IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the   17^th   Day  of  May  2019

  Present: -  Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                                                                                       CC No.142/16

Dr.Prasannakumar                                     :         Complainant

Asoka Mandiram

Pochamkonam, Ezhukone P.O

Kottarakkara Taluk, Kollam.

[By Adv.P.Sreekumaran Pillai&Ajith.P.C]

V/s

1. The Manager                           :         Opposite parties

         M/s.Pothen Motors Pvt.Ltd,

        2^nd Mile Stone,Kilikolloor.P.O

        Kollam.

       [By Adv.C.R.Lalaji]

2. The Managing Director

         M/s Hyundai Motors India Ltd.

         II,V&VI Floor, Bani Building

        Plot No.5, Commercial Center

        Jasola, New Delhi-110025

       [By Adv.G.Bimal Raj]

ORDER

E.M.MUHAMMED IBRAHIM , B.A, LL.M,President

                This is  a case based on a consumer complaint filed under Section 12 of the Consumer Protection Act 1986. 

The allegations in the complaint in short are as follows.

The complainant on 19.05.15 purchased a  Hyundai i 10 sports wine  red car vide model No.G4HGFM888897 for a sum of Rs.4,82,245/- from the 1^st opposite party for his personal use.  The said car has been manufactured by the 2^nd opposite party.  As the 1^st opposite party at the time of sale of the car has compelled the complainant to pay for the extended warrantee and hence the complainant paid Rs.2716/- for the same and thereby the opposite parties have extended the warrantee of the car apart  from the usual warrantee coverage.  The

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complainant had booked the said car on 16.04.15 by paying an amount of Rs.5000/- as booking charge.  He has also paid about Rs.35000/- to the opposite parties and  their agents towards insurance charges and payment of tax.  Altogether the complainant had paid a total sum of Rs.5,34,245/- to the 1^st opposite party for purchase of the said car.  Later it was  registered with the Motor Vehicle Department with Reg.No.KL-24 K 3647 in the name of the complainant. 

At the initial time of riding the said vehicles performance were unsatisfactory and subsequently it developed very serious complaints with the gear box, steering system and the engine of the  vehicle.  When the defects were informed  to  the opposite   parties   they    made     some    repairs  and returned the vehicle to the complainant by making the complainant to believe that the said defects will be rectified in due course.  However even after the said repair the vehicle developed the same complaint of going out of steering control when riding, no correct clutch application while riding in steep roads, the break system not working efficiently and the reverse gear plyed to forward movement while riding and the said  defects caused many accidental escape to the complainant many a time.  In view of the defects the complainant hand over the car to the 1^st opposite party for further repair  under intimation to the 2^nd opposite party.  On instruction from the 2^nd opposite party the vehicle was entrusted to another agent and the authorised dealer(S.S Hyundai, Pathanamthitta) for further repair of the same vehicle.  After necessary repair  the vehicle was returned to the complainant again.  But even after the said repair the vehicle developed the same complaint.  Hence  on 11.03.16 the complainant caused to send an advocate notice to the 1^st &2^nd opposite party narrating the details of the defects and expressing his intention to bring the car for further repair or replacement of the said car from the show room/workshop of the 1^st opposite party.  But  the  opposite parties have turned a deaf ear  to  the  genuine

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demand  of the complainant nor even sent any reply to the lawyer notice.  Hence the complaint. 

The opposite parties No.1&2 resisted the complaint by filing separate written version raising more or less same contentions.  The main contentions in the written version filed by the 1^st opposite party are as follows.

          The complaint  is not maintainable either in law or on facts.  The complainant is not  a consumer of the opposite party.  The subject matter of the complaint does not constitute a complaint as defined under the Act.  The complaint is barred by non–joinder of necessary  parties.  However the 1^st opposite party would admit that the complainant has purchased Hyundai i 10 Sports Car from the 1^st opposite party by the date of purchase is  29.05.2015.  It is further admitted that the vehicle was brought to  the 1^st opposite party service centre  for  1^st   service and  running repair respectively.  Complainant registered   complaints during running repair and those defects were rectified and delivered the vehicle to the complainant at his residence.  Thereupon the complainant himself has done the road test and issued a full satisfaction letter dated 16.04.2016.  The 1^st opposite party is having no knowledge regarding the service done under S.S.Hyundai, Pathanamthitta which is not a part to this complaint.  There is absolutely no deficiency in service or unfair trade practice on the part of the 1^st opposite party.  The complainant is not entitled to get  any compensation  or costs from the 1^st opposite party.  No cause of action has arisen to the complainant as against the 1^st opposite party.

          The main contentions in the written version filed on behalf of the 2^nd opposite party are as follows:-

          All the allegations and averments against the 2^nd opposite party are frivolous, misconceived and has been formulated on wrong and misleading facts.  The complaint is devoid of any merit and deserved  to be dismissed in-limine.  It is further contented that any error/omission/misrepresentation   made

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at the time of repair, sale or service of the car by the dealer cannot be  fastened upon the 2^nd opposite party.  Since  the  title  of  the  Hyundai  vehicle passed on the concerned dealer  on the moment it is put on a common carrier and thereafter  the concerned dealer is responsible for the same.  However  the 2^nd opposite party  would admit that they had manufactured the car but its liability is limited to its warranty obligations.  It is further contented that the warrantee conditions refers to the replacement of the defective part  by the authorised dealer and neither does it contemplate  replacement of the car nor refund of its price.  The refund of the vehicle  can be given only if there is technical expert stating that there are inherent manufacturing defect in the vehicle.  There is no allegations against the 2^nd opposite party  in respect   of   manufacturing  defect, deficiency in service, unfair trade practice etc.  Hence    there   is no  cause  of  action against the 2^nd opposite party.  It is further contented that the 2^nd opposite party is not liable to pay any compensation  and costs to the complainant nor liable to replace or exchange the car with a brand new one or refund any costs and expenses to the complainant.  The 2^nd opposite party further prays to dismiss the complaint with its costs.

          In view of the pleadings the points that arise for consideration are:-

1.  Whether there is any deficiency in service or unfair trade practice on the part of opposite party No.1&2?
2. Whether the complainant is entitled to get replaced the defective car or entitled to get its price refunded as claimed in the complaint?
3. Whether the complainant is entitled to get compensation from the opposite parties No.1&2?
4. Reliefs and costs.

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Evidence on the side of the complainant consists of the oral evidence of PW1&2,Ext.P1 to P6 and C1 series.  None of the opposite parties have adduced any oral evidence. However 1^st opposite party got marked Ext.D1 document through PW1.

Complainant and 2^nd opposite party filed notes of arguments.

Heard the counsel for the complainant and  2^nd opposite party.  Though specific posting have been given for hearing the 1^st opposite party,  the learned counsel for the 1^st opposite party has not turned up and advanced any argument nor filed any notes of argument.

Point No.1 to 3

     For avoiding repetition of discussion of materials these 3 points are considered together.  The following facts are un disputed rather admitted in this case.  The complainant purchased Hyundai i 10 sports wine  red car from the 1^st opposite party.  The said car has been got registered  in the name of the complainant and register number of the car is KL-24 K 3647.  There is also no dispute with regard to the fact that the complainant has purchased the car by paying sum of Rs.5,34,245/- to the 1^st opposite party.  It is also an admitted fact that the 2^nd opposite party is the manufacturer of the  Hyundai i 10 sports wine  red car purchased by the complainant from the 1^st opposite party. 

It is true that the 1^st opposite party  disputed the date of purchase of the car.  According to the complainant he purchased the car from the 1^st opposite party on 19.05.15 for his personal use.  But 1^st opposite party would  content in his written version that  the date of purchase is 29.05.15 which is 10 days after the alleged purchase made by  the complainant.  However Ext.P1 and P2 documents issued by the 1^st opposite party  would reveal that the date of purchase of the car is not on  29.05.15 but on 19.05.15 itself.  Ext.P1 and P2 documents which have been marked without any objection from the opposite parties.  In view of   the   oral   evidence of  PW1 and Ext.P1&P2 documents we

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have no hesitation to hold that the date of purchase of the vehicle is 19.05.15 as claimed by the complainant.

The specific case of  the complainant is that even from the very beginning the car was not in a working condition.  Subsequently the car developed serious complaints   in  all  its  main  mechanical  system.  The  complainant  has  been examined as PW1.  According to PW1 at the time of initial riding itself the said car performed not satisfactorily and subsequently it developed   complaints with gear box, steering system, clutch and break system and engine system.  According to the complainant the above defects were noted within the running  of the car around 500 Kms.  It is also brought out in evidence that the defects were   made known to the  opposite parties  and they made some repair and made the complainant to  believe that the defects will be rectified in due course of time.  But according to PW1 the said car developed the same  complaints  of  going out of steering control when riding, no  correct clutch application while riding in steep roads, the break system not working effectively and  the reverse gear played to forward movement while riding and the complainant escaped from many accident  due to the defective performance of the said car.  Therefore the  complainant returned the car with the 1^st opposite party for further repair.  However after having done the repeated repair from the 1^st opposite party the said vehicle was entrusted for repair  with another agent for  2^nd  opposite party ie, S.S Hundai, Pathanamthitta.  Ext.P4 invoice received  from the said  S.S Hundai, Pathanamthitta Branch would probabilise the above claim of the complainant.  It is  brought out during cross examination of PW1 that during the 1^st 2 months the car break down for 3 times and all those times the men deputed by the 1^st opposite party taken the car to the workshop and get the defects corrected.  The 1^st opposite party has also not disputed with regard to the said allegations of PW1.  According to the complainant the defect of the vehicle is with regard to its engine system, gear box system, break and clutch  system and

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steering system.  It is clear from the available materials that the complainant has informed the matter to the 1^st opposite party by sending Ext.P6 Advocate notice.  Even after the issuance of Ext.P6 notice where in the above defects were clearly noted,  the 1^st opposite party made certain repairs in the vehicle and obtained Ext.D1 satisfaction letter.  It is also brought out in evidence that   even after the said repair the vehicle had developed the same  defects.  It is clear from the available materials that the vehicle manufactured by the 2^nd opposite party and purchased from   the 1^st opposite party by the complainant  became defective 3 times  at the initial stage itself within the time of running  536 km in total.  It is also clear from the available evidence that the vehicle is now kept idle as it is not in a road worthy condition. 

The above evidence of the complainant regarding the defects of the car stands corroborated from the oral evidence of  PW2 the Assistant Motor Vehicle Inspector deputed  as Expert Commissioner and Ext.C1 series commission report and  mahazer.  According to  PW2  has been working as AMVI, Kollam and he is having a total experience of 18 years in the field of vehicle and he is having Automobile Engineering Diploma and 6 years experience as AMVI.  The evidence of  PW2 would further show that he inspected the vehicle bearing No. KL-24 K 3647, Hyundai i 10 sports wine  red car  at the premises of  the complainant’s residence as directed by this forum and prepared  C1 series Mahazer and report.  That he  stated the  defects noted in the vehicle during  his inspection in Ext.C1 series documents.  PW2 has noted the defects of the vehicle in Paragraph 2&3 of Ext.C1(a) report which would probabilise the case of the complainant.  We may quote the defects noted by PW2 in C1(a) which are :- CtX KW-¯nÂs¸« hml-\-§-fn \n¶pw hn`n-¶-ambn Ìnb-dnw-Kn\v A¸w tight   ImW-s¸-Sp-¶p.  ¢¨v s]U-en\v {^o s]U t¹ Ipd-hm-b-Xn-\m   hml\w   ap¶n-te¡pw  ]n¶n-te¡pw  FSp-¡p-t¼mÄ  Hm^m-hp-¶p-­v. 

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t{_¡v kwhn-[m-\-¯nepw KnbÀ t_mIvkv kwhn-[m-\-¯nepw XI-cm-dp-IÄ H¶pw {i²-bn s]«n-Ã.  hml\w GI-tZiw 8 Intem-ao-ä-tdmfw HmSn-¨-t¸mÄ  F³Pn³ t\m¡nwKv  i_vZw Aan-X-ambn tIÄ¡p-¶-Xmbn {i²-bnÂs¸-«-Xns\ XpSÀ¶v hml\w  \nÀ¯n t_mWäv Xpd-¶-t¸mÄ  F³Pn³ Aan-X-ambn NqSm-bn-cn-¡p-¶-Xmbn ImW-s¸-«p.  IqSmsX Iqfâv Sm¦n-te¡v Xnf¨ Iqfâv XncnsI F¯p-¶-Xmbpw ImW-s¸-«p.  F³Pnsâ IqfnwKv kwhn-[m-\-¯n-epÅ XI-cmÀ ape-amWv CXv km[m-c-W-bmbn kw`-hn-¡p-¶-Xv.  Bb-Xn-\m F³Pn³ Agn-¨p-t\m¡n ]cn-tim-[n-s¨-¦n am{Xta  ImcWw I­p-]n-Sn-¡m\pw ]cn-l-cn-¡m\pw km[n-¡p-I-bp-Åp.  CXn\v GI-tZiw Ccp-]-Xn-\m-bncw cq]-tbmfw sNe-hp-h-cp-¶-Xm-Wv. 

Sn hml\w \ne-hn-epÅ Ah-Ø-bn XpSÀ¶v D]-tbm-Kn-¨m hml-\-¯nsâ F³Pn³ kokv Bhp-¶-Xm-Wv.  F³Pn³ ]qÀ®-ambn amän-sh-bv¡p-Itbm do I­o-j³  sN¿p-Itbm  sh­n-h-cp-¶-Xm-Wv.  CXn\v 75000/þ cq]-tbmfw sNehp hcpw. IqSmsX ¢¨nsâ Akw»n Agn¨v  ]cn-tim-[n-t¡-­n-h-cpw. \ne-hn hml-\-¯nsâ FbÀI­o-j³ kwhn-[m\w Imc-y-£-a-ambn {]hÀ¯n-¡p-¶n-Ã.  Cu Ah-Ø-bn XpSÀ¶v  Cu hml\w D]-tbm-Kn-¡m³ ]mSn-Ãm-¯-Xm-Wv.

It is true that the 2^nd opposite party has filed objection to Ext.C1 series Expert Report.  The main  contention against C1 series expert report is that the Expert  Commissioner has not checked the service history of  the  vehicle and ensured whether the complainant  had maintained the vehicle  properly.  As per the schedule the 1^st free service shall be done between  1200 to 1500 kms or 60 days from delivery date whichever  comes earlier. However the complainant has got the 1^st service done only at on  23.12.15 ie, 8 months after the date of delivery which is in violation of the HMIL service schedule for the vehicle.  It is further contented that the vehicle was running without doing 2^nd free service and

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oil change which  would adversely affect the engine performance.  In the said objection the 2^nd opposite party has also stated  the dictum laid down in State of Himachal Pradesh Vs. Jai Lal and Others[(1999) 7 SCC 280] wherein  the Hon’ble Supreme Court has held that  “ an expert  is not a witness of fact.  His evidence is really of an advisory character.  The duty  of an expert witness is to furnish the judge with the necessary scientific  criteria for testing the accuracy of the conclusions so as to enable the judge to form his independent judgement by the application of this criteria to the facts proved by the evidence of the case.  The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often  an important factor for consideration along with the other evidence of the case.  The credibility of such a witness depends on the  reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions.”  By relying on the above decision the 2^nd opposite party contented in the objection to discard  Ext.C1 series report and Mahazer.  In view of the materials available on record we have no hesitation to find that there is no merit in any of the above contentions raised  by the 2^nd opposite party due to the following reasons.  It is clear from the  available materials that from the very beginning of the purchase  of  the  car  it  was  not  in  a  working condition.  At the time of initial riding itself  the said car  not worked satisfactorily.  Subsequently it developed complaint with gear box, steering system, clutch and break system and engine system even before accruing the date or mileage for the  1^st service.  According to the complainant the above defects were noted while running 534 kms.  Therefore the contention of the 1^st opposite party and the vehicle developed the defects on  the  above material part of the vehicle due to the non service of the vehicle or  not keeping the vehicle properly by the complainant is devoid of any merit. 

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The decision relied on  by the 2^nd opposite party is also not applicable to the facts  of this case.  PW2 is not simply an expert witness but he has personally verified the car found out the defects of the car by running the vehicle for a considerable distance,  that he has prepared Ext.C1(a) expert report which is  a contemporaneous  document.  Furthermore it is clear from the available materials that  PW2 is an expert in this field whose main duty as AMVI is to test the vehicle and he has been doing the same for the last 6 years.  To a  specific question, put to PW2  during cross examination has answered that the defects noted in C1 series(a)   report is  due to improper service of the vehicle is incorrect since the vehicle has been run only 534 kms when he  verified the same and 1^st service has to be conducted after running 1000 kms. Though PW2 has been subjected to severre cross examination by the 1^st and 2^nd opposite party nothing  materials  has  been brought out to disbelieve  the above version  of PW2 who is the expert witness who personally verified and noted the defects.

                   In view of the above evidence of PW2 coupled with Ext.C1 series (a) report it is crystal clear  that the vehicle is having  several material defects   from the very beginning and  the vehicle cannot  be used without  curing the above defects. It is also brought out in evidence that  even the vehicle is run with the above defects it would be dangerous for the person who drive the vehicle and therefore the complainant has kept the vehicle in his house compound.  In view of the nature of the defects  it is crystal clear that the above defects are manufacturing defects  and the same was not caused  due to the improper driving  or  not subjecting the vehicle for periodic service or repair work.  It is clear from the available materials as per Ext.P1 and P2 and P6 documents the vehicle is a brand new one and even from the very beginning it was developed mechanical defect which are inherent in the vehicle.  Even according to PW2 the said  defects are   manufacturing   defects.  It is clear from

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the contentions of the 1^st opposite party coupled with Ext.D1 documents that the complainant has brought the vehicle to the 1^st opposite party showroom and got the defects  rectified  and obtain  back after conducting  road test and also issued Ext.D1 letter noting full satisfaction  has been recorded and therefore the cause of action for filing the complaint ends there.  We find little force in the above contentions of the 1^st opposite party due to the following reasons It is clear from the available  materials that the Expert Commissioner has tested the vehicle at the premises of the complainant and noted the defects mentioned   above which would indicate that the vehicle is having manufacturing defect and it is not road worthy.  The learned counsel for the 2^nd opposite party has vehemently argued before the forum that the manufacturing company is liable only for manufacturing defect of the vehicle and the defects noted by the complainant  in the vehicle is due to  the  non  subjecting   the  vehicle to the 1^st and 2^nd services.  The above contention is devoid of any merit which is clear from the oral evidence of PW1&2 that the vehicle was not run up to 1000kms for subjecting the vehicle for 1^st service nor elapsed  60 days time from the date of purchase when the material defects were found first.  It is crystal clear from the available materials that the vehicle hardly run 534 kms and the vehicle had became not road worthy due to the defects pleaded in the complaint and stated in Ext.P6 lawyer notice.  Ext.C1 series(a) report also would probabilise that the above defects are inherent defects in the vehicle and the vehicle  could not be run as claimed by the complainant and hence it is being  kept at the premises  of the complainant.  It is clear from the available materials that there are   defects in the  all 5 major systems and while running from the very beginning the vehicle engine became off and therefore the   break    system    will    not   work.  Running such vehicle is most dangerous to the driver as well as  to the public.  Therefore it is crystal clear from the available  materials that the alleged defects are manufacturing defects for which  the  1^st  and  2^nd  opposite parties are liable. 

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Though the vehicle is covered by warrantee and extended warrantee the defects brought to the vehicle of the opposite party No.1&2 orally and by sending Ext.P6 lawyer notice, they have not cured the defects nor replaced the vehicle with a defect free one.  Hence it is crystal clear that there is deficiency in service on the part of the 1^st and 2^nd opposite party.  Therefore both of them are equally liable.

 As it is  clear from the available materials including C1 series (a) expert report that all the major mechanical part of the vehicle are defective and the vehicle is not in a road worthy condition and driving such a vehicle is dangerous.  It is also brought out in evidence that the vehicle is covered by extended warrantee.  In the circumstance we are of the view that the complainant is entitled to get a brand new vehicle of the same nature and price by replacing the defective vehicle.  It is also brought out in evidence that though the complainant has purchased the vehicle by paying ready cash for more than Rs.5,00,000/-.  He could not run the vehicle properly for his personal use.  Therefore he has sustained mental agony apart from financial loss.  In the circumstances the complainant is also entitled to get compensation.  He is also entitled to get costs of the proceedings.  The points answered accordingly.

Point No.4

          In the result the complaint stand allowed directing  the opposite party No.1&2 to replace the vehicle  with a brand new one by taking back the defective car  belongs to the complainant or to refund  its price of Rs.5,34,245/- realised  from the complainant while  selling the car along with  extended warrantee of the same type and same price,  in lieu   of the vehicle purchased by the complainant from 1^st opposite party as per Ext.P1 & P2 documents.  The opposite party 1&2 are also directed to pay compensation to the tune of Rs. 1,00,000/- and also pay costs   Rs.10,000/- to the complainant within 45 days from today.  The  complainant  is  directed to produce the defective car at the 1^st

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opposite party showroom and entrust the same to the Manager of 1^st opposite party within 15 days from today and in such event the 1^st opposite party shall issue acknowledgements then and there and opposite party 1&2 shall substitute the defective car with a brand new one within the next 30 days.

If the opposite party No.1&2 fails to comply with the above directionsNo.1 to 3 stated above the  complainant is at liberty to realise Rs.5,34,245/- with interest @ 9% p.a from the date of complaint till realisation along with costs of Rs.10,000/- and in such event also the complainant shall return the defective car to the 1^st opposite party after realisation of the amount.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  17^th    day of   May 2019.

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

           Forwarded/by Order

           Senior Superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                     :         Dr.Prasannakumar

PW2                     :         B.Sreejith

Documents marked for the  complainant

Ext.P1                  :         Order booking form

Ext.P2                  :         Receipt cash voucher

Ext.P3                  :         Copy of  tax licence

Ext.P4                  :         Copy of tax invoice

Ext.P5                  :         Copy of Advocate notice

Ext.P6                  :         Copy of order

Witness examined for the opposite party:-Nil

Documents marked for the opposite party

Ext.D1                 :         Copy of customer home visit form

Ext.C1 series        :         Expert opinion report

E.M.Muhammed Ibrahim:Sd/-

                                                                                    S.Sandhya Rani:Sd/-

                                                                                   Forwarded/by Order

                                                                                   Senior Superintendent