This complaint coming up before us for hearing on 13-10-14 in the presence of Sri M.V.Subba Rao, advocate for complainant and                             Sri V.Krishna Nand, advocate for 1^st opposite party, Sri D.Ravi Kiran, Advocate for the 2^nd & 3^rd opposite parties and Sri N.Srinivasa Rao, Advocate for 4^th opposite party upon perusing the material on record and having stood over till this day for consideration this Forum made the following:-

O R D E R

Per Sri A. Hazarath Rao, President:-

The complainant filed this complaint under section 12 of Consumer protection act, seeking a direction to the opposite parties to deliver brand new vehicle to her or payment of Rs.13,48,585/- with interest @ 24% p.a. from the date of purchase; Rs.3,00,000/- towards mental agony; Rs.3,00,000/- towards compensation and Rs.5,000/- towards legal expenses. 

2.   In brief the averments of the complaint are hereunder:

The 2^nd opposite party is manufacturer of Hundai Motor cars ; 3^rd opposite party is the area office of the 2^nd opposite party ; opposite parties 1, 4&5 are dealers of the 1^st opposite party at Guntur, Hyderabad and Tirupathi respectively.  The complainant on 24-10-12 purchased the vehicle New Verna CRDI SX 1.6 Auto (O) AT 16 BSIV crystal white from the 1^st opposite party.  The complainant is working as a teacher and purchased the said vehicle in her name as a gift by her daughter.  One Yerramaneni Sravanthi complainant’s youngest daughter used the said vehicle at Hyderabad.  The said vehicle gave trouble on 28-11-12 and the said Sravanthi immediately delivered the said vehicle to the 4^th opposite party, concerned technical staff of the 4^th opposite party informed that it will take 4 or 5 days and after verification further informed that the brand new vehicle is in problem and that there was a leakage of engine oil on perusal of the conditions of the engine.  The said Sravanthi underwent mental agony on account of repair of the new vehicle purchased.  The said Sravanthi on 03-12-12 took delivery of the said vehicle from the 4^th opposite party.  The 4^th opposite party informed that the said vehicle is in good condition and will not give any trouble and assured to travel to any distance.  The said Sravanthi along with her husband and children intended to perform tonsure ceremony of their daughter at Tirumala and on the assurance given by the 4^th opposite party they proceeded in the said vehicle from Hyderabad to Tirumala on 07-12-12.  After passing 2KM from Alipiri toll gate the said vehicle stopped and it could not start on ignition.  The said Sravanthi and her husband shocked and on the advice of the patrolling guards the said Sravanthi got down the vehicle.  The said Sravanthi contacted the 1^st opposite party.  Immediately the technical staff of the 5^th opposite party came over to the ghat area of the hill where the vehicle was stopped and they took the vehicle to their service centre with the permission of the TTD authorities as it was not possible to rectify the defect there and the said Sravanthi and her husband were taken to the Tirumala by TTD security.  Due to breakdown of the vehicle the tonsure ceremony was crippled and the time fixed for Darshan was also lapsed.  All the above acts created mental agony to complainant’s family.    The 5^th opposite party informed that the diesel is passing into engine and mixing with engine oil and it is a major problem and it will take more than ten days to get it repaired.  The said Sravanthi hired another car to reach Hyderabad as complainant’s son-in-law has to check out to U.S.A. as schedule flight from Hyderabad.  All these things happened due to bad condition of the engine and for failure of the staff in locating the exact problem.  The said vehicle suffered from manufacturing defect as problem was in engine.  The complainant and her family is scared to take back the same vehicle as it may create future problem which they cannot face and afford.  The intention of purchasing the vehicle by the complainant’s daughters is for the purpose of traveling every day by the complainant to attend her job in her old age comfortably.  The complainant estimated mental agony @ Rs.3,00,000/-.  The opposite parties 1,4 & 5 though received notices did not comply the demands of the complainant or in the least to give any reply.  The opposite parties 2&3 also kept quite. The complaint therefore may be allowed. 

3.      5^th opposite party remained exparte. 

4.      The contention of the 1^st opposite party in brief is here under:

The 1^st opposite party is an authorized dealer of the cars manufactured by M/s.Hyundai Motors Limited.  The complainant and her persons duly checked the performance of the vehicle.  After satisfying the same the complainant took delivery of the vehicle.  One month after using the vehicle it resulted in bad functioning.  Something happened in the hands of complainant or her daughter, who used the vehicle and they suppressed it.  If really the alleged inherent manufacturing defect is there in the vehicle it would have been come out much earlier.  The complainant never approached the 1^st opposite party due to break down period of the said vehicle and as such the question of deficiency of service did not arise.  The 1^st opposite party gave suitable reply to the notice issued by the complainant.  The alleged defect pointed out by the complainant must be due to mishandling of vehicle or some unnatural things happened in the hands of complainant which is repairable.  Rest of the allegations contra mentioned in the complaint are false and are invented to suit complaint.  The complaint therefore be dismissed with exemplary costs.

5.      The contention of the 2^nd & 3^rd opposite parties in brief is here under:

          The complainant did not take recourse Section 13(1) (c) of the Consumer Protection Act to suggest that the subject vehicle suffered from manufacturing defect.  Every vehicle is assembled with hundreds of major/minor parts.  Since this is a machinery any part may have trouble in time because of different driving conditions.  The company provides limited warranty for its various products to reassure its performance and take the responsibility to support its customers within/after the warranty period as per policy.  Whenever the complainant raised concern the opposite parties redressed them.  The complainant’s vehicle was reported on 02-12-12 at Kun Hyundai for running repair at the mileage of 3529 km with concern of engine oil leakage checkup.  The vehicle was duly inspected and gasket cylinder head was replaced under warranty policy and vehicle was delivered to the satisfaction of the complainant.  Even the allegations of the complainant taken as gospel truth, defect if any, can be rectified.  Replacement of complete vehicle is beyond scope of warranty, when the complaint can be rectified.  The liability of the opposite parties 2&3 is limited and extended to its warranty obligations alone and error/omission/misrepresentation at the time of retail sales or service of the car on part of the dealer cannot be fastened on the manufacturers.  The 1^st opposite party is authorized dealer of the 2^nd & 3^rd opposite parties.  On 08-12-12 the complainant’s car was reported at the mileage of 4463 km with concern of breakdown and engine not starting.  After inspection pump assy high pressure was replaced under warranty policy.  Detailed inspection was carried by 5^th opposite party, necessary repair work was done, the said vehicle was road tested and performance of the vehicle was found satisfactory.  By their letter dated            14-12-12 and 29-12-12 the complainant was requested to take delivery of vehicle.  Instead of taking delivery of vehicle the complainant is insisting for replacement.  The 1^st opposite party in its reply dated 21-02-13 clearly communicated the complainant’s concern has been resolved and vehicle is made ready for delivery at the workshop of the 5^th opposite party and requested to take delivery of the vehicle at service centre.  The remaining allegations contra mentioned are created by the complainant to suit her case.  The complaint therefore may be dismissed. 

6.      The contention of the 4^th opposite party in brief is here under:

          The complaint is bad for non joinder of complainant’s daughter who was using the vehicle.  The complaint is not maintainable against 4^th opposite party in particularly as he did not commit any deficiency in service.  The subject car did not suffer from any manufacturing defect.  The entire complaint is based on conjectures and surmises.  Service personnel of the 4^th opposite party at all times acted bonafide in good faith with full and proper diligence.  The relief claimed by the complainant is unjustifiable and not binding on the 4^th opposite party and it is an abuse of judicial process.  The service personnel of the opposite party have immediately attended on the vehicle and found that there was a leakage from the under body and same has been categorically mentioned in the repair order dated 27-11-12 and informed to Smt.Y.Sravanthi that light seepage of oil between block and head of engine is being observed and required replacement of the spare Gasket-cylinder Head.  The said Sravanthi gave her consent for rectifying that problem and further upon her request the 4^th opposite party has provided loaner car bearing No.AP9AQ 5111 for her use till the problem was rectified.  The 4^th opposite party after taking consent from the said Sravanthi placed the order for supply of spare Gasket Cylinder head and replaced the said spare and rectified the problem.  After satisfying the said Sravanthi took deliver of the vehicle on 03-12-12 and ever since she had not visited.  The 4^th opposite party did not commit any deficiency in service.  On the other hand the 4^th opposite party attended to the complainant’s grievances and rectified problems.  This Forum has no jurisdiction to entertain the present lis as the complainant’s vehicle gave trouble at Tirupathi.  The opposite party gave reply through its counsel on 05-02-13 to complainants counsel through speed post under acknowledgment.  The allegations contra mentioned in the complaint are all false and are created by the complainant to suit her case.  The complaint therefore may be dismissed.                   

7.      Exs.A-1 to A-13, Exs.B-1 on behalf of 1^st opposite party, Ex.B-2 to B-9 on behalf of 2^nd & 3^rd opposite parties and B-10 to B-15 on behalf of 4^th opposite party were marked.

8.   Now the points that arose for consideration in this complaint are:

1.       Whether the complainant’s vehicle suffered from manufacturing defect?

2.       Whether the complainant is entitled for replacement by new vehicle?  or value of the vehicle in the alternative?

3.       Whether the opposite parties committed deficiency of service and if so

         by whom?

4.       Whether the complainant is entitled to compensation as claimed and from whom?

5.       To what relief? 

9.   The admitted facts in this case are these.

          a)  The opposite parties 1, 4&5 are dealers of the opposite parties 2&3 

              at Guntur, Hyderabad and Tirupathi respectively. 

          b)  The Complainant purchased the subject car on 24-10-12 from the

               1^st opposite party. (Exs.A-1 to A-5) and her name was shown in  

                Certificate of registration (Ex.A-8).

          c) The complaints vehicle gave trouble on 28-11-12 at Hyderabad

               while the complainant’s youngest daughter was using and the 4^th

               opposite party attended to repair work (Ex.A-9, B-10 to B-14). 

          d) The 4^th opposite party rectified the problem and delivered the said

               vehicle to the said Sravanthi on 03-12-12.   

          e)  Again the said vehicle gave trouble on 07-12-12 while going to

               Thirumala 

          f)  The complainant got issued notice to the opposite parties               

              (Exs. A-10 to A-13).

10.    POINT NOs.1&2:-  The learned counsel for the complainant submitted that the subject new vehicle gave trouble twice during journey within a period of two months of purchase and it amounted to manufacturing defect coming under the purview of deficiency in service.     The complainant relied on the decisions reported in C.N. Anantha Ram vs. M/s Fiat India Limited and others etc., (Special leave petition (c) Nos. 21178-21180 of 2009 decided on 24-11-10; 2007 (4) CPJ (1) (NC) and another case in Vinot Sharma vs. Hindustan Motors Limited and another decided on 03-04-02.  

11.    The learned counsel for the 1^st opposite party contended that the complainant did not approach the 1^st opposite party subsequent to purchase of the subject vehicle, the complainant failed to establish manufacturing defect, the complainant is not at all entitled for replacement of new vehicle, the complainant for the reasons best known to her did not take return of the vehicle from the 5^th opposite party even after effecting repairs.  

12.    The learned counsel for the opposite parties 2 and 3 on the other hand contended that the complainant miserably failed to show that the subject vehicle suffered from inherent manufacturing defect, as per terms of warranty the complainant is entitled for replacement of spare parts only, it is the complainant who did not take return of the vehicle from the 5^th opposite party for the reasons best known to her even after intimation, the complaint is an abuse of judicial process and therefore may be dismissed.   The ops 2 and 3 relied on the decision reported in (2005 (2) CPJ 102 (NC)

13.    The learned counsel for the 4^th opposite party on the other hand submitted that the complainant did not purchase the subject vehicle from the 4^th opposite party, being an authorized dealer of the opposite parties 2 and 3 attended to grievance of the complainant and also provided a car without rent for their work for four days, there is no cause of action against the 4^th opposite party the complaint therefore may be dismissed with exemplary costs. 

14.    The contention of the contesting opposite parties that the burden of proving the subject vehicle suffered from manufacturing defect lies on the complainant is having considerable force.          In Classic Automobiles v/s Lila Nand Mishra & another 2010 (2) CPR 220(NC) it was held that the onus to prove that there was manufacturing defect was on the complainant. 

15.  In Krishna Pal Singh vs. Tata Motors Limited, Passenger Car business unit and another (2014 (3) CPR 110 (NC) it was held

“Before concluding, we must mention that although, the District Forums are quick in passing the orders in favour of the consumer, irrespective of the fact, whether the case of the complainant  is bolstered by cogent and plausible evidence, or not, yet the said forums never take the trouble to adhere to Section 13(1) (c ) of the C.P.Act.   If District Forums follow the law, most of the problems will come to an end.  If the consumer is to be helped permanently, the provisions enshrined in Section 13(1) (c) should be followed, strictly.  In that event, it would be easier for the fora to win now truth from falsehood.”

16.    In Maruthi Udyog Limited vs. Sushi Kumar Gabgotra (2006 (4) SCC 644) it was held that if the manufacturing defect was established then replacement of the entire item or replacement of the defective parts is only called for.

17.    In C.N. Anantha Ram vs. M/s Fiat India Limited and others etc., (2010 15 (ADDL.) S.C.R. 619) -  (Special leave petition (c) Nos. 21178-21180 of 2009 decided on 24-11-10) the Apex Court while confirming the order of the National Consumer Disputes Redressal Commission further directed that if the independent technical expert is of the opinion that there are inherent manufacturing defects in the vehicle the petitioner/complainant will be entitled to refund of the price of the vehicle and the lifetime tax and EMI along with interest @12% p.a., and costs as directed by the State Commission

18.    In Controls & Switch Gear Company vs. DAIMLERCHRYSLER (India ) Private Limited 2007 (4) CPJ 1 (NC)  the apex Forum directed the ops 1 and 2 shall replace car number DL-5CR-033 with a new car of the same or similar model or in the alternative they shall refund the purchase price of the same namely Rs.58,00,000/- approximately (one half of the purchase price of Rs.1,15,72,280/- of the two cars; and b) for the second car DL-NCV-5555 the ops are directed to remove defect of over heating of the central hump of the car on the long journey within a period of eight weeks from the date of this order or in the alternative to refund 50% of the amount of the purchase price namely RS.29,00,000/- against the return of the car and shall pay Rs.5,000/- to each of the local commissioners appointed by National Commission.  

19.    In both the cases relied on by the complainant the apex court as well as NCDRC relied on expert opinions to arrive whether the vehicle in question suffered from manufacturing defect. But in this case the complainant failed to obtain any expert opinion by taking recourse to Sec.13(1)(c) of the Consumer Protection Act and therefore the above decisions are not applicable to the facts of the case. We therefore opine that the complainant failed to prove that her vehicle suffered from manufacturing defect and as such is not entitled either replacement of vehicle or value of the vehicle and answer these issues against the complainant.

20. POINT NOs.3 &4:-   Ex.B-1(= B-9) is office copy of reply dated 21-02-13 said to have been issued by the 1^st opposite party as a reply to Ex.A-10.  In its version filed on 28-05-13 the 1^st opposite party had not mentioned that it gave reply to Ex.A-10 notice.  The 1^st opposite party did not file either postal receipt to show that they posted it or postal acknowledgment to show that the complainant received reply.  Under those circumstances the contention of the 1^st opposite party about giving Ex.B-1 reply cannot be accepted.

21.    This Forum on 16-07-14 directed the 5^th opposite party to produce or cause production of the vehicle case history relating to the vehicle bearing No.AP07BN 3325.  The 5^th opposite party through 1^st opposite party on      13-08-14 filed copy of repair order pertaining to the vehicle AP07BN 3325; (Ex.B-2) copy of vehicle inventory 13-08-14; letters dated 14-12-12 (Ex.B-4 = B-8), 29-12-12 (Ex.B-5) and reminder dated 21-11-13 (Ex.B-6).  But the 5^th opposite party did not file any postal receipts or postal acknowledgments to show that they posted Ex.B-4 to B-6 on those respective dates or the complainant received them.   In the absence of postal receipts or acknowledgements in our considered opinion no reliance can be placed on Ex B4 to 6

22.    The complainant did not file the warranty if any issued by the opposite parties 1 to 3 for the reasons best known to her.  The contesting opposite parties did not contend that subject vehicle is not within the period of warranty.  On the other hand the opposite parties 2 &3 filed copy of warranty (Ex.B-7) and it disclosed that the warranty is for 24 months / 40,000 KMs from the date of delivery which ever is earlier.  It has to be therefore inferred that the subject vehicle taken by the 5^th opposite party at ghat road inroute Tirumala was within the period of warranty.  The complainant in page 3 of her notice mentioned the following: 

“As the brand new car didn’t provide any safety and security, based on all this mental agony, my client and her family is scared to take back the same vehicle as it may create future problems which they cannot face and afford.  Further note that the intention of purchasing the vehicle by my client daughters is for the purpose of travelling every day by my client to attend her job in her old age as to travel by bus it will not permit her health condition.  In view of the above facts all of you with good conscious and knowing the events happened to my client’s family, it is just and necessary to deliver a brand new vehicle or pay the value of the vehicle and Rs.3lakhs towards mental agony caused to my client family as compensation and Rs.5,000/- towards costs of this notice”

The complaint reiterated the same in para 6 of her complaint and in para 7 of her affidavit.  The above contention in the notice as well as complaint and complainant’s affidavit leads us to draw an inference that the complainant is not inclined to take return of the vehicle though repaired.

23.    In Vinoth Sharma vs. Hindustan Motors Limited and another (2003 CTJ 320 (CP) (NCDRC) decided on 03-04-02 it was held that there was no doubt in their mind that anguish and mental agony was caused for the twin incidents of car stopping on the road, when one buys a new vehicle it is not acquired to acquire problems, in their view  to that extent deficiency on the part of the respondents is obvious for which the appellant is entitled for compensation of Rs.20,000/- and to that extent the order of the State Commission is modified with costs of Rs.2,000/-. 

24.    In Indo-chem Electronics vs. Additional Collector of Customs, (2006 (3) SCC 721) while considering the provisions of Sections 3 and 14 of the Consumer Protection Act it was held that when the deficiency began to manifest themselves it was the duty of the suppliers to attend to such deficiencies immediately and if the supplier was unable to attend to the deficiencies and malfunctioning of the system soon after installation it would amount to deficiency of service, when the deficiencies in the system continued to persist during the warranty period, including to the extended period the suppliers were rightly held to be liable for deficiency in service’

25.    In this case also the complainant’s new vehicle gave trouble twice within two months from the date of purchase and it could have caused mental agony to the complainant and her family members and it amounted to deficiency in service and it can be compensated in terms of money.  The 1^st opposite party being distributor or agent of the opposite parties 2&3 is also liable to compensate the complainant. 

26.    The 4^th opposite party attended to the complainant’s grievance though not purchased vehicle from it and as such no deficiency in service can be fastened on the 4^th opposite party.  Hence the claim against 4^th opposite party is liable to be dismissed.   

27.    In a claim for damages or compensation both parties should take steps to mitigate damages.  The 5^th opposite party though promptly took custody of the subject vehicle in our considered opinion failed to intimate the complainant about making the subject vehicle road worthy.   A duty is also caste on the complainant to know what happened to the subject vehicle or whether repairs had been carried out or not.  Neither the 5^th opposite party nor the complainant did any act to mitigate the damages.  Under those circumstances we opine that the opposite parties 1 to 3 & 5 committed deficiency in service and they are liable to pay compensation for the agony faced by the complainant and her family members.  Awarding a sum of Rs.50,000/- as damages in our considered opinion will meet ends of justice.  We therefore answer these points accordingly.  

28.    POINT NO.5:- In the result the complaint is partly allowed as mentioned below: 

1. The complainant is directed to approach the 5^th opposite party to take return of the vehicle repaired within a week. 
2. The 5^th opposite party is directed to make the vehicle road worthy and also safety to travel and allow the complainant or any person authorized by her along with technical expert to inspect the repaired vehicle (as and when approached by the complainant).   
3. The 5^th opposite party is directed to issue a certificate that the vehicle is free from defects at the time of entrusting the repaired vehicle to the complainant. 
4. The opposite parties 1to 3 are directed to give extended warranty to the vehicle AP07BN 3325 for the period in the custody of 5^th opposite party. 
5. The 5^th opposite party is directed not to claim any retention charges for the vehicle AP07BN 3325 in respect of the period in its custody. 
6. The opposite parties 1 to 3 are directed to pay Rs.40,000/-(Rupees forty  thousand only) as compensation to the complainant.
7.  The 5^th opposite party is  directed to pay Rs.10,000/-(Rupees ten thousand only) as compensation to the complainant
8. The claim against the 4^th opposite party is dismissed without costs. 
9. The opposite parties 1 to 3 & 5 are directed to pay Rs.2,000/-(Rupees two thousand only)  as costs to the complainant. 
10. The opposite parties 1 to 3 & 5 are directed to comply the above order within six weeks from the date of receipt of copy of this order failing which the amounts mentioned in clauses 6&7 will carry interest @9%p.a. from the date of order.   

Typed to my dictation, transcribed by Junior Steno, corrected by me and pronounced in the open Forum dated this the 21^ST day of October, 2014.

MEMBER                                  MEMBER                           PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties:-

                                                                                         PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.