BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.

Consumer Complaint No. 605 of 2013

Date of Institution: 03.09.2013

Date of Decision: 06.01.2016

Dr.Jagjit Kaur, Director, Youth Welfare, G.N.D.U. Amritsar, resident of 248, Mohini Park, Opposite Khalsa College, Amritsar.

Complainant

Versus

1. Prop. Sant Auto Wheels (P) Limited, NH-20, 1 Km Stone, Mataur-Palampur Road, Ghurkari, Kangra, Himachal Pradesh through its Manager.
2. M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar through its Manager.
3. The General Manager of Hyundai General Motors, Plot No. H1, Sipcot Industrial Estate Sriperumbudur Taluk District Irrungattukottai, Kanchimura-602105, Tele: 4427156111 & 4447100000.   

Opposite Parties

Complaint under section 11, 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.

Present: For the Complainant: Sh.Deepinder Singh, Advocate

              For Opposite Party No.1: Sh.Subodh Salwan, Advocate.

    For Opposite Party No.2: Sh.Mohan Arora, Advocate

    For Opposite Party No.3: Sh.K.K.Thakur, Advocate

Quorum:

Sh.Bhupinder Singh, President

Ms.Kulwant Kaur Bajwa, Member

Mr.Anoop Sharma, Member     

Order dictated by:

Sh.Bhupinder Singh, President.

1. Present complaint has been filed by Smt.Jagjit Kaur under the provisions of the Consumer Protection Act alleging therein that on 24.7.2011, she purchased Verna CRDi Car manufactured by Hyundai bearing V.I.N. No. MALCU41ULBM14573, Engine No. D4FBBU974596, Chassis No.LBM019573, Key No.86079, Colour White which was subsequently registered vide registration No.PB02-BN-8000, valid from 24.7.2011 to 23.7.2026 by DTO, Amritsar. Complainant alleges that from the date of purchase of the car in question, the complainant has been facing troubles with said car as there is manufacturing defect in the car purchased by the complainant. The complainant reported to the service station that said car is giving trouble and there is a possibility of manufacturing defect which is required to be removed, as early as possible. But the authorized service centre of the Opposite Party No.1 i.e. Novelty Hyundai Opposite Party No.2 has failed to remove the defects complained of in the car, despite regular service within the schedule as under:-

First service: By  M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 8.8.2011 at 1357 KMs.

2^nd service:  By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 21.12.2011 at 9576 KMs.

3^rd  service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 21.3.2012 at 19825 KMs.

Accidental Claim: By Kosmo Hyundai, Ahuja Automobiles Batala Road, Amritsar on 16.4.2012 to 20.4.2012 at 22740 KMs.

4^th  Service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 14.6.2012 at 25247 KMs.

5^th  Service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 28.1.2013 at 30609 KMs.

6^th Service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 16.2.2013 at 32547 KMs.

7^th Service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 29.3.2013 at 39360 KMs.

8^th Service: By M/s.Novelty Hyundai, Near New Amritsar, G.T.Road, Amritsar on 6.6.2013 at 44691 KMs.

The complainant has been told by the staff of service station Novelty Hyundai that minor problems in the vehicle like heating of engine occurred due to fault in radiator. Despite being pointed out the said defects, the staff of authorized service station  did not remove the said defects in the vehicle and the said vehicle went on giving frequent troubles as complained of by the complainant. However, some parts of radiator were changed by the service station Novelty Hyundai and the complainant paid for the said parts. But the vehicle went on giving same trouble despite change of said parts in the radiator. Said parts of radiator were changed during 5^th and 6^th service. The staff of  authorized service station i.e. Novelty Hyundai did not give satisfactory reply to the complainant regarding heating of engine because of fault in radiator of the vehicle in question. Now the engine of the said vehicle is not functioning properly and the complainant has faced mental agony as well as harassment at the hands of the staff of Novelty Hyundai i.e. authorized service  station of Opposite Party No.1 and Opposite Party No.3. The complainant is  having apprehension in her mind that  there may come a trouble if she drives the said vehicle on the road and fatal accident may  occur with her, hence the complainant has parked the said  vehicle in her house. The complainant has to hire a taxi to attend her office and other  daily routine visits which come under her duty and thus, the complainant is suffering monetary loss without any fault on her part. Alleging the same to be deficiency in service, complaint was filed seeking directions to the opposite parties to remove the defect complained of in the engine of the said vehicle or to replace the vehicle with the new one of the same description or to replace the said defective engine with new one or to refund the purchase amount of the vehicle in question alongwith interest @ 18% per annum from the date of purchase of car.  Compensation and litigation expenses were also demanded.

2. On notice, Opposite Party No.1 appeared and filed written version in which it was submitted that the complainant has filed a baseless, frivolous and an imaginary claim with an ulterior motive. No cause of action has been arisen to the complainant to file the present complaint as the averment of the present complaint does not depict any consumer dispute between the parties. It is specifically denied that the car in question is having manufacturing defect in it. It is further worthy to mention over here that no specific date, month and year has been mentioned by the complainant with regard to the reporting of the said matter to the concerned Opposite Party. As per the terms and conditions of the said sale, the complainant can get serviced his vehicle from any of the authorized dealer/ workshop of Hyundai Motors India Limited. The  schedule with respect  to the services of the vehicle in question as mentioned in this para of the complaint is not correct as certain facts have been intentionally suppressed by the complainant. Car in question was met with an accident after first service and the repair was undertaken by Opposite Party No.2 on 19.11.2012. As per the terms and conditions of warranty with respect to the car in question, it has been specifically mentioned therein that the warranty shall not apply if the vehicle sold out by Hyundai Motors India Limited, met with any accident. Clause (3) has specifically mentioned the aforesaid condition of warranty and in the present case the car in question was met with an accident  twice a time, the reference of second accident has been given in these paras of the complaint by the complainant. Even otherwise, the job sheets pertaining to the car in question clearly show that complainant has registered his alleged problem when the vehicle was driven out around 38995 KMs and five services of the car in question were done by concerned Opposite Party. While denying and controverting other allegations, dismissal of complaint was prayed.
3. Opposite Party No.2 appeared and filed written version in which it was submitted that the complaint filed by the complainant is time barred. Vehicle in question was purchased by the complainant on 24.7.2011 and warranty of the vehicle has also expired i.e. two years have been passed and the present complaint has been filed by the complainant after the expiry of two years from the date of purchase of the vehicle in question. The complainant and her family members had regularly  driven the car for continuous period of more than two years and  up till 6.6.2013 when the car was brought last time to service centre of the answering Opposite Party, it had driven upto 44691 KMs and how it can be said that car of the complainant is having manufacturing defect. Due to accident of the vehicle for 2 times, radiator of the car was damaged and the same was replaced and there is no manufacturing defect of any kind in the vehicle as alleged by the complainant in her complaint. First free service was conducted by Opposite Party No.2 on 8.8.2011 and it was free service and vehicle was run for 1357 KMs at the time. No defect was reported by the complainant or the person who had brought the car to the service station of Opposite Party No.2 and the vehicle was duly delivered as per satisfaction. Second accidental repair was conducted by Opposite Party No.2 on 19.12.2011 and it was accidental service and vehicle had run for 9576 KMs at the time. Repair work was conducted by Opposite Party No.2 to the vehicle to the satisfaction of the complainant. Repair cost was duly paid by the complainant. 3^rd second free service was conducted by Opposite Party No.2 on 21.12.2011 and vehicle was run for 9576 KMs at the time. Soon after the accidental repair, second free service was provided to the vehicle of the complainant. At the time of service of the vehicle, no defect of any kind was reported by the complainant or the person who had brought the car to the service centre of Opposite Party No.2 and the vehicle was delivered to the complainant as per satisfaction. 4^th free service was conducted by Opposite Party No.2 on 21.3.2012 and vehicle had run for 19825 KMs at the time. No defect of any kind  was reported by the complainant and during the course of service, no defect was ever detected in the vehicle. Necessary repair parts were changed in the vehicle for smooth  running of the vehicle and the vehicle was duly delivered to the complainant as per  satisfaction. 5^th accidental repair to the vehicle was conducted by Kosmo Hyundai Service Centre on 16.4.2012 and vehicle had run for 22740 KMs at the time. 6^th running repair/ accidental repair was conducted by Opposite Party No.2 on 14.6.2012 and vehicle had run for 25247 KMs at the time. At the time of repair of car, no defect of any kind was reported by the complainant and the  vehicle was duly delivered to the complainant as per  satisfaction. 7^th paid service was conducted by Opposite Party No.2 on 28.1.2013 and vehicle had run  for 30609 KMs at the time. At the time of service of the car, no such alleged manufacturing defect of any kind was reported by the complainant and during the course of service, no such alleged defect was ever detected in the vehicle. Necessary repair to the vehicle for the smooth running was conducted by Opposite Party No.2 and vehicle was duly delivered to the complainant as per satisfaction. Thereafter, 8^th, 9^th, 10^th and 11^th (four times) the vehicle was brought into the service centre of the Opposite Party No.2 for running repair of the vehicle. At that time, heating problem was reported by the complainant to Opposite Party No.2 which was duly removed as per the satisfaction. Vehicle was delivered to the complainant by Opposite Party No.2 after making payment. 12^th paid service was conducted by Opposite Party No.2 on 6.6.2013 and vehicle had run  for 44691 KMs at the time.  At the time of service of the car, no such alleged manufacturing defect of any kind was reported by the complainant and during the course of service, no such alleged defect was ever detected in the vehicle. From the perusal of the above mentioned details, it is clear that no such alleged manufacturing defect was ever complained by the complainant or the person who had brought the car to the service centre of Opposite Party No.2. Last service was done by Opposite Party No.2 on 6.6.2013 and since the date of purchase of vehicle, it had run on the road for 44691 KMs and it at this stage, it can not be said that vehicle is having any manufacturing defect in it.  During the course of service of  vehicle, over heating problem was reported to the Opposite Party No.2 and after changing spare parts in the vehicle, said defect was removed by Opposite Party No.2 and after proper satisfaction of the owner of the vehicle, it was delivered by  Opposite Party No.2 and the complainant had also paid for the same. The vehicle  is in good running condition without any kind of problem in it. The warranty of the vehicle has finished on 23.7.2013 i.e. after the two years from its purchase.   While denying and controverting other allegations, dismissal of complaint was prayed.
4. Opposite Party No.3 appeared and filed written version in which it was submitted that the  present complaint is  baseless, frivolous and has been formulated on wrong and misleading facts and is devoid of any merits whatsoever, hence the Opposite Party No.3 denies each and every allegation made in the complaint. It is pertinent to state herein that Opposite Party No.3 operates with all its dealers on a principle-to-principle basis and errors/ omission, if any at the time of retailing or servicing of the car, is the sole responsibility of the concerned dealer. However, as per the information made available to the Opposite Party No.3, it is submitted that on 26.7.2011 Sant Hyundai delivered a Verna CRDi car bearing VIN-MALCU41ULBM019573 and Engine No.D4FBBU974596 to Dr.Jagjit Kaur in perfect running condition. It is stated on the basis of available information that the vehicle in question as reported on 8.8.2011 for first free service at the mileage of 1357 KMs and no problem was reported. The complainant has concealed the material fact that vehicle was reported on 19.12.2011 for accidental repair at the mileage of 9576 KMs. On 21.12.2011 vehicle reported for  second  free service but no specific concern was raised. On 21.3.2012 vehicle was reported for third free service at the mileage of 19825 KMs. No problem reported. On 16.4.2012 vehicle reported for accidental repair at the mileage of 22740 KMs work done and vehicle delivered. On 14.6.2012 vehicle was reported for running repair at AC check up camp & wheel alignment at the mileage of 25247 KMs. Work done vehicle delivered. On 28.01.2013 vehicle was reported for paid service at the mileage of 30609 KMs. No problem reported. Vehicle delivered after carrying out periodic maintenance service, radiator flushing, brake pad replacement, wheel balancing. On 13.2.2013, vehicle was reported for running repair at the mileage of 32574 KMs. Radiator assy and coolant replaced on chargeable basis. On 29.3.2013 vehicle reported for running repair at the mileage of 39360 KMs with concern of poor pickup and long self check up. Seal-Valve stem replaced under warranty and Gasket-cylinder head  changed and vehicle delivered. On 6.6.2013 vehicle was reported for paid service at the mileage of 44691 KMs. Accordingly periodic maintenance service, throttle body cleaning done and vehicle delivered. No specific problem was reported. It is clear from above that best of services were always provided to complainant whenever vehicle reported at workshop for free service, paid service and running repair and there is no cause of action for present complaint. While denying and controverting other allegations, dismissal of complaint was prayed.
5. Complainant tendered into evidence his affidavit Ex.C1 alongwith documents Ex.C2 to Ex.C18, affidavit of Er.J.S.Malhotra, Surveyor & Loss Assessor Ex.19, copy of report Ex.C20  and closed the evidence on behalf of the complainant.
6. Opposite Party No.1 tendered into evidence affidavit of Sh.Ajay Kakkar Ex.OP1/1 alongwith documents Ex.OP1/2 to Ex.OP1/16 and closed the evidence on behalf of the Opposite Party. Opposite Party No.2 tendered into evidence affidavit of Sh.Rajesh Kakaria, Ex.OP2/1 alongwith documents Ex.OP2/2 to Ex.OP2/20 and affidavit of Sh.Sudesh Sharma, Service Manager Ex.OP2/21 and closed the evidence on behalf of Opposite Party No.2. Similarly, Opposite Party No.3 tendered into evidence the affidavit of Sh.Manish Kumar, Assistant Manager Ex.OP3/1 alongwith copy of warranty policy Ex.OP3/2 and closed the evidence on behalf of Opposite Party No.3.  
7. We have carefully gone through the pleadings of the parties; arguments advanced by the ld.counsel for the parties and have appreciated the evidence produced on record by both the parties with the valuable assistance of the ld.counsel for both the parties.
8. From the record i.e. pleadings of the parties and the evidence produced on record by the parties, it is clear that the complainant purchased  Verna CRDi Car manufactured by Hyndai bearing V.I.N. No. MALCU41ULBM14573, Engine No. D4FBBU974596, Chassis No.LBM019573, Key No.86079, Colour White from Opposite Party No.1 on 24.7.2011. Complainant alleges that said car  is giving trouble and as such, there is a possibility of manufacturing defect which is required to be removed. The complainant approached Opposite Party No.2 authorized service centre of Opposite Party No.3, but despite  regular service within the schedule period, the Opposite Party No.2 failed to remove the defect of heating of engine due to fault in radiator of the vehicle. However, some parts of radiator were changed by  authorized service centre and the complainant paid for such parts, but inspite of that, the vehicle is still giving same problem. Opposite Party No.2 authorized service centre could not give satisfactory reply to the complainant regarding heating of the engine because of fault in radiator of car. Now the engine of the said vehicle is not functioning properly. Warranty period of said vehicle was for 2 years i.e. upto 23.7.2013 as the Opposite Party No.2 failed to rectify the defect in the vehicle within warranty period, the complainant was forced to file the present complaint with the apprehension that if the complainant continue  driving the said  vehicle on road, any accident may occur. So, the complainant has to park the said vehicle in her house and has to hire  taxi to attend her office and other daily routine work. The complainant also served legal notice dated 28.6.2013 Ex.C2 upon the Opposite Parties  through registered post, postal receipts of which are Ex.C3 to Ex.C5. Service record and repair of the vehicle alongwith invoices regarding the repair of the vehicle and change of parts of the vehicle are Ex.C6 to Ex.C18. In additional evidence, the complainant also filed report of Er.J.S.Malhotra, Surveyor and Loss Assessor Ex.C20 alongwith affidavit of Er.J.S.Malhotra, Surveyor and Loss Assessor Ex.C19 to prove that radiator of the vehicle in question is not working  properly. The complainant has made repeated complaints to Opposite Party No.2 regarding over heating of the engine of the car due to non proper working of radiator. However, radiator assy of the vehicle was changed  on 16.2.2013 at 32547 KMs. Even at speedometer 51765 KMs, the vehicle is  getting over heating after driving the same about 10 KMs, due to manufacturing defect in the engine of the vehicle which could not be cured/ repaired to the satisfaction of the complainant as per report of Er.J.S.Malhotra, Surveyor & Loss Assessor Ex.C20 dated 19.2.2015. Ld.counsel for the complainant submitted  that the vehicle of the complainant is getting heated due to  defect in the radiator of the car which the Opposite Party No.2 has failed to remove this defect despite repeated requests and change of parts of the radiator of the car. As such, the Opposite Parties have failed to make the vehicle of the complainant fully functional. All this amounts to deficiency of service on the part of the Opposite Party No.2 qua the complainant.    
9. Whereas the case of the Opposite Parties  No.2 and 3  is that there is no manufacturing defect in the vehicle of the complainant. The complainant and her family members had regularly  driven the car for continuous period of more than two years and  uptill 6.6.2013 when the car was brought last time to service centre of Opposite Party No.2, it had driven upto 44691 KMs, so it can not be believed that the car of the complainant is having manufacturing defect. Opposite Parties  further submitted that   due to accident of the vehicle more than two  times, radiator of the car was damaged and some parts of the same were replaced so there was no manufacturing defect of any kind in the vehicle as alleged by the complainant. Opposite Party No.2 submitted that at the time of  First free service on 8.8.2011 (Job sheet Ex.OP1/2), the vehicle had run for 1357 KMs. At the time, no defect was reported by the complainant or the person who had brought the car to the service station of Opposite Party No.2 and the vehicle was duly delivered as per satisfaction. Second accidental repair  as conducted by Opposite Party No.2 on 19.12.2011 (Job sheet Ex.OP1/3) and it was accidental service and vehicle had run for 9576 KMs at the time. Repair work was conducted by Opposite Party No.2 to the vehicle to the satisfaction of the complainant and the repair cost was duly paid by the complainant as per cash invoice Ex.OP2/7. At the time of second free service on 21.12.2011 (Job sheet Ex.OP1/4) and (invoice Ex.OP2/7) vehicle had run for 9576 KMs at the time which was soon after the accidental repair. No defect of any kind was reported by the complainant or the person who had brought the car to the service centre of Opposite Party No.2 and the vehicle was delivered to the complainant as per satisfaction. 4^th free service was conducted by Opposite Party No.2 on 21.3.2012 (Job sheet Ex.OP1/5)  and vehicle had run for 19825 KMs at that time, but no defect of any kind  was reported by the complainant and during the course of service, no defect was ever detected in the vehicle, copy of invoice is Ex.OP2/8. Necessary spare parts were changed in the vehicle for smooth  running of the vehicle and the vehicle was duly delivered to the complainant as per  satisfaction. 5^th accidental repair to the vehicle was conducted by Kosmo Hyundai Service Centre on 16.4.2012 and vehicle had run for 22740 KMs at the time. Thereafter on 14.6.2012 the vehicle came to  Opposite Party No.2 for  running repair/ accidental repair and  the vehicle had run for 25247 KMs at that time. Even at that time as per the job sheet Ex.OP1/6 and copy of invoice Ex.OP2/9 no defect of any kind was reported by the complainant nor any defect was ever detected in the vehicle. Necessary repair,  wheel alignment, etc. was done and the vehicle was duly delivered to the complainant as per  satisfaction. At the time of  7^th paid service on 28.1.2013, the vehicle had run  for 30609 KMs at the time. Even at that time, such alleged manufacturing defect of any kind was not reported by the complainant nor any such alleged defect was ever detected in the vehicle. Necessary repair to the vehicle for the smooth running was conducted by Opposite Party No.2 and vehicle was duly delivered to the complainant as per satisfaction, as per material requisition slip Ex.OP2/10 and invoice Ex.OP2/12. On 8^th, 9^th, 10^th and 11^th service (four times) i.e. on 13.2.2013, 25.3.2013, 29.3.2013, 25.4.2013, 6.6.2013  vide slips Ex.OP1/9 to Ex.OP1/14 the vehicle was brought to the service centre Opposite Party No.2 for running repair of the vehicle.  The vehicle was repaired as per invoice dated 15.2.2013 Ex.OP2/13, then on 28.3.2013 Ex.OP2/16, thereafter,  vide invoice dated 6.6.2013 Ex.OP2/18 and the vehicle was delivered to the complainant as per satisfaction. However, at  12^th paid service on 6.6.2013 the vehicle had run  for 44691 KMs at that time.  Even at that time,  no such allegation of  manufacturing defect of any kind was reported by the complainant nor during the course of service, any such alleged defect was ever detected in the vehicle.  Necessary repair to the vehicle for smooth running was conduced and the vehicle was delivered to the complainant as per satisfaction. So, on the last service on 6.6.2013 the  vehicle  had run on the road for 44691 KMs. As such, it can not be believed that the complainant has not brought the vehicle on road and has parked the same in her house as alleged by the complainant. However, over heating problem in the vehicle of the complainant was reported to Opposite Party No.2 and after change of spare parts in the vehicle i.e. radiator, said defect was removed by Opposite Party No.2 and the vehicle was delivered to the complainant after  proper satisfaction of the owner on 6.6.2013. Ld.counsel for the Opposite Parties  No.2 and 3 submitted that there is no deficiency of service on the part of the Opposite Party No.2 qua the complainant.
10. Ld.counsel for the Opposite Parties  submitted that the warranty period of vehicle in question has already expired when the complaint was filed by the complainant. Moreover, the vehicle has met with two, three times, accident, as such the vehicle in question is not covered under the warranty. As regards the expert examined by the complainant in the form of Er.J.S.Malhotra, Surveyor and Loss Assessor who filed his affidavit Ex.C19 and tendered his report Ex.C20 in the question, he has admitted in his cross examination that he is not Automobile Engineer and he did not receive any order from the Forum for the inspection of this vehicle. He inspected the vehicle on the asking of the complainant. He also admitted that the performance of the vehicle getting compromise after accidental repairs depends upon the damage suffered by the vehicle in accident and the quality of repair job undertaken. If repaired properly for accidental damage, performance of vehicle will not suffer. He has also admitted that over heating of the vehicle of the complainant was due to non proper functioning of the radiator. If engine of the vehicle is getting overheated frequently, deposits in the radiator and choking of it will be more frequent requiring flushing of radiator more frequently. Even this expert examined by the complainant could not point out any sort of manufacturing defect  in the vehicle in question which is beyond repair.  So, ld.counsel for the Opposite Parties  submitted that there is no deficiency of service on the part of the Opposite Parties  qua the complainant. 
11. From the entire above discussion, we have come to the conclusion that the complainant purchased  Verna CRDi Car bearing registration No. PB02-BN-8000 manufactured by Hyundai General Motors India Limited. Complainant submitted that she has been facing problems with the said vehicle due to over heating of the engine of the car, as a result of fault in radiator. She submitted that car in question was taken to Opposite Party No.2 authorized service station so many times for the removal of the said defect/ problem in the car, but the vehicle goes on giving same problem despite change of some parts in the radiator during 5^th and 6^th service of the car. Opposite Party No.2 could also not give satisfactory reply to the complainant regarding over heating of the engine of the car as a result of fault in radiator of the vehicle in question. Complainant also examined expert/ Eng.J.S.Malhotra, Surveyor & Loss Assessor who submitted his report dated 19.2.2015 Ex.C20 which was duly proved by Er.J.S.Malhotra, through his affidavit Ex.C19 in which he submitted that he drove the vehicle in question for about 10 KMs at 51755 KMs (reading). Said vehicle has problem of over heating of the engine for which on 28.1.2013  radiator flushing was done; even radiator assembly of the vehicle was changed on 16.2.2013; even at speedometer reading of 51765 KMs, the pick up of the vehicle was poor, vehicle was getting overheated. So, there is inference of major manufacturing defect in the engine of the vehicle which may be due to non proper functioning of the radiator which could not be cured despite replacement of radiator assembly and replacement of seal of  valve stem and the vehicle could not be repaired to the satisfaction. However, this witness in cross examination through interrogatories has admitted that he is not Auto mobile engineer nor he is running any workshop to check or repair the vehicles. His report is based upon examination of the vehicle as well as drive test. Even in the interrogatories this witness has admitted that when he made drive test of this car in the month of February, 2015, car had speedometer reading of 51755 KMs which proves that  car had been running on the road and was being regularly used/ driven by the complainant and it can not be said that same was lying parked at the house of the complainant as alleged by the complainant. This witness has also admitted that as per history/ record pertaining to the vehicle in question, car in question met with an accident 2-3 times and accidental repair has been done  to the vehicle. However, it depends upon the damage suffered by the vehicle in question and the quality of the repair job undertaken. As per record produced by the Opposite Party pertaining to the vehicle in question i.e. job sheets and invoices regarding repairs conducted to the vehicle Ex.OP2/5 to Ex.OP2/20 as well as job sheets/ repair invoices produced by the complainant herself Ex.C6 to Ex.C18, the complainant and her family members had regularly driven the car continuously and up till 6.6.2013 the car had been driven upto 44691 KMs. The car in question was purchased on 24.7.2011 vide Invoice dated 24.7.2011. Warranty period of said car was 2 years and as per warranty card /  terms and conditions of the warranty of the car Ex.OP1/16, the warranty is not applicable in case of misue, abuse, accident, etc of the car. Car was taken to Opposite Party No.2 for first  free service on 8.8.2011 vide job sheet Ex.OP1/2, vehicle had  run upto 1357 KMs. At that time, no defect was reported by the complainant or  the person who brought the said vehicle to service station of Opposite Party No.2. The vehicle was duly delivered as per satisfaction. Thereafter, car met with an accident and second time, the car was brought to Opposite Party No.2 for accidental repair on 19.12.2011 vide job sheet Ex.OP1/3. As such, it was accidental service and at that time, the vehicle had run upto 9576 KMs. Repair work was conducted by Opposite Party No.2 to the vehicle to the satisfaction of the complainant and repair cost was duly paid by the complainant as per cash invoice Ex.OP2/7. At the time of second free  service on 21.12.2011 vide job sheet Ex.OP1/4, no defect of any kind was reported by the complainant or person who brought the car to the service station of Opposite Party No.2 and the vehicle was delivered to the complainant as per  satisfaction. At the time of 4^th free service of the car in question conducted by Opposite Party No.2 on 21.3.2012 vide job sheet Ex.OP1/5 the vehicle had run upto 19825 KMs at that time, but no defect of any kind  was reported by the complainant nor any defect was ever detected in the vehicle in question as is evident from job sheet Ex.OP1/5 and Invoice Ex.OP2/8. Only necessary spare parts were changed in the vehicle for smooth  running of the vehicle and the vehicle was delivered to the complainant as per  satisfaction. Thereafter, said vehicle met with an accident and  5^th time accidental repair to the vehicle was conducted by Kosmo Hyundai,  ASR,(authorized service centre of Hyundai Motors) on 16.4.2012 and vehicle had run upto 22740 KMs at that time. Thereafter, on 14.6.2012 the vehicle came to the service station of Opposite Party No.2 for running/ accidental repair and the  vehicle had already run upto for 25247 KMs at that time. Even at  that time, as per job sheet Ex.Op1/6 and invoice Ex.OP2/9, no defect of any kind was reported by the complainant nor any defect  was detected  in the vehicle.  Only necessary repair, wheel alignment, etc. was done and the vehicle was delivered to the complainant as per  satisfaction. At the time of  7^th paid service on 28.1.2013, the vehicle had run  upto 30609 KMs. Even at that time, such alleged manufacturing defect of any kind was not reported by the complainant nor any  defect was ever detected in the vehicle. Necessary repair to the vehicle for the smooth running was conducted by Opposite Party No.2 and vehicle was delivered to the complainant as per satisfaction, as per material requisition slip Ex.OP2/10 and invoice Ex.OP2/12. Even the vehicle was brought to Opposite Party No.2 authorised service station  on 13.2.2013, 25.3.2013, 29.3.2013, 25.4.2013, 6.6.2013  vide slips Ex.OP1/9 to Ex.OP1/14 and the running repair of the vehicle was conducted as per invoices dated 15.2.2013 Ex.OP2/13, dated  28.3.2013 Ex.OP2/16 and dated 6.6.2013 Ex.OP2/18 and the vehicle was delivered to the complainant as per satisfaction. However, at  12^th paid service on 6.6.2013 the vehicle had run  for 44691 KMs ; But  no such allegation of  manufacturing defect of any kind was reported by the complainant nor during the course of any service, any such alleged defect was ever detected in the vehicle.  Necessary repair to the vehicle for smooth running was conduced and the vehicle was delivered to the complainant as per satisfaction. So, on the last service on 6.6.2013 the  vehicle  had run on the road for 44691 KMs. Therefore, it can not be believed that the complainant has not brought the vehicle on road and has parked the same in her house as alleged by the complainant. However, over heating problem in the vehicle of the complainant was reported to Opposite Party No.2 and after change of some spare parts in the vehicle i.e. radiator, said defect was removed by Opposite Party No.2 and the vehicle was delivered to the complainant after  proper satisfaction of the owner on 6.6.2013. It is clear that before 6.6.2013 the complainant has never alleged any manufacturing defect in the vehicle in question. Admittedly, this vehicle was purchased by the complainant on 24.7.2011 and for about 2 years upto 6.6.2011 no manufacturing defect which was not repairable in the vehicle of the complainant, could be pointed out  by the complainant in the vehicle in question nor any defect was ever detected by authorized service station i.e. Opposite Party No.2 during the course of free/ paid/ accidental repair service of the vehicle in question, as detailed above. However, during the warranty period of 2 years, the complainant has reported the problem of over heating of the engine of the vehicle in question as a result of fault in radiator of the vehicle in question. During the warranty period the Opposite Party No.2 repaired the radiator of the vehicle in question and even changed its assembly, but even then the problem of over heating of the engine of the vehicle in question could not be removed. The report of the expert Er.J.S.Malhotra, Surveyor & Loss Assessor Ex.C20 which was duly proved by him vide affidavit Ex.C19 states that even at the speedometer reading of 51765 KMs, he drove the vehicle for about 10 KMs and found that the pick up of the vehicle was poor and while driving, emission of smoke was excessive. The vehicle is getting overheated after driving the same for about 10 KMs, giving inference that there is some major manufacturing defect in the engine of the vehicle which is resulting into overheating and low pick up of the vehicle which could not be cured despite replacing the radiator assembly in 2013, and even earlier replacement of seal of valve stem on 26.7.2011. However, during his cross examination, this witness has admitted that this may be due to fault in the radiator of the vehicle in question. So, it stands fully proved on record that radiator of the vehicle in question is not working properly as a result of which the engine of the vehicle becomes overheated after driving the vehicle for about 10 KMs, that is why there is low pick up of the vehicle. Ld.counsel for the Opposite Party No.2 submitted that  the vehicle in question met with an accident and the complainant herself  has admitted in the complaint that she got accidental repair service of the vehicle in question from the authorized service stations of Hyundai Motors Limited, so as per the terms and conditions of the warranty, the vehicle of the complainant is not entitled to warranty facility as the vehicle of the complainant met with an accident. Here we do not agree with this contention of the ld.counsel for Opposite Party No.2 because minor accidental repair of the vehicle does not make the warranty of the vehicle  not applicable. Opposite Parties  could not produce on record any evidence that the vehicle of the complainant had met major accidents as a result of which warranty is not applicable, rather the documents produced on record by Opposite Parties  as well as complainant prove that the vehicle of the complainant had undergone some minor accidental repair and not major accidental repair. So, Opposite Parties  can not wriggle out from the warranty applicable to the vehicle in question i.e. for 2 years from the date of purchase. Over heating problem of the engine of the vehicle in question might be due to defect in radiator of the vehicle in question occurred during the warranty period and the Opposite Parties  No.2 and 3 were liable to repair the vehicle of the complainant and make it fully functional, but the Opposite Parties  No.2 and 3 failed to remove this defect of over heating of the engine of the vehicle in question and that may be due to non proper functioning of the radiator of the vehicle. However, the complainant and even the expert examined by the complainant could not prove any inherent/ manufacturing defect in the vehicle in question which is beyond repair.
12. Consequently, this complaint is disposed of with the directions to Opposite Parties  No.2 and 3 to make the vehicle of the complainant fully functional by replacing the radiator of the vehicle of the complainant with new one and removing the defect of overheating of the engine of the vehicle to the satisfaction of the complainant without charging any amount from the complainant, within 2 months from the date of receipt of copy of this order.  Opposite Parties No. 2 and 3 are also directed to pay the costs of litigation to the tune of Rs.5000/-, to the complainant.  Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Dated: 06-01-2016.                                          (Bhupinder Singh)                                                                                                President

hrg                                                (Anoop Sharma)     (Kulwant Kaur Bajwa)   

              Member                         Member