BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD : THIRUVANANTHAPURAM
PRESENT
SHRI. P. SUDHIR : PRESIDENT
SMT. SATHI. R : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C.No: 229/2011 Filed on 11/07/2011
Dated: 31..07..2015
Complainant:
Hashim, S/o Mohammed Abdul Khader, Shamiya Manzil, Koduvazhannoor-P.O., Kilimanoor, Thiruvananthapuram.
(By Adv. Narayan. R)
Opposite parties:
1. Hyundai Motors India Limited, A-30, Mohan Co-operative Industrial Area, Phase-I, Mathura Road, New Delhi – 110 044. Represented by its General Manager.
(Rakesh Thampan)
2. Hilton Hyundai (Authorised Dealer for Hyundai Vehicles)
Eanchakkal, Thiruvananthapura, - 695 008. Represented by its Manager.
(By Adv. Mohandas Pai)
This C.C having been heard on 15..07..2015, the Forum on 31..07..2015 delivered the following:
ORDER
SMT. LIJU B. NAIR, MEMBER:
The complainant purchased a Hyundai Getz Car manufactured by the 1st opposite party through its authorised dealer, the 2nd opposite party on 15/09/2007. The car having Reg. No. KL-16D-8307 with Engine No. G4HG7M174699 and chasis No. MALBT51GR7M050483 *F cost Rs. 3,89,402/-. The colour of the car is Ebony black. The complainant has been using the vehicle since then. He had done regular check up and service at the authorised service station, with the 2nd opposite party. While so by the later half of 2009, the paint in the doors of the car began to develop a rough boiled and hazy appearance. It first appeared in the front left door. The complainant took the car to the 2nd opposite party who had informed him that it is paint peeling and that there is nothing to worry about. The complainant was also informed that the warranty for paint is only for 2 years, and so painting cannot be done free of cost. 2nd opposite party informed the complainant that it is premature to go for painting of a car that is just 2 years old. Since there was no other major complaint with the car, the complainant decided to wait and not to go for painting at that juncture. Within the next eight to ten months boils began to develop in the four doors of the car and the doors of the car began to have an uneven look. Whenever the complainant used to take the car for regular check up with the 2nd opposite party, he was told that it is only a minor problem with the paint and it can be easily cured when the vehicle is repainted. However, by November 2010, there was a hole in the front left door. On examination of the hole, the complainant understood that the material used for making the door had rusted and the same had initially manifested in the form of boils. Within weeks holes began appearing in various parts of the car doors. Whenever, the complainant had taken the vehicle for regular check up with the opposite parties, they never bothered to inform the complainant the true and real cause for the boils. Instead they falsely informed the complainant that the same is only simple paint peeling and nothing more. Now the boils are spreading fast and it is only a matter of time before more holes develop in various other parts of the car doors. In November 2010, when the complainant approached the 2nd opposite party, they simply said that these sorts of complaint happen in about one in five hundred cars, and that this was the fact of the car. No solution was given by the opposite parties, but they told the complainant to buy four new doors costing about Rs. 80,000/-. The complainant was shocked and surprised by the impertinent and callous attitude of the 2nd opposite party. He immediately sent a mail to the 1st opposite party, but there was no positive outcome. So the complainant was constrained to send a lawyer’s notice. The 1st opposite party did not respond to the letter, while the 2nd opposite party issued a reply raising false contentions. In the reply, it was stated that the 1st opposite party had issued a Door Rusting Campaign Circular in January 2009 and that they had waited till November 2009 for the complainant to produce the car for service. They also told that a notice send to the complainant has returned unserved. The complainant was surprised at the said reply. The complainant is a permanent resident at Shamiya Manzil, Koduvazhannoor-P.O., and there is no occasion for any notice to be returned unserved. Hence on receipt of information of the lawyer’s notice, the complainant on 17/05/2011 went to the 2nd opposite party’s workshop with his car and enquired about details of the circular sent and about the notice being returned unserved. The 2nd opposite party’s employees adopted a belligerent attitude towards the complainant. The complainant was told to buy four new doors and if he is not amenable, not to disturb the 2nd opposite party again. There was callous indifference and impertinence in the attitude of the 2nd opposite party. The complainant suspects the genuineness of the claims made by the reply notice, and reasonably believes that neither circular nor any letter was issued to the complainant. So the complainant approached this Forum for redressal of his grievances.
2. 1st opposite party filed preliminary objection contending that the complainant purchased a Hyundai Getz car bearing VIN: MALBT51GR7M050483 and Engine No.G4HG7M174699 from the 2nd opposite party on 15/09/2007. The said car was delivered to the complainant in perfect running condition as any other new car, without any technical or mechanical defect. It is indeed very strange that the complainant after purchasing the car in September 2007 has reported the said car at 2nd opposite party, for its first, second and third free servicing on 31/10/2007, 05/03/2008 &17/10/2008 at mileages of 1,692 kms., 5,151kms & 10,144 kms, however, no problem whatsoever as is being alleged now in the instant complaint, has ever been reported by the complainant. It is further submitted that after third free service, complainant reported with his car only once at the workshop of 2nd opposite party on 20/11/2010 and on said reporting also not any complaint as alleged in the complaint has been reported by complainant. It is submitted that the car in question has already been driven for more than 4 years and moreover, in view of the fact that the complainant has never reported any concern with regard to the car as is being alleged now, the complainant cannot seek the alleged compensation or replacement of the doors of car as prayed for in the instant complaint. Had there been any manufacturing defect in the car, the same could not have been used for more than 4 years. The present complaint therefore, is liable to be dismissed in view of the above stated facts. Had there been any problem with the car or paint of the car, the same ought to have been reported by the complainant to either of the opposite parties during his visits. It is submitted that the complainant has been negligent in maintaining the car in question as per the Owner’s manual provided with the car, wherein specific instructions as to use and maintenance of the car are given. As per warranty conditions the owner of the vehicle is responsible for proper use, maintenance and care of the vehicle in accordance with the instructions mentioned in the Owner’s Manual & Service booklet. It is clearly mentioned and prescribed in the Owner’s Manual that for overall better performance of the vehicle, time interval between any two consecutive services should not exceed more than six months or 10000 kms. However, the complainant miserably failed to maintain his car and has never reported his car for periodic service after third free service carried out on 17/10/2008. It is submitted that complainant’s vehicle has not been maintained as per the Periodic Maintenance Schedule prescribed in the Owners’ Manual. Hyundai Motor India Limited operates on a principal-to-principal basis with all its dealers. Omission / error, if any that is committed by the dealer concerned while retailing, repairing, servicing the cars to its customers is the sole responsibility of the concerned dealer. The present complaint is barred by limitation and is liable to be dismissed as the car was delivered to the complainant on 15/09/2007 and the present complaint has filed after 4 years much after the prescribed limitation period in Section 24-A of Consumer Protection Act, 1986. Further, the complainant is alleging manufacturing defect in the vehicle. It is submitted that had there been any inherent defect the same would have come to knowledge of the complainant within few days of purchase. The alleged problem of rusting, if any on the body of the car is not a defect much less manufacturing defect in the car. It is submitted that rusting may be caused due to road salts, dust control chemicals, ocean air and industrial pollution in high corrosion areas. It is absolutely necessary to keep the vehicle clean and free from mud accumulations and accumulation of road salts. Industrial pollution etc. It is further submitted that the main allegation of the complainant revolves around the so-called rusting, which is certainly not on account of any manufacturing defect but may have occurred on account of paint scratch, damage and other reasons, which may be attributable to a number of external factors such as:
(a) Removal of paint and protective coatings from the exterior and the underside of the car resulting from minor / major accidents or abrasion by stones and gravel may lead to corrosion. Bare metal corrodes quickly and may develop into major repair expenses. The car has to be, therefore, inspected frequently for chips or scratches, have to be repair right away to prevent corrosion of the metal underneath.
(b) Moisture trapped in the body cavities also lead to corrosion. Dirt and road salt that collects in the hollows on the underside of the car stays damps, promoting corrosion in that area. Cleaning out the drains holes in the bottom of the doors and the body is a must after washing.
© Accumulation of road salt, dirt, bird dropping road oil and tar, moisture or chemicals from industrial chimneys may damage vehicle finish, it left on painted surface and especially in the hard to reach areas of the vehicle under body or the frame.
(d) Various environmental conditions may also accelerate corrosion.
(e) Road salt, dust control chemicals, sea air or industrial pollution will all accelerate the corrosion of metal.
(f) High humidity will increase the rate of corrosion particularly when the temperature range is just above the freezing point.
(g) Moisture in certain areas of a vehicle for an extended period of time may promote corrosion even though other body sections may be completely dry.
(h) High temperature causes an accelerated rate of corrosion to parts of the vehicle, which are not well ventilated to permit quick drying.
It is further submitted that all the purchasers of the Hyundai cars are provided with the Owners Manual at the time of purchase of any Hyundai car. The said manual clearly prescribes the instructions for cleaning and maintaining the car. Any steps taken contrary to the said instructions or products / chemicals used which are not prescribed, may lead to problems like rust stains, corrosion etc. It is submitted that the complainant did not adhered to the Vehicle Maintenance Guidelines as prescribed in Owner’s Manual. The said car in question was reported at 2nd opposite party’s workshop for 3rd free service. Thereafter the said car in question has not reported for any periodic servicing. As per the schedule, the vehicle should be reported after every 6 months. This clearly shows that the complainant has been negligent in the maintenance of the car. It is further submitted that even assuming without admitting that any cause ever arose for the present complaint, the complainant would not have waited for almost 4 years to pass by before filing the present complaint. It is submitted that the present complaint is barred by the law of limitation and deserves to be dismissed on this ground alone.
3. 2nd opposite party raised the following contentions: The complaint is not maintainable against the 2nd opposite party as the manufacturer is liable for any alleged manufacturing defects (if any without admitting). Complainant’s address given in the complaint and for registration purpose are different. For all correspondence 2nd opposite party used the address which was supplied by the complainant. The allegations of latent manufacturing defect is false and denied. There was no deficiency in service or unfair trade practice on the part of the 2nd opposite party. The complainant after completion of first, second and third free services on 30/10/2007, 05/03/2008 and 17/10/2008 reported for a repair for the vehicle in question only after 3 years on 20/11/2010. In fact as per the manufacture’s service policy after completion of third free service all vehicle have to report for its periodic services in every six months. In this case complainant has never reported his vehicle in any authorised service station. If routine services were done the problem if any could be identified at the earlier stage itself and can be prevented. The door rusting was never reported during the first 3 years at all. The manufacture during 2009 released a campaign circular to call for all Getz vehicle to bring the vehicle for preventive rectification works in all doors on free of cost basis. The 2nd opposite party pursuant to the circular has sent letters to all car owners during 2009 to bring the vehicle. The complainant did not turn up and the letter sent was returned. It is true that complainant purchased a Getz car bearing No. KL-16 D8307. The vehicle was not subjected to regular check up after the free third service. The vehicle was never brought before 20/11/2010 after the third free service on 17/10/2008. The 2nd opposite party as per instructions of 1st opposite party through their Technical Service Bulletin started campaign for free preventive rectification process to all Getz cars during 2009. It is totally improbable to return the complainant stating the problems are minor. On 20/11/2010 vehicle was brought on running repair with complaints water leakage from wind shield, check break, check glass hand to operate RR RH side door etc and there was no whisper if any regarding rusting or hole as alleged in the complaint. After carrying out repairs the car was returned on the same day with full satisfaction to the complainant. The present condition ie after 4 years after the purchase of car was not as grave as alleged. The defects of rusting is not as alleged or due to any deficiency of service and unfair trade practice. There was no boils or any complaints of boils. The allegations are devoid of merit. 2nd opposite party was never callous but always customer friendly. There was no notice / mail sent to 2nd opposite party. Lawyer’s notice was readily replied with true facts. The alleged repairs are due to mishandling / carelessness of the complainant. The complaint is also barred by limitation.
Points raised for consideration are:
(i) Whether the complaint is barred by limitation?
(ii) Whether the allegation against the opposite party is proved?
(iii) If so, reliefs and costs if any?
4. Complainant filed affidavit along with 6 documents which were marked as Exts. P1 to P6. Opposite parties also filed affidavit and documents Exts. D1 to D7 were marked from their side. General Manager (Service) of 2nd opposite party was examined as DW1. Expert report was marked as Ext. C1.
5. Points (i) to (iii) : Perused the documents of both sides and the arguments. Complainant alleges poor craftsmanship on the opposite parties as the doors of his car began to rust and holes developed on the doors. To ascertain the veracity of the complaint an expert commission was taken out and he filed his report which was marked as Ext. C1.Comissioner filed his report this findings are as follows: On inspection it has been revealed the following:
a. On the rear right door: a clear rusted hole developed with 4cm diameter, at a place 25cm from the rear of the door and 10cm down from bottom portion of the window
b. On the right front door: 20cm down from the window and 10cm from the front of the door an area of 30cm x 30cm paints are peeled off.
c. On the rear left door: paints are peeled off at 3 areas and showing rust formation.
i) 20cm below from the bottom of window and 15cm from the front for an area of 10cm x 10cm
ii) 35cm and 18cm from the front for an area of 3cm x 3cm
iii) 28cm below and 20cm front from the rear for an area of 15cm x 20cm on the right front door: 20cm down from the window and 10cm from the front of the door an area of 30cm x 30cm paints are peeled off.
d. Front left door: A clear rusted hole developed with 4cm diameter, at a place 35cm below from the window and 25cm from the front.
No specific maintenance of door is specified by any manufacturer. In normal course in the absence of any accidents / impacts on the door the paint will last for more than 10 years. The adverse weather condition would affect entire body of the vehicle not only doors alone. The reason for this damage is either due to structural deformation caused while manufacturing or improper painting technique / procedure adopted while painting the doors by the manufacturer. The allegations put forward by the complainant is clearly proved through Ext. C1. It seems that either sides have not filed any objection to the commission report. So what is stated in the Commission Report stands unchallenged. We are accepting the findings of the expert as such and the allegations regarding rusting of the door stands proved.
6. Limitation is challenged as a preliminary issue. From the date of purchase, the complaint was filed after 4 years, but it is a continuous cause of action and still now it persists. So limitation question fails and it is found in favour of the complainant.
7. Then comes the question of reliefs and costs. Though the commissioner has pointed out several defects and the report stands unchallenged, there is a question regarding self admission by the opposite parties. Opposite parties themselves admit that they had arranged a campaign for all Getz vehicles to bring the vehicle for preventive rectification works in all doors on free of cost basis. This itself shows that the opposite parties had knowledge about this defect on the cars they manufactured and sold. But unfortunately, complainant in this case was not aware of the same, since the address of the complainant with the opposite party was different from that of the present address of the complainant and they could not inform him properly and the notice send to him returned. So complainant failed to get the opportunity to cure the defect free of cost. So he approached this Forum seeking redressal of his grievance. So considering the facts and circumstances of the case, we find it just and proper to allow the complainant to get his door replaced by the opposite party free of cost.
In the result, complaint is allowed. Opposite parties are directed to replace the doors of the Hyundai Getz car with Reg.No. KL-16 D-8307, free of cost to the complainant within 2 months of receipt of this order. Rs. 5,000/- is ordered as cost of this complaint.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 31st day of July, 2015.
Sd/- LIJU B. NAIR : MEMBER
Sd/- P. SUDHIR : PRESIDENT
Sd/- R. SATHI : MEMBER
Ad.
C.C.No: 229/2011
APPENDIX
I. Complainant’s witness :
PW1 : Hashim
II. Complainant’s documents:
P1 : Copy of certificate of registration
P2 : Copy of vehicle sales bill
P3 : Original photograph
P4 : Copy of Lawyer’s notice dated 02/04/2011
P5 : Copy of postal receipt
P6 : Reply notice dated 30/04/2011
III. Opposite parties’ witness:
DW1 : Sunil Kumar. S
IV. Opposite parties’ documents:
D1 : Repair order dated 20/11/2010
D1(a) : Cash invoice
D1(b) : Customer Interactive
D2 : Repair order dated 30/10/2007
D3 : Repair order dated 05/03/2008
D4 : Repair order dated 17/10/2008
D5 : Letter from Hyundai Motors dated 18/11/2009
D5(a) : Postal receipt
D6 : Technical Service Bulletin
D7 : Copy of repair order dated 20/11/2010
V. Court exhibit:
C1 : Commission Report
Ad sd/ PRESIDENT
