COMPLAINT FILED: 27.08.2009 DISPOSED ON: 08.06.2010 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN) DATED THIS THE 8TH JUNE 2010 PRESENT:- SRI. B.S.REDDY PRESIDENT SMT. M. YASHODHAMMA MEMBER SRI.A.MUNIYAPPA MEMBER COMPLAINT NO.2079/2009 Sri.Sadashiv Reddy.B.N. Aged about 54 Years, RM Nagar Main Road, Behind Baldwin School, Banaswadi, Bangalore 560 043. ...Complainant (Advocate: Sri. Suresh S. Lokre) V/s. 1. M/s.ADVAITH MOTORS PVT. LTD, Authorised Dealers for M/s. Hyundai Motors India Ltd., No.32, ACR Towers, Residency Road, Bangalore 560 025. 2. M/s.HYUNDAI MOTORS LTD, A-30, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi 110 044. (Advocate: Sri. A. Sukumar) 3. M/s.ADVAITH MOTORS PVT. LTD, No.41/2, Devara Beesanahalli, Varthur Hobli, Outer Ring Road, Opp. Intel Software, Bangalore 560 037. Opposite Parties (Advocate: OP-1 & 3 Sri. N.S.Satyanarayana Gupta) O R D E R S SRI. B.S.REDDY, PRESIDENT The complainant filed this complaint u/s. 12 of the C.P. Act of 1986 seeking direction against Opposite Parties (herein after called as OP) to pay each an amount of Rs.1,50,000/- as punitive damages and hand over a brand new Hyundai GETZ Car in good working condition and to pay litigation cost of Rs.15,000/- on an allegations of deficiency in service on the part of the OPs. The case of the complainant to be stated in brief is that:- 2. OP-1 is the dealer, OP-2 is the Manufacturer of a car named GETZ having a diesel Engine and OP-3 is the service agent for the said car. The complainant purchased the GETZ car from the OP-1 on 14.08.2008 by paying an amount of Rs.5,63,533/- together with the incidental charges of Rs.5,000/-. The said car has a one year warranty. On 25.04.2009 the complainant noticed the engine in the said vehicle caused undue problems and emitting white and black smoke, the entire engine would not move, thereby stranded the vehicle when he was using the car at a remote place on the highway; the vehicle was towed and brought to OP-3 and left the vehicle for service. After initial repairs the vehicle was delivered and the good running of the vehicle fell short when car released black smoke and could not move due to mistake for the engine and injectors as diagnosed. Again on 18.05.2009, the vehicle was given for service and repair of the said job. Nothing much was done by the OP to rectify the errors, the complainant was again stranded while on his way from Madurai, TamilNadu for the same engine problem and the complainant has engaged a service of a lorry to tow the vehicle to Bangalore and approached OP-3 for the said repair job on 25.05.2009. Though the said vehicle was said to have been repaired nothing much was done to show progress of the good running of the vehicle and the very same bad condition of the engine exists since the beginning of purchase. For the third time when the complainant was on his way to Chennai with his family, the vehicle was out of order on the main highway. The vehicle was taken to M/s.Susee Cars Pvt. Ltd, at Vellore. There also the complainant had found that the injector system and engine were out of order and hence though nothing much was made as regards repairs and re-assembly the vehicle once again remained in the very same system and position being out of order constantly. The vehicle again met its same fate on 03.08.2009 when he had to bring the vehicle to OPs and left the same requesting to change the vehicle itself and give another vehicle under warranty as repairs have not yielded any sound or positive results; leaving the complainant stranded without a vehicle and suffered great hardship and inconvenience. The complainant vehicle left on 03.08.2009 and sent a complaint through e-mail on 04.08.2009 till this day nothing has been done to contact the complainant nor the OPs have made attempts to replace the vehicle. The sale of the vehicle was defective one, ever since the complainant had been induced by OPs through advertisement to purchase the same. The complainant was deprived of a proper vehicle he has been put to great hardship and inconvenience without a proper mode of transport. Though the said vehicle is within the period of warranty no attempts have been made by any of the OPs to replace the said vehicle. Legal notice was issued on 11.08.2009 calling upon the OPs to replace the vehicle and give a new car in place of defective car. OPs failed to reply or comply the terms of the legal notice. Hence the complaint seeking the above said relief. 3. On appearance OP 1 & 3 filed version contending that if there is any manufacturing defect; OP-2 should meet the said complaints, there is no deficiency of service on the part of the OP 1 & 3, the complaint is not maintainable against them. It is stated that the car purchased by the complainant is a diesel car, if car was emitting white smoke; it is running in a good condition; if the car is not maintained well and use quality diesel and then it emits black smoke. Therefore the complainant cannot attribute anything against these parties. It is alleged that complainant has found the injector system and the engine were out of order and the said complaints does not mean that there is deficiency of service on the part of the OP 1 & 3. The complainant approached OP-3 on various dates as here under: Date Complaints 15.10.2008 Carry out general check-up 20.01.2009 Check vehicle for not starting 10.02.2009 Starting trouble and check vehicle for not starting 02.03.2009 General check-up 25.04.2009 Attend to break-down and check for oil leakage 18.05.2009 Check Black smoke 25.05.2009 Check Black smoke 03.08.2009 Check Fuel Filter/System+check Inject 11.08.2009 Fuel Tank Check/Repair/Replace/Others/ provide Diesel OP-3 has carried out the complaints as and when made and infact the said complaints were intimated to the OP-2. It is true that the complainant has left the car on 03-08-2009 to check fuel filter and inject system. OP-3 has not obliged to replace the car, but on the other hand it has informed that the alleged complaints will be attended. OP did not admit that the defective car has been sold to the complainant. OP-3 has taken care of the complaints and sum of Rs.80,535-84 has been spent towards the cost of replacement of certain parts and said amount has not been collected from the complainant. It is contended that the legal notice has been received on 11.08.2009 from counsel of the complainant. Immediately the executives of these OPs have approached the complainant and informed that his complaint has been intimated to OP-2 and further it is informed that these OPs have no right to replace the new car and the same has to be done only by OP-2. There is no deficiency of service on the part of the OPs. When the complainant entrusted the car for service as well as repairs, prompt action has been taken to repair the vehicle. Hence it is prayed to dismiss the complaint. OP-2 filed version contending that the complaint is baseless, frivolous and devoid of merits; the same is liable to be dismissed. It is contended that the complainant purchased Hyundai GETZ car on 14.08.2009 from OP-1 an authorized dealer of OP-2. The said car was delivered in perfect running condition without any technical or mechanical defect. The complainant reported his car at the workshop of Susee Hyundai Madurai on 19.01.2009 with the alleged complaint of starting problem. The said dealer has not been made a party hence the complaint is liable to be dismissed due to non-joinder of necessary parties. It is submitted that the complainant has been highly negligent in maintaining his car and did not adhere to the instructions given to him for smooth running of the car. On 19.01.2009, the complainant reported his car at Susee Hyundai authorized dealer with alleged complaint of starting problem. After thorough inspection by the dealer it is observed that diesel mixed with water was used due to which the said problem has occurred. The same was informed to the complainant. The complainant further informed that engine inspection was required for the removal of the said defect but the complainant refused for the same insisted to take the said car for Bangalore for repairs. Thereafter the car was delivered to the complainant. Copy of the repair order dated 19.01.2009 is produced to show that the service personnel of the dealer concerned has clearly mentioned that water mixed with diesel found in diesel tank. As per the owner manual it is clearly mentioned that severe engine and transaxle damage may result in use of poor quality fuels and lubricants that do not meet Hyundai specifications. Timely and efficient services with the warranty policy were provided to the complainant at all times whenever he reported his car with any concerns. It is denied that problems with regard to the engine exists from beginning of the purchase of the car. On 15.10.2008 the car reported for first free service at mileage of 990 Kms no complaint was made as alleged by the complainant. Accordingly free service was carried out and general check up done. On 19.01.2009 the complainant reported his car Susee Hyundai at Madurai with complaint of starting problem. After thorough inspection it was found that diesel mixed with water was used due to which the said problem was occurred. On 25.04.2009 the car in question reported at Advaith Hyundai Bangalore after breakdown for oil leakage; needful was done under warranty and car was delivered to the complainant. The complainant again advised for complete engine inspection as was done on 19.01.2009. However he declined to do so. On 18.05.2009 the said car reported with problem of black smoke accordingly inspection was carried out and injector assemble fuel was replaced and sensors were checked, fuel filter, air filter and fuel tank was cleaned and vehicle was delivered to the complainant. The problem with regard to the black smoke has occurred due to use of diesel mixed with water in the vehicle due to this injector of the vehicle got damaged. The same was informed by M/s.Susee Hyundai Madurai to the complainant. The complainant was not ready and willing to have the engine inspected which was necessitated on use of diesel mixed with water. It has been done at the very outset, the subsequent problem would never arisen. As per the information available on 03.08.2009 the complainant car reported at Advaith Hyundai, Bangalore for repairs at the mileage of 8305 Kms with request to check fuel filter system check injector and fuel tank cleaning was done, vaccum pump test and H.P. pump test, injector back leak test was done and all was found normal. No problem as alleged in the para 7 of the complaint is reported when the car was reported on 03.08.2009. On 11.08.2009 the car was in question reported with request to check black smoke. Accordingly the fuel tank was replaced under warranty so as to remove slightest of the moisture that may be present. The said car in question is now in perfect running condition and complainant has refused to take delivery. It is denied that the alleged complaints has not been rectified. The problem with regard to black smoke had occurred due to use of diesel mixed with water due to this injector of the vehicle got damaged. The car in question is not having any manufacturing defect. After receipt of the legal notice OP-2 asked the concerned dealer to solve the problem. The dealer had contacted the complainant and had apprised him of the status of the vehicle. It is denied that there is any deficiency of service and negligence on the part of the OPs, OPs are not liable to replace the vehicle nor refund the amount. It is denied that there is any unfair trade practice on the part of the OP. hence it is prayed to dismiss the complaint. 4. In order to substantiate the complaint averments the complainant filed affidavit evidence. The Director Spares and Services of OP-1 and 3 filed affidavit in support of defence version and produced documents. The Assistant Manager and the Legal and Secretarial and authorized signatory of OP-2 filed affidavit evidence. 5. The complainant filed written arguments. Arguments on both sides heard, the points now that arise for our consideration: Point No.1:- Whether the complainant proved the deficiency in service on the part of the OPs? Point No.2:- If so whether the complainant is entitled for the reliefs now claimed? Point No.3:- To what Order? 6. We record our findings on the above points: Point No.1:- Negative. Point No.2:- Negative. Point No.3:- As per final Order. R E A S O N S 7. At the out set it is not in dispute that on 14.08.2008 the complainant purchased car Hyundai GETZ having diesel engine for an amount of Rs.5,63,533/- from OP-1 the authorized dealer; manufactured by OP-2. OP-3 is the authorized service agent for the Hyundai GETZ car. The case of the complainant is that he noticed the engine in the said vehicle causing undue problems and emitting white and black smoke for the first time on 25.04.2009. He brought the said car to OP-3 for service, OP-3 after initial repairs delivered vehicle to the complainant. The repair order dated 25.04.2009 marked as Annexure G reveals that the vehicle was reported with the problem after break down for oil leakage. OP-3 attended the complaints and the car was delivered to the complainant. After that it is stated that again on 18.05.2009 the vehicle was given for service with a complaint of emitting black smoke, OP-3 checked the vehicle and after attending the complaints delivered the vehicle. Further the complainant claims that on 25.05.2009 vehicle was taken for repairs with OP-3 and OP-3 is said to have attended the repairs but nothing much was done to the progress of the good running of the vehicle and the very same bad condition of the engine exists since the beginning of the purchase. Once again for the 3rd time the vehicle was taken on the main highway vehicle met with the same fate and he had taken the same for repairs with a branch of OP-2 at Chennai namely M/s Susee Cars Pvt. Ltd., at Vellore, at that time the complainant found that the injector system and the engine were out of order and hence though nothing much was made as regards repairs and re-assembly, the vehicle once again remained in the very same system and position being out of order constantly. Therefore the complainant claims that vehicle again met with same fate 03.08.2009 when he had taken the vehicle to OPs and left the same with a request to change the vehicle itself and give another vehicle as repairs have not yielded any sound or positive results. It is contended that since 03.08.2009 the vehicle is with OPs. OPs have not made any attempts to replace the vehicle. Therefore there has been a deliberate and intentional negligence on the part of the OPs. The complainant claims that vehicle has been a defective one ever since he purchased the same. 8. The complainant has not produced any report of the automobile expert having examined the vehicle and furnishing the details of manufacturing defects so as to accept the contention that the vehicle sold to the complainant is having manufacturing defects. The complainant has produced repair orders dated 25.04.2009, 18.05.2009, 25.05.2009 and 03.08.2009. The repair order dated 03.08.2009 reveals that the complainant complained regarding fuel system and working of injectors. The version of the OPs is there is no any manufacturing defect in the vehicle; the complainant has not properly maintained the vehicle by following the instructions given for smooth running of the car. OP-2 has produced the repair orders copy dated 19.01.2009 which shows that M/s Susee Cars Pvt. Ltd., has attended the repairs of the vehicle. The fuel tank was cleaned and it was found that water mixed with diesel in the diesel tank. It is contended for OP-2 that because of the use of water mixed diesel; the problem has occurred; the complainant was informed that the engine inspection was required for the removal of the said defect, but the complainant refused for the same. The copy of the owner manual marked as Annexure B provides that severe engine and transaxle damage may result in use the poor quality fuels and lubricants that do not meet Hyundai specifications. Thus it becomes clear that the use of water mixed diesel was the main cause of starting problem of the vehicle. The complainant has not disclosed this fact in his complaint and there is no whisper with regard to the vehicle being reported M/s Susee Cars Pvt. Ltd., with a complaint of starting problem on 19.01.2009. 9. The OP-2 and 3 in their version at para 7 have clearly stated date wise attending the complaints of the vehicle. As per that on 15.10.2008 the vehicle was reported to carry out general check-up. On 20.01.2009 the vehicle was taken with a complaint of not starting, on 10.02.2009 the vehicle was taken for the same compliant. On 02.03.2009 it was taken for general check-up. On 25.04.2009 the vehicle was taken with a complaint of break-down and check for oil leakage. On 18.05.2009 and 25.05.2009 the vehicle was checked with regard to emitting black smoke. On 03.08.2009 fuel filter and injectors were checked on 11.08.2009 it is shown that fuel tank replaced, fuel filter and fuel tank cleaning done. It is contended for the OPs that the vehicle is ready for delivery in perfect running condition, but the complainant is refusing to take the delivery; he is insisting only for replacing the new vehicle, OP-2 is not liable to replace the vehicle as there is no manufacturing defect in the vehicle. The problem with fuel injectors was only on account of use of water mixed diesel for running the vehicle. Thus it is contended that complainant is not entitled for the relief for replacement or for the any compensation, as there is no deficiency in service on the part of the OPs. 10. From the version of OP-2 and repair orders it becomes clear that on 15.10.2008 when the car was reported at OP-3 for the first free service the mileage of vehicle was 990 Kms and further on 03.08.2009 when the complainant has reported car at OP-3 the mileage was of 8305 Kms. The car was left to check the fuel filter system, check injector and fuel tank cleaning. The repair order dated 11.08.2009 reveals that fuel filter and fuel system cleaning was done diesel tank replaced. The repair order dated 03.08.2009 marked as Annexure E is silent regarding any complaints regarding the engine or any starting problem of the vehicle. After attending the complaints the vehicle was kept ready the complainant is not ready to take the delivery of the vehicle, but he has been insisting for replacement of new vehicle. 11. In the three successive e-mails dated 27.07.2009, 29.07.2009 and 04.08.2009 marked as Annexure L, O and P sent by the complainant to OPs it is stated that the injectors of the engine is giving problem, the first problem occurred on 25.04.2009; the service guys repaired it but they had asked them to replace the vehicle, but the show room guys guaranteed that the problem will not arise next time, but again the same problem was occurred on 25.05.2009, but show room guys repaired engine again and they were not ready to replace, now it has occurred for the 3rd time, the same injectors problem. This problem has occurred 3 times within a year so he wants to replace the vehicle. From these 3 e-mails the main complaint is with regard to the injectors of the engine. The repair order dated 10.02.2009 reveals that the vehicle was reported to OP-3 with a complaint of not starting, the complaint was attended by cleaning fuel tank, replacing fuel filter, all fuel line cleaning done and four fuel injectors replaced. From this it becomes clear that 4 fuel injectors were already replaced. The fuel injectors were damaged on account of the use of diesel mixed with water for running the vehicle as contended by the OPs. For the first time when the vehicle was taken to Susee Hundai of Madurai for servicing, the repair orders marked as Annexure A by OP-2 reveals that the diesel tank of the vehicle was found water mixed with diesel because of the same the fuel injectors were damaged. At the time when the first free service of the vehicle was done on 15.10.2008, the mileage of vehicle was 990 Kms, at that time there was o complaint with regard to any defects in the vehicle, the second free service was done on 20.01.2009 at that time the mileage of vehicle was 4091 as per repair order. The vehicle was reported for the check of vehicle not starting; general check up was done, break and suspensions check, air filter and diesel filter replaced. 12. As per the complaint averments for the first time the complainant noticed the engine in the vehicle causing undue problems and emitting white and black smoke on 25.04.2009. The repair order Annexure G dated 25.04.2009 reveals that the vehicle was reported with a complaint break down to check for oil leakage. The repair order dated 18.05.2009 marked as Annexure I reveals that the vehicle was reported with a complaint to check for black smoke; similarly the repair order dated 25.05.2009 marked as Annexure H reveals the vehicle was reported with a complaint to check for black smoke. The contention of the OPs is that due to negligence of the complainant in using the fuel diesel mixed with water the injectors of the vehicle damaged; the injectors are already replaced. Now the vehicle is in perfect running condition the complainant for the reasons best known to him is refusing to take delivery of the vehicle. 13. The learned counsel for the complainant contended that the defence of OPs that the complainant has used the fuel diesel mixed with water is invented only to escape from the liability to replace the vehicle. In fact the diesel tank fixed to the vehicle is closed with tight cap; there is no accession for the water to enter the diesel tank. In our view from the repair order dated 19.01.2009 of Susee Hundia, Madurai. It becomes clear that water mixed with diesel was found in diesel tank. Therefore it cannot be said that OPs have come up with such a defence without any basis. The repair orders produced by the both the parties, goes to show that as and when the complainant had reported the vehicle for servicing and with complaints OP-3 has attended the same. Therefore it cannot be said that there is any deficiency in service on the part of OP-3. There is no material to hold that OP-3 has not attended the complaint and inspite of attending the repairs the vehicle was not running smoothly. In case if there is any manufacturing defect since beginning, the complainant could not have failed to notice the same till 25.04.2009 the date of which it is stated in the complaint that he noticed the engine in the vehicle causing undue problems and emitting white and black smoke. As on that day the vehicles mileage was 5393; as on 03.08.2009 the mileage of the vehicle was 8309. While using the vehicle one has to take care by following the instructions contained in the owners guide issued by dealer. On account of improper use of the vehicle, the problems are likely to arise; such problems cannot be attributed against the manufacturer stating that the because of the manufacturing defects such problems have arisen. In 1994 CTJ 1046 (CP) TELCO V/s M. Moosa the National Commission observed that we have carefully gone through the records of the case and the order of the State Commission. It is surprising to know that no manufacturing defect has been pointed out in the vehicle then we fail to understand why the Complainant is not prepared to take back the vehicle in question after it has been duly repaired. In 2006 CTJ 413 (SC) (CP) Maruti Udyog Limited V/s Susheel Kumar Gabgotra and another; the Apex Court held that the High Court was not justified in directing the replacement of the vehicle purchased by the Respondent. The Court also further held that while no doubt it is correct that there is always an implied warranty that the vehicle so purchased is reasonably fit for the uses for which it is made and sold but the fact remains that in the warranty issued by Maruti Udyog in this case it was unambiguously made clear that no replacement of the vehicle would be allowed and if any part is found to be defective the same would be repaired or replaced. Rejecting the prayer for replacement of the car, the Supreme Court directed the Respondent to replace only the defective parts namely clutches assembly. Annexure C produced by OP-2 with regard to warranty it is stated that Except as provided in paragraph 3 hereof, our Authorized Dealers shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period stipulated above, at no cost to the owner of the Hyundai vehicle for parts or labour. From this clause it becomes clear that the authorized dealers can repair or replace any genuine part of the vehicle. There is no provision for replacement of the vehicle. In case if any part of the vehicle is found to be having manufacturing defect the same can be ordered to be replaced. 14. At para 6 of the complaint it is stated that for the 3rd time the complainant when taken the vehicle to M/s. Susee Cars Pvt. Ltd., Vellore, the injector system and the engine were out of order. The complainant has not produced the repair order in support of the said allegation; the tax invoice of M/s. Susee Cars Pvt. Ltd., dated 27.07.2009 shows purchase of bolt assembly injector and clump and injector fuels. 15. At para 12 of the written arguments the complainant has contended that the injectors will play a main role in the proper function of the car engine. It is part which releases the diesel to run cylinders and pistons properly and in the absence of proper flow of diesel from the injectors there will be direct impact on the cylinder and piston and piston cylinder will get damages. The flow of diesel from the injectors will have a direct impact on the valve, rigs, bearings and piston bore. Once any of the said part has been damaged for any reason, it will reduce the life span of the engine and any repairs will be for a temporary period. The whole functioning of the car will not be perfected by replacing the injectors; the entire engine is required to be replaced as by the failure of injectors the entire engine system will get it spoiled. In our view as per the repair order dated 10.02.2009, 4 injectors are already replaced. We are unable to accept the contention that the injectors are replaced thrice; the first one on 10.02.2009 as per repair order, the second one as admitted by OP-2 in the version at para 3 and the injectors were replaced on 27.07.2009 as per tax invoice of M/s Susee Cars Pvt. Ltd., for the third time. After going through the pleadings of para 3 of OP-2 it is stated that injectors assembly fuel was replaced, but not the injectors as claimed by the complainant. Further the tax invoice dated 27.07.2009 of M/s Susee Cars Pvt. Ltd., is with regard to purchase of bolt assembly injector clam and injector assembly fuel, the same cannot be considered as replacement of injectors. There is no material to hold that the replaced injectors are not working properly and the entire engine required to be replaced. There is no any technical report regarding the inspection of the entire engine to hold that even after replacement of the injectors, the entire engine is not properly working. Now the vehicle is in perfect running condition as contended by OPs. The complainant can take delivery of the car, make use of the same. If he finds any manufacture defect of any part of the vehicle he is at liberty to approach the OPs for replacement of defective parts. The warranty period is of two years as per Annexure C and not one year as stated in the complaint. 16. It is contend for the complainant that OP-1 and 3 in their version at para-9 have stated that sum of Rs.80,535.84 has been spent towards cost of replacements of certain parts. The vehicle has been purchased on 14.08.2008, within a year that much amount has been spent for replacement of certain parts, the complainant has paid an amount of Rs.5,70,000/- for the purchase of the vehicle. After paying such huge amount he could not get defect free vehicle, the same goes to show that there is manufacturing defect in the vehicle; after warranty period, the complainant may require to spend huge amount for repairs. In our view the injectors of the vehicle was damaged on account of diesel mixed water being used, the vehicle has not been properly maintained. The complainant has not allowed for inspections of the entire engine. On account of not using proper fuel, the injectors were damaged and the same are replaced, some other parts like diesel tank are also replaced. Under these circumstances we are of the considered view that the complainant failed to prove deficiency in service on the part of OPs. The complaint is liable to be dismissed. Accordingly we proceed to pass the following: O R D E R The complaint filed by the complainant is dismissed. However the complainant is at liberty to take delivery of the vehicle from OPs and make use of the same. In view of the nature of dispute no order as to costs. Send copy of this order to both the parties free of costs. (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 8th day of June 2010.) MEMBER MEMBER PRESIDENT Snm
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