DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi- 110016

Case No. 436/2010

Sh. Neeraj Bhati

R/o Gali No.2, Gujjar Colony,

Dadari, Gautam Budh Nagar, UP

….Complainant

Versus

M/s Samara India P Ltd.,

B-35, Lajpat Nagar 2,

New Delhi-110024

        ….Opposite Party

 Date of Institution    :  07.07.2010     

 Date of Order            : 28.01.2023     

Coram:

Ms. Monika A Srivastava, President

Ms. Kiran Kaushal, Member

Sh. U.K. Tyagi, Member

ORDER

Member: Sh. U.K. Tyagi

1. Complainant has requested to pass an award directing M/s Samara India Pvt. Ltd. and M/s Hyundai Motors India Ltd. (hereinafter referred to as OP-1 &2 respectively) to replace the defective car with new car or to refund the amount of Rs.3,28,000/-.

2. Brief facts of the case are as under:-

The complainant purchased a new Santro GLS Crystal Car bearing No. MALA A5 1HR 9M 411074 on 07.12.2009 for Rs.3,28,000/- and got the registration  No. UP-16Z3800. It was noticed that the said car has started creating extra noise when it exceeds the speed of 50KM/hour and was having this problem from the very first day of its purchase.  The marriage of the complainant was on the same day so the delivery was taken same night. Hence the defect could not be noticed/detected.  It was found subsequently that there were dents on left front wheel frontier and dicky. Moreover, the right side of head light of this car used to collect water vapour inside the glass.  Some jerk was also noticed on switching off the car.  Power-window of the car was also not working properly.  So the complainant approached respondent’s service centre situated at B-24, Okhla Industrial Area, Ph-I, New Delhi.  The Dicky, headlight and left front wheel frontier were replaced and some repairing was done.  But no repair order was issued by OP-1.

3. Despite this, the defects in the said vehicle remained. So the complainant took the said car to authorised Service Centre at MGF Patparganj New Delhi.  Again some problem developed in the car, engine became hot and stopped then it was taken to the authorised service station of Spare Automobiles at NOIDA.  Again on 16.01.2020, the said car was taken to OP’s Service Centre.  After some time, it was brought to the respondent’s Service Centre on 10.03.2010. In between, the complainant had to go out of station on account of official work, so the car remained parked for some time and could not be taken to the OP’s Service Centre despite continuous defects.  At last, the complainant sent the car to OP’s workshop for removal of defects.  Defects could not be removed despite repeated visits to the office and workshop of the OP-1 and since then, the car is lying with OP-1.  It was also noticed that the manufacturing date of car was March 2009 whereas it sold to the complainant on 07.12.2009.  The complainant also got legal notice served for taking the car back.  No resolution was provided by Ops.  Hence the complaint.

4. OP-1, being authorised dealer of OP-2, filed its reply stating that no part of complaint should be treated as admitted unless specifically so stated.  The OP has taken preliminary objections stating that vehicle in question has been illegally used for commercial purposes on looking at the use of the pattern as mentioned below:-

5. From the above, it is clear that when the car was brought first time on 17.12.2009, it plied around 1509 KM within a span of 10 days.  The complainant had not provided the repair invoice of 17.12.2009.  No dent/Noise beyond the speed of 50 KM/hour was reported on 17.12.2009.  It was also contended that the complainant had cooked up the story of prior occupation in alleged marriage of the complainant. It was stated that complainant visited MGF Hyundai for free service on 17.12.2009.

6. The complainant visited the OP-1’s unit first time on 16.01.2010 at B-24, Okhla Industrial Area Ph-I, New Delhi with two problems  (firstly relating to discharge of battery and secondly with alleged noise over and above the speed of 100 KM/hour.  No other defect was pointed out by the complainant. Because of this fact, the complainant has deliberately avoided to file the repair order.  He was not charged for rectification of the problems as mentioned above.  The same could not be seen from the invoice dated 17.01.2010.  The complainant reported on 10.03.2010 with mileage of 7174 KM with the following problem:-

          Engine does not start – starter cranking/battery check.

7. The matter was looked into and rectified satisfactorily. The allegation of selling the used car is denied and the said car was sold to the complainant under the scheme launched in Dec.09.  No defect was noticed at the first service on 17.12.2009.  It was only due to heavy and rough use of the car, certain defect had cropped up in ECM (Electronic Control Module) due to which battery was getting discharged resulting into alleged starting problem.  The ECM has been changed with the new one. As the OP-1 maintained that on the contrary, the complainant is liable to give parking charges.

8. OP-2 also filed its reply interalia raising some preliminary objections.  The OP-2 denied all allegations, averments, contentions except those which are specifically admitted. OP-2 also contended that when the problem in starting the car was reported.  The same was examined and found some problem in ECM and same was replaced with new one.  Thereafter, the technicians of the OP-1 tested the vehicle on road and found to be in perfect running condition.  It was further stated that 2 years warranty policy offers two years unlimited mileage warranty from the date of delivery of the vehicle to first purchaser, does not in any circumstances contemplate replacement of vehicle nor refund of purchase price.  The relevant warranty policy lays down:  

“....Authorised dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period.... At no cost to the owner of the Hyundai vehicle for parts of Labour”

The OP-2 has mentioned the following dicta of Hon’ble SC/ National Commission.

1. Maruti Udyog Ltd. Vs. Susheeel Kr. Gabgotra & Anr 2006 CPJ 3 (SC)
2. TATA Engineering & Locomotive Co. Ltd. & Anr. Vs. M. Moosa

There is no case of replacement of vehicle or refund of purchase price on account of some defects only.

It was further maintained that there is no deficiency in service on its part. No cause of action arises in its favour.

9. All the parties filed their written submissions and evidence-in-affidavits. Written statement of OP-1 & 2 filed but no rejoinder seem to have been filed.  Oral arguments were heard and concluded.

10. This Commission has gone into the entire material placed on record and due consideration was given to the arguments.  It is true that some defects were reported by the complainant.  But it is also fact from the use pattern of vehicle in initial months that the complainant had used the vehicle excessively. But whether the OPs had specifically asked/directed the purchaser to use the vehicle within limited mileage.  Nothing from their reply, seems that such kind of instructions have been passed on to the complainant.  It is expected that the new vehicle shall remain trouble free for some initial months.  The Ops have accepted this fact that ECM had got defects and same was replaced also. At the same time, it is also fact that the defects such as were reported were not so serious which goes to establish in manufacturing defects.  The Hon’ble Supreme Court & Hon’ble National Commission in the above-mentioned case rightly held that if some defects cropped in the machine and on the basis of these defects, the purchaser seeks replacement.  It shall be prejudicial to the interest of the manufacturer if he is asked to replace the whole machine unless there is inherent defect in manufacturing. Since in the instant case, the complainant has not produced such expert report which goes to establish that there was some inherent defect in manufacturing.  It is also noticed that the OP-1 has filed application under Section 13 (3-B) of CP Act, 1986 for seeking directions against complainant for taking away the vehicle from his workshop and pay parking charges @ 150/- per day.  Reply to the said is also on record.  There appears no directions/order of this Commission in this regard.  It is not on record whether the vehicle is still lying at workshop or not.  After considering the facts and circumstances as mentioned above in the case, this Commission, on following the ratio of Hon’ble Supreme Court and Hon’ble National Commission in the case mentioned above; respectfully goes with dicta as far as replacement of said car is concerned. It is also further stated that if the vehicle is not removed so far, the complainant may be allowed to take the vehicle and OPs shall ensure that said vehicle should be in running condition on the road. No parking charges shall be obtained from the complainant.  And also, we feel that the said vehicle got the defect at very initial months and some defects have been rectified but it is expected that the new vehicle shall be trouble/defect/free at least in initial period.  Therefore, OPs are directed severally and jointly to pay Rs.40,000/- as compensation to the complainant within 3 months from the receipt of this order failing which rate of interest @ 6% per annum shall be levied till its realisation.

File be consigned to the record room and order be uploaded on the website.