Chandigarh

StateCommission

A/3/2023

BERKELEY HYUNDAI - Complainant(s)

Versus

SHYAM SUNDER SHARMA - Opp.Party(s)

AMIT DUDEJA ADVOCATE

25 May 2023

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	03 of 2023
Date of Institution	:	04.01.2023
Date of Decision	:	25.05.2023

 

 

 

 

 

Berkeley Hyundai (Berk Auto LLP) through its Authorized Signatory/AGM Mr.Ashok Kumar son of Sh.Prem Kumar Sharma, Plot No. 375, Industrial Area, Phase-1, Panchkula.

• Appellant/opposite party no.3

 

V e r s u s

 

1. Shyam Sunder Sharma S/o Sh.Lalit Prashad Sharma, resident of H.No.1630, Sector 23-B, Chandigarh.  

….Respondent no.1/complainant

2. Hyundai Motors India Ltd. through its Authorized Signatory/Managing Director/Chief Executive Officer, having Registered Office and Factory Kanchipuram, Irrugattukottai, NH No. 4, Sriperumbudur Taluk, Kanchipuram, District Tamil Nadu-602117.  
3. Hyundai Motors India Ltd. through its authorized signatory/Area Sales Manager Mr. Abhinav Narula, having Regional Office-I, DLF Building, Tower-B, 3rd Floor, RGCT Park, Chandigarh 160101
4. Future Generali India Insurance Company Limited through its Authorized Signatory/Managing Director/Chief Executive Officer/ Chairman Mr. G.N. Bajpai, Serving office address of the insurer SCO 4, 5, 2nd Floor, Sector 8-C, Chandigarh-160009.

….Respondent no.2 to 4/opposite parties no. 1, 2 and 4

PRESENT:-

Sh. Amit Dudeja, Advocate for the appellant/Berkeley Hyundai. Sh. Anuj Kohli, Advocate for respondent No.1/complainant. Sh. Amrit Pal Singh Kahlon, Advocate for the respondents No.2 & 3/Hyundai Motor India Ltd. Sh. Kapil Khanna, Advocate for respondent No.4/Future Generali India Insurance Co. Ltd.

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Appeal No.	:	167 of 2022
Date of Institution	:	09.12.2022
Date of Decision	:	25.05.2023

 

 

 

 

 

1. Hyundai Motors India Ltd. through its Authorized Signatory/Managing Director/Chief Executive Officer, having Registered Office and Factory Kanchipuram, Irrugattukottai, NH No. 4, Sriperumbudur Taluk, Kanchipuram, District Tamil Nadu-602117.  
2. Hyundai Motors India Ltd. through its authorized signatory/Area Sales Manager Mr. Abhinav Narula, having Regional Office-I, DLF Building, Tower-B, 3rd Floor, RGCT Park, Chandigarh 160101
3. Appellants/opposite parties no.1 and 2

 

V e r s u s

1. Shyam Sunder Sharma S/o Sh.Lalit Prashad Sharma, resident of H.No.1630, Sector 23-B, Chandigarh.  

….Respondent no.1/complainant

2. Berkeley Hyundai (Berk Auto LLP) through its Authorized Signatory/MD/CEO/Chairman Mr. Ranjeev Dahuja,  Plot No. 375, Industrial Area, Phase-1, Panchkula.
3. Future Generali India Insurance Company Limited through its Authorized Signatory/Managing Director/Chief Executive Officer/ Chairman Mr. G.N. Bajpai, Serving office address of the insurer SCO 4, 5, 2nd Floor, Sector 8-C, Chandigarh-160009.

….Respondent no.2 and 3/opposite parties no.3 and 4

PRESENT:-

Sh. Amrit Pal Singh Kahlon, Advocate for the appellants/Hyundai Motor India Ltd. Sh. Anuj Kohli, Advocate for respondent No.1/complainant. Sh. Amit Dudeja, Advocate for respondent No.2 (Berkeley Hyundai). Sh. Kapil Khanna, Advocate for respondent No.3/Future Generali India Insurance Co. Ltd.

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BEFORE:- JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT.

                   MR.RAJESH K. ARYA, MEMBER.

 

PER JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

 

M.A. No.08 of 2023, & 883 of 2022 (condonation of delay):-

Alongwith these appeals, separate applications have been filed by the respective appellants for condonation of delay of 129 days but as per office 153 days (M.A. No. 08 of 2023) in FA No.03 of 2023 (Berkley Hyundai (Berk Auto LLP)); and delay of 83 days (M.A. No. 883 of 2022) in FA No.167 of 2022 (Hyundai Motor India Ltd. and anr.)

2.                Arguments on these applications were heard. For the reasons stated in the respective applications, delay of 153 days  (M.A. No. 08 of 2023) in FA No.03 of 2023 (Berkley Hyundai (Berk Auto LLP)); and delay of 83 days (M.A. No. 883 of 2022) in FA No.167 of 2022 (Hyundai Motor India Ltd. and anr.) is condoned and the said applications are disposed of accordingly.

Appeals no.03 of 2023 and 167 of 2022:-

                   The above captioned appeals have arisen out of the common order dated 20.07.2022 passed by the District Consumer Disputes Redressal Commission-II,  U.T., Chandigarh, whereby consumer complaint bearing no.150 of 2021 stood allowed by it, as under:-

“……19]      Taking into consideration the above discussion & findings, we are of the opinion that the deficiency in service and unfair trade practice resorted to by the OPs No.1 to 4 has been proved. Therefore, the present complaint is allowed against them.  The Opposite Parties No.1 to 3 are directed to pay an amount of Rs.3,00,000/- to the Complainant towards compensation for causing him immense harassment, mental agony and depreciating value of brand new vehicle on account of change of its engine, apart from payment of Rs.33,000/- towards litigation expenses.

         The above said order shall be complied with by the Opposite Parties No.1 to 3, jointly & severally, within a period of 30 days from the date of receipt of its copy, failing which they shall be liable to pay additional cost of Rs.50,000/- apart from the above awarded amount.

         The Opposite Party No.4 is directed to pay an amount of Rs.25,000/- to the complainant towards compensation for delay in effecting necessary changes in the insurance documents after the replacement of the engine assembly of vehicle, which led to inconvenience, harassment and mental tension to the complainant.

         The above said order shall be complied with by the Opposite Party No.4, within a period of 30 days from the date of receipt of its copy, failing which it shall be liable to pay additional cost of Rs.10,000/- apart from the above awarded amount...….”

3.           The facts in brief are that the complainant purchased brand new Hyundai Creta Car bearing Chassis No.MALC181CLJM519044 and Engine No.G4FGJU555876 on 11.1.2019 from OP No.3, manufactured by OPs No.1 & 2, and got the same registered vide Regd. No.CH-01-BV-1949 with the Registering & Licensing Authority, U.T. Chandigarh.  The said vehicle was also got insured from Future Generali India Insurance Company Limited at the suggestion & asking of OP No.2 itself vide Policy No.HFE30545 dated 11.01.2019 valid till 10.01.2020 (Ann. C-2 & C-3). It was stated that soon after the purchase of the vehicle, when it had covered only 3139 Kms, it starting giving troubles. Mater was report to the opposite parties. In the first instance, silencer of the vehicle was replaced on 16.9.2019 (Ann.C-5). Thereafter, in a short span of time, some abnormal sound from the engine was noticed as a result of which on 20.9.2019, it was informed to the complainant that they would need to open the engine of car to rectify the problem.  Thereafter, Mr. Anil Bishnoi, Area Manager, Chandigarh, informed the complainant that he had personally inspected the car and found the car engine connecting rod bend, due to Hydrostatic lock and on being asked, how it occurred, he told that it happened as some water droplets came in engine while running engine conduction (few water droplets came in engine cylinder) and being an external factor, the company can only repair the engine on payment basis because it is not covered under the insurance or warranty and they in any case cannot replace the car or the engine.  However, ultimately, half engine assembly of the vehicle had to be replaced. Thereafter, the complainant faced lot of problems in getting the engine and chassis number changed in the documents Even ID sticker for the replaced engine was not provided  despite repeated requests. Even the necessary changes in the insurance documents were also not done by the insurance company.  It was stated that due to the deficient act and conduct of the opposite parties, the complainant had suffered personally as well as professionally as even the standby vehicle was not made available to the complainant by the opposite parties for the complete period to mitigate the problems being faced by the complainant due to act and conduct of the opposite parties as the vehicle remained with them for a period for about more than 2 months. It is averred that as the vehicle was having a latent inherent manufacturing defect so much so that the engine of the vehicle had to be replaced completely and the OPs failed to provide after sale service properly rather there is a clear deficiency on the part of the OPs and they have indulged into unfair trade practices which is apparent and writ large on the face of the record. Hence, consumer complaint was filed before the District Commission.
4.           Opposite parties no.1 and 2 in their joint written reply stated that  they operate with all its dealers including OP No.3 on Principal-to-Principal basis and not on ‘Principal to Agent’ basis, so the error/omission, if any, at the retailing or servicing of the car by the dealer is the sole responsibility of the concerned dealer.  It was averred that concern of the complainant with regard to Engine Assy. was replaced well before the filing of the present complaint to his satisfaction. It is also submitted that complainant purchased the vehicle in question on 11.1.2019 and had driven it for more than 3100 KM’s till 4.8.2019 and during these 7 months, no concern regarding its performance was reported.  The complainant reported the vehicle on 5.9.2019 @ 3281 KM’s for running repair and upon inspection by the concerned dealer, water was found inside the muffler assy. due to which silencer of the vehicle had choked, which was replaced free of cost by the dealer on Goodwill basis. It was stated that there is no manufacturing defect in the vehicle and the complainant had failed to prove the same by any cogent evidence of expert report. It was further stated that on 19.9.2019 the complainant reported his vehicle with regard to engine noise and on inspection by dealer, water was found in the Air Filter and after further diagnosis one cylinder crankshaft was found bent which happens only due to hydrostatic shock  and though it was not covered under warranty, yet, as a Goodwill gesture, the required parts were replaced to the satisfaction of the complainant, after he gave consent to further inspect the vehicle and replace the required parts. After the parts were changed, the complainant was also handed over a letter by opposite party No.3 stating that the Engine Assy. has been changed and details of old and new engine numbers were also given (Ann.OP-1-2/8).
5. .  Opposite party no.3 filed written reply, wherein, it was stated that  the engine of the car in question was replaced at the Service Centre of opposite party No.3 and no payment had been obtained by it while changing the engine as is reflected in invoice summary dated 21.11.2019.  Opposite party no.3 is not the manufacturer of the Car in question; rather it is sale & service agency. The complainant had visited opposite party no.3 for the problem of some sound in engine, so some questions regarding the filling of the petrol or driving the vehicle in water log area were asked, but the complainant did not answer properly and as such, to get the problem detected, consent from complainant was taken to open the engine and detect the problem.  Thereafter, the engine was opened with the consent of the complainant and then necessary replacements of parts were done. 
6.           Opposite party no.4/Future General India Insurance Company in its reply stated that insurance of the said vehicle is valid from 11.1.2019 to 10.1.2020 for Own Damaged Coverage and from 11.1.2019 to 10.1.2022 for Third Party Coverage (An. OP-1). Opposite party no.4 did not receive any communication from any of the parties about defect in the insured vehicle. The complainant only approached for updating engine number via email dated 21.12.2020, which needs to be  updated in the policy as well as system of Opposite party no.4 for future references.  Opposite party no.4 had requested opposite party no.3 a number of time for updating the rectified/new engine number of the vehicle in question on its web portal and left with no alternative, opposite party no.4 on its own updated the rectified engine number of the insured vehicle in question in its system by making necessary changes and issued endorsement to the complainant with updated engine number in Nov.  2021.
7.           The contesting parties led evidence in support of their case.
8.           The District Commission after considering the rival contentions of the contesting parties and on going through the material available on record,  allowed the consumer complaint, in the manner stated above.
9.           Hence these appeals.
10.           Counsel for the appellants submitted that since the engine of the vehicle in question stood replaced with a new one, despite the fact that it was water logged, as such, it cannot be said that there is any deficiency in rendering service or unfair trade practice on the part of the appellants and on the other hand, had the appellants not replaced the said engine, only in those circumstances, the District Commission could have allowed the complaint. It was further submitted that by allowing the complaint and granting compensation in favour of the complainant, the District Commission fell into a  grave error and as such, the order impugned is liable to be set aside.
11.           On the other hand, counsel for the respondent no.1/complainant submitted that the replacement of engine of the vehicle in question within a short span of time and that too when the vehicle had covered about 3000 kilometers is sufficient to hold the appellants deficient in providing service, and guilty of adoption of  unfair trade practice, which led a lot of mental agony and harassment to the complainant and as such, the District Commission was right in granting appropriate compensation in the matter, keeping in mind the facts and circumstances of this case.  
12.            The main grouse of the complainant  was that the vehicle in question was suffering from inherent manufacturing defect and that was why, its engine was replaced by opposite parties no.1 to 3, though free of cost. It is his further grouse that even the silencer of the said vehicle was defective, as a result of which, it was also replaced by opposite parties no.1 to 3. According to him, he has purchased a brand new vehicle, yet, was forced to take it to the workshop of opposite parties no.1 to 3, a number of times, for defect rectification.
13.           It may be stated here that no doubt, within a short span of purchase of the said vehicle, it suffered defect in its silencer and engine, as a result of which, the same were replaced by the opposite parties no.1 to 3 though belatedly, yet, admittedly, free of cost. However, at the same time, this Commission also cannot lost sight of the fact that though the engine and silencer of the vehicle in question was replaced free of cost by  opposite parties no.1 to 3, yet, it was a new vehicle and had to be taken to the workshop for replacement of the defective engine and silencer, which would have definitely caused mental agony, harassment and pain to the complainant. Opposite parties no.1 to 3 were thus deficient in providing service and negligent as they had sold the vehicle with the defective engine and silencer to the complainant. Had they got the said vehicle tested/inspected at the time when it was manufactured or at the time the same was got ready for its delivery to the complainant, he would have escaped from the unnecessary litigation. Be that as it may, in our considered opinion,  award of lumpsump compensation to the tune of Rs.3 lacs appears to be on the higher side, especially, when it is not the case of the complainant that even after replacement of engine and silencer, the vehicle is not trouble free. 
14.           It may be stated here that although there is no criteria to determine the requisite damages,  in such like cases, yet, it must be based upon some reasoning, but, the order impugned sans such reasoning. Under these circumstances, the order impugned requires modification with regard to the compensation awarded by the District Commission. For assessment and calculation of damages, the determination of loss or damage resulting from such damage, especially in the context of unliquidated damages, gains immense significance. With respect to the formula to be used to ascertain the quantum of damages - there is nothing specifically mentioned in the Contract Act nor any other relevant law in India, prohibiting the applicability of widely accepted formula or deem them as contraventions to the existing legal regime, yet, there has to be some sensible reasoning for grant of compensation. We therefore partly allow these appeals as under:-
    1. The opposite parties (Hyundai Motors India Ltd., Berkeley Hyundai (Berk Auto LLP)  and Future Generali India Insurance Company Limited) shall pay compensation to the tune of Rs.1.50 lacs to the complainant- Shyam Sunder Sharma out of which Rs.1.25 lacs is to be paid by opposite parties no.1 to 3 (Hyundai Motors India Ltd. and Berkeley Hyundai) for causing him mental agony and harassment, as he has to take his brand new vehicle number of times to the workshop for replacement of defective parts, referred to above, and Rs.25,000/- to be paid by opposite party no.4- Future Generali India Insurance Company Limited to the complainant as compensation for causing delay in effecting necessary changes in the insurance documents after the replacement of the engine assembly of vehicle, which led to inconvenience, harassment and mental tension to him.
    2. This order shall be complied with, by the opposite parties, in the manner, referred to above, within a period of 30 days from the date of receipt of a certified copy thereof, failing which the awarded amounts shall entail interest @9% p.a. respectively, from the date of filing of the main consumer complaint till realization.
15.           Certified Copies of this order be sent to the parties, free of charge and one copy thereof be placed in the connected file.
16.           The files be consigned to Record Room, after completion.

Pronounced.

25.05.2023

 

 

Sd/-

[JUSTICE RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

Sd/-

(RAJESH K. ARYA)

 MEMBER

 Rg.