Presented by Sri G.S.Pradhan, President . <br /> The case pertains to deficiency in service as envisaged under the provision of Consumer Protection Act-1986 and its brief fact is as follows:-<br /> The Complainant has purchased one Hyundai i-10 Car from the Opposite Parties Company of Opposite Party No.1(one) for a sum of Rs. 4,93,067/-(Rupees four lac ninety three thousand sixty seven)only on Dt.24/12/2007 and for that the Opposite Party No.1(one) issued a money receipt in favour of the Complainant. After delivery of the Car, from the Opposite Party No.1(one), the Complainant found some noise in the front side of the Car. The Complainant immediately on January-2008 intimated the defect in the Car to the Opposite Party No.1(one) and on advise of Opposite Party No.1(one), the Complainant left the Car in the service center of Opposite Party No.1(one) for repair. When on Dt. 03/03/2009 the Complainant went to service center of Opposite Party No.1(one) and made trial to receive it, the same defect was noticed in the Car. On Dt. 24/03/2009, in presence of the Complainant, the Company Engineer checked the Car and found the same defect and suggested that the defect will not be removed and mentioned in the repair order paper that “as the noise is not recognizable disfeeble its letter to replace part after frequency raises to considerable level warranty exists up to December-2009.” After failure by this Company Engineer, the Opposite Party No.1(one) stated that this is a common defect in all Hyundai Car and I am unable to rectify the same and assured the Complainant to consult with the Company for replacement of the Car. When no information was received from any quarter, the Complainant at last on Dt. 29/05/2009 and on Dt. 16/07/2009 served pleader notice to the Opposite Parties, but the Opposite Parties did not responded to the pleader notices served by the Complainant and remain silent. Hence this case.<br /> <br /> The Complainant claims, to replace the said Hyundai Car and to pay a sum of Rs. 10,00,000/-(Rupees ten lac)only in total towards compensation for humiliation mental agony and loss of business besides Rs. 2,000/-(Rupees two thousand)only for litigation cost.<br /> <br /> In its version the Opposite Party No.1(one) admitted that, the Complainant has purchased the Hyundai Car from the Opposite Party on Dt. 24/12/2007 for Rs.4,93,067/-(Rupees four lac ninety three thousand sixty seven)only and it is also admitted that, the Car will be repaired as and when brought to work shop of this Opposite Party as per warranty norms. The Opposite Party No.1(one) denied to have cause any deficiency in service towards the Complainant and also denied all the allegations made by the Complainant. The Opposite Party No.1(one) contend that, the Car was purchased and use for commercial purpose so the present case being a case of commercial use and concern, the case is not maintainable. The Opposite Party No.1(one) submitted that, the vehicle in question was brought for servicing on Dt. 19/02/2008, Dt. 28/08/2008, Dt.13/02/2009, Dt.28/02/2009 and Dt.24/08/2009. The Complainant was advised to bring his Car for servicing as per owner's manual but the Complainant was careless in obeying that instructions of owner's manual and as such it clearly renders him out of any warranty. The Opposite Party No.1(one) contend that in the 1st free service the Complainant registered complain regarding noise from door squeaking, in the 2nd free service the complain regarding noise under the body was registered, in the 3rd free service the complain regarding noise was absent, so it is presumed that the aforesaid complains made in the earlier servicing was carried out by this Opposite Party up to the satisfaction of the Complainant but again on Dt. 28/02/2009 the complain regarding noise from the front side was registered by the Complainant. So it can be noted that the complain of the Complainant was not consistent and it can be said that there was no abnormal noise observed in the said Car in question. As per the request the Complainant, the Service Engineer of the company throughly inspected the vehicle on Dt.24/04/2009 and found no abnormality in the Car and he suggested “as the noise is not recognizable and is feeble its better to replace part after the frequency raises to considerable label warranty exists up to December-2009.” On presentation of the Car by the Complainant this Opposite Party has done the servicing to the best of their effort and so also to the satisfaction of the Complainant. As such there is no any deficiency in service towards the Complainant by this Opposite Party. The Opposite Party No 1(one) contained that, each vehicle has to pass through a thorough P.D.I checking i.e pre-delivery inspection before its even exposed for the consumer for sale. As such the allegation of manufacturing defects is out and out concocted and falsehood. The vehicle in question have been checked and verified by the qualified Engineer and has been certified as free from defects. As such there is no question of deficiency in service or any unfair trade practice.<br /> <br /> The Opposite Party prays for dismissal of the case with cost and also the Complainant to be punished heavily for making out a frivulant concocted complaint.<br /> <br /> In their joint version, Opposite Party No 2(two), No 3(three) and No 4(four) denies to have cause any deficiency in service towards the Complainant and also denied all other allegation made by the Complainant. The Opposite Party No 2(two), No 3(three) and No 4(four) submitted that on Dt.28/02/2008 the Complainant reported his vehicle at the workshop of Opposite Party No. 1(one) for 2nd free service to check noise from under body. The vehicle was examined and there was no abnormal noise observed in the same and after carrying out the free service as per schedule, the car was handed over to the Complainant in good running condition. On complaint by the Complainant the vehicle was checked and inspected on Dt.28/08/2008 and than on Dt.28/02/2009 by the Company Engineer and these was no abnormal noise observed in the said Car in question but the Complainant expressed his dissatisfaction for the reasons best known to the Complainant. The Opposite Parties contained that, the Complainant has purchased the said Hyundai Car from Opposite Party No.1(one) and the said Car was delivered to the Complainant in perfect running condition with out any technical or mechanical defects.<br /> <br /> The Opposite Parties challenges the maintainability of this complaint on the ground of jurisdiction as contained in Section-11 of the Consumer Protection Act-1986.<br /> <br /> The Opposite Parties contends that, this Opposite Party deals with its dealers on principal to principal basis and the concerned dealer is solely responsible for error/omission/mis-representation if any at the time of retail sale/service/repairs of the Car. Timely and efficient service, in line with the warranty policy of HMIL has always been provided to all its esteemed customers at all times and there is no cause for the present complaint. When ever this Complainant reported his vehicle at the authorized service center of the answering Opposite Parties, prompt and efficient service was always provided to the Complainant.<br /> <br /> The Opposite Parties contends that, the Car in question was purchased by the Complainant for M/s Akash Deep Hyundai Sambalpur and even the Opposite Parties have no office at Bargarh, and no cause of action, wholly or part arose with in the territorial jurisdiction of this Forum. As such the Hon'ble Forum has got no territorial jurisdiction to try and entertain the present complaint.<br /> <br /> The Opposite Parties prays for dismissal of the complaint.<br /> <br /> Perused the complaint petition, Opposite Parties's version and the documents filed by the parties in respective of their case and find as follows.<br /> <br /> The Complainant has purchased the Hyundai I-10 Car from the Opposite Party No 1(one) for a sum of Rs.4,93,067/-(Rupees four lac ninety three thousand sixty seven)only on Dt.24/12/2007 is not disputed by the Parties. The Complainant alleges that after playing the Car for some days, the Complainant found some defect about noise in the said Car. He requested the Opposite Parties to remove the defect but inspite of their check up and also check up by the Company Engineer the noise was not removed in the said Car. At last the Complainant served pleader notice requesting the Opposite Parties either to replace, it by new one or refund the cost of the purchase price of the said Hyundai Car but the Opposite Parties remain silent in the matter. To prove his case the Complainant has filed copy of money bill Dt.24/12/2007, Cash Memo Dt.03/03/2009, copy of repair order Dt.24/03/2009 and pleader notice Dt.29/05/2009 and Dt.16/07/2009 with postal receipts with acknowledgment. The Opposite Parties denied the allegations made by the Complainant and filed the copy of repair order Dt.13/02/2009, Dt.28/08/2008, Dt.28/02/2009 and Dt.24/03/2009 in support of this case. As per the repair order paper Dt.28/08/2008, the Complainant made complain about the noise from/under body of the Car. The repair order shows that, the Complainant was dissatisfied for the service done by the Opposite Parties and made a remarks there in that “they have not done any thing, simply water spray they have done. I am not satisfied inspite of repeated request. I am sorry for that”.<br /> <br /> As per the repair order Dt.28/02/2009 the Complainant made complain for noise from front side of the Car and the Opposite Parties checked the Car. Again on Dt.24/03/2009, as per the repair order the Complainant made complain about the noise from front side of the Car. On Dt.24/03/2009 in presence of the Opposite Party No 1(one) and Complainant, the Company Engineer check up the Car but could not able to sort out the problem and gave a remark on the order paper that “as the noise is not recognizable disfeeble its better to replace parts after frequency raises to considerable level warranty exists up to 2009.” After the failure of the Company Engineer, the Opposite Party No.1(one) to satisfied the Complainant remarks that, this is a common defect in Hyundai Car and take the Car and in the meantime. I shall consult with the Company about the replacement of the Car. The aforesaid order paper filed by the Opposite Parties proves that, there was defect about noise in the said car for which the Complainant made complaint before the Opposite Parties to remove the defect. But the Opposite Parties did not able to remove the defect in the said the Car for which the Complainant was dissatisfied on the service of Opposite Parties and send pleader notice requesting the Opposite Parties to replace the Car or refund the purchase price of the said Car but they remain silent.<br /> <br /> Since the said Hyundai Car was defective from the date of purchase and under take repairing number of times, the same defect could not be rectified by the Opposite Parties. So inference could be drawn that it is suffering from inherent manufacturing defect which liable for replacement or in alternative refund the price of the said Car.<br /> <br /> The Complainant has relied on the decision reported in 2009 (2) C.P.R. 58 N.C, 2006 (1) C.P.R Page 429, 2009 (2) C.P.R Page 71 and 1995 (1) C.P.R Page 707 para (iii) which supports the case of the Complainant.<br /> <br /> The Car is playing normally at Bargarh for his personal use. The Complainant has issued cheque at the time of payment of amount to the Opposite Party No. 1(one) basing on account of United Bank of India, Bargarh Branch, Bargarh and the defect in the Car was detected at Bargarh. So the cause of action for this case arose at Bargarh and hence this Forum has got territorial jurisdiction to try this case, relied on 1995 (1) C.P.R, Page 707 para (iii).<br /> <br /> In view of aforesaid discussion, the Opposite Parties have committed deficiency in service towards the Complainant for which they are jointly and severally liable as claimed by the Complainant.<br /> In the result, Complaint allowed and order as follows:-<br /> <br /> The Opposite Parties are jointly and severally directed to refund the price i.e Rs. 4,93,067/-(Rupees four lac ninety three thousand sixty seven)only of the said Hyundai Car i-10 and a sum of Rs. 10,000/- (Rupees ten thousand) only for harassment, mental agony and litigation cost to the Complainant within thirty days hence, failing which 18%(eighteen percent) interest per annum shall be charged on the total awarded amount till the date of payment.<br /> <br /> The Complainant is also directed to hand over the said Hyundai I-10 (Magna-0) H.D.S. Silver colour Car to the Opposite Parties immediately, after receiving of the purchased amount i.e. Rs. 4,93,067/-(Rupees four lac ninety three thousand sixty seven)only from the Opposite Parties.<br /> Complaint allowed accordingly. <br />