Punjab

Ludhiana

CC/15/31

Mrs.Vandana Sharma - Complainant(s)

Versus

MRG Auto Pvt. Ltd. - Opp.Party(s)

Harpreet Singh Adv.

09 Nov 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 31 of 12.01.2015

Date of Decision    :  09.11.2016

              

Mrs.Vandana Sharma w/o  Vishal Sharma & D/o Sh.Lakhbir Chand Sharma r/o House No.5957 Street No.16, Daaba Road New Shimal Puri, Ludhiana.

….. Complainant

Versus

1.M/s MRG Auto Pvt. Ltd., 104/1 GT Road Sherpur, Ludhiana 141003.

2.Hyundai Motors, North Regional Office, Chandigarh, DLF Tower-B, 3^rd Floor, Rajeev Gandhi, Chandigarh IT Park, Chandigarh-160101.

3.Hyundai Motors India, Registered Office and Factory Kanchipuram Irrugattukottai, NH No.4, Sriperumbudur Taluk, Kanchipuram District, Tamil Nadu-602117.

…Opposite parties

 

    (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS.VINOD BALA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :        Sh.Harbans Lal Sharma, Advocate

For Op1                         :        Sh.Harpreet Singh, Advocate

For OP2 and OP3          :         Sh.Vishal Gupta, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                          Complainant purchased a car i.e. Hyundai Eon Era + BSIV of Coral White colour bearing engine No.G3HACM130050 and VIN No (Chassis) MALA251ALCM152571 dated 6.1.2013 through Pioneer Hyundai, MRG Auto Pvt. Ltd., G.T.Road Sherpur, Ludhiana. Delivery of the vehicle was taken on 11.1.2013. At the time of sale, it was disclosed that sold vehicle will be free from any defects in material and workmanship. Warranty period as per owner manual and service booklet will exist for a period of 24 months from the date of delivery to the first purchaser irrespective of the mileage. In case, the vehicle is used for commercial purpose such as taxi/tourist operation, then warranty will be of 24 months/40000 Kms from the date of delivery, whichever is earlier. Authorized dealers to repair or service the genuine Hyundai parts, in case of defect in material acknowledged by HMIL(Hyundai Motors India Limited). No cost of such repair/replacement to be charged from the owner. Defective parts to become property of HMIL as per service manual. The above referred vehicle after registration with Registering Authority at Ludhiana bears registration No.PB-10-DZ-8700. On 26.9.2014, when the complainant was driving the vehicle, then an uneasy sound was being produced by the vehicle and the complainant informed manually as well as on the customer care number of HMIL and also to Sh.Amarjeet Singh, Service Advisor on his mobile No.88720-00134. Complainant was advised to visit the authorized service centre for second free service of the vehicle along with replacement/repair of any part as found essential after complete checkup and analysis. On 28.9.2014, the brother of the complainant Mr.Kanwar Sharma took the vehicle to OP1 and delivered the same there. Said Mr.Kanwar Sharma was disclosed that complete checkup of the vehicle will be done and thereafter, information to complainant will be given within 4-5 hours of delivery of the vehicle for service, about the defects and necessary replacement/repair. Even promise was made to do the second free service. In the evening of that day, the complainant was informed on her mobile phone that the front right axle of the vehicle was producing the uneasy sound and needs replacement/repair of the same and it was found that this replacement will not be done without getting charges for the same. Though the vehicle was within the warranty period of 24 months, but despite that charges were demanded in violation of the agreement. Defect in the front right axle of the vehicle was a manufacturing defect. Refusal to replace the defective part amounts to unfair trade practice as per allegations of the complainant. Some additional defects were also brought to the notice of authorized dealer at Ludhiana i.e. Op3. It was informed that doors of the vehicle if not locked, opens automatically during driving because the locks were not functioning properly. That also alleged to be a manufacturing defect. Complainant even disclosed Ops that lock of the dickey and petrol tank opens automatically, which in                  fact is very dangerous to the owner of the vehicle, especially when the vehicle driven on busy roads. The authorized dealers never cared to remove the defects despite repeated requests or notices. Sh.Jasbir Singh, Service Advisor and Service Manager threatened that he will not allow to remove the defects within warranty period without giving payment by the complainant. He even didn’t allow the service advisor to remove these defects when the service advisor tried to remove the said defects as per promise made to the complainant for removal of the said defects. Second free service of the vehicle completed on 29.2.2014(correct date is 29.9.2014) through invoice No.B201411568 dated 29.9.2014. Rs.350/-       for WYNNS-Engine Flush, but Rs.1600/- for WYNNS-Decarbonising were charged despite the fact that second free service was to be provided without any cost to be borne by the complainant.

2.                On 29.9.2014, second free service was not done properly and the defects were not removed and the damaged parts were also not replaced, resulting in further deteriorated condition of the vehicle. When coupons for second free service was torn from the Service Booklet on completion of the service, then coupon for 3^rd free service even was torn by the service engineer of OP1 on the pretext that necessary entries are to be incorporated before hand for the next free service. Complainant served legal notice dated 12.10.2014, but no reply was sent by Ops. By pleading deficiency in service and unfair trade practice on the part of OPs, prayer made for directing Ops to replace the vehicle in question with a new one due to number of manufacturing defects; replace the front right axle with new one without charging any costs from the complainant and to remove all the defects in relation to doors, dickey and petrol tank lock by necessary replacement. Refund of over charged amount of Rs.1950/- along with VAT and Service and Cess tax sought. Besides, compensation for mental harassment of Rs.2 lac even claimed.

3.                In written statement filed by OP1, it is claimed that para pertaining to warranty terms and conditions pertains to OP2 and OP3. Admittedly, the frond right axle    of the vehicle was to be replaced, but on payment of charges and no free of costs. Complainant concealed the material facts to the effect that on account of external impact owing to fault of the complainant, the boot of the front right axle got torn, resulting in lot of dust entry in the right axle. So, defect in the right axle not a manufacturing defect, but the same occurred due to fault of the complainant and as such, the case of the complainant does not fall under the warranty clause and as such, she has to pay for replacement of the front right axle. It is claimed that it is a case of negligence, misuse and abuse by the customer. Job card and invoice of OP1 are matter of record. Prayer made for dismissal of the complaint.

4.                In separate joint written statement filed by OP2 and OP3, it is pleaded interalia as if complaint being false, merits dismissal; this Forum has no territorial jurisdiction and complainant failed to prove any manufacturing defect in the vehicle. Each new Hyundai Eon Vehicle comes with 24 months warranty subject to certain terms and conditions. It is specifically mentioned in owner’s manual that consumable items like oil/fluid changes, filter replacement, wheel balancing, wheel alignment, tyre rotation, minor adjustment, engine tuning, replacement of parts on account of normal wear and tear not covered under the warranty. Damages resulting from the negligence of proper maintenance even not covered by the warranty. Ops never promised that everything will be free during warranty or complainant will not have to pay anything during free services. Admittedly, the complainant purchased the car in question in the month of January 2013 and problem of axle occurred in September, 2014 i.e. after a gap of almost 19 months. However, by that time, vehicle had already covered a mileage of 21182 kms. Any damage due to normal wear and tear on account of driving condition cannot be termed as manufacturing defect. Warranty clause applicable in case of admitted manufacturing defect. Complainant failed to show any manufacturing defect. Opinion of expert regarding manufacturing defect not brought on record. Claim of the complainant is based on only averments submitted in the affidavit without corroborative evidence. Efficient services have already been provided to the complainant at all times and as such, complainant has no cause of action against OP2 and OP3, particularly when there is no manufacturing defect in the vehicle delivered to the complainant. There is no problem with regard to the door lock and the complainant was advised to follow up the guidelines mentioned in owner’s manual regarding functioning of the door lock. Non impleadment of Mr.Jasbir Singh as party alleged to be  fatal because allegations levelled against him. The authorized dealer to repair or replace any Hyundai genuine part that is acknowledged by HMIL to be found defective in material or workmanship within the warranty period, but without charging any cost from the owner qua parts or labour. Replacement of the car or refund of the purchased price cannot be ordered merely because of some repairable defect. OP2 and OP3 operates with all its dealers on principal-to-principal basis. Service of the car is the sole responsibility of the concerned dealer. Liability of OP2 and OP3 being manufacturer is limited. As per service history of the vehicle, the same was reported to the service centre on 27.2.2013 for first free service, when it covered mileage of 2313 Kms. This vehicle  reported for second free service on 28.9.2014 at mileage of 21182 Kms, whereas, new vehicle required first free service within 2 months or at mileage of 1500 Kms, but the second free service required at mileage of 10,000 Kms or 12 months, whichever is earlier. Owner’s manual suggests that the vehicle should be brought in for servicing at timely intervals for maintaining the performance of the vehicle. However, the complainant remained negligent in due maintenance of the vehicle. Principal office of Ops is situate beyond the territorial jurisdiction of this Forum and as such, this Forum alleged to be having no jurisdiction. OP2 and OP3 has no role of retail sale of the car. Other averment of the complaint denied.

5.                Complainant to prove her case tendered her affidavit Ex.CA along with documents Ex.C1 to Ex.C6 and thereafter, her counsel closed the evidence.

6.                On the other hand, counsel for OP2 and OP3 tendered in evidence affidavit Ex.RA of Sh.Manish Kumar, the authorized signatory of OP2 and OP3 along with documents Ex.R2/1 to Ex.R2/4 and thereafter, closed the evidence.

7.                Op1 failed to conclude its evidence, despite availing sufficient chance and as such, evidence of OP1 was closed vide orders dated 11.9.2015.

8.                          Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

9.                The car in question was purchased by the complainant from OP1 is a fact borne from perusal of certificate Ex.C1. Delivery of this car was taken on 6.1.2013 by the complainant from OP1. Copy of certificate of registration Ex.C4 also produced to prove that the said car bears registration No.PB-10-DZ-8700. So, certainly the complainant is a consumer of OP1.

10.              OP2 and OP3 are manufacturers. Liability for repair is of the authorized dealer and their branches as per note appended on Ex.C2. So, in case, repair works to be carried out, then it is the responsibility of OP1, the authorized dealer. After going through Ex.C2 as well as Ex.R2/1, it is made out that warranty exists for period of 24 months from the date of delivery to the first purchaser irrespective of the mileage. The vehicle in question purchased for self use and is not a commercial vehicle as per the case of the complainant and as such, warranty of the vehicle in question to remain in existence for 24 months from the date of purchase, which as revealed by contents of Ex.C1 is 6.1.2013. So, warranty was to remain in force till 6.1.2015. Submissions of counsel for the complainant in this respect has force.

11.              It is vehemently contended by Sh.Vishal Gupta, Advocate representing OP2 and OP3 that there is no manufacturing defect in the car and as such, liability of replacement of axle is not of OP2 and OP3. No expert has been examined by the complainant to prove the manufacturing defect of the axle. In the absence of report of expert, it can’t be held that actually there was any manufacturing defect in the axle of the car, so, allegations of manufacturing defect of the axle are not proved by the complainant is also an submission.

12.              Though, it is contended by counsel for Ops that damage to the axle caused due to impact of accident, but report in that respect even has not been produced by the Ops nor any prayer made by OP1 for such inspection of the vehicle. No job sheet record produced by OP1 to establish that the axle defect was due to impact of accident. So, submissions advanced by counsel for OP1 has no force that fault in axle took place due to improper maintenance of the vehicle in question. If complainant not examined the expert to prove the manufacturing defect, then to the contrary Ops even failed to prove that damage to the axle caused due to impact of accident because of the above discussion. As expert/engineer available with Ops to prove that damage to axle caused by external force or improper maintenance of the vehicle, but despite availability        of record of job sheet, the same has not even been produced by OP1 and as such, virtually OP1 failed to establish that damage to axle caused either due to improper maintenance of the vehicle or due to accidental impact. As the vehicle in question covered by warranty period and axle defect not shown to be rectified, despite issue of legal notice Ex.C6 dated 12.10.2014 and as such, certainly responsibility of OP1 is to remove the axle defect and in removal of such defect, OP2 and OP3 will co-operate in matter of replacement of axle of the car of the complainant as per need of OP1.

13.              Clause 2 of Ex.C2=Ex.R2/1 provides that authorized dealers shall either repair or replace any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period without charging any cost from the owner of Hyundai vehicle. The replaced part will become the property of HMIL as per this clause 2 of Ex.C2=Ex.R2/1. As rectification of axle defect sought within warranty period and as such, in the absence of proof of defect having occurred due to accidental impact, it is the responsibility of Ops to rectify that defect at earliest.

14.              It is contended by Sh.Vishal Guptal, Advocate representing OP2 and OP3 that axle problem occurred due to improper driving or on account of damage caused by rash and negligent driving. Evidence in that respect not produced by examining any expert or by producing any job sheet or even any other material and as such, submissions of counsel for OP2 and OP3 in this respect has no force. Merely because the vehicle brought after 19 months of purchase for second service, when it travelled distance of 21182 kms, due to that alone, it cannot be inferred that workmanship/manufacturing defect in the axle may not be there. The material used for manufacturing of axle to be decided by the manufacturer and not by the customer or dealer. The defective material may cause defect in the axle after travelling of distance of 21182 kms even. As the warranty for 24 months from the date of delivery to the first   purchaser irrespective of coverage of mileage as per clause 1 of Ex.C2=Ex.R2/1 is there and as such, the distance travelled is immaterial. For removal of axle defect, if replacement is required, then the same has to be done without charging anything from the complainant as per clause 2 of Ex.C2=Ex.R2/1.

15.              Second grievance of the complainant is that locks of doors automatically opens during driving and they are not functioning properly. These defects pointed out in the doors of the vehicle, dickey of the vehicle and petrol tank thereof. Opening of the doors during running of the vehicle certainly causes embarrassment and tension to the driver. Even if the manufacturing defect in this respect is not proved, but in view of warranty clauses, the locks of doors, dickey and petrol tank has to be made due functional by the Ops because record of job sheet of the car and invoice not produced by OP1 for pointing out either these defects removed or they actually do not exist.

16.              There is no dispute regarding the fact that second free service was to be provided by OP1 to the vehicle in question without charging anything from the complainant. Vehicle for this second free service was brought by the complainant to oP1 on 29.9.2014 is a fact borne from the contents of invoice Ex.C5. Despite this, Rs.1950/- were charged from the complainant as per contents of Ex.C5. Rs.350/- were charged for Wynns-Engine Flush, but Rs.1600/- for Wynns-decarbonizing. As the engine oil and decarbonizing was to be done by OP1, the dealer, but despite that charges for the same recovered from the complainant and as such, the same is an act of unfair trade practice. Normal Maintenance Schedule disclosed through Ex.RW2/3 provides that engine oil & filter services to be provided along with spark plugs, engine coolant, manual transaxle fluid, automatic transaxle fluid etc., and as such, engine oil and other fluids to be provided by OP1 in free service. However, despite that engine flush charges and decarbonizing charges of Rs.1950/- taken from the complainant and as such, Op1 committed an act of unfair trade practice in charging of this amount. So, OP1 is liable to refund this amount of Rs.1950/- to the complainant.

17.              Complainant has to bear mental harassment and inconvenience because of adoption of unfair trade practice by Op1 as pointed above and this mental tension sustained by the complainant since from the time of second service namely 29.9.2014 and as such, he is entitled to amount of Rs.10,000/- under this head in addition to litigation expenses of Rs.5000/-.

18.              It is also contended by counsel for the complainant that 3^rd free coupon service was torn at the time of providing of second free service itself and as such, complainant was denied of the benefit of 3^rd free service. That tearing of the coupon alleged by Sh.Jasbir Singh, Service Manager of OP1 in fraudulent way. As and when the fraud is pleaded, then the person committing fraud needs to be impleaded as party or he should be called as witness to prove the allegations. However, neither said Jasbir Singh impleaded as party and nor called as witness by the complainant and as such, allegations of fraudulent tearing of third free service coupon not proved by any convincing evidence at all.

19.              Therefore, as a sequel of the above discussion, the complaint allowed in terms that OP1 will remove the defect in the axle of the car of the complainant by having help of OP2 and OP3 within 45 days from the date of receipt of copy of this order. Even OP1 with the help of OP2 and OP3 will rectify the defects in the locks of doors, dickey and petrol tank of the car in question within 45 days from the date of receipt of copy of this order. These defects will be removed without charging anything from the complainant. OP1 will refund Rs.1950/- to the complainant within 45 days from the date of receipt of copy of this order, but with interest @8% per annum on this amount from 30.9.2014 till payment. Compensation for mental harassment and agony of Rs.10,000/- and litigation expenses of Rs.5000/- more allowed in favour of the complainant and against all the OPs. Liability of paying compensation and litigation expenses of OPs will be as joint and several.  Compliance of these directions of payment qua litigation expenses and compensation be made by Ops to the complainant within 45 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

20.                        File be indexed and consigned to record room.

 

                                      (Vinod Bala)                     (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:09.11.2016

Gurpreet Sharma.