CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM
Present
Sri. Santhosh Kesavanath P. President
Sri. K.N. Radhakrishnan, Member
CC No. 25/2010
Wednesday, the 26th day of November, 2011.
Petitioner : Johney Joseph,
Pandarakalam
Athirampuzha P.O
Kottayam.
(By Adv. Manish Jose)
Vs.
Opposite parties : 1) Hyundai Motor India Ltd.,
reptd. by its Manager,
Customer Relations South
Regional Office,
N.P 54 Developed Plot,
Ekkadathungal,
Thiruvika Industrial Estate,
Chennai – 600 032.
(By Adv. Vimal Revi)
2) Popular Hyundai
Reptd. by its Manager,
Popular Motor World Pvt. Ltd.
Kodimatha, Kottayam.
(By Adv. Royce Chirayil)
O R D E R
Sri. Santhosh Kesavanath P., President.
Case of petitioner, filed on 5..2..2010, is as follows. Petitioner purchased a Santro Xing Xo Car from second opposite party’s showroom, manufactured by first opposite party. As per the instructions prescribed in the owners manual and service booklet petitioner was doing periodical services strictly. On 8..9..2006 petitioner had done first service after covering 1786 k.m. On 5..1..2007 after covering 1918 k.m petitioner done second service. 3rd service is on 3..7..2007 after covering 2117 k.m. Vehicle had basic warranty of 2 years. During the existence of the warranty opposite party offered an extended warranty for further 2 years on remitting Rs. 5,200/-.
-2-
Even though the service period and milage under extended warranty is clearly mentioned in the service manual petitioner serviced the vehicle on 6..12..2007, 8..9..2008 and on 17..9..2009 respectively. During the inspection on 17..9..2009 the service manager of the second opposite party find that there was steering gear box defect. Petitioner requested the second opposite party to cure the defect under the terms of extended warranty. But second opposite party denied the service. On 20..10..2009 petitioner issued a lawyers notice to both opposite parties but both opposite parties had not so far redressed grievance of the petitioner. So the petitioner prays for a direction to second opposite party to clear the defect free of cost , petitioner claims Rs. 10,000/- as compensation and cost of the proceedings.
1st opposite party entered appearance and filed version contenting that the petition is not maintainable. According to the first opposite party petitioner failed to adhere to the vehicle maintenance and servicing guide line which are necessary for the smooth functioning of the car. The owners manual provides a time interval between two consecutive services to be done within six months or 10,000 kms which ever occur earlier. However, petitioner in total contravention of the same had not get his car serviced at proper intervals. As per the warranty conditions warranty shall not apply to negligence of proper maintenance as required in the owner’s manual and service booklet. So, first opposite party prays for dismissal of the petition with their cost.
Second opposite party filed version contenting that the petition is not maintainable. Fora has no jurisdiction to entertain the petition by virtue the
-3-
terms of contract. Second opposite party admitted the purchase of the car on 8..7..2006 from second opposite party. But petitioner had not done periodical services strictly in accordance with the owners manual. Warranty as well as extended warranty is available for only those customers who perform services of the vehicle in accordance with the owners manual. Opposite party admitted the petitioner’s case of extended warranty for a period of 2 years on 5..1..2007. It is stated in clause 7 (2) of the owners manual that new vehicle warranty may be invalidated if the routine maintenance operations are not performed in line with the recommendations outlined. So, according to the first opposite party there is no deficiency in service and they pray for dismissal of the petition with their costs.
Points for determinations are:
i) Whether there is deficiency in service on the part of the opposite party?
ii) Relief and costs?
Evidence in this case consists of affidavit filed by both parties and Ext. A1 to A8 documents on the side of the petitioner and Ext. B1 document on the side of the opposite party.
Point No. 1
The crux of the case of the petitioner is that opposite party had not cured the defect in the steering gear box as per the extended warranty given by the opposite party. Extended warranty produced is marked as Ext. A2. From Ext. A2 it can be seen that opposite party charged Rs. 5,200/- for extended warranty. In the reverse side of Ext. A2 terms and conditions of extended warranty were given. As per Ext. A2 the terms of the extended
-4-
warranty shall commence from the end of new vehicle warranty and would be in its continuity. Admittedly defect occurred with within the period of extended warranty. Opposite party denied the service on extended warranty. Because the petitioner is negligent in getting the vehicle serviced within the stipulated kilometers and time period as recommended in the owners manual and service book let. As per conditions stated in clause (4) of Ext. A2 warranty shall not be applied if the vehicle is not serviced within norms as recommended in owners manual or service booklet. In our view on a literary interpretation of the said clause we cannot confer any deficiency in service. But admittedly on 17..9..2009 the vehicle had only covered 7,000 km. Further more nothing has placed on record by the opposite party to prove that said defect of gear box complaint is caused due to negligence committed by the petitioner in getting the vehicle serviced as per owners manual. Further more the terms & conditions of service period, under an extended warranty, is not clearly mentioned in Ext. A2 documents. By taking an extended warranty ordinary consumer is under the belief that opposite party will cure the defect whatever caused during the warranty period.
Section 12 (3) of sale of goods Act states that the ‘warranty’ is a stipulation collateral to the main purpose of the contract, breach of which gives rise to a claim for damages but it will not give a right to treat a contract repudiated. In halisburise law of England “warranty” is defined as provision which is subsidiary or collateral to main purpose of contract. From Ext. A8 document it can be seen that petitioner had taken the vehicle in another service centre of first opposite party and as such for the repair of the
-5-
vehicle petitioner had spend an amount of Rs.17896/-. In our view by giving a direction to opposite party to repair the vehicle as promised, as per the warranty, is of no use to the petitioner because he had already repaired the vehicle. In our view act of the opposite party amounts to deficiency in service. Point No. 1 is found accordingly
Point No. 2
In the result petition is allowed. Opposite parties are ordered to refund the amount which is spend by the petitioner for curing the defects to the steering gear box or else opposite parties are ordered to pay an amount of Rs. 17,986/- to the petitioner. Petitioner is also entitled for an amount of Rs. 1,000/- as litigation cost since there is no evidence with regard to loss and sufferings no compensation is ordered. Order shall be complied with within one month of receipt of a copy of this order. If the order is not complied as directed petitioner is entitled for 9% interest for the award amount from the date of filing of petition till realization.
Dictated by me, transcribed by the Confidential Assistant, corrected by me and
pronounced in the Open Forum on this the 26th day of November , 2011.
Sri. Santhosh Kesavanath P., President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-
APPENDIX
Documents for the petitioner
Ext. A1: Brochure with regard to extended warranty
Ext. A2: Extended warranty registration form
Ext. A3: Bill Dtd: 17..9..2009
Ext. A4: Copy of vehicle report sheet.
Ext. A5: Copy of notice issued by the petitioner to the second opposite party.
Ext. A6: Postal receipt
Ext. A7: Post AD card
Ext. A8: Bills Dtd: 23..7..2010 MGF Motors.
Document for the Opposite party
Ext. B1: Copy of relevant page of Hyundai warranty policy.
By Order,
Senior Superintendent.
