Orissa

Jajapur

CC/61/2014

Ratikanta Sahoo - Complainant(s)

Versus

Manager Sales Utkal Hyundai - Opp.Party(s)

Himansu Sekhar Jena

19 Aug 2017

ORDER

                IN THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.               

                                              Dated the 19th day of August,2017.

                                                      C.C.Case No.61 of 2014

Ratikanta Sahoo  S/O  Paramananda Sahoo

At.Laliteswar Nagar ,behind Electric structure

 P.O/P.S . jajpur Town ,at present functioning as Manager Finance,

& Accounts  at Jindal Stainless ltd, KNIC Duburi ,Jajpur                              ……....Complainant .                                                                      

                   (Versus)

1.Manager Sales,Utkal Hyundai,utkal Automobiles Ltd, Santara Dala ,Jajpur Road,755019

(Authrised Dealer & service Center of Hyundai Motors Ltd)

2.General Manager,OSL Hyundai (Unit of OSL Motors Pvt.Ltd,)Rajtarangini Complex,

Buxibazar,Cuttack,753001(Authorised Dealer & Service Center of Hyundai Motors ltd)

3. G.M (Service) Utkal Hyundai Automobiles ltd, Plot No.517,N.H.5 ,Pahala,Bhubneswar

752101(Authorized Dealer & Service Center of Hyundai Motors ltd)

4.Branch manager,ICICI,Lumbard,Sri Kailash plaza,1^st floor,shop No.17,18,19,20 ,plot No.

597,597/1017,link Road ,Cuttack .

5.Regional manager (Parts & service )Hyundai motor India Ltd,Infinity bench mark,8^th floor

Plt-GI,Block-EP & GP ,Sec-V,Salt lake,Kolkatta-700091                            ……………..Opp.Parties.                  

For the Complainant:                               Sri H.S.Jena, D.K.Jena, Advocates.

For the Opp.Parties No.1                        Mrs. R.Acharya,Sri J.J.Panda,Advoccates.

For the Opp.Parties :No.2                      Sri H.H.Kar, Sri P.Mishra,Advocates

For the Opp.Parties;No.3                       Sri B.P.Sarangi, Sri S.N.Rana , Advocates.

For the Opp.Parties No.4                       Sri G.C.Panda, B.R.Rout,Advocates.

For the Opp.Parties No.5                       Sri T.K.Harichandan,R.K.Das,D.P.Das,A.K.Barik,

                                                                    Sri B.K.Behera,Advocates.

                                                                                                                 

SHRI JIBAN BALLAV DAS, PRESIDENT .                                               Date of order:   19.08.2017.

Deficiency  as well as unfair trade practice is the grievance of the complainant.

            The fact relevant on the present dispute shortly are that the petitioner purchased a Hyundai Grand i10, variant-Sportz  1.1 DSL BSIV , Chasis No. MALA85IDLEM072808A, EngineNo.D3FAEM081162, Colour-Stardust,  bearing Regd. No. 0D-04-C-5556 from O.P.no.1 on dt.20.02.14 . The vehicle had  also been insured by O.P.4 as advised by O.P.no. 1 on the date of purchase  and also all paper work was done by O.P.no.1  who  handed  over the Insurance policy certificate and warranty paper of the said vehicle on the same day of purchase  of the vehicle.

            That on dt. 04.05.14 at Cuttack when the petitioner along with his  driver who driving the vehicle , was  hit and oil chamber of the vehicle leaked  and  all the oil got drained  out of it  and resulted the engine stopped working when the vehicle was running . Thereafter  immediately the petitioner  informed to the nearest authorized service center of Hyundai Motors Ltd, who has been providing service on behalf of Hyundai Motors ,though O.P.2 ,  picked  up the vehicle from the place of the accident and took  it to their service center for repairing .After repairing  the O.P.no. 2 demanded Rs.2,373/- for repairing charges and as  the repairing cost is much lower amount the O.P.no.2 has not lodged any  claim to  Insurance Co.

            Subsequently  after 8/10 days the engine of the vehicle generated unusual sound for which  the petitioner informed the O.P.no.1 who  suggested to take the vehicle to O.P.no. .3 (who is the authorized service center of Manufacturer) for check up  .Thereafter on dt.18.05.14 the petitioner had taken the vehicle to O.P.no.3 for  check up and  O.P.no.3 after checking the vehicle clarified that  there is some problem inside the engine for which  the engine needs to be opened  for repair  ,so the petitioner asked the O.P,no.3 to inform the Insurance company  as well as  lodged the insurance claim before O.P.4  (ICICI, Lumbard) .Thereafter the O.P.3 lodged the claim but the Insurance company refused to accept the claim on the ground the 1^st accident claim was not lodged by the petitioner  .Thereafter  the petitioner asked the O.P.3 for repair the engine with free of cost  as the O.P.2 being an authorized service center of Hyundai  Motors Ltd  was  of  the opinion  that there was no problem inside the engine and it also covered under warranty period but the O.P.3 refused to do the repairing on free of cost and gave an  estimate of Rs.1,28,000/- to  repair the vehicle by replacing the damaged spare parts  inside the engine .

            Thereafter the petitioner sent  several mails to the Area Service  Manager  Hyundai  Motors India Ltd,  requesting him to do the repair on free of cost  as the warranty period still exist and also the damaged was done due to wrong advise as well as   providing deficient service to the petitioner

owing to inefficient service of  O.P.2  but the authority remained  silent about the inefficiency  of O.P.no. .2 and refused to do the repairing on free of cost. Thereafter, awaiting one and half months the petitioner repaired the vehicle by O.P.No.3  and paid Rs.68,940/- as the repairing charges and brought  the vehicle on  06.07.14 .Besides that the turbo need of the vehicle needs to be change as advised by the O.P.no.3 which would  cost another  Rs.20,000/ approximately .That while the petitioner purchased the vehicle from  O.P.no.1  who assured  warranty cover for  two years having  free servicing  and maintenance from the date of purchase but they did not carry  out the same as a result the petitioner suffered  loss for  the above amount as repairing cost.

That O.P..no.4  the Insurance Co. has refused to accept the claim simply saying that the claim was not lodged 1^st time while the vehicle got repaired .Hence the O.Ps are jointly and severally liable for the occurrence. Accordingly finding no other way the petitioner knocked the door of this Fora with the prayer

1. Replace the vehicle with a new vehicle with same design and  model .
2. Return the repairing charges of Rs.68,940 /- paid to O.P.no.3
3. Return of repairing charges Rs.2,373/ of O.P.no.2
4. Paid Rs.20,000/ as financial loss including in traveling
5. Direct the O.Ps  to pay Rs.75,000/- for mentally  harassed  and litigation cost.

There are five numbers of O.Ps  in the present dispute.  After notices though all the O.Ps   appeared through their learned advocate  and subsequently filed their written version  but O.P.1 though appeared but did not choose to contest the dispute by filing written version  .Hence the O.P.no. 1 has been set exparte   vide order dt.26.10.15.

            The O.P.2 stated in the written version  that 

1That the case is not maintainable on the ground of jurisdiction .This court has no jurisdiction to entertain the dispute hence it should be dismissed .

2.That on  04.05.14  the alleged vehicle entered into our  work shop after  an accident wherein the oil chamber of the vehicle has been damaged and the engine oil drained out. Our  service Manager instructed the petitioner to change the defective parts through Insurance claim because no

warranty has been given an accidental case as per warranty  norms .The petitioner did not       agree to claim the same before Insurance  Co. and advise the  service manager to repair the same . As per the petitioner direction the O.P.2 have repaired the said chamber and filled  up the oil and handed

over the vehicle to the petitioner on dt. 05.05.14 and the customer signed over the repaired bill with remark “  work done as per his satisfaction “.

            Hence the complaint  against O.P.no.2 is illegal and liable to be dismissed against O.P.no.2.

The O.P.3 stated in their written version  that

The complaint  has made a false and frivolous allegation against the answering the O.Ps .  Hence, the complaint liable to be rejected.

That the complaint is liable to be dismissed on the sole ground that the present  complaint is initiated in violation of sec.13 of C.P.Act 1986 .  It is submitted that provision of sec.13 of C.P.Act,1986 is mandatory provision and institution  of the complaint without strict compliance of the same , itself is a ground to dismiss  the complaint with cost .

            That the complaint has alleged defect in car , and hence the technical expert opinion from appropriate laboratory ought to have been obtained prior to filing  of the present complaint in terms of sec.13 of C.P.Act.1986. It is well established principle of law that, since  the complainant alleged defect in goods in the present case which can not to be determined without proper analysis or test of the goods , goods must be examined by the experts .In present case expart opinion from the appropriate laboratory relating to the allegation of the consumer is required  as to whether the allegation of the consumer is correct or not .

            That the complaiant is not entitled to any relief from the Hon’ble Forums . The complainant can not take any advantage of its own wrong by misusing the benevolent provision of  beneficial  legislation . It is further submitted that  the complainant  with  malafide , illegal motive  has filed the present dispute with a view to pressurize the present O.P to submit unjustified  demands of complainant which is  liable to be rejected . It is therefore requested that the Hon’le Forum to apply judicial mind and to pass an appropriate order on behalf of the O.P.no.1 and 3 not to compensate the complainant or  any other vexatious claim of the complainant.

            The O.P.4 stated in the written version  that :

1.The case is not maintainable .

2.The petitioner has no cause of action against the O.P.

3.That it is false to say that the vehicle has been insured by O.P.no.4 as  advised by  O.P.no.1  on the date of purchase. It is false to say that all  the papers arranged by O.P.no.1 were handed over for insurance policy certificate it is false to say that on dt. 04.5.14  when the petioner along with his 

driver  was driving  the vehicle at Cuttack , the vehicle was  hit and  oil chamber was leaked  and the oil drained out of it and engine  stopped working during running .It is false to say that the petitioner  immediately informed the nearest authorized service center of Hyundai Motors Ltd  It is false to say that the (O.P.2) has provided  service and sent a vehicle to pick-up this vehicle from the place of the accident and taken to service center  for repairing .

            That the O.P.no.4 is no way liable  for the engine and defect or mechanical defect of the vehicle of the petitioner . The Insurance policy  does not  cover any mechanical defect arises from the side of the manufacturer. The present O.P is no way liable to pay any  compensation or to meet       any claim of the petitioner in the case. Machinery defect is to be proved  by the petitioner and he has no right to claim against the present O.P. .Moreover since the petitioner  has not intimated  this O.P on dt.04. 05.14  Under the above circumstance the case is liable to be dismissed  against  the OP

            The O.P.5 in their written version  has stated  that  

That present complaint is  frivolous,  misconceived  and has been formulated  on wrong and  misleading facts is devoid of  any merit , whatsoever to deserves  to be dismissed  in limine . It is admitted case of complaint that the vehicle met with an accident on 04.5.14 and oil chamber     damaged due to external hit and oil get drained out and engine stopped working .It is submitted that accidental repair work can not done on chargeable basis  alone either under  insurance  or on cash basis. Alleged dispute of Insurance claim settlement is between complainant and insurance company and the answering O.P being manufacturer of car has no role of the present dispute. It is also submitted that any damage  due to accident is not covered under  warranty . Further  there is no  specific  allegation against the answering O.P  as well as allegations against OSL Hyundai  (O.P.2)

            That as per allegation  received by  O.P.no.2,  it is submitted that the vehicle in question was reported on 04.05.15 at the work shop of O.P.no. 2 by towing and in non working condition .  During inspection of vehicle in the  work shop,  it is  observed that engine oil  was completely drained  out due to damage in oil sump .  Driver of the vehicle was not ready to replace oil sump of the vehicle and insisted for its welding and he got welding done himself at  outside . Driver of the vehicle did not go for replacement of oil pan as per  the advice  O.P.no.2.

            The driving of the  vehicle without engine  oil has  damaged  engine   due to improper lubrication, internal parts of engine  due to external factor or accident or consequential damage due

to negligence  is not covered under warranty .it is submitted that the exceptions  mentioned in the warranty  terms and condition   is clear and specific and lays down that :

 “Warranty will not apply to damage or failure resulting from.

*Negligence of  proper maintenance as required as per the owner’s manual .

*Use of improper or insufficient fuel, fluid or lubricants

*Misuse ,abuse ,accident, theft ,flooding or fire  

*Use of parts other than  Hyundai  genuine parts

*Any and device and / or accessories not supplied  by HMIL

*Modification , modifications ,tampering and improper repair “.

Thus as per answering O.Ps  warranty  terms and conditions  damages or repairs  due to accident ,fire     and improper repair , tampering negligence or improper maintenance of the car ,  use of parts other than Hyundai  genuine parts  is not covered under the warranty policy .

            That the relationship  between the dealer  and HMIL is one of the principal to  principal basis and not as a  principal- to agent. Hence answering O.P could not be liable for acts and  omissions  for dealer as held by National commission  in Maruti Udyog Ltd. Vs.Nagender Prasad Sinha & Another (R.P.No.674/2004  and 676 or 677 of 2004 decided on 04/05.2009 )  and Hon’ble Supreme  court   in India Oil Corporation Vs. Consumer Protection Council, Kerla & another decided on 07.12.1993  .  Accordingly,  it is submitted that the complaint is not entitled to any relief since it is misconceived, frivolous ,wrong and deserves to be dismissed / rejected  with exemplary cost

            On the date of hearing  we heard the arguments from the learned advocate   of the parties. After perusal of the record with documents and  citation we are inclined to   frame the following issues :

1.wheher  the  petitioner is a consumer ?

2.wherther this Fora gets jurisdiction to adjudicate  the dispute  so far as the territorial jurisdiction  is concerned ?.

3. whether there is any deficiency of  service on the part  of the O.P if so the petitioner is entitled  for any relief ?

Answer to issue No.1

Admittedly the petitioner purchased the vehicle from O.P.No.1which was manufactured by O.P.no.5 and insured by O.P.no.4 and the O.P.No.2 and 3 are  the service provider of the      vehicle.  .

Answer to issue No.2

Admittedly the petitioner purchased the vehicle from O.P.No.1 which was situated under the territorial jurisdiction of this Fora and which was manufactured by O.P.no.5 and the O.P.2 and  3 are the service center of O.P.no.5 and the O.P.no.5 carried his business through its dealer / O.P.no.1 under the territorial jurisdiction  of this Fora. Similarly the O.P.no.4  has  insured the  said vehicle.

   As such this Fora gets jurisdiction to adjudicate the present dispute as per section 11(2) a, b of C.P. Act 1986.

Answer to issue No.3

This is a vital issue  which need to  verify whether there is any deficiency of service  on the part of the O.Ps. In the complaint petition the petitioner himself admits  that  on 04.05.14  at the time the  petitioner along with driver was driving the vehicle was  hit and oil chamber of the vehicle leaked  and oil got drained out as well as the engine stopped working while the vehicle was in running condition. Thereafter the petitioner immediately intimated to the nearest  authorized service center of Hyundai  Motors Ltd (O.P.no.2)  who has provided   service on behalf of Hyundai  Motors Ltd . by receiving Rs. 2,373/-

Thereafter on 18.05.14 the petitioner took the vehicle to O.P.no.3 for check up due to unusual sound generated from engine of the vehicle but the O.P.no.3 who is the authorized service center of the manufacture (O.P.no.5) told the petitioner that there is some problem inside the engine andengine needs to be opened and checked . Thereafter the petitioner asked the O.P.no.3 to inform Insurance Company and lodged the insurance claim. Accordingly the O.P.no.3 intimated to O.P.no.2 and 4 (insurer) but O.P.no.4 refused to accept the claim on the ground that the petitioner has not lodged the Insurance claim on dt.04.05.14 of the 1^st repair whichwas done by O.P.no.2.

Accordingly   there is no deficiency  of service on the part of O.P.no.2,3 and 5  because in the accidental case no warranty is covered.  Similarly  the O.P.no. 4  has taken the plea that he was no way liable for the engine defect or mechanical defect  of the vehicle of the petitioner . The insurance policy does not cover mechanical defect . More over the petitioner has not intimated the fact of accident  on 4.5.14 immediately . In view of the above contradictory views  from  the side of

the O.Ps we are inclined to hold that on 4.5.14 when the vehicle got hit the petitioner took  the vehicle to the nearest Authorized service center  of  Hyundai Motors  Ltd (O.P.no.2) .The O.P.no. 2 given paid service to the petitioner  taking Rs.2,373/- as repair charges  . After that on 18.5.14 the petitioner took the vehicle to O. P.no.3  for check up since unusual sound came  from engine of the vehicle .Thereafter the O.P.no.3 charges Rs.68,940/-from the petitioner as repairing cost .The O.P.no.3 and 5  taken the stands  in the written version that  it is a accidental case the warranty does not covered .

Admittedly after the accident on 04.05.14  the vehicle was repaired by O.P.no.2 who is the authorized service  center of Hyundai Motors Ltd.  Thereafter under what circumstances another service center / O.P.no.3 of Hyundai Motors taken the  plea that the defect arises from the same accident. In case  if there is any problem inside the engine it can be observed  on 04.5.14 .Further  the O.P.no. 4 has  taken the plea that the petitioner did not informed the insurer immediately after the accident occures . In view of the above  narrated analysis we are of the opinion  that the O.Ps  not only committed gross deficiency of service but also carrying  unfair trade practice for which the petitioner suffered a loss . Accordingly the blame is to be placed at the door of the OPs.

Hence this order

In the net result the dispute is allowed against the O.P.no.2,3,4 and 5 and dismissed  against O.P.No.1 .The O.P.no. 2,3,4 and 5 are  jointly liable for the above occurrence. The petitioner is directed to lodge the Insurance  claim before O.P.no.4 for the amount Rs.2,373/ (spend repairing charges  on 04.05.14)  .The O.P.no.4 is directed to settle the claim within one month from the date of receipt  of the claim . The O.P.no. 3  is directed to refund the amount of Rs.68,940/- taken for the petitioner on 06.07.14 ( as repairing cost of the vehicle ) along with O.P.no.2,3 and 5 are also directed to pay compensation of Rs.15,000/-(fifteen thousand ) within one month after receipt of this order ,failing which  the above amount will carry 12% interest from the date of filing of the present dispute till its realization .

                        This order is pronounced in the open Forum on this the 19th day of August,2017. under my hand and seal of the Forum.