Haryana

StateCommission

A/91/2018

PADAM SINGH - Complainant(s)

Versus

THE HYUNDAI MOTOR INDIA LTD. - Opp.Party(s)

ROHIT GOSWAMI

28 Aug 2018

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA

                                                First Appeal No.           :         91 of 2018

                                                Date of Institution        :         28.01.2018

                                                Date of Decision                   :         28.08.2018

 

Padam Singh son of Sh. Hari Singh, age 36 years, resident of Village Nachraun Sub-Tehsil Radaur, Tehsil Jagadhri, District Yamuna Nagar.

          …… Appellant.

Versus

 

1. The Hyundai Motor India Limited, Marketing and Sales Head Quarter, 5th and 6th Floor, Corporate One (Banni Building), Plot No.5, Commercial Centre, Jasola, New Delhi, 110076, through its Managing Director/General Manager.
2. Samta Motors (Authorized Dealer-The Hyundai Motor India Limited) near Vita Milk Plant Lane, NH-1, Opposite Baldev Nagar Police Station, Ambala City Haryana.
3. Khanna Automobile, near Agarsen College, Chhachhrauli Road Jagadhri, Tehsil Jagadhri, District Yamuna Nagar, authorized dealer of Hyundai Motor India Limited.

 

……. Respondents.

 

CORAM:             Shri Diwan Singh Chauhan, Presiding Member.

 

Present:              Mr. Rohit Goswami, counsel for the appellant.

                             Mr. Amit Gupta, counsel for respondent No.1.

                             Mr. Ranjan Arora, counsel for respondent No.2.

                             None for respondent No.3.

                            

O R D E R

 

DIWAN SINGH CHAUHAN, PRESIDING MEMBER

 

                             The present appeal has been decided by me in view of the order passed by Hon’ble President of the State Commission conveyed to me vide Endst. No. 195 dated 25.01.2018 whereby I have been authorized to decide the cases singly in Additional Bench-II.

                             This appeal has been preferred against the order dated 13.11.2017 passed by the District Consumer Forum, Yamuna Nagar (for short ‘District Forum’) whereby complaint filed by complainant against the OPs/respondents has been dismissed. The observations given by Learned District Forum are under:-                            

“the version of the complainant that the vehicle had a basic manufacturing defect is completely false and incorrect and thus, not tenable. Moreover, the vehicle was sent to the service-station of Ops for accidental repairs, as is evident vide Annexure R1/1 and there is no rebuttal on the part of complainant about the contents of accidental repairs contained in Annexure R1/1. As per terms and conditions contained in Annexure R1/2, the use of vehicle in the cases of misuse, abuse, accident, theft etc. is not covered under the warranty. Regarding the defects in tyres, the complainant has neither impleaded the Bridge Stone Tyre Company as opposite party and nor placed on file any such record that he had visited the said tyre company for the removal of defects in the tyres. Moreover, there is no report of any expert/engineer from which the defects in the tyres could be proved/established. Regarding the replacement of the vehicle, this Forum is aware of the well settled proposition of law that a vehicle cannot be ordered to be replaced unless there are some basic manufacturing defect in the vehicle. As discussed above, no basic manufacturing defect has been noticed as per the details mentioned above in the table.

Thus, as a sequel of above discussion, we find no merit in the complaint of complainant and accordingly, the same is hereby dismissed with no order as to costs.”

                             In brief facts of the case are that the on 04.05.2013, the complainant purchased a car make Hyundai (Verna) bearing registration No.HR-24-C/0037 from the Op No.2 for a sum of Rs.10,74,000/-. It is alleged that since the date of purchase, the complainant got services from the Op No.2 and at the time of IInd service, it was noted by the complainant that all the four tyres of car raised cracks/bubbles therein and there was an unwanted noise in steering system, the pick-up of the car was very low and there was problem in starting the engine and there was also missing while driving the car in slow speed. It is further alleged that at the time of IInd service, the entire problems were noticed by the engineer/expert of Op No.2 on 17.08.2012 and after some time, the car was handed over to the complainant with the assurance that the entire problems had been removed, whereas regarding tyres, the complainant was suggested to take the car to “Bright Stone”, authorized dealer of tyre, who will replace the tyres. It is further alleged that the complainant brought his car to Authorized Dealer of tyre i.e. Bridge Stone at Ambala but they did not replace the tyres. It is further alleged that the complainant noticed that the problems which were brought into the knowledge of engineer/expert at the time of IInd service, were still present in the car and accordingly, the car in question was brought to the work place of M/s. B.M.Hyundai, Dehradun for its 3rd service on 05.11.2012 with the same defects but despite repairing of vehicle, they failed to remove the problems from the car. It is further alleged that the problems again brought into the knowledge of Op No.2 on 10.12.2012 but this time also, no problem of any kind was removed from the car. So, it is a clear cut case of deficiency in service on the part of Ops and prayed for acceptance of complaint with the direction to Ops to replace the defective car with the new one or to refund total sale price of said defective car alongwith other expenses and further to pay Rs.1,00,000/- as compensation for harassment and mental agony.

                             Upon notice OPs/respondents appeared and filed their written statements. Op No.1 filed written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; jurisdiction; that whenever the complainant reported his vehicle with the alleged concern at the authorized service-station of the Op No.1, prompt and efficient service in line with the warranty policy of the Op No.1 was always provided to the complainant; that the compliance of Section 13(1)(c) of C.P.Act, 1986 has not been complied with; that the complainant has not placed anything on record before this Forum that the vehicle suffered from manufacturing defect; that the claim of complainant is based only on averments made in the affidavit without any corroborative evidence which cannot be allowed; that the complainant has concealed the material fact that the said vehicle had earlier met with an accident and was reported for accidental repair at the service station of B.M. Auto Sales Pvt. Ltd. on 16.03.2013 at mileage of 28,495 Kms. There is no deficiency in service on the part of Op. On merits, the pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

Op No.2 filed the written statement raising preliminary objections with regard to locus-standi; maintainability; cause of action; nonjoinder and mis-joinder of necessary parties; that as per the records, there was no manufacturing problem for which replacement of car has been claimed by the complainant; that in a span of approximately 1 year, the vehicle is reported to have traveled approx. 30,000 Kms. Had there been any defect in the vehicle, one cannot expect that the mileage meter is running at its own and that too without using the vehicle. There is no deficiency in service on the part of Op. On merits, the pleas taken in the preliminary objections are reiterated and prayed for dismissal of complaint.

Op No.3 filed the written statement stating therein that the complainant has wrongly made the Op No.3 as party in the present case. OP No. 3 is not the authorised dealer of OPs No. 1 and 2 and has no concern with the present matter. Khanna Car Plaza is an authorised dealer of OPs No. 1 & 2. OP No. 3 is Khanna Automobile and he is not the authorised dealer of OPs No. 1 &2.

Both the parties led their evidence in support of their respective claims.

On appraisal of the pleadings of the parties and evidence adduced on record, the District Forum dismissed the complaint of the complainant as noticed in the opening para of this order.

Aggrieved with the impugned order, appellant-complainant has come up in appeal.  Hence this appeal.

I have heard the learned counsel for both the parties and perused the case file thoroughly.

                             The counsel of the appellant-complainant contended that the on 04.05.2013, the complainant purchased a car make Hyundai (Verna) bearing registration No.HR-24-C/0037 from the Op No.2 for a sum of Rs.10,74,000/-. It is alleged that since the date of purchase, the complainant got services from the Op No.2 and at the time of IInd service, it was noted by the complainant that all the four tyres of car raised cracks/bubbles therein and there was an unwanted noise in steering system, the pick-up of the car was very low and there was problem in starting the engine and there was also missing while driving the car in slow speed. It is further alleged that at the time of IInd service, the entire problems were noticed by the engineer/expert of Op No.2 on 17.08.2012 and after some time, the car was handed over to the complainant with the assurance that the entire problems had been removed, whereas regarding tyres, the complainant was suggested to take the car to “Bright Stone”, authorized dealer of tyre, who will replace the tyres. It is further alleged that the complainant brought his car to Authorized Dealer of tyre i.e. Bridge Stone at Ambala but they did not replace the tyres. It is further alleged that the complainant noticed that the problems which were brought into the knowledge of engineer/expert at the time of IInd service, were still present in the car and accordingly, the car in question was brought to the work place of M/s. B.M.Hyundai, Dehradun for its 3rd service on 05.11.2012 with the same defects but despite repairing of vehicle, they failed to remove the problems from the car. It is further alleged that the problems again brought into the knowledge of Op No.2 on 10.12.2012 but this time also, no problem of any kind was removed from the car. According to the complainant there was negligence and deficiency on the part of OP No.1 and prayed that the appeal as well as complaint of the appellant/complainant may be allowed.

On the other hand, the counsel for the respondent No.1/OP No.1 contended that complainant has not placed anything on record that the vehicle suffered from manufacturing defect and claim of complainant is based only on averments made in the affidavit without any corroborative evidence which cannot be allowed. Complainant has concealed the material fact that the said vehicle had earlier met with an accident and was reported for accidental repair at the service station of B.M. Auto Sales Pvt. Ltd. on 16.03.2013 at mileage of 28,495 Kms. Counsel for the respondent No.1/OP No.1 has further contented that the District Forum has rightly dismissed the complaint of the complainant and prayed for dismissal of the appeal of the appellant.

The counsel for the respondent No.2/OP No.2 contended that as per the records, there was no manufacturing problem for which replacement of car has been claimed by the complainant and further contended that the District Forum has rightly dismissed the complaint of the complainant and prayed for dismissal of the appeal of the appellant/complainant.

In this case question is arises that the complaint is maintainable in the jurisdiction of District Consumer Forum, Yamuna Nagar or not? The complainant purchased car from OP No.2 i.e. Samta Motors (Authorized dealer-The Hyundai Motor India Limited) New Vita Milk Plant Lane, NH-1, Opposite Baldev Nagar, Police Station, Ambala City, Haryana and car was manufactured by OP No.1 i.e. The Hyundai Motor India Limited, Marketing and Sales Head Quarter, 5th and 6th Floor, Corporate One (Banni Building), Plot No.5, Commercial Centre, Jasola, New Delhi. OP No.3 i.e. Khanna Automobile, near Agarsen College, Chhachhrauli Road Jagadhri, Tehsil Jagadhri, District Yamuna Nagar is not authorized dealer of OPs No.1 & 2.   

It is admitted case of the parties the complainant purchased the car from OP No.2 at Ambala. OP No. 2 is the authorized dealer of OP No.1. Thus, the cause of action accrued to the complainant at Ambala and, therefore, the District Forum Yamuna Nagar has no jurisdiction to entertain the complaint.

Such a controversy has been decided by the Hon’ble Supreme Court of India recently in case cited as Sonie Surgical versus National Insurance Company Ltd. 2010 CTJ 2 (Supreme Court) (CP), wherein in para No.4 of the said judgment it was held that:-

“4. In our opinion, no part of the cause of action arose at Chandigarh. It is well settled that the expression ‘cause of action’ means that bundle of facts which gives rise to a right or liability. In the present case admittedly the fire broke out in the godown of the appellant at Ambala. The insurance policy was also taken at Ambala and the claim for compensation was also made at Ambala. Thus, no part of the cause of action arose in Chandigarh.”

In para no. 9 and 10 of the above said judgment, the Hon’ble Supreme Court has held that:-

“9…… It will lead to absurd consequences and lead to bench hunting. In our opinion, the expression ‘branch office’ in the amended section 17(2) would mean the branch office where the cause of action has arisen. No doubt this would be departing from the plain and literal words of Section 17(2) (b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity.

10. In the present case, since the cause of action arose at Ambala, the State Consumer Disputes Redressal Commission, Haryana alone will have jurisdiction to entertain the complaint.”

The facts of the present case are fully attracted to the case law cited (supra).

As a sequel to above discussion, I am of the view that the District Forum, Yamuna Nagar failed to appreciate the fact that it had no jurisdiction to try the present complaint.

Accordingly, this appeal is hereby dismissed, the impugned order is set aside and complaint is dismissed with the liberty to the complainant to approach the Court of competent jurisdiction to get his grievance redresses in this case on the same cause of action.

However, the appellant/complainant would be entitled to the benefit of the provisions of Section 14 (2) of the Limitation Act for the period during proceedings under the Consumer Protection Act remained pending before the District Forum as well as the State Commission, provided the complainant approach the Court of competent jurisdiction within 60 days from the date of passing of this order. 

 

Announced                                                                                 Diwan Singh Chauhan,

28.08.2018                                                                                       Presiding Member

                                                                                                    Addl. Bench-IInd

D.K.