In September, 2010 complainant purchased a four wheeler vehicle being i10 (Sportz Model GLS) (hereinafter referred to as said car) bearing registration no.WB24K 8655.
According to the complainant within two and half years of the purchase of said car around April, 2013 the different parts of the body of the said car started rusting and body of that said car was damaged. Complainant made several complaints to the OP regarding such rust and damage of the said car though e mail to the office of the manufacturing company of the said car.
Complainant alleges that the doors of the said car were repaired at JJ Motors Hyundai Service Centre and said car was also painted while the tail gate was replaced without any cost by the complainant.
Further case of the complainant is that the rust of said car appeared more severely around after two years thereafter in October, 2016 causing big holes were found in the body of that said car. Again complainant made complaints and the said car was inspected at Saini Hyundai, Hyundai service centre. And the service station of OP gave an estimation to the complainant of Rs. 90,000/-only.
Complainant also alleges that since purchase complainant is suffering in all means to use the said car and complainant was not ready to bear the said amount of cost of Rs. 90,000/-only for repairing. Complainant categorically alleges that because of such severe rusting leading to holes all over the body of the said car is probably due to poor quality of iron or some other reason caused at the time of manufacturing. That OP informed complainant about their inability to wave the repairing cost of Rs.90, 000/- only as raised by Saini Hyundai Service Centre on 05.11.2016 as the said car was out of warranty period. That complainant tried his best to resolve the dispute with the OP, but all in vain.
Subsequently complainant filed a complaint before the Consumer Affairs Department of Government of West Bengal on 30.11.2016 when OP became absent there from the tripartite meeting held on 17.01.2017 and complainant was given liberty to prefer complaint case.
Accordingly complainant initiated this case under compelling circumstances praying for following reliefs:-
- That OP be directed to refund the cost of said car.
- That OP be directed to pay a sum of Rs. 4, 00,000/- only as compensation towards the loss suffered by him (complainant).
- OP be directed to pay litigation cost of Rs. 40,000/- only to the complainant.
OP has contested the case by filing written version denying all material allegations raised by the complainant and contended inter alia that every allegation of the complainant is frivolous and false and the present case is not maintainable.
That complainant did not purchase the said car directly from OP and the complainant purchased the said car from Concord Automotive Pvt. Ltd, dealer of OP. Therefore, the entire transaction qua of the said car in question was between the complainant and the concerned dealer and thus, the allegations of the complaint is vague and is based on misconstrued facts. That OP is a manufacturer of Hyundai cars and therefore, its liability is limited to the extent of the performance of the car and extends to its warranty obligations only. That OP operates with all its dealers on a principal to principal basis and errors/omissions if any, at the time of retailing of the car is the sole responsibility of the concerned dealer.
That cars are purchased by the concerned dealers from OP i.e. Hyundai Motors India Pvt. Ltd. and against payments and thereafter the purchased cars are sold to the customers under sale invoice that the title of the ‘Hyundai Vehicle’ passes on the concerned dealer the moment it is put on a common carrier.
OP also states that OP is not the principal and its dealers are not the Agents of OP and OP has no control over the retail sale aspects of his dealers. It is categorically stated by the OP that the allegation of manufacturing defect of the said car raised by the complainant and for replacement of the said car is liable to be rejected. It is categorically stated by OP also that complaint is liable to be dismissed on the ground also that there is a duty cast upon the owner of the car to use properly, maintain and care of the said car.
OP also states that prima facie the present case relates the vague allegations of the complainant for rusting of the car due to a manufacturing defect and complainant raised the issues after almost eight years of the purchase of the said car only to extort money from OP. It is also stated by the OP that no liability can be fastened on the OP in the present case since its liability only extent to its warranty obligation alone and it is clear that said car is out of warranty as the said car was purchased on 17.09.2010 by the complainant. It is also stated by the OP that alleged damages in the body of the car is not even covered under warranty.
Finally OP has prayed for dismissal of the complaint with costs.
POINTS FOR DECISION
- Whether the complainant is the consumer to the OP?
- Whether this Commission (formally Forum) has territorial/pecuniary jurisdiction to entertain and try this case?
- Whether there is any deficiency in service or there is any unfair trade practice on the part of OP?
- Is the complainant entitled to get reliefs as prayed for?
DECISION WITH REASONS
All the points are taken up for convenience and brevity of discussion conjointly.
On close scrutiny of the materials on record it reveals that complainant is the consumer u/s 2(d) (II) of the C.P. Act, 1986 as amended up to date of the C.P. Act, 1986 to the OP.
Complainant appears to be the resident of Alambazar, under P.S.-Baranagar, Kolkata and the Regional Office of OP is at Infinity Benchmark, 8th floor, plot-G1, Block-EP & GP, Sector V, Salt Lake, Kolkata. Considering the nature of the case and prayers of the complainant it clearly indicates that the subject matter of dispute is nothing but a consumer dispute and it straightway gives the clear signal that the pecuniary value of the case is within 20 lakhs i.e. within the limit of this Commission (formally Forum) so, this Commission (formally Forum) has territorial and pecuniary jurisdiction to entertain and try this case.
In support of his case complainant has filed evidence, reply to the questionnaire of OP, questionnaire to the evidence of OP and BNA.
On the other hand OP filed evidence on affidavit, questionnaire against the evidence of complainant, reply to the questionnaire of the complainant and BNA.
On a close scanning of the evidence on affidavit by the complainant it appears that the contents of the affidavit are more or less a replica of the contents of petition of complaint.
Complainant in support of his allegations filed photocopies of documents. Complainant also highlighted that his car was sold under the brand of OP through its dealer namely Concord Hyndai, Concorn Automotives Pvt. Ltd, NH-6 Munshidanga, Jubli Math Post-Munshidanga, via Bakra, Howrah and the said dealer has closed down its business and the said dealer is no more a dealer of OP. Therefore, complainant is sole complainant against the OP being the manufacturer of said car and complainant further added that OP is not only manufacturer of the said car but also doing business of selling of cars being manufacturer under its brand ‘Hyundai’. Complainant also states that within two and half years from the purchase in and around April, 2013 rusting is started in different parts of the body of the said car and complainant got his car repaired on the point of rust starting in different parts of the body of the said car from JJ Motors, being the authorized Hyundai Service Centre located at Nilganj Road, Kolkata, but problem of rusting was not at all solved, instead rusting was moving upon the body of the car gravely. Accordingly complainant mailed on 18.03.2013 to the Regional Manager of OP namely Mr. Dev Kiran Bej. Said Regional Manager also mailed to complainant that on research and development team of OP introspecting the rust afforded cars but according to complainant the rust appearing in the body of car started to spread more severely and by October, 2016 big holes occurred across the whole body of said car, then complainant went to the Service Station of the OP to assess the severity of damage caused by such rusting and the Service Station provided an estimation of Rs. 90,000/-only for repairing of the same. Complainant specifically highlighted that since purchase of the said car he is suffering severe pain and financial loss in connection with the repairing charges relating to that car and accordingly he by series of mails sending to the OP explaining his serious condition and the extreme difficulties he is facing relating to the said car but, complainant has failed to get any resolution from the OP, accordingly complainant approached the Consumers Affairs Department in November 30, 2016 but OP repeatedly became absent there and finally on 17.01.2017 Consumers Affairs Department disposed of the mediation proceeding. Resulting which complainant became bound to take shelter of this Commission (formally Forum) for redressal of his grievances.
On the other hand OP in its evidence has expressed clearly that complaint is frivolous, misconceived and the complaint be dismissed against the OP on the ground that no cause of action has arisen against OP. OP specifically also highlighted that as per information from the dealer of said vehicle in question reported on 14.05.2013 that the said car was repaired without any cost borne by the complainant only because the said vehicle was under warranty at that point of time.
OP specifically highlighted that so-called rusting on different parts of the body of the car, which is certainly not on account of any manufacturing defect but may have occurred on account of paints crash, damage and other reasons, which may be attributable to a number of external factors. Rust is an oxidized metal that is broken down or corroded because of a material reaction, which can occur in the presence of iron, oxygen and water. Also OP stressed upon that the new cars are galvanized or coated with steel to prevent rusting. OP also mentioned that over time that coating wears out and rusting starts to occur on the exterior body of the car. The rusting may be caused due to atmospheric conditions such as road salts, dust control, chemicals, ocean air and industrial pollution in high corrosion areas. It is specifically stated by the OP that warranty policy does not apply to damages caused by accident, poor maintenance, abuse, problem arising out of action of external factors like rain, atmosphere etc. OP further highlighted that the car in question has not any manufacturing defect whatsoever. It is specifically stated by OP that it is evident that said car is performing well and being used consistently as the said vehicle had run over 1,02,878 kms till 18.10.2017 and therefore, there is no manufacturing defect in the said car. OP has further stated that the transaction in respect of the said car was between the authorized dealer of OP i.e. Saini Hyundai and the complainant. Furthermore, in view of the principal to principal relationship shared by the OP and the dealer, any misrepresentation or omission on the part of dealer is not the liability of OP and OP is not liable for the acts of dealer, and as such there can be no claim maintainable against OP. It is specifically mentioned by OP that unnecessarily complainant impleaded OP as a party with the sole intention to cause wrongful gains to the complainant and to cause wrongful loss to the OP. It is also mentioned by the OP that the transactions were held between the complainant and the dealer and OP had no interference or involvement and OP is complete stranger to any dealings whatsoever. Therefore, OP is not liable to pay any compensation to the complainant and liability if any, of the dealer cannot be fastened on the OP.
Ld Counsel appearing for the complainant in course of his argument has highlighted following decisions:-
- (2000) 10 Supreme Court Cases
- Appeal (Civil) 3734 of 2000 of the Hon’ble Supreme Court and date of judgment being 29.03.2006 (Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr)
- Special Leave Petition (C) Nos.21178-21180 of 2009 of the Hon’ble Supreme Court being judgment dated 24.11.1010
- A judgment dated 05.05.1997 of Hon’ble Supreme Court between Tata Engineering & Locomotive Ltd. & Anr. Vs. Gajanan Y. Mandrekar
- One decision dated 18.12.2015 of the State Consumer Dispute Redressal, Chandigarh relating to First Appeal no. 199 of 2015
Two unreported decisions of State Consumer Dispute Redressal Commission, Delhi, and one State Consumer Dispute Redressal Commission, Chandigarh.
On the other hand, Ld. Counsel appearing for the OP has highlighted following decisions:-
- 2010 SCC Online NCDRC
- 1994 (1) OLR (SC) 210
- 2009 SCC Online NCDRC 65 2009 NCDRC 64 (2009) 2 CPJ 295 (NC) (2009) 2 CPR 391 (NC)
- One decision of NCDRC relating to Revision Petition no. 132 of 1999 decided on 03.10.2006 reported in Manupatra
That apart on behalf of the OP one decision of Hon’ble Supreme Court in Civil Appeal no. 574 of 2021 arising out of SLP (C) No.10220 of 2020 being decided on 18.02.2021 has been placed.
An one unreported decision of NCDRC judgment dated 17.02.2011 in RP no. 2030 of 2007
And one reported decision of NCDRC relating to Revision Petition no.132 of 199 decided on 03.10.2006 reported in Manupatra.
Ld. Advocate appearing for the complainant argued that said car was repaired/painted free of cost by the dealer of OP in the year June, 2013 but, the rust and corrosion started appearing more severely again within about 2 years and 6 months thereafter i.e. early 2016 resulting in big holes in the body and internal part of the said car and thus, the ordel of the complainant started from writing series of mail, phone call, visiting office of OP and its dealer, but OP completely ignored to hear the plight of the complainant. According to him the complainant purchase the said car on 17.09.2010 and soon within about 2 years and 6 months rusting started appearing all across the body of the car and complainant immediately complained about the rust and corrosion to the OP as evident from series of mail, more particularly dated 18.03.2013 and 14.05.2013. He also highlighted that as per Motor Vehicles Act, 1988 average life of a car in India is expected to 15 years and after such period registration of car is required to be done for every 5 years. Ld. Counsel submitted that the manufacturer being the OP has used defected and unsustainable iron sheets to manufacture the said car and identical incidents are seen across the country as it evident from the judgment of Hon’ble Courts (Judgment relied upon First Appeal No 199 of 2015 (Harjinder Singh Vs The Managing Director, Hyundai Motor India Limited-Chandigarh)
Per contra Ld. Counsel appearing for the OP submitted pointedly that since relationship between the dealer and the consumer i.e. principal-to-principal basis and not as a principal to agent, therefore, there is no previty contract between complainant and OP.
He also submitted that unless manufacture’s knowledge is proved, a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer and in the facts of this case are based on principal to principal basis. He also submitted that the said car in question has been purchased in September, 2010 and the complaint is filed in November, 2017. In no stretch of imagination, a car with inherit manufacturing defect of alleged nature could have run for more than 8 years.
Considering the pros and cons of the materials on record and touching upon the submissions advanced by the Ld. Counsel appearing for the rival parties and also keeping in view the reported decisions and unreported decisions on behalf of the rival parties mentioned hereinabove it may be noted that the allegations made by the complainant that the car is rust affected is without merit. Obviously to the mind of this Commission rusting and damage caused thereto as has been alleged by the complainant is certainly not on account of any manufacturing defect but may have occurred on account of paint scratch, damage or other reasons, which may be attributable to a number of external factors. No doubt rust is an oxidized metal that is broken down or corrodated because of a material reaction, which can occur in the presence of iron, oxygen and water. We find force and spirit in the argument of Ld. Counsel appearing for the OP that if the said car was having the manufacturing defect, it could not have been used for more than eight (approx) years and ran more than 1,02,878 kms.
It is apparent for the materials on record that OP is the manufacturer of Hyundai cars and as per complainant he purchased the said car from concerned dealer. So, keeping in view the limits of authority, the relationship between OP and the concerned dealer is on the basis of principal to principal and as such the OP (Hyundai Motors India Ltd.) would not be liable for the acts of the dealer. Further there was no privity of contract between the Hyundai Motors India Ltd. and the customer (complainant) who had booked the said car with the concerned dealer. It is settled that in case of relationship between manufacturer and its distributor on principal-to-principal basis the manufacturer was not liable for acts and its distributors. Further it is to be noted that once delivery of said car is given to the concerned dealer after realizing the price from the said dealer, the relationship between the manufacturer and the dealer was not of principal and agent, but of vendor and purchaser. Accordingly to the mind of this Commission OP cannot be made liable to either bear the cost of repairing of said car or to pay any compensation to the complainant. Obviously this Commission is of the view that the concerned dealer from whom complainant purchased the said car alone liable if any, to the complainant. Therefore, the allegations appear in complaint made by the complainant against OP is not maintainable.
In the present case in our hand it appears that complainant did not make concerned dealer / authorized dealer one of the parties to this case but, said dealer is obviously necessary party to this case.
It can further be said that the said car had been made over to the concerned dealer by the manufacturer (OP) for a considerable period ahead and thereafter in and around September, 2010 complainant purchased the said car and as per complainant within two and half years of such purchase different parts of the body of the said car started rusting and the body of that car was damaged. Therefore, it is difficult to expect that OP, a manufacturer, to be aware of the physical condition of the car about two and half years after its delivery to the complainant by concerned dealer and long before of said delivery of the said car OP delivered the said car to the concerned dealer. During that period, a number of eventualities could have occurred; the dealer may have allowed people to use the car for the distance it is alleged to have covered. Also, the use of the car and prolonged idleness without proper upkeep could have resulted in the under carriage being corrugated. All these are real possibilities. This Commission is also of the view that unless the manufacture’s knowledge is proved a decision fastening liability upon the manufacturer would be untenable, given that its relationship with the dealer, in the facts of this case, were on to principal- to- principal basis. This Commission is conscious that the said car, by now would have deteriorated; in these circumstances it is open for the complainant to have alternative relief (of repairing cost/refund with interest guaranteed to him by the concerned dealer).
In view of the above discussion and considering the facts and circumstances of the case and going through the aforesaid decisions cited by the rival parties this Commission is of the view that in no circumstances any liability can be imposed upon the OP and the scenario of the fact as alleged by the complainant, clearly goes to show that if he has any relief at all, that is lying against the concerned dealer and not against the present OP.
Accordingly the instant case is liable to be dismissed.
Hence, it is,
Ordered
That the instant case being no.RBT/CC/39/2022 is dismissed on contest without cost.
Copy of this order be supplied to the parties free of cost.
Dictated and Corrected by
[HON'BLE MR. Shri Sankar Kumar Ghosh]
PRESIDENT
