Punjab

Sangrur

CC/248/2022

M/s Nexus Sanitations Pvt. Ltd. - Complainant(s)

Versus

Park Hyundai - Opp.Party(s)

Sh. Amanjot Singh

02 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .

 

                                                                        Complaint No. 248

 Instituted on:   08.03.2022

                                                                         Decided on:     02.11.2023

 

M/s. Nexus Sanitations Pvt. Ltd. C-37, Focal Point, Industrial Area, Sangrur through its Director Sh. Balwinder Kumar.

                                                         …. Complainant.     

                                                 Versus

1.             Park Hyundai, Village Kamo Majra Kalan, after IOC Depot, Jind Road, Sangrur.

2.             Amar Parkash Agro India Limited, After IOC Depot, Jind Road, Sangrur.

3.             Berk Auto Limited Liability partnership, SCO 6,7,8,9, Chima Complex, Defence Enclave Patiala Road, Zirakpur, SAS Nagar (Mohali).

4.             Hyundai Motor India Limited, Gurugram Plot C-11, City Centre, Sector 29, Gurugram, Haryana.

5.             UCO Bank Sangrur through its Branch Manager, Near Bhagat Singh Chowk, Sangrur. (Given up by the complainant on 5.5.2022).  

                                                        ..Opposite parties.

 

For the complainant  :       Shri Amanjot Singh, Adv.

For Opp.parties 1&2 :       Shri Rahul Sharma, Adv.

For OP No.3             :       Shri Gagandeep Singh, Adv.

For OP NO.4.            :       Shri Harpreet Singh, Adv.

 

Quorum                                          

Jot Naranjan Singh Gill, President

Sarita Garg, Member

                        Kanwaljeet Singh, Member

 

ORDER

JOT NARANJAN SINGH GILL, PRESIDENT

1.             Complainant has preferred the present complaint against the opposite parties  on the ground that  on 12.5.2021 the complainant purchased one Next Gen Verna Car from OP number 3 for Rs.13,12,889/- vide invoice dated 12.5.2021 for his personal use.  Apart from that the complainant paid an amount of Rs.29,998/- for insurance of the vehicle and Rs.94,687/- on account of registration and the vehicle was got registered under registration number PB-13-BM-9998. Further case of complainant is that within one week from its purchase, complainant noticed that braking system of the car was not working properly due to some manufacturing defects therein, which fact was brought to the notice of OPs to solve the issue, but every time they put off the matter by lame excuses. Further when the braking system started giving serious problems then complainant again approached OPs number 1 and 2 on 27.12.2021 and reported the concern but OP number 1 and 2 promised to deliver the car within two days of the solving of the issue. After 10 days when no intimation was received the complainant approached OPs number 1 and 2 through email on 5.1.2022, but of no avail. Then OP number 1 and 2 ultimately on 14.1.2022 delivered the car in question to complainant. Only invoice was issued but no job card was supplied. Again on 25.1.2022 the complainant approached OPs number 1 and 2 with the braking system problem in the car in question, but nothing was done and the OPs sent email dated 31.1.2022 reiterating that there is no problem in the braking system and asked to take delivery of the car, failing which they will charge Rs.100/- per day as parking charges. It is further averred that braking system of a vehicle is an important component and any defect and particularly manufacturing defect in braking system is always risky to the life of occupiers and others, but in the present case the OPs failed to remove the defect of braking system in the vehicle.  Further it is averred that by keeping the vehicle in question from 27.12.2021 to 14.1.2022 and failing to solve the issue,  OPs are not only deficient in service but also indulged in unfair trade practice.  The vehicle in question is still lying with OP number 1 and 2. Thus, alleging deficiency in service on the part of the OPs, the complainant has prayed that the OPs be directed to replace the vehicle in question with a new one defect free vehicle or in the alternative to refund the price of the vehicle alongwith insurance and registration expenses and further to pay compensation and litigation expenses.

2.             In reply filed by Ops number 1 and 2, legal objections are taken up on the grounds that the complaint against them is not maintainable, that the complainant has no locus standi to file present complaint and that the complainant has no cause of action to file the present complaint and that the complainant has not come to this Commission with clean hands.  On merits, it has been stated that the complainant had purchased the vehicle from OP number 3 not from OPs number 1 and 2. It is stated further that there is no defect in the vehicle nor the OPs ever given the warranty of the vehicle. It has been denied that there is any manufacturing defect in the vehicle. It has been further averred that the repair order of the vehicle was opened on 13.1.2022 after the arrival of spare parts and the braking system of the vehicle was checked on 27.1.2022 in the presence of customer and vehicle was found free from any defect. Apart from that, some additional objections have also been taken that the complainant approached the OPs number 1 and 2 first time on 10.6.2021 for first service of the vehicle in question which was done on 1753 KMs and the complainant did not lodge any brake problem whatsoever. Second service was done on 4.12.2021 at 10885 KMs  and the complainant did not lodge any braking problem in the vehicle. The brake master cylinder and brake booster were changed as per complaint of the complainant on 14.1.2022. The vehicle was checked on 25.1.2022 and no problem was detected. It has been denied that there is any manufacturing defect in the vehicle. Lastly, the OP number 1 and 2 have prayed for dismissal of the complaint.

3.             In reply filed by OP number 3, preliminary objections are taken up on the grounds that the complainant has no cause of action to file the present complaint, that the complainant never approached the OP for any kind of complaints regarding defect of the car, that as per the complainant there was manufacturing defect in the car, but it was not due to OP number 3 as OP number 3 is not the manufacturer of the car in question. OP number 3 provided the services of selling of new cars and after sale services. On merits, the allegations levelled in the complaint have been denied in toto. Laslty, OP number 3 have prayed for dismissal of the complaint with costs.

4.             In reply filed by OP number 4, preliminary objections are taken up on the grounds that the complainant has no locus standi to file the present complaint, that the complaint is false, frivolous and vexatious in nature and should be dismissed for concealment of material facts. The complaint deserves dismissal as the complainant has failed to prove the nature of defect which he had alleged in the present complaint and that the vehicle of complainant was inspected by the technical team in the presence of complainant and no such abnormality was found in the braking system of the vehicle that there is no manufacturing defect in the vehicle. It is further averred that no money from the sale consideration of the vehicle was paid to the OP number 4 and averred further that the complaint is false, frivolous and vexatious in nature which should be dismissed. On merits, it is admitted that the complainant had purchased the vehicle in question on 12.5.2021. No money from such transaction between the complainant and dealer is passed to OP number 4. The aspect of retail sale is strictly inter-se the complainant and the concerned selling dealer. It has been specifically denied that there is any manufacturing defect in the braking system of the vehicle or in any part of the vehicle itself, as no such problem was ever reported by the complainant. Had there been a manufacturing defect then vehicle would not have covered 13000 KMs. When the concern regarding braking system was reported required action was taken for the satisfaction of the complainant and whenever any problem was reported the same was rectified.  Further it is averred that as per record, complainant had reported the vehicle for first free service and also for second free service on 10.6.2021 and 4.12.2021,  respectively. The complainant had reported the vehicle for braking issue on 13.1.2022 and even after inspection by the dealer no defect was found. However, for the satisfaction of the complainant, parts were changed free of cost under warranty and vehicle was delivered back to the complainant. Thereafter the complainant had again reported the vehicle for braking concern on 27.1.2022 and vehicle was again inspected in the presence of the complainant and vehicle was again inspected on 30.1.2022 and no abnormality was found in the vehicle and the same was communicated to the complainant. Further it is averred that for the satisfaction of the complainant, technical team of OP number 4 also visited on 30.1.2022 to inspect the vehicle and after inspection no abnormality was found in the braking system.  The other allegations levelled in the complaint have been denied in toto. Lastly, OP number 4 has prayed that the complaint be dismissed with special costs.

5.             The learned counsel for the complainant has produced Ex.C-1 to Ex.C-14 copies of documents and affidavits and closed evidence. On the other hand, the learned counsel for OPs number 1 and 2 has produced Ex.OP1&2/1 to Ex.OP1&2/8 copies of documents and affidavits and closed evidence. The learned counsel for OP number 3 has produced Ex.OP3/1 affidavit and closed evidence. The learned counsel for OP number 4 has produced Ex.OP4/1 to Ex.OP4/14 copies of documents and affidavit and closed evidence.

6.             We have gone through the pleadings put in by  the parties along with their supporting documents with their valuable assistance. 

7.             The learned counsel for the complainant has vehemently contended that the complainant purchased one Next Gen Verna Car from OP number 3 for Rs.13,12,889/- vide invoice dated 12.5.2021 for his personal use vide bill, copy of which on record is Ex.C-1.  Apart from that the complainant paid an amount of Rs.29,998/- for insurance of the vehicle and Rs.94,687/- on account of registration and the vehicle was got registered under registration number PB-13-BM-9998. Further the learned counsel for the complainant has argued that within one week from its purchase, complainant noticed that braking system of the car was not working properly due to some manufacturing defects therein, which fact was brought to the notice of OPs to solve the issue, but every time they put off the matter by lame excuses. Further when the braking system started giving serious problems then complainant again approached OPs number 1 and 2 on 27.12.2021 and reported the concern but OP number 1 and 2 promised to deliver the car within two days of the solving of the issue. After 10 days when no intimation was received the complainant approached OPs number 1 and 2 through email on 5.1.2022, but of no avail. Then OP number 1 and 2 ultimately on 14.1.2022 delivered the car in question to complainant. Only invoice was issued but no job card was supplied. Again the complainant approached OPs number 1 and 2 through email on 5.1.2022, but of no avail. Then OP number 2 ultimately on 14.1.2022 delivered the car in question to complainant. Again on 25.1.2022 the complainant approached OPs number 1 and 2 with the braking system problem in the car in question, but nothing was done and the OPs sent email dated 31.1.2022 reiterating that there is no problem in the braking system and asked to take delivery of the car, failing which they will charge Rs.100/- per day as parking charges. It is further contended by the learned counsel for the complainant that braking system of a vehicle is an important component and any defect particularly manufacturing defect in braking system is always risky to the life of occupiers and others, but in the present case the OPs failed to remove the defect of braking system in the vehicle.  Further it is contended by the learned counsel for complainant that by keeping the vehicle in question from 27.12.2021 to 14.1.2022 and failing to solve the issue,  OPs are not only deficient in service but also indulged in unfair trade practice.  The vehicle in question is still lying with OP number 1 and 2.  Further to support the contention the learned counsel for complainant has drawn our attention towards copy of legal notice Ex.C-8 served upon all the OPs. Ex.C-9 to Ex.C-12 are the postal receipts showing the service of legal notices to the OPs. The learned counsel for the complainant has further contended vehemently that braking system of the vehicle has major role in saving the life of occupiers as well of the others who are going on road. The complainant has also produced affidavit Ex.C-13 to support the contention in the complaint and  also produced Ex.C-14 affidavit of Balwinder Kumar Director further to counter the allegations of the OPs in rebuttal, wherein it has clearly been stated that the inspection report submitted by the OPs is totally false as no part of the car in question was replaced, no proper inspection of the vehicle was conducted. Some specific equipments are required for checking of the braking system of the car in question, which were not brought by the expert, as such, this report carries no evidentiary value in the eye of law.  It is further mentioned in the affidavit that the complainant/deponent has no reason to park his newly purchased vehicle at the agency if there was no manufacturing defect. The vehicle has only been parked as the vehicle is not in the road worthy condition and there is risk of lives if the vehicle is plied at the road.  Further to support the case complainant produced Ex.C-5 invoice dated 14.01.2022 in which it is clearly mentioned that brake fluid, booster assy. brake and cylinder assy. brake master were changed. These are the vital parts of the braking system of a vehicle.

8.             On the other hand, the learned counsel for the OPs number 1 and 2 has vehemently argued that the car in question was purchased by the complainant from the OP number 3 and further contended that   there is no defect in the braking system of the car in question. Further the learned counsel has contended that the repair order of the vehicle was opened on 13.1.2022 after the arrival of spare parts and the braking system of the vehicle was checked on 27.1.2022 in the presence of customer and vehicle was found free from any defect which was duly intimated to the complainant. Further it is contended by the learned counsel for OPs number 1 and 2 that the complainant approached the OPs number 1 and 2 first time on 10.6.2021 for first service of the vehicle in question which was done on 1753 KMs and the complainant did not lodge any brake problem whatsoever. Further second service of the vehicle  was done on 4.12.2021 at 10885 KMs  and the complainant did not lodge any braking problem in the vehicle. The brake master cylinder and brake booster were changed as per complaint of the complainant on 14.1.2022. The vehicle was checked on 25.1.2022 and no problem was detected. It has been denied that there is any manufacturing defect in the vehicle.  Ex.OP1&2/2 and Ex.OP1&2/3 are the copies of the repair order showing service of the vehicle was done. Ex.OP1&2/4 is the copy of repair order dated 13.1.2022 wherein the problem relating to “BREAK CHECK” has been shown. Again Ex.OP1&2/5 is the copy of repair order dated 27.01.2022 wherein the problem relating to “BREAK CHECK” has again been shown. To support the contention, the OPs number 1 and 2 have produced affidavit Ex.OP1&2/1 of Shri Jagdish Bansal.The learned counsel for the OPs number 1 and 2 has contended further that there is no manufacturing defect in the vehicle as such complaint should be dismissed.

9.             On the other hand, the learned counsel for OP number 3 has contended that as per the complainant there was manufacturing defect in the car, but it was not due to OP number 3 as OP number 3 is not the manufacturer of the car in question. To support the contention, affidavit Ex.OP3/1 of Shri Varun Sud has been produced on record by OP number 3.  

10.           The learned counsel for OP number 4 has argued that retail sale is strictly inter-se the complainant and the concerned selling dealer and nothing has been done by OP number 4. It has been specifically denied that there is any manufacturing defect in the braking system of the vehicle or in any part of the vehicle itself, as no such problem was ever reported by the complainant. Had there been a manufacturing defect then vehicle would not have covered 13000 KMs. When the concern regarding braking system was reported required action was taken for the satisfaction of the complainant and whenever any problem was reported the same was rectified and as such has contended further that the complaint should be dismissed with special costs.   Further it is contended that as per record, complainant had reported the vehicle for first free service and also for second free service on 10.6.2021 and 4.12.2021,  respectively. The complainant had reported the vehicle for braking issue on 13.1.2022 and even after inspection by the dealer no defect was found. However, for the satisfaction of the complainant, parts were changed free of cost under warranty and vehicle was delivered back to the complainant. Thereafter the complainant had again reported the vehicle for braking concern on 27.1.2022 and vehicle was again inspected in the presence of the complainant and vehicle was again inspected on 30.1.2022 and no abnormality was found in the vehicle and the same was communicated to the complainant. Further it is contended that for the satisfaction of the complainant, technical team of OP number 4 also visited on 30.1.2022 to inspect the vehicle and after inspection no abnormality was found in the braking system. Lastly, OP number 4 has prayed that the complaint be dismissed. The OP number 4 has also produced Ex.OP4/1 to Ex.OP4/2 copies of repair order. Ex.OP4/3 is the copy of email. We have also perused the inspection report Ex.OP4/8 submitted by one Arvind, alleged Zonal Technical Coordinator of the OP number 4 and in his report he has mentioned that no break issue was found during the inspection of the vehicle and has also produced affidavit Ex.OP4/7A to support his contention. OP number 4 has also produced Ex.OP4/9 document regarding issue of investigation details in which in the column detailed inspection, it is mentioned at point number 1 phenomenon that brake not working while drive the vehicle at early morning but no timing of inspection is mentioned on the report, whether it was done early morning or not.   

11.           We have heard the arguments advanced by the learned counsel for the parties.  After hearing the arguments of the learned counsel for the parties we find that there is no dispute about the sale and purchase of the car in question by an amount of Rs.13,12,889/-. It is also not in dispute that the complainant approached the OP number 1 for repair of the braking system of the car.  In the present case dispute is over the faulty braking system of the car purchased by the complainant as he has alleged that the OPs failed to set right the braking system of the car despite replacing of the parts of the braking system as brake master cylinder and brake booster were changed as per complaint of the complainant on 14.1.2022. 

12.           It is worth mentioning here that the complainant approached the OPs number 1 and 2  so many times complaining about the faulty braking system, but the problem was then and there, as such, the complainant left the car with the OP number 1 & 2 on 25.1.2022 for repair of the braking system, but the car in question was not returned to the complainant after due repairs as such, since then the car in question is standing with the OP number 1 &2.   The complainant had spent huge amount on the purchase of the car, obviously the car had been purchased by the complainant by spending huge amount for his use and not for standing the same in the yard of OP number 1 and 2 as the  car in question is standing in the   yard   of  OP  number  1&2 since  25.1.2022.  We may mention that the alleged braking system of the car in question is faulty which is beyond repairs as the OPs failed to get it repaired despite their best efforts. Though the OP number 4 has produced on record the inspection report Ex.OP4/8 by one Arvind, but we find that since he is the Zonal Technical Coordinator of OP number 4 i.e. Hyundai Motor India Limited, he may watch only the interest of the company as he is an employee of the company. Thus, we are of the considered opinion that this report cannot be fair and proper in the circumstances of the case. The learned counsel for the complainant has further contended that the car in question deserves to be replaced with a new one. It is worth mentioning that the vehicle in question is still lying with the OP number 1 and 2. The vehicle is standing with OP number 1 and 2 from 25.1.2022 and almost one year and nine months has been lapsed.

13.           Further to support the contention, the learned counsel for the complainant has cited Hyundai Motor India Limited and another versus Hansraj Siyag and 3 others, II(2023) CPJ 25 (NC), wherein in the similar circumstances of the case, the complainant during warranty period sent vehicle for repairs to OP number 3, which could not be delivered after repair and remained with the OP number 3 for almost 5 years. State Commission vide its well reasoned order affirming view taken by District Forum that there was manufacturing defect in vehicle, held that it would be unjustified to give vehicle to complainant after lapse of five years and directed OPs number 3, 4, and 5 to pay Rs.4,74,000/- being 75% cost of vehicle to complainant. While passing impugned order State Commission had considered all material evidence on record. No illegality, order passed by State Commission was held justified and further held that there is no ground to interfere with well-reasoned order passed by State Commission.   

14.           The learned counsel for the complainant has further cited Pritam Pal and another versus Bird Automotive Private Limited and another, II (2023) CPJ 50 (Delhi State Commission New Delhi), in this case the car in question purchased by the complainant was suffering manufacturing defect i.e. technical problem in brake system as the car in question went for repairs on several occasions within short span of one year of its purchase. It has been held that it is the duty of the OP (manufacturer) to replace the said car. OP neither replaced said car nor rectified defects and held to be a case of deficiency in service. OP was ordered to refund the entire cost of the car i.e. Rs.26,26,462/- apart from compensation and litigation expenses.

15.           The learned counsel for complainant has also cited Diya Kapoor versus Ford India Limited, CC number 263/2001 decided by Delhi State Commission on 6.11.2008, wherein it has been held failure of breaking system of any vehicle is a manufacturing defect and puts the user of the car and the occupants therein to the danger of death as well as other vehicles and persons on the road. Further it was held that the car in question was purchased on 31.8.2000 and may be that the complainant might have got the defects rectified from the OP and had been using since then but for the said incident and also on account of the major defect in the vehicle which was a brand new vehicle, the complainant suffered mental agony, emotional suffering and sense of insecurity and danger to life.  If such defects or incidents occurs within six months of purchase of a vehicle the vehicle has to be held to have been sold with a defect. Whenever any person takes out the vehicle on the road he does so with complete sense of security that no such incident would take place due to some or the other kind of defect, which may not be necessarily manufacturing defects, but may be of such magnitude, which may result in damage worse than that caused by a manufacturing defect. Whenever the public at large comes to know that large number of such vehicles  have been manufactured and marketed by a particular automobile manufacturer with such defects, the re-sale value of the vehicle goes down drastically. 

16.           On the other hand, the learned counsel for OP number 4 has contended that the complaint of the complainant deserves dismissal on the ground of concealment and misrepresentation of material facts. Further it has been contended by the learned counsel for OP number 4 that the complainant has failed to prove his claim of manufacturing defect by cogent, credible and adequate evidence supported by the opinion of expert report from any appropriate laboratory recognised by the Central Govt. or recognized by a State Govt or laboratory or organization established by or under any law as contemplated under section 13(1) ( C) of C.P.A 1986 now Under Section 38 (2) ( C) of CPA 2019. To support this contention, the learned counsel for OP number 4 has cited Vikram Bajaj versus Hind Motor (India) Limited and another 2009(2) CLT 670,  wherein the case of the complainant was dismissed from the District Commission and State Commission and the Hon’ble National Commission held that no case has been made out by the complainant so as to interfere with the well reasoned findings of the State Commission. The complainant has failed to prove his claim of manufacturing defect by producing expert opinion.  In this case it has been stated that only minor repairs were carried out and it has not been proved that there was any inherent or latent defect in the engine.  But the circumstances in the present case are different one as present case is of faulty braking system in the car.

17.           After hearing the arguments of the learned counsel for the parties as well as of the legal position, we find that the OPs are not only deficient in service but also have indulged in unfair trade practice by selling the defective vehicle to the complainant which was having inherent defect in the braking system of the car. It is worth mentioning here that the failure of braking system of any vehicle is a serious defect and puts the user of the car and the occupants therein to the danger of death as well as other vehicles and persons on the road.  It is worth mentioning here that after failure of the braking system, the complainant lost faith in the quality of the vehicle supplied by the OP company, and therefore did not take any chance/risk to ply the vehicle on road. Whenever a person buys a brand new vehicle the minimum expectation is that he would not experience any inconvenience or any such problem and will have free and safe run of the vehicle for the first few years.  As such, we find it to be fit case, where the replacement of the vehicle deserves to be ordered as the car in question suffers from manufacturing defect of the braking system. Further we may mention that the car in question is lying with the OP number 1 and 2 since 25.01.2022 due to the above said problem in braking system.       

18.           Accordingly, in view of our above discussion, we allow the complaint and direct OP number 4 to replace the car in question  with a new car of the same make and model or to refund to the complainant the price of the car i.e. Rs.13,12,889/-. We further direct the OP number 4 to pay to the complainant an amount of Rs.10,000/- as compensation for mental tension, agony and harassment and further an amount of Rs.5000/- on account of litigation expenses. We further direct the complainant to supply all the documents of the vehicle to OP number 4 after clearance of loan amount on the car and hand over the vehicle in question to OP number 4 free from all encumbrances. The said vehicle shall be the property of OP number 4 for all intents and purposes. We also direct OP number 1 and 2 to return the vehicle in question to the complainant without recovering any parking fee etc.  This order be complied with within a period of sixty days of receipt of copy of this order.

19.           Pending applications, if any, stands also disposed of.

20.           The complaint could not be decided within the statutory time period due to heavy pendency of cases.

21.           Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance.  

                        Pronounced.

                        November 2, 2023.