Orissa

Cuttak

CC/38/2014

Kalyani Mohanty - Complainant(s)

Versus

Managing Director,Utkal Hundai - Opp.Party(s)

A K Samal

01 Aug 2015

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK

                                                               …..

Present

1.  Sri Bijaya Kumar Das                                                .... President

2. Sri B.K.Padhiary                                                          ….Member

                                         C.C.Case No. 38/2014

 

Kalyani Mohanty,

W/O:Susil Kumar Mohanty,

Res. At:Sikaripur(Paga Sahi),

PO/PS:Jagatpur,

Dist:Cuttack.                                                    …… Complainant  

                      

                                        -Vrs-

 

1.   Managing Director,

 Utkal Hyundai, Utkal Automobiles Ltd.,

Plot No.517,N.H-5,Pahal,

Bhubaneswar,Dist:Khurda.

 

2. Proprietor,

M/s. Saikrupa Motors (Hyundai Authorised Centre),

N.H-5, Khandagiri Suare,Bhubaneswar.

 

3. Regional Manager,   

Hyundai Motor India Ltd., (HMIL),

East Regional Office-1,

Benchmark Tower, 8th Floor,

Plot No.G1, Block-EP & GP,

Sec.-V,Salt Lake City,Kol;kata,

West Bengal.

 

4. Hyundai Motor India Ltd.(HMIL)

Regd. Office: Irrugattukottai,H.H-5,

Sriperumbudur Taluk,Kanchipuram District,

Tamilnadu,India.

 

5. Hyundai Motor India Ltd.,(HMIL),

No.54, Thiru-Vi-Ka Industrial Estate,

Skkatuthangal,SIDCO Industrial Estate,Guindy,

Chennai,Tamilnadu,India.                                       ….      Opp.Parties.  

  

         Counsel for the Parties:-

 

        For the Complainant                           …….  Sri A.K.Samal & Associates.

. 

                                                                             

        For the O.P No.1.                          Sri Jagjit Panda, Advocate.

 

       For O.Ps 3 & 4                               Sri T.K.Harichandan & Associates.

 

                   DATE OF FILING COMPLAINT :  03.03.14

       DATE  OF  A R G U M E N T       :  24.7.15

                   D A T E  OF   JUDGEMENT         :  01.08.15

 

 

 

 

 

                                                                                                    Contd..P/2

                                                                                                                                                                                                

                                               :       2       :

 

 

SRI BIJAY KUMAR DAS,PRESIDENT:-

                          Deficiency in service and unfair trade practice in respect of non-rectification of defects on the complainant’s car are the allegation arrayed against the Opp.Parties

2.                  Complaint, in brief reveals that complainant purchased a Hyundai  car from OP No.1,authorized dealer manufactured by OP-Company being financed by HDFC Bank by paying an amount of Rs.3,91,931/-. The Registration of the said car is O-05-AN-0046 on 24.10.2010. As per the terms and conditions of the Warranty provided by the OP-Company which is valid for 24 months from the date of delivery to the first purchaser. After purchase of the said vehicle it was running smoothly and on dt.24.11.2011 when the complainant was going to Jamshedpur(Jharkhand) the vehicle was stopped at Soro due to starting problem. This fact was intimated to one Mr. Rashmi ranjan Sethi, staff of OP No.1 on mobile phone bearing Number 943917883 who advised the complainant to bring the vehicle in the service centre of OP No.1 for full check up. Accordingly on dt.11.02.2013 complainant handed over the vehicle to OP No.1 for its full check up and paid Rs.281.00. Such starting problem of the vehicle continued with the vehicle while the complainant was travelling to different places on different dates. OP No.1 suggested the complainant to replace the ECM KEY BARBEL which will cost around Rs.33,000/-. As the defect was detected during existence of warranty period complainant refused to repair the vehicle on the demanded amount. Complainant brought the defects to the notice of OP No.2, the authorized service station, one Dilip Ku.Mohanty of authorized service station assured, checked the vehicle,  replace the battery and other accessories.  According to Mr. Mohanty the ECM KEY BAREL was OK,complainant for the charge of battery paid Rs.14,300/- to OP No.2. After charge of battery the vehicle was having some starting problem when contacted to OP No.2 on dt.25.09.13  he told the complainant’s husband that a second hand ECM KEY BAREL will be replaced on payment of Rs.22,000/-,but no guarantee can be given on such replacement. Being aggrieved complainant lodged a complaint on Company’s Toll Free No.1800-11645 with a ID Number as 52261084. On its non-rectifications of the defect complainant’s husband contacted Mr. Soumya Dey,Regional Head of Eastern Circle who advised him to bring the vehicle for its thorough check up at OSL,Hyundai,Cuttack. But OP No.2 did not co-operate the complainant as a result complainant lodged another complaint before Company’s Toll Free No. with I.D.No.1-570322378 and advised the complainant to wait for some days. Due to such defects in the said vehicle the complainant and her family members have suffered a lot while returning from Puri to Cuttack. Inspite of information of the problems of the vehicle while returning from Puri neither OP No.1 nor OP No.2 provide any assistance to the complainant. The vehicle was brought to the residence of the complainant by touring in a Tata AC who charged Rs.1300/-. When the matter was informed to the Eastern Regional Head of the Company, he remained callous. It is the repeated version in the complaint petition that though the car was having a starting problem for many a times, but in majority occasion after lapse of some hours the vehicle starts in usual manner.  It is further submitted that the vehicle has ran only 08913 kms within a span of 3 years and above narrated acts of the Opp.Parties are deficiency in service. Complainant, finding no other alternatives prays this Forum that a direction may be given to the Opp.Parties to repair the vehicle by the expert engineers of the company upto the satisfactions of the complainant, free of cost, since the defects started within warranty period. It is further prayed that a direction may be given to pay Rs.50,000/- by the Opp.Parties as compensation for mental agony alongwith cost of litigation.

                                                                                                                                                                                                                                                                               

3.            Being noticed  Opp.Party No.1, the authorized dealer appeared through their Ld. Counsel and filed written version denying the allegations of the complainant further raised the question of maintainability on the grounds of territorial jurisdiction and non-joinder of parties. Submitting the facts it is stated  that the OP No.1 is the authorized dealer of Hyndai Motors India Ltd. And admits that complainant has purchased a Car from OP No.1 on dt.24.11.2010 financed b y HDFC Bank having a warranty of 24 months. It is also submitted that complainant has availed all free services on dt.14.03.2011,dt.03.05.2011,dt.28.12.2011 and a free monsoon check up camp on dt.12.07.2012 but never made any allegations of starting problem. On dt.11.02.13 complainant brought her car for check up but did not made any complaint. It is further submitted that this Opp.Party has not committed any deficiency in service as no specific allegation has been made and the copies of the Job cards are enclosed stating that complainant has received the service is being fully satisfied. Hence, the complaint is liable to be dismissed.

                  Mr. Dilip Kumar Mohanty, Proprietor, M/s. Saikrupa Motors (O.P No.2), authorized service centre of Hyndaia on receipt of the ‘Notice’ appeared through his Ld. Counsel and filed written statement into the dispute. In the written statement OP No.2 raised the question of maintainability of the complaint on the grounds of territorial jurisdiction and non-joinder of necessary parties also denied the allegations raised by the complainant against him. Submitting the facts in para wise reply it is stated that the vehicle of the complainant was purchased on dt.24.11.2010 having a warranty of 24 months and complainant suppressing the previous problem of the vehicle requested for repairing of occasional starting problem on dt.07.08.2013. After check up the battery of the vehicle was damaged due to less use of the vehicle and non-maintenance of the same, further the warranty of battery was over.  OP No.2, after replacement of the battery also check the ECM wiring Kit to solve the starting problem and after test ride of the said vehicle there was no starting problem. Complainant has not lodged any complaint before OP No.2 regarding problem of the vehicle. It is further averred that no complaint has been received till dt.31.12.2013 and admitted the helplessness regarding problems faced by the complainant while returning from Puri. As the OP No.2 has not committed any deficiency in service the allegations on complaint against OP No.2 may be rejected.

                  OP No.3,4 and 5 the manufacturing company appears into the case through their Ld. Counsel filed written version challenging the maintainability of the dispute on the grounds of limitation Section-24(A) and Section-13(1)(c) of C.P.Act,1986 and on grounds of territorial jurisdiction by citing decisions of the Hon’ble Supreme Court and the Hon’ble National Commission. The Ops in their reply state that in all Hyundai Verna i10 cars warranty is valid for 24 months from the date of delivery. In the instant case warranty has expired on dtd. 29.11.2012 as the vehicle was delivered on dt.30.11.2010 to complainant and the allegations of the complainant cannot be entertained beyond the warranty period. This Ops operates with all its dealers on a principal to principal basis and being the manufacturing company except warranty provisions the after sales and service of the car on the part of the Dealer cannot be fastened upon the Ops, hence Ops could be liable for acts and omissions of dealer, as held by  the Hon’ble National Commission in Maruti Udyog Ltd.-Vrs-Nagender Prasad Sinha and another (Revision petition No.674/2004 and 676 or 677 of 2004 decided on dt.04.05.2009). It is further submitted by this Ops that as per the information of OP No.1 as the warranty period of the vehicle of the complainant was ceased and problems were marked with ECM and SMATRA complainant was advised to do the repair works on payment on the workshop of OP No.1, which was refused by the complainant. It is averred that these Ops are no way connected to the dealings between complainant and OP No.1 & 2 as no amount was paid to these Ops for repair works. Further these Ops submitted that complainant to avail the benefits under the warranty provisions has foisted a false proceeding against these Ops. As this Ops have not committed any deficiency in service rather provided prompt and effective service to the complainant in the lime time, the complaint may be dismissed with exemplary cost.

                                                                                                            

4.           Heard the arguments advanced by Ld. Counsels for the parties. It is an admitted fact that complainant purchased one Hyundai car from OP No.1 Utkal Motors being financed by HDFC Bank. It is further admitted that said car was manufactured by Hyundai Motors India Ltd.(OP No.3 to 5) and same was registered as OR-05-AN-0046. Equally it is admitted that said car was having a warranty period of 24 months from the date of its delivery.   Before discussing the factual matrix of the case, first we have to take up the question of maintainability as raised by all the Opp.Parties separately. All the Ops raised question of maintainability on the ground of territorial jurisdiction as all the office and branch office of O.Ps are outside the local jurisdiction of this  Forum, hence there is no cause of action arose within the local limits of the Forum, so this Forum has no jurisdiction to entertain the complaint. On the other hand Para-1 of the complaint reveals that some repair works were done in the residence of the complainant at Jagatpur,Cuttack, accordingly  part of the cause of action arose within the local limits of the Forum. The repairing works elaborately discussed in the para-9 of the complaint petition by stating the names of officials of OP No.2 and the staffs involved with the said repairing works. In the counter filed by OP No.2 which does not whispered a single sentence countering the repair works done at the residence of the complainant. Hence, we can safely arrive into a conclusion that some parts of the repair works are carried out at the residence of the complainant. Accordingly, the part of ‘cause of action’ is well within the local jurisdiction of this Forum.

                   Further, OP No.3 to 5( the manufacturing company) raised the point of limitation as per Section-24-A of the C.P.Act,1986.It is the plea of the OP No.3 to 5 are that as the vehicle was sold on dt.30.11.2010 and the complaint is filed on March,2014, which is barred by Section-24-A of C.P.Act in support of their stand Ops cited the decision in case of Ishwarlal Amamai-Vrs- Hero Puch and Another ( III (2011) CPJ 132 NC) and another case of State Bank of India-Vrs- B.S. Agricultural Industries ( II (2009) CPJ 29(SC). In the C.P.Act,1986 last paragraph of the Sect.24-A of the Act “provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum as the case may be, records its reasons for condoning such delay”. Considering the citations and provisions of Sect.24-A of the C.P.Act the present complaint is already entertained by this Forum and as per the statutory provisions of Forum can retrieved its own order.

             As per the aforesaid discussions on point of maintainability, the complaint is maintainable and admissible as per the provisions of the C.P.Act.

                    Complainant in her own admissions states that the first defects of starting problem in the said vehicle occur on dt.24.11.2011 when the complainant was going to Jamshedpur  and the  complaint was lodged to one Rashmi Ranjan Sethi, staff of OP No.1 over telephone. Further, complainant lodged the second complaint of same problems of the vehicle on the November,2012 again this was informed to Mr. Rashmi Ranjan Sethi over telephone who advised the complainant to bring her the vehicle to the workshop of the OP No.1, after general check up OP No.1 advised the complainant’s husband that ECM KEY BAREL SMART of the got defective and it needs replacement, which will cost around Rs.33,000/-.

                                O.P No.1 regarding receiving telephonic complaint on the above dates and defect on ECM KEY BAREL remains silent in their written statement. But countering the allegations of starting problem OP No.1 states that complainant has availed all the free servicing of the vehicle on different dates and after service received the vehicle with her full satisfaction. OP No.1 & 2 are in their written statement do not assigned any valid reason of starting problems as alleged by the complainant. It is the manufacturing company(OP No.3 to 5) in their written statement states that as informed by OP No.1,such starting problem occur due to problem in ECM & SMARTA, some defects could be rectified on payment basis as the warranty period has been expired. It is also observed that further a number of complaints and repair works are carried out  in the said vehicle after expiry of warranty period.  The terms and conditions of the warranty issued by manufacturing company expired.  The date of purchase/delivery of the vehicle as disputed.  Complainant does not clearly reveal that when she received the vehicle from O.P No.1.  It is version of the O.P No.1 that the said vehicle of the complainant got registered on 24.12.2010.  But O.P No.1 & 2 submits that as per the invoice, the vehicle was delivered to complainant on 24.11.2010.  On the other side O.P No.3, manufacturing company states that the vehicle was delivered to the complainant on 30.11.2010 and as per the terms and conditions of the company, the warranty expires on 29.11.2010.  On perusal of [photocopy of invoice issued by O.P No.1, it is seen that the vehicle has been delivered on 24.11.2010.  Further

    Now it is to be decide here by this Forum that whether complainant has entitled to any relief in respect of her vehicle, and if so, which Ops will be liable to rectify the defects? The first complaint was lodged before staff of the OP No.1 over telephone on dt.24.11.2011. Such complaint is neither admitted nor denied by OP No.1. So, it appears that the starting problem of the vehicle was intimated to the OP No.1, authorized dealer during existence of warranty.

                         Considering the factual aspect of the case and Annexures filed in the dispute, we cannot arrive into a definite conclusion that the vehicle was having any manufacturing defect. But, as the complainant has lodged complaint during the warranty period and subsequently run to service centre of OP No.2 many a times for rectification of starting problem, accordingly on the suggestion of the OP No.2 check  the ECM wiring Kits and change the battery etc., hence the complainant deserves sympathy and her complaint regarding starting problem should be eradicated, when vehicle has just run about 8000 kms within a span of  2 years. It is a common phenomenon that whenever a consumer goes for a brand new goods like the vehicle her minimum expectation is that she would not encounter or face any inconvenience or hardship for a few years for removing the defects or the other, she suffers immensely in terms of loss of times, loss of business, physical discomfort and emotional sufferings having not reaped the fruits of paying heavy amount for purchasing a new vehicle.

                          OP No.3 to 5 categorically in their written statement states that the relationship between the manufacturer and dealer is principal-to-principal basis, by stating that Ops manufacturing company is trying to shift the responsibility to the shoulder of the authorized dealer OP No.2. But it is the settled principle of law that authorized dealer can not only liable to rectify the defects excluding the manufacturer. Equally it is clear that without the assistance or support of manufacturer, authorized dealer alone cannot solve the defects occurred in the vehicle. In this regard the Hon’ble National Commission in Jagrut Nagrik and another-Vrs-East Africa Toyota, mobiles Ltd. Reported in 2008 CTJ 1202(NC) opined that “ Though the allegations of manufacturing defect of Toyota Quallis Motor vehicle and failure to repair were not established. The State Commission directed the Respondents to replace the body shell of the vehicle and rear wind screens fre of charge, on appeal by complainant the National Commission award compensation Rs.1.00 lac for inconvenience and harassment caused to the complainant.

                   In the previous discussions it is clear that the alleged manufacturing defects are not presented beyond all reasonable doubts by any expert opinion and as per terms and conditions of the warranty but the defects are very much present in the subject vehicle. That apart complainant on her petition prays for rectification of the defect claiming Rs.50,000/- for compensation and mental agony, we think as we have discussed earlier in detail, the rectification of the defects of the vehicle of complainant will fulfill the purpose.  As C.P.Act is a beneficial legislation, we think it proper to direct OP No.1, authorized dealer and OP No.3 to 5 the manufacturing company to rectify the defects in subject vehicle without charging any cost to the complainant. As per our aforesaid observations, we freed O.P No.2 and the complainant has approached O.P No.2, M/s. Saikrupa Motors,the authorized service station to rectify the defects after the expiry of warranty period and nowhere there is any contract exists between the complainant and O.P No.2 to rectify the defects.

                                                          O R D ER

Having observations reflected above, the O.P No.1 will rectify the defects of the complainant’s vehicle up to her satisfaction. It is also directed to O.P No.2 & 5, the manufacturing company will extend their support to O.P No.1, the authorized dealer for such rectification of defects.  The order is to be carried out within 30 days of production of the case vehicle by the complainant before O.P No.1, authorized dealer.  Delay on any manner regarding compliance of the order will carry Rs.50/- per day.

            Complaint is allowed on merit.  No order as to costs.

 

                Pronounced in the open Court, this the 1^st day of August,2015.

 

   I, agree.

 

   MEMBER                                                                                   PRESIDENT.