DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.
Complaint No. CC/14/263 of 24.09.2014.
Decided on: 26.02.2015.
Amrik Singh S/o. Sh. Mangat Singh, R/o. H. No.109, Ward No.5, Sanour, Tehsil & Distt. Patiala.
….….Complainant.
Versus
- The Managing Director, Kohli Hyundai, KGC Motors, Sanour Road, Patiala.
- The Manager, Kohli Hyundai, KGC Motors, Sanour Road, Patiala.
- Hyundai Motors India Ltd. A-30, Mohan Cooperative Industrial Area, Phase-I, Mathura Road, New Delhi-110044.
….…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act.
QUORUM
Sh. D.R. Arora, President.
Smt. Neelam Gutpa, Member.
Present: Sh. P.S. Bhinder counsel for the complainant.
Opposite party no.1 ex-parte.
Sh. S.P. Singh Sidhu counsel for opposite party no.3.
ORDER
D.R. ARORA:
1. It is the case of the complainant that he had purchased a new car make Hyundai Verna CRDi EX 1.6 BSIV crystal white on 21.08.2012 vide invoice no.KGC-20120252 for Rs.9,50,523/-, got financed from State Bank of Patiala, from O.P no.1.
2. On 04.06.2014, the complainant had been coming from Amritsar to Patiala in the said car and when he reached near the flyover near Lovely Professional University, a smoke started coming out from the engine of the car. By the time the complainant stopped the vehicle, he found the fire coming out from the engine. The complainant and his friends namely Shamsher Singh and Sukhwinder Singh jumped from the car to save their lives. Within minutes, the car was badly burnt. Fire brigade was called at the spot to control the fire. The police of Police station Chaheru arrived at the spot and registered DDR No.15 dated 04.06.2014, in which the police recorded initial findings that the fire had occurred because of some technical/manufacturing fault in the vehicle and the police ruled out any foul play in the fire.
3. The car was brought to workshop of O.P no.1 but O.P no.1 failed to repair the car on the ground that the fire had not occurred because of any technical fault. The technical team from Chennai had visited and inspected the car and who disclosed that there was a technical fault which led to the fire.
4. It is further averred that the complainant visited O.P no.1 many a times in connection with the repair of the car but no heed was paid by it and rather the matter was put off under lame excuses. The said act of the O.P is said to be a deficiency in service, which resulted into the harassment and mental agony experienced by the complainant. Accordingly, the complainant has brought this complaint against the O.Ps under Section 12 of the Consumer Protection Act, 1986 (for short the Act) for a direction to the O.Ps to repair his vehicle or to replace with new one; to pay him Rs.5 Lacs by way of compensation on account of harassment and mental agony experienced by him qua the loss because of the faulty vehicle.
5. The cognizance of the complaint was taken against O.Ps no.1 and 3. Whereas O.P no.3 has come forward to contest the claim of the complainant, O.P no.1 despite service failed to come present and was accordingly proceeded against ex-parte.
6. In the written version filed by O.P no.3, it has raised certain preliminary objections, interalia, that the complainant has concealed the material facts and therefore, the complaint is liable to be dismissed; that the O.P has got relationship with its dealer on principal to principal basis and the omission/error, if any, committed by the dealer cannot fasten any liability upon the O.P and that the complainant has not implicated the insurance company, which is proper and necessary party. As regards the facts of the complaint, it is averred that as per the information available with the O.P, the vehicle was being driven by the son of the complainant and not by the complainant himself and therefore, the complaint has been brought on hearsay basis. It is also the plea taken up by the O.P that the accident had taken place on 04.06.2014 but the vehicle was reported in the workshop on 25.06.2014 i.e. after a lapse of about 20 days of the incident, going to show that the complaint has been brought with a malafide intention. It appears that during 20 days, the complainant had removed the non-approved genuine accessories to conceal the real cause of the fire and in order to buy a time for concocting a story. After incident of the vehicle, the O.P vide letter dated 15.07.2014 had informed the complainant that there was no manufacturing defect in the vehicle and all the components and parameters were found as per HMIL specifications and therefore, there was no possibility of fire due to manufacturing defect. The complainant was also informed that the inspecting team found a tampering in the engine and cabin wiring harness. The vehicle caught fire solely due to the negligence of the complainant as the complainant indulged in tampering and altering the wiring system in the vehicle and also due to the fitment of non-approved accessories. The technical team found original fog lamp bulb in the dickey and the bumper and fog lamp had burnt completely during the fire and there is a strong evidence of tampering and altering the wiring system.
7. It is also the plea taken up by the O.P that had there been any defect in the car, the same would not have covered such an extensive mileage of 32,510 Kms in less than 2 years since from the date of its purchase. It is denied that the O.P is under any obligation to repair the vehicle free of cost. It is for the complainant to prove “manufacturing defect” in the vehicle and further to prove such a defect on the basis of an opinion of an expert, which has not been produced on file. The complainant has also not produced any report of any laboratory. Claim of the complainant is based on mere averments without any corroborative evidence. After denouncing the other averments of the complaint, going against the O.P, it was prayed to dismiss the complaint.
8. In support of his complaint, the complainant produced in evidence Ex. CA, his sworn affidavit along with documents Ex. C1 to Ex. C6 and its counsel closed the evidence. On the other hand, the learned counsel for the O.P tendered in evidence Ex. OPA, the sworn affidavit of Sh. Manish Kumar, Assistant Manager Legal working with the O.P. at New Delhi along with the documents Ex. OP1 to EX. OP2 and closed its evidence.
9. The complainant has filed the written arguments. We have examined the same, heard the learned counsel for the parties and gone through evidence on record.
10. Ex. C2 is the copy of DDR no.15 dated 04.06.2014 lodged by one Sh. Shamsher Singh son of Sh. Harbhajan Singh, R/o. H. no.26, Green Avenue, Sular, Patiala with Police Post Chaheru of Police Station Sadar, Phagwara, in which it is recorded that on the said date the informant namely Sh. Shamsher Singh along with Amandeep Singh son of Amrik Singh and Sukhwinder Singh son of Prem Singh had been coming from Amritsar to Patiala in the car make Verna bearing registration no.PB-11-BB-6678 owned by Amrik Singh son of Sh. Mangat Singh, resident of Aman Marble House of village Ghalouri, Sanour Road, Patiala and when the car reached on the bridge in the area of village Chaheru, near Lovely University that Shamsher Singh noticed smoke arising from the engine. He got the vehicle aside and started checking the same. He found the flames started coming abruptly and they tried to douse the same with the help of earth/sand. They also rang up the fire brigade but before the fire could be tamed, the vehicle had badly burnt. He also got it recorded that the fire had occurred because of some technical fault. As against the version recorded in Ex. C2, the complainant has come forward with the plea that on 04.06.2014 when the incident had taken place, the car was being driven by him and he was accompanied by his friends Shamsher Singh and Sukhwinder Singh. Thus, there is a complete deviation from the version got recorded with the police by Shamsher Singh who claimed that the vehicle was being driven by him and who did not state about the presence of complainant Amrik Singh in the vehicle. This discrepancy in the version regarding the incident certainly causes suspicion in the mind of the Forum about genuineness of the incident.
11. The matter is further aggravated when it is noted that the incident having taken place on 04.06.2014, the vehicle was reported for repair to O.P no.1 on 25.06.2014 as would appear from repair order Ex. OP1 dated 25.06.2014 issued by O.P no.1. No explanation has been furnished by the complainant as to why the vehicle was not taken to a nearby workshop of O.P no.3 or in any case to O.P no.1 at Patiala. After all the vehicle would have been toed with one or the other vehicle and therefore, it would not have been difficult for the complainant to bring the same immediately, after the accident, to the workshop of O.P no.1, particularly when in the DDR, the author of the same has not blamed anybody for the accident.
12. It is the plea taken up by the complainant that the fire to the vehicle had taken place because of some technical fault but surprisingly the complainant has not led any evidence to show as to what was the technical fault on account of which the vehicle had caught fire. In Ex. C2, copy of DDR, it is recorded that the fire had occurred to the vehicle because of some technical fault. The complainant was supposed to obtain a report from an authorized mechanic of O.P no.3 about the technical fault in the engine which resulted into the fire to take place. When the complainant had led his evidence and even O.P no.3 also closed its evidence that on 02.02.2015, the complainant filed an application seeking permission to lead additional evidence by way of producing a report of mechanic, which report was not available with the complainant earlier. The said application was declined by us vide our order dated 11.02.2015 having observed that it was not difficult for the complainant to have procured such a report. The report does not disclose when the vehicle was got examined by the complainant from Jambu Motor Workshop, Patiala. It is nowhere the case of the complainant that he had ever got the vehicle examined from said Jambu Motor Workshop, Patiala and that he could not produce the report obtained from the said workshop, in the absence of which, it was observed by us that we were not in a position to rely upon the said report. We also observed that the complainant wanted to fill up the lacuna after the evidence led by the parties. Even if we go through the photocopy of the said report placed on file, the mechanic is found to have given the report that the vehicle was totally burnt due to freezing and breakage of bearing of compressor of AC. The breakage of bearing of compressor took place because of the manufacturing fault as the quality of the material of bearing was below standard. We really fail to understand as to on what basis the head mechanic of Jambu Motor Workshop could give such an opinion without disclosing the qualification and experience in the matter of judging the quality of material used in the bearings of compressor. In the absence of the mechanic possessing the requisite qualifications to judge the quality of the material used in the bearings of the compressor, the said report cannot be relied upon.
13. It was submitted by Sh. P.S. Bhinder, the learned counsel for the complainant that it was the positive plea taken up by O.P no.3 that the technical team of the O.P had inspected the vehicle and that no manufacturing or technical defect was found in the car but the O.P has not placed on file the report given by the technical team. It is also the plea taken up by the O.P that it was observed by the technical team that there was tampering in the engine and cabin wiring harness. Therefore, the report of the technical team was necessary to be produced by the O.P.
14. On the other hand, it was submitted by Sh. S.P. Singh Sindhu, the learned counsel for O.P no.3 that it was for the complainant to have established any manufacturing defect in the vehicle in order to avail the benefit of the repair/replacement of the parts of the vehicle free of cost during the warrantee period but the complainant has utterly failed to lead any evidence in this regard. The complainant failed to take any steps in getting the vehicle examined by an authorized workshop of O.P no.3 or any other competent workshop to find out any manufacturing defect in the vehicle. It was also submitted by Sh. Sidhu that the vehicle was purchased by the complainant on 21.08.2012 as would appear from Ex. C1, the copy of the retail invoice and till the date of the incident, the same had covered a mileage of 32510 Kms within a span of one year and about nine months. Had there been any manufacturing defect in the vehicle, the same could not have been used for such a long period. In this regard, he placed reliance upon the citation R. Baskar Versus D.N. Udani & others IV (2006) CPJ 257 (NC) of Hon’ble National Consumer Disputes Redressal Commission, New Delhi. In the case of the citation, the complainant had purchased a Bajaj Super X Scooter from D.N. Udani Hex Bikes, an authorized distributor at Chhennai of M/S. Bajaj Auto Ltd., Akrudi, Pune. The complainant got the vehicle examined by M/S. V.K. Auto Pvt. Ltd., Chennai as same did not function properly and then from the authorized service centre of D.N. Udani and it was found that the oil spark plug was found filled with oil and the complainant was advised for proper mixing of petrol and oil. The defects were removed but the defects reappeared after a week. This problem reappeared again and again and it was repaired by the authorized service dealer. The O.P wanted the complainant to give a certificate that the vehicle had been satisfactorily repaired and to take back the vehicle but the complainant refused. The complainant requested for the change of the engine but the O.P refused to oblige him. The complainant brought the complaint, which was accepted by the District Forum having directed the O.P to refund the price of the vehicle with interest. In appeal, the Hon’ble State Commission held that there was absolutely no evidence to show that there was any manufacturing defect in the vehicle. It was not the grievance of the complainant that the O.P had failed to attend to the repair work during the guarantee period. The complaint was filed after one year and five months of the purchase, after the vehicle had run 9808 kms. The appeal was accepted. In the revision before the Hon’ble National Commission it was observed, interalia, “Considering the facts that the vehicle had been in use for one year and five months and had run over 9808 kms, it is difficult to believe that it is suffering from manufacturing defect. Further, the vehicle was repaired by the O.Ps and kept ready for delivery. Still the complainant refused even to test ride the vehicle…..”
15. It is submitted by the learned counsel for the O.P that the complainant has placed on file the repair orders no.R201401272 dated 21.02.2014, no.201401804 dated 13.03.2014 and order no.201402812 dated 25.04.2014 issued by O.P no.1 in the name of the complainant regarding his vehicle in question and nowhere in the same there is any mention of any manufacturing defect in the vehicle. Had there been any manufacturing defect in the vehicle, the complainant was supposed to point out the same while getting the service/ running repair from O.P no.1 vide aforesaid repair orders.
16. We have considered the submissions and are of the considered view that the complainant has utterly failed to show that there was any manufacturing defect in the vehicle, as a result of which the same had caught fire so as to oblige the O.Ps to provide him service regarding the repair of the vehicle during the warrantee period, which as per the copy of the warranty policy produced along with the written arguments filed by the complainant is for a period of 24 months from the date of the delivery to the first purchaser irrespective of the mileage. Under the heading What is covered, given in the warranty, it is provided, “Except as provided in paragraph 3 hereof, our Authorized Dealers shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period stipulated above, at no cost to the owner of the Hyundai vehicle for parts or labour. Such defective parts which have been replaced will become the property of HMIL.” Similarly under the heading What is not covered, it is provided, “This warranty shall not apply to:
- Normal maintenance services other than cleaning and polishing, minor adjustments, engine tuning, oil/fluid changes, filters replenishment, fastener retightening, wheel balancing, wheel alignment and tyre rotation etc.
- Replacement of parts as a result of normal wear and tear such as spark plugs, belts, brake pads and linings, clutch disc/facing, filters wiper blades, bulbs, fuses, etc.
- Damage or failure resulting from……”
17. The very fact that the vehicle had caught fire abruptly while running on the road may be cause of sparking in the plug, which may be due to negligence in properly maintaining the vehicle. May that as it be in the absence of any positive evidence, to have been led by the complainant that there was a specific manufacturing defect in the vehicle, it is not possible for us to hold that the engine had caught fire because of manufacturing defect in the vehicle. As discussed at the outset that the version regarding the incident is also found to be doubtful in as much as the complainant claims the vehicle to have been driven by him but as per Ex. C2, copy of DDR, same was being driven by one Shamsher Singh son of Harbhajan Singh. Again the failure on the part of the complainant to report the vehicle for repair to O.P no.1 after a period of 20 days also goes to create a suspicion about the genuineness of the incident. In any case in the light of the citation R. Baskar Vs. D.N. Udani and others (Supra), the vehicle having covered a mileage of 32510 Kms in a span of about one year and nine months, it is not possible for us to say that the engine had caught fire because of any manufacturing defect in the vehicle. It is not the case of the complainant that the O.Ps refused to repair his vehicle on payment. Consequently, we do not find any substance in the complaint and the same is hereby dismissed.
Pronounced.
Dated: 26.02.2015.
Neelam Gupta D.R. Arora
Member President
