PBEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 29th day of October 2011
Filed on : 28/03/2009
Present :
Shri. A Rajesh, President.
Smt. C.K. Lekhamma, Member
C.C. No.198/2009
Between
K.V. Janardana Pai, : Complainant
Partner, M/s. KNG Textiles, (By Adv. L.P. Aravindakshan,
Gopalaprabhu road, Ernakulam, Layam Square, Layam road,
Kochi-682 036. Kochi-682 011)
And
1. The Manager, : Opposite parties
Hyundai Motors India Ltd., (By Adv. Anukarshan. C,
A-30, Mohan Co-op Industaries Foxmandal & Associates, F.M.
Area, Mathura road, House, No. 56, Girinagar Housing
New Delhi- 110 044. Colony, Kadavanthra, Kochi-20)
2. The Manager, (2nd O.P. by Adv. George Cherian
Popular Motors World Pvt. Ltd., Karippaparambil, Karippaparambil
33/2361-A Geethanjali Jn, Associates, H.B.-48, Panampilly
N.H.Bye pass, Vyttilla P.O., Nagar, Kochi-682 036
Kochi-682 019.
O R D E R
A Rajesh, President.
The case of the complainant is as follows:
In August 2007 the complainant purchased a ‘Getz car from the 2nd opposite party which was manufactured by the 1st opposite party.
The mileage of the vehicle is just half what is assured by the opposite parties. In spite of repeated complaints of less mileage the 2nd opposite party could not rectify the same. The accessories particularly the tyres and wiper are substandard in quality. While the vehicle was plying the front tyre of the car burst. Fed up with the vehicle the complainant approached the 2nd opposite party for an exchange of the vehicle within 8 months of purchase, they issued a valuation certificate showing Rs. 3 lakhs only. The opposite parties failed to pay Rs. 20,000/- towards exchange bonus as agreed by them. The front right tyre of the vehicle developed internal problem, but the opposite parties refused to replace the same. The seat belts are replaced by the opposite parties. The air conditioner of the vehicle producing humming sound. None of the accessories is working on it should be assured. The letter and the lawyer notice issued by the complainant were not needed. Thus the complainant is before us seeking direction against the opposite parties either to replace the vehicle or refund its price together with compensation and costs of the proceedings.
2. Version of the 1st opposite party.
The car was delivered to the complainant in perfect running condition without any technical or mechanical defect whatsoever. Whenever the complainant reported his car with the alleged concerns the 2nd opposite party rendered prompt and efficient service to the vehicle. The complainant did not comply with the terms and conditions applicable for the exchange bonus. The 1st opposite party has issued 2 year unlimited mileage warranty from the date of delivery of the vehicle. The 1st opposite party is neither liable to replace the vehicle nor refund the price. The warranty for battery tyres and tubes has been provided by the manufacturer of the same. However as a good will gesture the tyres of the car were replaced by the 2nd opposite party on 06-02-2008. The complaint is devoid any merit and liable to be dismissed.
3. Defense of the 2nd opposite party
Opposite parties have not given any assurances or promises regarding mileage of the vehicle. The damage to the tyre was due to an external iimpact of a sharp object and it was not due to any defects in tyre however as a goodwill gesture arranged for free replacement of the tyres. 2nd opposite party is only the dealer of the 1st opposite party. Exchange bonus has bee offered by the 1st opposite party. 2nd opposite party has rendered timely and efficient service in accordance with the warranty terms and conditions as and when the complainant approached them. There is no defect in the vehicle of the complainant. The complaint is berefit of any bonafides.
4. The complainant was examined as PW1. Exts. A1 to A10 were marked on the side of the complainant. No oral evidence was adduced by the 1st opposite party. Exts. B1 to B4 were marked on their side. Witnesses for the 2nd opposite party were examined as DWs1 and 2. Exts. B5 and B6 were marked on their side. Heard the counsel for the parties.
5. The points that arose for consideration are
i. Whether the complainant is entitled to get replacement of the vehicle or refund of its price?
ii. Whether the complainant is entitled to get compensation and costs of the proceedings?
6. Point No. i. The following issues are not disputed by the parties.
i. The complainant purchased a Getz car from the 2nd opposite
party which was manufactured by the 1st opposite party. (No
evidence as to the price of the vehicle)
ii. 24 months warranty has been provided by the 1st opposite
party to the vehicle evidenced by Ext. B3 warranty policy.
iii. 12-14 KMs per liter mileage was offered by the 1st opposite
party to the vehicle, admitted during evidence.
7. The main grievance of the complainant is that the vehicle has not been getting the mileage of 12-14 kms per litre petrol as offered and assured by the 1st opposite party and instead he is getting only half of it. The complainant vide Ext. A4 to A6 letters dated 29-12-2007, 26-01-2008 respectively complained about the mileage of the vehicle. Thereafter he caused to issue Ext. A7 lawyer notice dated nil repeating the very same grievance. The witness for the 2nd opposite party deposed that they have duly considered the complaint raised by the complainant and on 06/02/2008 they have tested the mileage of the vehicle and convinced the complainant that the vehicle has the mileage offered by the 1st opposite party. He further stated that the complainant had issued Ext. B1 satisfaction letter. Ext. B1 goes to show that the complainant has signed in Ext. B1 after recording “subject to check” and signed without any prejudice. Further DW1 submitted that he has no document to substantiate the same. During evidence the 2nd opposite party summoned Ext. B5 and B6 repair order and got it marked through DW2. The above documents would go to show that the vehicle was repaired on 2 occasions. However either of the opposite parties failed to produce the previous service records of the vehicle in this Forum for our verification. The non production of the above documents speaks volumes. Nothing is on record to prove that the vehicle is getting mileage of 14 kms per litre as assured by the 1st opposite party which is the crux of this complaint. The opposite parties could not rectify the defect of low mileage in spite of repeated attempts that too within warranty period. It is pertinent to note that the 2nd opposite party has valued the price of the vehicle on 17-06-2008 at Rs. 3 lakhs evident from Ext. A3. That is only after about 8 moths from the date of purchase. No cogent or coherent evidence in before us to the deficiency. In view of the above we are of the view that the vehicle suffers from manufacturing defect.
8. We are not relying on the celebrated decision of the Hon’ble Appex Court in Maruti Udyog Vs. Susheel Kumar Gabgotra 1 (2006) CPJ 3 (SC). Since in the instant case the defect of he vehicle can not be possibly rectified by replacement of a particular part as contended by the opposite parties.
9. Admittedly the complainant has plied the vehicle for a period of 20 months from the date of purchase till the date of complaint. (evident from Ext. A10). Obviously the complainant is not entitled to get refund of the full value of the vehicle as prayed for considering the above aspect. A depreciation of 20% is to be deducted from the value of the vehicle.
10. Point No. ii. The primary grievance of the complainant has been met squarely law calls for justice first and mercy next in this case the requirements have been adequately met. Hence no order as to compensation and costs.
11. In the result, we partly allow the complaint and direct that the 1st opposite party manufacturer shall either replace the vehicle with a new one after accepting 20% of the price of the vehicle or refund the price of the vehicle after retaining 20% of the price. In either of the event the complainant shall return the car to the 1st opposite party simultaneously.
The above said order shall be complied with within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 29th day of October 2011.
Sd/- A Rajesh, President.
Sd/- Paul Gomez, Member
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant’s exhibits :
Ext A1 : Copy of undertaking for exchange
bonus claim
A2 : Copy of work sheet
A3 : Copy of valuation report dt. 17/05/2008
A4 : Copy of letter dt. 29/12/2007
A5 : Copy of letter dt. 26-01-2008
A6 : Copy of letter dt. 26-01-2008
A7 : copy of letter dt. 08/2008
A8 : Copy of tax invoice
A9 : Copy of preliminary information sheet
A10 : Copy of draft repair order dt. 10-04-2010
Opposite party’s exhibits :
Ext. B1 : Copy of satisfaction note
B2 : Copy of exchange claim
B3 : Copy of warranty
B4 : Copy of warranty
B5 : Copy of repair order dt. 12/11/2009
B6 : Copy of repair order dt. 13/04/2010
Depositions:
PW1 : Janardhan Pai K.V.
DW1 : Sanish Madhavan
DW2 : Xavier Jersons
