Haryana

Yamunanagar

CC/419/2011

Puneet Kumar S/o Prit Pal - Complainant(s)

Versus

Khanna Car Plaza Pvt Ltd. - Opp.Party(s)

Naresh Khurana

15 Feb 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

 

Complaint No.419 of 2011.

Date of institution: 02.05.2011

Date of decision: 15.02.2017

 

Puneet Kumar aged about 32 years son of Sh. Prit Pal , resident of Professor Colony, Yamuna Nagar Tehsil Jagadhri, District Yamuna Nagar.

 

                 …Complainant.

                                            Versus

1. Khanna Car Plaza Pvt. Ltd. Chhachhrauli Road Jagadhri, Tehsil Jagadhri, District Yamuna Nagar through its Manager/ Partner/Proprietor.
2. Hyundai Motor India Ltd. Regd. Office & Factory Plot No. H1 SIPCOT Industrial Park, Irrugattu Kottia, Sripuram building Talak, Kancheepuram Distt. Tamilnadu 602105 through its Managing Director.
3. Makkar Tyres Radaur Road Near Railway Crossing Yamuna Nagar Tehsil Jagadhri, District Yamuna Nagar.
4. Bridge Stone tyres Pvt. Ltd. DSID, SB, 3a Bunglo Plot Railway Road, NIIT Faridabad 121001.

                                                                                                                          …Respondents.

 

BEFORE:         SH. ASHOK KUMAR GARG…………….. PRESIDENT.

                         SH. S.C.SHARMA………………………….MEMBER.

 

Present:          Sh. Naresh Khurana, Advocate for complainant.

                        Sh. Satish Kamboj, Advocate for respondent No.1.

                        Sh. Ramneek Sharma, Advocate, counsel for respondent No.2.

                        Sh. Chetan Madan, Advocate, counsel for respondent No.3.

                        Sh. Rohit Arya, Advocate, counsel for respondent  No.4.

 

ORDER

 

1                       The present complaint has been filed under section 12 of the Consumer Protection Act. 1986.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant purchased  a car make Verna from the respondent No.1 ( hereinafter respondents will be referred as OPs) manufactured by Op No.2 and paid a sum of Rs. 8,20,926/-  in January, 2011. At the time of purchasing the car in question, the OP No.1 assured that in case the car fails to give mileage of 28 kilometers or any other defect arose in the car within a warranty period they shall refund the sale consideration of the said car or shall replace the same. It has been further mentioned that, since the very beginning there was some noise in the car and the car in question gave the mileage only 17 kilometer per litre instead of 28 KMPL as claimed and assured by the OPs. Upon which, the complainant approached the OP No.1 and disclosed regarding the problems in the car in question. OP No.1 opened the steering system of the car and repaired the same and returned the car in question to the complainant that now there will be no noise as complaint made by the complainant. The officials of OP No.1 further assured the complainant that the mileage of the said car will be increased after 1 or 2 services but neither the noise problem could be removed by OP No.1 nor the mileage of the car increased. It has been further mentioned that even the tyre fitted in the car in question of Bridgestone Company i.e. Op No.4 were bloated. Upon which, the complainant approached the OP No.1 who asked the complainant to approach the Op No.3 as OP No.3 is authorized dealer of the said tyres. After that, complainant approached the Op No.3 but the OP No.3 put off the matter on one pretext or the other and ultimately refused to replace the tyre. Lastly, it has been mentioned that the OPs sold the car by adopting unfair trade practice and mis-representation of the facts and in fact there was manufacturing defect in the car, hence there is a great deficiency in service on the part of the OPs. Lastly, prayed for directing the OPs to refund the cost of the car in question and also to pay compensation as well as litigation expenses.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as the complainant has concealed the material facts from this Forum; complaint of the complainant is liable to be dismissed as the complainant has failed to prove any manufacturing defect at all, mere allegations cannot replace the need for a qualified experts report which is lacking in this case; the issue of “Mileage” as claimed in the complaint is based on any cogent and convincing material purported to have been issued by the Op No.1. In fact the OP No.1 being the dealer of the OP No.2 is not even authorized to issue a statement or make an assurance qua the promised mileage of the car in question. The allegations qua the alleged promise of mileage of 28 KMPL are totally false and manipulated one. However, it has been admitted that complainant had sent his car to Op No.1 on 08.02.2011 with the complaint of there being, engine vibration, door locks problem and also steering noise. The same was duly attended by Op No.1 to the entire satisfaction of the complainant and the agent/authorized person of the complainant namely Satpal had issued a satisfaction note in this regard to the Op No.1. admitting the fact of successful repair and settlement of the issues as raised therein as on 08.02.2011 and on merit it has been admitted that Op No.1 sold a brand new defect free car to the complainant as received from the OP No.2 on 15.01.2011. As per service record of any kind as alleged in the complaint. In this case, the car during the short period of time i.e. w.e.f. 15.01.2011 till 18.04.2011 has already run over 10365 KM having average about 111 KM per day of its use. Further, the second free service was got conducted by the complainant on 18.04.2011 at Kanase Hyundai, situated at Plot No.1, Pune- Bangalore, NH 4, Satara-Maharashtra, which clearly proves that the car travelled the entire distance between Yamuna Nagar Haryana and Satara Maharashtra, which even otherwise belies any claims of the complainant qua the allegations of there being a manufacturing defect in the car at all. Further, the allegations regarding the tyres of the car in question were also denied. Lastly, it has been stated that complainant has failed to show any sign of any defects as stated in the consumer complaint and the averments made therein are totally baseless and prayed for dismissal of complaint.

4.                     OP No.2 also filed its written statement by taking some preliminary objections such as complaint is false, frivolous and has been filed to gain undue benefits. The complainant reported for third free service at the mileage of 20340 KM on 04.05.2013 but no specific problem was reported with respect to the car in question at that time. The complainant has not placed anything on record to prove the manufacturing defect and it is well settled principal of law that any allegations has to be supported by any concrete evidence which in the present case the complainant has failed to show; as per owner manual vehicle was required to be reported for free periodical service as prescribed, however, vehicle was reported for third free service after more than 2 years of the delivery of vehicle which constitute negligence in maintenance of the vehicle on the part of the complainant. The time interval between 2 services should not be more than 6 months. Vehicle was reported for second free service on 18.04.2011 and later reported for third free service on 04.05.2013 and at that time the car had covered an extensive mileage of more than 20340 KM. Had there been any defect in the car, the same could not have covered such an extensive mileage and on merit it has been admitted that Op No.1 is authorized dealer of OP No.2 to sale and purchase Hyundai Make Vehicles on the basis of principal to principal and the concerned dealer is solely responsible for any errors or omission or any mis-representation at the time of retail sale/services/ repairs of the car, if any. Rest contents of the complaint were specifically denied and lastly prayed for dismissal of complaint qua OP No.2.

5.                     OP No.3 filed its written statement besides preliminary objections stated on merit that complainant never purchased any tyre or tube from the Op No.3 and as such complainant has no cause of action to file the present complaint against the Op No.3. Even, the complainant has never contacted the OP No.3 as alleged in the complaint because the complainant was not having any reason to contact the OP No.3. Lastly, prayed for dismissal of complaint qua OP No.3.

6.                     Op No.4 filed its written statement besides preliminary objections stated on merit that complaint of the complainant is totally baseless and false, even the complainant did not follow the provision of Consumer Protection Act, 1986 as if the complaint relates to any defects (alleged) in the case then proper adjudication of the complaint, test/analysis is mandatory as per section 13(1) (C) of the C.P. Act and all the allegations have been denied. Lastly, prayed for dismissal of complaint.

7.                     As the complainant failed to lead any evidence, hence his evidence was closed by court order on 29.03.2016.

8.                     On the other hand, counsel for the OP No.1 tendered into evidence affidavit of Shri M.L.Wadhwa, Service Manager, M/s Khanna Car Plaza Pvt. Ltd. as Annexure RW/A and documents such as Photo copy of warranty policy as Annexure R-1, Photo copy of Satisfaction note as Annexure R-2, Photo copy of job sheet of service of car as Annexure R-3 to R-7, Photo copy of authorization letter as Annexure R-8 and closed the evidence on behalf of OP No.1.

9.                     Counsel for Op No.2 tendered into evidence affidavit of Mansih Kumar Deputy Manager, Legal & Secretarial with Hyundai Motor India Ltd. as Annexure RW2/A and closed the evidence on behalf of Op No.2.

10.                   Counsel for the Op No.3 made a statement that his written statement may be read as his evidence and closed the evidence.

11.                   Counsel for OP No.4 tendered into evidence affidavit of Deepak Singh Engineer in Technical Service Department in Bridgestone India Pvt. Ltd. as Annexure RW4/A and documents such as Photo copy of Warranty policy of Bridgestone tyres as Annexure R4/1 and closed the evidence on behalf of OP No.4.

12.                   We have heard the learned counsels of both the parties and have gone through the pleadings as well as documents placed on the file very carefully and minutely.

13.                   The plea  of the complainant  that the Op No.1 who is dealer of the OP No.2 manufacturer of Hyundai motor car make Verna, gave assurance to the complainant at the time of purchasing the car in question that the car in question will give the mileage of 28 KM per litre whereas car in question has given mileage of only 17 KM per litre instead of 28 Kilometer and further the car in question is also giving noise during the currency of warranty period is not tenable as the complainant has totally failed to place on file any such evidence from which this Forum can consider that in fact the Op No.1 gave any assurance to the complainant that car in question will gave mileage of 28 KM per litre.  Further, complainant has also failed to file any expert report or mechanic report to prove that car in question was giving noise which was due to manufacturing defect in the car in question and in the absence of any cogent evidence or any expert opinion this Forum is further unable to hold that there was any manufacturing defect in the car in question. The complainant has himself admitted in his complaint that Op No.1 opened the steering system of the car and repaired the same. Further the version of the complainant that the tyres of the car in question were also defective is also not tenable as no such evidence has been placed on file by the complainant. The complainant has also not placed on file any job card/job sheet for getting the service of the car in question and lodging any complaint in respect of the defects and mileage as alleged in the complaint. As per section 13(1) of the Consumer Protection Act it is mandatory that where the complainant alleged defect in the goods which cannot be determined without any proper analysis or the test of goods. The goods/articles shall be sent to the appropriate laboratory for an analysis or test which ever may be necessary but in the present case complainant has neither moved any application for appointing any local commissioner nor has placed on file any expert report in support of his version. On the other angle also, the fuel consumption of the vehicle in question is not a solitary and static value rather the same is the outcome of many  dynamic factors which collectively may realize the said value, including the speed at which the vehicle is being driven, the usage of the clutch, the usage of the breaks, the change of the gears, the tyre pressure being maintained, the payload being carried, the type of terrain on which the vehicle is being run and finally the maintenance of the engine and vehicle in general, the lack of even one of these factors will ensue that the overall performance of the vehicle so far as the question of mileage is concerned would turn uneconomical. In the present complaint as per the version of the OPs, the complainant obtained his second free service at Kanase Hyundai, Pune Bangalore N.H. 4, Satara Maharashtra which clearly proves that the car travelled the entire distance between Yamuna Nagar Haryana to Satara Maharashtra, had the car was having any manufacturing defect then the complainant might have avoided to travel the car for a such long distance.

14.                   In the circumstances noted above, as the complainant has totally failed to file any cogent evidence and even the evidence of the complainant was closed by court order being old case. Hence, in the absence of any cogent evidence the complainant is not entitled to any relief.

15.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Pronounced in open court:

Dated: 15.02.2017.                                                                 

                                                                                              (ASHOK KUMAR GARG)

                                                                                        PRESIDENT

                                                                                        DCDRF Yamuna Nagar

 

 

                                                                                       (S.C.SHARMA)

                                                                                        MEMBER