CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Smt. Bindhu M. Thomas, Member
Sri. K.N. Radhakrishnan, Member
CC No. 303/2010
Wednesday, the 20th day of June , 2012.
Petitioner : Joshy Kurian
Kunnathukuzhy House,
Vettimukal P.O
Kottayam
(By Adv. Avaneesh V.N)
Vs.
Opposite parties : 1) Hyundai Motors India Ltd.
reptd. by its Managing Director
Irrugattukottai. NH No. 4,
Sriperumbadur Taluk
Kanchipuram Dist.
Tamil Nadu – 602105.
2) Popular Motor World P. Ltd.
reptd. by its Managing Director.
Near Commissioner of Central
Excise and Customes Office,
Ernakulam.
3) The Branch Manager,
Popular Hyundai,
Popular Hyundai Popular Motor
World Pvt. Ltd. Thadathil Bldg.
9/548 C, Near Municipal Park
Satri Road, Kottayam.
(By Adv. George Cherian Karippaparambil)
O R D E R
Sri. Santhosh Kesavanath P., President
Case of petitioner filed on 2..12..2010 is as follows. Petitioner purchased a Hyundai Gets Car from 3rd opposite party. First opposite party is the manufacturer and second opposite party is the authorized dealer of the Hyundai Gets car. According to the petitioner 3rd opposite party at the time of booking of the car assured the petitioner that they will provide polimer paint sealant to protect the colour of the vehicle. Further they assured that they will
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provide some extra fittings such as defogger, remote boot etc. Petitioner purchased the car on 10..8..2010. It was registered by 3rd opposite party. Prize of the vehicle is Rs. 3,85,000/-. Petitioner paid Rs. 4,500/- towards paint sealant , Rs, 3,500/- is paid towards handling charge, Rs. 22,925/- towards road tax, Rs. 19,750/- towards accessories and Rs. 3,025/- towards extended warranty. The payment was done on 10..8..2010. According to petitioner opposite party had not supplied the promised offers. Further more opposite party had not supplied the accessories shown in corwale published in the internet. After the purchase it was noticed that in the R.C Book date of manufacturing is shown as 2010. On tracing the manufacturing date of the vehicle, by the petitioner, it is learned that vehicle was manufactured in January 2009. According to the petitioner vehicle is having serious defects. The vehicle delivered is of 20 months old. Petitioner issued a lawyers notice to opposite party but no reply were sent by the opposite party, petitioner alleges deficiency in service on the side of opposite party. Hence the petitioner prays for the following reliefs. Refund of Rs. 3,85,000/- towards price of the car or else directing the opposite party to deliver a brand new car manufactured in the year 2010. Petitioner claims Rs. 1,00,000/- as compensation and Rs. 5,000/- as cost of proceedings.
First opposite party entered appearance and filed version contenting that petition is not maintainable. According to the first opposite party dealings between first opposite party and other opposite parties is on a principal to principal basis and sole responsibility for alleged complaints is to be redressed by dealer. Opposite party one is only restricted and limited
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to its warranty obligations. Since petitioner has not raised any issue regarding performance of the car this the petition is liable to be dismissed. According to first opposite party, petitioner is fully aware of the model of the car in question. Petitioner has been given very hefty discount on the purchase price of the car and also given free accessories on account of a car purchased by him being a ‘2009’ model. According to first opposite party there is no deficiency in service on their part and they pray for dismissal of petition with their costs.
3rd opposite party filed version. According to opposite party No. 3 there is not such office for second opposite party as alleged in the petition. 3rd opposite party is not proposing to file any version on behalf of second opposite party which is not in existence. Petitioner approached 3rd opposite party, as per vide order booking form Dtd: 6..8..2010. He booked 2009 model Getz by paying Rs. 5000/- as advance. In the order booking form model of the vehicle as 2009 is specifically mentioned. In the customer offer form Dtd: 6..8..2010 complainant was offered basic accessories, special price of vehicle as Rs. 3,85,000/- further more a 2009 model vehicle was given for such a price as against original price of Rs. 4,16,313/- . In the offer it was stipulated that complainant should purchase accessories worth Rs. 10,000/-. So, opposite party denied all allegations in the petition with regard to in offer & price of the vehicle. Rs. 3,85,000/- is inclusive of comprehensive insurance, handling charges, road tax and registration fee. In addition to the accessories Anti Theft system, cigarette lighter rear spoiler, floor lamination , polymer paint sealant, were given free. In addition a price discount of
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Rs. 28,788/- was also given. The averment that petitioner paid Rs. 3025/- towards extended warranty is denied. The ‘Car wale’ websites has no connection what so ever with 3rd opposite party. Accessories shown their in are not standard accessories of Hyundai Getz. The attempt of petitioner is to make un due advantage of a clerical mistake kept in the sale certificate and R.C Book of complainant vehicle. In the order booking form model of vehicle is shown as 2009 model. According to opposite party there is no defect in the car and there is no deficiency in service on the part of 3rd opposite party. So, they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A5 documents on the side of the petitioner and Ext. B1 to B3 documents on the side of the opposite party.
Point No. 1
Crux of the case of petitioner is that ‘Hyundai Getz’ Car manufactured by first opposite party and delivered by the 3rd opposite party is of 20 months old and is one year prior model. 3rd opposite party had not given the offered accessories at the time of delivery. Vehicle delivered is having serious complaints. The first question to be decided is whether the car delivered by the 3rd opposite party is a ‘2009’ model. According to petitioner he booked a 2010 model car and the opposite party supplied 2009 model car.
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According to opposite party complainant booked 2009 model vehicle and it was mentioned in the order booking form Dtd: 6..8..2010. 1st opposite party produced the order booking form along with customer offer form said document is marked as Ext. B1. In Ext. B1 it is stated that the car is a ‘2009’ model. According to the petitioner he came to know about the model of the vehicle only after later stage on inspection and enquiry done, by the petitioner. While tracing out the date of manufacturing of the vehicle petitioner came to know that it is a ‘2009’ model vehicle. Opposite party has a specific contention that petitioner is very well aware that he was booking a 2009 model ‘Getz’. Further, price is reduced and the accessories were offered by the opposite party for the purchase of a ‘2009’ model vehicle. After enjoying the benefit and reduce of price with a malafide intension, according to the opposite party, petitioner filed this petition. The counsel for the petitioner argued that the order form was filled by the 3rd opposite party themselves. On a booking done on 8..6..2010 petitioner is expecting a 2010 model. Further more, mentioning of 2009 model in the order booking form by the 3rd opposite party is not binding on the petitioner because the same was prepared by the petitioner. In our view the case of the petitioner that opposite party fraudnently in order to deceive the petitioner delivered the petitioner a 20 months back manufactured car is much probable. Because in the R.C Book year of manufacturing is mentioned as 2010. Admittedly endorsement in the RC book were made by 3rd opposite party. Even if the petitioner booked the ‘2009’ model car what prevent the 3rd opposite party from showing year of manufacture of Car in the RC Book as
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‘2009’. 3rd opposite party has not adduced any evidence to prove that endorsement in the RC book with regard to the year of manufacture as ‘2009’ is a clerical mistake, committed by registering authority. The lawyers notice issued by the petitioner to the opposite party is produced and same is marked as Ext. A4. In Ext. A4 lawyers notice petitioner categorically stated that he is deceived. Instead of 2010 manufactured car a 2009 January manufactured car was delivered to the petitioner and he specifically stated in the Ext. A4 notice that a 20 months old vehicle was delivered to the petitioner. Opposite party has not denied the said allegations in Ext. A4 by sending a reply. Further more, opposite party so far has not taken any steps to correct the mistake, even if their is any clerical mistake committed by registering authority. While considering probabilities in this case in our view opposite party had delivered the petitioner a 20 months old manufactured vehicle.
Petitioner has a specific case that opposite party has not given offered accessories to the petitioner. But nothing has been placed on record by the petitioner to prove the said allegations. Petitioner has also further alleged that there was some manufacturing defect to the car which is supplied by the opposite party. No expert evidence has been adduced to prove the said allegations. So, the said allegations were not proved. In our view act of opposite party in supplying a 20 months old car to a purchaser amounts to deficiency in service. Further more without saying there is reduction in the market value for an old car. Since, the transaction between the 1st opposite party and other opposite parties is on principal to principal basis for the act
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of deficiency committed 1st opposite party is not liable . So point No. 1 is found accordingly.
Point No. 2
In view of the finding in point No. 1 petition is allowed in part. In the result 3rd opposite party is ordered to pay the petitioner an amount of Rs. 40,000/- as compensation for deficiency in service. Without saying what had happened may caused loss and sufferings to the petition. So first opposite party is ordered to pay the petitioner an amount of Rs. 10,000/- as compensation for loss and sufferings. First opposite party is also ordered to pay an amount of Rs. 3,000/- as litigation cost to the petitioner. Order shall be complied with within one month of receipt of a copy of this order. The order if not complied as directed the award amount will carry 9% interest from the date of order till realization.
Dictated by me transcribed by the Confidential Assistant corrected by me and
pronounced in the Open Forum on this the 20th day of June, 2012.
Sri. Santhosh Kesavanath P. President Sd/-
Smt. Bindhu M. Thomas, Member Sd/-
Sri. K.N Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner
Ext. A1: Copy of customer accounts statement
Ext. A2: Copy of RC certificate
Ext. A3: Job card
Ext. A4: Bill Dtd: 10..8..2010
Ext. A5: Copy of lawyers notice
Documents for the opposite party
Ext. B1: Copy of order booking form
Ext. B2: Copy of accounts statement voucher
Ext. B3: Copy of retail invoice
By Order,
Senior Superintendent
