BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD

F.A.No.355  OF 2012 AGAINST C.C.NO.167 OF 2009 DISTRICT FORUM  KARIMNAGAR

Between:

M/s KUN United Hyundai
KUN United Car Trax (P) Ltd.,
rep. by its authorized signatory
# 6-2-953, Ground Floor,
Krishna Plaza, Khairathabad
Hyderabad

                                                                Appellant/opposite party

                A N D

Subba Savitha Kumari W/o D.Madan Mohan Rao
Age 47 years, Occ: Housewife,
R/o H.No.5-2-68, Behind Shiva Theatre
Old Bazar, Karimnagar

Respondent/complainant

Counsel for the Appellant              M/s Vijay Pissay

Counsel for the Respondent           Served

QUORUM:   SRI R.LAKSHMINARASIMHA RAO, HON’BLE I/C PRESIDENT

&

S.BHUJANGA RAO, HON’BLE MEMBER

 MONDAY THE EIGHTEENTH DAY OF NOVEMBER

                                   TWO THOUSAND THIRTEEN

Oral Order (As per Sri R.Lakshminarasimha Rao, Hon’ble Member)

                                        ***

1.             The opposite party is the appellant.  The   averments of the complaint are that the respondent purchased SANTRO GLS Car bearing Reg. No.AP-15-AL-6776 from the appellant on 01.01.2009. The vehicle started giving problem of pick up and  jerking.   The respondent handover the vehicle to the appellant on 24.01.2009 for rectification of the problems and the respondent did not rectify it and the problems continued thereafter.   Subsequently,  the respondent approached the appellant for rectification of problems on several occasions i.e. 28.01.2009, 08.04.2009, 11.05.2009, 28.05.2009, 13.04.2009 and finally on 21.07.2009 and they could not rectify the same.         On 02.09.2009 while the respondent along with her son traveling in the   Car at about 10.00PM near R& B Guest House, Karimnagar due to rain the vehicle suddenly stopped giving jerking  and  the vehicle went over the divider and was badly damaged, due to which the son of the respondent sustained grievous injuries and he was shifted to Private Hospital and the vehicle was shifted to authorized Show Room of the appellant at Karimnagar.  The respondent got issued notice  to the appellant  for which the appellant had sent reply without giving clarification of the   problem.

2.             The appellant resisted the case contending that  the incident occurred on 24.01.2009 was only fabricated story as neither complaint was registered in Police Station nor reported to Insurance Surveyor to assess the damage caused to the Car on the spot.  The name of the hospital where the son of respondent had taken treatment for his injuries was also not mentioned.    If the electrical system of the Car fails, it cannot ply on the road and the electrical system is not included in terms of warranty and the appellant cannot be made liable for the fault or consequences resulting there from. The  incident has been occurred only due to the rash and negligent driving of the driver of the Car. The   vehicle was delivered only after the respondent inspected and found it was road worthy.  The appellant rendered thorough service   to the   Car without any charge.  The appellant is  an agent of the manufacturer and the respondent has not made the manufacturer as party. If the vehicle is defective the respondent has to claim from the manufacturer. This Forum has no jurisdiction to entertain this complaint under Sec 11 (2) (a) & (b) of C.P.Act. 1986 as the appellant  carries its business at Hyderabad.  Hence, the appellant prayed for dismissal of the complaint.

3.             The respondent filed his affidavit and the documents, Exs.A1 to A17. On behalf of the appellant,  its General Manager filed his affidavit and the documents,  Exs.B1 to B26. 

4.             The District Forum allowed the complaint directing the opposite party to refund the cost of the Car less 30% depreciation after taking back the defective car from the respondent and pay costs of  `1,000/-.

5.             Feeling aggrieved by the order of the District Forum, the opposite party filed the appeal contending that the respondent failed to implead the manufacturer as party to the complaint that the defects mentioned in the vehicle are not major defects and that the respondent is using the vehicle without any trouble since three years and there was any defect the respondent would have brought the same to the notice of the Forum. 

6.             The point for consideration whether there was any infirmity in the order of the District Forum?

7.             The respondent purchased Santro GLS Car on 1.1.2009 and got it registered with the registering authority which issued certificate of registration on 19.1.2009 with the registration number of the vehicle AP 15AL 6776.  The respondent submitted that the vehicle had given trouble like poor pickup and jerking and that she handed over the vehicle to the appellant on 24.1.2009.  The cash memo dated 24.1.2009 goes to show that the vehicle was reported with request by the respondent with regard to non-functioning of gas indicator and poor pickup. 

8.             On 28.1.2009 the respondent reported the aforementioned two problems stated to have been posed by the vehicle and thereafter on 11.5.2009 and 8.8.2009 the respondent had taken the vehicle to the appellant with the aforementioned two complaints.  Each time the respondent had endorsed on delivery challan that she received the vehicle in good condition.  The respondent got issued notice on 7.9.2009 that she requested the appellant to rectify the problem with regard to sudden dropping of pick up and jerking and the vehicle stated to have colluded against the road divider on 2.9.2009.  The notice reads :

“On 2.9.2009 while my client along with her son travelling in the above said vehicle at about 10 p.m. at R.B.Guest (House) Karimnagar there was heavy rain surprisingly, the said problem was again arise (arose) and immediately the electrical system was breakdown the viper and lights were not functioned due to which the vehicle went on divider thereby son of my client sustained heavy grievous head injury and the front side of the vehicle was badly damaged.  The said accident occurred due to manufacturing defect in the vehicle only”.

9.                 Thus, the respondent proceeded on the premise that the vehicle met with an accident on 2.9.2009 owing to manufacturing defect and the District Forum was satisfied with the contention of the appellant that the accident occurred not due to any manufacturing defect in the vehicle and for the reason that the respondent’s son had driven the vehicle in negligent manner.  The District Forum opined:

The opposite party in his written arguments contends that the accident that occurred on 02.09.2009 was because of negligent drive adding that wipers do not work when electric system fails and that driving in rain without wipers contributed to the straying and running over the divider. This contention sounds convincing and tenable as the purchasers of Cars are generally instructed by the dealers/mechanics to avoid driving in rain to prevent flooding of water into electric system as pleaded by the opposite party in his written arguments. The opposite party further contends that the electric system is not covered under warranty but failed to file the copy of the terms under warranty.

10.            The District Forum came to the conclusion that the respondent failed to adduce evidence of a technical engineer in support of her case that the vehicle suffered from manufacturing defect.  The District Forum observed that the respondent had not even got inspected the vehicle by a surveyor and it has observed :

The complainant averred in the complaint that the technical engineer had inspected the said Car and endorsed that the accident on 02.09.2009 was due to manufacturing defects. But the complainant failed to place on record any document in proof of his competence and endorsement with regard to manufacturing defects found in the said Car. The complainant even failed to get the said Car inspected by any other licensed Surveyor or Assessor/Engineer. As such in our considered view the complainant is not entitled to claim any compensation for mental agony. 

11.            The District Forum thus came to the conclusion basing on the evidence placed on record and taking into consideration of failure of the respondent to adduce evidence in support of her case that the respondent failed to prove that the vehicle suffered from manufacturing defect.  Interestingly, the District Forum awarded the relief for refund of cost of the vehicle. 

12.            The learned counsel for the appellant has contended that the respondent has not impleaded the manufacturer of the vehicle as party to the complaint  and she has not adduced evidence to establish that there was manufacturing defect in the vehicle, the vehicle has been running in good condition and it is in possession of the respondent and as such the order of the District Forum is against the evidence on record and the law. 

13.           This Commission in “Sri Gopal Auto Stores Ltd and another vs Sri Neeripelli Veeranna and another” in F.A.No. 313 of 2011 decided on 15.10.2012 and ‘The Managing Director, Hero Honda Motors and another vs Sri B.Srikanth” in F.A.No. 355of 2009 decided on 13.10.2009 dealt with the cases involving similar facts and circumstances. 

 14.                   B.Srikanth’s (supra) was a case  where the motor cycle purchased by the complainant posed repeated problems such as noise while the vehicle is operated in second gear and generation of severe heat in the engine, silencer and brake pedal within 15 minutes of the vehicle put in motion. The service engineer conducted test drive after replacing spindle gear shifter, spring gear shit drum and compound shift stopper etc . It was found that there was no manufacturing defect in the vehicle. It was held:

“Even in the case of manufacturing defect of a vehicle, the vehicle in toto cannot be ordered to be replaced in view of the judgment of the Hon’ble Surpeme Court in Maruti Udyog Ltd., Vs Susheel Kumar Gabtora reported in AIR 2006 SCC 1586 wherein the Supreme Court opined that warranty condition referred only to the replacement of the defective part and not of the car.  In another case, the Hon’ble National Commission held in M/s TELCO Ltd., another Vs. M.Moosa, 1986-94 page 1367 (NS) that the section 14(1) of the Consumer Protection Act authorizes the forum to have the defects removed even if there are numerous defects which can be rectified and that it will be very hard on the manufacturer to replace the vehicle or refund its price merely because some defects appear which can be rectified or defective part can be replaced. 

In view of the aforesaid discussion and in the light of the judgment of the Hon’ble Supreme Court we do not find the respondent entitled to the replacement of motor cycle or refund of its cost” 

15.            In “Veeranna’s case, the complaint was made as regards to low pick up, low battery performance and clutch plate related problems. The job cards were considered as to find out whether inherent defect is found in the vehicle. The cost of the parts not covered by the warranty were held to be borne by the complainant at paragraphs 15 and 16  of the order as follows:

“The first appellant during the first servicing of the vehicle replaced parts charging Rs.1079/- and waived the amount as goodwill gesture.  The warranty terms mentioned in the manual cover certain parts of the vehicle subject to proper use and correct handling of the vehicle with exception to normal wear and tear of the components.  The warranty will not apply in the following circumstances:

1.      If all free services/paid services/oil top-ups are not availed from the authorized Hero Honda workshops.  As per their recommended schedule.

2.      If Hero Honda recommended engine oil SAE-10W 30 SJ Grade (JASO MA) is not used.

3.      To normal wear and tear components including but not limited to) brake shows, clutch shoes, bulbs, electrical wiring, filter, spark plug, fasteners, shims, washer, oil seals, gaskets, rubber parts, bush rubber bellows, plastic parts breakage and wheel rim for misalignment bend.

4.      If additional wheel(s) is are fitted and/or any other modification carried out/accessories fitted other than the ones recommended by Hero Honda

5.      If Super Splendor motorcycle has been sued in any competitive events like races or rallies or for any commercial purposes as taxi etc.

6.      To any damage on motorcycle’s painted surface cropping due to industrial pollution or other external factors.

7.      For normal phenomenon like noise, vibration, oil seepage etc., which do not affect the performance of the Motorcycle.

8.      To any damage caused due to usage of improper oil/grease, non-genuine parts.

9.      If any defect crops or repairs needed as a result fo using adulterated fuel.

10.  If any maintenance/repairs required due to bad road conditions or misuses of Super Splendor motorcycle.

11.  If any defect crops or repairs needed as a result of Super Splendor Motorcycle meeting to some accident.

12.  For consumables like oil, grease, gasket etc., to be used during free services and/or warranty repairs.. 

13.  To any part of Super Splendor motorcycle which has been tampered or got repaired at unauthorized outlet.

14.  For Super Splendor motorcycle not used in accordance with the guidelines given in the owner’s manual.

16.   In terms of “warranty” it is mandatory for the first respondent to avail all the free services as per the recommended schedule.  Any defect observed in the motorcycle during the period of warranty and the part considered to be the cause of the defect, the second appellant’s obligation is restricted to repair or replace such part subject to the condition that such defect is not resulted due to improper driving or  misuse of the vehicle”

 16.          In the case on hand, the respondent sought for replacement of the car   and the District Forum has  not found  any manufacturing defect in the vehicle.  However, the complaint in regard jerking posed by the vehicle is required to be attended on by the appellant.   The District Forum ought to have directed the appellant   to check the car and attend to the  problems as reported by the respondent on 24.1.2009.       

 17.          In the result, the appeal is allowed modifying the order of the District Forum.   The appellant/opposite party is  directed to check the car bearing registration No.AP-15-AL-6776 and attend to the problems as reported by the respondent on 24.1.2009 on the vehicle being handed over to it by the respondent/complainant within one month from the date of receipt of the order.      There shall be no order as to costs.     

                                                                                        Sd/-

                                                                                I/C PRESIDENT

                                                                                        Sd/-

                                                                                      MEMBER

                                                                                 Dt.18.11.2013

కె.ఎం.కె*