Haryana

Yamunanagar

CC/1042/2010

Rajinder Kaur W/o Jaswinder Singh - Complainant(s)

Versus

M/s Khanna Car Plazza Pvt.Ltd. - Opp.Party(s)

R.P.Khajuri

09 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                    Complaint No. 1042 of 2010

                                                                                    Date of institution: 02.11.2010

                                                                                    Date of decision: 09.08.2016

 

Smt. Rajinder Kaur wife of Sh. Jaswinder Singh, resident of # 2492/15/A Malvia Nagar, Jagadhri, Distt. Yamuna Nagar.                            

                                                                            …Complainant.

                                                     Versus

 

1. M/s Khanna Car Plaza Pvt. Ltd. Opp. Aggarsain College, Chhachhrauli Road, Jagadhri, through its Proprietor.

 

2. Hyundai Motor India Ltd. Regional Office: A-30, Mohan Co-operative, Industrial Estate, Mathura Road, New Delhi-110044, through its Regional Manager.

                                                                                                                                                                                                                                                                                                                                                                 …Respondents.                                      

 

Before: SH. ASHOK KUMAR GARG…………….. PRESIDENT

            SH. S.C.SHARMA………………………….MEMBER

 

Present:    Sh. Raj Pal Singh, Advocate, counsel for complainant.  

                 Sh. P.K.Sibal Advocate, counsel for respondent No.1.

                 Sh. Gopal Krishan, Advocate, counsel for respondent No.2.         

ORDER

 

1.                     The present complaint has been filed under section 12 of the Consumer Protection Act 1986  

2.                     Brief facts of the present complaint, as alleged by the complainant, are that the complainant purchased a Hyundai Car bearing no.HR02S-1313, Model 2007  Verna 1.5 GL CRDI VST BS3 from respondent no.1 (hereinafter referred as OP No.1) i.e. OP No.1, authorized dealer of manufacturer OP No.2. A few days before filing of this complaint, some problem arose in the said car, hence the son of the complainant namely Gurpreet Singh took the vehicle to Op No.1 on 25.09.2010 and the employee on inspection found that Turbo Kit was not working properly and at the same time the head mechanic Sh. Vinay Saini and G.M Parveen Sharma advised him that they will repair the turbo kit instead of installing new turbo kit and Rs. 4500/- will be charged for the repair. Sh. Gurpreet Singh gave the abovesaid amount to G.M. Parveen Sharma on 27.09.2010 without issuing any receipt and he was asked to come on the next day i.e. on 28.09.2010. On 28.09.2010 Gurpreet Singh approached the OP No.1 and asked about the delivery of car upon which Sh. Parveen Sharma G.M. Service told him that the head of the car has been damaged while repairing the turbo kit. The son of the complainant requested them to change the Head of car as the car was within warranty period and the head has been damaged due to their own fault. However, they assured that they will get the vehicle repaired and asked the complainant to come on 05.10.2010. As per instruction of OP No.1, the son of the complainant visited the Op No.1 on 5.10.2010 and found that the car was lying opened and was not repaired and it was also found that out of four studs, one stud has been damaged due to welding heat and also damaged all three heaters of the car. The Op No.1 also placed a screw stud of oversize than that of actual and demanded a sum of Rs. 3000/- from the son of complainant on account of fitting of heaters. The son of the complainant paid an amount of Rs.3000/- and had provided heater to OP No.1 after purchasing the same from market and was asked to come on 12.10.2010 and assured that the car will be repaired. On 12.10.2010, the son of the complainant namely Gurpreet Singh and Naveen Malik visited the agency and found that the car was still lying in opened condition and demanded more amount for replacement of other parts, for which they have no legal right, title of authority as all the other parts have been damaged due to their own negligence but the OP No.1 was adamant with his illegal demand of amount and further threatening to charge Rs. 2000/- per day for parking the vehicle in the Agency, which is quite illegal and against the natural justice. When the OPs did not repair the vehicle and had been threatening to charge illegal amount from the complainant, the complainant served a registered AD legal notice dated 13.10.2010 to the OPs requesting them to repair the vehicle without charging any further illegal amount from the complainant in any manner and to handover the delivery of vehicle within 3 days of receipt of notice but the OP No.1 despite complying with the notice has sent a false and evasive reply, giving false facts and demanded illegal amount from the complainant for which the OP No.1 has no legal right title or authority. However, the car is lying with OP No.1 since 25.09.2010. Hence this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable as the car in question is being used as a Commercial Taxi, the defects has developed on account of failure on the part of complainant to get the same serviced even once after the final 3^rd  free service on 16.09.2008; complainant has not come to this Forum with clean hands, the complainant has concealed the most material facts as to the date of purchase of car, which is 21.09.2007 and has lodged the complaint on the ground of the car being within warranty, whereas the warranty period has already lapsed on 20.09.2009. Moreover the car is lying in the parking of the OP No.1 for the failure of the complainant to make the payment of legitimate repair charges as well as parking fee @ 250/- per day chargeable from 06.10.2010 and on merit it has been stated that repair of Turbo Kit is not the job of the op no.1. The op no.1 only undertook to hand over the turbo kit to a person from Saharanpur (UP) who was engaged and hired by the son of the complainant for repair of same himself. However, it has been admitted that Turbo Kit was not working properly as the car was missing while starting. It has been further admitted that complainant paid Rs.4500/ as advance payment to the person engaged from Saharanpur for repair of Turbo Kit.  But, the actual total repair charges/cost came to Rs.6200/- and the balance payment was made by the Vinay Saini from his personal pocket on the promise of the complainant to pay the same later on to him. But, the same has not been paid by the complainant. It has been further mentioned that due to the failure of the complainant to get the car repaired and serviced at regular intervals that “GAAD” i.e. dirty mobile oil was gathered in the head. When the complainant was informed about that, the complaint requested to remove the “Gaad” .As the bolt has been rusted very badly for non service of the car, the bolt got broken and to remove the broken part of the broken bolt ,there was no way out but to open the head, which was opened under the instruction of the complainant. On opening the head, it was found that the heater of the same has also damaged. The damaged heater was shown to the complainant, who arranged the same from Market on his own expenses for installing the same in the car. It has been further mentioned that the car has been standing ready since 05.10.2010 for being delivered to the complainant and the complainant was duly informed to collect the same after payment of the repair amount. As the complainant had failed to collect the same, so, he was asked through AD letter dated 20-10-2010 and again by remainder on 25-10-2010 and 01-11-2010, beside telephone calls, and lastly prayed for dismissal of complaint being no deficiency in service or unfair trade practice on the part of op no.1. 

4.                     OP No.2 filed its written statement by taking defence that the OP No.2 deals with all its dealers on principal to principal basis and the concerned dealer is responsible for error/omission/representation, if any, at the time of retail sales/services/repairs of the car. The liability of OP No.2 being the manufacturer of the Hyundai cars is limited and extends to its warranty obligations alone and reiterated the stand taken by OP No.1 and lastly prayed for dismissal of complaint.   

5.                     As the complainant failed to lead any evidence, hence her evidence was closed by court order on 22.01.2016. However, at the time of filing of complaint, complainant filed her affidavit as Annexure  CX, and documents such as Photo copy of Legal notice dated 13.10.2010 Annexure  C-1, Postal receipts Annexure  C-2, Photo copy of RC Annexure C-3, Photo copy of invoice of Rs. 6490/- Annexure C-4, Letter dated 20.10.2010 Annexure  C-5 with the complaint in support of her complaint.

6                      On the other hand counsel for OP No.1 tendered into evidence affidavit of Shri Rahul Khanna, Director M/s Khanna Car Plaza as Annexure RW/A and documents such as Photo copy of repair order dated 29.02.2008 as Annexure R-1, Photo copy of repair order dated 16.09.2008 as Annexure R-2, Photo copy of Hundai Warranty policy as Annexure R-3, Photo copy of letter dated 20.10.2010 as Annexure R-4, Photo copy of letter dated 25.10.2010 as Annexure R-5, Photo copy of letter dated 01.11.2010 as Annexure R-6, Copy of invoice dated 19.10.2010 as Annexure R-7 and closed the evidence on behalf of OP No.1.

7.                     Counsel for Op No.2 tendered into evidence affidavit of Mr. Manish Kumar, Assistant Manager (Legal) Hundai Motor India Ltd. as Annexure RW2/A and documents such as Photo copy of Letter dated 20.10.2010 as Annexure R2/1, Photo copy of dealership agreement as Annexure R2/2, Photo copy of Hyundai warranty policy as Annexure R2/3 and closed the evidence on behalf of OP No.2.

8                      We have heard the counsel of both the parties and have gone through the pleadings as well as documents placed on the file carefully and minutely. The counsel for the complainant reiterated the averments mentioned in the complaint and prayed for its acceptance whereas the counsel for OP reiterated the averments made in the reply and prayed for dismissal of complaint.

9                      It is not disputed that the complainant’s son brought his Hyundai Car Model 2007 Verna for its repair on 25-9-2010 in the workshop of the op no.1 and the employee of the op no.1, on inspection found that the Turbo Kit of the car in question was not working properly. It is also not disputed that complainant paid Rs.4500/ as advance payment to the so called person engaged from Saharanpur for repair of Turbo Kit in the presence of Sh. Vinay Saini head mechanic and G.M Parveen Sharma who advised to the complainant that they will repair the turbo kit instead of installing new turbo kit on 27.09.2010 without any receipt as the op no. 1 has admitted this fact in its written statement. 

10                    The only grievances of the complainant is that head of the car, out of four studs one stud and all three heaters of the car were  damaged due to welding heat while repairing the turbo kit due to the fault of the mechanic of the Op no.1 beside this a screw stud of oversize than that of actual size was also placed and when the son of the complainant requested them to change the Head of car as the car was within warranty period and the head was  damaged due to their own fault then the  employee of the op no.1 demanded further a sum of Rs. 3000/- from the son of complainant on account of fitting of heaters which was paid by him. And when on 12.10.2010 the son of the complainant namely Gurpreet Singh and Naveen Malik visited the agency for taking delivery of the car than they found that the car was still lying in opened condition and op no.1 demanded more amount of Rs. 6490/-as per Bill/invoice no. B201003892 dated 08-10-2010 (Annexure C-5) for replacement of other parts, for which they have no legal right, title of authority as all the other parts have been damaged due to their own negligence but the OP No.1 adamant with his illegal demand of amount Rs. 6490/-as per Bill/invoice no. B201003892 dated 08-10-2010 (Annexure C-4) which constitute the deficiency in service and unfair trade practice on the part of op no.1 and prayed for acceptance of the complaint

11                    On the other hand Ld. Counsel for the op no.1 hotly argued that complainant purchase the car on 21.09.2007 and has lodged the complaint on the ground of the car being within warranty, whereas the warranty period had already lapsed on 20.09.2009. Ld. Counsel  further argued that complainant was used the car in question as a Commercial Taxi and draw our attention towards the invoice/ bill (Annexure R-7/C-4) in which the mileage run by car in question was shown as 64612 Km on the date of handed over the car for repair on 25-09-2010.  Defects were developed on account of failure on the part of complainant to get the same serviced even once after the final 3^rd free service on 16.09.2008 at the mileage 21920 KM (Annexure R-2) and due to that “GAAD” i.e. dirty mobile oil was gathered in the head. When the complainant was informed about that, the complaint requested to remove the “Gaad” .As the bolt was rusted very badly for non service of the car, the bolt got broken and to remove the broken part of the broken bolt, there was no way out to open the head, which was opened under the instruction of the complainant. On opening the head it was found that the heater of the same has also damaged. The damaged heater was shown to the complainant, who arranged that same from Market on his own expenses for installing the same in the car. It has been further argued that the car was standing ready since 05.10.2010 for being delivered to the complainant (Annexure R-4) after payment of the repair Bill/invoice no. B201004044 dated 19-10-2010 amounting Rs11468/-.(Annexure R-7) but the complainant refused to pay the same and further  was failed to collect the same, so, he was asked through AD letter dated 20-10-2010(Annexure R-4) and again by remainder on 25-10-2010(Annexure R-5)  and 01-11-2010 (Annexure R-6) beside telephone calls and lastly prayed for dismissal of complaint being no deficiency in service or unfair trade practice on the part of op no.1. 

12                    After hearing both the parties, we are of the considered view that it is duly evident from the detailed facts/ grievances mentioned in the complaint itself that there is a deficiency in service and unfair trade practice on the part of the OP no.1.  The version of the op no.1 is totally not believable that that complainant was using the car in question as a Commercial Taxi as no cogent evidence has been filed by the op no.1 to prove the same. Mere the fact that the car in question ran 64612 Km within near about 3 years since its purchase i.e. 21-9-2007 to 25-09-2010, it cannot be said that complainant used the car in question as Taxi for Commercial purpose. Further the 2^nd version of the op no.1 is also not believable that repair of Turbo Kit was not the job of the op no.1 and op no.1 only undertook to hand over the turbo kit to a person from Saharanpur (UP) who was engaged and hired by the son of the complainant himself for repair because when the op no. 1 is authorized service centre of the op no.2 importer/manufacturer of the car in question then how they can say that it was not the job of the op no.1 to repair/replace the turbo kit of the car in question. From the other angle also, when the op no. 1 was not having any such facilities to repair the turbo kit then why the op no. 1 accepted/ retained the car in question for repairing the same. Furthermore, no cogent evidence has been filed by the op no.1 to prove that prior to opening the head of the car, complainant gave any written consent that op no. 1 will not be responsible for any further damages to the parts of the vehicle i.e. to the head or heater etc.  whereas op no. 1 has admitted in para no.4 of its written statement on merit that “as the bolt was rusted very badly for non service of the car, the bolt got broken and to remove the broken part of the broken bolt there was no way out to open the head, which was open under the instruction of the complainant and further on opening the head, it was found that the heater of the same was also damaged”. Meaning thereby that head of the car, out of four studs one stud and all three heaters of the car were  damaged due to welding heat while repairing the turbo kit due to the fault of the mechanic of the Op no.1, beside this a screw stud of oversize than that of actual size was also placed. Even the Op No 1 has also not disclosed the name of so called person of Saharanpur to whom they handed over the Turbo Kit and paid Rs 4500/- for repairing the Turbo kit and further no Job sheet has been place on file by the op no.1. No doubt that car in question of the complainant was out of warranty and the op no.1 was entitled to get the repair charges whatsoever from the complainant but at the same time the complainant cannot be held liable for the loss occurred due to negligence on the part of the op no.1. Further it was the duty of the op no.1 firstly to disclose the estimate of total expenses to the customers and after obtaining the consent; they can start the repair work. But in this case, nothing has been placed of file to prove that OP No. 1 did the needful or not?

13                    Further the plea of the Op no.1 that complainant was liable to pay Rs 11468/- as per repair Bill/invoice no. B201004044 dated 19-10-2010 (Annexure R-7) is also not tenable as from the perusal of the repair bill bearing no. bill/invoice no. B201003892 dated 08-10-2010 (Annexure C-4) it is duly evident that complainant was supposed to pay amount Rs. 6490/- only not Rs. 11468/-. As the car of the complainant was ready to be delivered on 05/06-10-2010, so, the op no.1 might have prepared the repair bill amounting to Rs. 6490/- on 8-10-2010 to hand over the same to the complainant. In the second bill dated 19-10-2010,  labour charges had been increased from Rs 2500/-  to  Rs 5250 ( Rs4000/- plus 1250/-) and 2-3 new items had been added where as it is admitted that no fresh work was done between the period of 1^st bill dated 8-10-2010 and 2^nd bill dated 19-10-2010 so we are of  considered view that 2^nd bill dated 19-10-2010 amounting Rs.11468/- has been falsely prepared by the op no.1.

14.                   Further the complainant handed over his car for repair to the op no.1 on 25-09-2010 and the same was repaired on 05-10-2010 (as per version of the op no. 1 himself though not admitted because it is duly evident from the legal notice dated 13-10-2010 (Annexure C-1) issued by the counsel for complainant to repair the car of complainant, as till that date car was not repaired and under the compelling circumstances, the complainant was forced to take legal steps. Generally a lay man avoids or remains away from the courts / police stations till the circumstances do not force him to do so.  

15.                   In the circumstances noted above, we are of the considered view that the act and conduct of the op no.1 was not fair which constitute deficiency in service and unfair trade practice on the part of OP no.1. Hence, we have not option except to partly allow the complaint of complainant.

16.                   Resultantly, we partly allow the complaint of complainant and direct the OP no.1 to comply with the following directions within 30 days from the communication of this order:

I)          To charge only Rs. 6490/- as per bill dated 08.10.2010 from the complainant against repair of car in question.

II).        To pay Rs. 10,000/- as compensation to the complainant for mental agony, harassment as well as playing unfair trade practice.

III)        To pay Rs. 1000/- as litigation expenses.

17.                   The aforesaid directions must be complied with by the OP No.1 within the stipulated period otherwise the complainant is at liberty to initiate the proceedings as per law. The complaint is decided accordingly in the above terms. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court 09.08.2016.           

                                                                                    (ASHOK KUMAR GARG )

                                    (S.C.SHARMA)                        PRESIDENT

                                     MEMBER