Punjab

Ludhiana

CC/14/859

M/s Nahar Indl Enterprises Ltd - Complainant(s)

Versus

M/s Hyundai Motors India Ltd - Opp.Party(s)

Stevon Soni adv

06 Apr 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:859 dated 15.12.2014.                                                         Date of decision: 06.04.2022. 

 

1. M/s. Nahar Industrial Enterprises Ltd., Focal Point, Ludhiana, through its President Sh. H.N. Singhal.                                                                
2. Sh. H.N. Singhal, President, M/s. Nahar Industrial Enterprises Ltd., Focal Point, Ludhiana                                                                                                                                                                   ..…Complainants

                                                Versus

1. M/s. Hyundai Motors India Ltd., A-30, Mohan Cooperative Industrial Estate, Mathura Road, New Delhi-110044.
2. M/s. Pioneer Hyundai, M.R.G. Auto Ltd., G.T. Road, Sherpur, Ludhiana-141003.                                                                                                                                                                           …..Opposite parties 

          Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. K.K. KAREER, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Stevon Soni, Advocate.

For OP1                         :         Sh. Nitin Gulati, Advocate.

For OP2                         :         Sh. Harpreet Singh, Advocate.

 

ORDER

PER K.K. KAREER, PRESIDENT

1.                Shorn of unnecessary details, the case of the complainants is that on 18.07.2008, complainant No.1 purchased one Verna Hyundai car vide invoice No.H200800535 dated 31.07.2018 for a value of Rs.7,44,426/- for the personal use for its President i.e. complainant No.2. However, the car started giving trouble in the very first month. The car was pulling on the left side and its steering was very hard to operate despite being a power steering. There was pickup problem in the second gear. Apart from that, there was a problem in the backside shocker of the car. The car engine had excess noise and it was giving mileage of 10 KM per liter whereas at the time of sale, it was represented that the average mileage of the car would be 16 Km per liter. The problems in the car were reported to the OPs and the car was sent at the workshop of the OPs on 26.07.2008, 28.07.2008, 04.08.2008, 12.08.2008 and 19.08.2008 but the problems could not be rectified by the OPs. In fact, there was a manufacturing defect in the car which has not been rectified till date. The complainants complained to the OPs regarding the defects in the car within warranty period and sent number of emails. Finally the complainants wrote letter dated 20.08.2008 stating that the defects in the car have not been rectified, but the OPs gave no response. Even the legal notice dated 22.09.208 failed to evoke a positive response from the OPs. This amounts to deficiency of service on the part of the OPs. In the end, it has been requested that the OPs be directed to replace the car or in the alternative refund the value of the car along with damages of Rs.2,00,000/-.

2.                The complaint has been resisted by the OPs. In the written statement filed on behalf of the OP1, it has been, inter alia, pleaded that the complaint is false and frivolous and is based on misleading facts. Moreover, the complaint is not maintainable as the complainants are not consumers as per the definition of consumer under the Consumer Protection Act. The car was purchased and registered in the name of M/s. Nahar  Industrial Enterprises Ltd. which is a limited company engaged in the business and, therefore, the car was purchased for commercial purpose. According to  OP1, a brand new car was sold to the complainants on 18.07.2008 which was in perfect running condition without any defect or manufacturing defect whatsoever. The defects pointed out by the complainants are just figment of imagination and cannot be equated with a manufacturing defect in the car. As regards the problem of low mileage is concerned, it depends upon the road condition and driving habits of the person driving the car and it cannot be attributed to a manufacturing defect in the vehicle. Besides, even the warranty policy of the OPs does not contemplate the replacements of the vehicle under any circumstances. However, as a goodwill gesture, every time the car was brought to the workshop, it was properly repaired and as a goodwill gesture, all the 5 tyres of the car were replaced free of costs on 08.10.2008 despite the fact that the tyres are warranted by the manufacturer of the tyres and not by the OPs. On merits, it has been denied if there was a manufacturing defect in the car which could not be rectified by OP1. According to OP1, complainant’s car was reported at workshop of OP2 on 26.07.2008 at a mileage of 311 Kms, then 04.08.2008 at mileage of 1181 Kms, again at a mileage of 1662 Kms on 12.08.2018 and at a mileage of 3150 Kms on 19.08.2018. On all the said occasions, the problems were fully attended to and the vehicle was duly handed over to the complainant in perfect condition. Wheel alignment, wheel balancing, yoke assembly adjustment and tyre rotation of the car was carried out from time to time free of costs as a goodwill gesture. However, despite the best services provided, the complainant chosen to write on the invoice dated 19.08.2008 that he was not satisfied with the job. So far as the low mileage is concerned, the same occurs due to many reasons like road condition, driving habits, improper tyre pressure etc. It has also been denied if the car is defective one and the defects are not rectifiable. The rest of the averments made in the complaint have been denied as wrong and in the end, a prayer for dismissal of the complaint has been made.

3.                In a separate written statement, OP2 has pleaded that the car is free from any defect and the allegations leveled by the complainant regarding the defects of the car are false and baseless. There is no manufacturing defect in the car. According to OP2, the car was not pulling on the left side nor its steering was hard to operate. Moreover, OP2 performed wheel alignment, wheel balancing, yoke assembly adjustment and tyre rotation of the vehicle from time to time free of costs and also replaced all the tyres of the car free of costs on the instance of the complainant. So far as the mileage of the car is concerned, the same depends upon the driving skills of the driver and the road conditions like traffic etc. The mileage of 16 Km per liter is calculated  on a highway drive and not  within city. This fact was made known to the complainant on his visit to OP2. Moreover, the officials of Hyundai Motors India offered a free check of the vehicle to the complainant at their own facility in New Delhi as a measure of confidence building about the products of the company but the complainant did not agree to the said offer. OP2 has further pleaded that every time the car was brought to the workshop, the concerns of the complainant were duly attended to. In the end, OP2 has also prayed for dismissal of the complaint.

4.                In evidence, the complainant No.2 submitted his affidavit as Ex. CW1/A along with documents Ex. C1 to Ex. C53 and closed the evidence.

5.                On the other hand, the counsel for the OP1 tendered affidavit Ex. RW-1/1 of Sh. Manish Kumar, Assistant Manager of OP1 along with documents Ex. R1 to Ex. R8. Learned counsel for OP2 tendered affidavit Ex. RW-2/1 of Sh. Premjit Singh, Director of OP2 along with documents Ex. R9 to Ex. R12 and closed the evidence.

6.                It is pertinent to mention that original complaint was decided by the predecessors of this Commission vide order dated 05.10.2010. However, the OPs went in appeal and the Hon’ble State Commission vide its order dated 12.11.2014 set aside the order dated 05.10.2010 and remanded back the car to this Commission with the direction to decide the same afresh. It was further directed by the Hon’ble State Commission that the question whether the complainants are consumers and the complaint is maintainable be decided before deciding the complaint on merits. After the remand of the case, the complainant submitted supplementary affidavit Ex. CX of Sh. H.N. Singhal as additional evidence.

7.                We have heard the arguments advanced by the counsel for the parties and have gone through the record carefully.

8.                The present complaint has been filed by M/s. Nahar Industrial Enterprises Ltd. which is a limited company and complainant No.2 is the President of complainant No.1. In the written statement, an objection has been raised by the OPs that the complaint is not maintainable considering the fact that the car was purchased by the company and is also registered in the name of complainant No.1 and, therefore, the  complainants are not consumers as the car has been purchased and is being used for commercial purposes.

9.                On the other hand, the case of the complainant, as pleaded in para No.1 of the complaint itself is that the car was purchased by complainant No.1 for personal use of its President. In the affidavit Ex. CX, H.N. Singhal, President of complainant No.1 has further stated that the car was purchased for his personal use and not for any business activities of the company. It has further been stated that the car was neither used for hiring nor for making any profit for the company. In this connection, a reference can be made to the law laid down in 2020 (40 C.P.J. 89 in Landmark Cars Pvt. Ltd. Vs Frostees Exports (India) Pvt. Ltd. and others whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the car is purchased for the personal use of directors of the company and not for commercial purpose, the complainant company is a consumer. In this connection, a further reference can be made to the law laid down in 2007 (4) C.P.J. 1 in Controls and Switchgear Company Ltd. Vs Daimlerchrysler India Pvt. Ltd. and another whereby also it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the plea that the car was being used for commercial purpose is not tenable because the car was for the personal use of the directors of the company and, therefore, the complainant company was covered under the definition of consumer. In the light of the law laid down in the aforesaid cases, we are of the considered view that the complainants are the consumers and can definitely maintain the complaint as the car in question was purchased for the personal use of the present of the company i.e. complainant No.2 and not for any business purpose or the commercial activities of the company.

10.              As regards the merits of the case, it has been contended by the counsel for the OPs that a Local Commissioner Sh. Swarandeep Singh was appointed during the pendency of this complaint to examine the car in question. The Local Commissioner submitted his report Ex. CW2/1 along with photographs Ex. C48 to Ex. C52. In the report, the local commissioner has stated that he found the air pressure in the tyre in the range of 55 lbs and 39 lbs as against the required standard of 30 lbs. He further found that the front wheel chamber and Toe-in/out is within permissible limits. The local commissioner has further given an opinion that the car was fitted with a diesel engine which generally gives excessive vibration as compared to the petrol engine. Local commissioner further stated in his report that no pick-up problem in the second gear was noticed. The diesel engine vibration was felt on the rear seat which is usual in this model of the car. As regards the mileage, the local commissioner has stated that the average depends upon the road blocks and the manner of driving of the car. In the light of the report of local commissioner, it has been contended by the counsel for the OPs that the allegations made in the complaint have not been proved. Rather the same have been found to be false if the report of the local commissioner is relied upon.         

11.              on the other hand, the counsel for the complainant has argued that immediately after the purchase of the car, the vehicle started giving problems just on 7^th day of its purchase. The counsel for the complainant has further contended that no customer would bother himself to take the car again and again to the workshop unless and until there is some serious issue in the performance of the car. With regard to the report Ex. CW2/1 of the local Commissioner, the counsel for the complainant has contended that the local commissioner was not a qualified auto engineer and he was only a surveyor and, therefore, his opinion cannot be relied upon to give a clean chit to the OPs. The counsel for the complainant has further relied upon 2020 (1) CLT 507 in Nuzhat Vs Dee Dee Motors Pvt. Ltd. and another whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that if the petitioner’s car was having continuous problems with respect of low pickup, noise in engine starting from first month of purchase and the job cards showed that the petitioner had gone to dealer’s workshop several times complaining of low pickup, noise in steering and slipping of clutch place within warranty period and when the noise in engine was not rectified and the low pickup continued, clutch plates were also replaced within few months of purchase, it cannot be stated that there was no manufacturing defect in the car. The job cards as well as expert report established case of petitioner that there was manufacturing defect in car.  The counsel for the complainant has further relied upon 2018 (4) C.P.R. 16 in Abhay R. Bhatwadekar Vs Tata Engineering and Locomotive Company and others whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi if the car had gone to the garage for repairs repeatedly when the subject car was within warranty and had barely done 2500 Kms and the job cards evidenced that the repeated problems in the car, the manufacturer and the dealer jointly and severally are liable to refund the value of the car to the complainant. The counsel for the complainant has further relied upon 2020 (4) C.P.J. 282 in Tata Motors Ltd. and others Vs Murubha Pragaji Jadeja and another whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that the problem of wobbling of vehicle surfaced soon after vehicle was purchased about one and half month of taking delivery of vehicle and, therefore, the dealer and manufacturer were jointly and severally held liable to pay Rs.2,75,000/- to the complainant along with interest. The counsel for the complainant has further relied upon 2020 (4) C.P.J. 14 in Skoda Auto Volkswagen India P Ltd. Vs Meghana Corporates P Limited and another on this point.   

12.              Having weighed the rival contentions of the parties and after going through the record, we are of the considered view that after the delivery of the car was taken by the complainant on 18.07.2008, the job cards Ex. C4 to Ex. C6, Ex. C8, Ex. C9, Ex. C16, Ex. C17 and Ex. C34 proves that the car was brought to the workshop of OP2 on 26.07.2008, 28.07.2008, 04.08.2008, 12.08.2008 and 19.08.2008 within a period of just one month of its delivery. The complainant has further proved on record the letter and emails Ex. C12 and Ex. C13 addressed to the OPs where the defects in the car were pointed out which were not being resolved. The complainant has further proved on record the emails Ex. C14, Ex. C19, Ex. C24, Ex. C27 dated 11.08.2008, 13.08.2008, 16.08.2008, 18.08.2008 respectively. The job cards and the correspondence clearly shows that the complainant was compelled to take the car to the workshop time and again to point out the defects to the OPs within no time on its purchase. Normally a consumer would not go complain unnecessarily if the product is working properly. In the job card Ex. C4 dated 26.07.2008 the defects pointed out are low average of 10 KM, the vehicle pulling towards left side, acute engine noise. In the job card Ex. C17 dated 12.08.2008 the problems pointed out steering hard to operate, noise from the rear side. Thus, it is evident from the allegations made in the complaint and the evidence led in support thereof that after having purchased the car in the month of July 2008, the car had to be taken to the workshop several times within just one month of its purchase as it was giving problems here and there. If the car was pulling on the left side, it is not expeted of a new car to give such like problem. Similarly, the car said to have been equipped with the power steering but the complainant found the steering hard to operate. There was unusual noise also which could be felt on the rear seat of the car. No doubt the defects pointed out are minor in nature and cannot be said to be inherent manufacturing defects but even if such like defects, when countered by purchaser of a new car, it definitely causes inconvenience and anxiety and harassment to the complainant especially when the consumer is bothered to take the car in the workshop every now and then. Even if the local commissioner has not pointed out any inherent manufacturing defect in the car, but one thing is clear that the local commissioner was not an qualified auto engineer and he could not have been examined the car in a way an expert and qualified auto engineer could have done. Despite all this, in the given facts and circumstances of the present case, in our considered view, though it cannot be held that there was some inherent manufacturing defect which may warrant replacement and refund of the value of the car, yet there is considerable evidence that there were minor defects recurring in the car ever now and then which could not be rectified despite repeated visits to the workshop caused in convenience and harassment to the complainant. In the given circumstances, it would be just and proper if the OPs are directed to pay a compensation of Rs.1,50,000/- to the complainant along with interest @8% per annum jointly and severally from the date of filing of the complaint till actual payment as well as Rs.10,000/- as litigation expenses.

13.           As a result of the above discussion, the complaint is partly allowed with an order that OPs are directed to pay a compensation of Rs.1,50,000/- to the complainant along with interest @8% per annum jointly and severally from the date of filing of the complaint till actual payment. The OPs shall further pay a sum of Rs.10,000/- (Rupees Ten Thousand only) as litigation expenses to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

 

14.              Due to rush of work and spread of COVID-19, the case could not be decided within statutory period.

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:06.04.2022.

Gobind Ram.

M/s. Nahar Industries Vs Hyundai Motor India                        CC/14/859

Present:       Sh. Stevon Soni, Advocate for complainant.

                   Sh. Nitin Gulati, Advocate for OP1.

                   Sh. Harpreet Singh, Advocate for OP2.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with an order that OPs are directed to pay a compensation of Rs.1,50,000/- to the complainant along with interest @8% per annum jointly and severally from the date of filing of the complaint till actual payment. The OPs shall further pay a sum of Rs.10,000/- (Rupees Ten Thousand only) as litigation expenses to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of the order. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

 

                             (Jaswinder Singh)                            (K.K. Kareer)

                    Member                                           President

 

Announced in Open Commission.

Dated:06.04.2022.

Gobind Ram.