Delhi

StateCommission

RP/35/2014

ARUN KUMAR MISHRA - Complainant(s)

Versus

SAMARA HYUNDAI & ANR. - Opp.Party(s)

05 Apr 2016

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision: 05.04.2016

 

 

Revision Petition No.35/2014

(Arising out of the order dated 15.01.2014 passed in Complaint Case No.70/2012 by the District Consumer Redressal Forum (East), Delhi

 

In the matter of:

 

Shri Arun Kumar Mishra,

S/o Dr. H.B. Mishra,

R/o Flat No.201, 2^nd Floor,

Plot No.39, Gali No.2,

East Guru Angad Nagar,

Delih-110092.                                                                …..........Petitioner

 

Versus

 

1. Samara Hyundai,

B-35, Lajpat Nagar-II,

Lajpat Rai Marg,

New Delhi -110024.

 

2. Samara Hyundai Service Centre/ Workshop,

22-23, Patparganj Industrial Area,

Delhi -110092.

 

3. Hyundai Motor India Limited,

Marketing & Sales Headquarters,

A-30 Mohan Cooperative Industrial Area Phase-I,

Mathura Road, New delhi -110044.

 

4. Hyundai Motor India Limited,

Plot No.H-1, SIPCOT Industrial Park,

Irrungattukottai, Sriperumbudur Taluk,

Kancheepuram District,

Chennai – 602105, Tamilnadu.                          ….….....Respondents

 

CORAM

Justice Veena Birbal, President.

Ms. Salma Noor, Member.

 

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

 

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

 

1. In this Petition prayer is made for setting aside order dated 15.01.2014 passed by the Consumer District Redressal Forum (in short “the District Forum”) in Consumer Complaint No.70/2012, by which the complaint of the petitioner herein i.e. complainant before the District Forum has been dismissed.
2. Briefly, the facts relevant for the disposal of the present petition are that a complaint under Section 12 of the Consumer Protection Act 1986 (hereinafter referred to as ‘the Act’) was filed by the petitioner/complainant stating therein that he is a practicing advocate and had purchased a VERNA from respondent No.1 bearing registration No.DL 3 CBF 0270 for his personal and professional use on 06.02.2008 for a sum of Rs.8,38,000/- and Rs.59,999/- was paid towards road tax, registration fee, parking fee, insurance charges etc. It was alleged that from February 2008 till April 2010, all free as well as paid services were done by respondent No.2 and the petitioner/complainant was having no complaint with the vehicle. It was alleged that during the routine check up of the vehicle on 27.04.2010, Sh. Sanjay Das of respondent No.2/OP No.2 suggested to replace the Timing Chain Belt as the vehicle had completed more than 85000 KM and accordingly the same was got done by the petitioner/complainant and the vehicle was delivered to the petitioner/complainant on 23.05.2010 i.e. after 25 days of handing over of the vehicle. It was alleged that immediately before driving the vehicle on start at the workshop, the petitioner/complainant noticed that smoke was coming from the front portion of the engine and thereafter the staff of respondent No2/OP No.2 took the vehicle to the workshop and after working for 3 hours on the vehicle, declared the same fit and roadworthy. It was alleged that even thereafter the vehicle was giving problem and from May 2010 till 26.06.2010 the vehicle was sent four times to respondent No.2/OP No.2 for necessary repairs.
3. It was alleged that on 26.06.2010, the petitioner/complainant took the vehicle to Himachal Pradesh, where it started giving smoke. The petitioner/complainant tried to take out ignition key but after removing ignition key, vehicle did not stop and it broke down. The petitioner/complainant contacted the customer care and finally the vehicle was towed by Sant Hyundai, Kangra and suggested that it would take atleast a month to get the engine overhauling due to overheating of the engine. The matter was informed to respondent No.2/OP No.2. It suggested to bring the vehicle to Delhi and thereupon it was transported to Delhi and was delivered to respondent No.2. It was alleged that on 05.07.2010, the petitioner/complainant was informed that the injectors were being checked up by Dashmesh Diesel Services and they would do the mechanical work and it would become roadworthy and would cost Rs.16,000/-. It was alleged that the petitioner/complainant suffered loss of Rs.3,00,000/- due to breakdown of the vehicle on various dates and also suffered physical and mental torture. The petitioner/complainant filed the complaint before the District Forum for replacement of the vehicle with the same or similar model or for refund entire amount of the vehicle to him alongwith compensation and litigations costs.
4. The aforesaid complaint was opposed by respondent No.1 and 2 wherein they had denied the allegations made by the petitioner/complainant. It was alleged that the petitioner/complainant was taking benefit of his being in the legal profession. It was alleged that whenever the vehicle was brought, necessary repairs were done. It was further alleged that the vehicle was purchased on 06.02.2008 and till April 2010 i.e. in two years 03 months it had covered more than 85,000 km. and no defect was ever reported. It was alleged that the petitioner/complainant had reported about the breakdown of the vehicle and requested to provide necessary help and brought the vehicle to the workshop i.e. respondent No.2. It was alleged that the vehicle had met with an accident and several damages were noticed therein and the petitioner/complainant was informed accordingly. It was alleged that the petitioner/complainant had also informed the insurance company and the delay, if any,  was caused because of the discussion of the petitioner/complainant with insurance surveyor and the insurance company. It was alleged that the vehicle was received on 03.07.2010 and job card was duly prepared. The petitioner/complainant was suggested for replacement of injectors but he opted for repairs and sent for repairs to Dashmesh Automobiles. The repaired injectors were fitted. On 12.08.2010 the vehicle was handed over to the complainant. The complainant did not pay the entire bills in respect of work done by respondent. On 28.12.2010 the paid service was done. The petitioner/complainant was informed telephonically to take the delivery of the vehicle. He did not come and threatened the respondent No.2 to replace the vehicle.
5. Respondent No.3 and 4 had also filed their reply before the Ld. District Forum wherein they had also denied their liability and responsibility.
6. Evidence was led by the parties and thereafter the aforesaid order was passed by the Ld. District Forum whereby the complaint was dismissed.
7. Aggrieved with the same, the present petition is filed.
8. Ld. Counsel for the petitioner/complainant has submitted that the impugned order records that the parties have been heard, whereas the order dated 17.12.2013 i.e. the date on which the arguments were heard shows that the complainant was absent and on that date order was reserved. It is contended that the petitioner/complainant has not been heard at the time of final arguments and no reasonable opportunity has been given to him to argue the case as such there is violation of principle of natural justice. It is further contended that on 11.04.2013 Ld. District Forum observed in the order that the vehicle was given for repair of clutch and engine overhauling has been done and the said question was put to respondent/OP to explain as to why the same was done without consent of the complainant. It is contended that pursuant thereto the parties were directed to place on record the documents which may clarify the issue, but the respondent/OP did not file any documents on record which could prove the consent of the complainant. It is contended that the said contention has not been discussed in the impugned order. It is contended that even, material evidence has not been discussed, while passing the impugned order.
9. It is further contended that on 30.09.2013, additional evidence of respondent/OP was taken on record by the Ld. District Forum and the petitioner/complainant was given an opportunity to file his evidence in rebuttal. It is stated that even that opportunity has not been given to the complainant as the right to file evidence in rebuttal was closed. It is prayed that the impugned order is liable to be set aside.
10. On the other hand, Ld. counsel for the respondents/OPs have argued that the impugned order is a speaking and reasoned order. It was for the petitioner/complainant to have presented himself before the District Forum on the date of hearing i.e. 17.12.2013 when the matter was listed for final arguments. Since the petitioner/complainant did not avail the opportunity of argument, it can’t be contended that opportunity of hearing was denied to him. It is contended that all the material evidence is discussed while passing the impugned order.
11. We have considered the submissions made and have perused the material on record.
12. The order dated 17.12.2013 i.e. the date on which arguments were heard and order was reserved reads as under:

 

•  

Complainant absent. No evidence filed in rebuttal.

Heard arguments.

Order Reserved.”

          

13. The aforesaid order shows that the petitioner/complainant was not present as such has not been heard at the time of fnial arguments. On the other hand, the impugned order records that the counsel for the parties have argued the matter. The said fact has been wrongly recorded in the impugned order. Further, the other contention of the petitioner/complainant that the overhauling of engine has been done without the consent of the petitioner/complainant is also not discussed in the impugned order. The impugned order has serious consequences on the petitioner/complainant. It has also come on record that immediately after 17.12.2013, an application was moved on behalf of the petitioner/complainant for addressing the arguments and it was stated that the counsel for the complainant had undergone major heart surgery and thereafter he had to go to USA as such could not attend the hearing on 17.12.2013.
14. In the facts and circumstances of the case as well as the nature of controversy involved, we are of the view that the petitioner/complainant ought to have been heard in the matter. Since petitioner/complainant has not been heard, it has resulted in miscarriage of justice to the petitioner/complainant. Accordingly, we allow this petition and set aside the order passed by the Ld. District Forum and remand back the matter to the District forum with the direction to re-hear the parties and thereafter pass a speaking order after dealing with all the contentions of the parties. The complainant shall also be at liberty to lead his evidence in rebuttal, the opportunity of which was given to the petitioner/complainant vide order dated 30.09.2013 by the Ld. District Forum.
15. The parties shall appear before District Forum on 12.05.2016.
16. The petition stands allowed.
17. It is clarified that nothing stated herein above shall have any bearing on the merits of the case. The Ld. District Forum shall be free to decide the case uninfluenced by any observation made herein above.
18. Copy of this order be given to the parties and be also sent to the District Forum(East) for information and keeping it on record for compliance

           File be consigned to Record Room.

 

 

(Justice Veena Birbal)

•  

 

(Salma Noor)

Member