Haryana

Karnal

CC/663/2021

Parveen Kumar - Complainant(s)

Versus

M/s Rahul Pam Private Limited (Hyundai) - Opp.Party(s)

S.S. Moonak

30 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KARNAL.

 

                                                        Complaint No. 663 of 2021

                                                        Date of instt.30.11.2021

                                                        Date of Decision: 30.11.2023

 

Parveen Kumar son of Shri Jai Parkash, resident of village Munak, near Panchyat Bhawan, District Karnal. Aadhar no.2546 6708 4004).

 

                                               …….Complainant.

                                              Versus

 

1. M/s Rahul Pam Pvt.Ltd. (Hyundai), adjoining Sudhanshuji Maharaj Ashram, opposite Himalaya Cold Store, G.T. Road, Karnal through its proprietor.
2. Hynudai India Pvt. Ltd., Unit no.C-113-114, First floor, office Suites Elante, Plot no.178-178-A, Industrial and Business Park, phase-I, Chandigarh: 160 002.
3. M/s Hyundai India Motors (P) Ltd., plot C-11, Sector-29, City Center, Gurugram: 120 001.

                                                                      …..Opposite Parties.

 

Complaint Under Section 35 of Consumer Protection Act, 2019.

 

Before   Sh. Jaswant Singh……President

      Sh. Vineet Kaushik…….Member

      Dr. Suman Singh……..…Member

          

 Argued by: Shri S.S. Moonak, counsel for the complainant.

                    Shri Rahul Bali, counsel for the OP no.1.

                    Shri Kavinder Tyagi, counsel for the OPs no.2 & 3.

 

                    (Vineet Kaushik, Member)

ORDER:   

                

                The complainant has filed the present complaint Under Section 35 of Consumer Protection Act, 2019 against the opposite parties (hereinafter referred to as ‘OPs’) on the averments that complainant has purchased a Hyundai Creta Car 1.4, bearing registration no.HR-40-G-9792 on 19.02.2019 for a total consideration of Rs.11 lakhs. Complainant has spent Rs.50,000/- from his own pocket on fixing of accessories etc. of the said car. Complainant got services of the car time to time as per schedule of the OP no.1. On 07.06.2021, complainant got extended the warranty period from 90,000 kms to 1,40,000 kms, after paying Rs.29,377/- to the OP no.1. The car was being used by the complainant for his personal use. At the time of service of the said car in the month of June, 2021, when the car had covered 60000 kilometer, the complainant took the said car for service, after getting the service done, the engine of the car did not function satisfactorily, it started giving problem i.e. it was not giving the proper pick up, mileage and further strange sound started coming from the engine. The engine of the car started consuming more oil (i.e. mobil oil). Complainant again took the car to the workshop of the OP no.1 and told the concerned official about the defect in the car. After inspecting the car, the officials of the OP no.1 told that there is no defect in the car and also misbehaved with complainant by using abusive language. One official namely Ms. Shilpa also showed her inability, spite the fact, the complainant had paid an amount of Rs.29377/- on account of extended warranty. The car was giving poor performance from the very beginning. Thereafter, complainant got a telephonic message from OP no.1 in the 2^nd week of October, 2019, the official of the OP told the complainant that the service of the car is due and told the complainant to bring the car for its service. Complainant took the car to the premises of OP no.1 and told about the defects in the functioning of the car, engine, pick up etc. The official of the OP no.1 admitted in the presence of complainant that there is defect in the engine, due to which the car is giving trouble. From the month of June, 2021 to October, 2021, complainant made several telephone calls and also made personal visits alongwith car for its necessary repair etc. but nothing was done by the OP no.1. Thereafter, complainant received a another call on 26.10.2021, the said call made by Ms. Madhu and asked the complainant to bring the car in the premises of OP no.1. Accordingly, complainant stationed his car in the premises of OP no.1 as advised by the officials of OP no.1 on 28.10.2021, since then the car is stationed there. OP no.1 demanded an amount of Rs.10,000/- in advance in order to start the repair of the car, despite the fact that the car was having extended warrantee upto 140000 Km. It is further averred that the car is already under the warrantee period, there was defect in the engine from the very beginning, due to which the car was giving poor performance. Due to this act and conduct of the OPs, the complainant has suffered great financial loss as well as harassment, humiliation, mental pain and agony to the hands of the OPs.

2.             It is further averred that under the similar condition, where the engine of the car was defective, the OPs have replaced the said car to one Manjeet Singh, resident of village Dhanoli, District Karnal. The complainant has taken the loan from State Bank of India and is paying the EMIs from his own pocket. Then complainant sent a legal notice dated 17.11.2021 to the OPs but it also did not yield any result. In this way there is deficiency in service and unfair trade practice on the part of the OPs. Hence, complainant filed the present complaint seeking direction to the OPs to replace the car with a new one as the same  was/is having manufacturing defect from the very beginning or to pay Rs.11,50,000/- as the cost of the car alongwith interest, to pay Rs.5,00,000/- as compensation on account of mental pain, agony and harassment  and litigation expenses etc.

3.             On notice, OP no.1 appeared and filed its written version raising preliminary objections with regard to maintainability. On merits, it is denied by the OP that complainant got serviced his vehicle in June, 2021 as alleged, rather the complainant opted for service on 28.05.2021 when the vehicle had covered 61764 KMs, moreover he requested for specific jobs which included paid service, dry wash, general check up (after final inspection), AC filter check. The service was satisfactory done to the satisfaction of the complainant. The complainant was never threatened as alleged rather OP company is best known for its good customary relations. It is further pleaded that complainant also visited for general check up brake pad change on 27.07.2021 when the vehicle had covered 66254Km. Intentionally this visit was not disclosed, however, in the month of October i.e. 28.10.2021, the customer revisited when the vehicle had covered 73828 Kms wherein for the first time he had put forward complaint of poor pick up and engine oil problem. It is further denied that the necessary repairs were not carried on the visits, the record mentioned above is itself explanatory and goes to prove that the vehicle was well attended as and when the complainant visited the workshop of OP no.1. It is further pleaded that the vehicle is perfect repairable condition and has absolutely no manufacturing defect. Moreover, there had been no allegations of problem before October, 2021. The vehicle was to be repaired and there was shortage of a spare part, the customer left his vehicle in premises of OP no.1 rather showing good customary relations he was given another vehicle on behalf of OP no.1 for using the same as alternate vehicle. In the email dated 15.11.2021, complainant has only mentioned that he has grievance with regard to non-repairing of the vehicle on time. He had not mentioned any alleged manufacturing defect in his email. OPs are always ready to take car/repair/service the vehicle subject to consent of the customer, they also mentioned that warranty clause would also be applicable as per terms but the complainant was adamant and was not cooperating with the OP no.1. There is no deficiency in service and unfair trade practice on the part of the OP. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.        

4.             OPs no.2 and 3 filed their separate written version pleading therein that complainant purchased the car in question on 19.02.2019. No amount was paid to the OPs for alleged extended warranty. It is further pleaded car is being used by complainant for commercial purposes, which is also event from the fact that it has already covered approximately 73828 kilometers within two years of purchase of the car. Even otherwise, if there was/is manufacturing defect in the vehicle, it could not have covered such extensive running mileage in such a short period of time. It is further pleaded that complainant is liable to be dismissed on the sole ground that the complainant has not filed any report of expert to even remotely suggest that there are manufacturing defect in the car as alleged. In the absence of compliance of the mandatory requirement as contemplated under section 38 (2) (c) of the Consumer Protection Act, 2019, the complaint is liable to be dismissed. It is further stated that OPs are neither necessary nor proper party to the present complaint nor any cause of action has arisen against them. The liability of the OPs being manufacturer of the Hyundai cars is limited and extends to its warranty obligations/manufacturing defects/performance issues and error/omission/misrepresentation, if any, at the time of retail sales of the car on the part of the dealer cannot be fastened upon the OPs. OPs could not be held liable for acts and omissions of dealer. It is further pleaded that under owner’s manual, it is clearly stated that under warranty, authorized dealer shall either repair or replace, any Hyundai genuine part that it acknowledged by HMIL to be defective in material or workmanship within warranty period. It is further pleaded that according to records, the vehicle was never reported in the month of June, 2021 as alleged. On 28.05.2021, the vehicle was reported for routine maintenance, with no issue relating to alleged satisfactory function was reported by the complainant. Thereafter, subject vehicle was reported on 27.07.2021 for brake pad replacement and 28.10.2021 for routine maintenance. Again on 28.10.2021 at running mileage of 73828 kms, the vehicle was reported for periodic maintenance service. The allegations of consuming more engine oil are an afterthought on the part of the complainant and hence, denied.  OP no.1 on 28.10.2021 had placed the order for the requisite parts and duly informed the complainant about the 15-20 days estimate arrival time of said parts due to festive season. In order to avoid any inconvenience, complainant was also provided with a courtesy vehicle by the OP no.1 but it was complainant who voluntarily had returned the said courtesy vehicle stating inability to drive the same. Vide email dated 14.12.2021, OP no.1 sought the approval from the complainant to repair his vehicle, but it was complainant who for the reasons best known to him had not given the approval. There is no deficiency in service and unfair trade practice on the part of the OPs. The other allegations made in the complaint have been denied and prayed for dismissal of the complaint.

5.             Parties then led their respective evidence.

6.             Learned counsel for the complainant has tendered into evidence affidavit of complainant Ex.CW1/A, copy of delivery note Ex.C1, copy of temporary RC Ex.C2, copy of RC Ex.C3, copy of tax invoice Ex.C4, copy of extended warranty Ex.C5, copy of receipt service voucher of Rs.29,337/- Ex.C6, copy of emails Ex.C7, copy of legal notice Ex.C8, postal receipt Ex.C9, treatment record of Suriye Partap Ex.C10 to Ex.C25, report of expert Shri J.K. Sharma Engineer Ex.C26, receipt of amount Ex.C27 and closed the evidence on 01.08.2022 by suffering separate statement.

7.             On the other hand, learned counsel for the OP no.1 has tendered into evidence affidavit of Romi (HR Manager) Ex.OPW1/A, copy of repair orders dated 28.05.2021, 27.07.2021 and 28.10.2021 Ex.OP1 to Ex.OP3, copy of email Ex.OP4 and closed the evidence on 19.05.2023 by suffering separate statement.

8.             Learned counsel for the OP no.2 has tendered into evidence affidavit of Hemant Makkar Manager Ex.OP2/A, copy of warranty policy Ex.OP2/1, copy of repair order dated 27.07.2021 Ex.OP2/2, copy of estimate dated 21.02.2019 Ex.OP2/3, copy of repair order dated 28.10.2021 Ex.OP2/4, copy of email Ex.OP2/5 and closed the evidence on 19.05.2023 by suffering separate statement.

9.             We have heard the learned counsel for the parties and perused the case file carefully and have also gone through the evidence led by the parties.

10.           Learned counsel for complainant, while reiterating the contents of the complaint, has vehemently argued that complainant purchased the car in question from the OP no.1 amounting to Rs.11,00,000/-. From the very beginning the car was having many defects and the matter was brought to the notice of the OP No.1 and OP No.1 assured the complainant that the defects will be removed after running the vehicle and completion of free services but despite that, no improvement will be seen in the car and the defects remained as it is. On 07.06.2021, complainant got extended the warranty by paying an amount of Rs.29,377/- to the OP no.1. In the month of June, 2021, the complainant took the said car for service, after getting the service done, the engine of the car did not function satisfactorily. The official of the OP no.1 admitted in the presence of complainant that there is defect in the engine, due to which the car is giving trouble. From the month of October, 2021, to till date, the car of the complainant lying in the premises of the OP No.1 in dismantle condition but till date the OPs neither removed the defect nor refund the costs of the car to the complainant.  During the pendency of the complaint, the vehicle in question got inspected by Shri J.K.Sharma, Surveyor and Loss Assessor in the presence of the representative of the OPs and who after inspection of the car, found that the vehicle in question is having a manufacturing defects which cannot be rectify at any costs and lastly prayed for allowing the complaint.

11.           Per contra, learned counsel for the OP no.1, while reiterating the contents of written version, has vehemently argued that on 28.10.2021, the customer visited first time and put forward complaint of poor pick up and engine oil problem. The vehicle was well attended. OPs are always ready to repair the vehicle subject to consent of the customer, they also mentioned that warranty clause would also be applicable as per terms but the complainant was adamant and was not cooperating with the OP no.1 and lastly prayed for dismissal of the complaint.         

12.           Learned counsel for the OPs no.2 and 3, while reiterating the contents of written version, has vehemently argued that no amount was paid to the OPs for alleged extended warranty. The car is being used by complainant for commercial purposes. He further argued the car has covered approximately 73828 kilometers within two years of purchase of the car, if there was/is manufacturing defect in the vehicle, it could not have covered such extensive running mileage in such a short period of time. The complainant has not placed on file any expert opinion to ascertain the manufacturing defect in the vehicle in question and lastly prayed for dismissal of the complaint.

13.           We have duly considered the rival contentions of the parties.

14.           Complainant purchased the vehicle in question from the OP no.1 for the total sale consideration of Rs.11,00,000/-.

15.           As per the version of the complainant, there is a manufacturing defect in the vehicle in question which could not be rectified by the OPs despite their best efforts. As per version of the OPs, vehicle is not having any manufacturing defects.

16.           The car in question purchased by the complainant on 19.02.2019. Complainant got extended the warranty of car by paying an amount of Rs.29,377/-, vide receipt Ex.C6. As per version of the complainant, from the very beginning the car is having so many defects but despite the several requests, the defects could not be removed by the OPs and from October, 2021 to till date, the car is lying in the premises of the OP No.1 in dismantle condition. 

17.           In order to prove his version, complainant moved an application before this Commission for seeking permission to get the vehicle examined from an Automobile Engineer. The application of complainant has been allowed vide order dated 05.05.2022, and the vehicle in question was inspected by Engineer J.K.Sharma, who is qualified Automobile Engineer, Valuer and Consultant. After inspecting the vehicle, said engineer has prepared report Ex.C26 dated 07.06.2022 and gave his observation and opinion, which is reproduced as under:-

        Inspection: Observation and opinion:

       1.      The inspection of car was carried out in presence of owner and opinion and versions were discussed openly. The records were taken. The main complaint which was observed is Smoke Emission, Engine Noise and Engine Vibration.

2.     The car was lying in dismantled condition. The engine unit was in semi repair condition and the lying parts were covered by the carbon, burnt oil sludge. The big end and small end bearing were worn out, there was ridge cutting on cylinder liner. The Head Assay. Was refaced the crank shaft, valve set, bearing assy, are to be replaced. The major overhauling and through checking is required.

3.     As per my observation, on the basis of discussion, the engine unit was seized due to engine oil starvation and overheating, which may be due to shortage/low engine oil level. Chocked strainer, faulty oil pump, chocked oil gallery, contaminated engine oil, leakages of lubricant. Faulty system, bad work manship, the car has completed more than 60000Kms. Hence the damages were not all of sudden but the result of regular wearing of concerned parts. The cause are contributing to manufacturing defect, workman ship, spurious oil and parts.

4.     The pressure sensor in this case may play a role in the case, there is only  one sensor in engine block and can shw the adequate pressure but the lower half of the engine might have been starving for the oil at the same time causing seizer of big end bearing and other moving pats. The blockage in oil gallery or faulty oil supply system may cause to damage the engine.

        No problem was diagnosed before starting the repair whether it was due to sensor, due to contamination, due to faulty system or due to blockade in oil gallery, the engine can be overhauled but again the same problem may be there. It seems to be a case of blockage in the oil galleries, lack of lubrication and overheating which has led to this failure. Lack of power generation, low pick up and different type of rattling sound may contribute to more mechanical damages. It is possible to not have an oil pressure alarm and still have oil pressure issues going on, usually due to blockages. Better make sure, check real problem thoroughly for any potential blockage in all oil connections.

Conclusions:-

1. In consideration to the above mentioned observations which are of fundamental in nature, I am of the firm opinion that the damages mentioned in the complaint, detailed by the repairer and as per present condition of the car may be of multiple reasons contributing to the workman ship or manufacturing or material use. Further, it is also considered that it will highly affect the performance of the car even after the repair.
2. The engine is being reconditioned in local workshop will definitely effect the performance. The warranty on engine and parts will not valid after the local repairs. The facing of engine block, cylinder liner boring/Honing, crank grinding/re-sizing, oversize piston, resetting of valve seats will completely change and manufacturer will not allow the repair in local market.
3. Even if seemingly repaired in the short term, without finding the proper reasons, these may cause serious harm to the car engine and body, and the user overtime.
4. The car would enquire very frequent visitations to the automobile workshops until the repair work or replacement of faulty unit done.
5. The car is lying in the workshop; the dismantled parts, removed parts, the scrap and salvage are stored which will damage the internal upholstery and fittings.
6. As the car is in completely dismantled condition, hence the other performance, suspension, steering, control units could not be checked. The tyres being in parked in stationery condition may be affected.

 

FINAL OPINION:

After going through the details submitted by the dealer, record of the service and repairs, performance and complaints by the owner of the car, physical inspection and discussion with all concerned. I am of the firm opinion that:

1. The owner of the car has purchased the captioned car and regularly visited the workshop for repair the servicing. After some time the car started the consuming engine oil and showing the excessive white smokes, the sensor of oil pressure does not showed the correct oil pressure in oil galleries. The defects could not be diagnosed properly. The engine noise and engine oil consumption went on higher side. It started the knocking and abnormal noises in the engine and finally got seized. The defects were manufacturing defects which could not be rectified in dealer workshop or deliberate delay caused the seizer of the engine. The engine was dismantled without finding the defect or actual fault. The parts of the engine machined and grind by a local machine shop without the permission of the owner. Now the engine parts are scattered ling with dealer. The warranty of the car will stand cancel if the engine will be repaired using over size and under size parts. The performance and value of the car will also highly depreciate after overhauling the engine. The other performance could not be check as the car is lying unattended and dismantled condition.
2. The report is being issued by the undersigned as an automobile engineer and based on physical inspection of the car, discussion with both the parties under the order of president DCDRC, Karnal.

The report is being issued without fear and favor based on the condition of the vehicle at the time of inspection and is not liable for any change or detritions in future.

 

18.           Above said report was prepared in presence of complainant as well as the representative of the OPs. The car in question is lying in the premises of the OP No.1 from October 2021 to till date in dismantle condition. This fact is very well proved from the photographs attached with the report of expert.  Neither the said report has been denied by the OPs nor the same has been rebutted by examining any other expert by the OPs.

19.           As per the expert report Ex.C26, from the very beginning, the car started consuming engine oil and shows excessive white smokes, the sensor of oil pressure does not showed the correct oil pressure in oil galleries. The defects could not be diagnosed properly. The engine noise and engine oil consumption went on higher side. It started the knocking and abnormal noises in the engine and finally got seized. The defects were manufacturing defects which could not be rectified in dealer workshop or deliberate delay caused the seizer of the engine. 

20.           During the course of arguments, learned counsel for the complainant submitted that the complainant is a contractor by profession and due to his busy schedule, he was dire need of the vehicle, so he had to purchase another car, only due to the negligent and carelessness act of the OPs.   Now, the complainant has no need for car in question and prayed for refund of cost of car alongwith other expenses occurred by the complainant. Learned counsel for complainant has also placed on file, the copy of statement of account, wherefrom it is crystal clear that the complainant has repaid the entire loan of the car in question.

21.           In view of the above discussion and keeping in view the facts and circumstances of the case, and evidence adduced by the parties, we have no hesitation to conclude that there was manufacturing defects in the car, which could not be removed by the OPs. The car is still lying in the premises of the OP No.1 in a dismantle condition. The OPs neither removed the defects from the vehicle nor handed over the same in roadworthy condition till date without any reason and rhyme. Thus, the act of the OPs amounts to deficiency in service and unfair trade practice.

22.           The complainant has claimed Rs.11,50,000/- cost of the car in question including accessories charges. The cost of the car was Rs.11,00,000/- only. The car was purchased by the complainant on 19.02.2019 and the same is lying with the OP No.1 since 28.10.2021 without any justified reason. The complainant has already purchased another car for his day to day need. Thus, the complainant is entitled for the cost of the car alongwith compensation for harassment, mental pain and agony and towards litigation expenses.

23.           Thus, as a sequel to abovesaid discussion, we allow the present complaint and direct the OPs to refund Rs.11,00,000/- as cost of the car in question to the complainant with interest @ 9% from the date of filing the complaint till realization. We further direct the OPs to pay Rs.25,000/- to the complainant on account of mental agony and harassment and Rs.11,000/- towards the litigation expenses.  This order shall be complied with within 45 days from the receipt of copy of this order. The complainant is also directed to get the vehicle transferred in the name of OPs or in the name as desired by the OPs. The parties concerned be communicated of the order accordingly and the file be consigned to the record room after due compliance.

 

Announced

Dated: 30.11.2023                

                                                                  President,

                                                     District Consumer Disputes

                                                     Redressal Commission, Karnal.

 

(Vineet Kaushik)                (Dr. Suman Singh)

                        Member                             Member