Complaint No: 234 of 2019.
Date of Institution: 16.07.2019.
Date of order: 20.11.2023.
Jacob Masih Son of Bachan Masih, resident of Village Singhpura P.O. Dhariwal Tehsil and District Gurdaspur.
….....Complainant.
VERSUS
1. Novelty Hyundai, Batala Road Babri Tehsil and District Gurdaspur, through its Manager.
2. Hyundai Motors India Ltd. Elante Mall, 178-178-A, Poorvi Marg, Industrial Area Phase-I Chandidarh-160002, through its authorized representative.
3. Matics India Private Ltd. (Business Partner – Kumbo Tries) C-169, Sector -63, NOIDA (UP).
….Opposite parties.
Complaint U/s 12 of the Consumer Protection Act.
Present: For the Complainant: Sh. Paul Sandhu, Advocate.
For the Opposite Party No.1: Sh. Sachin Mahajan, Advocate.
For the Opposite Party No.2: Sh. K.S. Saini, Advocate.
Opposite Party No.3 exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Jacob Masih, Complainant (here-in-after referred to as complainant) has filed this complaint under section 12 of the Consumer Protection Act (here-in-after referred to as 'Act') against Novelty Hyundai Etc. (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that the OP No. 1 is authorized sales and service Dealership of Hyundai Cars. It is pleaded that the Complainant approached for the purchase of Hyundai Car make Creta 1.4 CRDI S Polar White (PSW) in July 2017 and OP No. 1 also delivered possession of the vehicle to the complainant on 24.07.2017 bearing Engine No.D4FCHM376296 Chassis No. MALC281 RLHM278313 colour white after receiving full payment of the vehicle i.e. Rs.11,17,971/-. It is further pleaded that the vehicle was registered with the concerned authorities and was allotted Registration No.PB-06-AN-1001. It is further pleaded that OP No. 1 gave warranty for a period of two years of this vehicle. It is further pleaded that the complainant has purchased the above said vehicle for his personal use and he is plying the same very carefully. It is further pleaded that the tyres of the said vehicle became out of order when the vehicle was plied only 30,000 Kms i.e. within warranty period. It is further pleaded that the complainant had brought this fact to the notice of the OP No. 1 and the OP No. 1 told the complainant that there is manufacturing defect in the tyres and assured that he will take up the matter with the concerned agency i.e. Kumho India, but the said agency retuned claim of the OP No. 1 with the remarks that there are some tiny marks due to road side wear & tear and no claim is permissible, and thereafter, the OP No. 1 also refused to take up any action into the matter, which act of the OP’s caused mental agony, torture, physical harassment and financial loss to the complainant for no fault on his part. It is further pleaded that complainant was constraining to spend Rs.26,000/- for purchasing new tyres for making the vehicle use worthy. It is further pleaded that the complainant has no concern with the above said agency i.e. Kumho India, because the complainant had purchased the vehicle from the OP No. 1 along with tyres in question and other accessories fitted thereon and therefore, the OP’s are liable to replace the defective tyres of the vehicle with the new tyres as the tyres have gone out of working order within warranty period. It is further pleaded that the OP’s are trying to wriggle out from his obligation by shifting the onus on other agencies. It is further pleaded that the OP’s are liable to replace the defective tyres of the said vehicle in question as the complainant had paid huge money to the OP’s at the time of purchasing the said vehicle and there is no fault on his part. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.
On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the defective tyres of the vehicle in question with new tyres. It is further prayed that compensation to the tune of Rs.50,000/- may also be awarded to the complainant on account mental agony, physical harassment and deficiency in service on the part of the opposite parties. Litigation expenses to the tune of Rs.10,000/- may also be awarded in favour of the complainant, in the interest of justice.
3. Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complaint filed by the complainant is not legally maintainable against replying opposite party as relief sought is regarding damage of tyres of the car. It is pleaded that the replying opposite party is dealer of Hyundai Motors India Ltd., who manufactures the car in question. As per manufacturing company policy, "AUDIO VIDEO NAVIGATION SYSTEM, WIRELESS CHARGER, SMART KEY BAND, BATTERIES, TYRES & TUBES AND AUDIO SYSTEMS, ORIGINALLY EQUIPPED ON HYUNDAI VEHICLES ARE WARRANTED DIRECTLY BY THE RESPECTIVE MANUFACTURERS AND NOT BY HYUNDAI MOTORS INDIA LTD. (HMIL)". It is further pleaded that it clearly shows that manufacturing company of respective damage part is responsible for the warranty of the defective goods. It is further pleaded that the replying opposite party is not liable for any loss or replacement of the tyres as claimed for by the complainant, as such, the complaint against replying opposite party is liable to be dismissed on this ground alone. It is further pleaded that the complaint is not legally maintainable and is liable to be dismissed, as no cause of action ever arose in favour of the Complainant against the replying opposite party to file the present complaint and hence, the complaint under reply is an abuse of the process of law and as such, the same is liable to be dismissed. It is further pleaded that present complaint has been filed by the complainant to get undue advantage from the replying opposite party and to cause harm the reputation of the replying opposite party. It is further pleaded that there is no deficiency in service on part of the replying opposite party. It is further pleaded that as and when the complainant had visited to workshop of the replying opposite party, and reported about defect in the tyres of the car, same problem was reported further to the manufacturing company i.e. MATICS INDIA PRIVATE LTD. (BUSINESS PARTNER-KUMHO TIRES), C-169, SECTOR- 63, NOIDA-201301 UTTAR PARDESH, and after checking the data provided, the company has refused to change the tyres of the car of the complainant. It is further pleaded that there is no fault or deficiency in service on part of the replying opposite party. It is further pleaded that it is to be decided by the manufacturing company of the tyres and the manufacturing company of the car, who provided warranty to customers, as such, application for impleading such companies in the present dispute, was rightly moved by the replying opposite party before the Hon'ble Commission. It is further pleaded that the complaint is bad for non-joinder of the necessary parties. It is the manufacturing company of the tyres and manufacturing company of the car, who provides warranty to its customers. The replying opposite party has no concern with the dispute occurred with the tyres of the car of the complainant.
On merits, the opposite party No.1 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
4. Upon notice, the opposite party No.2 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the complainant has no locus standi to file the present complaint against HYUNDAI MOTOR INDIA LTD. (HMIL) i.e. OP No. 2 as complainant have failed to prove by any document on record that any cause of action arose to the complainant to file the present complaint against HMIL (OP No. 2). It is further pleaded that the complaint filed by the complainant against the HMIL (OP No. 2) is false, frivolous and vexatious and thus the present complaint is liable to be dismissed under the provisions of Consumer Protection Act qua HMIL (OP No. 2). It is further pleaded that the complainant has nowhere made any allegation against HMIL (OP No. 2) throughout the complaint even after filling amended complaint thus the present complaint is liable to be dismissed qua HMIL on this ground itself. It is further pleaded that the present complaint is liable to be dismissed for concealment and misrepresentation of material facts as complainant has filed the present complaint by suppressing the material facts and by misleading the facts before the Hon'ble Commission just to get an undue advantage and undue relief. It is further pleaded that the tyres in question are not covered under HMIL i.e. OP No. 2 warranty policy as tyres are warranted by the respective manufacturer i.e. Khumho India in the present case. Relevant extract of Warranty policy is reproduced as under:
"Audio Video Navigation System, Batteries, Tyres & Tubes and Audio Systems, originally equipped on Hyundai vehicles are warranted directly by the respective manufacturer and not by HMIL." It is further pleaded that from this fact it is clear that Tyres are not covered under the warranty policy of HMIL and these are warranted by the tyre manufacturer i.e. Khumho India in the present case. It is further pleaded that the present complaint is liable to be dismissed on this ground itself and present complaint is liable to be dismissed for Non-joinder of necessary party. It is further pleaded that the present complaint is liable to be dismissed for concealment of material fact i.e. that complainant had reported his vehicle for accidental repairs on dated 15.01.2018 @ 5,193 KM's and on 20.06.2018 @ 11,806 KM's as it proves that vehicle was not kept in original condition by the complainant which can be a contributing factor to the alleged wear and tear which is being touted as manufacturing defect/defect of the tyres by the complainant. It is further pleaded that life of tyres depend on number of factors e.g. maintaining proper tyre pressure, periodic Wheel balancing and Alignment, road conditions, driving habits, vehicle loading capacity, etc. It is further pleaded that the present complaint is liable to be dismissed on this ground itself. It is further pleaded that the complainant had made allegations regarding manufacturing defect/defective tyres but had failed to describe any such manufacturing defect/defect as what real issue he had faced due to such tyres. It is further pleaded that the only issue complainant had stated in the present complaint that the tyres had become out of order at 30,000 KM's. It is further pleaded that HMIL (OP No. 2) operates with all its dealers including OP No. 1 (M/s Novelty Hyundai) on "Principal-To-Principal" basis and NOT on "Principal-To-Agent" basis thereby meaning that error / omission / misrepresentations etc., if any, at the retailing or servicing of the car by the dealer is the sole responsibility of the concerned dealer.
On merits, the opposite party No.2 have reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in services on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.
5. Opposite party No.3 did not appear despite the service of notice and was proceeded against exparte vide order date 10.10.2023.
6. Learned counsel for the complainant has filed an affidavit of Jacob Masih, (Complainant) alongwith other documents as Ex.C-1 to Ex.C-7.
7. Learned counsel for the opposite party No.1 has tendered into evidence self-attested affidavit of Sh. Rajesh Kakaria, (Authorized Signatory of Novelty Hyundai, Gurdaspur) as Ex.OP-1/1 alongwith other documents as Ex.OP-1/2 to Ex.OP-1/4.
8. Learned counsel for the opposite party No.2 has tendered into evidence affidavit of Sh. Varun Panta, (Assistant Manager of M/s Hyundai Motor Ltd., New Delhi) as Ex.OPW-2/A alongwith other documents as Ex.OP-2/1 to Ex.OP-2/2.
9. Rejoinder not filed by the complainant.
10. Written arguments filed by the complainant and also filed by the opposite party No.2 but not filed by the opposite parties No.1.
11. Counsel for the complainant has argued that complainant had purchased car from opposite party No.1 manufactured by opposite party No.2. It is further argued that after just plying the vehicle for 30,000 Kms. The tyres of the vehicle became out of order and on matter having been taken up with opposite party No.1 and opposite party No.1 assured to take up the matter with manufacturer of tyres Kumho India. It is further argued that Kumho India examined the tyres and found that there are some tiny marks due to road side wear and tear and no claim is permissible. It is further argued that complainant had to purchase new tyres worth Rs.26,000/-. The act of opposite party No.1 retailer, opposite party No.2 manufacturer and opposite party No.3 manufacturer of tyres amounts to deficiency in service.
12. On the other hand counsel for the opposite party No.1 has argued that as per manufacturing policy tyres and batteries is part of responsibility of the company which had manufactured the said product and liability if any is of Matics India Pvt. Ltd. manufacturer of the tyres. It is further argued that complaint is false and there was no damage of any kind to the tyres.
13. Counsel for the opposite party No.2 has argued that relationship between opposite parties No.1 and 2 is on principle to principle basis and damage to the tyres if any is responsibility of the retailer or manufacturer of tyres i.e. Kumho India.
14. Opposite party No.3 remained exparte.
15. To prove his case complainant has placed on record his affidavit, copy of bill Ex.C1, copy of R.C. Ex.C2, copy of bill Ex.C3, copies of E-mails Ex.C4 and Ex.C5, copy of Aadhaar Card Ex.C6 and bill of tyres Ex.C7 whereas opposite party No.1 has placed on record affidavit of Rajesh Kakaria Ex.OP-1/1, copy of resolution Ex.OP-1/2, copy of General Power of Attorney Ex.OP-1/3 and copy of warranty policy Ex.OP-1/4. Opposite party No.2 has placed on record affidavit of Varun Panta Ex.OPW-2/A, copy of hyundai warranty policy Ex.OP-2/1, copy of dealership agreement Ex.OP-2/2.
16. It is admitted fact that complainant had purchased car vide bill Ex.C1 from opposite party No.1 manufactured by opposite party No.2. It is further admitted fact that tyres of the said car had some problem. It is further admitted fact that matter was taken up by the complainant with the opposite party No.1 and opposite party No.1 referred the matter to opposite party No.3. It is further admitted fact that opposite party has refused the claim on the ground that there are tinny marks on the tyres due to road side wear and tear. We are of the view that since the complainant has purchased the said car from opposite party No.1 and manufactured by opposite party No.2 and as such opposite parties No.1 and 2 are liable to provide full warranty regarding every product in case of any problem and in the present case the defect in the tyres is admitted when the car has run only 30,000 kms and opposite parties cannot deny the claim of the complainant on the ground that same had developed due to road side war and tear. We are of the view that since the vehicle has to be used in India and it is the duty of the opposite parties to manufacture the vehicle by taking into consideration the road condition in India and if any defect has occurred in the tyres in that case it is the responsibility of opposite parties No.1 and 2 to rectify the same. The plea of opposite parties No.1 and 2 that in case of manufacturing defect in tyres only opposite party No.3 is responsible is not acceptable as the entire sale consideration has been received by opposite parties No.1 and 2 and as such it is the responsibility of opposite parties No.1 and 2 to compensate the complainant and provide warranty. Opposite parties No.1 and 2 can recover and penalize opposite party No.3 as per their internal agreement if any. Since it is admitted fact that vehicle had already been driven upto 30,000 Kms. when complainant got new tyres affixed vide bill Ex.C7 as such we are of the view that since the tyres had already covered half of their life which is generally not more than 60,000 kms, as such complainant can be compensated by paying half of the cost of the new tyres i.e. Rs.13,000/-.
17. Accordingly, present complaint is partly allowed and opposite parties No.1 and 2 are directed to pay Rs.13,000/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the complaint till realization. Opposite parties No.1 and 2 are also directed to pay Rs.2,000/- as compensation to the complainant on account mental tension, harassment and cost of litigation. Entire exercise shall be completed within 30 days from the date of receipt of copy of this order.
18. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.
19. Copy of the order be communicated to the parties free of charges. File be consigned.
(Lalit Mohan Dogra)
President.
Announced: (B.S.Matharu)
Nov. 20, 2023 Member.
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