Tamil Nadu

South Chennai

439/2008

mr.Kamal chand Chhajer - Complainant(s)

Versus

M/S.Hyundai Motors India Ltd., & others - Opp.Party(s)

M/S.S.Ramesh Kumar

08 Jul 2019

ORDER

                                                                        Date of Filing  : 23.10.2008

                                                                          Date of Order : 08.07.2019

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.439/2008

DATED THIS MONDAY THE 08^TH DAY OF JULY 2019

                                 

Mr. Kamalchand Chhajer,

S/o. Mr. Jeevanchand Chhajer,

No.6, Vaikunda Vadiar Street,

Sowcarpet,

Chennai – 600 079.                                                        .. Complainant.                                                    

 

                                                                                               ..Versus..

1. M/s. HYUNDAI MOTORS INDIA LTD.,

A 30, Mohan Co-operative Industrial Estate,

Mathura Road,

New Delhi – 110 044.

 

2. M/s. HYUNDAI MOTORS INDIA LTD.,

Rep. by its Managing Director,

A 30, Mohan Co-operative Industrial Estate,

Mathura Road,

New Delhi – 110 044.

 

3. M/s. HYUNDAI MOTORS INDIA LTD.,

Ekkatuthangal,

Chennai – 600 032.     

 

4.  M/s. HYUNDAI MOTORS INDIA LTD.,

Represented by its General Manager,

Ekkatuthangal,

Chennai – 600 032.                                                                                            

 

5. M/s. TAFE ACCESS LTD.,

No.803, Anna Salai,

Chennai – 600 002.

 

6. M/s. TAFE ACCESS LTD.,

Represented by its General Manager,

No.803, Anna Salai,

Chennai – 600 002.                                               ..  Opposite parties.

Counsel for the complainant                  : M/s. S. Ramesh Kumar &

                                                                  another

Counsel for the opposite parties 1 to 4 : M/s. FOX MANDAL &

                                                                  ASSOCIATES

Counsel for the opposite parties 5 & 6  : M/s. V. Jayachandran &

                                                                  Associates

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 6 under section 12 of the Consumer Protection Act, 1986 prays to replace the defective car in registration No. TN 04 AB 9703 I 10 car supplied by the opposite parties 3 to 6 with a new one similar description which shall be free from any defect or return the cost price of the car along with interest at the rate of 18% p.a. from the receipt of the cash paid by the complainant and to pay a sum of Rs.60,000/- towards compensation for loss and injury suffered by the complainant with cost of the complaint.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that he approached the opposite parties to purchase 2008 model brand new I 10 LMV Motor car on 23.01.2008.  The opposite parties also promised to arrange a brand new 2008 model I – 10 car stating that the available car is of 2007 model.  On 06.02.2008, the opposite parties 3 to 6 called the complainant and compelled to pay an advance amount of Rs.10,000/- to book a new 2008 model car.  The complainant also issued a cheque dated:06.02.2008 bearing No.787867 drawn on Indian Bank, Sowcarpet Branch, Chennai.  The opposite parties 5 & 6 called the complainant through phone on 20.02.2008 and gave the details of the Chassis No. MALAN 51BR 7 MO1618*M and Engine No.GFHG7M317879 for making suitable insurance.  The complainant also taken insurance policy on 23.02.2008 with Bajaj Allianz Insurance in which, the model number given is 2008.   But in the Chassis number and Engine numbers are the same.  On enquiry with the opposite parties, they assured that the car is of 2008 model.   The complainant also made arrangement for the vehicle insurance on 23.02.2008 with Bajaj Allianz, Chennai and made arrangement of Hire Purchase with HDFC Bank, Chennai Branch.  On 29.02.2008, the complainant made a second payment for a sum of Rs.80,723/- vide cheque bearing No.827735 drawn on Indian Bank, Sowcarpet, Chennai.  The complainant paid a sum of Rs.90,723/- by way of 2 cheques to the opposite parties 5 & 6.   The 6^th opposite party returned a sum of Rs.14,126/- on 17.03.2008 to the complainant towards tax reduction in the central budget.  The cost of the car is Rs.4,36,597/-.  The opposite parties 3 to 6 with a common intention sold and delivered 2007 model car instead of 2008 model.  The complainant is liable to pay 42 EMIs at the rate of Rs.10,096/- also to the HDFC Bank.  

2.     The complainant submits that the opposite parties  5 & 6 delivered the car on 05.03.2008 which is not 2008 model but 2007 model.  The opposite parties 5 & 6 delivered the car in the night hours.  Hence, the complainant was not able to find out the correctness of the model number and the defects like speedometer problem, scratches, head lights, patches of the body of the car including the speedometer reading shows 500 kms.  The complainant informed the defects in the car to the opposite parties 5 & 6 and immediately the opposite parties 5 & 6 taken photos of the defects only for the purpose of eye wash.  After registration, the complainant demanded the copy of R.C. Book with the opposite parties 5 & 6.  But they did not produce the R.C. Book even after repeated requests made by the complainant.  Whereas the complainant visited to the opposite parties 5 & 6 office to receive the copy of R.C. Book in his car Magna 2008 model.  The complainant made enquiry with one Saravanan who told that the mistake was committed by R.T.O. by Pulianthoppe and promised to correct the defect and hand it over to him.   The opposite parties 5 & 6 issued the copy of R.C. Book by fax only on 04.07.2008.   The complainant submits that while verifying the correctness of the R.C. Book with “B” Particulars of the RTO and he came to know that the opposite parties and the RTO are colluded with each other.   Hence, the complainant issued letter dated:14.07.2008 and legal notice dated:20.08.2008. The complainant submits that after the receipt of “B” Particulars, the complainant came to the conclusion that the opposite parties 1 to 6 with the connivance of the RTO cheated the complainant by selling 2007 model car with the said defects.   The complainant submits that even after repeated requests and demands, the opposite parties has not serviced the vehicle in such a manner and replaced the vehicle with a new one or refund the cost price of the vehicle.   The act of the opposite parties 1 & 2 amount to deficiency in service and unfair trade practice which caused great mental agony.    Hence, the complaint is filed.

3.      The brief averments in the written version filed by opposite parties 1 to 4 is as follows:

The opposite parties 1 to 4 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 1 to 4 state that when the complainant approached the 5^th opposite party, an authorised dealer for the purchase of Hyundai i10 car bearing VIN No.MALAN51BRM016948 and Engine No.G4HG7M317879 only 2007 model car alone is available with the opposite parties for sale and 2008 model car was not available.  The opposite parties 1 to 4 state that they have explained in such manner to the complainant and sold only 2007 model car only.  The opposite parties 1 to 4 state that the complainant himself made arrangement with HDFC Bank Ltd. for financial assistance and paid a sum of Rs.3,47,284/- on 22.02.2008 by way of cheque.  A sum of Rs.80,723/- has been paid by the complainant on 29.02.2008 to the opposite parties towards premium for getting insurance policy, registration etc.  The opposite parties never stated/said that the car is of 2008 model.  Since the exercise duties reduced, the opposite parties refunded the amount of Rs.14,126/-.  The allegation of cheating by the opposite parties is an imaginary one.   Therefore, there is no deficiency in service on the part of the opposite parties 1 to 4 and hence, the complaint is liable to be dismissed.

4.      The brief averments in the written version filed by opposite parties 5  & 6 is as follows:

The opposite parties 5 & 6 specifically deny each and every allegations made in the complaint and put the complainant to strict proof of the same.    The opposite parties 5 & 6 state that the complainant approached the opposite parties, expressing his willingness to buy a brand new i10 LMV car on 23.01.2008 manufactured by the Hyundai Motors and at this stage itself, the opposite parties had made it clear to the complainant that only the car manufactured in latter part of the year 2007 are available for sale in i10 model cars.  Since, the said model cars received over whelming response, without giving any discount the cars were sold to the customers.   The opposite parties 5 & 6 had showed and informed the  complainant that cars available in the showrooms are manufactured in the latter part of the year 2007 and the complainant without saying anything left the showroom and had come back on 06.02.2008 and booked a car of i10 model by paying a sum of Rs.10,000/- as advance.  The complainant had made arrangement financial assistance with HDFC Bank Ltd., which was approved and the said HDFC Bank Ltd., had issued a cheque for Rs.3,47,284/- dated:22.02.2008 favouring the answering opposite party.   The complainant had made further payment of Rs.80,723/- on 29.02.2008  and the opposite parties usually collect premium amount from the customer for getting Insurance Policy for the car.   The opposite parties 5 & 6 state that in view of reduction in payment of exercise duties, the opposite party had promptly refunded an amount of Rs.14,126/- to the complainant even after registration and delivery of the car purchased.  The opposite parties 5 & 6 state that the averment made with regards to claim of insurance in terms of RC, the insurance premium needs to be corrected by the complainant.   Because the insurance policy was taken by the complainant through his known source and it can be rectified by him.  If at all there is no possibility to change the insurance, the complainant could have taken/ renewed the policy by notifying the defect of 2008 instead of 2007.   There is no deficiency in service caused by the opposite parties 5 & 6 and the complaint is liable to be dismissed.

5.     To prove the averments in the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A16 are marked.  Proof affidavit of the opposite parties 1 to 4 is filed and document Ex.B1 alone is marked on the side of the opposite parties 1 to 4.  Proof affidavit of the opposite parties 5 & 6 is filed and no document is marked on the side of the opposite parties 5 & 6.

 

6.      The points for consideration is:-

1. Whether the complainant is entitled to replace the car bearing TN 04 AB 9703 i 10 with a new one or alternatively, to return the cost of the car with interest as prayed for?
2. Whether the complainant is entitled to a compensation of Rs.60,000/- towards negligence in service, mental agony etc with cost as prayed for?

7.      On point:-

The complainant filed his written argument.  The opposite parties has not filed any written argument.  Heard both parties.  Perused the records namely; the complaint, written version, proof affidavits and documents.   The complainant pleaded and contended that he approached the opposite parties to purchase 2008 model brand new i-10 LMV Motor car on 23.01.2008.  The opposite parties also promised to arrange a brand new 2008 model i-10 car and stating that the available car is of 2007 model.  On 06.02.2008, the opposite parties 3 to 6 called the complainant and compelled to pay an advance amount of Rs.10,000/- to book a new 2008 model i-10 car.  The complainant also issued a cheque bearing No.787867 drawn on Indian Bank, Sowcarpet Branch which is admitted.  The opposite parties 5 & 6 called the complainant through phone on 20.02.2008 and gave the details of the Chassis No. MALAN 51BR 7 MO1618*M and Engine No.GFHG7M317879 for taking suitable insurance.  The complainant also taken insurance policy with Bajaj Insurance as per Ex.A9 in which, the model number given is 2008.   But in the Chassis number and Engine numbers are the same.  On enquiry with the opposite parties, they assured that the car is of 2008 model.   The complainant also made arrangement for the vehicle insurance on 23.02.2008 with Bajaj Allianz, Chennai and made arrangement of Hire Purchase with HDFC Bank, Chennai Branch.  On 29.02.2008, the complainant made a second payment of Rs.80,723/- vide cheque bearing No.827735 drawn on Indian Bank, Sowcarpet, Chennai.  The complainant paid a sum of Rs.90,723/- by way of 2 cheques to the opposite parties 5 & 6.   The 6^th opposite party returned a sum of Rs.14,126/- on 17.03.2008 to the complainant towards tax reduction.  The cost of the car is Rs.4,36,597/-.  But as per invoice, Ex.A2, the cost of the car is Rs.3,93,731/-.  On a careful perusal of Ex.A2, there is nothing about the model except the vehicle particulars.  The opposite parties 3 to 6 with a common intention sold and delivered 2007 model car instead of 2008 model.  The complainant is liable to pay 42 EMIs at the rate of Rs.10,096/- also to the HDFC Bank.   Ex.A18, Loan Statement is also absolutely silent regarding the year of model of the car.  Ex.A17 is the loan sanction letter. Ex.A19 is the loan closure letter.   The vehicle was hypothecated to HDFC Bank.  The Xerox of the R.C. Book is marked as Ex.A8 and Ex.A20.  On a careful perusal of Ex.A8 & Ex.A20, the copies of the R.C. Book shows the model No.2007 was altered into 2008 by the RTO. 

8.     Further the contention of the complainant is that the opposite parties  5 & 6 delivered the car on 05.03.2008 as per Ex.A1 Delivery Challan; in which except the year of model, the other particulars of the vehicle alone mentioned.  The opposite parties 5 & 6 delivered the car in the night hours.  Hence, the complainant was not able to find out the correctness of the model number and the defects like speedometer problem, scratches, head lights, patches of the body of the car including the speedometer reading shows 500kms.  The complainant informed the defects in the car to the opposite parties 5 & 6 and immediately the opposite parties 5 & 6 taken photos of the defects.   But no proper remedy given.   After due registration, the complainant demanded the copy of R.C. Book with the opposite parties 5 & 6.  But they have evaded to produce the R.C. Book even after repeated requests.   But on a surprise visit, the complainant came to know that model No noted as 2007 instead of 2008.  The complainant made enquiry with one Saravanan who told that the mistake was committed by R.T.O. of Pulianthoppe and promised to correct the defect and hand it over to him.   The opposite parties 5 & 6 issued the copy of R.C. Book by fax only on 04.07.2008.   Ex.A8 is the copy of R.C. Book.  Further the contention of the complainant is that while verifying the correctness of the R.C. Book with “B” Particulars as per Ex.A7 of the RTO he came to know that the opposite parties and the RTO are colluded with each other.   Hence, the complainant issued letter dated:14.07.2008 as per Ex.A4 and sent legal notice dated:20.08.2008 as per Ex.A10.  Further the contention of the complainant is that after the receipt of “B” Particulars, the complainant came to the conclusion that the opposite parties 1 to 6 with the connivance of the RTO cheated the complainant by selling 2007 year model car with the said defects.   The opposite parties also admitted that they have sold only 2007 model car in the letter dated:05.09.2008 as per Ex.A16.  But they have corrected the R.C. Book as 2008 model proves the unfair trade practice and deficiency in service.   Further the contention of the complainant is that even after repeated requests and demands, the opposite parties has not serviced the vehicle in such a manner and replaced the vehicle as a new one and or refund the cost of the vehicle.  Hence, this complaint is filed.

9.     The contention of the opposite parties 1 to 6 is that when the complainant approached the 5^th opposite party, an authorised dealer for the purchase of Hyundai i10 car bearing VIN No.MALAN51BRM016948 and Engine No.G4HG7M317879 only 2007 model car alone is available with the opposite parties for sale and 2008 model car was not available.  The opposite parties explained in such manner to the complainant and sold only 2007 model car.  But on a careful perusal of Ex.A1 & Ex.A2 shows no year of model mentioned.  On the other hand, in Ex.A9 insurance policy shows 2008 model.   Equally in Ex.A8, the year 2007 is corrected as 2008 proves deficiency in service.  Further the contention of the opposite parties is that the complainant himself made arrangement with HDFC Bank Ltd. for financial assistance and paid a sum of Rs.3,47,284/- on 22.02.2008 by way of cheque.  A sum of Rs.80,723/- has been by paid the complainant on 29.02.2008 to the opposite parties towards premium for getting insurance policy, registration etc.  The opposite parties never stated/said that the car is of 2008 model.  Since the exercise duties reduced, the opposite parties refunded the amount of Rs.14,126/-.  The allegation of cheating by the opposite parties is an imaginary one.  But on a careful perusal of records, it is very clear that the opposite parties sold 2007 model car and registered as 2008 model.  It is also not denied by the opposite parties that while selling the car, the speedometer reading shows 500 kms proves the impugned car is an used one.  There are scratches in the vehicle and the opposite parties has not serviced the vehicle also.   Ex.B1 is the copy of warranty shows 2 years.   The opposite parties has not taken steps and rectified the vehicle within the warranty period.  Considering the facts and circumstances of the case this Forum is of the considered view that the opposite parties 1 to 6 are jointly and severally liable to pay a sum of Rs.3,93,731/- being the cost price of the vehicle or alternatively, to give a new vehicle with brand new i-10 LMV M/Car and cost of Rs.5,000/- to the complainant.

In the result, this complaint is allowed in part.   The opposite parties 1 to 6 are jointly and severally liable to pay a sum of Rs.3,93,731/- (Rupees Three lakhs ninety three thousand seven hundred and thirty one only) being the cost price of the complaint mentioned car or alternatively, to give a new vehicle with brand new i-10 LMV M/Car and cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.

The above  amounts shall be payable  within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a. to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 08^th day of July 2019. 

 

MEMBER                                                                                PRESIDENT

 

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	05.03.2008	Copy of Delivery Challan
Ex.A2	03.03.2008	Copy of invoice by Tafe Access Ltd.
Ex.A3	20.06.2008	Copy of letter to Tafe Access Ltd
Ex.A4	14.07.2008	Copy of RPAD letter to RTO, Chennai – 600 012
Ex.A5	15.07.2008	Copy of AD card received by RTO
Ex.A6	25.07.2008	Copy of legal notice to RTO dated:25.07.2008
Ex.A7	28.07.2008	Copy of B’ Schedule issued by RTO
Ex.A8	05.03.2007	Copy of R.C Book by fax by the 6th opposite party
Ex.A9	23.02.2008	Copy of insurance policy in Bajaj Alliance
Ex.A10	20.08.2008	Copy of legal notice dated:20.08.2008
Ex.A11	30.08.2008	Copy of AD card received by the 1st opposite party
Ex.A12		Copy of AD card received by the 3rd opposite party
Ex.A13		Copy of AD card received by the 4th opposite party
Ex.A14	30.08.2008	Copy of AD card received by the 5th opposite party
Ex.A15	21.08.2008	Copy of AD card received by the 6th opposite party
Ex.A16	05.09.2008	Copy of reply by Tafe Access Ltd.

 

OPPOSITE PARTIES 1 TO 4 SIDE DOCUMENTS:-  

Ex.B1

Copy of Hyundai Warranty Policy

 

OPPOSITE PARTIES 5 & 6 SIDE DOCUMENTS:-  NIL

 

                              

MEMBER                                                                                PRESIDENT