BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SIRSA.
Consumer Complaint no. 454 of 2019
Date of Institution: 13.08.2019
Date of Decision : 25.05.2022
Ayush Saraff aged 30 years son of Shri Kailash Saraff, resident of House No. 163, Aggarsain Colony, Gali No.2, Sirsa, Tehsil and District Sirsa.
……Complainant.
Versus
1. Raja Motors, Hyundai Show Room, Dabwali Road, Sirsa, through its Proprietor/ Partner (Authorized Dealer of Hyundai Motors India Limited).
2. Hyundai Motors India Limited (Sales and Marketing Office), 2nd and 6th Floor, Corporate One (Baani Building), Plot No.5, Commercial Centre, Jasola, New Delhi- 110025 through its Incharge/ Manager.
3. Hyndai Motors India Limited, Registered Office; Irrungattukottai, National Highway No.4, Sriperumbudur Taluka, Kanchipuram District (Tamilnadu)- 602117, through its Managing Director/ Chairman.
...…Opposite parties.
Complaint under Section 12 of the Consumer Protection Act,1986 (after amendment under section 35 of C.P. Act, 2019
Before: SH. PADAM SINGH THAKUR…….PRESIDENT
MRS. SUKHDEEP KAUR…………MEMBER
SH. SUNIL MOHAN TRIKHA………MEMBER
Present: Sh. Kapil Sharma, Advocate for complainant.
Sh. JBL Garg, Advocate for opposite party no.1.
Sh. A.S. Kalra, Advocate for opposite parties no.2 and 3.
ORDER
The complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (after amendment under Section 35 of the Consumer Protection Act, 2019) against the opposite parties (hereinafter referred to as Ops).
2. In brief, the case of complainant is that on 10.7.2018 complainant had purchased a Grand i10 Car (Diesel) Sports 1.2 Crdi from op no.1 for a sum of Rs.7,05,942/- and said car is manufactured by ops no.2 and 3. The car in question was got registered vide registration certificate No. HR-24Z/9570 and was/is being used by complainant for his personal use. The ops provided warranty of three years or up to 1,00,000/- kilometers of the car. It is further averred that after nine months of purchase when the car covered 35000 kms, it started giving engine trouble within warranty period which was immediately shown to op no.1 and complainant requested op no.1 for its repair or replacement of engine. After inspection, op no.1 stated that there is engine problem in the car but refused to repair or replace the engine without any rhyme and reason despite the fact that car is under warranty. The complainant also sent emails to the manufacturing company but ops no.2 and 3 also did not give any response to the emails of complainant and did not bother to repair/ replace engine of the car which has a manufacturing defect. It is further averred that engine used in Grand i10 diesel Cars by the company has manufacturing defect due to which manufacturing company after through investigation discontinued this engine in the said cars and they have repaired/ replaced engine of the various customers. The op no.1 has also replaced faulty engine of many customers and two cars bearing registration No. HR-24Z/5690 and HR-25G/4508 were also lying with them for replacement of faulty engine and ops are replacing their engines. It is further averred that ultimately when op no.1 refused to replace or replace the faulty engine of the car of complainant, he got his car repaired from M/s R.S. Motors, Sirsa and paid a sum of Rs.56,651/- to said agency but still engine of the car which is having manufacturing defect is not working properly and needs replacement. That act and conduct of ops clearly amounts to deficiency in service and unfair trade practice towards the complainant due to which complainant has suffered huge recurring losses and harassment. Hence, this complaint.
3. Ops were served. Op no.1 filed written statement raising certain preliminary objections. On merits, it is submitted that said car is manufactured and marketed by ops no.2 and 3 and warranty is provided by manufacturing company which is subject to fulfillment of conditions laid down in the warranty card which was issued to complainant. The complainant never turned up to avail any one of the service of said car. As per norms of the company, the first service was to be got conducted within 60 days of purchase or running of 1200-1500 kms, whichever is earlier, second service was to be got conducted within 12 months of purchase or running of 9000-10000 kms, whichever is earlier and third service was to be got conducted within 24 months or on running of 20000 kms whichever is earlier. But in this case, the complainant did not avail even a single service of this car, which is gross violation of terms and conditions of the warranty and such a violation committed by complainant absolve the manufacturing company from any liability towards the vehicle within period of warranty and warranty issued to him has become void and un-executable. It is further submitted that it is quite clear that complainant has not properly used, cared, maintained and protected his car, rather he was/is quite negligent in maintaining the said car. The car requires periodical and timely services and checking the performance of components of the car, but complainant out of his own negligence failed to do so. Remaining contents of complaint are also denied and prayer for dismissal of complaint made.
4. Ops no.2 and 3 also filed written statement raising certain preliminary objections that complainant has failed to substantiate any allegations against answering ops and has failed to establish any kind of manufacturing defect as required under the Consumer Protection Act, 1986; that complainant is not a consumer qua the answering ops. It is submitted that HMIL operates with all its dealers on a principal to principal basis and errors/ omission/ representations, if any, at the time of retaining or servicing of car is the sole responsibility of concerned dealer; that HMIL has not received any consideration from the complainant, all monies were paid to the dealer/ op no.1, hence there is no privity qua HMIL and complainant; that complaint is liable to be dismissed on the sole ground that complainant has not been filed in accordance with the provisions of Section 13 (1) (C) of the C.P. Act, 1986. It is submitted that when defect is alleged, expert opinion is mandatorily required to be given by complainant and where no expert evidence is provided by complainant to prove that the vehicle got any defect and in absence of any record with regard to inherent or latent defect, it cannot be held that vehicle is suffering from manufacturing defect and in the case admittedly neither any expert opinion is placed on record by complainant nor there is nothing on record to even prima facie suggest that vehicle was suffering from manufacturing defect; that it is an admitted fact that car purchased by complainant had been in use for nine months and had run over 35000 kms in that span without any complaint being raised by complainant regarding any manufacturing defect in the car. It is submitted that if there was any manufacturing defect in the engine of the car as has been alleged, the car could not have run for that much distance without any issue coming up; that defects in the car, if any, developed over time and due to the negligence of the driver itself; that as per the maintenance schedule provided in the owner’s manual the maintenance service ought to be carried out as per schedule i.e. three free services up to 20,000 kms or 24 months whichever is earlier, fourth paid service up to 30,000 kms or 36 months whichever is earlier and fifth paid service up to 40,000 kms or 48 months whichever is earlier; that complainant has not availed any of the services as mentioned in schedule and in this case complainant approached to the dealer (op no.1) for the first time on 23.4.2019 after covering a mileage of 35,000 kms, which clearly shows that the complainant himself was negligent and careless regarding proper upkeep and maintenance of the vehicle.
5. On merits, it is submitted on behalf of ops no.2 and 3 that it is denied that the fault in the engine is a manufacturing defect in the car. The same is just a bald allegation that has been arrived at without any standard proof and thereby has no merit. It is denied that Grand i10 diesel engine has any sort of manufacturing defect and has been discontinued by the company. It is submitted that the specified engine is still in circulation and is being used by a number of consumers without any sort of complaint on this behalf. It is further submitted that warranty booklet specifically states that the warranty will not apply to damages or failure resulting from negligence of proper maintenance of the car as required in the owner’s manual and service booklet. As per the suggested repair schedule, a consumer is supposed to get a vehicle serviced four times by the time it covers a distance of 35,000 kms for the proper and smooth functioning of the vehicle. Repair records of the vehicle owned by complainant shows that the complainant took the car for service for the first time at 35,000 kms. Therefore, it is submitted that though the vehicle is still in the period of warranty, the damage incurred by the engine is purely due to negligent and careless manner in which the complainant has treated the vehicle and therefore, the complainants’ claims under warranty were liable to be denied. With these averments, dismissal of complaint prayed for.
6. Complainant has tendered his affidavit Ex.C1, service/ repair record of Car bearing No. HR 24-Z/5690 Ex.C2, receipt of the amount of Rs.300/- dated 6.4.2019 Ex.C3, copy of service booklet Ex.C4, copy of registration certificate Ex.C5, copy of insurance policy Ex.C6, labour bill of R.S. Motors amounting to Rs.11,500/- Ex.C7, cash invoice of R.S. Motors amounting to Rs.45,141/- Ex.C8, copy of adhar card Ex.C9 and email Ex.C10 (containing nine pages).
7. Ops no.2 and 3 have tendered affidavit of Sh. Varun Panta Assistant Manager, Legal & Secretarial Ex.R1, copy of warranty policy Ex.R2. Op no.1 has tendered affidavit of Sh. Rahul Sharma, Accountant as Ex.R3 and copy of maintenance schedule for diesel engine Ex.R4.
8. We have heard learned counsel for the parties and have perused the case file carefully.
9. Admittedly, on 10.7.2018 complainant had purchased Grand i10 Car (diesel) from opposite party no.1 which is manufactured by ops no.2 and 3 and it is also an admitted fact that ops provided warranty of three years or up to 1,00,000 kms. of the car in question to the complainant. However, complainant alleges defect in the engine of the car in question within nine months of its purchase when it run 35,000 kms i.e within warranty period. According to complainant despite his several requests made to op no.1 and also to ops no.2 and 3 through emails, the ops have failed to redress the grievance of the complainant. On the other hand, it is specific defence plea of ops no.2 and 3 that as per maintenance schedule provided in the owner’s manual first free service of the car was to be done on running of 1500 kms, 2nd service was to be got done on running of 10000 kms, third free service of the car was to be got done at 20000 kms and thereafter paid service was to be got done at 30000 kms and then another paid service was to be got done at 40000 kms. Whereas, in the present case, it is own case of the complainant that he visited the agency of op no.1 dealer for the first time after nine months of purchase i.e. on running of 35,000 kms. of the car in question. There is nothing on file to prove the fact that complainant adhered to the above said service schedule for maintenance of his car as provided to him by the ops. Even in his affidavit Ex.C1 which has been tendered after filing of written statements of ops he has not denied the fact that he has not violated any terms and conditions of warranty policy/ service schedule. The complainant has not uttered even a single word in his complaint as well as in his affidavit that prior to visiting to op no.1 on running of 35000 kms of his Car, he also got done above said three free services of his car from ops for maintenance of his Car. As such contention of ops has substance that complainant has not availed even a single service of the car, so the warranty issued to him has become void because ops have no record of any service got done by complainant for his car and complainant has also not produced on record any record of service of car got done from ops. The ops as well as complainant himself have placed on record Hyundai Warranty Policy as Ex.R2 and Ex.C4 which says that the warranty shall not apply in case of damage or failure resulting from negligence of proper maintenance as required in this Owner’s Manual and Service Booklet. It is very common and known fact that time to time service of the vehicle and its engine including oiling etc. is necessary for getting proper use of the vehicle. Since the complainant failed to avail proper services of the car as per schedule of manufacturing company and violated the service schedule of the ops therefore, it seems that defect in the engine developed due to own negligence of the complainant himself and as such ops cannot be said at fault for own lapses of complainant. As the complainant himself was at fault, therefore, he got repaired the engine of his car from outside and even the engine of the car has not been got repaired from any authorized service centre of ops and therefore, for getting vehicle outside repaired, the warranty has also become void and barred.
10. The complainant has also alleged that other customers who have same Car are also facing same problem in the engine of their cars and ops have already replaced engine of some cars but the said allegation of complainant has been specifically denied by ops and they have categorically asserted that said diesel engine is not having any sort of manufacturing defect and has not been discontinued by company. The complainant has failed to prove his above said plea by leading cogent and convincing evidence that said engine used in the Grand i10 cars has been discontinued by the manufacturing company. Though, complainant has placed on file service/ repair record of one Car bearing registration No. HR 24Z/ 5690 as Ex.C2 but this document itself is not properly visible document and from its hard reading, it no where point out that engine of the said car has been changed by ops. Rather on this very low printed document, writing has been made that engine replaced on 8021 kms with fuel injector and pump and turbo but it is not proved on record that actually engine of this vehicle has been replaced. The complainant has not placed on file affidavit of owner of said car to prove the fact that engine of his car has been replaced. Moreover, even if it is assumed that engine of said Car bearing registration No. HR 24Z/5690 is replaced then also complainant cannot take any advantage of this fact because as mentioned above complainant himself was negligent in maintaining his car as up to 35000 kms. he did not avail any services of his car from ops. So, complainant has failed to prove his case on record.
11. Thus, as a sequel to our above discussion, the present complaint is hereby dismissed but with no order as to costs. A copy of this order be supplied to the parties free of costs. File be consigned to the record room.
Announced: Member Member President,
Dated: 25.05.2022. District Consumer Disputes
Redressal Commission, Sirsa.
JK
