BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.63 of 2018
Date of Instt. 15.02.2018
Date of Decision:28.06.2022
Raghbir Singh, Age 73 years, S/o late Mehar Singh, H. No.133, Golden Colony, Phase-2, Birring, Deep Nagar, Jalandhar Cantt. Through Attorney: Manpreet Singh S/o Raghbir Singh R/o H. No.133, Golden Colony, Phase-2, Birring, Deep Nagar, Jalandhar Cantt. Mob. No.9915895991.
..........Complainant
Versus
1. Kosmo Automobiles, Opp. Delhi Public School, G. T. Road, Jalandhar. Through its Prop./Partner/Manager/Authorized Representative.
2. Hyundai Motor India Ltd., Unit No.C-113-114, 1st Floor, Office Suites Elante, Plot No.178-178A, Industrial & Business Park, Phase-1, Chandigarh-160002 Through its Managing Director/Authorized Representative.
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Smt. Jyotsna (Member)
Sh. Jaswant Singh Dhillon (Member)
Present: Sh. Vikas Sharma, Adv.Counsel for the Complainant.
Sh. Rajat Chopra, Adv. Counsel for OP No.1 (Join Proceedings)
Sh. A. K. Arora, Adv. Counsel for the OP No.2.
Order
Dr. Harveen Bhardwaj(President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that on 27.07.2017 the complainant purchased a Car (Regd. No.PB08DP8533) Make:Grand I10 Magna CRDi Sleek Silver, Chassis No.MALA851DLGM451141*D, Engine No.D3FAGM086275 vide Invoice No.H201600711 dated 27.02.2017 for Rs.5,58,413/- from OP No.1. Two years warranty was given for the above said product. At the time of sale, the OP No.1 told and assured the complainant that in case of any defect or problem if found in the said vehicle within warranty period, the same shall be removed immediately free of cost. After 2-3 months from the date of purchase of said vehicle, the complainant noticed that the colour at Driver Door (Right Side) and Fender is different from the actual colour of car body. The complainant carried the vehicle to the OP No.1 and shown the difference of colour of Driver Door and Fender from the body colour of car. The OP No.1 admitted that it is a manufacturing defect but it can be made good to match the colour with compounding & polishing. On 31.10.2017 and earlier two times visits the complainant visited the OP No.1 to resolve the paint issue. The OP No.1 tried to match the colour by compounding and polishing three times but could not satisfy the complainant. On 23.12.2017 at the time of second service, the OP No.1 again applied rubbing polish on the defective part buyer the colour could not match with actual colour of car body. The OP No.1 charged from complainant Rs.600/- for rubbing polish to match the colour but no result appeared. Then the OP No.1 suggested the complainant to get repaint the car at driver door and fender to match the colour with body colour of car which the complainant did not accept. On 28.12.2017 the complainant sent an email to the OP No.2 explaining the entire problem regarding mis-matching the colour of the driver door and fender of car. In response to above email the GM of Kosmo (Sh. Naresh) informed the complainant through phone on 30.12.2017 that the door and fender will be re-painted to solve the problem of manufacturing defect in the paint. On 02.01.2018 the complainant again sent an email letter to OP No.2 requesting to supply a new car without any manufacturing paint defect. In response to above email the OP No.2 replied that their Regional Office will coordinate with their dealership to arrange for necessary action. In response to above email the OP No.1 sent a registered letter to complainant to bring the vehicle to their workshop. When the complainant approached the OP No.1, the OP No.1 told the complainant that they would repaint the door and fender to match the colour with colour of car body which the complainant refused because the OP No.1 had already tried to match the colour by compounding & polishing for the last five-six months but could not succeed to match the colour with body of car. The complainant requested the OPs through email to supply a new car in place of defective sold car but the OPs did not reply this email letter presumable refused to replace the car with new one. The OPs sold the car containing manufacturing paint defect which colour of driver door and fender is difference/not matching with car body colour which tantamount to unfair trade practice and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the vehicle with new one and in the alternative to return its price as per bill i.e. Rs.5,58,413/- with 12% interest per annum from the date of sale alongwith expenses of registration charges and insurance charged and further to refund the cost of rubbing/compound polish Rs.600/- , further to pay the cost of litigation Rs.5500/- and to give Rs.2,50,000/- as compensation for mental tension and harassment.
2. Notice of the complaint was given to the OPs,but despite service OP No.1 failed to appear and ultimately OP No.1 was proceeded against exparte, but after some time the counsel for the OP No.1 joined the proceedings, but subject to condition that the OP No.1 will not be allowed to file written reply on the main complaint and also not allowed to lead any evidence. He is only right to argue the case.
3. OP No.2 filed its written reply and contested the complaint by taking preliminary objections that the complainant has no locus-standi to file the present complaint against the OP No.2. The complainant has failed to demonstrate that HMIL had promised or assured services, which was not fulfilled by it or that HMIL was deficient in providing any services or for that matter indulged in any unfair trade practice under the provisions of the Consumer Protection Act, 1986. It is further averred that the complainant has not approached this Commission with clean hands and has filed the present complaint by suppressing the material facts and by misleading the vital facts before the Commission just to get an undue advantage and under relief to which the complainant should not be allowed to. The complainant had deliberately not disclosed before this Commission that he had been asked by dealer to come to workshop with the concern and problem (if any) shall be resolved as per warranty terms and conditions to which the complainant had himself willfully refused. Thus, the present complaint is liable to be dismissed on this ground itself. The complainant in the present complaint has not discharged the burden casted upon him by the Act and has not proved how the vehicle in question is suffering from any manufacturing defect and thus, is not entitled for any relief from this Commission. It is settled principal of law that the terms and conditions of warranty only entails repair and does not include replacement or refund of money. Thus, the complaint submitted by the complainant is not maintainable as no cause of action arose against the answering OP. the present complaint is an abuse of the process of this Commission, hence deserves rejection by this Commission. No cause of action to file the present complaint before this Commission has arisen, hence the present complaint deserves dismissal by this Commission. On merits, the factum with regard to purchasing the said car by the complainant is admitted and it is also admitted that the car of the complainant has two year warranty and any defect that arises in any Genuine Hyundai part within that period shall be either repaired or replaced under warranty at no extra cost to the owner, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavits Ex.CA & Ex.CB alongwith some documents Ex.C-1 to Ex.C-14 and closed the evidence.
5. In order to rebut the evidence of the complainant, the counsel for the OP No.2 tendered into evidence affidavit Ex.OP2/A alongwith some documents Ex.OP2/1 and Ex.OP2/2 and closed the evidence.
6. We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for the OP No.2 very minutely.
7. The complainant has proved on record that he has purchased a Car (Regd. No.PB08DP8533) Make:Grand I10 Magna CRDi Sleek Silver for Rs.5,58,413/- from OP No.1, vide Ex.C-2. It is admitted by the OPs that the car of the complainant had two years warranty period. It is alleged by the complainant that after 2-3 months from the date of purchase, he noticed that the colour at Driver Door (right side) and fender is different from the actual colour of the car body. He has produced on record the photographs of the car Ex.C-3 to prove that there is a mismatching of colour of the right door with the car of the body. As per his allegations, he made complaint to the OPs and visited the OP No.1 to resolve the paint issue. Necessary charges were also charged from the complainant for rubbing polish to match the colour, but to no effect. Ex.C-3 is the invoice summary of 31.10.2017 and Ex.C-5 is the invoice summary i.e. job sheet and in this the charges for rubbing and polishing have been charged. Ex.C-6 is the email, vide which the complainant had informed the OPs that despite his complaints of mis-matching of colour of driver door and fender with the body of the car, no matching has been done by the OPs. The OPs tried to match the colour with compounding and polishing, but could not match it. The complainant in this complaint has clarified that the OPs had suggested him to repaint the car driver door and fender, but he refused for the same as the car was new. Ex.C-7 is the reply to the email of the complainant, vide which the OP No.2 has informed him that their Regional Office will coordinate to arrange for necessary action to address his concern. The complainant again sent email to the OPs on 02.01.2018 showing his grievance that as per the discussion with the OP No.1 there was a manufacturing defect in the car and the same was delivered by the manufacturer without quality check. The colour of the driver door and fender could not match with the color of the body of the car despite the fact that there was rubbing and polishing by the customer care of the OPs, but to no effect. It has been alleged that there is deficiency in service and unfair trade practice on behalf of the OPs by selling the car having manufacturing defect without checking its quality. Ex.C-8 has been proved the reply to the mail of the complainant, in which it has been mentioned that the Regional Officer will contact him. Ex.C-9 is the letter written by the OP No.1 to the complainant that they have contacted the complainant, but he has refused for any work, which his vehicle is required. This mail has been again replied by the complainant, vide Ex.C-10. It is mentioned in this email that the agency had already been intimated that the agency had tried to match the colour by compounding and polishing etc. for the last 5-6 months, but could not match the colour. Now the agency is suggesting to repaint the colour, which is a clear fraud to a valuable customer by such a reputed agency. The complainant has produced on record the photographs of the vehicle also.
8. From all the documents discussed above, filed by both the complainant as well as OPs, this fact is proved that the complainant purchased a new car from the OP No.1 of the make of OP No.2. Since, its purchase, there was a problem of mismatching of colour of front driver door and fender with the body of the car. It has also been proved that the correspondence was there between the complainant and the OPs. It has also been proved that despite the efforts done by the OP for polishing and rubbing the colour could not match and as per the allegations of the complainant this fact was admitted by the OPs that there is a manufacturing defect. This is clear cut deficiency in service and unfair trade practice on the part of the OPs as before selling the vehicle, it is their bounded duty to check the quality of the vehicle. The vehicle is expensive and the vehicle was purchased by the complainant by making the payment, but he could not enjoy the fruits of the car as there was a manufacturing defect rather he has suffered harassment and mental tension after purchasing the car and as such, the complainant is entitled for the relief.
9. In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to return the price of the car i.e. Rs.5,58,413/- alongwith cost of RC to the complainant. The complainant is directed to return the RC and the vehicle to the complainant. Further OPs are directed to pay a compensation of Rs.10,000/- for causing mental tension and harassment to the complainant and Rs.5000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Jyotsna Dr.Harveen Bhardwaj
28.06.2022 Member Member President
