BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, U.T. CHANDIGARH

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Ms.Shaili Sharma, w/o Gaurav Sharma, r/o Plot No.270, Industrial Area, Phase II, Panchkula.

…..Complainant

                                      V E R S U S

1.       Hyundai Motors India Limited, through its General Manager, Regional Office DLF Tower 3, 3^rd floor, Rajeev Gandhi Technology Park, Chandigarh – 160101.

2.       Ultimate Automobiles (P) Limited, through its Branch Manager, 154-155, Industrial Area, Phase I, Chandigarh.

3.       Ultimate Automobiles (P) Limited, through its Branch Manager, 355, Industrial Area, Phase II, Panchkula.

……Opposite Parties

CORAM:     SH.RAJINDER SINGH GILL       

 PRESIDING MEMBER

                   DR.(MRS) MADANJIT KAUR SAHOTA    

MEMBER

Argued by:    Sh.Gaurav  Pathak, Counsel for the complainant.

                        Ms.Simran Singh, Counsel for the OP-1

                        Sh.Aftab Singh, Counsel for OPs No.2 & 3.  

PER DR.(MRS) MADANJIT KAUR SAHOTA,  MEMBER

              Briefly stated, the facts of the case are that the complainant purchased Hyundai Verna Car bearing registration No.HR-03-K-7385 from OP No.2 on 14.10.2009 vide sale certificate – Annexure A-1. It has been further stated that within the warranty period, the complainant noticed some noise from rear left side of the car. She sent a complaint through e-mail to OP No.1 and also made a complaint in the customer care of OP No.1. The complainant upon the assurance of OP No.3 left the car to the service station for repair but the OP No.3 could not rectify the problem. The special service team from Hyundai also made an attempt to solve the problem but all in vain. Mr.Jatinder Singh, Service Engineer told that the problem can be solved by cutting the chassis of the car and the rear seat is to be removed. The rear seat panel requires cutting as there is a play in the body panel which is to be re-welded. The complainant did not agree to it. That the OPs failed to rectify the defect in the car as it is manufacturing defect in body line and chassis. Hence, this complaint.

2]             OP No.1 filed the reply, wherein, it took the preliminary objection with regard to limitation. On merits, it has been pleaded that whenever the complainant approached the OP the defect in the car was duly rectified to her entire satisfaction. The complainant took the vehicle to OP No.3 on 23.9.2011 for inspection. During inspection, the metallic noise from the pillar was observed. The body shell of vehicle consists of various parts and any joint can open due to driving condition or if the car is driven negligently/rashly but it is repairable and cannot be termed as a manufacturing defect. The complainant refused to give the approval for the repair work and took the said car without any repair. The vehicle is under warranty. Denying rest of the allegations, it is prayed that the complaint be dismissed with cost.

3]             OP No.2 & 3 filed the reply. It is replied that whenever, the complainant approached the workshop of replying OP and stated about the problem of noise from the rear side, the same was rectified to her satisfaction. The car was got checked from the Service Engineer on 23.9.2011. It was found that it is the welding joint on the rear part of the body shell, which had disjoined and the same can be set right. It cannot be termed as a manufacturing defect. The complainant was informed that the repair work shall be carried under the warranty policy of the HMIL for free of cost but she did not agree. Denying all the material allegations of the complainant and pleading that there has been no deficiency in service on their part and prayer for dismissal of the complaint with costs has been made.

4]             Parties led evidence in support of their contentions.

5]             We have heard the learned Counsel for the parties and have also perused the record. 

6]             The main grouse of the complainant is that the OPs have failed to rectify the defect in the vehicle in question even after repeated visits made to the Service Station as well as assurance of OP No.3, though the vehicle was still under warranty period.  Not only this, a Special Service Team had also made an unsuccessful attempt to solve the problem by permanently rectifying the defect in the car.  Therefore, the car is suffering from manufacturing defect in its body line and chassis, so the car be either replaced or its cost be refunded after deduction depreciation amount.

7]             On the contrary, the OPs vehemently denied of having any manufacturing defect in the car in question, as alleged by the complainant.  It is stated that if the welded joints of the vehicle opened, due to rash & negligent driving conditions, the same can be repaired/rectified by fixing opened-up joints by way of welding. 

8]             After careful perusal of the documents, placed on file by both the parties as well as considering the whole facts & circumstances, which gave rise to the present complaint, there exists only one crucial point, which is relevant to determine & clinch the whole matter as well as in order to reach the conclusion i.e. whether the vehicle in question suffers from manufacturing defect or not.   

9]             The ground on which the complainant is alleging manufacturing defect is that some noise is coming from vehicle, which he had reported to the OPs several times while getting the vehicle serviced (Ann.A-4), but the same could not be set right.  To this, the contention of the OPs is that the welded joints can be opened, due to driving condition or the car had been driven negligently/rashly, which can be repaired by fixing opened up joints by welding in the upper area of side body and the same cannot be termed as manufacturing defect. It is also contended that the complainant was informed that the repair work shall be carried out under warranty i.e. free of cost, but he refused to do so.                

10]           In our opinion, when the defect occurred in the car, can be repaired by carrying out necessary repairs, the same should have been got done by the complainant and it cannot be termed as manufacturing defect. 
We also agree with the judgments cited by ld.Counsel for OPs, i.e. Mahindra & Mahindra Ltd. Vs. B.G. Thakurdesai & Anr., (1993) CPJ 225 (NC) and Dr.Hema Vasantial Dakoria Vs. Bajaj Auto Ltd. & Ors., (2005) CPJ 102 (NC), wherein it was specifically laid down 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.” 

11]           Obviously, the onus to prove any manufacturing/mechanical defect in the car in question was squarely lies on the complainant, which he has not been able to prove, by giving plausible justification; that also by way of leading expert evidence.  Therefore, in the absence of any expert evidence/proof, it cannot be said arbitrarily that the vehicle in question is having any manufacturing/ mechanical defect.  Mere verbatism of the complainant hold no ground. Therefore, there is no plausible justification for replacement of the car or refund of its sale price, as prayed for by the complainant. 

12]           However, during the course of arguments, the ld.Counsel for the OPs NO.2 & 3, stated that OPs No.2 & 3 were ready to repair the car to the entire satisfaction of the complainant under warranty policy of HMIL,  free  of cost and they are still ready to do so.  He further contended that the OPs are not shirking from their offer as well as the duty to repair the car. 

13]           In view of the foregoings as well as in the interest of natural justice, we deem it appropriate to direct to the OPs to repair the car in question.  Therefore, we dispose of this complaint with directions to the OPs to repair the car of the complainant to her entire satisfaction by carrying out necessary repairs or replacing the parts, if any, free of cost, within a period of 30 days from the date of receipt of copy of this order, failing which they shall be liable to pay penalty of Rs.50,000/-. However, the respective parties shall bear their own costs.

                Certified copies of this order be sent to the parties free of charge. The file be consigned.