DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi- 110016
Case No.490/2013
Sh. Vivek Kumar
S/o Sh. Shyam Sunder Prasad
R/o 1626/14, 3rd Floor, Govindpuri,
Kalkaji, New Delhi- 110019
….Complainant
Versus
M/s Samara Hyundai
Through its Manager/Authorized
Representative
Having its Office at: D-35,
Lajpat Nagar-II, New Delhi
M/s Hyundai Motors India Ltd.
Plot No. H-1, Sipcot, Industrial Park,
Irungattukottai Sriperumbudur,
Kancheepuram, Chennai,
Tamilnadu- 602105
….Opposite Parties
Date of Institution : 23.09.2013
Date of Order : 18.10.2022
Coram:
Ms. Monika A Srivastava, President
Ms. Kiran Kaushal, Member
Sh. U.K. Tyagi, Member
ORDER
Member: Sh. U.K. Tyagi
1. Complainant made a request for passing an award directing M/s Samara Hyundai & Hyundai Motors India Ltd. (hereinafter referred to as OP-1 & 2 respectively) (i) to replace the car with new one or to refund the sale amount of car along with interest @18% since date of purchase till realisation; (ii) to grant a sum of Rs.1,00,000/- as compensation for causing mental agony etc; (iii) to grant a sum of Rs.25,000/- as litigation expenses etc.
Brief facts of the case are as under:-
2. The complainant purchases a I-10 Megna 1.2 Cappa Car on 14.08.2012 from OP-1. The same got registered in the name of complainant vide Registration No. DL-3C-BZ-1720. The complainant came to know at the time of service on 18.06.2013 that the front left side gate and left fender of the car was not found original. This defect could not be noticed by him at the time of purchasing the car. It was a shocking for him since he had paid for the new vehicle why a damaged car with replaced front gate was sold to him. The complainant gave – e-mail to OP-1 and OP-1 replied that “we would replace the front left door on goodwill basis for you”. OP-2 being the manufacturer of the said car; should have exercised supervision on affairs of OP-1 and control the mal-practice and cheating as the same had caused wrongful loss to the complainant. The complainant got the legal Notice served upon OPs. OP-1 has played fraud on him selling the 2nd hand car despite he got the payment for the new one. The acts and deeds of the OP-1 is nothing but clear deficiency in service and negligence. The OPs are liable jointly and severally to pay the compensation and refund of the purchase Cars.
3. OP-1, on the other hand, filed its reply stating that at the time of sales, no defect was noticed either by complainant or OP-1 itself. It is also denied that there was any problem with front left side gate and fender as alleged by the complainant. In fact, door of car was in perfect condition at the time of delivery of said vehicle. OP-1 further states that no legal notice was traced and complainant may be put to strict proof of facts relating to legal notice and its service. It is denied that OP-1 had supplied the second hand damaged car to the complainant. He further emphasised that the complaint is liable to be dismissed with heavy costs.
4. OP-2 was proceeded ex-parte vide order of this Forum dated 13.02.2014. The complaint was dismissed for want of prosecution vide order dated 23.04.2014. The Hon’ble State Commission set aside the said order vide its order dated 04.07.2014 and complaint was restored to its original number.
5. OP-1 & 2 alongwith complainant filed written submission OP-1 & complainant filed evidence in affidavit. Written statement is on record so is rejoinder. None was present on behalf of complainant and counsel for OP-2 was present on 10.02.2022. The case was adjourned for 08.08.2022 for final arguments. Oral arguments were heard and concluded.
6. This Commission has gone into the entire gamut of issues. Due consideration was given to the oral arguments. It is a fact that the subject vehicle was purchased from OP-1 on 14.08.2012. The defect in left front door and fender was brought to the notice of the complainant on 18.06.2013. He further alleged that the seal of the company on the left front door was also found missing. The complainant immediately wrote e-mail on 18.06.2013 to the OP-1. And OP-1 accepted the fact without any argument/reason and stated that “we would replace the front door on goodwill basis. In a way, it appears that the OP-1 was aware of the defect in left side front door and fender and agreed for replacement.
7. OP-2 vide his written arguments stated that only allegation in the present complaint against OP-2 is that the OP-2 failed to supervise the acts of OP-1. It is argued by OP-2 that OP-2 does not exercise control over the acts of OP-1. OP-1 and OP-2 are different entities in law. The relationship between OP-1 & OP-2 is one of the Principal – to – Principal basis and not as a Principal-to-Agent. Hence OP-2 could not be held liable for acts and omissions of the dealer OP-1, as held by National Commission in Maruti Udyog Ltd. V/s. Nagender Prasad Sinha & Anr. R.P. No.674/2004 decided on 04.05.2009.
8. It is further contended by OP-2 that the title of vehicle passed on to the concerned dealer, the moment the vehicle is put up on common carrier. The OP-2, being manufacturer, is liable for warranty obligations as enshrined in warranty policy. OP-2 is of the view that there is no manufacturing defect in the subject vehicle and particular defect pertains to OP-1’s acts and omissions. The OP-2 relies on judgments of Hon’ble National Commission in “Mahindra & Mahindra Ltd. Vs. B.G. Thaku & Anr. Consumer 362(NS) and Dr. Hema Vanstilal Dakoria Vs. Bajaj Auto Ltd. & Ors. Reported at 11 (2005) CPJ 102 (NC) which clearly laid down that:-
“As per settled position of law that if a part could be replaced or a defect could be removed then replacement cannot be ordered”.
9. After considering the arguments and above narration, the Commission is of considered view that OP-2 has discharged its liability satisfactorily.
10. As regards to OP-1, it was the OP-1, who in the first instance agreed to replace the left side door and no arguments was put forth to this effect. It shows that OP-1 was fully aware of the facts and defects in the subject vehicle. This proposition leads us to accept the contention of the complainant that the OP-1 had knowingly sold the subject vehicle with defective door and fendes.
11. In nutshell, after having considered the facts and circumstances in the case and above-mentioned narrations, this Commission is of the considered opinion that there is deficiency in service and negligence on the part of OP-1. Accordingly, it is directed that OP-1 shall pay
Rs.1,00,000/- in all for the defects in subject vehicle ; compensations and litigation charges as demanded in prayer of the complaint. The request of complainant for replacement of vehicle is not considered in view of above quoted judgments advanced by OP-2 in above Para’s. The above mentioned amount should be paid within 2 months from the receipts of this order failing which rate of interest shall be levied @ 9% per annum till its realisation.
File be consigned to the record room and order be uploaded on the website.
