IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 30th day of September 2022.
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 165/2020 (Filed on 16-10-2020)
Petitioner : Siby Mathew,
S/o. Mathew,
Thakadiyel House,
Bharanganam P.O.
Aravakkulam kara,
Bharananganam village,
Meenachil Taluk, Kottayam.
(Adv. Arun G. and Adv. S. Sethukumar)
Vs.
Opposite parties : (1) Popular Hyndai,
Popular Motor World Pvt. Ltd.
Rep. by its Managing Director,
Century Vee Tee Arcade,
Near Kottaramattam Private Bus
stand, Pala, Kottayam – 686575
(Adv. Prakash C. Vadakkan J
and Adv. Sreenivas V. Pai)
(2) Hyundai India Ltd.
Rep. by its Managing Director,
Plot No.H-1, SIPCOT Industrial
Park, Irrugattukottai,
Sriperumbudur Taluk, Kancheepuram Dist. Tamilnadu
Pin -602117
(Adv. Akash K.R. )
O R D E R
Sri. Manulal V.S. President
Brief of the complaint is as follows:
The complainant is the owner of the Hyundai Creta diesel 1.6 SX car bearing registration no KL-35-G-1242/. During June 2018 flood was affected badly in Kerala. On 11-6-20018 floodwater suddenly increased in front of the Court complex Pala and the vehicle owned by the complainant also affected by flood and was taken to the workshop of the first opposite party.
The technicians of the first opposite party found that water entered in engine and parts. They prepared a detailed estimate on 13-6-018. Thereafter on 25-7-2018 they prepared another estimate regarding bearing, gasket clutch assembly and cover. The total estimated amount was Rs.1,25,146/-. The surveyor
appointed by the insurance company prepared a report on 14-9-2018 and assessed the damages as Rs.43,651/-. The first opposite party completed the works only within the assessment made by the surveyor. The main work done by the first opposite party was cleaning the inner engine parts and resetting the engine. The complaints with respect to steering column, steering assembly, clutch parts, and timing chain were unattended.
Regarding other complaints, the opposite parties kept mum and made to believe the complainant that at this stage it is not required to replace or repair other parts. Subsequently the vehicle shown complaints and on 22-10-2018, 3-11-2018 and 30-11-2018 the same was brought to the first opposite party’s workshop. The earlier complaints were not completely cleared hence the surveyor prepared a supplementary report on 18-12-2018 approving the amounts for Rs.60,358/- for repairing the steering joint assembly and steering column assembly etc. But the complaints were not completely settled and the vehicle showed complaints to gear box hence it was again brought to the workshop of the first opposite party on 21-3-2019. It was informed to the petitioner that the complaint regarding gearbox assembly was cleared and an amount of Rs.13,569/- was paid by the complainant. It is submitted in the complaint that when the vehicle was brought to the workshop of the first opposite party on 16-5-2019 for a through checkup and without doing anything the first opposite party issued a bill for Rs.10,914/- and made to belief the complainant that all parts were checked. On 25-5-2019 while the petitioner was coming back to Kerala from Bangaluru, when reached near Salem in Tamil Nadu, the vehicle produced a huge smoke from the engine compartment and caused a sudden breaking. So the vehicle was taken to Golden mandir Retail Pvt Ltd, which is an authorized workshop of Hyundai. All the major parts of engine and allied parts were replaced and the same were repaired expending an amount of Rs.1,61,990/. Subsequently it is revealed that setting of time was not correct and that lead to misfiring and caused damages to engine.
It is further alleged in the complaint that the first opposite party have no qualified technicians to reset the engine, steering assembly, timings and the major engine parts. They failed to diagnose the complaints of the vehicle. According to the complainant, the said act of the opposite parties amounts to deficiency in service and caused much mental agony and hardship to the complainant. Though the lawyers notice caused by the complainant was received by the opposite parties, the first opposite party instead of redressing the grievances issued a reply notice stating untenable contentions. Hence, the complainant praying for an order to direct the opposite parties to refund Rs.1,98,973/- and to pay R.s 25,000 /- as compensation filed this complaint.
Upon notice opposite parties appeared before the commission and filed separate version. Version of the first opposite party is as follows:
The complaint is barred by limitation. The vehicle was entrusted to the first opposite party on 12-6-2018 for repair. The complainant had submitted this complaint on 16-10-2020.
It is submitted in the version that since, the Hyundai warranty policy does not extend for flood affected damages, the same was intimated to the insurer of the vehicle with the knowledge of the complainant. Assessing the damages, the first opposite party had prepared a detailed repair estimate dated 13-6-2018 suggesting the replacement of 25 components worth Rs.71,064.75 and labour charges worth Rs.41,300/-. On further examination the first opposite party had also prepared another estimate on 25-7-2018 for immediate replacement of bearing pair set-CRK/SHF, gasket liquid engine, and disc assy-clutch and cover assy-cletch. The surveyor appointed by the insurer approved replacement of parts worth Rs.32,151/- and Rs.10,000/- as labour charge and Rs.1500/- towards the towing charges. From the total approved amount of Rs.43,651/-, an amount of Rs.5055.60/- was also deducted towards policy excess, ND cover 5% and salvage value. Thus the total amount approved was Rs.38,595.40/-. Since the complainant was not ready to pay the amounts over and above the amount approved by the insurer, the first opposite party was constrained to limit the replacement of parts as per the approved list of insurance company. It is submitted in the version that as per the choice of the complainant, the replacement of the parts was limited to the list approved by the surveyor of the insurer.
Apart from the parts approved, the first opposite party replaced the disc ASSY-clutch and cover ASSY-clutch, which estimated as parts requiring immediate replacement. So towards the estimated charge of Rs.1,25,147/- an amount of Rs.62,227/- including the insurance amount of Rs.38,595.40/- was expended by the complainant towards repair charges. The complainant chose to ignore the facts that, most of the integral parts are metal parts, prone to resting if slightest moist is present in the same. The complainant ignored the fact that, the vehicle is flood affected vehicle and the same cannot be completely repaired unless all the flood affected parts are replaced, even though this was informed to the complainant. But the complainant insisted to overhaul those parts, which were not covered by the insurance. So, in order to help the complainant , the first opposite party had submitted a further repair estimate dated 22-9-2018 to the insurance company requesting the replacement of 5 more parts for a total amount along with labour to Rs.1,05,244.70. As the surveyor had approved only replacement of joint assy steering and column assy steering, the complainant had instructed the first opposite party to limit the replacement to those parts. The first opposite party had replaced those parts on 30-11-2018.
Thus, the rusting had developed in some parts and the same had developed issues, constraining the complainant to bring the vehicle to the first opposite party on 22-10-2018 and 3-11-2018 for getting necessary services. Thereafter on 05-12-2018, the complainant had approved the body painting of the vehicle, without approving the major works on the integral parts of the vehicle. The negligence and adamant stand of the complainant had caused damages to those parts of the vehicle. But the fist opposite party offered all services to the vehicle on those occasions also. It is submitted in the version that the complainant had never expressed any discomfort on either the repair work or the service provided by the first opposite party. The complainant brought the vehicle to first opposite party on 21-3-2019 with steering sound complaint. On examination, the parts were found to be damaged and replaced the same and cleaned the gear box assy steering on paid basis. Thereafter on 16-5-2019 the vehicle was reported to the first opposite party workshop for periodical service and few wear and tear services.
The opposite party had done the periodical service as per the parameters of the second opposite party and cleared all the concerns submitted by the complainant on his visit and released the vehicle on the same day. It is submitted in the version that through a periodical/ general service, no internal parts are checked. After a few days the first opposite party came to know from the complainant that the vehicle got damaged near Selam. On due enquiry, the first opposite party came to know the impact was due to the failure of the Thermostat which is placed on the bottom of the engine at the out flow of the radiator. Thermostat is one of the main components of an engine cooling system serving to regulate the flow of coolant between the radiator and the engine. The failure of the thermostat result in the uncontrolled exhalation of heat in the engine part. Whenever the temperature of the engine is fluctuated, a warning is given to the driver of the vehicle through a warning lamp. On the indication of warning light, the driver is mandated through the user manual of the vehicle to stop the vehicle preventing damage to the engine parts. If the complainant was cautious enough to pay attention to the indication given by the vehicle, he could have prevented the damages. As the complainant was not ready to accept the warnings and advises of the first opposite party for the replacement of the flood affected parts for better life and performance of the vehicle, he had showed the same level of laxity towards the vehicle, when the warning lamp indicated him to stop the vehicle for preventing damages to the integral parts of the vehicle .so the damage caused to the vehicle was contributed solely by the complainant. The contention of the complainant is that the setting of timings was not correct and that lead to misfiring and caused damages to engine is not factually true. The defect was not due any reasons attributed to repairs done by the opposite party. The further allegation that the opposite party has no qualified technicians to carry out the repairs is frivolous. The opposite party is a reputed vehicle dealer and is having all requisites required for the same. There is no negligence or deficiency on the part of the first opposite party.
Second opposite party filed the version contenting as follows:
The second opposite party operates with all its dealers on a principal-to-principal basis and errors /omissions if any at the time of retail sales and servicing of the car is the sole responsibility of the concerned dealer. It is submitted in the
version that liability of the first opposite party being the manufacturer of the car is limited and extends to its warranty obligations alone. The subject car was purchased by the complainant in the year October 2015 and as such out of warranty. The complainant himself has not alleged any manufacturing defects in the car or its parts in the complaint.
The complainant has concealed the material fact that the vehicle met with several accidents at different point of time. Accidents adversely affect the performance of the vehicle and any shortcoming or poor performance of the vehicle which might or ought to have caused due to accidents cannot be attributed to the manufacturing defects. Accidental repair and damage to vehicle caused due to the accident are not covered under warranty policy.
The bare reading of the complaint itself establishes that despite the first opposite party has given repair memo for Rs.1,25,146/- in July 2018, the complainant chose to repair the parts to the value of Rs.43,651/- only since it was the amount approved by insurance company. This automatically resulted in further repair in the parts subsequently due to his own decision of using the car without attending the repair. Again, the complainant repeated he same mistake when the car met with accident in December 2018 and approved the first opposite party to attend only the repair to the tune of value approved by the insurer.
It is submitted in the version that there are no allegations raised against second opposite party and absolutely no cause of action has been alleged in the complaint. Complainant filed proof affidavit in lieu of chief examination and marked exhibits A1 to A25 from the side of the complainant. T.P. Pavithran who is the assistant sales manager of the first opposite party filed proof affidavit in lieu of chief examination. Varun Panta who is the authorized signatory of the second opposite party filed proof affidavit in lieu of chief examination for and on behalf of the second opposite party. No documentary evidence is from the side of the opposite parties.
On evaluation of complaint version and evidence on record we would like to consider the following points.
- Whether complaint is barred by limitation?
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so, what are the reliefs and costs?
Point number 1 to 3
The case of the complainant is that his vehicle bearing registration no KL-35-G-1242 was affected by flood and was taken to the workshop of the first opposite party on 11-6-2018. The first opposite party carried out the repair works. Subsequently the vehicle showed complaints and on 22-10-2018, 3-11-2018 and 30-11-2018 the same was brought to the first opposite party’s workshop. But the complaints were not completely settled and shown complaints to gear box hence vehicle was again brought to the workshop of the first opposite party on 21-3-2019 and on 16-5-2019. It is proved by exhibits A2 to A20 that the repair works of the vehicle had been carried out by the first opposite party on several occasions between 11-6-2016 to 16-5-2019. The specific case of the complainant is that he is constrained to get the vehicle repaired on several occasion due to the imperfection of the work which had done by the first opposite party on 11-6-2018. Though the cause of action of this complaint is arose on 11-6-2018 however it can be seen from the records that the complainant had entrusted the vehicle to the first opposite party on several occasions and lastly on 16-5-2019 to rectify the defects of the vehicle. Thus we are of the opinion that the cause of action of this complaint arose on 11-6-2018 and a continuous one and the complaint is filed within the statutory period. The point number one is answered accordingly in favour of the complainant.
The specific case of the complainant is that though the first opposite party prepared a detailed estimate on 13-6-18 and another estimate on 25-7-2018 the first opposite party completed the works only within the assessment made by the surveyor. The complaints with respect to steering column, steering assembly, clutch parts, and timing chain were unattended. Subsequently the vehicle showed complaints and on 22-10-2018, 3-11-2018, 30-11-2018 ,18-12-2018 and 21-3-2019 the same was brought to the first opposite party’s workshop. But the complaints were not completely settled. On 25-5-2019 while the petitioner was coming back to Kerala from Bangaluru, when reached near Salem in Tamil Nadu, the vehicle produced a huge smoke from the engine compartment and caused a sudden breaking.
According to the complainant it was due to fault in setting of time and thereby caused misfiring and damages to engine. Admittedly, the vehicle of the complainant was affected with flood and entrusted to the first opposite party for carrying out the necessary repair works. It is proved by exhibit A2 repair order that the complainant had requested to carry out the general checkup, brake overhauling, replacement of oil and filter, air filter and A/c filter and wheel alignment and balancing. It is further recorded in the exhibit A2 that the complainant had raised complaint of starting trouble (water entered). Exhibit A3
proves that the first opposite party had prepared a detailed estimate for repair works including the cost of the parts and labour to the tune of 112,364. On perusal of exhibit A3 we can see that the first opposite party has proposed to replace 25 parts of the vehicle to rectify the damages. The learned counsel for the complainant argued that though the first opposite party has proposed to replace the Disc Assy-clutch, Cover ASSY-Clutch ,bearing pair set –CRK/SHF, Chain timing, Tensioner ASSY- timing chain etc on 16-6-2018 they did not replaced the same and failed to cure the defects of the vehicle in a perfect condition. It is further argued that the first opposite party on 25-7-2018 issued another estimate for replacement of Disc Assy-clutch, Cover ASSY-Clutch and bearing pair set –CRK/SHF to cure the defect of the vehicle.
It is contended by the first opposite party that the complainant was not amenable for replacing the parts, which were not approved by the surveyor of the insurer and pay for the same. On perusal of Exhibit A8 which is the report of the surveyor we can see that he has approved to replace only 12 parts worth Rs.32,151/- after conducting the survey on 16-6-2018 and 28-6-2018 . On a bare reading of Exhibit A8 we can see that the surveyor has not approved the replacement of Disc Assy- clutch, Cover ASSY-Clutch. On a mere comparison of Exhibit A8 survey report and A5 invoice summary dated 31-7-2018 we can see that the opposite parties have replaced only the parts which are approved by the surveyor. It is proved by exhibit A6 that on 14-8-2018 the first opposite party replaced the disc ASSY-clutch and cover ASSY-clutch, for an amount of Rs.21371/-. .Thus the complainant had carried out the repair works for an amount of Rs.62,227/- including the insurance amount of Rs.38,595.40/-. Same is proved by the A7 cash receipt issued by the first opposite party on 14-8-2018.
On perusal of Exhibit A10 we can see that the complainant had entrusted the vehicle to the first opposite party complaining of Rear window switch complaint, front suspension noise and rear, front dash board sound, ABS warning light , door beading tightening , steering ,light not working etc. On a mere reading we can see that the complainant had not raised any major complaint on that occasion. Similarly on 3-11-2018 the complainant had raised complaints of oil leakage and complaints regarding both rear power window and rear beadings vide exhibit A11 repair order. Thereafter on 18-12-2018 the surveyor of the insurance company approved the replacement of joint assy steering and column assy steering vide exhibit A9 additional report. On perusal of Exhibit A9 we can see that the surveyor had conducted the subsequent survey on 30-9-2018 based on the supplementary estimate prepared on 22-9-2018. Exhibit A13 cash receipt voucher proves that the first opposite party has received Rs.60,358/- against invoice dated 31-11-2018 ie the invoice generated for the replacement of the joint assy steering and column assy steering. On perusal of exhibit A12 invoice dated 30-11-2018 we can see that the said invoice was geerated at a mileage of 44621 kms whereas the first survey was conducted at mileage of 39587Km. howver on perusal of exhibit A3 we can see that the first opposite party had not proposed to
replace the joint assy steering and column assy steering on 13-6-2018 ie the date on which the vehicle was entrusted to the first opposite party to rectify the flood affected damages. According to the complainant the mishap happened on 25-5-2019 was due to incorrect setting of time by the first opposite party at the time of repairing the flood affected damages and that lead to misfiring and caused damages to engine. On a close reading of exhibit A3 the first opposite party has submitted the estimate for replacement of timing chain and Tensioner assy-timing chain . However on perusal of exhibitA8 survey report we can see that the surveyor did not approve to replace the same. Moreover on going through exhibit A20 it can be seen that the mishap occurred at a mileage of 55484Km where as exhibit A3 was prepared at mileage of Rs.39587Km.
Thus we cannot hold that the mishap occurred due to non replacement of the timing chain which was proposed to be replaced by the first opposite party at a mileage 39587Km. Ongoing through documentary evidence which were produced before us by the complainant we can see that the complainant was not ready to replace the part which were not approved by the surveyor even though the first opposite party proposed to replace such parts. Moreover the complainant did not adduce any evidence to prove that the setting of time was not correctly done by the first opposite party at the time of repairing the flood affected damages.
The Hon’ble Supreme Court in a recent Judgment dtd.6th October 2021 i.e. in “SGS India Limited v/s Dolphin International Limited”, categorically held that the onus of proof that there was deficiency in service is on the complainant.
Here in this case as discussed above we are of the opinion that the complainant has failed to prove any deficiency in service on the part of the opposite party. Thus the complaint is dismissed.
Pronounced in the Open Commission on this the 30th day of September, 2022
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Bill No.165 dtd.11-06-18 issued by Pala Road Assistance
A2 – Repair order dtd.12-06-18 issued by Popular Hyundai
A3 – Repair estimate dtd.13-06-18 issued by 1st opposite party
A4 – Repair estimate dtd.25-07-18 issued by 1st opposite party
A5 – Copy of invoice summary dtd.31-07-18 issued by 2nd opposite party
A6- Copy of invoice summary dtd.14-08-18 issued by 2nd opposite party
A7 – Copy of cash receipt voucher dtd.14-08-18 issued by 1st opposite party
A8 – Copy of motor survey report dtd.14-09-18 by V.N. Sivan Pillai
A9 –Copy of Addendum report dtd.18-12-18 by V.N. Sivan Pillai
A10- Repair order dtd.22-10-18 issued by 1st opposite party
A11- Repair order dtd.03-11-18 issued by 1st opposite party
A12- Copy of invoice summary dtd.30-11-18 issued by 2nd opposite party
A13- Copy of cash receipt voucher dtd.05-12-18 issued by 2nd opposite party
A14- Invoice summary dtd.05-12-18 issued by 2nd opposite party
A15- Cash receipt voucher dtd.05-12-18 issued by 1st opposite party
A16- Invoice summary dtd.21-03-19 issued by 2nd opposite party
A17- Repair order issued by 1st opposite party
A18 –Repair order issued by 1st opposite party
A19 – Receipt for Rs.10,914/- issued by 1st opposite party
A20- Invoice summary dtd.30-06-19 issued by 2nd opposite party
A21- Copy of lawyers notice dtd.21-03-2020 by Adv. Arun G. to opposite
parties
A22- Copy of lawyers notice dtd.01-06-2020 issued by Adv.Sheriff Associates LLP to Adv. Arun G.
A23 series – Postal receipts (2 nos.)
A24 series – Postal acknowledgement card (2nos.)
A25 – General power of attorney
Exhibits marked from the side of opposite party
Nil
By Order
Sd/-
Assistant Registrar
