BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A.No.25/2008 AGAINST C.C.No. 424/2007, DISTRICT FORUM-III, HYDERABAD,
Between:
1. M/s/Hyundai Motor India Ltd.,
Through its Authorised Signatory
Mr.Navin Kumar Trivedi
Plot No.H-1, Sipcot Industrial Park,
Irrungattukottai,
Sriperumbutur- Taluk,
Kancheerpuram District,
Tamilnadu-602 105.
Also at
A-3, Mohan Co-operative Industrial estate,
Mathura Road,
New Delhi-100 044.
2. M/s.Hyundai Motor India Ltd.,
Through its Managing Director,
Plot No.H-1, Sipcot Industrial Park
Irrungattukottai,
Sriperumbutur Taluk
Kancheepuram District
Tamilnadu-602 105. Appellants/
Opp.parties 2 and 3.
And
1. M/s.Bhagyanagar Wire Products Pvt. Ltd.,
Through its Managing Director,
Sh. Manoj Kumar Sharma
S/o.Parmeshwar Dayyai Sharma, age 36 yrs.,
Occ:Business, R/o.Plot No.67, S.V.C.I.E. Balanagar,
Hyderabad Respondent/
Complainant
2. M/s.Talwar Hyundai
No.160(44/45, Patny Plaza, S.P.Road,
Opp:Oriental Bank of Commerce,
Secunderabad-3. Respondent/
Opp.party No.1
Counsel for the Appellants: Mr.T.Vijayakumar Reddy
Counsel for the Respondents: Mr.Srikishan Sharma-R1
Mr.T.Sunil Kumar-R2
F.A.No.70/2008 AGAINST C.C.No.424/2007, DISTRICT FORUM-III, HYDERABAD,
Between:
M/s.Talwar Hyundai
(A unit o Talwar Mobiles Pvt. Ltd.,)
No.160(44/45, Patny Plaza, S.P.Road,
Secunderabad-3.
(Director:Saraj Talwar S/o.Sunil Talwar)
Rep. by its Sr.Service Manager,
Bhimsen kulkarni). Appellant/
Opp.party No.1
And
1. M/s.Bhagyanagar Wire Products Pvt. Ltd.,
Represented by its Managing Director,
Manoj Kumar Sharma
S/o.Parmeshwar Dayyai Sharma, age 36 yrs.,
Occ:Business, R/o.Plot No.67, S.V.C.I.E. Balanagar,
Hyderabad Respondent/
Complainant
2. Managing Director,
Hyundai Motor India Ltd.,
Office: TTK Road, Alwarpet,
Chennai.
2. Managing Director,
Hyundai Motor India Ltd.,
Plant Sriperumbadar,
Chennai, Tamilnadu Respondents/
Opp.parties 2 and 3.
Counsel for the Appellants: Mr.T.Sunil Kumar
Counsel for the Respondents: Mr.Srikishan Sharma-R1
Mr.T.Vijayakumar Reddy R2 & R3.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT
AND
SMT.M.SHREESHA, MEMBER
WEDNESDAY, THE THIRD DAY OF NOVEMBER,
TWO THOUSAND TEN
(Typed to the dictation of Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.C.No.424/2007 on the file of District Forum-III, Hyderabad, opposite parties 2 and 3 preferred F.A.No.25/2008 and opposite party No.1 preferred F.A.No.70/2008.
Since both the appeals arise out of the same C.D., they are being disposed of by a common order.
The case of the complainant in brief is that the complainant, Managing Director of M/s.Bhagyanagar Products Private Limited induced by the advertisements of opposite parties approached opposite party No.1 on 20/10/2006 and purchased ‘ACCENT VIVA CRD1 5 DOOR BSIII SEDAN” car by paying margin money of Rs.1,25,945/- through account payee cheque bearing No.575757 dated 20-10-2006. After taking delivery of the car, he had performed pooja and rushed to Delhi to attend a marriage function and stayed there for a long time and kept the vehicle at his home. After return from Delhi, the complainant wanted to take the new car and on 03/12/ 2006 but it was not getting started and after hectic efforts, he made a phone call to opposite party No.1 who assured that there may be some minor problem and he would sent a mechanic to his house. On 04-12/2006 the mechanic after making thorough check up could not rectify the same and as such he took away the car from the complainant to the showroom by making an entry in the maintenance record. After two days, he returned the car to the complainant and thereafter also the complainant faced the starting problem on different occasions. Finally on 16-1-2007 again the complainant faced difficulty in starting the car and immediately he telephoned to opposite party No.1 and gave complaint and one Bhim sen came for repair of the car and he informed that the problem might be due to obstruction of accessories installed by the complainant and advised for removal of the same. The complainant incurred Rs.70,000/- to Rs.80,000/- for the accessories and with the sole intention that after removal of the accessories, the car would run smoothly accepted the proposal for removal of the accessories. The car was returned on 24-1-2007 and took the car to opposite party No.1 for fitting the accessories and paid the fitting charges. On 10-2-2007, the complainant wanted to out with family but the car could not be started and when he called opposite party No.1, it responded in a harsh manner and refused to come and rectify the car even if any problem exists and advised the complainant to show it outside mechanic. The complainant fed with this attitude of opposite party No.1 and submitted that he had not used the car for a single day and opposite parties could not repair the car. Hence he prayed for a direction to the opposite parties to refund Rs.2,30,945/- i.e. margin money of Rs.1,25,945/-, Rs.70,000/- incurred towards accessories and Rs.25,000/- to Rs.30,000/- towards repairing charges whenever it stopped on roads along with damages of Rs.10,00,000/- for mental agony.
Opposite party No.1 filed counter denying the allegations made and stated that it deals in sales and service of cars in Hyundai Motors and it is an authorized dealer of opposite party No.2. It admitted that the complainant purchased Hyundai ‘ACCENT VIVA CRDI 5 DOOR BSIII SEDAN on payment of margin money of Rs.1,25,495 vide cheque No.575757 dated 20-10-2006 drawn on HDFC bank and took delivery of the car on 20-10-2006 after taking a test drive and getting fully satisfied with the new car. The complainant came to them on 07/12/2006 and informed that the battery was discharged and when they asked about the usage of the car, he replied that he was not using it regularly. They checked the vehicle thoroughly and found it in good condition and delivered vide RO.No.R200622556 dated 8/12/2006. The complainant on 19/12/2006 came with the same problem and they attended and found that the problem exists with the extra accessories and fittings and informed the same to the complainant and due to such extra fittings, the vehicle battery is getting discharged resulting in starting trouble and asked him to remove the extra fittings and extra fittings were not recommended and it is also clearly mentioned in the warranty booklet. The opposite parties further submitted that if any loss or damage or problem arise due to such extra fittings, it will not be responsible and they further advised the complainant to start the car regularly. On 04/1/2007, the complainant took delivery of the car in perfect condition and again on 17/1/2007 he approached them with the same battery problem and requested to remove the extra accessories and accordingly they removed the extra accessories and showed him practically that the problem was due to extra fittings and delivered the car on 24/1/2007 vide RO.No.R200700946 and advised the complainant to start the vehicle regularly. They submitted that the complainant approached them with the ‘Starting problem’ and they rectified the same free of cost except when the extra accessories were removed at the expense of the complainant. They submitted that they have given good service and they are not responsible for starting problem and that the vehicle was perfectly in good condition and prayed for dismissal of the complaint.
Opposite parties 2 and 3 filed counter contending that the complaint is false and misconceived and based on incorrect facts. They submitted that the complainant fitted extra accessories which were not supplied and recommended by them against the warranty policy of the manufacturer. They stated that on the date of purchase, the car was in perfect running condition and that there was no problem and hence the manufacturer cannot be held liable. They submitted that they deal with their dealers’ on principal to principal basis and responsibility of the opposite parties is limited to its warranty obligation. The complainant purchased the car from opposite party No.1, authorized dealer on 20-10-2006 in perfect running condition and without any technical or mechanical defects. The problem of starting and battery getting discharged is not due to defect but due to fitting of extra accessories such as LCD, VCD player etc which are not supplied and recommended by HMIL and which may have distorted the electric load distribution. The aspect of fitment of accessories is admitted by the complainant by stating that he had incurred Rs.70,000/- to Rs.80,000/- on accessories. They further submitted that the car was kept on idle condition for nearly one and half money after its purchase and hence on 03/12/2006 the starting trouble occasioned due to non use of the vehicle for a considerably long period. On 7/3/2007, the complainant reported to the dealer workshop and repair order No.R200700946 was opened at a mileage of 726 kms. The complainant has to check the battery over hearting and after examining it was found that the problem was due to accessories and they were disconnected and the car was kept in observation for 7 days and no battery discharge was found. The vehicle was returned to the complainant on 24/1/2007 in perfect condition and they submitted that the extra fitted accessories were neither Hyundai genuine accessories nor recommended by HMIL. They submitted that they gave a suitable reply on 16/3/2007 and that they delivered a brand new car with no defects and submitted that there was no deficiency in service and prayed for dismissal of the complaint.
Based on the evidence adduced i.e. Exs.A1 to A18 and B1 to B13 and the pleadings put forward, the District Forum allowed the complaint in part directing the opposite parties jointly and severally to replace the vehicle with new, defect free without any extra charges and further directed to pay costs of Rs.5,000/-.
Aggrieved by the said order, opposite parties 2 and 3 preferred F.A.No.25/2008 and opposite party No.1 preferred F.A.No.70/2008.
Both sides filed written arguments.
The brief point that falls for consideration is whether there is any manufacturing defect in the said car?
It is the complainant’s case that he purchased an ACCENT VIVA CRBI Sedan car from the opposite parties on 23-10-2006 and was out of town for two months and tried to start his car on 03-12-2006 but it did not start and he complained to the dealer, who sent his mechanic, the next day on 04-12-2006 and returned the car to the complainant within two days. But once again he faced the same problem on 16-1-2007 and this time the dealer’s mechanic informed him that on account of installation of accessories in his car, he is facing this starting problem.
The learned counsel for the respondent/complainant submitted that in spite of the car sending the car to opposite party No.1 for repairs, the same was returned to the complainant with out the defect being rectified. It is the further case of the complainant that the car was returned on 24-1-2007 and was once again taken to the showroom on 01-2-2007 for fitting the accessories. On 10-2-2007 the complainant wanted to go out with his family, but once again the car stopped and the complainant incurred Rs.25,000/- towards repairing charges.
The learned counsel for the appellants/opposite parties contended that the complainant got accessories fitted which were neither supplied nor recommended by the opposite parties and this can be evidenced from the complainant’s statement that he incurred Rs.70,000/- to 80,000/- for accessories. As the battery was getting repeatedly discharged, these accessories were removed and thereafter there was no starting problem. The learned counsel for the appellants/opposite parties filed Exs.B14 and B15 to establish that the complainant herein is using the vehicle even as on date.
It is not in dispute that the complainant had purchased the car from the opposite party dealer i.e. opposite party No.1 and this vehicle is manufactured by the manufacturers opposite parties 2 and 3. It is evidenced from Ex.A16 dated that the complainant had complained of starting trouble and the same invoice/credit, it is stated as follows:
‘Work carried out, disconnected the extra fitted accessories, delivered the vehicle under observation.
Ex.A17 is the maintenance record sheet which shows that on 01-12-2006 there was starting trouble which was seen by the concerned mechanic and on 19-12-2006 it was under electrical observation. It is stated by the mechanic as follows:
‘Details of repairs done: Came for starting trouble.
Battery getting discharged because of accessories (extra fitted)
Problem informed to the customer and rectified.
Battery got discharged on 12-1-2007.
(vehicle kept idle for 5 days)
Visited to customer’s place (suspecting battery)
These recordings have been filed as Exs.A17 by the complainant himself which shows that the dealer’s mechanic attended to the problem and it is an admitted fact that the complainant had fitted extra accessories and these were removed under Ex.A16 and it is the complainant’s case that even after removal of these accessories, the car is still giving starting trouble. The repair orders filed by the opposite parties, Ex.B11 dated 19-12-2006 also show that the break down of the vehicle was due to over heating of the battery. Ex.B4 also evidences that the vehicle was brought from the residence and all additional fitted accessories were removed and delivered to the complainant. This exhibit is dated 24-1-2007. Thereafter there is no evidence to state that the complainant was having repeated problems with the car because of any manufacturing defect, but there is a problem related to the battery. Thereafter Ex.B12 which is the same as Ex.A16 shows that the extra fittings were removed. The complainant got issued a legal notice Ex.A18, dated February, 2007 calling for replacement of the car and it was giving him continuous starting trouble. But it is evident from the record, after the removal of the extra fitted accessories, it was only the battery which was giving problem as evidenced under Exs.B14 and B15 dated 05-9-2009 which is the repair order of Sri Jayalaxmi Automotives Pvt. Ltd., to which the said car had gone for minor repairs like engine sound, oil replacement etc., and establish the complainant is still using the car as on date. We rely on the decision of the National Commission I (2010) CPJ 235 (NC) in CLASSIC AUTOMOBILS v. LILA NAND MISHRA & ANOTHER in which the National Commission held that:
‘Even if the vehicle is repeatedly brought for repairs when there is no ground to hold that vehicle is suffering from manufacturing defects, such a liability cannot be fastened on the manufacturers and dealers.
We also rely on the decision of the Apex court in Civil Appeal No. 3734 of 2000 in MARUTHI UDYOG Vs. SUSHEEL KUMAR GABGOTRA AND ANR. had set aside the order of the Commission in replacing the car and directed for replacing the clutch assembly only holding that when defects are rectifiable and manufacturing defect has not been established, a direction for replacement of the entire car cannot be given.
Even in the instant case there is no expert opinion evidencing any manufacturing defect and even the material on record, does not establish that the vehicle is suffering from any manufacturing defect, except for a battery problem and therefore we set aside the order of the District Forum with respect to replacement of car and only direct the opposite parties to replace the battery with a new one as it is a new car which was having problem with the battery within 4 weeks from the date of receipt of this order. The costs of Rs.5,000/- awarded by the District Forum is confirmed and we allow these appeals in part.
In the results these appeals are allowed in part and the order of the District Forum is set aside with respect to replacement of car and only the battery is directed to be replaced together with costs of Rs.5,000/- as awarded by the District Forum. Time for compliance four weeks.
Sd/PRESIDENT.
Sd/-MEMBER.
JM Dt.03-11-2010
