Tamil Nadu

North Chennai

CC/136/2016

B.Athmanathan - Complainant(s)

Versus

KUN Hyundai ,Kun auto co Pvt.ltd - Opp.Party(s)

R.Dhanasekar

25 Jan 2019

ORDER

 

                                                            Complaint presented on:  17.08.2016

                                                                Order pronounced on:  25.01.2019

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT:  TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL -  PRESIDENT

 

TMT.P.V.JEYANTHI B.A., MEMBER - I

 

FRIDAY  THE 25^th  DAY OF JANUARY 2019

 

C.C.NO.136/2016

 

B.Athmanathan,

S/o.E.Baskaran,

No.6/63, 16^th West Cross Street,

M.K.B.Nagar, Vysarpadi,

Chennai – 600 039.

                                                                                               …..Complainant

 

 ..Vs..

1.M/s.Kun Hyundai,

Kun  Auto Co.Pvt.Ltd.,

Rep. by its Branch Manager,

C-48, 2^nd Avenue, Anna Nagar East,

Chennai – 600 102.

 

2.M/s.Hyundai Motor India Pvt Ltd.,

Rep. by its Managing Director,

Registered Office at

Irungattukottai, NH-4,

Sriperumbudur,

Kancheepuram District.

 

3.M/s. Kun Hyundai,

Kun Auto Co.Pvt.Ltd.,

Rep. by its Manager (Service),

D-5, Ambattur Industrial Estate,

Chennai – 600 058.

.....Opposite Parties

Date of complaint                                 : 09.09.2016

Counsel for Complainant                      : M/s.R.Dhanasekar,

                                                                    M.Jaiganesh,G.Vijayakumar, S.Saraboji,                  

                                                                    V.Karthik

 

Counsel for 1^st  & 3^rd opposite parties     : M/s.S.V.Udayakumar, D.Johnsamuvel,

                                                                    S.Dinesh Babu, V.Palanikumar

 

Counsel for  2^nd Opposite Parties               : M.B.Gopalan Associates,

                                                                    N.Vijayaraghavan, M.B.Raghavan

 

 

O R D E R

 

BY PRESIDENT TMT.K.LAKSHMIKANTHAM, B.Sc., B.L., DTL.,DCL, DL & AL

          This complaint is filed by the complainant u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased  Hyundai Car I 20 Active VTVT1.2S – Earth Brown – colour, through the 1^st opposite party on 09.06.2015 against the valid consideration of Rs.7,22,365/- (ex-show room price),  vide Invoice No. Active 20 – 2015-16-0057, dated 09.06.2015, which is manufactured by the 2^nd opposite party and the Registration No.TN 05 BA 8400.  On 16.02.2016 the above said vehicle’s electronic power steering turned so hard and in the dashboard warning light of air-bag blinking whenever the ignition started. The complainant has taken the vehicle to the 3^rd opposite party, on 18.02.2016 and they had taken up the vehicle for service vide Repair Order No.R201604288, dated 18.02.2016 and replied that  it may be so expensive to rectify the fault in the vehicle advised the complainant to  approach the concerned Insurance Company of the said vehicle even it is under the warranty period. Then the complainant received a threat call from the 3^rd opposite party to take back the said vehicle immediately, otherwise, they will impose parking charges of Rs.350/- per day. Then complainant inclined to prefer a complaint to the customer service on 24.02.2016 through his friend e-mail Id for which the complainant received reply dated 02.03.2016 stating that the query will be sorted out immediately. The complainant had sent a legal notice on 09.03.2016 to all the opposite parties as they are responsible for their  activities and the said notice was received by all the opposite parties and after receipt of the said notice, the opposite parties preferred a preposterous reply dated 22.03.2016.  Due to the behavior of the 3^rd opposite party, complainant had undergone severe mental agony, as a result of this, complainant could not able to concentrate on his business and also suffered a huge loss in his business. Hence, the complainant has no other go than to take back his car or else he would pay the huge amount of parking charges and the vehicle would became more and more damages, hence he paid a sum of Rs.12,022.50/- vide invoice No.B201609178, dated 23.04.2016, as parking charges and taken back the car and the same fault was rectified in another service against the payment of Rs.42,450/- vide bill No.204, dated 25.04.2016, issued by new motors, having office at No.242A, Bakiyam Street, Golden George Nagar, Chennai – 600 107.  The 1^st opposite party doing unfair trade practice by presenting phony promises and the 3^rd opposite party herein had defaulted in service, and the 2^nd opposite party is manufacturing the substandard products, whereby all the opposite parties have failed to provide and proper services towards the consumers and all the opposite parties have solely responsible for the defective service rendered to the complainant and it is to be reimbursed at any cost. And due to the negligent act and the defective service of all the opposite parties herein, the complainant had undergone mental torture and agony and had also suffered financial loss. All the opposite parties jointly and severally failed to render proper service as promised by them at the time of sale of the said vehicle, all the opposite parties are liable to be punished under Consumer Act.

2. WRITTEN VERSION OF THE 1^st & 3^rd OPPOSITE PARTIES IN BRIEF:

The 1^st & 3^rd   opposite parties are authorized dealers of Hyundai Car I 20 Active VTVT1.2S and service outlets . The vehicle ought to have been affected due to flood and hence they had advised the complainant  to take insurance to cover up the expenditure, which had been wrongly interpreted in the complaint as it was due to manufacturing defect. They have not threatened the complainant. It is only the complainant who had opted to thrust the vehicle with the 1^st  & 2^nd opposite parties and with great difficulty, this opposite parties  had to retrieve the parking charges. The complainant had lodged the claim with his insurer M/S Bharathi  Axa General Insurance for flood damage to the vehicle but averred as the damage had occurred on 01.01.2016 and the claim was rejected by the insurer on 15.04.2016 and the complainant suppressed the fact before this forum and had averred as the vehicle suddenly developed fault on 16.02.2016 and the insurance company rejected the claim. The flood damage is not covered under the warranty. There is no deficiency of service nor negligent in service hence the complaint to be dismissed.

3. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

There is no privity of contract between the complainant and this opposite party    being a manufacturer of car was not at all a party to the repair/servicing of the vehicle by the complainant. Unless the complainant establishes any manufacturing defect, that falls within the warranty period of the vehicle, the complainant is not entitled to seek any relief as against this opposite party.  Complaint proceeds on false  as well as self serving allegations of fault. The complainant had suppressed the fact that vehicle had suffered flood damage. He had already made a claim before M/S Bharathi AXA general Insurance co., Ltd., specifically for flood damage to the vehicle. The claim was rejected. The 3^rd opposite party had also recorded in their repair order as it  “Flood affected vehicle”.  Therefore there is no manufacturing defect in the vehicle hence the complaint is not maintainable. The allegations of non-working of electronic power steering turn hard and the dashboard warning light of airbag blinking are misleading. In any event the complainant cannot hold this opposite party  responsible for the exchanges he had with  1^st  & 3^rd opposite parties. Hence the complaint is to be dismissed.

4. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite partties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

5. POINT NO :1 

The case of the complainant is that he is the owner of Hyundai Car I 20 Active VTVT1.2S – Earth Brown – colour, which is purchased through the 1^st opposite party. Within 8 months the electronic power steering turned so hard and in the dashboard warning light of air-bag blinking and the vehicle was taken for service to 1^st & 2^nd opposite parties and the service was refused then he approached the 2^nd  opposite party   with the allegation of fault  and that was also refused and the 1^st & 3^rd opposite parties  have demanded parking charges without carrying on any service.  Hence the complaint.

6. The complainant is the owner of the car Hyundai Car I 20 Active VTVT1.2S  and the invoice is Ex.A1. As per the 2^nd opposite party’s assurances and advertisement, the complainant believed that the product and quality of service is good, he purchased the vehicle of this kind. On 16.02.2016 the electronic power steering of the vehicle had turned so hard and dashboard warning light was blinking when the ignition starts. With these complaints, the complainant approached the  3^rd opposite party  for repair. The repair order is Ex.A2.  Vehicle belonged to the complainant affected by flood was pointed out by the 3^rd opposite party in his reply in Ex.A3, but the same was denied by the complainant. Due to flood affected vehicle the warranty also got denied. The complainant alleges that he was threatened by the 3^rd opposite party that they will levy parking charges, which is a violation of terms and conditions. Legal notice was  issued by the complainant in Ex.A4 it was replied by the  1^st & 3^rd opposite parties  in Ex.A5 and also complainant was earlier informed in Ex.A3 and Ex.4 reply  that on inspection  the vehicle  was found affected by flood  and advised to proceed with work under insurance or chargeable basis due to flood vehicle warranty got denied and also the complainant was advised to proceed forward or else to bear with the parking charges of Rs.350/- per day from the day one of the vehicle received. There is no rejoinder filed by the complainant for further action. There is no proof filed by the complainant as the charges are claimed against the rules and regulations. The complainant either had to agree for the repairs as advised by the 3^rd opposite party   and to bear the cost and get the approval from the insurance company for the repairs. But that has not been done by the complainant. Hence the 3^rd opposite party  had no other course to hold the vehicle and put the complainant on notice of liability to pay parking charges  as such 3^rd opposite party  cannot hold it  free of cost and  deviation of terms and conditions  for the same as pleaded by the complainant is not substantiated.     Therefore  the version of the 1^st & 3^rd opposite parties  as they have informed the complainant and then charged for parking at their place ignoring the opposite parties to proceed  either or the way has to be accepted as such. Hence the complainant‘s claim over the same as shown in Ex.A6 is not considered by this forum.

          7.  On  investigation, 1^st & 3^rd opposite parties  concluded that the vehicle involved in this case is affected with flood and it is not denied anywhere   by the complainant. But concealing the fact, the complainant left the vehicle with the 3^rd opposite party for service. The damages occurred due to flood are not covered under Warranty.  Hence the complainant seeking the warranty coverage for the flood affected vehicle is also not sustainable. Therefore we hold that there is no deficiency on the part of 1^st  & 3^rd opposite parties  and  the complainant is not eligible  to get the refund of service station charges as prayed for.                  

         8.  The 2^nd opposite party is concerned, he is the manufacturer of the vehicle which is purchased by the complainant. The complainant filed the complaint also with the impression that the problem occurred within the period of 8 months of its purchase due to manufacturing defect or usage of sub-standard product, for which he has not filed any reliable evidence and not substantiated the allegation in anyway. Repair order of the complainant’s vehicle and Insurance claim repudiation letter is marked as Ex.B1 and Ex.B2. In the remarks and advise for customer column of Ex.B1 it is incorporated as “Flood affected vehicle and  the customer not approved for doing work & customer taking in his own risk”. It is also proved from Ex.B2 that letter which is addressed by the Bharathi AXA General Insurance co., Ltd.,  to the complainant that the vehicle belonging to the complainant  is affected by flood, and the claim before them was  rejected .

            9. The complainant himself had made a claim with his Insurer M/S. Bharti AXA General Insurance for flood damage to his vehicle. The complainant has suppressed the cause of repair and put forth  a false case before this forum now.  The 2^nd opposite party had not involved in doing service for the complainant’s vehicle. No documentary evidence is filed by the complainant that the problem in the vehicle had arisen due to manufacturing defect or usage of sub-standard products by the manufacturer. As per Ex.B2 the date of loss to the vehicle was on 01.01.2016 but the complainant alleged in the complaint that the vehicle suddenly developed fault on 16.02.2016 and also suppressed the earlier claim before Insurer M/S. Bharti AXA General Insurance. Hence the allegations against the 2^nd opposite party is also baseless and 2^nd opposite party is not liable for any damages and also for deficiency in service.

10. POINT NO:2

          As we have decided in point No;1 as the deficiency on the part of opposite parties 1 to 3  is not proved by the complainant  and there is no negligence or deficiency on the part of opposite parties, the opposite parties are not liable  for repayment of parking charges or service charges as claimed by the complainant. Therefore the complaint is liable to be dismissed.  

          In the result the complaint is dismissed. No costs.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 25^th   day of January 2019.

 

MEMBER – I                                                                PRESIDENT

 

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 09.01.2015                   Invoice No. Activei 20-2015-16-0057, issued by

                                                    the 1^st opposite party

 

Ex.A2 dated 18.02.2016                   Copy of Kun Hyundai Repair Order

Ex.A3 dated 29.02.2016                   Intimation Letter from 3^rd opposite party

Ex.A4 dated 09.03.2016                   Legal Notice by complainant counsel

Ex.A5 dated 22.03.2016                   Reply Notice by 3^rd opposite party counsel

Ex.A6 dated 23.04.2016                   Copy of Parking Charges Bill

Ex.A7 dated 25.04.2016                   Copy of Another Service Centre’s Bill

LIST OF DOCUMENTS FILED BY THE 2^ndOPPOSITE PARTY:

 

Ex.B1 dated 18.02.2016                   Repair order of complainant’s vehicle

 

Ex.B2 dated 15.04.2016                   Insurance claim repudiation letter

 

LIST OF DOCUMENTS FILED BY THE 1^st& 3rd OPPOSITE PARTIES:

 

                                        ……. NIL …..

 

 

                                               

MEMBER – I                                                               PRESIDENT