ORDER

08.11.2024

Sh. Sanjay Kumar, President

1. Brief facts of the present case are that complainant purchased vehicle model I 10 ERA SOLID  BS IV having registration no.DL 10 CA 8736, engine no.G4HGBM239327, chasis no. MALAM51BLBM881125 on 06.05.2011 from OP2 which is a unit of OP3. The vehicle is manufactured by OP1. It is stated that OP1 has provided warranty for 24 months in addition to this OP also provided three free services and complainant has also paid for extended warranty as per their charges and the vehicle is still in the warranty period.
2. It is stated that OP1, 2, 3 have sold a defective vehicle to the complainant as since the beginning there are technical problems and fault in the engine of the vehicle like vibration, noise, misfiring, missing of RPM and engine remain close on shifting on gear and problem with steering and ECM etc. It is further stated that complainant came across all the defects and faults only after he has been using the vehicle from the showroom of OP2. It is stated that complainant made complaints to OP and advised by the technical expert that all these are initial problems and vehicle  would be check up at service center of OP1 and after first service of the vehicle all such problems would be removed.
3. It is stated that complainant took the vehicle to Hans Hyundai Service Center on 08.08.2011 as per advise and explained all the problems. It is further stated that again technical expert told that all the problems would be automatically removed and intentionally the staff concerned did not file up the real problem in detail and shown only GENSER FREE SERVICE in the bill dated 08.08.2011 as well as in the job card. It is stated that inspite of service on 08.08.2011 the earlier  complaint remain in existence and complainant again took his vehicle to Hans Hyundai Service Center on 11.08.2011 and shown the bill demand no.14, check noise from at the advise of OP1 and 2. It is further stated that this time again vehicle was checked but the problems remained continued.
4. It is stated that engine problem still exists and complainant has no option except to again approach to officer of OP1 who advised to sent the vehicle to service center. It is stated that again on 18.08.2011 the vehicle was sent to Hans Hyundai Service Center and remained there till 21.08.2011. It is stated that this time fault in the engine was located as shown EN02 engine mis firing on bill dated 21.08.2011 but the problem remained continued. It is further stated that the vehicle was sent to the same service center on 01.09.2011 with the same problem and the bill dated 07.09.2011 shown ENo2 engine mis  firing.
5. It  is stated that after the work again the problem remains continue and again the vehicle was sent to service center on 10.10.2011 where new problem was  found in the engine i.e EN19 ENGINE RPM as shown on the bill. It is stated that again vehicle was sent with service center on 19.10.2011 and bill dated 21.10.2011 shown the problem EN02 engine mis firing. It is further stated that M/s Hans Hyundai Service Center was not able to remove the problem than sent the vehicle to another service center M/s Deep Hyundai Service Center a number of times with the same problem but same was not removed. It is further stated that as per advise of OP1 vehicle was sent to another service center M/s INC Engineering Pvt. Ltd. This service center found engine of the vehicle completely defective and there are manufacturing defect in the engine and original engine was brought opened and internal parts of the engine were removed and replaced and also laith works were done on the engine as shown in the bill dated 31.08.2012. It is stated that even at works M/s INC Engineering Pvt. Ltd. the earlier problem are still in existence relating to engine and there is no improvement in the performance of the  vehicle.
6. It is stated that complainant had sent a number of complaint through email to OP1 but OP1 failed to give proper response. It is further stated that in the month  of August and October 2012 the vehicle was sent to service center where work on ECM were done and new ECM was replaced with old one. On 31.08.2012 as fresh was not available with the service center. It is stated that till date fresh new ECM was not supplied by OP1 as shown in bill dated 29.09.2012 and also not supply on 03.10.2012 when the vehicle was sent for steering problem for the third time.
7. It is stated that complainant has felt cheated by the OP1, 2, 3 as they sold a defective vehicle in the name of new brand technically fit vehicle. It is stated that OPs also failed to provide the services to the worth of the amount which was paid by complainant. It is further stated that due to defective vehicle the complainant is not only suffering financial losses to the tune of 3,87,690/- and Rs.38,048/- on account of registration fee, road tax, insurance, plastic plate and extended warranty etc. It is stated that all the OPs jointly and severally committed deficiency  of services. It is stated that complainant had sent legal notice dated 10.09.2012 through his counsel which was duly received by OPs. The OP1 and 2 did not sent any reply but a false reply sent by OP3 on 20.10.2012.
8. The complainant is seeking directions for awarding Rs.5,75,738/- against all OPs jointly or severally, to pay interest @ 24% since 06.05.2011 till realization and cost of complaint. The complainant is seeking that all the directions shall be against all OPs jointly or severally.
9. OP1 filed WS and taken preliminary objection that as per information available from concerned dealer complainant had purchased on 06.05.2011 a Hyundai i10 car having VIN MALAN51BLBNAA1125 and engine no.G4HGBM239327 from OP2 authorized dealer and the car was delivered in perfect running condition without any technical or mechanical defect, therefore, there is no cause of action for filing the present complaint. It is stated that present complaint suffered from non joinder of necessary party M/s INC Engineering Pvt. Ltd.
10. It is stated that timely and efficiency service in line with the warranty policy of OP1 has always been provided to all its esteemed customers including complainant. It is further stated that the warranty  policy of OP1 offers two year unlimited mileage warranty from the date of delivery of the vehicle to the first purchaser and does not under  any circumstance contemplate neither replacement of the vehicle nor refund of the purchase price. The warranty policy placed on record. It is stated that the car in question is registered for extended warranty for  third and fourth year upto 05.05.2015 or 80000 kms whichever comes earlier. The OP1 referred to the judgments of Maruti Udyog Ltd. Vs. Sushil Kumar Gagbotra & Anr. 1 (2006) CPJ 3 (SC), M/s Tata Engineering and Locomotive Co. Ltd. & Anr. Vs. M. Moosa, Mahindra and Mahindra Ltd. Vs. B.G. Thakurdesa & Anr, Dr. Heema Vasantilal Dakoria Vs. Bajaj Autolimited & Ors. II (2005) CPJ 102, NC.
11. It is stated that the well settled principle of law that unless onus of satisfactorily discharged by the complainant that inherent manufacturing defect, the liability of manufacturer would be ltd. to at best removal of the defects and/or replacement of parts which in the present case admittedly done by authorized dealers of OP1. OP referred to the judgment of Sushila Automobiles pvt. Ltd. vs Dr. Birender Narain Parsad & Ors. (NC) RP No.1652/2006.
12. On merit all the allegations are denied by OP1 and contents of preliminary objections are reiterated. It is stated that the aspect of repair/servicing is strictly inter sea the complainant and OP2 and OP1 has no role to  play. It is stated that the liability of OP1 being the manufacturer of the Hyundai Car is limited and extends to its warranty obligations alone. It is further stated that as per information available after the purchase of the car on 06.05.2011, on 08.08.2011 the complainants car reported at the workshop of OP2 for first free service at a mileage of 464 Kms and first free service was carried out as per schedule and car was delivered to complainant in perfect running condition. The copy of vehicle repair history card dated 08.08.2011 filed on record.
13. It is stated that as per information available on 11.08.2011 the complainants car reported at the workshop of OP2 at mileage of 507 Kms with the concern of vibrating noise from dashboard and after proper inspection and examination by the service engineer of OP2  no problem was found and thereafter car in question was delivered to complainant in perfect running condition. Copy of vehicle repair history card dated 11.08.2011 filed on record. It is further stated that as per information available on 18.08.2011 the complainants car reported at the workshop of OP2 with the concern of engine misfiring and proper  examination was carried  out by the service engineer of OP2 and accordingly sensor assembly oxygen was replaced under warranty policy of OP1 and car in question was delivered to complainant in perfect running condition. The copy of vehicle repair history card dated 18.08.2011 filed on record.
14. It is stated that as per information available  on 01.09.2011 complainants car reported at the workshop of OP2 with the concern of engine misfiring and proper inspection and examination was carried out by the OP2 service engineer and no problem was found and same was informed to the complainant and car taken by complainant in perfect running condition. Copy of repair history card dated 01.09.2011 filed on record. It is stated that timely and efficient services in line with the warranty policy of OP1 were provided to the complainant at all times whenever car reported with any concern.
15. It is stated that on the basis of information available on 10.10.2011 the complainants car reported at the workshop of OP2 with the concern of engine RPM race. It is stated that repair order was cancelled as the complainant took the vehicle in question without any repairs/servicing for the reasons best known to him. It is further stated that as per information available the complainant has been satisfied with the work done with OP2 and 3 and also signed satisfaction note dated 21.10.2011, 16.11.2012 and 18.09.2012 and all satisfactory notes filed on record.
16. It is stated that as per information available the vehicle was checked by M/s INC Engineering Pvt. Ltd. and problem with ECM was observed accordingly service ECM was fitted in the vehicle as new ECM was not available at that time in the stock. It was informed to complainant that after availability of new ECM same will be fitted. It is further stated that at that time joint test drive was carried out and complainant was satisfied with work done and also acknowledges his satisfaction on credit invoice dated 19.09.2012. Copy of credit invoice dated 29.09.2012 filed on record. It is further stated that on arrival of new ECM complainant was informed to bring his vehicle but complainant is avoiding to do so for the reasons best known to him.
17. It is stated that on the basis of information available the complainant has been satisfied with the work done by OP2 and 3 and OP2 vide email dated 17.10.2011 and 24.10.2011 informed the complainant that the vehicle has  been inspected and no problem as such no problem has been found out. The copy of email dated 17.10.2011 and 24.10.2011 filed on record. It is stated that timely and efficient services provided to complainant by OP1. It is further stated that OP1 sold the vehicle free from any defect in material and workmenship under normal use and maintenance subject to certain terms and conditions. It is stated that there is no manufacturing defect in the car in question and there is no unfair trade  practice on the part of OP1. It is further stated that after receiving legal notice from complainant OP1 contacted concerned dealer and immediately asked to resolve the issue. It is stated that OP1 deals with all its dealers including OP2 and 3 on principle to principle basis and the concerned dealer is responsible  for any error/omission/misrepresentation if any at the time of retails sales/services/repair of the car since it is inter se the concerned dealer/service center and the customer. It is stated that there is no cause of action for filing present complaint, therefore, liable to be dismissed.
18. Complainant filed  rejoinder to WS of OP1 and denied all the allegations made therein and reiterated contents of the complaint. It is stated that complainant is entitled to all the reliefs claimed in the complaint.
19. OP2 and 3 filed WS and taken preliminary objections that the complainant has not filed mechanical inspection of subject vehicle, therefore, present complaint is not maintainable. It is stated that the OP herein expresses its unconditional willingness to get the vehicle subjected to examination by or otherwise seek assistance of an independent and competent agency in terms provided for under section 13(1)(c) of the Consumer Protection Act, 1986.
20. It is stated that it is wholly misconceived to allege manufacturing defect in subject vehicle. It is stated that the conduct of OP herein, secondly, manifests absolute compliance to terms and conditions of warranty policy as enunciated by the manufacturer-OP. It is further stated that the allegation of deficiency in service is equally unfounded and without merit. It is stated that as on date of last visit it was found recorded with OP herein to have logged some 10000 odd kilometers over 18 odd months from date of purchase thereof. Such mileage may convincingly repel and rebuke the  contention of the complainant about subject vehicle being defective, inherently or otherwise.
21. On merit all the allegations made in the complaint are denied by OP2 and 3. It is stated that the warranty is subjected to certain terms and conditions and/or exclusions as may appear from perusal of extract thereof. It is further stated that the subject vehicle is not defective, inherently or otherwise/ and or product of defective workmanship. It is stated that there are no numerous defects plague subject vehicle in terms of abnormal vibration, noise, engine misfiring, transmission shift, steering assembly and control module (ECM) among others. It is stated that the OP herein expresses its unconditional willingness to get the vehicle subjected to examination by or otherwise seek assistance of an independent and competent agency in terms provided for under section 13(1)(c) of the Consumer Protection Act, 1986. OP referred the judgment of the Hon’ble National Consumer Disputes Redressal Commission, New Delhi, Swaraj Mazda Limited VS. P.K Chakkappore and Anr. as reported in II (2005) CPJ 72 (NC).
22. It is stated that the  subject vehicle as on dates of visits  to its work premises has fetched due repair in sync with warranty and/or standard operating procedures to complainant’s satisfaction. It is further stated that OP reasonably believes subject vehicle to have done 15000 Kms or more as on date of filing of present reply which may negative complainant’s claim about subject vehicle being defective, inherently or otherwise. It is stated that the repair upon subject vehicle was followed with complainant undertaking  a test drive thereof and further recording his satisfaction on corresponding repair invoice(s)/repair order(s).  It is stated that the visit undertaken by subject vehicle to work premises of OP on 08.08.2011.
23. It is stated that the subject vehicle as per records available with OP herein was subjected to scheduled maintenance service when works and/or checks and/or repairs and replacements were undertaken thereupon commensurate with maintenance schedule thereof. It is stated that the said service was undertaken under warranty and/or without cost followed with delivery thereof to the complainant post test drive and latter recording his satisfaction on corresponding repair invoice. It is stated that the defects as complained of by the complainant during said visit were not got unilaterally edited or not recorded by OP.
24. It is stated that whereas visits undertaken by subject vehicle to work premises of OP on 11.08.2011 It is stated that the vehicle following said visit grieved of emission of noise from dashboard which was duly expunged and vehicle returned post complainant recording his satisfaction on repair done. It is further stated that the visits undertaken by subject vehicle on 18.08.2011 and 01.09.2011. It is stated that the vehicle following visit on 18.08.2011 suffered replacement of sensor assembly-oxygen under warranty and/or without cost. It is further stated that the vehicle post said replacement was returned to the complainant post latter recording his satisfaction on repair done.
25. It is stated that the visit undertaken by subject vehicle on 10.10.2011 and grievance complained by complainant leading to said visit stood resolved/redressed. It is stated that the OP is no more than the selling/servicing dealer of vehicle  in question, the defect complaint of by subject vehicle  on most occasions were CNG oriented and the OP is not the CNG  retrofitter, neither does it possess requisite expertise to resolve complainant originating out of CNG retro fitment such complaints and/or their redressal fall under  the domain of M/s CEV Engineering Pvt. Ltd. ( the latter is manufacturer’s nominated agency for CNG retro fitment and repair pertaining to CNG, the reference in this connection may be had to mailing communication dated 24.10.2011.
26. It  is stated that OP has no knowledge about the claim subject vehicle visiting work premises of M/s Deep Hyundai or M/s INC Engineering Pvt. Ltd. It is further stated that the claim about such service dealers causing to dismantle complete engine assembly followed with replacement of internal components is denied no less by OP. It is stated that OP has no knowledge the claim of  such service dealers undertaking lathe work upon subject vehicle and/or engine head. It  is stated that the OP  herein would again like to deny claim about such dealers undertaking repairs of steering assembly and /or electronic control module (ECM). It is stated that role of OP is confined to visits referred by complainant when works/repairs/replacements was undertaken upon subject vehicle in sync with standard operating procedures and vehicle returned to the complainant post latter recording his satisfaction on repairs done, most repairs have been undertaken by OP  under warranty at no financial diriment  to the complainant and vehicle as per latest history available has done mileage in excess of 15000 kilometers or more as on date of filing of present reply which may well substantiate the fact about subject vehicle not being defective, inherently and otherwise. It is stated that the defects if any has been expunged by OP among other service dealers in sync with standard operating procedures and without cost.
27. It is stated that OP singly or jointly with others have not failed to supply a technically fit vehicle to the complainant. It is further stated that OP has not been deficient in rendering services to complainant. It is stated that complainant has not suffered loss in the sum of Rs.3,87,690.00 towards cost of vehicle in addition to Rs.38,048/- expended thereon by way of statutory levies. It is further stated that complainant is not entitled to refund of the vehicle cost. It is stated that subject vehicle is not defective and/or OP herein is not guilty of deficiency of service in terms envisaged by the Act. It is stated that complainant is not entitled to refund in the sum of Rs.3,87,690.00 towards vehicle cost along with statutory levies expended thereon in sum  of Rs.38,048.00. It is further stated that complainant is not entitled to compensation by way of damages in the sum of Rs.1,50,000.00 in lieu of mental pain and agony and physical harassment as claimed to have been suffered. It is stated that legal notice dated 10.09.2012 claimed to have got issued by complainant through his counsel is false and misconceived.
28. Complainant filed  rejoinder to WS of OP2 and 3 and denied all the allegations made therein and reiterated contents of the complaint. It is stated that complainant is entitled to all the reliefs claimed in the complaint.
29. Complainant filed evidence by way of his affidavit and reiterated contents of the complaint. Complainant relied on copy of registration certificate of car Ex.CW1/1, copy of warranty extended period Ex.CW1/2, copy of bill dated 08.08.2011 Ex.CW1/3, copy of bill dated 11.08.2011 Ex.CW1/4, copy  of bill dated 07.09.2011 Ex.CW1/5/A and Ex.CW1/5/B (colly), copy of bill dated 21.10.2011 Ex.CW1/6/A and Ex.CW1/6/B  (colly), copy of bill dated 31.08.2012 Ex.CW1/7, copy of invoice and road tax paid Ex.CW1/8A and 1/8B, copy of legal notice dated 10.09.2012 Ex.CW1/9 and 1/10, copy of reply dated 20.10.2012 Ex.CW1/11.
30. OP1 filed evidence by way of affidavit of Manish Kumar Assistant Manager Legal and reiterated contents of the WS.
31. OP2 and 3 filed evidence by way of affidavit of Amarjyot Singh Assistant Service Manager and reiterated contents of the WS. OP2 and 3 relied on copy of warranty policy Ex.OP2/A, copy of repair invoice dated 08.08.2011 Ex.OP2/A, copy of invoice dated 11.08.2011 Ex.OP2/B, copy of repair invoices dated 07.09.2011 Ex.OP2/C, copy of repair invoices dated 18.09.2011 Ex.OP2/D, copy of repair invoices dated 27.02.2012 Ex.OP2/E, copy of repair invoices dated 01.05.2012 Ex.OP2/F, copy of repair invoices dated 15.11.2012 Ex.OP2/G and 16.11.2012 Ex.OP2/H.
32. Written arguments filed by complainant, OP1, OP2 and 3.
33. We have heard Sh. Ankit Sharma counsel for complainant and Ms. Vani proxy for Sh. S.M Ansari counsel for OP1 and Sh. Akansh proxy for P.K Jha counsel for OP2 and 3 and perused the record.
34. The OP2 and 3 during the proceedings filed an application for dismissal of complaint alleging that complainant has sold the vehicle in question, therefore, ceased to be a consumer and complaint may be dismissed. The OP2 and 3 alongwith application filed photocopy of registration certificate status according to which the registered owner of the vehicle in question is Mr. Shyam Kumar Bairwa. The counsel for OP2 and 3 relied on judgment of Tata Motors Ltd. Vs. Hazor Maharaj Baba Desraj & Anr. RP No.2562/2012 (NC). The complainant was given opportunity to file reply and address arguments. The complainant despite given opportunities failed to file written reply to the application, however addressed oral arguments. The counsel for complainant referred the judgment of C.G Power & Industrial Solution Ltd. Vs. Mercedez Benz India Pvt. Ltd. (NC) decided on 11.09.2017.
35. We have gone through the abovementioned judgments relied by counsel for OP2 and 3 and also counsel for complainant. In the judgment of C.G. Power & Industrial Solution Ltd. (Supra) it was specifically observed that the facts were distinguishable as vehicle was already inspected by an expert. In the present circumstances complainant did not make any attempt to seek the opinion of the expert by invoking section 13 of CP Act, 1986. The complainant also concealded the fact with regard to disposal of the vehicle in question as no permission was taken from this commission. We are of considered view that the cited judgment does not help the complainant case in the present facts and circumstances of the case. The complainant disposed off the vehicle in question without taking  permission and also concealded the fact which will prejudice the OP2 and 3. The present case is squarely covered by the judgment of Tata Motors Ltd.(Supra) cited by counsel for OP2 and 3.
36. On the basis of above observation and discussion present complaint is dismissed. No order as to cost. File be consigned to record room.
37. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving an application from the parties in the registry. The orders be uploaded on www.confonet.nic.in.

Announced in open Commission on  08.11.2024.

      SANJAY KUMAR                 NIPUR CHANDNA                       RAJESH

       PRESIDENT                             MEMBER                                MEMBER