DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BARNALA.

 

Consumer Complaint No. : CC/90/2018 

Date of Institution : 26.07.2018

Date of decision : 19.08.2019

Dr. Bhim Sain Garg, aged about 66 years, son of Sh. Shambhu Ram, resident of Street No.7, K.C Road, Barnala, Tehsil and District Barnala-148101

... Complainant

Versus

1.Hyndai Sales, Godwari Hyndai, Godwari Motors, Pvt. Ltd., Ludhiana, through its authorized signatory/responsible person 141001

2. Hyundai Motors India Ltd, (Head Office) 2nd, 5th & 6th Floor, Corporate Centre, Jasola, Vihar, New Delhi 110025, through its authorized signatory/responsible person.

3.GM/MD Hyundai Motors India Ltd., (Head Office) 2nd, 5th & 6th Floor, Corporate One, Baani Building, Plot No.5, Commercial One, Baani Building, Plot No.3, Commercial Centre, Jasola, Vihar, New Delhi-110025

…Opposite parties

 

(Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.KULJIT SINGH, PRESIDENT

SH. TEJINDER SINGH BHANGU MEMBER

SMT. MANISHA MEMBER

COUNSEL FOR THE PARTIES:

For complainant : Sh. RS Sekhu Advocate. 

For OP No. 1 : Sh. Sidharth Chandi Advocate

For OPs No. 2 and 3 : Sh. Puneet Pabby Advocate

 

Per KULJIT SINGH, PRESIDENT 

1. The present complaint has been filed under Section 12 of the Consumer Protection Act, 1986 against the OPs on the averments that he had purchased one Hyundai Creta SX in his name having registration no. PB-19-L/6707 in 2015 from OP no.1. He was represented Creta by Hyundai Dealership/OP as the best option. The dealership offered him to buy the SX Model of Creta out of its various variants and it came equipped with seven air bags. On the assurances given by OPs, he opted to purchase the SX Model of Creta from the above-said dealership. On 17.05.2018, while the above said vehicle being driven by employee of complainant i.e. driver Raj Kumar Singh son of Bachan Singh resident of Nanaksar Basti Barnala was coming from Chandigarh towards Barnala. When he reached near Harman Dhaba near Badbar, at about 8.00/8.15 PM then suddenly a stray animal came across the road and hit the vehicle causing substantial damage to the front of the vehicle including cracked wind screen. The driver also suffered a severe jerk as a result of the impact but was saved from injuries as he was wearing seat belt at that time. But the air bags provided in the vehicle failed to deploy at that time. This is resultant of non-deployment of air bags. The complainant purchased the vehicle in question only because features of air bags. He alleged manufacturing defect in the vehicle and this defect came to force only when the unfortunate accident happened otherwise there arises no other way to have tested the same. He has been sending emails regarding this but till date no one even cared to lend an ear to his grievances. The above said act and conduct of OPs caused great pain and metal harassment to complainant. Therefore, he has filed the present complaint and prayed that the OPs be directed to refund the whole price of Rs.13,85,419/- of the car along with RC expenses etc, besides to pay Rs.1,46,885/- which was paid by complainant to Yash Auto Centre Barnala for repairing the above said vehicle, Rs.1 lakh as compensation for mental harassment and Rs.2 lac on account of injury and ordeal suffered due to non-deployment of air bags. 

2. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has not come to the Forum with clean hands. The complainant did not made M/s Yash Auto Barnala as party, so the present complaint is liable to be dismissed for non-joinder of necessary party. On merits, it was averred that the complainant purchased one Hyundai Creta SX in his name. It is correct that complainant was represented Creta as the best option. Safety being the foremost criteria for his selection, the dealership offered him to buy the SX Model of Creta out of its various variants. Safety in shapes of air bags being the utmost reason for purchase. Being much safer option, the complainant along with his family always travel through this vehicle only. The car comes with several security features. It is denied that there is any manufacturing defect in the car. The allegations made in the complaint are baseless. It is also wrong that complainant has been sending emails regarding this very much fact repeatedly but till no one even cared to lend an ear to the grievance of the complainant. Rest of the averments of the complainant were denied by OP no.1 and it prayed for dismissal of the complaint.

3. OPs no.2 and 3 appeared and filed their joint written reply and contested the complaint of the complainant by raising preliminary objections that complainant has no locus standi to file the complaint. The complaint is liable to be dismissed for non-joinder of necessary party i.e. Park Hyundai & Yash Auto. The complaint is not maintainable. On merits, it was averred that the car in question sold by M/s Godawari Hyundai Ludhiana/OP no.1 to complainant on 04.08.2018. It is denied that any money from sale consideration of the car was paid to HMIL (OPs no.2 & 3). The aspect of retail sale is strictly interse the complainant and concerned selling dealer. HMIL deals with all its dealers on “Principal-to-Principal basis” meaning thereby that error/omission/misrepresentation etc, if any, at the retailing or servicing or repair of the car by the dealer is the sole responsibility of the concerned dealer and HMIL cannot be held liable for the same. Liability of OPs no.2 and 3 being the manufacturer extends and limited to warranty obligations only. The owner manual is provided with every car, in which working of several features including Air-Bag (SRS) is mentioned. Thus, complainant cannot claim any misrepresentation on the part of OPs no.2 and 3. Rest of the averments of the complainant were denied by OPs no.2 and 3 and they prayed for dismissal of the complaint. 

4. The complainant has tendered in evidence his affidavit Ex.C-7 along with copies of documents Ex.C-1 to Ex.C-6 and closed the evidence. As against it; OP no.1 tendered in evidence affidavit of Jagdish Nihalani Sr. General Manager as Ex.OP-1/1 and closed the evidence. OPs no.2 and 3 tendered in evidence affidavit of Varun Panta working as Assistant Manager (Legal & Secretarial) as Ex.OP-2-3/1 along with copies of the documents Ex.OP-2-3/2 to Ex.OP-2-3/5 and closed the evidence. 

5. We have heard learned counsel for the parties and have also examined the record of the case very carefully.

6. The complainant tendered in evidence his affidavit Ex.C-7 on the record. He testified in his affidavit that he purchased one Hyundai Creta SX car in his name from OP no.1. He stated that on believing the version of OPs, he purchased the above said vehicle. OPs represented that in case of any happening like in impact or so the air bags shall deploy in no time and thus save the occupants of the vehicle from potential danger of injuries. On 17.05.2018, when the above said vehicle driven by driver Raj Kumar, then suddenly a stray animal came across the road and hit the vehicle causing substantial damage to the front of the car including cracked wind screen. But air bags provided in the above vehicle failed to deploy at that time. He alleged deficiency in service and unfair trade practice on the part of OPs. Ex.C-1 is registration certificate issued in the name of complainant. Ex.C-2 is retail invoice dated 30.06.2015. Ex.C-4 is email. Ex.C-5 is email sent to OPs from complainant. 

7. To refute this evidence of the complainant, OP no.1 relied upon affidavit of Jagdish Nihalani, Sr. General Manager of M/s Godawari Motors Private Limited Ferozepur as Ex.OP-1/1. He denied any allegation on the part of OP no.1. OPs no.2 and 3 tendered in evidence affidavit of Varun Panta working as Assistant Manger (Legal & Secretarial) as Ex.OP-2-3/1 in support the case of OPs. This witness stated that the complainant has failed to prove any cogent, credible and adequate evidence supported by the opinion of expert report from any laboratory recognized by Central Government or recognized by State Government or laboratory or organization established under any law. This witness stated that in the absence of any report with regard to inherent or latent defect, it cannot be held that vehicle is suffering from any manufacturing defect. Ex.OP-2-3/2 photograph clippings of the damaged vehicle. Ex.OP-2-3/3 is owner manual of the vehicle in question. Ex.OP-2-3/4 is dealership agreement. Ex.OP-2-3/5 is warranty policy. 

8. From hearing respective pleadings of the parties and after going through the record of the case, we find that it is an established fact that the complainant purchased Hyundai Creta SX car in his name from OP no.1 and OPs admitted this fact. The complainant purchased the above said vehicle on the assurances given by OP no.1. SX was told to be the safest across the variants as it came equipped with 7 air bags. Safety in shape of air bags being the utmost reason for purchase the above said vehicle in question. On 17.05.2018, the above said vehicle causing substantial damage to front of the Creta including cracked wind screen. The driver also suffered severe jerk as a result of the impact but was saved from injuries as he was wearing seat belt at that time. The car is lying in the Barnala dealership of Hyundai and factum of non-deployment of air bags can very much be verified. The complainant has been sending the emails regarding this very much fact repeatedly but till date nothing was done by OPs. Despite various efforts from the side of complainant, OPs have not bothered nor any effort has been made from the side of OPs. 

9. The first point for controversy involved in this case, as to whether the vehicle in question damaged in the above said vehicle or not. This fact is cleared from the photographs Ex.OP-2-3/2 placed on the record. At the time of purchase of the above said vehicle, OPs assured the complainant that SX model of Creta is safest across the variants as it came with seven air bags, then it is bounden duty of the OPs to provide the same in good manner. OPs in its owner manual Ex.OP-2-3/3 stated that air bags deployment depends on a number of factors including vehicle speed, angles of impact and density and stiffness of the vehicle or objects, which vehicle hits in the collision. The determining factors are not limited to those mentioned above. But this fact is not correct, because when a stray animal came across the road and hit with the vehicle of the complainant causing substantial damage to the front of the vehicle in question including cracked wind screen, it shows that the vehicle is in high speed and at that time the air bag of the vehicle should be deployed. OPs in their dealership agreement Ex.OP-2-3/3 stated that OPs are engaged in the business of manufacture, sale and servicing of the Hyundai Automobile range, accessories, spare parts thereof. From this document Ex.OP-2-3/3 it is clear that there is manufacturing defect the air bags of the vehicle in question, so, it is duty of the OPs to remove the defect from the same or to replace the same with new one. But in this case, the air bags provided in the creta car failed to deploy at that time. From perusal of photograph clippings of the damaged vehicle, it is clear that the vehicle is in high speed. 

10. The counsel for OPs relied upon below noted citations in support of their case :-

i) Vijay Traders versus Bajaj Auto Ltd by Hon’ble Supreme Court of India decided on 01.11.1995, reported in Civil Appeal No. 4600 of 1984.

ii) Hero Honda Motors Ltd Versus K.B Murieedharan and others by Hon’ble National Commission decided on 04.05.1994 reported in Revision Petition No. 305 of 1993.

iii) Indian Oil Corporation versus Consumer Protection Council Kerala by Hon’ble Supreme Court of India reported in Civil Appeal no. 7330 of 1993 decided on 07.12.1993. 

iv) Ravneet Singh Bagga versus M/s KLM Royal Dutch Airlines & Another by Hon’ble Supreme Court, reported in C.A No. 8701 of 1997 decided on 02.11.1999. 

The above cited authorities are not applicable in the present case in hand because these authorities/citations are depends upon different footings. 

11. As per owner’s manual Ex.OP-2-3/3 “air bag deployment depends on a number of factors including vehicle speed”. This shows that the air bag should be deployed on speed of the vehicle. When a stray animal came across the road and hit with the vehicle of the complainant causing substantial damage to the front of the vehicle in question including cracked wind screen, it shows that the vehicle is in high speed and at that time the air bag of the vehicle should be deployed.

12. The Hon'ble National Commission, New Delhi in case titled Maruti Suzuki India Ltd. Versus Dr. Koneru Satya Kishre and others reported in 2018 (1) CPJ-157 held as under.-

“A. Consumer Protection Act, 1986 Section 2(1)(f)-Defect in vehicle-Kinds of-Held a defect in a vehicle may come under the category of 'manufacturing defect' or otherwise, a vehicle is said to be suffering from 'defect' if there is any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which was required to be maintained under any law in force.”

13. This citation of the Hon'ble National Commission, New Delhi is fully applicable to the present facts of the case as in the present matter the opposite parties assured the complainant that the Creta SX is the best option to be the safest across all the variants as it came equipped with seven air bags but at the time of accident the air bags of the car failed to deploy which proved that there is defect in quality and standard of the vehicle in question and according to the above mentioned citation of the Hon'ble National Commission it is fallen in the category of manufacturing defect. 

14. In the light of our above discussion, the present complaint is partly  allowed and OPs are directed to replace the air bags of the car of the complainant free of costs. The opposite parties are also directed to pay Rs. 10,000/- as compensation for mental harassment and cost of litigation. The compliance of the order be made within the period of 30 days from the date of the receipt of copy of this order. Let copies of the order be sent to the parties free of costs. File be consigned to the records after its due compliance.

  ANNOUNCED IN THE OPEN FORUM:

19th Day of August 2019

 

 

            (Kuljit Singh)

           President

 

 

           (Tejinder Singh Bhangu)                Member

 

(Manisha)

Member