No.1 cannot be held liable. The complainant had run the vehicle for more than 26,261 KM from the date of its purchase, i.e. 18.04.2014 and had there been any defect in the car the same would not have cover such an extensive millage from the date of purchasing the car. The alleged problem occurred in the vehicle due to negligent driving habit of the complainant as the alleged problem occurred only after a year of sale. Warranty obligations of O.P. No.1 excludes in all acts of misuse, abuse, accident resulting from negligence of the complainant.

This D/W further states that there has been no act of negligence and / or deficiency in service on the part of O.P.No.1 and there was no mechanical defect in the car since inception and the problem in the car started surfacing only after the accident of the vehicle. He has also added that the O.P. No.2 had always addressed the concerns of the complainant diligently and after carrying necessary repairs handed over the vehicle without any problem to the complainant and hence this O.P. denies the complaint of the complainant.    

O.P. No.2 & 3 submitted their evidence in affidavit jointly. Shri Mrinmoy Debnath, Service Manager of Borah Brother(P) Ltd., Dibrugarh has deposed on behalf of O.P. No. 2 & 3 in their evidence in affidavit. This DW has stated that the complaint of the complainant is not maintainable either in law or in facts. He has said in his evidence that the complainant purchased the Grand i10 Sportz Car from the opposite parties on 14.04.2014 and after taking delivery of the said car the complainant never made any complaint regarding bad noise/sound on all the doors including dickey while running the car to the O.P. and the job card/repair order of 1^st, 2^nd and 3^rd servicing dtd. 13.05.2014, 23.12.1014 and 14.07.2015 of the said car is completely silent about the same. It is worth mentioning that the said car was received by the authorized person of the complainant after satisfying himself relating to wok done and has put his signature on the cash invoice (about his satisfaction). Relating to other allegations made in the complaint petition continuous bad noise/sound on the doors and dickey while running the car this DW has submitted that sounds from the car may be due to some mechanical problem which may arise in any car after a long run and when the said car was brought to their workshop for servicing the opposite parties had done their best to remove all problems of the car and after servicing the said car was received by the authorized person of the complainant by signing the repair order which clearly shows that he has received the said car on 31.03.2015 on being satisfied and the document filed by the complainant shows the same. Document No. 1, 2 and 3 are servicing job card/repair order and exhibit No.1,2,3 and 1(i), 2(i), 3(i) are the cash  memo. He has claimed that the complainant never mentioned about any defect in the said car in the servicing dtd. 14.07.2015.

This DW has further stated that on 09.11.2015 the said car met with a accident at Duliajan and the car was brought to Dibrugarh on the same day by the complainant at about 9 P.M. and gave a call to this DW to come and receive the said car for repairing and on receiving the call and in order to provide best assistance to the customer beyond duty hours, he remained present in the workshop of O.P. No.2 at (:30 P.M. and somehow managed to keep the said car in their workshop at that relevant time though the workshop was already closed for the day. He requested the complainant to come to the workshop on the next day to take the ‘repair order’ of the car as it was not possible on his part to issue repair order as the workshop was already closed for the day.  

The total repairing bill of the said car after accident as submitted by these Opp. Parties was assessed at Rs.1,37,334/- out of which Insurance company has paid Rs.1,23,961/- and the remaining bill amount of Rs.53,373/- had to be paid by the complainant. When one of the attendants of the complainant came to take delivery of the car from the workshop after repairing he was asked by the OP to make the balance payment of Rs.53,373/- to which he denied to pay the same and went away without taking delivery of the car. The OP requested the complainant to take back his car and at last the Service Manager himself delivered the car to the complainant at his residence and the complainant paid the balance amount of Rs.53,373/- to him for which a money receipt being receipt No.4041 dtd. 15.02.2016 was issued to the complainant by the O.P. Ext. No.4, 5 & 6 are the copy of insurance payment bill and money receipt and total repairing bill of the car.

It is also submitted by the Opp. Parties that the complainant after taking delivery of his car after accidental repair, i.e. after 15.02.2016 under full satisfaction came to the workshop of the OP on 08.03.2016 with new problem relating to engine, music system and abnormal sound, to which the O.P. replaced the music system to a new one free of cost and done the engine work free of cost completely. The complainant never made any complaint regarding engine problem and other related problems earlier. Ext. No.7 is the cash memo dtd. 03.07.2016.

            These Opposite Parties claim that the complainant is not entitled to any compensation as prayed for as the Opp. Parties had always provide their best services to solve all problems of its valued customers. They claim that the complainant was reluctant to pay the accidental bill amount of Rs.53,373/- after deducting insurance payable amount for repairing of the car after the accident. But had been compelled to pay the bill amount, out of grudge and to teach a lesson to the Opp. Parties, the complainant made a clever ploy and filed this false case to extract money from the Opp. Parties for wrongful gain for himself and thereby   causing wrongful loss to the Opp. Parties. They pray before the Forum/Commission to dismiss the complaint petition with compensatory cost of Rs.50,000/-. 

            In this case the complainant submitted his written argument on 12.04.2018 at length. Carefully perused the written argument submitted by the complainant and it is found that this argument is nothing but a reiteration of the evidence in affidavit of the complainant.

                In their written argument the O.P. No.1 has submitted that the complaint of the complainant is baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merit and deserved to be dismissed in limine. It is submitted that the present complaint has been filed deliberately to gain undue publicity and to bring disrepute to a well-known company like Hyundai Motor India Ltd.

            It is submitted in their argument that no cause of action has arisen against Hyundai Motor India Ltd. and it is pertinent to mention that the complaint reveals that no allegation is made out against Hyundai Motor India Ltd. This O.P. has been unnecessarily impleaded as a party as it is neither a proper nor necessary party to the present proceeding nor any cause of action has arisen against this answering opposite party.

            This O.P. has submitted that this O.P. No.1 operates with all its dealers on a principal to principal basis and errors/omission, if any, with respect to the retailing or servicing of the vehicle is the sole responsibility of the concerned dealer. The liability of O.P. No.1 being the manufacturer of the Hyundai car is limited and extends to its warranty obligations alone. Any error/omission/misrepresentation, if any, at the time of retail sale of the vehicle on the part of the dealer cannot be fastened upon O.P. No.1. It is also submitted that the “title of the Hyundai vehicle” passes on to the concerned dealer the moment it is to be on a carrier. O.P. No.2 & 3 are neither agent nor employee of O.P. No.1 and hence O.P. No.1 is not liable for any act or omission on the part of O.P. No. 2 & 3.

This O.P. has submitted that as per warranty terms and conditions of the O.P. No. 1, two years of warranty is offered from the date of delivery of the car to the purchaser of all Hyundai Grand i10 Sportz car sold in India. But the warranty will not apply to damage or failure resulting from

• Negligence or proper maintenance as required as per the owner’s manual.
• Use of improper or insufficient fuel, fluid or lubricant.
• Misuse, abuse, accident, theft, flooding or fire.
• Use of parts other than Hyundai Genuine Parts.
• Any device and / or accessories not supplied by HMIL.
• Modification, modifications, tempering or improper repair.

            It is also submitted that all the allegations made in the complaint are against O.P. No.2 & 3 and there is not a single allegation against the answering O.P. as to how it is deficient in providing services. Neither any amount was paid to the answering O.P. nor any promise was made by this O.P. and there is no privity of contract with this O.P. and hence, question of granting refund or compensation does not arise at all. This O.P. claims that reporting of vehicle at workshop after it is used for running repair due to normal wear and tear cannot be termed as manufacturing defect and this O.P. is not under any obligation where no manufacturing defect is proven. This O.P. further claims in his written argument that the complainant is not a consumer of this O.P. u/s 2 of C.P. Act, 1986. It is also submitted that the obligation of O.P. No.1 is only limited to warranty obligations and admittedly, there is no allegation relating to performance of car or warranty obligations which signifies that the question for deficiency or defects in goods manufactured by this O.P. does not arise at all. The vehicle in question had been used for more than 26,261 KM from the date of its purchase. It is significant to mention that had there been any manufacturing defect in the car, the same would not have cover such an extensive millage within two years from the date of purchase of the care. The O.P. No.1 claims that the complaint is devoid of any merit and the same deserves to be dismissed with imposition of heavy cost. Along with their argument O.P. No.1 has referred the case of R. Bhaskar Vs D.N. Udani reported at (iv) (2006) CPJ 257(NC). A computer generated copy of this judgement given by our Hon’ble National Consumer Disputes Redressal Commission has also been submitted. Carefully read the judgement.

            O.P. No.2 & 3 submitted their written jointly on 12.04.2018. In their written argument these opposite parties have submitted that the car was received each time by the authorized person of the complainant after every servicing after satisfying himself relating to the work done by the opposite parties and has put his signature on the cash invoice (about his satisfaction) relating to the servicing/work done in the car. According to them the problems in the car mentioned in the complaint petition were all general problems which may arise in any car after a long run depending upon the driving conditions, driving skills, road condition and those problems can be cured after general servicing and the same has been satisfactorily done by these opposite parties whenever the complainant had approached the workshop of the opposite parties.

            These opposite parties have further argued that the complaint of the complainant was not supported by any opinion or certificate or any technical expert that the aforesaid car was having problem as stated by the complainant. They claim that there is no deficiency of service of the opposite parties and the opposite parties are not liable to pay any compensation, rather there is laces and inefficiency on the part of the complainant and with a view to make malafide gain has filed this complaint which is liable to be rejected summarily.

Now points to be decided.

1. Whether the complainant is a consumer of the opposite parties under Consumer Protection Act.
2. Whether this Commission has jurisdiction to try this case.
3. Whether the complaint was filed within the period of limitation.
4. Whether the opposite parties are liable for deficient and negligent services towards the complainant.
5. Whether the complainant is entitled to the reliefs claimed by him in his complaint petition.

Points decided and reasons thereof.

1. Held that the complainant is a consumer of opposite party No.2 & 3. As regards opposite party No.1, on careful examination of whole the case we found nothing to regard the complainant as a consumer of O.P. No.1. The complainant did not pay any amount to O.P. No.1 and O.P. No.1 also had not made any promise to create the relationship of seller/service provider and consumer.
2. This Commission has proper territorial as well as pecuniary jurisdiction to try this case.
3. From perusal of the complaint petition and order sheets it is found that the complaint was filed within the prescribed period of limitation and this fact is not challenged by the O.P.
4. To determine whether the opposite parties are liable for deficient and negligent service towards the complainant, we have carefully examined the complaint petition, evidence in affidavit and written argument submitted by the complainant. At the same time we have also gone through the W/S, evidence filed by all the opposite parties and their written arguments also. O.P. No.1 in his/their W/S, evidence and in written argument also has categorically denied any allegation leveled against them by the complainant. We have also found that all allegations in the complaint is made against O.P. No. 2 & 3 and found no allegation against O.P.No.1 to make O.P. No.1 liable for deficient services. It is observed that neither any amount was paid to O.P. No.1 by the complainant nor any promise was made by O.P. No.1 and as such there is no privity of contract in between the complainant and O.P. No.1. We found no room to book O.P. No.1 for deficient/negligent services towards the complainant. But undoubtedly the complainant is a consumer of O.P. No.2 & 3. But in determining the liability of these opposite parties we have gone thoroughly through the complaint petition, W/S, evidence and arguments of both the parties along with all the documents submitted by both the parties.

             We have found, as claimed by O.P. No.2 & 3, the complainant availed the opportunity of 3(three) free services of his car on dated 13.05.2014, 23.12.2014 and 14.07.2015. O.P.’s document No. 1, 2 & 3 are those repair orders of free services which were lateron exhibited as Ext. No.1, Ext. No.2 and Ext. No.3. On perusal of these exhibits we found that the complainant never complained about any abnormal sounds/noise on all the doors including dickey. Ext. No.6 of the complainant which is another repair order of the complainant for the first time complained about abnormal noise from front, problem of engine etc. in this repair order only. The car of the complainant met with an accident on 09.11.2015. Seen that those problems were shown by the complainant before O.P. No.2 & 3 on 08.03.2016 as evident from exhibit No.6, five months after the car met with the accident. After the accident the car of the complainant which was placed before these O.Ps on 09.11.2015 and the damaged car was repaired by O.P. No.2 & 3 and the total repairing cost went to ₹ 1,77,334/- out of which the insurance company had paid ₹ 1,23,961/- and the remaining bill amount of ₹53,373/- had to be paid by the customer/complainant. Denying to pay this amount of ₹53,373/- the complainant refused to take delivery of his car. Inspite of several requests the complainant did not take delivery of his car and at last the Service Manager of O.P. No.2 himself delivered the car to the complainant at his residence and the complainant paid the due amount of ₹53,373/- to the Service Manager and a money receipt being receipt No.4041, dtd. 15.07.2016 was issued to the complainant by the opposite party. It is established that the claim of the complainant that the vehicle was handed over to him without any money receipt is not true. Document No.5 is the xerox copy of money receipt issued by the O.P. Moreover, the complainant though termed the accident as mechanical defect, but the details of accident had not been narrated.

                       On 08.03.2016, after completion of accidental repair the complainant came to the O.P. with other problems relating to engine, music system, abnormal sound/noise etc. to which the O.P. replaced the music system with a new one and done engine works, both free of cost completely. From this angle we found it difficult to make the O.P. No 2 and O.P. No.3 liable for deficient services. As regards mechanical defect, the onus definitely is on the complainant to prove ‘manufacturing defects’ and to prove such a defect,

            opinion of expert is necessary which is lacking in the present case and above all the vehicle was subjected to a road accident, which might have adversely affected its mechanism. Only on the basis of repairing of vehicle on few occasions does not prove manufacturing defects.

                        Our National Commission in EID Parry(India) Ltd. versus Baby Benjamin Thushara 1(1992) CPJ 279(NC) opined that “if a consumer purchase some machinery and some parts of it, if found having manufacturing defect and that part can be replaced then it will be very prejudicial to the interest of the manufacturer if he is asked to replace the whole machinery without sufficient cause”.

                        Under the above reasons and observations this Commission unanimously decide that the complainant failed to prove his claim of deficient and negligent services against all the opposite parties and the complainant, we believe, is not entitled to the reliefs claimed by him. Hence, delivering the judgement this Commission has dismissed the complaint petition of the complainant without cost.

                        The instant C.C. case No.22/2016 is disposed of on contest.

                                    Copy of this judgement be furnished to the complainant.