KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM
APPEAL No.201/12
JUDGMENT DATED 16.02.2013
PRESENT:
SMT. A. RADHA : MEMBER
SHRI. K. CHANDRADAS NADAR : JUDICIAL MEMBER
APPELLANT
Hyundai Motor India Ltd.
Through its authorized signatory
A-30, Mohan Co-operative Industrial area,
Mathura Road,
New Delhi-110 044.
Also at: : APPELLANT
5th & 6th floor, Corporate One (Baani Building)
Plot No.5, Commercial Centre,
Jasola, New Delhi-110 076.
(By Adv: Rakesh Thampan)
Vs
1. K.V. Janardana Pai
Partner, M/s. KNG Textiles
Gopalaprabhu Road, Ernakulam : RESPONDENTS
Kochi-682 036
(By Adv: A. Balagopalan)
2. Manager,
Popular Motors World Pvt Ltd.
33/2361-A Geethanjali Jn.
N.H. Bye pass, Vyttilla P.O.
Kochi-682 019
(By Advs: S. Regukumar &
George Cherian Karippaparambil)
APPEAL No.201/12
JUDGMENT DATED 16.02.2013
SMT. A. RADHA : MEMBER
The opposite party is the appellant who preferred this appeal against the order passed by the CDRF, Ernakulam. in C.C. No. 198/09. The Forum below directed the first opposite party to replace the vehicle with new car after accepting 20% of the price of the vehicle or refund the price of the vehicle after retaining 20% of the price in either of the event the complainant shall return the car to the first opposite party simultaneously.
2. The complainant purchased a Getz car from second opposite party which was manufactured by first opposite party in August 2007. The mileage of the vehicle was very low than assured by the opposite parties. Evenafter rectification by the second opposite party the result was negative. It is also the complaint that the accessories of the vehicle were not upto the standard. The tyres and wiper were substandard in quality. It so happened that the front tyre burst while plying the vehicle. Due to the constant defects the complainant approached the opposite party within 8 months for the exchange of the vehicle and the opposite parties valued the vehicle for Rs.3 lakhs only. From the valuation itself it is very clear that the quality of the vehicle was very low. The allegation of the complainant also is that the exchange offer of Rs.20,000/- was not extended to him. The complainant is eligible for exchange offer of Rs.20,000/- along with 18% from the date of purchase of the vehicle until payment. Within 8 months the air conditioner also was not working properly and was producing humming sound. Further the seat belts were also replaced by the second opposite party. The final periodical service of the vehicle was also denied even after sending reminders. The dispute was tried to settle through conciliation proceedings which was not fruitful. Hence filed this complaint for direction to replace the vehicle or to pay 5,82,049/- with 18% interest. The compensation of Rs.10,000/- along with cost also prayed for in the complaint.
3. In the version filed by the first opposite party it is contended that the car was delivered to the complainant in perfect running condition. The allegation regarding tyres and wiper was of substandard and the air conditioner was producing humming sound, non receipt of exchange bonus and denial of 3rd free service by second opposite party are much less manufacturing defects in the car. It is strictly the intersay between the complainant and the second opposite party to repair the vehicle limited to warranty obligations. The complainant has not come up with clean hands as he suppressed the material facts regarding the terms and conditions applicable for exchange bonus. The exchange bonus scheme can be availed only if the old car was registered in the name of the person who is purchasing the new car. The old Hundai car bought by the complainant was registered in the name of the company and not in the name of the complainant. Hence under no circumstance, the complainant is entitled to claim exchange bonus. The complainant had to produce certain documents such as invoice of the new car, registration certificate of the old car in the name of the customer, transfer of ownership fee and receipt etc. These documents were not submitted by the complainant. No replacement of the vehicle or refund of the purchase price can be granted to the complainant as the defects were not proved by the complainant. The defect regarding low mileage was checked and the satisfactory Note was issued by the complainant as early as on 03.02.2008. It is also contended that the mileage given by a car is not constant as it depends upon a number of factors like road conditions, traffic conditions, driving habits, pattern of gear shifting, quality of fuel used and breaking patterns. The sale of the Hundai vehicles are carried out through dealers. The first opposite party is only the manufacturer and the sale proceeds are on the basis of principal to principal. In this case no manufacturing defect is proved by the complainant rather the mileage was inspected by the second opposite party, dealer, wherein the satisfaction note was given by the complainant. It contains that ‘mileage test conducted obtained 14km/ltr’ and this note was countersigned by the complainant. Hence raising of a complaint regarding mileage is unsustainable. The other defects are minor in nature and were rectified by the second opposite party as and when it was brought to notice of the second opposite party. The complaint was filed to bring disrepute to the first opposite party.
4. The second opposite party contended in their version that they have not given any assurance or terms regarding the mileage of the vehicle. The mileage of the vehicle is not constant and it depends upon a number of factors like road condition, driving habits etc. It is also contended that the accessories fitted in complainant’s vehicle were subjected to rigorous quality control checks and ensured its quality. Regarding the damage caused to the tyre while plying the vehicle was due to an external impact of sharp object and it was not due to any defects in the tyre. The second opposite party arranged replacement of the tyre as a goodwill gesture. The vehicle was brought for valuation around one year of purchase of vehicle. There was absolutely no defect in the vehicle. It is admitted in the version that there had an offer exchange bonus scheme. The complainant had to fulfil certain criteria to avail the exchange bonus offer such as the old car proposed to exchange with a new Hundai car should be registered in the name of the complainant. The opposite parties rejected the claim of the complainant on the ground that the conditions were not satisfied by the complainant. Hence he is not entitled for the proposed scheme. The allegation regarding the non undertaking of periodical service is false and this was raised to malign the opposite parties. There is no defect in the tyre and rim and the damage was due to the rash and negligent use of the vehicle. The quality of the accessories provided in the vehicle are quite good and to satisfy the complainant the second opposite parties replaced as a good gesture the tyre and wiper. There is no defect to the air conditioner as alleged by the complainant. The second opposite party had attended their free service and provided the service as per the warranty conditions.
5. The complainant’s evidence consisted of the oral testimony of the complainant as PW1 and documents marked in evidence as Exts. A1 to A10. The opposite parties evidence consisted of the deposition of Dw1 and Dw2 and documents marked as Exbts. B1 to B6.
6. The learned counsel for the appellant/1st opposite party submitted that the respondent raised the allegation of non providing exchange bonus scheme offered by the manufacturer. He submitted that the conditions prevailed in that scheme was not satisfied by the first respondent. As per the condition, the owner of the old car can only be offered the scheme for exchange for a new car. It also stated that he should be the owner for atleast 6 months prior to the exchange of the vehicle. The owner should provide the invoice, the registration certificate of the old car after the transfer were also to be produced for claiming the exchange bonus. As the respondent failed to produce there documents he is not entitled to the exchange offer. Hence the claim to refund an amount of Rs. 20,000/- does not prevail. Secondly, regarding the low mileage, the assured mileage of 14Km/ltr is the major defect alleged by the respondent. He also pointed out that the opposite parties inspected the vehicle and the complainant signed the satisfactory note dated 03.02.2008 to the effect that the car was running 14Kms. Other allegations regarding the burst of tyre is not a manufacturing defect. Tyre, battery and tubes originally equipped on Hundai vehicle are warranted directly to respective manufacturers and not by the first opposite party. The warranty policy issued to the respondent shows the warranty of battery and tyre. There is no breach of warranty. The complaint regarding tyre was attended by the second opposite party to the entire satisfaction by replacing the tyre as a good will gesture. The impugned order of the Forum below directing to replace the vehicle after accepting 20% of the price or to refund the price of the vehicle retaining 20% of the price is not sustainable as the complainant had not produced the invoice of the vehicle and there is no manufacturing defect at all. Unless the manufacturing defect is proved the manufacturer is not liable to replace or refund of the price of the car. He also relied on the case of Maruthi Udyog Ltd Vs. Suseel Kumar Gabgotra II(2006)CPJ3(SC). The respondent has failed to prove the manufacturing defect without adducing proper or credible expert evidence as per the provisions of Sec.13(1)(c) of Consumer Protection Act. In the present case no expert examination was carried out by the first respondent. Further no assurance regarding the mileage was given by the opposite parties.
7. The learned counsel for the second respondent put forth the argument that the first respondent had no grievance against the second opposite party. No prayer is made in the complaint against the second opposite party. During the warranty period the second opposite party attended the respondent’s complaints as per the terms and conditions. As per the warranty condition the authorized dealer shall either repair or replace any genuine part acknowledged by the manufacturer to be defective in material or workmanship within the warranty period at no cost to the owner of the vehicle. He also pointed out that the tyre was replaced as a good will gesture. The impugned order is only against the first opposite party and not against 2nd opposite party, the dealer.
8. The counsel for the 1st respondent/complainant vehemently opposed the arguments made by the appellant, 1st opposite party. The mileage of the vehicle was low and not as per the assurance given by; the opposite party. He pointed out that the accessories were of low quality. Further regarding the tyre condition while plying the vehicle the front tyre burst out and the passengers including the 1st respondent escaped miraculously. The counsel also submitted that the 3rd service was not undertaken by 2nd opposite party and he had to approach another automobiles to get repaired the vehicle. He produced Ext. A8 to show that he had to approach M/s. M.G.F Motors for servicing and he also incurred an amount of 2,741/- towards the service charges and produced the bill dated 12/10/2009. The valuation of the vehicle was very low. Even though the vehicle had covered only 8 months the vehicle was valued only Rs. 3 lakhs. So it is clear within a span of one year of purchase, shows that the vehicle is not having quality or condition assured by the opposite parties. He also pointed out that he purchased the vehicle from the opposite parties on the basis of the exchange bonus offer which was not extended to the respondent. Hence the order of the Forum below is sustainable and appeal is to be dismissed.
9. On hearing the counsels for the parties and also on going through the evidence and records we are of the view that the first respondent/complainant though alleged manufacturing defect has not proved it in evidence. The Section 13(c) of the Consumer Protection Act provides while alleging manufacturing defect it is to be proved by expert opinion. Relying on the decision of the Hon’ble National Commission, in the absence of proof of manufacturing defect the order passed by the Forum is erroneous. Further regarding the mileage of the vehicle, nothing is in evidence to prove that there had assurance regarding the mileage of the vehicle. In this context, we find that the mileage of the vehicle depends upon several factors like road condition, fuel use, running condition driving the vehicle etc. Further the complainant himself had signed in the satisfactory note (Ext. B1) produced before the Forum below. Hence we have to come to a conclusion that the inspection of mileage was carried out satisfactorily. Now coming to the bursting of the tyre, the second opposite party already replaced the tyre as a gesture of good will even though it does not come under the warranty. The tyre got burst due to the sharp contact of an external body. It is also given in evidence that the seat belt and other defects were replaced by the second opposite party. A draft repair order dated 10.04.2010 (Ext. A 10) it is mentioned A/C not working. No bill was produced regarding the repair of the Air conditioner. Further the complainant has no grievance against the second opposite party, dealer, regarding service and maintenance and we find that there is nothing in evidence to prove manufacturing defect by the first respondent.
In the result, appeal is allowed, upturning the order passed by the Forum below.
Office is directed to send a copy of this order with LCR.
A. RADHA : MEMBER
K. CHANDRADAS NADAR : JUDICIAL MEMBER
st
KERALA STATE CONSUMER
DISPUTES REDRESSAL
COMMISSION
THIRUVANANTHAPURAM
APPEAL No.201/12
JUDGMENT DATED 16.02.2013
st
