Punjab

StateCommission

FA/12/850

Hyundai Motor India Ltd. - Complainant(s)

Versus

Manpreet Singh Deol - Opp.Party(s)

Gaurav Bhaidwaj

09 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No.   686 of 2012

                                                           

                                    Date of institution: 29.5.2012  

                             Date of Decision:    9.2.2015

 

1. M/s Godawari Motors Private Limited, having its Registered Office at Delhi and one of its operations at Ferozepur Road, Aayali Chowk, Ludhiana through Shri Rajiv Bedi, its Incharge Administration.
2. M/s Godawari Motors Private Limited, Opposite Focal Point, Ferozepur Road, Moga, through Shri Rajiv Bedi, its Incharge Administration.

…..Appellants/OP Nos. 1 & 3

                                      Versus

1. Manpreet Singh Deol son of Shri Bhupinder Singh, Resident of Village Ghinni Wala, P.O. Canal Colony, Tehsil & Distt. Ferozepur.

….Respondent No.1/Complainant

2. M/s Hyundai Motors India Limited, through its Managing Director, having its Regional Office at A-30, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi – 110 044.
3. M/s Dashmesh Hyundai, Dashmesh Autos, Moga Road, Ferozepur.

…..Respondent Nos.2&3/OP Nos.2&3

 

First Appeal against the order dated 9.4.2012  passed by the District Consumer Disputes Redressal Forum, Ferozepur.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants            :         Sh. Parminder Singh, Advocate

          For respondent No.1        :         Sh. G.S. Sidhu, Advocate

          For respondent No.2        :         Sh. Gaurav Bhardwaj, Advocate

          For respondent No.3        :         Ex.-parte.

 

2^nd Appeal

 

First Appeal No.   850 of 2012

                                                           

                                    Date of institution: 22.6.2012  

 

1. Hyundai Motor India Limited, through its Authorised Signatory North Regional Office A-30, Mohan Co-operative Industrial Area, Mathura Road, New Delhi – 110 044.

…..Appellant/OP No. 2

                                      Versus

1. Manpreet Singh Deol son of Shri Bhupinder Singh, Resident of Village Ghinni Wala, P.O. Canal Colony, Tehsil & Distt. Ferozepur.

….Respondent No.1/Complainant

2. Godawari Motors Private Limited, Aayali Chowk, Out of Octroi Post, Ferozepur Road, Ludhiana-141021 Punjab.
3. Godawari Motors Private Limited, Opposite Focal Point, Ferozepur Road, Moga-142001
4. Dashmesh Hyundai, Dashmesh Autos, Moga Road, Ferozepur-152001

…..Respondent Nos.2-4/OP Nos.1, 3&4

 

First Appeal against the order dated 9.4.2012  passed by the District Consumer Disputes Redressal Forum, Ferozepur.

 

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellant             :         Sh. Gaurav Bhardwaj, Advocate

          For respondent No.1        :         Sh. G.S. Sidhu, Advocate

          For respondent Nos.2&3  :         Sh. Parminder Singh, Advocate

          For respondent No.4        :         Ex.-parte.

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

                   This order will dispose of both the above mentioned appeals as both the appeals are arising out of the impugned order dated 9.4.2012 passed in Consumer Complaint No. 248 dated 5.5.2011 by the District Consumer Disputes Redressal Forum, Ferozepur(in short the “District Forum”) vide which the complaint filed by the complainant was allowed with a direction to OP Nos. 1 to 3 to replace the defective engine of the car in question to the satisfaction of the complainant with a new engine with fresh guarantee alongwith endorsement on the invoice to enable the complainant to get the new engine number changed in the registration certificate.

2.                The complaint was filed by the complainant on the allegations that he purchased a Hyundai Verna SX CRDi car from OP No. 1 on 25.7.2008 bearing engine No. 04FA8U533876, Chassis No. MALLN41VR8M049028, Registration No. PB-15D/0084. He got the service of the said  car  from  the authorised Service Station of OP No. 1. However, after sometime of its purchase, the said car started giving problems and its pick-up problem had reduced. The complainant informed OP No. 1 and complained about the problem at the time of first service on 19.8.2008 at the mileage of 1758 Kms. The Service Engineer of the OP checked the vehicle and stated that there was no problem in the car. However, the problem remained the same. Then he again informed the OP on 6.2.2009. At that time the Service Engineer checked the car and said that the car is consuming mobil oil and level of the mobil oil has lowered down. Therefore, the mechanic of OP No. 1 carried out the second free service of the car and changed the mobil oil of the car and assured the complainant that the defect has been removed and the car will not give any type of problem in future. OP No. 1 also mentioned the problem in the job card but the car was not giving satisfactory performance. Again the matter was brought to the notice of OP No. 1 but to no effect and they were also not in a position to give any satisfactory reply. Then he took his car to the Moga Service Station on 1.8.2009, it was thoroughly checked. However, the fact of consuming more mobil oil was again noticed by the Service Engineer. Thereafter, the complainant had been approached the opposite parties and making the complaints regarding the poor performance of the car and lastly the service got done from Op No. 4 at Ferozepur on 30.10.2010 and the defects were brought to the notice of Op No. 4. The mechanic of Op No. 4 checked the car and informed that the engine of the car was down/became defective and needs overhauling and also pointed out that there was manufacturing defect in the car due to which it was consuming more mobil oil. Since the complaints of the complainant had not been redressed by the Ops, which amounts to deficiency in services, hence, the complaint with a direction to the Ops to overhaul the engine of the car “free of cost” and also pay Rs. 50,000/- as compensation and Rs. 11,000/- as litigation costs.

3.                Op Nos. 1 & 3 filed joint written reply taking preliminary objections that the Forum had got no jurisdiction as no cause of action had arisen within the jurisdiction of this Forum; the complaint was not legally tenable as the complainant had been violating the terms and conditions of the warranty provided by the manufacturer of the product; the complainant did not adhere to the schedule of maintenance provided by the manufacturer/OP No. 3 in Owner’s manual and had been negligent of proper maintenance, therefore, Ops cannot be blamed for any kind of defect which can occur in the vehicle. As per the schedule provided by OP No. 2, the complainant was required to avail the free service between 1200 to 1500 KMs. but he availed the first free service after covering 1758 Kms.. Second free service was got conducted on 6.2.2008 after covering 11830 Kms. whereas the service was required in between 9000 to 10000 Kms or within a period of 6 months. He also failed to get the vehicle serviced of 3^rd free service at the mileage of 19000 to 20000 Kms., however, it was availed after covering the mileage of 20234 Kms. on 1.8.2009. After 3^rd service, every service was to be taken after covering every 10000 Kms., therefore, there was no deficiency in services on the part of the Ops. On merits also, it was again reiterated that the complainant was defaulter in adhering to the schedule of service given under the Owner’s Manual. There was no manufacturing defect in the vehicle. Complaint was without merit and it be dismissed.

4.                OP No. 2 in its written reply had taken the preliminary objections that the complaint was false, baseless and frivolous, liable to be dismissed under Section 26 of the Act. The purchased car was given to the complainant in perfect running condition as any other new car. The car was reported for first accidental repair on 23.12.2008. Then the said car reported for accidental repair on 18.2.2009, 1.6.2009 and 18.2.2011. The complainant illegally and with malafide intention had concealed this material fact and after running 49033 Kms. the complainant had filed this complaint for replacement of the engine; the complaint was sheer abuse of the process of law. On merits also, it was again reiterated that schedule of service was not followed by the complainant and that there was no manufacturing defect in the vehicle as alleged in the complaint.

5.                The parties were allowed by the learned District Forum to lead their evidence.

6.                In support of his allegations, the complainant had tendered into evidence his affidavits Exs. C-1 & C-5, copy of RC Ex. C-2, repair invoice Exs. C-3 & 4, report of Kuldeep Motor Garage Ex. C-6. On the other hand, OP No. 2 had tendered into evidence affidavit of Manish Kumar, Dy. Manager Ex. R-1, satisfaction note Ex. R-2, schedule of maintenance Ex. R-3, repair estimate Ex. R-4. Op Nos. 1 & 3 filed affidavit of Rajiv Bedi Ex. R-5, repair orders Exs. R-6 to 10 and OP No. 4 had tendered into evidence affidavit of Raman Sadana Ex. R-11.

7.                After going through the allegations in the complaint, written statement filed by the OP, evidence and documents brought on the record, the complaint of the complainant was allowed as stated above.

8.                OP Nos. 1 & 3 and OP No. 2 have filed their appeals against the impugned order.

9.                We have heard the learned counsel for the parties and have gone through the written arguments submitted by the counsel for respondent No.1-complainant.

FIRST APPEAL NO. 686 OF 2012

10.              In the grounds of appeal, it has been contended that the learned District Forum has adopted a slip shot method in disposal of the complaint although the Forum had referred the matter to the expert opinion from the Instructor of relevant Trade of Govt. ITI, Ferozepur but no such opinion was taken nor the said Instructor was forced by the Forum to give the report although one Kuldeep Singh, Mechanic of Kuldeep Motor Garage has given the report but he is not a qualified motor mechanic. Moreover, the learned District Forum failed to note that the complainant did not adhere to the schedule of maintenance provided by OP No. 2 manufacturer. The learned District Forum has also failed to discuss the jurisdiction aspect inspite of the objection taken by OP Nos. 1 & 3 in their written statement, therefore, the order so passed by the learned District Forum is liable to be set-aside and the complaint be dismissed.

11.              Firstly taking the point of jurisdiction, a preliminary objection was taken by OP Nos. 1 & 3 in their written reply that the District Forum, Ferozepur did not have the jurisdiction to entertain the complaint. Whereas the counsel for the complainant has referred to para No. 5 of the complaint that lastly the services of the car was got done from OP No. 4 at Ferozepur on 31.10.2010 and the cash invoice is Ex. C-3, therefore, partly cause of action had accrued at Ferozepur and OP No. 2 had their branch office at Ferozepur. The jurisdiction of the District Forum to entertain the complaint has been provided under Section 11(2) of the Act, which reads as under:-

“(2)    A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction, —

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
3. the cause of action, wholly or in part, arises.” 

Therefore, in case one of the opposite party has the Branch Office at Ferozepur and service was provided by that Branch Office to the complainant; in that way, the complaint can be entertained with District Forum, Ferozepur, therefore, we do not agree with the plea taken by the counsel for the appellants that the District Forum, Ferozepur did not have the jurisdiction to entertain the complaint.

12.              With regard to the manufacturing defect, no doubt that the District Forum had passed an order directing the Instructor of the relevant Trade of Government ITI, Ferozepur to check the vehicle and to report about the defect in the Car but they did not inspect the car inspite of repeated visits of the complainant and ultimately, it was decided to dispose of the complaint on the basis of the material available on the record, therefore, certainly, the expert opinion is not there. The contention of the counsel for the appellants is that the car was using mobil oil and engine oil consumption was high. The job card is dated 6.2.2009 Ex. R-10 but there are no comments from the Service Dealer whether actually there was high engine oil consumption. Otherwise in the other free services, no such remarks with regard to the high oil consumption have been given. The other evidence on the record is the report of the Mechanic Kuldeep Singh of Kuldeep Motor Garage Ex. C-6. He has not mentioned his qualification. He has mentioned that the engine is consuming (using) mobil oil which is a technical defect. Moreover, no notice was given to the opposite party at the time of inspection by this Mechanic and further this Mechanic has not stepped into the witness box by filing an affidavit so that the other party could have right to cross-examine this witness on what basis he had given the opinion that there is a technical fault in the engine in case it is using high mobil oil. There should be specific evidence to say that there is a manufacturing defect. The onus was heavy upon the complainant but the evidence of the complainant is not to that extent that may be sufficient to prove the manufacturing defect in the engine of the vehicle. Therefore, in these circumstances, replacement of the engine is not an appropriate order. In case there is high consumption of engine oil by the vehicle, an appropriate order would have been; direction to the opposite parties to check the working of the engine oil and to effect the necessary repairs. Therefore, the order so passed by the learned District Forum requires modification.

13.              In view of the above discussion, we partly accept First Appeal No. 686 of 2012. The order so passed by the learned District Forum is modified to the extent that instead of replacing the engine, OP Nos. 1 & 3 are directed to check the working of the engine and to effect its repair to the satisfaction of the complainant.

FIRST APPEAL NO. 850 OF 2012

14.              This appeal has been filed by OP No. 2. The pleas taken by OP No. 2 is same that there is no specific evidence with regard to any manufacturing defect in the engine of the vehicle, therefore, the order so passed by the learned District Forum for replacing of the engine is an incorrect order. Already findings have been given in First Appeal No. 686 of 2012 and those findings be also read in this appeal. Accordingly, the appeal is also partly accepted and disposed of.

15.              The arguments in these appeals were heard on 5.2.2015 and the orders were reserved. Now the orders be communicated to the parties as per rules.

16.              The appeals could not be decided within the statutory period due to heavy pendency of Court cases.

17.              Copy of this order be placed on F.A. No. 850 of 2012.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                             (Jasbir Singh Gill)

                                                                                                    Member

 

February 9, 2015.                                                   (Harcharan Singh Guram)

as                                                                                                Member