Chandigarh

StateCommission

A/199/2015

Harjinder Singh - Complainant(s)

Versus

The Managing Director, Hyundai Motor India ltd. - Opp.Party(s)

Ashok Bhardwaj & Aruna Sachdeva, Adv.

18 Dec 2015

ORDER

'STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

First Appeal No.	:	199 of 2015
Date of Institution	:	19.08.2015
Date of Decision	:	18.12.2015

 

Harjinder Singh son of S.Surinder Singh C/o Dr. Jaswinder Kaur, resident of A-202, Adesh University Campus, Barnala Road, Bathinda.

……Appellant/Complainant

V e r s u s

1. The Managing Director,  Hyundai Motor India Limited, Irrugattukottai, NH No.4, Sriperumbudur Taluk, Kanchipuram, District Tamil Nadu- 602105.
2. Ultimate Hyundai, Plot No.154-155, Industrial Area, Phase-I, Chandigarh – 160002, through its Proprietor/ Manager.
3. Raja Motors Hyundai, Mansa Road, Bathinda, through its Manager.

              ....Respondents/Opposite Parties

 

Appeal under Section 15 of the Consumer Protection Act, 1986.

 

BEFORE:   JUSTICE JASBIR SINGH (RETD.), PRESIDENT.

                MR. DEV RAJ, MEMBER.

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Ashok Bhardwaj, Advocate for the appellant.

                   Sh.Vishal Gupta, Advocate for respondent no.1.

                   Sh.Aditya Kochar, Advocate proxy for Sh.Aftab Singh                            Khara, Advocate for respondent no.2.

                   Sh.Dilraj Singh Bhinder, Advocate for respondent no.3.

 

PER JUSTICE JASBIR SINGH (RETD.), PRESIDENT

• Whether any customer would like to purchase a car, if the manufacturer of that car is offering warranty qua its shell/body, against corrosion/rusting, for two years only?
• Whether it is expected that there is presumed warranty qua shell/body of the car that it would not get corrosion/rusting for its life? (these days say 10 years).

2.        These are the questions, which need to be looked into, in this appeal, which is directed by the appellant, against an order dated 17.07.2015, rendered by District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (in short the Forum only) vide which, it dismissed consumer complaint bearing No.498 of 2014 filed by him.
3. As per facts on record, the appellant/complainant purchased a car make-Hyundai Verna, model 07/2011, from respondent No.2, on 10.08.2011. The said car met with an accident and it was taken to respondent No.3, on 10.12.2012, for repairs/replacement of the damaged parts including rear bumper, rear right tail lamp etc. After repairs, the car was returned to the appellant on 21.12.2012. As per cash invoice dated 21.12.2012 (Annexure OP-3/2), following parts were replaced, to make the car in running condition:-

ULTRASONIC SENSOR ASSY-BWS	1 (Nos)
REFLECTOR/REFLEX ASSY-RR RH	1 (Nos)
LAMP ASSY-REAR COMBINATION,RH	1 (Nos)
RAIL ASSY-REAR BUMPER	1 (Nos)
BRACKET ASSY-RR BUMPER SIDE, RH	1 (Nos)
COVER-RR BUMPER	1 (Nos)
RETAINER ASSY-BUMPER COVER MTG	15 (Nos)
EMBLEM-1.6	1 (Nos)
EMBLEM-HYUNDAI	1 (Nos)
EMBLEM-VERNA	1 (Nos)

4.        Perusal of above cash invoice makes it clear that no damage was caused to shell/body of the car, in question. It was only rear bumper and parts fitted therein were damaged, which were replaced. On 27.04.2013, car was taken to respondent No.2 for servicing. In the process, it was noticed that the car was not repaired properly by respondent no.2 and on advice given by a mechanic, it was taken to respondent no.3. On repeated requests made by the appellant, car was accepted for repairs, by respondent no.3 on 13.07.2013. It was detected that car has not been properly repaired; problem therein continued and remained unaddressed, which compelled the appellant to send a complaint through an email (Annexure C-1) to respondent no.1 on 04.08.2013. However, he failed to get any positive response. Respondent no.3 replaced rear tale lamp, however, rear bumper was not replaced. Again, the appellant sent an email to respondent no.1 on 14.08.2013, however, rear bumper was not changed, which led to filing of complaints by the appellant on 14.08.2013, 23.08.2013, 16.09.2013 and 24.09.2013. It was noticed by the appellant that his car had started showing signs of corrosion/rusting at different places i.e. window handles, below rear view mirrors, inside and outside of boot space, and other parts of its body. This problem was reported to respondent no.2, through an email dated 27.03.2014 i.e. about two years and eight months from the date of purchase of said car. Relevant portion of the email reads thus:-

“The problem of rusting has been started to my above mentioned car which is extremely painful at this early stage. I used Maruti Alto car for 10 years and during this long time of 10 year, I did not saw any spot of rusting. After selling Alto car I purchased another Hyundai i10 sports car in March, 2013 for my spouse. Now I feel that it is perhaps another mistake”

5. It is specific stand of the appellant that in a short span of time, he did not expect that body of the car will get rusting. On 01.04.2014, Mr.Kuldip Sharma, Representative of respondent no.3 took photographs of the car, noticing rusting on different parts of its shell/body, however, no action was taken, which compelled the appellant to send reminders through email dated 09.04.2014 (Annexure C-4) and 13.04.2014 (Annexure C-5). In response thereto, the appellant was asked to bring his car to the workshop of respondent no.3, for replacement of rear bumper. Real issue of corrosion/ rusting on various parts of the shell/body of the car was not noticed. The appellant again sent a letter dated 16.04.2014 (Annexure C-6) to respondent no.3 asking Shri Kuldip Sharma, who had taken photographs of the car on 01.04.2014, to give reasons of rusting on various parts of the body. When nothing was done, a legal notice (Annexure C-7)  dated  21.04.2014 was served upon the respondents, indicating all the facts, as mentioned above.
6. In reply, respondent no.3 told the appellant that warranty of the car was only for two years, which has expired. Corrosion/rusting on the shell/body of the car, may have been caused due to normal wear and tear or may be its rough and negligent use. It may also have been caused, on account of accident of the car. It was further said that as a good will gesture, respondent no.3 was ready to repaint rusted portion of the car. Again legal notice was served by the appellant to respondent no.2, on 07.05.2014. Thereafter, the appellant was intimated to bring his car to the workshop for inspection, to know about corrosion/ rusting seen at its various parts.

              On the repair order, following note was put up by respondent no.2:-

“Vehicle has been inspected. Photographs of area where the paint was defective taken for further sending to HMIL for their expert opinion. The customer wants to know the reason for corrosion. The dealership has offered to rectify the defect”.

7. The appellant also put up following note, on the repair note:-

“As per your reply dated 15.05.2014 of legal notice, I came to Ultimate Hyundai for the inspection of my vehicle and know the reasons of corrosion of car. The dealer only took the photographs of defective parts for further verification and said that they will send to HMIL for knowing the reasons. I feel that it is manufacturing defect. So the Company should replace the vehicle. For the time being, I am taking my vehicle back”

8. Reading of above note made by respondent no.2, makes it clear that corrosion was detected at different body parts of the car. When nothing was done, the appellant filed consumer complaint before the Forum, alleging manufacturing defects, in the car and made a prayer that the car be replaced with a new one and the respondents be directed to pay compensation of Rs.10 lacs, towards harassment, mental tension and agony faced by him, with interest.
9. All the respondents filed separate replies virtually alleging similar facts against the appellant. Facts mentioned in reply filed by respondent no.1 needs to be mentioned here. It was stated that the complaint having been filed after two years, from the date of purchase of the car, was barred by limitation. It was further stated that qua defective repairs, allegations are against respondent no.3, for which respondent no.1 cannot be penalized. The car had already covered 24000 kilometers and further that qua corrosion/rusting found on exterior portion of the car, it cannot be termed as manufacturing defect and may be the result of paint scratches or any other damage, caused to part of the shell/body of the car. Corrosion/rusting may also occur on account of an accident. Moisture trapped in the body parts of car; accumulation of road salt, dirt, bird dropping, road oil; various environmental conditions; industrial pollution; high humidity  etc., may also cause rusting on shell/body of the car. It is further said that as per owner’s manual, which is supplied to the customer, at the time of sale of the car, the appellant was required to go through the same carefully and use the car accordingly, but he failed to do so. Extract of “Hyundai New Vehicle Warranty” terms and conditions were also placed on record. It has been prayed that the complaint be dismissed.
10. In the rejoinder filed by the appellant, he reiterated all the averments contained in the complaint and repudiated those, contained in written version of the respondents. Photographs showing rusting on various parts of shell/body of the car were placed on record.
11. During pendency of the proceedings before the Forum, on 12.11.2014, the appellant filed an application with a request that let the car, in question, be inspected by an expert, to know about truth of the averments made by him.
12. The said prayer was opposed by respondents no.1 and 2. However, on 12.12.2014, in the presence of Counsel for the appellant and the respondents, inspection of the car, through a Committee of experts was ordered by the Forum. It was ordered that on payment of costs of Rs.1000/- by the appellant to the respondents, directions shall be given to the experts, for inspection of the car. On 23.12.2014, in the presence of the appellant and Counsel for all the respondents, following order was passed by the Forum:-

“Previous costs by the complainant to the learned counsel for OP No.3 has been paid.

A letter be sent to the Head, Automobile Wing of the Punjab Engineering College University of Technology, Chandigarh, to constitute a panel of experts to inspect the car of the complainant for the defects mentioned in the complaint for which the fee shall be paid by the complainant. Along with the letter, copies of the complaint and written reply of the OPs, copy of the application for appointment of expert and copy of the order be enclosed for compliance. The experts of Head Automobile Wing of the PEC shall inspect the vehicle after giving due notice to both the parties/counsel.

Reply from the Head, Automobile Wing of the PEC be awaited for 20.01.2015.”

13. Thereafter, in response to above order, a communication was sent by the Head Mechanical Engineering Department (PEC), University of Technology, Chandigarh, by the Forum,  which led to passing of the following order by the Forum on 20.01.2015:-

“Reply from Head, Mechanical Engg.Deptt., PEC University of Technology, Chandigarh, has been received in accordance with which the complainant was informed that the vehicle in question be brought to the Mechanical Engineering Department of the institute on 04.02.2015 and the complainant was also requested to deposit an amount of Rs.22472/- in the form of demand draft in the name of Director, PEC University of Technology payable at Chandigarh. It is directed that compliance of directions in the letter sent by Head, Mechanical Engg.Deptt., PEC University of Technology, Chandigarh, be made by the complainant.

For awaiting of the report from the Head, Automobile Wing of the PEC, listed for 13.02.2015”

14. In the above order, it is specifically stated that the vehicle be brought to the Institute above, on 04.02.2015, for inspection. The sequence of events mentioned above, shows that a fact that the inspection is going to be conducted on the above date, was within the knowledge of all the parties.

              Not only as above, Head Mechanical Engineering Department (PEC), through speed post, also sent copies of notice to the appellant and also the respondents on 09.01.2015, intimating the parties that the car, in question, be brought to the Institute aforesaid, for inspection, on 04.02.2015. Above notice became basis for passing an order on 20.01.2015.

              Despite intimation, as referred to above, the respondents failed to turn up, at the time of inspection. The car was taken to above Institute on the date fixed. Expert Committee inspected the same and filed the following report dated 09.02.2015:-

“Subject:-  Expert Opinion in CC No.498 of 2014 titled as Harjinder Singh Vs. The M.D. Hyundai Motors India Ltd. and others.

This is with reference to the letter no.DF-1/CP/2014/3709-A dated 30.12.2014 of the Hon’ble District Forum-1, Chandigarh and our letter no.PEC/MED/31-35 dated 09.1.2014 (infact 09.01.2015) the vehicle in question was brought before the committee for inspection on 04.02.2015 at 10.30 A.M. in the Mechanical Engineering Department of the Institute by Sh.Harjinder Singh, the complainant. No persons from opposite parties were present during the inspection of the vehicle.

The vehicle having registration no.PB-03Y-0408, Engine No.982609, Chassis No.LBM023507G (quoted from certificate of registration) was presented for inspection. The vehicle in question was thoroughly inspected.

After perusal of record and thorough inspection of the vehicle in question the committee is of the opinion that the problem of unusual rusting/ corrosion is very much there in  different body parts of the vehicle and this can be attributed to a manufacturing defect” (Emphasis supplied)

15. It is very clearly stated that there is an unusual corrosion/rusting on body parts of the car and the said reason can be attributed to a manufacturing defect. To the said report, objections were filed by respondent no.1 stating that inspection was done at its back, in ignoring the principle of natural justice and further that the experts were not competent to examine the car, in question.

              We are of the considered opinion that above objections were ill founded. As has been referred to above, it was known to Counsel for all the respondents that the car, in question, will be taken to the Institute for inspection on 04.02.2015 and further such a plea cannot be taken in the face of orders, passed by the Forum, noting above fact and also notice having been sent to all the parties by the Institute, on 09.01.2015.

              So far as competency of the experts is concerned, it is clearly on record that the car was inspected by a Committee, consisting of Dr.Sushant Samir, Dr. V.P. Singh, Associate Professors, and also Sh.Gopal Dass, Workshop Instructor, Mechanical Engineering Department, PEC, University of Technology, Chandigarh. The above Institute is known for its excellence in education and can well be placed in the first ten Institutions in the Country. Taking note of experience and high posts held by the experts aforesaid, it cannot be said that they were not competent to observe rusting on various parts of shell/ body of the car.

              After rejecting contentions of the respondents qua inspection of the car done at their back, now we will deal with their other objections on merits.  

              In the first instance, it is contended by Counsel for the respondents that the complaint qua rusting having been made by the appellant, beyond the period of warranty i.e. beyond two years, cannot be entertained and further that rusting may have been caused on account of vehicle having met with an accident. It is further contended that rusting may be caused due to atmospheric conditions and the car having not been used in proper manner. Above plea is in consonance with the plea taken by the respondents in replies filed by them.  To say that the above fact was not covered under warranty, reliance was placed upon warranty terms and conditions placed on record, and it is stated that rusting indicated after two years was not covered and as such, car cannot be replaced with a new one; it has run more than 80000 kilometers. (When arguments were addressed).

              We have gone through the warranty terms and conditions, which are noticed by the Forum, in its order under challenge. In the first instance, it is stated that respondent no.1 warrants that each Hyundai car sold shall be free from any defects in material and workmanship, under normal use and maintenance, subject to certain conditions. Those conditions mention the above warranty, what it covers and what it does not.

              We are of the considered opinion that it is not necessary for us, to look into the negative conditions mentioned in the warranty Hyundai Warranty Policy. It is an admitted fact that the car was purchased on 10.08.2011, which met with an accident on 10.12.2012. Corrosion/rusting was indicated to the respondents on 27.03.2014 vide email Annexure C-3. Complaints made by the appellant in that regard, on different dates, are noticed in preceding part of this order. In warranty Policy, it is clearly stated that the car sold shall be free from any defects in material and workmanship. Qua electric and mechanical parts, negative conditions may work. However for shell/body of the car, it is implied and inbuilt that the body will survive at least life of the car, which in these days can be reasonably fixed at 10 years. The fact of rusting was indicated within 2 years and eight months.                     Contention of the respondents that corrosion/ rusting may have been caused on account of misuse of the car or if it is open to atmospheric pressure/conditions, is liable to be rejected. It is of common knowledge that these days, on account of paucity of space, more than 70% of the cars, in the cities are parked on the road side. However, the instances of getting rusting in such a short span of time are not many, rather negligible.

              During the proceedings before this Commission, on 07.10.2015, respondent no.1 was directed to file an affidavit of its Managing Director, stating as to what type of material/sheet was used in manufacturing the car (showing technical specification) and whether material used is amenable  to rusting, if yes, then within how much time. In reply thereto, an affidavit of Director of respondent no.1 was filed stating that for manufacturing of body shell, High Grade Cold rolled Steel sheet metal was used. Para nos.4, 5 and 6 of the said affidavit reads thus:-

“4. I say that Hyundai Motor India Limited is using High Grade Cold rolled Steel sheet metal. All body shells are coated with ED (Electro Deposition) Paint to a thickness of 16-25 microns which covers complete steel surface and prevents it from rusting. On the exterior of body shell paint thickness of 75-80 microns is applied which further protects it from rusting. All our high grade steels used to make a vehicle are subjected to sophisticated test such as Salt spray test, water resistance, weatherability etc.

5. I say that ED (Electro deposition) is the process of coating thin layers of chemical compound to modify the steel surface to achieve the desired corrosion resistance improve heat tolerance and for aesthetic enhancement.

6. I say that different grades of High Grade Cold Rolled Steel is used in different location of the car. I say that for exterior of Verna Car, Hyundai Motors is using SPRC 340 BH (Technical Specification of Steel) quality steel in many areas like Door outer, Hood outer & Fender area etc.”

16. It was further stated in the affidavit that rusting may have been caused on account of damage or disturbance of the paint coating and on account of various atmospheric conditions.

              We are not impressed with the arguments raised. As has been stated above, most of the owners do park their vehicles in open, under worst atmospheric conditions, however, rusting in such a short span of time is seldom noticed. The high quality of steel, which is used in manufacturing of the car, will not permit rusting within 2 years and eight months. If such material can get rust in such a short span of time, then proclamation of respondent no.1 that in manufacturing the car, steel used was free from any defects in material and workmanship, under normal use and maintenance, is misleading. To park a car in open under atmosphere pressure, is a normal use of the car these days and it cannot be termed as misuse of a car. 

17. Further contention of the respondents, that on account of accident, paint might have peeled off, resulting into rusting of shell/body of the car, is also liable to be rejected. It is correct that on 10.12.2012, the car met with an accident. Looking at the job card, it can safely be said that accident was minor and confined to sensor, rear bumper etc. only. As has been noticed in earlier part of the order, as per cash invoice dated 21.12.2012, when repairing the car, no steel part of the car shell/body was even touched. Only the sensor, reflector/reflex assembly, lamp assembly rear combination, rail, bracket assembly, cover and retainer of rear bumper, as also the emblems were changed/repaired. In above circumstances, there is no question of peeling of the paint in accident, resulting into rusting of the car.
18. Even if, for the sake of arguments, we may presume above reason as correct, however, on perusal of the photographs, brought on record as Annexure C-14 (colly.), would result into rejection of above argument. The appellant has placed on record, as many as 28 photographs of different parts of the body/shell of the car, covering its inner-outer parts, starting after front bumper upto the rear bumper. Rusting is noticed everywhere, inner sides and outer sides of the car. Rusting is unusual, it may occur only if the material used is defective or substandard. The above finding is further supported by a report, made by the Expert Committee, referred to above.
19. All the facts above were not noticed in the order under challenge, so passed by the Forum. Only after noting terms and conditions of the warranty Policy, it was said that as the rusting was indicated after two years and eight months i.e. on expiry of warranty period, the claim of the appellant was rejected. The view taken by the Forum is perverse and the order impugned appears to have been passed by ignoring evidence on record.
20. Further contention of Counsel for the respondents that respondent no.1 had sold thousand of cars and no such defect has been indicated ever, cannot stand scrutiny of law. Defect may occur in one case only. It depends, under what circumstances and conditions, the unit was manufactured.
21. Section 2 (1)(f) of the Consumer Protection Act, 1986 (in short the Act) defines the word defect as under:-

(f) “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;

22. Bare reading of Section 2 (1)(f) makes it clear that defect would mean fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard required to be maintained in manufacturing the said product. Such a defect may occur in any product. Merely because defect as indicated in the car, in question, had not occurred in other cars, is not a ground to reject claim of the appellant. In Hyundai Motors India Ltd. Versus Affiliated East West Press (P) Ltd., I (2008) CPJ 19 (NC), the National Commission noticed that a new car was taken to workshop for repairs. However, defect could not be removed. The car had run mileage of 21,720 kilometers. To reject contentions of the manufacturer that other cars had got no such defect, it was observed by the National Commission, as under:-

“28. As stated above, with such a vehicle the consumer would not be satisfied. May be that such defects may occur in one out of thousand vehicles but, at the same time, it is the duty of the reputed/established manufacturer to replace such a vehicle. We cannot lose sight of the fact that vehicles which emit smoke beyond the specified levels, are not allowed to ply on the roads”.

23. The facts noticed in this order, clearly indicate that the material used in manufacturing the car shell/body was lacking in quality, purity and strength. Respondent no.1 is a reputed Company. Such a defect in a short span of time, after purchase of car, is not expected in its products. At the time of hearing on the last date, an offer was made to respondent no.1, to compensate the appellant, by offering him a reasonable amount. However, today, at the time of arguments, a very paltry amount was offered. Above fact shows arrogant attitude of a car manufacturer. By making aggressive advertisements, on account of competition, the cars are being sold, by making a promise of moon to the customers. A person having spent earning of his entire life would not like to see his car getting rusting on its inner and outer parts, within a period of two years and eight months of its purchase and would not like to purchase such a car. Further, it is held that there is an inbuilt warranty qua shell/body of the car that it would remain defect free i.e. from corrosion/rusting for its life i.e. for about 10 years these days. The Forum was, thus, wrong in holding to the contrary, and as such, the order impugned deserves to be set aside.
24. No other point, was urged, by Counsel for the parties.
25. In view of the above discussion, it is held that the order passed by the Forum, being not based on the correct appreciation of evidence, and law, on the point, suffers from illegality and perversity, warranting the interference of this Commission.
26. For the reasons recorded above, the appeal is accepted. The consumer complaint is partly accepted with costs, qua respondent no.1 only.
27. By now, the car has covered about more than 80,000 kilometers. (It had covered only about 24000 kilometers distance, when complaint was filed). Taking note of above fact, respondent no.1 being manufacturer of the car, in question, is directed to take into its possession the car from the appellant and perform its obligation as under:-
    1. To pay 55% of amount of price of the car, paid  at the time of its purchase, to the appellant.
    2. To pay compensation to the appellant, to the tune of Rs.1.50 lacs, for mental agony and physical harassment caused to him, which will include registration charges also. 
    3. To pay cost of litigation, to the tune of Rs.50,000/-, to the appellant.
    4. This order shall be complied with by respondent no.1, within a period of 30 days, from the date of receipt of a certified copy of the same (order), failing which, the payable amounts at sr. nos.(i) to (iii) shall attract interest @12% p.a., from the date of default, till realization.
28. In view of above, appeal qua respondents no.2 and 3 is rendered infructuous and disposed of accordingly.  
29. Certified copies of this order, be sent to the parties, free of charge.
30.  The file be consigned to Record Room, after completion

Pronounced.

18.12.2015

Sd/-

[JUSTICE JASBIR SINGH (RETD.)]

PRESIDENT

 

 

Sd/-

(DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

      MEMBER

 

 

Rg