Order No. 34         Dated 28/06/2010

           The petition of complaint has been made u/s 12 of C.P. Act by Mrs. Uma Puri against the o.ps. for removal of defects in her car purchased on consideration.

            The facts of the case, in brief, as per petition of complainant, are that the complainant purchased a VERNA-XII model car of Hyundai Motor India Ltd. on 12.3.08 at an on road price of Rs.7,40,000/- including road tax, insurance coverage charge and other allied charges. She took delivery of the car bearing no.WB-02Z-5525 from o.p. no.1 having address at 199 Block ‘J’, New Alipore, Kolkata-53 on 16.3.08. The whole consideration money was paid by that time. Receipts have been furnished, annex-A.

            The car was filled with a device namely Fully Automatic Climate Control System abbreviated as ‘FACTS’. Shortly after delivery of the car the complainant noticed that the system became malfunctioning. The air conditioner was shutting down and the air circulation mode was changing from‘re-circulation’ mode to ‘outside air’ mode automatically without reference to temperature set, cabin temperature, outside ambient temperature and duration of putting on air-conditioner. She alleged that the change of mode was being experienced when the air in the cabin becomes polluted and pungent causing health hazards. The problem was intimated to the o.ps. from July, 2008 and afterwards series correspondences were made between the complainant and the o.ps. on the issue, annex-B.

            Subsequently on 14.8.08 the Control Assembly Heater of the air-conditioning systems was replaced, annex-C, though the complainant raised questions before the replacement as to whether the proposed replacement will suffice to solve the problem or it is an inherent problem of the car. The replacement could not solve the problem of the complainant. on report to o.ps. they sticked to the point that the system is normal. The complainant reportedly consulted the Auto Specialist of the Statesman and the report was published as a news item of the publication dt.26.10.08, annex-D.

            Moreover, the kilometer run per litre was found much less than that claimed by the o.ps. in their online brochure.

            Lawyer’s notice was sent to the o.ps. on 6.11.08, annex-F, for rectification of defects but the o.ps. took no further action.

            The complainant has now prayed for direction upon the o.ps. towards;

1. replacement of the defective car by a new fault free car of same brand and model and in the alternative refund of entire consideration money of Rs.7,40,000/-,
2. payment of a sum of Rs.2,00,000/- as compensation for her mental agony and harassment,
3. payment of litigation cost.

The case has been contested by all the o.ps.

Now the points for decision in this case are :

1. whether the complainant is a consumer and the o.ps. are service providers,
2. whether there is any deficiency in service on the part of the o.ps./defective car was supplied to the complainant,
3. whether the complainant is entitled to get relief as prayed for.

                                                                        Decision with reasons:

We have perused the written versions, evidence of affidavits, B.N.As and other relevant documents adduced by the parties and heard the arguments advanced by the complainant and the ld. advocates of the o.ps.

Main contention of the o.ps. are that the allegations of the complainant is based on mere apprehension and figment of imagination and is hypothetical. It has been stated by the o.ps. that ‘FACTS’ works in both modes i.e. ‘Automode’ and ‘user setting mode’ and that if the user prefers not to have ‘fresh air’ mode in auto system then the ‘re-circulation mode’ can be selected by the user. But the complainant has alleged that ‘re-circulation mode’ are being automatically changed to ‘air mode’ in his car. The o.ps. also contended that the complainant did not point out the defects during 1^st, 2^nd and 3^rd free servicing on 14.5.08, 13.9.08 and 26.2.09 respectively and that the complaint is not based on any technical expert opinion and rather only on a news item published in the Statesman. During hearing the o.ps. cited a good number of judgments to the effect that defect in a part does not tantamount to replacement of the car or refund of money.

In sales management of costly luxury car, the option of the purchaser is preferred first and foremost. A new system as to what extent it is innovative and novel should have been brought to the notice of the purchaser before selling. Why the newly operative ‘FACTS’ system was not mentioned in the sales brochure or users manual is not clear. The o.p. nos.2 and 3 have furnished a copy of operative manual, annex-I, but whether that was furnished to the purchaser has not been clearly indicated. The o.p. no.1 has not mentioned that such manual was given to the purchaser. It has not been clarified by the o.ps. that the ‘outside air’ comes to the cabin on filtration. The o.ps. claim that AC system as introduced is a feature of the car and is normal but simultaneously they have preplaced parts of the AC system on 14.8.08. Had they have no suspicion over the normal feature as stated they never tried to remove the difficulties in the system by replacing parts. In the written version o.p. no.1 has asserted that the air conditioning machine is performing according to its power and scope of functioning. Does it mean that a purchaser of a car worth over seven lakhs cannot enjoy air conditioning to the extent he desires? The purchaser has made a number of correspondences with the o.   ps. over the issue from 3.7.08 and enquired whether the change of any part will suffice to activate the system properly. But the o.ps. remained silent. It is imperative whether the complainant has or has not reported his defects on the dates of free servicing. In his letter dt.18.8.08 the Area Parts and Service Manager,  Hyundai Motor India Ltd. has confirmed that “it is not a part defect by replacing the same in your presence”, annex-B. all the above stated facts apparently confirm that the defects are inherent in nature and may be a manufacturing defect. Though the news items in the Statesman reported in respect of the car of he complainant we are not inclined to accept it as an expert opinion. But whenever a defect is inherent and cannot be mitigated by replacing parts it appears that there remains no alternative than to replace the car by a new one.

As regards kilometer run per litre we are not in a position to comment anything as complainant has not produced any technical report in this respect.

The complainant invested money for the purchase of a car but due to repeated difficulties experienced the complainant i.e. the consumer was deprived of satisfaction of buying a new luxury car. The loss of satisfaction would be much more in a case where it is purchased with hard earned money.

The o.ps. should have disclosed their  innovative AC system to the consumer (by users manual) facilitating her to select the letter alternative. Also the o.ps. should have shown promptness in meeting the queries of the consumer at length. This is clearly a deficiency in service. As the replacement of parts could not solve the problem of the consumer it may be viewed that a defective car was sold to the consumer.

In our view when replacement of parts could not avert the defects, a multinational company, manufacture such a high cost car, is not justified in engaging in protracted litigation instead of replacing the car. In western countries, even if there is aggressive marketing, defective vehicles are easily replaced. The practice is required to be adopted, at least, by the big and reputed companies like the o.ps. herein. The consumer 9in the instant case is entitled to get relief. 

Hence,

            Ordered,

That the case of the complainant is allowed on contest with cost against o.ps.

O.ps. are directed to replace the car of the consumer complainant by a brand new one of same brand and same model and fault free within a month from the date of this order. O.ps. are also directed to pay jointly and/or severally a compensation of Rs.20,000/- (Rupees twenty thousand) only towards harassment and mental agony and a litigation cost of Rs.1000/- (Rupees one thousand) only to the consumer within a month from the date of communication of this order.

 O.ps. are however at liberty to refund Rs.7,40,000/- (Rupees seven lakhs forty thousand) only by taking the instant car back from the consumer, in lieu of replacement.

Supply certified copy of this order the parties on payment of prescribed fees.