Haryana

Ambala

CC/06/2014

SUKJINDER SINGH S/O JASBIR SINGH - Complainant(s)

Versus

HYUNDAI MOTORS INDIA LTD. - Opp.Party(s)

K.C.JAIN

17 Jun 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

Complaint Case No. :  06 of 2014

Date of Institution     : 02.01.2014

Date of Decision       :  17.06.2016

 

Sukhjinder Singh son of Shri Jasbir Singh, R/o  village Saddopur, P.O. Kakru, Tehsil and District Ambala.

                                                                             ……Complainant.

 

Versus

 

1.       Hyundai Motors India Ltd. through its Authorized Signatory having its Registered Office at Plot No.H-1, SIPC, OT Industrial Park, irrugattukottai Sriperumbudur Taluk,Kancheepuram District, Tamil Nadu-602105.

 

2.       Samta Motors through its Authorized Signatory, near Vita Milk Plant, G.T. Road, Ambala City-134007.

 

                                                                             ……Opposite Parties.

 

Complaint Under Section 12 of the Consumer Protection Act

 

CORAM:    SH.A.K. SARDANA, PRESIDENT.

                   SH. PUSHPENDER KUMAR, MEMBER.

         

Present:       Sh. K.C. Jain, Adv. counsel for complainant.

Sh. Sarvjeet Singh, Adv. counsel for OP No.1.

Sh.  Ajay Trehan, Adv. counsel for OP No.2.

 

ORDER.

 

                    Brief facts of the present complaint are that complainant purchased a Verna Car bearing Regn. No.HR01AD-1221 from OP No.2 in a sum of Rs.9,44,000/- on 17.08.2011 who assured that the car is of best quality  and provided warranty upto 40000/- kilometers  and further assured that durng this period, if any defect is found, then  OP No.2 would remove the defect or would replace the vehicle in question to the satisfaction of complainant.  After plying the said car about 1795 km.,  it started overheating &  creating noise of clutches and also air-conditioner was not working properly. So, complainant reported the matter to OP No.2 and on 28.09.2011, the vehicle was inspected and after some repairs complainant was told that defects have been removed from the vehicle. But on plying, the vehicle again created same problems, so complainant contacted OP No.2 and the vehicle was again inspected by their Engineer who told that the defects will be removed automatically and complainant should ply the vehicle for about 10000/- Km. So,  the complainant plied the vehicle for about 10300/- k.m. but the defects were not removed in the vehicle.  Engineers of OP No.2 replaced engine oil, Filter Air –cleaner, Filter Cartridge, Service kit filter and handed over the vehicle to  complainant on 05.05.2012 with the assurance  that now the defect have been removed completely but after plying about 4000 Km. the vehicle started creating extra noise and engine started huge over-heating  and thus the complainant again took the vehicle at the workshop of OP No.2 where after some repairs, Op No.2 asked the complainant to ply the vehicle without any doubt. But again on 21.11.2012, complainant took the vehicle  to the workshop of Op No.2 due to overheating problem  where coolant of the vehicle was changed and after some repairs  complainant was told that now the defects have been removed but within 2/3 days, the defects again arose in the vehicle.  On 29.11.2012, complainant requested the Op No.2 either to remove defects of the vehicle or to replace the vehicle with new one at which  OP No.2 assured that engineers from Op No.1 i.e. manufacturer will come and inspect the vehicle and if found necessary, the vehicle will be replaced.  On 10.12.2012, Engineers of Op No.1 inspected the vehicle thoroughly and after some repairs, told the complainant that all the defects from the vehicle have  been removed but  within 10 days, complainant found similar defects in the car and again  visited at the business premises of Op No.2 on 02.01.2013 with the old complaint where engineers of Op  No.2 again consulted with  engineers of Op No.1 and after consultation replaced engine oil, oil filter, filter air cleaner, cartridge etc. and told that there is no defect in the vehicle  now but defects could not be  removed and thus complainant visited repeatedly at the workshop of Op No.2 due to problems in the car in question. Anyhow, complainant  could not derive any benefit from the said luxury car which he purchased at the assurance of Op No.2 that it is trouble free vehicle but  it started creating trouble only after 5000 km. and is also in the same position till 35,000 KM although Ops have extended warranty upto 60,000 KM or 16.08.2014 whichever is earlier.  Lastly on 16.08.2013, vehicle stopped on the way and it was towed to the workshop of Op No.2 where engineer of OP no.2 told that there is a manufacturing defect in the vehicle which cannot be removed and they took photographs of defective parts of the vehicle and assured the complainant that the vehicle would be replaced after taking consent of OP No.1 probably within 15/20 days but of no avail. Thus the complainant has contended that there is a grave deficiency in service on the part of Ops as they failed to replace the car having manufacturing defect in it and as such, a legal notice  dated 25.11.2013 was also served upon Ops but no response and therefore having no alternative, complainant has filed the present complaint seeking relief as mentioned in the prayer para of the complaint.

2.                Upon notice, OPs appeared through counsel and filed their separate written statements. OP No.1 filed written statement raising preliminary objections qua non-maintainability of complaint being baseless, frivolous and has been formulated on wrong and misleading facts and urged that ‘As per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered’.  On merits, it has been urged by OP no.1 that the car in question was sold by OP No.2 to the complainant in perfect running condition and the vehicle was reported on 28.09.2011 for first free service at the mileage of 1795 km. and no concern whatsoever was reported and on 05.05.2012 the vehicle  was reported  for second free service at the mileage of 10300 kms. and again no concern as alleged in the present complaint was reported. However, on each & every service the vehicle was inspected and no defect whatsoever was noticed nor complainant reported any complaint. Thus it has been urged that the complainant is concocting wrong facts with ulterior motives. Further it has been urged that consumable items such as oil/fluid changes, filter replenishment, wheel balancing & alignment, tyre rotation, minor adjustment, engine tuning, replacement of parts as a result of normal wear & tear such as spark plugs, belts, brake pads, clutch disc, wiper blades, bulbs fuses etc. is not covered under the warranty. It has been further submitted by Op no.1 that  the vehicle in question was registered for third year extended warranty valid till 16.08.2014 or 60,000 Kms. and thus whenever  the complainant raised his concern, the same was duly redressed but as per available record, vehicle in question was never reported after 23.09.2013 which makes it evident that vehicle is performing well and complainant is very much satisfied with the performance of the vehicle.   Thus it has been denied that the vehicle was having any manufacturing defect and prayed for dismissal of complaint with exemplary costs.

                   OP No.2 filed written statement raising preliminary objections qua non-maintainability of complaint & suppression of true & material facts from this Hon’ble Forum. On merits, it has been urged that whenever the complainant  brought  the vehicle to their workshop with any complaint, the vehicle was promptly checked and needful done as per requirement of the vehicle from time to time.  It has been urged that since the vehicle was running smoothly then there was no need to make any promise by them to complainant that  the defects of the vehicle will be removed on its own after plying about 10,000 kms. Rest of the contents of complaint have been denied and prayed for dismissal of complaint with costs.

3.                To prove his version, counsel for complainant tendered affidavit of complainant as Annexure CX alongwith documents as Annexures C-1 to C-17 and closed the evidence whereas on the other side, counsel for OP No.1 tendered affidavit of one Sh. Manish Kumar, Assistant Manager Legal HMIL  as Annexure R1/X alongwith documents as Annexures  R1/1 to R1/4 and closed the evidence on behalf of OP No.1. Counsel for OP No.2 tendered in evidence affidavit of one Sh. Bharat Batra, Partner, Samta Motors as Annexure R2/Y alongwith documents as Annexures R2/1 to R2/17 and closed the evidence on behalf of Op No.2.

4.                We have heard learned counsel for the parties and gone through the record very carefully. The main grouse of the complainant is that the car  in question purchased by him from Op No.2 remained defective time & again and despite repeated visits & requests to the Ops, the defects in the car  neither repaired/rectified nor the car was replaced by them. As such, the complainant has prayed that the Ops are deficient in providing proper services to him besides committing unfair trade practice. Further to strengthen his case counsel for complainant also submitted case laws delivered by Hon’ble National Consumer Disputes Redressal Commission, New Delhi  titled as M/s SAS Motors Ltd. Vs. Anant Haridas Choudhari reported in 2013(4) CLT Page 96 (NC) wherein it has been held that “Expert opinion-manufacturing defects-Tractor purchased-Plea of OP that no expert opinion had been taken with regard to the manufacturing defects- when there were so many defects which started occurring within 12 days of purchase of the tractor-The job cards confirmed that the same defects had to be rectified to by Op-The facts speaks for themselves-In the circumstances, no expert advice is required to be obtained by complainant.”  & another case law titled  Tata Motors Vs. Rajesh Tyagi & Others reported in 2014(1) CLT Page 238 (NC) wherein it has been held that “Defective vehicle-Not necessary to prove manufacturing defect-It is the bounden duty of both the manufacturer and the dealer to attend to the said defect and make it a defect free vehicle-If they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer”.

                   On the other hand, counsels for OPs argued that the vehicle is not having any manufacturing defect and as & when complainant brought the car  for its service or for removing any defect, it was treated with utmost care and repaired/serviced to the satisfaction of the complainant. However,  normal wear & tears are not covered under the terms & conditions of warranty.

5.                During the course of proceedings, appreciating the contents of application moved by complainant for inspection of the car from an Automobile Engineer/Expert, the Forum came to the conclusion that for proper adjudication  of the controversy, the report from technical person qua manufacturing defect in vehicle in question is very much required and therefore, Principal, Govt. Polytechnic, Ambala City was directed to depute an Automobile Engineer/Expert person of their institute to inspect the vehicle qua manufacturing defect whereupon,  Sh. Navneet Gupta, the then Lecturer, Automobile Engineering was appointed as an Expert person to inspect the defects in the car in question who as per his report  dated 27.07.2015 ‘inspected the vehicle on 13.07.2015  in the presence of both parties  i.e. Mr. Sukhjinder Singh complainant and Mr. Bharat  partner Samta Motors, Ambala City being representative of Ops and observed that gear box and clutch system of the vehicle in question is defective.’

                   Opposing the report of Local Commissioner, counsel for OP No.2 moved an application for getting the vehicle in question again inspected from reputed IRDA Surveyor Sh. Vikas Kohli alongwith objections. After hearing the parties to the complaint, the said application of Ops was dismissed vide separate detailed order dated 28.01.2016 being not maintainable with special costs of Rs.5000/- upon the Ops. However, during the course of arguments on 11.04.2016, counsel for Op No.2 moved an application for rectifying the defects as observed by Local Commissioner whereas complainant also tendered a statement  before the Forum that he has already visited several times at the workshop of OP No.2 for getting the defects of the vehicle in dispute rectified but they failed to rectify the same inspite of dismentaling the engine of car several times even after receipt of report of Local Commissioner and prayed for deciding the matter on merits.

6.                After hearing Ld. Counsels of both the parties and considering the report of Local Commissioner & other records placed on file by both the parties,  it is admitted fact on record that the car in question was purchased by the complainant from OP No.2 vide document Annexure C-1  and the same was having warranty (extended) upto 16.08.2014  as evident from document Annexure C-3. Further from perusal of job cards Annexures C-4 to C-12 issued by the Ops regarding service /repairs of the car, it reveals that the complainant got the car serviced from the OP’s workshop only and the car developed defects qua engine overheating & coolant leakage/level drops etc. Besides it, Annexure C-13 is receipt of Rs.380/- issued by OP No.2 qua  charging of cost of part of the vehicle replaced during the warranty period and  Annexures C-15 to C-17 are photographs of the engine of the vehicle lying opened in the workshop of OP No.2 for repair. On the other side, the Ops have also relied upon the same documents of service & job card etc. qua repair of the car in question.

                   In view of the facts discussed above, it is very clearly brought out that the vehicle  in question is  a defective vehicle when judged from the definition of ‘defect’ as contained in section 2(1(f) of the Act as the said vehicle admittedly was taken to the Ops workshop for repeatedly repairs immediately after purchase and  engine of the car was opened time & again as clear from various job cards issued by Ops in this regard as well as from photographs of the engine lying in dismantled condition in the workshop of Op No.2. Besides it, the expert report also speaks about manufacturing defect in the  gear box & clutch system etc. of the vehicle in question. In this situation, we are of the confirmed view that ‘whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any  kind of fault or imperfection or shortcoming in the quality, quantity, potency and  standard which is required to be maintained.’ Therefore, the version of the Ops that the car in question is not having any defect is not sustainable as they failed to rectify the defects of the vehicle upto the satisfaction of the complainant and also failed to file any report of Service Engineer/Technical Person of the OP company regarding no any defects in the vehicle in question. So, we have no hesitation in holding that the OPs are deficient in providing proper services to the complainant and are bound to rectify the defects in the vehicle in question. Accordingly, we allow the present complaint and direct the Ops to comply with the following directions jointly & severally within 30 days from the communication of this order:-

(i)      To replace the engine of the car in question  and handover the car to the complainant in perfectly working condition to his entire satisfaction and if  it is not possible due to any reason whatsoever, then refund the cost of the car in question to the complainant as per sale invoice alongwith simple interest @ 8% per annum w.e.f. the date of institution of complaint to till date.

(ii)     To pay a sum of Rs.10,000/- as compensation on account of harassment, mental agony etc. to the complainant.

(iii)    Also to pay Rs.10000/- as litigation costs including Advocate’s fee etc.   

              Further the award/directions issued above must be complied with by the Ops within the stipulated period otherwise all  the awarded amounts shall fetch simple interest @ 12% per annum for the period of default and the complainant shall be entitled to invoke the provisions of Consumer Protection Act for implementation of the said order. Copies of this order be sent to the parties concerned free of costs, as per rules. File be consigned to the record room after due compliance.  

                        

ANNOUNCED:17.06.2016                                                      Sd/-                        

                                                                                       (A.K. SARDANA)

                            PRESIDENT       

                                                                                    

                                                                                       Sd/-

      (PUSHPENDER KUMAR)

                                                                                        MEMBER