Advocate Mahesh Kabra for the complainant
M/s. Khurjekar & Associates for the Opponent No.1.
Advocate Manish Bhatnagar for the Opponent No.2
Advocate Vivek Gondikar for the Opponent No. 3
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 19th March 2013
This complaint is filed by the aggrieved consumer against the Dealer of the Motor Car – M/s. Kothari Cars, Manufacturer of car - M/s. Hyundai Motors India Ltd. and the company of Tyre for deficiency in service. Brief facts are as follows –
[1] The complainant has purchased Motor Car – Hyundai Getz Prime Car of Hyundai Motor company. The Opponent No.1 is the dealer, the Opponent No.2 is the Manufacturer and the Opponent No. 3 has provided tyre for the said car. The complainant has reported various problems and defects in the car to the Dealer but Opponents have not resolved the problems and cured the defects even after repeated requests from the complainant. The car was serviced by the Dealer as per the terms and conditions for three times. But all the defects remained as it is. Mainly there was defect of wobbling and low mileage. Even after these defects were reported to the Dealer from time to time these were not rectified. Then the car was brought to the Tyre Company who has provided the tyre to the said car. But evenafter servicing of the said tyre the defects remained as it is. It is alleged by the complainant that the vehicle is defective. The Opponents have not rendered proper service hence he is entitled for replacement of the car or the price of the car with interest as well as compensation on the ground of mental and physical torture and costs of the proceeding.
[2] All the three Opponents appeared before the Forum and filed written versions separately. They have denied the contents of the complaint in toto. According to the Opponent No.3 i.e. the Tyre Company there was no contract between himself and the complainant. Complainant is not consumer hence complaint is not maintainable against the Opponent No.3. It is also contended that the wobbling cannot occur due to defective tyre. While inspecting the car it was found that there was no balancing and alignment hence that result wobbling. The complainant himself is negligent for handling the car. Hence Opponent No.3 is not liable for any deficiency in service as there was no contract between himself and the complainant.
The Opponent Nos. 1 and 2 have also denied the contents of the complaint. According to them there was no manufacturing defect in the car and the car was met with an accident. The wheel rim was bent. The tyres were worn due to disturbed wheel alignment and disturbed mechanical system. So called defects were cured by the Opponents. The complainant had used the said car for long period and run the car for 35504 kms and in that circumstances the car cannot be replaced and the complainant is not entitled for the price of the car. According to the opponents there was no any fault of opponents hence there is no deficiency in service and defects in the goods and the complaint is liable to be dismissed.
[3] After scrutinizing the documentary evidence, pleadings of the parties, affidavits which are filed on behalf of both the parties, hearing the oral argument and considering the legal position following points arise for my consideration. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant has proved that the Opponent Nos. 1 to 3 caused deficiency in service by selling defective car to the complainant ? | Partly proved against the Opponent Nos. 1 and 2. |
2 | Whether the complainant is entitled for replacement of the car or refund of entire cost of car from the Opponents ? | In the negative |
3 | What Order ? | The complainant is entitled for compensation |
REASONS
POINT NOs. 1 To 3 :-
The undisputed facts in the present proceeding are that the complainant has purchased the car in dispute from Opponent No.1 who is a Dealer of Opponent No.2 on 15/05/2008 for Rs.6,50,000/-. The Opponent No.3 has provided tyres to the Opponent No.2 which were fitted for the said car. It is the case of the complainant that there were inherent defects in the car and those were brought to the notice of the Dealer immediately at the time of first free service. But it reveals from the documentary evidence that the complainant has informed to the Opponent No.1 about the defect of wobbling in the car for the first time on 24/09/2009 by e-mail. At that time he has mentioned in the e-mail that the car is one year and four months old. It reveals from further document that representative of the Opponent No.1 attended the defects in the disputed car on 26/09/2009. At that time they assured that the defects will be cured in the next servicing. The next document dated 26/09/2009 is Satisfactory Note and it reveals from the same that the desired work was carried out by the Opponent No.1 and the complainant was satisfied. But he has mentioned in writing further that the representatives i.e. Mr. Ajay and Mr. Vinayak assured him that problems will be rectified in next servicing. On 13/01/2010 again complainant informed that the defect of wobbling is continued. On 16/12/2008 the car was brought to the workshop of Opponent No.1 which is situated at Bopodi for the complaints of wobbling, bent of wheel, rim and tear and wear of tyres. Those repairs were carried out by the Opponent No.2 and the car was returned. It was also brought on record by the complainant that the tyres of the car were inspected by the Opponent No.3 i.e. M/s. Goodyear India Ltd. as it was found that due to wear and tear of tyres the problem of wobbling occur. Accordingly the Opponent No.1 and 3 informed this fact to the complainant. The tyres were also replaced and the trial of the said tyres was taken by the complainant. But the complainant was not ready for the replacement and he took away his car alongwith old tyres.
According to the Opponents the initial problem of wobbling was rectified but when the car met with an accident in the month of December 2008 the rim wheel was bent. The complainant himself did not take care as regards alignment and balancing of the wheel that causes tear and wear of the tyres and accelerated problem of wobbling. It is the case of the complainant that there was bent to the rim of the wheel due to ditches on the road. According to the Opponents unless and until there is impact of force or dash, there cannot be bent of the rim of the wheel. It is significant to note that the rim of the wheel is very sturdy and in ordinary course it shall not bent while passing car through ditches and the legitimate inference can be drawn that there must have been certain accident at the hand of the complainant which accelerate the problems in the car. It is also pointed out by the Opponent No.3 that there was no proper wheel balance and alignment and on that count there was wear and tear of the tyres. That also causes problem of wobbling. If the entire evidence on record is minutely scrutinized it reveals that there was certain problem of wobbling before the accident. The Opponents have not produced documentary evidence on record to prove that the said problem was rectified by them. Hence I held that there was certain amount of deficiency in service which was rendered by the Opponent Nos. 1 and 2. The Opponent No.3 is Tyre Manufacturer and he is not responsible for the problems which were met by the complainant. However in the present proceeding it appears that there must have been an accident of the car at the hands of the complainant. Hence the problem was accelerated. In such circumstances it cannot be said that the defects in the car was caused only due to deficient service at the hands of the Opponent Nos. 1 and 2. But the complainant himself is also responsible for the defects in the car.
The learned Advocate for the complainant argued before me that the complainant is entitled for replacement of the car or refund of price. But it reveals from the record itself that so called problem was occurred for the first time after one year and four months as per the record produced by the complainant. And thereafter after eight months the accident of the car took place which accelerated the said problem. In such circumstances it cannot be said that there was defect in the car since the date of purchase. It is true that the owner of the car cannot be happy if his new car has certain manufacturing defect or inherent problem. But it reveals from the record itself that the said problem occured for the first time after one year and four months. In these circumstances the complainant is not entitled for the refund of the cost of the car.
The learned Advocate for the complainant also brought to my notice that the said car was withdrawn from the market by the Opponent No.1. This indicates that there were defects in the said car. It is very difficult to accept this contention as it is common experience that manufactures are always trying to introduce new model of vehicle in the market by withdrawing previous model. It is not pointed out that all the vehicles of the same model were defective and having similar types of problems. Hence that argument cannot be accepted. In the result I held that for the defect of the said car complainant is entitled to get compensation of Rs.1,00,000/- from the Opponent Nos. 1 and 2. He is also entitled to get compensation for mental and physical torture to the tune of Rs.10,000/- and costs of Rs.5000/- for the present proceeding from the Opponent Nos. 1 and 2.
The learned Advocate for the complainant argued before me that the complainant has purchased new brand luxury car and there were defects in the car since beginning. Hence he is entitled for replacement of the car or refund of cost of car. He has placed reliance upon ruling reported in 2008 [1] ALJ of Hon’ble National Consumer Disputes Redressal Forum in case of Hyundai Motors India Ltd. v/s. M/s. Affiliated East West Press (P) Ltd. and Anr.
In that ruling it has been observed that if there was inherent defect in the car since beginning then the manufacturer has to replace the vehicle if the defect is incurable. It reveals from the facts of the said ruling that defects of emitting smoke could not be rectified in the said vehicle and that was found within two months from the date of purchase of vehicle. In that circumstances it has been observed that the complainant is entitled for the cost of vehicle.
But it reveals from the present proceeding that the complainant has used the car for the period of five years. The car was run on road for more than 27000 kms. In such circumstances it is very difficult to accept the contention of the complainant that there was inherent defect in the car as alleged and for that reason he is entitled for cost of the car.
I answer points accordingly and pass the following order –
:- ORDER :-
1. The complaint is partly allowed against Opponent Nos. 1 and 2.
2. The complainant is entitled to receive Rs.1,00,000/- towards compensation from Opponent Nos. 1 and 2 jointly or severally within six weeks from the date of receipt of copy of order by the Opponent Nos. 1 and 2.
3. The complainant is entitled to receive Rs.10,000/- towards compensation for mental and physical torture and Rs.5000/- towards costs of proceeding from Opponent Nos. 1 and 2 jointly or severally within six weeks from the date of receipt of copy of order by the Opponent Nos. 1 and 2.
4. There is no order as against the Opponent No.3.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 19/03/2013
