Punjab

Ludhiana

CC/15/148

Narinder Kaur - Complainant(s)

Versus

Pioneer Hyundai - Opp.Party(s)

Jasdeep Singh Adv.

02 Nov 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 148 of  10.03.2015

Date of Decision          :   02.11.2015

 

Narinder Kaur wife of Lt.S.Gurmail Singh Oberoi, resident of Namdev Nagar, House No.2977, Near Tinkoni, Bathinda-151001.

….. Complainant

 

Versus

 

1.Pioneer Hyundai (Unit of MRG Auto Pvt. Ltd.) G.T.Road, Sherpur Ludhiana-141003, through its Manager.

2.MRG Auto Pvt.Ltd., G.T.Road, Near Sherpur Chowk, Ludhiana Punjab, through its Managing Director.

3.Hyundai Motor India Limited, Plot No.H-1, Spicot Industrial Park, Irrungattukottai, Sriperumpurdur Taluk, Kancheepuram District, Tamil Nadu-602105, through its Managing Director.  

..…Opposite party

 

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.SAT PAUL GARG, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :        Sh.Jasdeep Singh, Authorised Representative

For OP1 and OP2          :        Ex-parte

For OP3                         :         Sh.Vishal Gupta, Advocate. 

 

PER G.K DHIR, PRESIDENT

 

1.                          Smt.Narinder Kaur filed complaint under Section 12 of the Consumer Protection Act, 1986(hereinafter referred to as the ‘Act’) against the OPs, by alleging that she is  resident of Bathinda and OP1 is the authorized service centre of OP3. Complainant purchased a Hyundai I20 Sports car 2013 model on 24.6.2013 for price of Rs.7,75,000/-. That vehicle was registered with registration No.PB-03-AE-3538. Few months after purchase, the vehicle started having engine problem, which was referred as missing by the technicians. Complainant visited OP1 for getting the problem rectified and service of the injectors was done by the service centre. After few months, again same problem was faced and the same was rectified by OP1. After keeping the vehicle for 3-4 days, OP1 ensured the complainant that defects will be rectified, but the same still remains. Complainant again had to submit the vehicle to OP1 for getting the same defect of injectors rectified. The vehicle was returned after replacing the injectors in May 2014, but despite that said problem still persists. Emails to Ops were sent on 1.12.2013 and 22.4.2014, but no action was taken. Complainant spent a lot of money, valuable time and energy for getting the problem rectified, but Ops failed to get the defect rectified. Complainant claims herself to be a consumer and pleaded deficiency in service on the part of Ops. Complainant seeks apologies from the Ops for all the inconvenience caused to her. Replacement of the car or of the engine with a new one sought with compensation of Rs.70,000/- and litigation costs of Rs.10,000/-.

2.                 OP1 and OP2 are ex-parte in this case.

3.                OP3 filed written statement by claiming interalia as if complaint is baseless and frivolous. Vehicle in question covered distance of 47144 Kms as on 19.3.2015 from the date of purchase of 24.6.2013 and as such there is no manufacturing defect actually. It is claimed that if there would have been manufacturing defect, then the vehicle would have not travelled such distance. Complainant is not entitled for the replacement of the car or refund value. Complainant has no cause of action against OP3 because allegations are levelled against OP1 and OP2. Complainant failed to prove the manufacturing defect by producing opinion of expert. Even report of the laboratory recognized by the Central or State Government has not been produced for proving the manufacturing defect. OP3 deal with dealers on principle-to-principal basis and as such, there is no privity of contract between the complainant and OP3. Warranty does not provide for replacement of the engine of car. Complainant has concealed the material facts regarding the vehicle in question having met with an accident twice i.e. on 9.9.2013 at the time, when it travelled distance of 5436 kms and on 23.6.2014, when it travelled distance of 25475 kms. In view of suppression of these material facts, complainant is not entitled for any relief. In case, vehicle brought for repair to the service centre many times, then the same itself will not establish the manufacturing defect as per law. OP3 being manufacturer has no role in sale of the vehicle as retailer. Even complainant has claimed through complaint that problem of injectors was rectified and replacement of the same even took place. So, prayer made for dismissal of complaint.

4.                Complainant through her representative Sh.Jasdeep Singh Oberoi tendered her affidavit Ex.CA along with documents annexure-I to annexure-VII and thereafter, closed the evidence.

5.                On the other hand, OP3 through counsel Sh.Vishal Gupta, Advocate tendered in evidence affidavit Ex.RA3 of Sh.Manish Kumar and even tendered document Ex.R3/1 and thereafter, closed the evidence.

6.                Written arguments have not been submitted by any of the parties. But only oral arguments addressed and were heard. Records gone through minutely. 

7.                There is no dispute regarding the fact that vehicle in question was purchased on 29.6.2013 by the complainant from OP1 through invoice, copy of which is produced as Annexure-I. Annexure-II is certificate of registration of the vehicle in question, but Annexure-III to Annexure-V and Annexure-VII are the copies of job card sheets. After going through Annexure-III to Annexure-V, it is made out that noting is recorded as if customer refused. Service through job cards on 16.4.2014, 1.4.2014 and 21.6.2015 was done without charging anything from the complainant. Problem of injector assembly fuel reflected in Annexure-V, job card of date 21.5.2014. As per contents of para no.6 of the complaint, replacement of injectors took place in May 2014. This admission suffered by the complainant through para no.6 of complaint itself establishes that replacement of the defective injectors took place in May 2014. If such replacement has taken place in May, 2014, despite the fact that the complainant had been refusing to get the repair done on earlier occasions, then fault lays with the complainant in not co-operating with OP1. Note of refusal of customer recorded in the above referred job cards enough to prove that complainant himself did not opt to get the vehicle repaired properly. In view of that fault of the complainant, deficiency in service on the part of Ops cannot be inferred, particularly when manufacturing defect is not established.

8.                Op3 in written statement claimed that vehicle in question met with an accident on 9.9.2013 and 23.6.2014. Sh.Jasdeep Singh Oberoi, representative of the complainant admitted during the course of arguments that vehicle in question met with an accident on 9.9.2013, but thereafter due insurance claim was got.  What was the damage caused to the vehicle in question in course of accident on 9.9.2013 qua that no evidence produced by the complainant, despite the fact that the complainant could have got summoned the record of the insurance claim. So factual position in this respect has been suppressed by the complainant by not disclosing about the factum of taking place of two accidents in pleadings or in the evidence. As per law laid down in case titled Neelam Gupta vs. Reliance Life Insurance & anothers-I(2011)CPJ-241(N.C.), in case, there is suppression of material facts, then the same will disentitle the complainant to approach the Consumer Forum for claiming any relief. Ratio of this case applicable to the facts of the present case because there is no dispute qua the fact that car in question has travelled distance of more than 22978 Kms as on 21.6.2014. This fact even disclosed by perusal of the job card Annexure-V. As replacement of injectors took place in May, 2014 and car has travelled distance of more than 22000 Kms and as such, the defect in the injectors cannot be held to be a manufacturing defect at all.

9.                In normal circumstance, non production of the expert would not have been fatal to the case of the complainant, but here in this case as the car travelled distance of more than 22000 kms upto June, 2014 and as such examination of the expert by the complainant was essential. Had really the manufacturing defect been in there, then certainly the vehicle in question would have not travelled such long distance in one year. So certainly submissions advanced by counsel for OP3 has force that in absence of examination of an expert by the complainant, the manufacturing defect cannot be inferred.

10.              Representative of complainant admitted during the course of arguments that in the accident that took place on 9.9.2013, compressor and some other parts of the car stood damaged. So, defect in the injectors may be on account of accident due to which examination of expert was essential for proving the manufacturing defect.

11.              If Sh.Jasdeep Singh Oberoi, representative of complainant had been driving the vehicle, then the same is no ground for holding that vehicle was not driven by the authorized person. Sh.Jasdeep Singh Oberoi, being son of the complainant certainly was to use the vehicle in question and as such submission of counsel for Op3 has no force that vehicle was not driven by the consumer herself. If vehicle has been purchased from Ludhiana, despite the fact that the complainant is a resident of Bathinda, then due to that alone fault with the Ops or  the complainant cannot be found because one can purchase the vehicle from place of his choice.

12.              Sh.Jasdeep Singh Oberoi, representative of complainant admitted during course of arguments that engine locking problem reported when the car travelled distance of 10,151 kms. That problem was solved temporarily on few occasions, but the same finally has not been resolved and as such it is vehemently contended that complainant had to suffer mentally as well as physically by having repeated visits from Bathinda to Ludhiana. It is contended that some defects continued and as such the same itself establishes as if there was manufacturing defect in the vehicle in question. However, as per law laid down in case titled R.Baskar vs. D.N.Udani-IV(2006)CPJ-257(N.C.), if the vehicle was having manufacturing defect, it could not have been used for one year for travelling distance of 9500 Kms. By applying the analogy of law laid in above said case, it has to be held that as the vehicle in question travelled the distance of 10,151 Kms without problem and as such inference of manufacturing defect cannot be drawn.

13.              Even if emails may have been sent repeatedly by the complainant to Ops, but despite that on some occasions, complainant herself refused to get the defects removed. It is not established by the complainant that defect in injectors has not  taken place due to accident. It was for the complainant to prove that injector defect surfaced due to natural wear and tear. Complainant has not adduced any evidence in that respect, but has suppressed the facts qua meeting of the vehicle in question with accident twice i.e.on 9.9.2013 and 23.6.2014. The fact pleaded in the written statement of OP3 in this respect has been admitted by the representative of the complainant during the course of arguments. After going through  clause 3 of the warranty Ex.R3/1, it is made out that warranty clause not to apply in case damage or failure occasioned in course of accident or due to mis-use of the vehicle.As the vehicle in question met with an accident twice and as such in view of the clause 3 of Ex.R3/1, it was the responsibility of the complainant to establish that defect in the injectors has not taken place due to accidental impact. Complainant has not adduced any evidence in that respect and as such, she has failed to prove any deficiency in service on the part of Ops.

14.              In view of above observations, we do not find any deficiency in service on the part of the Ops.

15.              Therefore, as a sequel of the above discussion, the present complaint merits dismissal and same is hereby dismissed with no order as to costs. Copy of this order be made available to the parties free of costs as per rules.

16.                        File be indexed and consigned to record room.

 

                   (Sat Paul Garg)                            (G.K.Dhir)

                       Member                                      President

Announced in Open Forum

Dated:02.11.2015

Gurpreet Sharma.