BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 28^th DAY OF DECEMBER 2023

ORDER

SMT. SUMA ANILKUMAR, MEMBER

The complaint filed U/S 35 of Consumer Protection Act 2019, complainant seeking direction towards OP for the following reliefs:-

a) Direct the OP’s to refund the consolidated sum of Rs.10,01,166/- (Rupees Ten Lakh one thousand one hundred and sixty six only) along with interest @ rate of 36% p.a. from the date of purchase of the car i.e. 26.03.2021.

b) To direct the OP’s to pay damages of Rs.5,00,000/- to the complainant for mental agony and deficiency of service committed by the OP’s

c) To direct the OP’s to pay cost of this proceedings of Rs.50,000/- to the complainant.

d) Pass any other side or direction as this Hon’ble Commission deems to be fit and proper under the facts and circumstances of the case in the interest of justice and equity.

2. Brief facts of this case are as follows:-

The complainant submits that she and her husband has moved to Bangalore recently and in order to move around Bangalore for their various needs they contempted to purchase a car, to purchase a car the complainant approached OP No.1, (dealer engaged in sales and service) and OP No.2 being the manufacturer having show room and service station in various places at Bangalore. The complainant herein express interest in purchasing the Hundai I 20 car and with respect to the same she had visited the show room of OP No.1, the sales executive had highlighted various features of car including wireless Apple car play, being the feature in this particular variant of I 20 car. Whereas such feature was publisized in the OP broucher and this was one of the features which influenced the complainant to purchase the car, compared to other competetive cars of similar price range. The complainant purchased the Hundai I 20 (1.2 KAPPA Petrol Sports IV T) car from OP No.1 on 26.03.2021, with registered RTO No. KA-02-MR-2646, wherein Engine No. MV0927972, Chasis No.MALBH512TMM061692. Within 1 month from the date of purchase, the complainant noticed that the wireless Apple car play was having dis-connection issues where the Apple car play would randomly disconnect and sometimes reconnect at its own whims which created big challenge for complainant to drive in and around city traffic in Bangalore. Even the Google map being on display, would go off the screen leading to unforeseen confusion and panic while driving. The complainant driving experience resulted in panic braking or swering towards the side of the road due to confusion in directions creating big challenge to drive in and around city traffic. Also while talking on the phone connected over the vehicles Bluetooth, the call would go off from the wireless randomly and the complainant would be constrained to part the vehicle and reach out to the phone so as to continue with the ongoing call, resulting in numerous incidents of panic confusion and momentry loss of focus on roads which could have eventually lead to fatal incidents to the complainant, co-passengers, other vehicles etc. The complainant submits that regarding the above mentioned issues the vehicle was taken to workshop multiple times since then, but the problem has not been resolved. Initially OP No.1 suggested to adopt newer version of Apple phone software as vehicle was manufactured in 2021. Upon upgrading the complainant’s phone, OP No.1 contradicted that it will work only with the older Apple phones. Further the officials of OP No.1 visited the complainant’s premises to upgrade the software, but this did not help to resolve the issue either and caused further hardship. The complainant submits that there has been no resolution and the defective vehicle has been delivered to her. The complainant instructed the representative of OP No.1 to escalate the grievances to higher authority in Hundai motors which Mr. Sunil, (Regional Manager of OP No.2) called the complainants spouse Mr. Abhishek Aggarwal and promised to resolve the issue within 30 days. Further he failed to keep it up till date. Finally in March 2021, the complainant sent the vehicle again to service to OP No.1 to resolve the problem of the vehicle. On March 17 2022 Mr. Gopal from OP No.1 visited the complainant premises with the service car and team from Hundai motors to access the problem. They tried to push the issue as a minor one and blamed Apple company for this malfunction, pleaded helplessness to resolve the problem. To this the complainant’s spouse got annoyed and showed them the other car brought in 2018, where Apple car play is working with other versions of Apple phone. One Mr. Abhijith (territory head of OP No.2) tried to trivialize the issue and promised a written statement as well as complete solutions within March 2022. However there has been no resolution to the complainant’s grievance. Further the OP’s took the vehicle to their custody to resolve the issue and its lying with OP No.1 till today and they have not resolved nor returned the vehicle to the complainant custody. The car has been driven about 3600km since the purchase of vehicle. The complainant continues to pay yearly insurance, service cost, EMI for the vehicle. In view of the afore said terms of defective vehicle, the complainant issued notice to OP to resolve the issue or refund the entire amount paid by the complainant amounting to Rs.10,01,161/- with interest at 9% with cost of Rs.5,00,000/- for mental agony and harassment. Hence this complaint against OP for misrepresentation, false assurance, deficiency in service, Unfair Trade Practice and unethical practice.

3. On issue of notice to the OP’s, the OP No.1 was placed Ex-parte, later filed IA to No.2 U/O 9 rule 13 CPC to set aside the order dated 12.09.2022. The above order was allowed in part, the ex-parte order passed by this commission against OP No.1 on 12.09.2022 is hereby set aside. The version filed by OP is hereby rejected. OP No.2 submits written version.

4. In the version of OP No.2, the OP submits that the complainant is liable to be dismissed on the sole ground that the complainant has not only failed to established any involvement of OP in the violation averred but has also failed to demonstrate any harm, damage or harassment caused due to any act or omission of OP. It is submitted that bare perusal of complaint is sufficient in itself to understand that the present complaint is filed by the complainant with intention to replace her car with a new one just because of minor issues which was resolved by upgrading the system.

5. It is submitted that the present complaint is unique example of abuse of due process of law and where the complainant, very ingeniously claiming the replacement of perfect running vehicle with no performance issue along with Rs.5,00,000/- compensation for vehicle which is already being used for more than one and half years.

6. The Hon’ble National commission in the matter of R. Bhaskar V/S D.N Udani reported at IV [2006 CPJ 257 (NC)] has held that “if the vehicle was having manufacturing defect it could not have been used for 1 year and 5 months and run more than 9,500 km’s, considering the facts that the vehicle had been in use for 1 year and 5 months and had run over 9,808 km’s, it is difficult to believe that it is suffering from manufacturing defect.”

7. It is submitted that the complainant has ingeniously omitted the owner’s manual with the complaint with malafide intentions to ruse Hon’ble Commission and to gain undue advantage at the cost of OP. It submits here that the warranty policy mentioned in the owners manual explicitly states that “under warranty authorized dealer shall either repair or replace, any Hundai genuine part i.e. acknowledged by HMIL to be defective in material or workmanship within warranty period at no cost to owner of the Hundai for parts or labour”. Admittedly they alleged the issue of dis-connection of Apple Car play with the Audio system of the subject vehicle. It is submitted that the owners manual explicity states that the warranty related to Audio, Video, navigation system, charger, Audio system originally equipped on Hundai vehicle are warranted directly by the respective manufacturer and not by HMIL (OP-2). It is submitted that the complainant has drastically failed to substantiate the role of OP No.2 in the entire series of alleged transactions. It is pertinent to mention that no allegations is raised against the OP No.2 by the complainant. Hence the present complaint is liable to be dismissed.

8. It is submitted that as per available information, vehicle was reported on 04.03.2022 for periodic maintainance service and upon request of complainant vehicle was duly inspected for alleged Apple play connectively. During the inspection, it was observed that the Audio connectively was functioning perfectly fine with Android based operating phones and on IOS based operating phones same was getting disconnected, upon further investigation it was found that the Audio system of complainant’s car required software up-gradation for IOS based operating phones and same was communicated to the complainant. Further complainant was also assured that she will be informed once the software up-gradation is received for the subject vehicle within she can use the vehicle, as it was in perfect running condition, but the complainant refused to collect the vehicle for reasons best known to her. Post software up-gradation the connectivity issue was also resolved at free of cost but even then complainant never approached to the dealer for collection of the vehicle.

9. The complainant has neither produced report of any laboratory recognized by Central Government or State Government or any organization established under law. In terms of Section 38 of Consumer Protection Act 2019. Where there is no expert evidence provided by the complainant that the vehicle got any defect, in such case it cannot be held that the vehicle is suffering from any manufacturing defect. There is no such record or expert opinion submitted by the complainant to primafacie suggest that the vehicle was suffering from manufacturing defect. It is held by the Hon’ble National Commission that where the complainant has failed to produce any expert evidence to prove that the good is suffering from manufacturing or latent defect, the consumer complaint is liable to be dismissed.

10. The OP submits that the clause of dealership agreement entered into between the OP No.1&2 the dealer categorically stated that the relationship between the OP’s shall be on principal to principal bases and so nothing in the dealership agreement shall be constitute as authorizing the dealer to act or otherwise represent itself as a __ of OP’s. The OP in his contention has referred to citations:-

i) R. Baskar Vs D.N. Udani reported at IV (2006) CPJ 257 (NC)

ii) Vikram Bajaj Vs. Hind Motors (India) Limited & Anr [2009 (II) CLT 670].

iii) M/s Tata Engineering & Locomotive Co. Ltd & Anr. Vs. M. Moosa

iv) Mahindra & Mahindra Ltd. Vs. B.G. Thakurdesai & Anr.

v) Dr. Hema Vasantial Dakoria Vs. Bajaj Auto Ltd & Ord.

The Consumer complaint is liable to be dismissed.

11. OP No.2 filed I.A to direct the complainant to take back the car. The complainant files affidavit evidence along with 9 documents marked as Ex.P.1 to Ex.P.9. The OP No.1 files affidavit evidence with authorization letter along with 1 document. OP No.2 files affidavit evidence along with 4 documents marked as Ex.R.1 to Ex.R.4 and also submits written arguments. Heard complainant, OP No.2 files I.A.

11. On the basis of above pleadings for our consideration are as follows:-

1. Whether I.A. filed by OP No.2 is liable to allowed?
2. Whether I.A. filed by OP No.2 is liable to allowed?

iii) Whether complainant is entitled for the relief?

iv) What order?

12.  Our answers to the above points are as follows:-

Point No.1:- In the affirmative.

Point No.2:- In the affirmative.

Point No.3:- Partly affirmative.

Point No.4:- As per the final order.

REASONS

13. Point No.1, 2 & 3:- These points are inter-connected to each other and for the sake of convenience, to avoid repetition of facts, these points are taken up together for common discussion.

14. The OP No.1 admits to the fact that the connectivity of the Apple play was functioning perfectly with Android based operating phone and was disconnecting and not operating with IOS based phones and there was requirement of software up-gradation for IOS based operating phones and the same was communicated by OP No.1 to the complainant. This clearly shows that the car needed upgradation, upgraded version of system.

15. Generally cars today are sold for different prices according to the features of the cars offered by the car companies. There are several models based on features which are rated from lower price to higher price of the same car models. Therefore I20 with Apple play system is one of the features provided for that model to be sold. Here the complainant has purchased the car not only for the travel but also for the facilities and features provided by the complainant for which the complainant pays extra according to the model of the car offered by the company. OP No.2 in his I.A submits that the car/vehicle is in perfect running condition and there is no defect of any kind and after the service of the said car the complainant refused to take car back for reasons best known to the complainant.

16. OP No.2 prays for an order to be passed in form of OPs to direct the complainant to take back her car from workshop of OPs at the earliest as the stationed car might develop technical issue due to stand still. The running condition of the car/vehicle, only/ alone cannot be taken as car/vehicle is perfect, as the car also comes with other facilities offered for a convenience and good drive of the car. Therefore the non-working condition of the play system is also a cause to be considered in for the working condition of the car. Therefore OP’s here cannot say that the car is in perfect moving condition. They are liable for the other defects arised in the car as the car is offered and priced more only on the basis of the features which are demonstrated and advertised lucratively to the consumers. The OP’s being the dealer and service provider had the responsibility to provide guidance to the complainant about the manufacturer of the Apple play system and rectify the defect by up-grading it through the proper sources instead they just delayed and showed negligence by taking the car for service many times and giving false promises to the consumers. Hence IA is allowed and complainant is directed to take the car back from workshop on condition that the OP’s jointly replace the up-graded version of the Apple play which has connectivity with the IOS phones along with the car in good condition as before. OPs are liable to pay Rs.2,00,000/- towards compensation and Rs.25,000/- towards litigation cost. Hence Point No.1&2 accordingly.

17. Point No.3:- . In view of the discussion referred above, we proceed to pass the following:-

ORDER

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part. I.A is allowed and the complainant is directed to take the car back from workshop on condition that. OP No.1&2 jointly and severally replace the up-graded version of the Apple play which has connectivity with the IOS based phones along with the car in good working condition within 60 days, from the date of order failing which the OP’s will have to replace the car with new car having apple play connectively with IOS based phones.
2. OP’s are jointly and severally directed to pay Rs.2,00,000/- towards compensation of Rs.25,000/- towards litigation cost within 60 days, failing which OP shall pay interest at the rate of 10% per annum on the Award amount till realization.
3. Furnish the copies to both the parties, without cost.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 28^th day of DECEMBER, 2023)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1;

CC/164/2022                    ORDER                          28.12.2023

1. Complaint filed by the complainant U/S 35 of Consumer Protection Act, is hereby allowed in part. I.A is allowed and the complainant is directed to take the car back from workshop on condition that. OP No.1&2 jointly and severally replace the up-graded version of the Apple play which has connectivity with the IOS based phones along with the car in good working condition within 60 days, from the date of order failing which the OP’s will have to replace the car with new car having apple play connectively with IOS based phones.
2. OP’s are jointly and severally directed to pay Rs.2,00,000/- towards compensation of Rs.25,000/- towards litigation cost within 60 days, failing which OP shall pay interest at the rate of 10% per annum on the Award amount till realization.
3. Furnish the copies to both the parties, without cost.