Haryana

StateCommission

A/441/2018

HYUNDAI MOTOR INDIA LTD. - Complainant(s)

Versus

MANISH SHARMA AND OTHERS - Opp.Party(s)

AMIT GUPTA

17 Feb 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

 

                                                      First Appeal No.441 of 2018

                                                Date of Institution: 11.04.2018

                                                          Date of final hearing: 17.02.2023

Date of pronouncement: 15.03.2023

 

1. Hyundai Motors India Ltd, Having its office at 5^th Floor, Corporate one (Banni Building), Plot No.5, Commercial Centre, Jasola, New Delhi.
2. Hyundai Motor India Limited, DLF tower B, 3^rdFloor,  Chandigarh.

…..Appellants

Versus

1. Manish Sharma S/o Shri Ram Kumar Sharma, R/o village Ninan Tehsil and Distt. Bhiwani.
2. Raghu Hyundai, Rohtak Road, Bhiwani, through its authorized signatory.

…..Respondents

CORAM:    S.P.Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr.Vineet Mittal, Advocate for theappellant.

                   Mr.AmandeepVashisth,Advocate for the respondent No.1.

                   Ms.Preeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for respondent No. 2.

 

First Appeal No.1039 of 2018

Date of institution:11.09.2018

Date of final Hearing: 17.02.2023

Date of pronouncement: 15.03.2023

 

Manish Sharma S/o Shri Ram Kumar Sharma, R/o village Ninan Tehsil and Distt. Bhiwani.

…..Appellant

Versus

1. Raghu Hyundai, Rohtak Road, Bhiwani, through its authorized signatory.
2. Hyundai Motor India Limited, DLF tower B, 3^rdFloor,  Chandigarh.
3. Head Office Senior Manager Hyundai Motors India Ltd, 251614, Floor Corporation Ltd., Banni Building, Plot No.5, Commercial counter, Jasodanhar, Delhi-110025.

…..Respondents

CORAM:    S.P. Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr. Amandeep Vashisth, Advocate for theappellant.

                   Ms.Preeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for the respondent No.1.

                   Mr.Vineet Mittal, AdvcoatePreeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for respondent Nos. 2 and 3.

First Appeal No.1152 of 2018

Date of institution:04.10.2018

Date of final Hearing: 17.02.2023

Date of pronouncement: 15.03.2023

 

Raghu Hyundai, Rohtak Road, Bhiwani, Tehsil and Distt. Bhiwani through its proprietor Dr.IshwarDass Gupta.

…..Appellant

Versus

1. Manish Sharma S/o Shri Ram Kumar Sharma, R/o Village Ninan Tehsil and Distt. Bhiwani.
2. Hyundai Motor India Limited, DLF tower B, 3^rdFloor,  Chandigarh.
3. Head Office Senior Manager Hyundai Motors India Ltd, 251614, Floor Corporation Ltd., Baani Building, Plot No.5, Commercial counter, Jasodanhar, Delhi-110025.

…..Respondents

CORAM:    S.P. Sood, Judicial  Member

                   Suresh Chander Kaushik, Member

                  

Present:-    Mr. Amandeep Vashisth, Advocate for theappellant.

                   Ms.Preeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for the respondent No.1.

                   Mr.Vineet Mittal, AdvcoatePreeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for respondent Nos. 2 and 3.

                                                ORDER

S P SOOD, JUDICIAL MEMBER:

Vide this common order above mentioned three appeals bearing No.441 of 2018,F.A. No.1039 of 2018 and F.A. No.1152 of 2018 will be disposed of as all these appeals have been preferred against the order dated 12.02.2018 passed by the District Consumer Disputes Redressal Forum, Hisar (in short ‘District Commission).

2.      Delay of 18 days  in filing the appeal  bearing No.441 of 2018 is condoned for the reasons stated in the application filed for condonation of delay.

3.      There is a delay of 165 days in filing the appeal bearing No.1039 of 2018.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  165 days wherein,  it is alleged that  during the pendency of the present litigation the son of the appellant expired on 23.10.2015, therefore, the family environment of appellant got disturbed and he himself was under a lot of mental stress and trauma, therefore, he could not approach his counsel within the prescribed time. The delayentailed  in filing the accompanying appeal was neither intentional nor deliberate but due to the reasons mentioned above. Thus, delay of 165 days in filing of the present appeal bearing No.1039 of 2018 be condoned.

4.      There is a delay of 181 days in filing the appeal bearing No.1152 of 2018.  An appellant has filed an application under section 5 of the Limitation Act (in short “Act”)  for condonation of delay of  181 days wherein,  it is alleged that  the certified copy was received on 23.02.2018.  The appellant approached his counsel at Panchkula on 18.09.2018 when he approached his counsel then he came to know that statutory 50% amount of award was also required for filing the appeal. The delay in filing appeal was neither intentional nor deliberate but due to the reasons mentioned above. Thus, delay of 181 days in filing of the present appeal bearing No.1152 of 2018 be condoned.

5.         Arguments Heard. File perused.

6.         Learned counsel for the appellant vehemently argued that as per facts mentioned above, it is clear that delay in filing appeal was not intentional.    Further argued that during the pendency of the present litigation the son of the appellant expired on 23.10.2015, therefore, the family environment of appellant got disturbed and he himself was under a lot of mental stress and trauma, therefore, he could not approach his counsel within the prescribed time. Due to the above said reasons, the appeal could not be filed, so the delay may be condoned. 

7.         This argument is not available.  A period of 30 days has been provided for filing an appeal against the order of the District Commission. The proviso therein permits the State Commission to entertain an appeal after the expiry of the period of 30 days if it is satisfied that there is “Sufficient cause” for not filing the appeal within the prescribed period. The expression of sufficient cause has not been defined in the Act rightly so, because it would vary from facts and circumstances of each case.

8.                         The inordinate delay of 165 days in appeal No.1039 of 2018 and 181 days in appeal No.1152 of 2018 cannot be condoned in the light of the following judgments passed by the Hon’ble Apex Court.

          The Hon’ble Supreme Court in case Bikram Dass Vs. Financial Commissioner and others, AIR, 1977 Supreme Court 1221 has held that;

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around S.5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigant who is not vigilant about his rights must explain every days delay.”

          The Hon’ble National Commission in case Government of U.T. Electricity Department & Others versus Ram Lubhai, II(2006) CPJ 104 has held that:-

“Consumer Protection Act, 1986 – Section 15 –Appeal –Maintainability – Limitation –Condonation of delay– Resjudicata –Appeal filed after a delay of 44 days –Plea of procedural delay in getting approval for filing appeal – Appeal filed by complainant against order of District Forum decided and copy of order dispatched to parties prior to filing of appeal by opposite party –Appeal and application for condonation of delay dismissed –Matter once finally concluded by any Court cannot be reopened by same Court.”

                In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it has   been observed:

         “We hold that in each and every case the Court has to examine whether delay in filing the special appeal leave petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.”

      In Ram Lal and Ors.  Vs.  RewaCoalfields  Ltd., AIR  1962 Supreme Court 361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

         

          Taking into consideration the pleas raised by appellant in the application for condonation of delay and settled principle of law, this Commission does not find it a fit case to condone delay of 165 days in filing of the appeal bearing No.1039 of 2018 and 181 days in filing of the appeal bearing No.1152 of 2018. Hence applications filed for condonation of delay  in appeal No.1039 of 2018  and in appeal No.1152 of 2018 are dismissed.  

9.      The brief facts of the case are that on 03.12.2013, the complainant purchased vehicle from opposite party No.1.He got his car registered in his name vide registration No.HR16N-7001. The vehicle started missing after coverage of 15000 to 16000 Kms.  He requested the opposite party No.1 to rectify the defect, but, OP No.1 told him that some garbage has gone into the diesel tank  and due to this reason the vehicle was  having missing problem.  After the service, the vehicle was still giving the same problem of missing.  He again intimated to the OP No.1 and after checking OP No.1 told that there was problem in the sensor and that has been rectified and returned the vehicle to the complainant.  The vehicle after covering  25000 Kms again started giving same type of problem alongwith noise in the engine  and started giving problem in its gears. On 21.08.2014, he again took the vehicle to OP No.1 and after checking, the OP No.1 rectified the problem and returned the vehicle to him.  Again after covering 33000 Kms the vehicle started giving the same problem and OP No.1 advised him to contact the manufacturing company . All the services of the vehicle were got done from OP No.1. On 25.04.2015, the vehicle in question stopped all together. After this development he contacted the OPs for rectifying the same. The OP No.1 told that vehicle will be delivered to him within 5  to 10 days.   During the test drive, the vehicle stopped midway atBawaniKhera. Due to the aforementioned problems, the vehicle was expected to be having some manufacturing defect. The vehicle again started missing problem and excessive noise in its engine. The vehicle is still  parked at the showroom of OP No.1.  Thus there being deficiency in service on the part of OP No.1, hence the complaint.

10.    In its written version,OP No.1filed separate reply and raised preliminary objections with regard to cause of action, maintainability of complaint, territorial jurisdiction and concealment of material facts.   It was alleged that complainant had purchased Hyundai Verna car in December 2013 and after purchasing this vehicle, complainant brought his car for accidental repairs on 06.12.2013. The repair work was carried  out as per instructions of the complainant. On 05.01.2014, 28.02.2014, 27.05.2014  the services was carried outand there was no complaint  voiced by complainant about the vehicle.  On 15.08.2014, the vehicle was brought to workshop by complainant in accidental condition.  The repair was carried out and insurance company has paid the insurance amount of Rs.38,643/-. The complainant did not raise any complaint with regard to working of the vehicle.   Several times the complainant brought the car for repair and every time the complainant were back satisfied with the service of his vehicle. There was a condition of warranty for two years or after covering  40,000 KM whichever was earlier. The coverage of mileage of 40,000 was prior and special efforts were made by answering OP for customer’s goodwill. The parts like mass air flow senor air filter, oil filter, V.Belt, engine oil, coolant, engine short block, drive belt, timing chain cover, head gasket and oil screen were replaced under warranty. On 29.05.2015, the vehicle was received by the complainant in good condition.  On 30.05.2015 the engine block had developed cracks and car was not in working condition. During checking it was found that complainant had driven it roughly which resulted into cracking in the engine block. The engine block was changed and car was again road worthy.  The complainant was contacted many times to take back delivery of is vehicle, but to no avail. A letter dated 27.07.2015 was also sent to him for taking back his repaired car from workshop of answering OP.  It was also clarified that he was to be burdened with parking charges of RS.350/- per day.  Legal notice dated 09.10.2015 was duly replied. The interim order dated 26.11.2015 was passed for handing over the vehicle  but the complainant did not take the delivery. Thus there being no deficiency in service on the part of the answering OP.

11.    OP No.2 and 3 filed their joint written statement.  It was stoutly denied that vehicle was having manufacturing defect. The accidental repair work can never be termed or equated as manufacturing defect until or unless there is an expert report brought on record pertaining to the vehicle in question. The vehicle was extensively used for 57975 Kms as on  30.04.2016 in about 16 months of its purchase, which could not have been possible, if vehicle had any inherent defect. The repair was carried out under warranty and every time vehicle used to be returned to him in roadworthy condition. In the year 2015, the mass air flow sensor was replaced and vehicle was delivered in perfect condition.   He took the vehicle for test drive and met with accident and vehicle was brought back to workshop again on 30.05.2015 with broken engine block. The complainant was facing  problem due to negligent driving and frequent accidents and not due to any basic defect as alleged by him.  The answering OP being manufacturer of  vehicle has no role in retail sale or service of vehicle and hence it cannot be held liable for any alleged act and  omission  on the part of OP.  The relationship between the dealer and HMIL was one of the principal to principal basis and not as a principal to agent, hence answering OP could not held liable for acts and omissions of dealer.  All the remaining allegations leveled in the complaint were denied and prayed for dismissal of the complaint as prayed for.

12.    After hearing both the parties, the learned District Commission, Hisar has allowed the complaint vide order dated 12.02.2018, which is as under:-

“Keeping in view the report of Works Manager, Haryana Roadways, Hisar it is clearly established that there is manufacturing defect in the engine and the engine is ordered to be replaced with a new one immediately. The complainant has been unnecessarily harassed and exploited by the respondents and he had to abandon the car  with the respondents since 29.05.2015 and thereafter with Hyundai Motors at Hisar. Due to manufacturing defect in the engine, the vehicle has not been perfectly fit to use since beginning and complainant is entitled to compensation of Rs.50,000/-

Resultantly, this complaint is hereby allowed, with a direction to respondents, to replace the Engine of the said vehicle immediately with a  new one and also to pay Rs.50,000/- s compensation to the complainant for his harassment and mental agony and Rs,.5000/- as litigation expenses etc.”

13.    Feeling aggrieved therefrom, O.P Nos. 2 and 3-appellants as well as Manish Sharma-complainant have preferred this appeal.

14.    This arguments have been advanced by Sh.Vineet Mittal, learned counsel for the appellantsin appeal No.441 and  respondent Nos.2 and 3 in appeal No.1039 of 2018 and respondent No.2 and 3 in appeal No.1152 of 2018as well as Sh.AmandeepVashisth, learned counsel for respondent No.1in appeal No.441 of 2018 and 1152 of 2018, appellant in appeal No.1039 of 2018 and Ms.Preeti Singh proxy counsel for Mr.Ramender Chauhan, Advocate for the respondent No.2 in appeal No.441 of 2018 and respondent No.1 in appeal No.1039 of 2018 and appellant in appeal No.1152 of 2018. With their kind assistance entire record of appeal as well as that of the District Commission including whatever evidence has been led on behalf of  all the parties has been properly perused and examined.

15.    It is not disputed that the vehicle used to experience some sort of problems.  It is also not disputed that  at times some parts of the vehicle were also changed by the OP No.1. Perusal of the file shows that vide order dated 20.11.2017, the learned District Commission, Hisar directed the General Manager Haryana roadways Hisar to get the vehicle inspected from the competent person and report whether the vehicle was having any manufacturing defect or not.    The Haryana Roadways Hisar inspected the vehicle  in question on 22.11.2017 as per the order of this forum vehicle in presence of Manish Kumar-complainant, Anupam Saxena, Bhuvnesh Kumar, Hyundai Motors and Manav Sharma Hisar Hyundai and during the road test the vehicle was tested from gear 1-6 during which it was found that the speed of the vehicle was not in accordance with the corresponding gear and there were mechanical defects in the pickup. The vehicle has been tested by him as Works Manager and Hyundai Motors representative Bhuvnesh Kumar time and again where mechanical defect with regard to the pickup was noticed.  In view of the above, it was established that there was manufacturing defect in the engine. The learned District commission has righty allowed the complaint of the complainant.

16.    Resultantly, the contentions raised on behalf of the present appellants stands rejected as rendered no assistance and found to be untenable and the order passed by the learned District Commission does not suffer from any illegality or perversity and is well reasoned and accordingly stands maintained for all intents and purposes.  Hence, appeals bearing No.441 of 2018,F.A. No.1039 of 2018  and F.A. No.1152 of 2018 stands dismissed on merits.

17.    The statutory amount of Rs.25,000/- each deposited at the time of filing the appeal bearing No.441 of 2018  and Appeal bearing No.1152 of 2018 be refunded to the complainant-Manish Sharma-respondent No.1 in appeal No.441 of 2018 and F.A.No.1152 of 2018 and appellant in appeal No.1039 of 2018  against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

18.              Application(s) pending, if any stand disposed of in terms of the aforesaid order.

19.              A copy of this order be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The order be uploaded forthwith on the website of the commission for the perusal of the parties.

20.              File be consigned to record room.

21.              The original judgement be attached with appeal No.441 of 2018 and certified copies be attached with appeal No.1039 of 2018 and F.A. No.1152 of 2018.

 

15^thMarch, 2023       Suresh Chander Kaushik            S. P. Sood                                                                Member                                             Judicial Member    

 

S.K

(Pvt. Secy.)