- Mr. Monoshij Sarkar,
- Mrs. Madhurima Sarkar,
Both residing at
EE-93/3A, Sector-II,
Salt Lake City, Kolkata-91. _________ Complainants
____Versus____
- Spring Hyundai,
129A South Tangra Road,
Kolkata-46, P.S. Tangra,
- Area Sales Manager,
Kolkata East Regional Office
Hyundai Motor India Ltd.
Benchmark Tower, 8th Floor, Plot-Gi,
Block EP & GP, Sector-V,
Salt Lake, Kolkata-91. ________ Opposite Parties
Present : Sri Sankar Nath Das, Hon’ble President
Dr. Subir Kumar Chaudhuri, Member.
Smt. Samiksha Bhattacharya, Member
Order No. 20 Dated 18-09-2015.
The case of the complainants in short is that complainants purchased a Hyundai-Make Car, Model i20, Sub Model – Magma (O) 1.2, petrol car being regn. no.WB 02AA 9012 and chassis no.MALBB51BLCM418687 and engine no.G4LACM857230 from o.p. no. on 4.8.12 at an amount of Rs.4,96,659/-. Complainant no.1 found that the car is defective one while driving the car on 5.8.12. Complainant no.1 stated that the car is suffering from some problems related to gear of the car for which the car does not get the proper speed during driving and accordingly, thereafter complainant no.1 informed the matter to o.p. no.1 i.e. service centre of o.p. no.2. O.p. no.1 inspected the car and on 28.9.12 o.p. no.1 visited the residence of complainants along with their Service Manger one Mr. Roshan Singh and drove the car along with complainant no.1 in the Rajarhat Road and not found any abnormality regarding the problem as has been stated by complainants. Even then the representative of o.p. no.1 requested the complainant to sent the car at their workshop for thorough check up. Complainants themselves annexed a photocopy of the letter dt.4.9.l12 along with the petition of complaint in support of the statement as stated hereinabove. Beside this, o.p. no.1 also communicated a letter dt.11.9.12 to o.p. no.1 stating therein in para 4 of the said letter that they have advised to send the car at their service station for necessary repairing work, if at all require, to set right the defect of the car. A copy of the aforesaid letter has been annexed by complainants with the petition of complaint as annex-5. But ultimately it appears that complainants h ad not sent the car to o.p. no.1 as per their advice. Beside this, they approached the o.ps. to replace them a new car in exchange of the car which has been purchased by them earlier. Since o.ps. had not taken any step as per the prayer of the complainants as aforesaid, complainants filed the instant case with the prayers contained in the prayer portion of the petition of complaint.
O.ps. appeared before this Forum by filing w/v and contested the case. During hearing only o.p. no.1 appeared and filed BNA. O.p. no.1 submitted that it is settled principle following the different judtments by Honb’e Apex Court as well as Hon’ble National Commission that expert opinion is essential to prove the mechanical defect of the vehicle. But in this particular case complainants had never approached with such contention since onus of proof lies upon the complainants and they had never preferred any expert opinion before this Forum, as such their contention in respect of mechanical defect has not been substantiated. Besides, ld. lawyer of o.p. no.1 also referred that the representative of o.p. no.1 visited the residence of complainants and drove the car along with complainant no.1 as has been stated hereinabove by complainants themselves in their petition of complaint as has been annexed by them with the petition of complaint as annex-4. Beside this, ld. lawyer of o.p. no.1 also stated that even after advised by them to the complainants to send the vehicle at their service station for necessary repairing, if at all require, even then complainants had not sent the vehicle to them and the aforesaid information has been sent by o.p. no.1 to the complainants in letter dt.11.9.12 under para 4 which has been annexed by complainants with their petition of complaint as annex-5 and ultimately o.ps. prayed for dismissal of the case since they have not made any deficiency of service to the complainants.
The instant case has been listed for filing BNA and hearing of argument since 16.5.14. Thereafter, several dates like 21.7.14, 14.10.14, 24.12.14, 13.3.15, 4.6.15 and ultimately it was fixed on 19.8.15 for filing BNA and hearing of argument. It is to be mentioned here that complainants were absent for the last consecutive four dates fixed for hearing of the matter and as such, this Forum found no other alternative but to hear the matter without complainants on 19.8.15 in presence of o.p. no.1 only.
Decision with reasons:
Upon considering the matters on record and submissions of o.p. no.1 during hearing this Forum holds that any manufacturing defect of the vehicle as has been raised by complainants cannot be proved without doubt without any expert opinion in this regard and complainants had never approached before the Forum for appointment of an expert opinion in this regard to detect the manufacturing defect of the vehicle as has been alleged by complainants since it settled principle of law that onus of prove lies upon the complainants. Beside this, o.p. no.1 i.e. service station of the vehicle in question approached to the complainants and ultimately advised them to send the car at their service station for necessary repairing works, if at all require, since complainants alleged mainly with the problem of the functioning of the gear of the vehicle in question. But complainants had not complied the advice of the service station i.e. o.p. no.1, on the other hand, complainants prayed before this Forum for replacing the existing car by a new one. Relying upon the judgment reported in [JT 2006 (4) SC 113] by Hon’ble Supreme Court of India where Hon’ble Supreme Court held that manufacturer cannot be ordered to replace the car or to refund the price merely because of some defect appears which can be rectified or defective part can be replaced. As such, upon considering the above facts and circumstances and on careful scrutiny of the entire materials on record and relying upon the judgment as stated above, this forum holds that o.ps. had not made any deficiency of service towards the complainants being service providers and complainants has not substantiated the case and they are not entitled to relief.
Hence, ordered,
That the case is dismissed on contest without cost against the o.ps.
Supply certified copy of this order to the parties free of cost.
