Kerala

StateCommission

A/15/660

hilton hyundai - Complainant(s)

Versus

laila beevi - Opp.Party(s)

26 Sep 2019

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACADU THIRUVANANTHAPURAM

 

APPEAL NUMBERS 660/15 & 851/15

COMMON JUDGMENT DATED : 26.09.2019

 

 

(Appeals filed against the order in CC.No.406/2010

 of the Consumer Disputes Redressal Forum, Thiruvananthapuram)

 

PRESENT

HON’BLE JUSTICE SRI.K.SURENRA MOHAN  : PRESIDENT

SRI.T.S.P.MOOSATH                        : JUDICIAL MEMBER

SRI.RANJIT.R                           : MEMBER

APPEAL NUMBER 660/15

APPELLANT

    M/s.Hilton Hyundai, PTP Nagar, Thiruvananthapuram

Kerala – 695038

 

                                (By Adv.Sri.K.G.Mohandas Pai)

VS

RESPONDENTS

1. Laila Beevi, D/o.Mariam Beevi, “Fathima”, Vallakkadavu, Muttathara Village, Thiruvananthapuram – 695008

 

2. M/s.Hyundai Motor India Ltd, Plot No.H-1, SIP COT Industrial Park, Irrungattukottai, Kancheepuram District

Tamil Nadu

(R1 by Adv.Sri.A.J.Muhammed Sali)

(R2 by Adv.Sri.C.S.Rajmohan)

 

 

 

APPEAL NUMBER 851/15

APPELLANT

M/s.Hyundai Motor India Ltd, Plot No.H-1, SIP COT Industrial Park, Irrungattukottai, Kancheepuram District

Tamil Nadu

                                (By Adv.Sri.C.S.Rajmohan)

 

VS

RESPONDENTS

1. Laila Beevi, D/o.Mariam Beevi, “Fathima”, Vallakkadavu, Muttathara Village, Thiruvananthapuram – 695008

 

2. M/s.Hilton Hyundai, PTP Nagar, Thiruvananthapuram

Kerala – 695038

 

                                                                               (R1 by Adv.Sri.Muhammed Sali)

                                        (R2 by Adv.Sri.K.G.Mohandas Pai)

COMMON JUDGMENT

SRI.T.S.P.MOOSATH       : JUDICIAL MEMBER

                Both these appeals are filed by the opposite parties in CC.No.406/2010 of the Consumer Disputes Redressal Forum, Thiruvananthapuram, in short, the district forum, by which they were directed to refund Rs 3,22,379/- with Rs 20,000/- as compensation and Rs 5000/- as cost to the complainant.

 

                2.     The averments contained in the complaint are in brief as follows. The complainant purchased a brand new car, Hyundai i10 with engine No.G4HG8M493719 V.I.N. MALAN 51 BR 8 M 115265 F from the show room of M/s.Hilton Hyundai at Eacnchakkal, Thiruvananthapuram on 19.06.2008 for an amount of Rs 3,97,379/- including Rs 2,500/- for extended warranty. It was registered as KL-01-AT-2112 and was used by the complainant, her daughter and son-in-law Dr.Mohammed Harshad.H. The vehicle was carefully and properly maintained by the complainant. While so it was found that one of the cylinders was not working and the engine was in disorder. On 21.03.2009 the engine broke down in the middle of a journey at 12’0 clock in the midnight at a deserted stretch of Highway causing much difficulty. So the vehicle was taken by the company service wing to their official workshop of Hyundai at PTP Nagar, Thiruvananthapuram for maintenance, and the engine fuel injector system was completely replaced by them. The said complaint was brought to the notice of the complainant within a period of 9 months from the date of purchase. Complainant was compelled to pay for repair even though it was within the warranty period. Again on 27.03.2009 the engine ceased due to overheat at Vazhyaila and the complainant was compelled to arrange a taxi for continuing her journey. This time it took two months for rectification and when they returned the vehicle its silencer was seen in a damaged condition by causing punctures on it. Left side of the body was dented and the painting was lost. This was brought to the notice of the opposite parties, but they ignored the fact. The same complaint repeated and on 19.10.2009 the vehicle ceased suddenly in the middle of a journey. The recurring incidents of engine overheating and collapse of the vehicle made clear that it was due to manufacturing defects and that it was not possible to repair the vehicle into good condition. When the first opposite party took the vehicle for rectification, they attended the vehicle negligently. The service was not at all satisfactory. The complainant returned the vehicle to the first opposite party on 10.09.2010 and requested them to replace a new car instead of the defective one. But they remained heedless to the request and failed and neglected to replace the existing car with a new one. The vehicle is now with the first opposite party. Due to the manufacturing defects of the car and deficiency in service of the first opposite party, complainant and her family was put to mental agony, much financial loss, wastage of time and untold hardship. So as per the complaint opposite parties are liable to compensate the complainant and to replace the defective car with a new one and with such prayers she approached the district forum.

             3.The first opposite party filed version contending as follows. They denied the allegations of the complainant. Complainant was using the car from 19.06.2008, the date of purchase, after doing free services without any complaint till 11.03.2009. On 11.03.2009 the car was brought to the first opposite party service centre to check the door lock and the injector. It was observed that the injector was in disorder and therefore it was replaced under warranty and car was delivered in perfect condition. The other allegations made by the complainant in the complaint are baseless. There was no occasion for any complaint of non satisfactory service by the complainant. The vehicle does not have any manufacturing defect as alleged by the complainant. The car was brought for paid services even after that till recently and after services, delivery was effected without any room for complaint. The advocate notice sent by the complainant was duly replied incorporating all facts and figures and refuting the allegations made by the complainant. The allegations were baseless and it was informed to the parties concerned about the inability to accept the demand. So the complaint is filed on an experimental basis and is only to be dismissed. The second opposite party filed version contending as follows. They admit the purchase of the new Hyundai i10 car bearing No.V.I.N MALAN51 BR8MI 15265 from the first opposite party. On 19.06.2008 the car was in a perfect running condition without any technical or mechanical defects as alleged in the complaint. The complainant drove the car in a rash and negligent manner which resulted in an accident and it was reported for accidental repairs at the workshop of the first opposite party and the alleged problem of engine over heating in the car started only after the said accident. The problem of engine over heating was reported three times by the complainant on 19.10.2009, 29.03.2010 and 10.09.2010. On 29.03.2010 cylinder head gasket of the car was replaced under warranty free of cost and on 10.09.2010 along with gasket cylinder head, head assembly cylinder was also replaced under warranty free of cost and the complainant was requested to take delivery of the car. Whenever the complainant produced the car for repair it was attended and prompt and efficient service was always provided. On the complaint of engine overheating, the first opposite party replaced cylinder head gasket and head assembly cylinder under warranty, free of cost. As such the defect of the vehicle is cured and allegations in the complaint are baseless the complaint is to be dismissed.     

 

             4.        On the side of the complainant PW1 was examined and Exts.P1 to P18 were marked. DW1 was examined on the side of the opposite parties. The commissioner who filed report was examined as CW1 and the report filed by him was marked as Ext.C1.Considering the evidence adduced by the parties and hearing both sides the district forum has passed the impugned order. Aggrieved by the order passed by the district forum the first opposite party has preferred. Appeal No.660/15 and the second opposite party has preferred the Appeal No.851/15.

 

             5.        Since both these appeals arise from the same order and the grounds the mattes to be considered in both appeals are more or less same, both the appeals were heard and considered together. Heard both sides. Perused the records.

 

             6.        There is no dispute to the fact that on 19.06.2008 the complainant purchased a new Hyundai i10 car from the first opposite party, manufactured by the second opposite party. Ext.P1 shows that the complainant had paid Rs 3,97, 379/- including Rs 2500/- for extended warranty to the first opposite party. The allegation of the complainant is that on 21.03.2009 the engine of the car broke down in the middle of the journey in the midnight. It was taken to the official workshop of Hyundai, Thiruvananthapuram for maintenance and engine fuel injector system was completely replaced by them. Again on 27.03.2009 while the complainant was travelling in the car the engine of the car suddenly ceased to function due to overheating at Vazhayila. Again the vehicle was taken to the first opposite party and they had returned the vehicle stating that the defects were rectified. When the car was returned it was noticed that the silencer and left side of the body was dented and painting was lost in that portion. Even though those facts were brought to the notice of the opposite party they ignored it. It is alleged by the complainant that the same complaint repeated by the vehicle on 19.10.2009 and the vehicle ceased suddenly in the middle of the journey. The recurring incidents of engine overheating and collapse of the vehicle shows that it was due to the manufacturing defects and it is not possible to restore it to good condition by repair. So the complainant returned the vehicle to the first opposite party on 10.09.2010 and requested to replace it with a new car. But they did not accept the request of the complainant. It is claimed by the complainant that she is entitled to get compensation from the opposite parties. It is contended by the opposite parties that there was no manufacturing defect to the vehicle and whenever the complainant brought the vehicle to the first opposite party for repair they have attended and conducted the repairs and prompt and efficient service was always provided. The entire defects of the car were rectified and the vehicle is in perfect condition. On the complaint of engine over heating the first opposite party replaced the cylinder, head gasket and head assembly cylinder under warranty, free of cost. As such the defects of the vehicle were cured. But the complainant refused to take back the vehicle and his claim was to replace the car with a new car, which cannot be allowed.

 

             7.        Exts.P3 to P11 documents show that several replacements and repairs were done to the vehicle during the warranty period. The commissioner appointed from the court inspected the vehicle and filed a detailed report which was marked as Ext.C1. The commissioner was examined as CW1. The counsels for the appellants submitted that on a perusal of Ext.C1 report and the deposition of CW1 it can be seen that the vehicle was in perfect order and satisfied all parameters required in such circumstances of a car of that age and history of use but the district forum found that there was manufacturing defect to the car, even though the district forum accepted Ext.C1 report. The counsel for the appellants submitted that even if there are some defects to the car and if those can be repaired or parts replaced it cannot be considered that the vehicle has got manufacturing defect. It is true that in Ext.C1 report it is reported by the commissioner that scan test, pollution test, driving test, mileage test indicates that at that time the engine was having no problem after replacement of the cylinder head assembly. But he has noted that the failure of cylinder head was premature. It is reported by the commissioner that the silencer was having problems and it was replaced with a new one. In the report at several points Commissioner pointed out that the defects occurred are premature and it cannot be attributed to the way of driving / use of the vehicle. It is reported by the commissioner that the major complaint of the car was engine overheating and it was related to cylinder head. The cylinder head was faced twice and subsequently the cylinder head assembly was replaced. The steering column assembly and the engine fuel injector were also replaced. It is reported by the commissioner that to ascertain the proper functioning of the engine, compression test was carried out and it revealed that compression readings in all cylinders were about 16 bar pressure. The recommended value for the engine by the company is 15.5 bar. Hence it was found that the there was no escape of gas from the engine. It is admitted by the opposite parties that cylinder head gasket and head assembly cylinder were replaced. It is admitted by the opposite parties that the problem of engine over heating was reported three times by the complainant on 19.10.2009, 29.03.2010 and 10.09.2010. On 29.03.2010 cylinder head gasket of the car was replaced and on 10.09.2010 along with gasket the cylinder head assembly head cylinder was also replaced. It is to be noted the complainant purchased the vehicle on 19.06.2008. The commissioner pointed out that the defects occurred were premature and it cannot be attributed to the way of driving / use of the vehicle. It is contended by the second opposite party that the car met with an accident and the alleged problem of engine over heating started only after the accident. It is true that PW1 admitted that the car was involved in an accident, another vehicle hit on the car. But he stated that it was only on minor accident and the problem of overheating of the engine developed to the car has nothing to do with the accident. The opposite parties have not adduced any evidence regarding the alleged accident, whether it was a major accident, whether any serious damage was caused to the car due to the impact of the accident etc. PW1 has specifically stated that the defects caused to the car has nothing to do with the accident and it was only a minor accident. In these circumstances, in the absence of any other evidence on the part of the opposite parties it cannot be considered that the overheating of the engine of the car of the complainant was the result of the impact of the alleged accident caused to the car. Considering the nature of the defects caused to the car and the parts of the car replaced, and the fact that those defects occurred within a short period of the purchase of the car by the complainant and in the absence of any evidence to show that those defects to the car occurred due to the impact of the accident in which the car was involved, it can be safely concluded that the vehicle has got manufacturing defects. Considering all these facts the district forum found that there was manufacturing defect to the car. Considering the evidence, facts and circumstances of the case we consider that there is no ground / reason to interfere with the finding of the district forum.

 

             8. The district forum did not allow the prayer of the complainant to replace the car with a new one taking into consideration of the fact that the complainant used the car up to 19.10.2010, about two years. As found by the district forum the only option available was to order refund of the purchase price after deducting depreciation. Considering the fact that the complainant had used the car for two years the district forum has deducted Rs 75,000/- from the purchase value of the vehicle and found that the complainant is entitled to get Rs 3,22,379/- compensation of            Rs 20,000/- and cost of Rs 5000/-. It was also held that after paying the amount the opposite parties can retain the vehicle. Considering the evidence, facts and circumstances of the case it can be seen that the order passed by the district forum is legal and it is just and reasonable and there is no ground / reason to interfere with the order of the district forum or to alter / reduce the amount ordered by the district forum.

 

             9. The district forum directed the opposite parties to refund the amount of Rs 3,22,379/- with compensation and cost to the complainants. The second opposite party company, the manufacturer of the vehicle, is liable to pay the amount. So the appeal filed by the second opposite party , Appeal No.851/2015 is without merits and is liable to be dismissed.

 

             10. The counsel for the appellant in Appeal No.660/2015 submitted that the first opposite party is only a dealer of second opposite party and if it is found that there is manufacturing defect to the vehicle, the responsibility for removal of such defect shall be with all the manufacturer alone and the first opposite party is not liable to pay compensation to the complainant, as directed by the district forum. He relied on the decision of the National Commission in ‘ Hind Motors India Limited and Another Vs Jodh Singh and Others’ (2016 (3) CPR 35 ) wherein the responsibility of the dealer in the case of the manufacturing defect to the car was discussed. It was held that with respect to the defects that amounts to manufacturing defect of the vehicle the responsibility for removal of such defects should be with the manufacturer only. No deficiency in service proved on the part of the petitioner in any manner. Orders passed by the Consumer Fora below modified to the extent that the responsibility for replacement of the engine of the vehicle shall lie upon the manufacturer. In the present case we have already confirmed the finding of the district forum that there was manufacturing defect to the vehicle. It is stated by the appellant in Appeal No.660/2015 that whenever the complainant produced the car for repair it was attended and effective service was provided and there was no deficiency in service on the part of the first opposite party / appellant and so they cannot be held liable. Even though the complainant alleged that the when the vehicle was taken to the first opposite party for repair they attended the vehicle negligently and service was not satisfactory and there was deficiency in service on the part of the first opposite party, the complainant failed to prove with sufficient evidence that there was deficiency in service on the part of the first opposite party. Considering all these facts we consider that the order passed by the forum as against the first opposite party/ appellant in Appeal no.660/15 is not sustainable and is liable to be set aside. We do so. So the Appeal No.660/15 is to be allowed.

 

             In the result, the Appeal No.660/15 is allowed. The order passed by the district forum as against the appellant / first opposite party is set aside.

 

             Appeal No.851/15 is dismissed and the order passed by the district forum against the appellant / second opposite party is confirmed. On payment of the amount to the complainant, the appellant / second opposite party can take the vehicle kept with the first opposite party.

 

             Parties are directed to suffer their respective costs.

 

             Refund the amount of Rs 25,000/- deposited by the appellant in Appeal no.660/15 to them, on filing proper application.

 

             In Appeal No.851/15 the first respondent / complainant is permitted to obtain release of the amount of Rs 25,000/- deposited by the appellant at the time of filing of the appeal, to be adjusted towards the amount ordered as above, on filing proper application.     

 

 

        JUSTICE K.SURENRAMOHAN : PRESIDENT

 

 

T.S.P.MOOSATH      : JUDICIAL MEMBER

 

 

RANJIT.R                         : MEMBER

 

 

 

 

 

 

Be/

 

 

 

 

 

 

KERALA STATE

CONSUMER DISPUTES

REDRESSAL COMMISSION

SISUVIHARLANE

VAZHUTHACADU

THIRUVANANTHAPURAM

 

APPEAL NUMBERS

660/15 & 851/15

COMMON JUDGMENT

 DATED :26.09.2019