IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 22nd day of December, 2010.
Present : Sri. Jacob Stephen (President).
Smt. C. Lathika Bhai (Member)
Sri. N. Premkumar (Member)
C.C.No.22/08 (Filed on 15.03.2008)
Between:
Sarath Babu, aged 50,
Sarasree, Plot No.563,
S.P Nagar, Housing Colony,
R.S.P.O., Thiruvalla.
(By Adv. K.P. Subhash Kumar) ….. Complainant
And:
1. The Dealer,
M/s. MGF Hyundai,
Wellington Island,
Cochin – 682 029.
2. The Distributor,
M/s. MGF Motors Ltd.,
Thampy’s Building,
M.G. Road, Ernakulam,
Kochi – 682 011, rep. by
MGF Hyundai Ltd.,
Opp. St. Thomas HSS,
Poyyanil Buildings,
Kozhencherry,
Pathanamthitta – 689 671.
(By Adv. D. Radhakrishnan Nair)
Addl.3. The Manufacturer,
Hyundai Motor India,
Plot No.41,
Sipeot Industrial Park,
Irrungathu Kottai,
Tamil Nadu – 602 105.
(By Adv. Vanitha. G) ….. Opposite parties.
O R D E R
Smt. C. Lathika Bhai (Member):
The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.
2. The facts of the complaint is as follows: On 12.7.06, the complainant had purchased a Hyundai Santro Car from 1st opposite party for an amount of ` 3,42,614. As per the sale promotion scheme the opposite parties have offered anti-theft alarm at the time of purchase of the car and it was attached to the car. The opposite parties made to believe the complainant that no one can take away the car without the knowledge of the complainant because of the protection of anti-theft alarm attached to the car. The complainant is residing in a housing colony there are many people residing that area and many of them have their own vehicles. The complainant was usually parking his car in his garage. On 10.11.07 at about 4.45 a.m the complainant’s car become theft from his car porch. But the anti theft alarm did not sounded at the time of theft. He immediately informed the matter to the Thiruvalla police but it has not been detected. The complainant selected this car mainly due to the advantage of anti-theft alarm offered by the opposite parties. Because of the anti-theft alarm attached to the car he has not taken any pre-cautionary measures to protect the car. According to the complainant due to the non-functioning of the anti-theft claim he lost his car. He used the car for his to and fro office and other needs of the family. The complainant alleged that the opposite parties provided defective substandard alarm to him. Till 9.11.07 the alarm was worked. Due to the malfunctioning of the anti-theft alarm the theft occurred and which caused mental agony, financial loss and other inconveniences to the complainant and his family. For that opposite parties are liable to compensate the same. The complainant had sent a legal notice to the opposite party for demanding to pay Rs. 1 lakh for the financial loss sustained to him. But there is no reply from them. Hence the complainant has filed this complaint for getting an order for directing the opposite parties to pay compensation of Rs. 1 lakh along with cost. The complainant prays for granting the relief.
3. The Executive Director of M/s. MGF Motors Ltd has filed a version on behalf of the 1st and 2nd opposite party with the following contentions: The complaint is not maintainable either in law or on facts. The Forum lacks jurisdiction to entertain the complaint as the entire transactions was done at Ernakulam. This opposite parties are admitted the purchase of Hyundai car by the complainant. The centre lock system (alarm) was given to the purchaser as a gift without any consideration only for sales promotion. There is no promise or agreement regarding the functioning of the alarm from the opposite parties. There is no consumer relationship with these opposite parties to the complainant. This opposite parties have not given any assurance that the anti theft alarm protect all type of theft. The complainant admitted that he had not taken any precautionary measure to protect the car from theft. The anti-theft alarm should work only on the fulfillment of the stipulated conditions attached with it. If that condition scrupulously followed the system should have worked. If there was any complaint for the alarm he could have complaint about it to the dealer or to the manufacturer of the alarm. There is a negligence on the part of the complainant he admitted that till 9.11.07 the alarm worked hence the alarm should have sounded. The car has insurance coverage and the amount should have received from the insurance company. There is no negligence or unfair trade practice from the part of this opposite parties and these opposite parties are not liable for any compensation to the complainant. The complaint is filed with a malafide intention to extract money from the opposite parties. Hence this opposite parties prayed for the dismissal of the complaint with their cost.
4. The 3rd opposite party has filed a version stating the following contentions: There is no manufacturing defect in the complainant’s car. The complainant purchased a Hyundai Santro Car from 1st opposite party an authorized dealer of this opposite party. The said car was delivered to the complainant on 11.7.06 in the perfect receiving condition without any defect. The car does not have a company fitted anti theft device or any security system as part of standard equipment. It is submitted that the alleged anti-theft device was fitted by the concerned dealer on the request of the complainant. This product was not manufactured by this opposite party. In the circumstances, this opposite party is not liable to compensate the complainant for the supply of alleged defective anti-theft system.
5. This opposite party deals with all its dealers on principal to principal basis and the concerned dealer is solely responsible for error/omission misrepresentation if any at the time of retail sales/service/repairs of the car. The liability of this opposite party being the manufacturer of the Hyundai cars limited and extends to its warranty obligations alone. Further contention of this opposite party is that this does not have jurisdiction to entertain this complaint as neither any cause of action took place within the territorial jurisdiction of this Forum nor the registered office of this opposite party is situated within the jurisdiction of this Forum. The complaint is misconceived, frivolous, wrong and the same deserves to be dismissed with costs and prayed for that.
6. The point to be considered in this complaint is:-
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the complainant is entitled to get any relief as sought for in the complaint?
7. The evidence in this case consists of the oral evidence of the complainant as PW1 and one witness for the complainant as PW2 and Ext.A1 to A8 marked from the side of the complainant. For the opposite parties authorized representative of opposite parties 1 and 2 examined as DW1 and Ext.B1 and B2 marked. There is no oral or documentary evidence from the part of 3rd opposite party. After closure of the evidence, both sides heard.
8. In considering the 1st issue raised in this complaint that the complaint is not maintainable before the Forum, the complainant is residing in Thiruvalla and the complainant’s vehicle was stolen from the complainant’s residence which is within the territorial jurisdiction of this Forum. Moreover the service centre of the opposite parties is functioning within the jurisdiction of the Forum. The complainant purchased the vehicle from the 1st opposite party, which was manufactured by the 3rd opposite party. Hence the complainant is a consumer of opposite parties and the complaint is maintainable before the Forum.
9. The complainant’s case is that he had purchased a Hyundai Santro Car from the opposite parties on 12.7.06 and the car was attached anti-theft alarm as an offer for sale promotion. The opposite parties made to believe the complainant that no one can touch or take away the car without his knowledge due to the fixation of anti-theft alarm. On 10.11.07 the complainant’s said car stolen from his residence. The anti-theft alarm of the car will not sounded and the car was not detected so far. Due to the non-functioning of the anti-theft alarm the complainant lost his car and he suffered much mental agony, financial loss and other inconveniences. Hence he filed this complaint for allowing the relief as prayed for in the complaint.
10. In order to prove the complainant’s case, PW1 and PW2 examined and Ext.A1 to A8 were marked. Ext.A1 is the true copy of legal notice sent to the opposite party 1 and 2 by the complainant. Ext.A2 is the postal receipt of Ext.A1 and Ext.A3 is the acknowledgment card of Ext.A1. Ext.A4 is the copy of R.C. Book of the complainant’s vehicle and Ext.A5 is the purchase bill of the vehicle and Ext.A6 is the Owner’s Manual and service booklet of the vehicle. Ext.A7 is the photo of the key of the vehicle and it’s negative. Ext.A8 is the copy of FIR prepared by Thiruvalla police in Crime No.709/07. The opposite parties counsels had cross-examined PW1 and PW2.
11. The opposite parties 1 and 2 contended that the centre lock system (alarm) was given to the complainant as a gift. There is no promise or agreement regarding the functioning of the alarm from this opposite parties. This opposite party has not given any assurance to the complainant that the anti-theft alarm protects all type of theft. If the system is put in the mute position the alarm will not sounded. The complainant admitted that the alarm worked up to 9.11.07. If there is any complaint to the alarm complaint it to the manufacturer of the alarm. The car has insurance coverage for theft and the amount of vehicle shall have received from the insurance company. There is no negligence on the part of this opposite parties hence the complaint is not entitled to get any relief from this opposite parties.
12. In order to prove this contention, the authorized representative DW1 has been examined and Ext.B1 and B2 marked. Ext.B1 is the authorization in favour of DW1. Ext.B2 is the copy of Delivery-Cum PDI & Accessory Fitment Requisition Form of the complainant’s vehicle. The complainant’s counsel has cross-examined DW1.
13. There is no oral or documentary evidence from the part of the 3rd opposite party.
14. On the basis of the averments and pleadings, we have gone through the materials on records in this case. On a perusal of Ext.A5 retail invoice there is no amount was charged as the price of Centre lock system (alarm) by the opposite parties from the complainant. It is to be noted that the anti-theft alarm is not a part of the vehicle but it is an additional fitting accessories of the vehicle. The complainant admitted that the alarm worked up to 9.11.07. The theft happened on 10.11.07 at 4.45 a.m. According to the 1st and 2nd opposite party, due to the mistake of operation or carelessness, if the system is put in mute position the alarm did not sound. And also if the system was put in low sound it should not heard. As a sales promotion for the respective period the company offered to give accessories to the purchasers. As a gift, a free anti-theft system was also given. The complainant has not paid the price of the anti-theft alarm. It is a gift for the purchaser. Moreover the complainant admitted that the alarm was working properly up to 9.11.07. Sometimes it may happen due to the negligence or carelessness from the part of the complainant. There is no evidence from the part of the complainant that the theft occurred due to the non-functioning of the anti-theft alarm given by the 1st and 2nd opposite party. In the circumstances, the complainant is not entitled to get any relief from the 1st and 2nd opposite party.
15. The 3rd opposite party, the manufacturer of the Santro Car, has delivered the car in perfect running condition without any technical or mechanical defect. According to them the Santro Car purchased by the complainant does not have a company fitted anti-theft device or any type of security system as part of standard equipment. The complainant has no case for the manufacturing defect of the car he purchased, manufactured by this opposite party. Hence no negligence or deficiency can be attributed against them.
16. The anti theft alarm was given to the complainant as a sale promotion offer. No price for alarm was given by the complainant to the opposite parties. Moreover there is no cogent evidence from the complainant that his vehicle was stolen due to the defect or mal functioning of the anti-theft alarm. The complainant’s vehicle was insured and the theft occurred during the valid period. At the time of cross-examination, PW1 stated that “\nbam\pkrXw e`nt¡ claim insurance companyþÂ \n¶pw In«nbn«pv. ”. In the circumstances, we came to a conclusion that there is no negligence or deficiency in service from the part of this opposite parties as alleged by the complainant. Therefore the complainant is not entitled to get any relief from the opposite parties. Hence the complaint is liable to be dismissed.
17. In the result, the complaint is dismissed. No cost.
Declared in the Open Forum on this the 22nd day of December, 2010.
(Sd/-)
C. Lathika Bhai,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N.Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Sarath Babu
PW2 : Roy John
Exhibits marked on the side of the complainant:
A1 : Photocopy of legal notice dated 22.11.07 sent by the complainant
to the 1st opposite party.
A2 : Postal receipt of Ext.A1
A3 : Acknowledgment card of Ext.A1.
A4 : Photocopy of R.C. Book of the complainant’s vehicle
A5 : Retail Invoice Receipt dated 12.7.06 issued by the 2nd opposite party
to the complainant.
A6 : Photocopy of the Vehicle Record Sheet.
A7 : Photo of the key of the vehicle and it’s negative.
A8 : Copy of FIR prepared by Thiruvalla police in Crime No.709/07.
Witness examined on the side of the opposite parties:
DW1 : P. Sivakumar
Exhibits marked on the side of the opposite parties:
B1 : Authorization letter dated 25.2.2010.
B2 : Copy of Delivery-Cum PDI & Accessory Fitment Requisition Form
of the complainant’s vehicle.
(By Order)
Senior Superintendent.
Copy to:- (1) Sarath Babu, Sarasree, Plot No.563, S.P Nagar,
Housing Colony, R.S.P.O., Thiruvalla.
(2) The Dealer, M/s. MGF Hyundai, Wellington Island,
Cochin – 682 029.
(3) MGF Hyundai Ltd., Opp. St. Thomas HSS,
Poyyanil Buildings, Kozhencherry, Pathanamthitta – 689 671.
(4) The Manufacturer, Hyundai Motor India,
Plot No.41, Sipeot Industrial Park, Irrungathu Kottai,
Tamil Nadu – 602 105.
(5) The Stock File.
