BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM.
KAMRUP
C.C.No.46/2014
Present: I) Shri A.F.A.Bora,M.Sc.,L.L.B.,A.J.S -President
II) Smti Archana Deka Lahkar,B.Sc.,L.L.B. -Member
III) Sri Jamatul Islam,B.Sc, Former Dy
Director, FCS & CA - Member
Smti Jashomayee Devi - Complainant
D/0 Late Brojendra Chandra Borpujari
H.No.8, Vishnu Path, Rukminigaon,
Guwahati, Kamrup, Assam
-vs-
I) The Managing Director & CEO -Opposite party
Hyundai Motor India Ltd.
5th and 6th Floor,
Corporate one (Baani Building)
Plot No.5, Commercial Centre,
Jasola, New Delhi-110076
II) Mukesh Hyundai
Swaraj Nagar, Dispur, Guwahati - 05
Kamrup, Assam
Appearance
Ld. advocate Sri Sailen Kr.Borkakati , Smti Bonti Sharma, Sri Diganta Kr.Nath, Smti Yugsikha Deka and Smti Nina Dutta appears for the complainant .
Ld. Advocate Sri Santanu Kr.Sarkar appears for opp.party No.1
None appeared for opp.party No.2
Date of argument:- 4.2.2020, 29.6.2020
Date of judgment: - 22. 9.2020
JUDGMENT
1) This is a complaint filed by one Smti Jashomayee Devi u/s 12 of the Consumer Protection Act, 1986 against opp.party No.1 The Managing Director & CEO, Hyundai Motor India Ltd. 5th and 6th Floor, Corporate one (Baani Building) Plot No.5, Commercial Centre, Jasola, New Delhi-110076 and opp.party no.2 Mukesh Hyundai Swaraj Nagar, Dispur, Guwahati- 05, Kamrup, Assam.
2) Brief fact of the case narrated by the complainant is that the complainant had purchased a HMIL i10 Asta –VSA (Registration No AS01AT 1357) on 10-1-2011 and the complainant had no trouble in the said vehicle till the month of Nov. 2012. The car of the complainant met with an accident on 30.11.2012 for which the car was given for repair to the opp.party no. 2 who is a dealer/service centre in early December 2012 and a tentative estimate was given on 8th December 2012 which was subsequently modified.
3) The complainant requested for “loaner” car for use in the interim period which was declined by the opp. party No.2. The complainant was told that the work would be completed within a duration of 10 days period . Neither the complainant had been provided a loaner car nor the car was ready till early Feb, 2013.
4) The said car of the complainant was ultimately ready in the end of Feb, 2013 and the complainant was given a bill for Rs.2,52,505/- on 27.2.2013. The said bill contained a list of 75 items of spare parts whereas the original estimate (approved by the surveyor) was for 32 items only. The complainant became very much aggrieved and annoyed as the price of the certain items were inflated up to Rs.10,000/- . The complainant demanded that the bill be duly corrected to which opp.party No.2 eventually agreed but subsequently the opp.party No.2 instead of correcting / revising the bill offered discount due to technical reason.
5) The discounted bill was given on 8.3.2013 the total amount of Rs.9,547/- after making payment through bank transfer (SBI, IIBM Branch) the complainant reached the workshop at around 4-30 p.m. to take delivery, but the vehicle was not ready as opp.party awaited for confirmation for Kolkata office. It was finally delivered at around 6-30 p.m.
6) The complainant found noisy and whining sound of his vehicle while driving . There were other problems also. On being informed the complainant was advised to bring the car to the workshop.
7) On 2.4.2013 at about 7 p.m. while the complainant was driving home, the car stopped suddenly in the middle of G.S.Road . The complainant sought help from the management of the opp.party, but it proved futile.
8) The said car was again taken by Mukesh Hyundai on 20th May, 2013 . The complainant was called to the workshop
on 23rd May for taking delivery , but the complainant declined to take delivery after finding several problems and again she was asked to come on the next day i.e.24th May,2013.
9) On 24th May the complainant took delivery of the car , but found that both AC and body noises are still persisting.
10) The car was taken to the work shop for the 4th time on June 5, 2013 and the AC sound was finally corrected. The rattling sound again increased with every use and that was reported by the complainant on 25 August ,2013 and the complainant had taken out the car, most shockingly, the entire steering wheel component fell on the lap of the complainant .
11) The complainant sent a letter to the opp.party No.1 on 3.11.2013. The complainant prays for a compensation of Rs.10,000,00/- from the opp.party, Rs.5,00,000/- for damaging complainant’s vehicle as well as to replace a new car of the same brand along with 12% interest in any delay in paying the aforesaid amount.
12) The opposite party No. 1 stated in their written statement that the complaint is baseless , frivolous etc. and devoid of any merits. The opp.party denies each and every allegation made in the complaint.
13) The opp.party submitted that the complaint is barred by limitation as complaint is required to be filed within a period of two years and the complaint is filed beyond two years from the date of purchase of the car i.e. 10.2.3011.
14) It is submitted by the opp.party No. 1 in their written statement that a perusal of the complaint would reveal that the allegations are only made against the opp.party No.2 the dealer and not against the answering opp.party No.1. It is submitted that whole complaint is made on the fact that the opp.party No.2 has not provided timely services.
15) It is submitted that answering opp.party operate with all its dealers on a principal to principal basis and errors/omission, if any at the time of retailing or servicing of the car is the sole responsibility of the concerned dealer.
16) It is submitted by the opposite party No.1 in their written statement that being the manufacturer of the Hyundai Car liability is limited and extends to its warranty . It is important to mentioned that the cars are purchased by the concerned dealers from the manufacturer against payment and thereafter, the purchased cars are sold by dealer to the customers under sale invoice . It is admitted fact on the part of the complainant that the car was in perfect condition and she used it satisfactorily from the date of purchase. She is alleging a defect in the car only after the accident and repair works by opp. party No.2.
17) It is submitted by the opp.party No.1 in their written statement that being the manufacturer of car the accidental repair work is not cover under the warranty. Having such pleading of the parties, it now become necessary to formulate the relevant issues for convenience for discussion and decision.
18) Issues for decisions and discussions:-
Issue No.1- Whether opposite party No.1 is liable for any act or omission on the part of the opposite party No. 2 while dealing with the vehicle in question ?
Issue No. II- Whether the present complaint is bad for non-joinder of insurance company as a party to the proceeding?
Issue No. III- Whether the opp.party No.2 is negligent in providing service to the complainant ?
Issue No.IV - Whether the complainant is entitled to get any compensation from the opp.party No.2 ?
Reasons for decision
Issue No.1- Whether opposite party No.1 is a liable for any act or omission on the part of the opposite party No. 2 while dealing with the vehicle in question ?
19) The opp.party No.1 is the manufacturing company i.e. Hyundai Motor India Ltd. It is clear on record that opp.party No.1 was a manufacturer and they used to sale the vehicles to the dealer and their relation is manufacturer and retailer . The vehicles were sold through opposite party No.2 and there is no responsibility of the manufacturer after the period of warranty. If there is any error or omission at the time of servicing of the car the responsibility will be on the concern dealer and not with the opp.party No.1.
20) We are also of the opinion that opp.party No.1 being the manufacturer of the Hyundai car liability is limited and extended of the warranty obligation alone . If there is any error /omission or mis-representation at the time of retail sale no liability can be fasten upon the answering opp.party No.1 i.e. manufacturer. As such issue No. 1 is decided in favour of the op.party no.1 and is answered in negative.
Issue No. II- Whether the present complaint is bad for non-joinder of insurance company as a party to the proceeding ?
21) To arrive at a decision on issue No.II we have carefully examined the record. It has come to our notice that complainant who was examined as C.W.1 reveals that the person from the insurance company visited the work-shop of the opp.party for inspection while the vehicle was under repairing. It is also evident from record that insurance company who perhaps to re-imburse the expenditure need to be a party to the proceeding. But since the transaction was made with the opp.party No.2 all along in respect of the vehicle by the complainant including concession of some bill amount etc. the insurance company was not involved directly with the opp.party no.2. It is found that insurance company is not a necessary party for final adjudication of the matter about negligence of the duty on the part of the opp.party No.2 towards the complainant as a customer and retailer relationship . Hence, it is decided that insurance company is not a necessary party in respect of repairing of the vehicle after the accident.
22) It reveals from written argument of the complainant that after due intimation of MH workshop the insurance personnel inspected the car in mid February ,2013, but at the time the complainant was informed that the car was not ready for delivery and ultimately the car was handed over to the complainant in the end of Feb, 2013 and a bill was submitted to the extent of Rs.2,52,505/- with a invoice No. B201300763 dtd. 23.2.2013. The complainant raised objection as to the high rate which was higher than the earlier estimates and it was opposed stating that opp.party No.2 Mukesh Hyundai did not inform about the additional item and costs etc. which were required for the repairing of the car . In this way it is submitted in the argument that there was a transaction as well as communication between the complainant and the opp.party No.2 and their revised bill was ultimately given to the complainant on 8th March, 2013 with a invoice No. 82011300921 dtd. 7.3.2013. Whatever the amount or transaction in respect of the repairing of the vehicle it is a customer repairing relationship and in our opinion there is not such visible and tenable irregularities on the part of the opp.party No.2 .
23) Admittedly the vehicle was handed over to the complainant and complainant while driving back the car was found it noisy and same sound came out that AC was switched on. In respect of this defect and dissatisfaction etc. of repairing of an accidental vehicle the insurance company has no involvement . So far in respect of payment as well as in respect of any surveyor report etc, as such insurance company is not a necessary party in the present proceeding and accordingly this issue is decided in negative.
Issue No. III- Whether the opp.party No.2 is negligent in providing service to the complainant ?
24) The instant case is of an example as to the conduct of dealer and workshop personnel while dealing with the customers. The customers are generally layman having no technical knowledge on the vehicle and they totally relied on the technical experts. Generally even a layman took the advices from the dealer and technical experts and relied on them entirely. But if those persons misguided such customer without explaining the proper remedy it amounts to professional deficiency of service on the part of those technical experts.
25) In our present case the fact is that a lady without having any knowledge of machinery and tools was put to suffer for a long period of time both physically and mentally. During the course of repairing of the vehicle after the accident, If the vehicle was not properly repairable, definitely they should guided the customer properly . But in the instant case the opp.party No.2 failed to explain anything about insufficient services rendered to the complainant and have not even filed written statement to contradict the allegation made against him.
26) From the evidence on record and also from the written argument submitted by the complainant it is apparent that the vehicle of the complainant met with an accident and thereafter it was placed at the work shop of the opp.party No.2 and they took the responsibility of repairing the same. Whether the insurance company was informed or not is not a matter of dispute in determining negligence of service on the part of the opp.party No.2. The complainant was asked many times to take over the vehicle and ultimately it was handed over in the month of last part of Feb, 2013. But the complainant was not satisfied as the vehicle was found defective after repairing and she alleged that she found a lot of defects of vehicle and she informed the matter to the opp.party No.2 and she had to wait for a month , ultimately on 2nd of April, 2013 while the complainant was driving of the car , the car was stopped in the middle of G. S. Road and Hyundai Service Provider did not provide any assistance to the complainant.
27) Under the above circumstances , the complainant wrote a letter to the Hyundai Regional office on 5th of April , 2013 and highlighted all her plight of the incidents . After this the Hyundai Regional Office allowed the car to be repaired in their work shop and ultimately on 28th May, 2013 the car was taken to M.H.Work shop for correcting their earlier lapses.
28) From the record as well as from the written argument it further reveals that after taking the car for second time she came to the work shop on 23rd May , 2013 for taking delivery, but she found some lapses in the painting job and other problems with the A/C and the body noise etc. She was asked on the following day for delivery. Ultimately on 24th May ,2013 she took the vehicle, but the A.C. and body noises were found persisting and on her appraisal the matter to the work shop officials, they assured to attend the same at the later stage if problem persist. Ultimately checking the vehicle by other experts they came to a conclusion that some components of the A.C. had to be replaced and complainant was advised to take the car and they would inform her to take the vehicle again to the work shop after arrangement to the spare parts . In this way , for the fourth time on 5th June, 2013 the complainant came to the work shop and the A.C. sound was finally corrected .
29) In this way again in the first week of August, 2013 the complainant inform the opp.party that the Break and steering wheel started trembling which was attended by the Hyundai Road Side assistant arranged on the request of the complainant by M.H.Senior Manager. Ultimately, on 25th August, 2013 while complainant was driving the car there was a stumbling of the steering wheel and she reported the matter to the opp.party No.2. It further reveals from the written argument of the complainant and from her evidence on record that on 25th August, 2013 while the vehicle in question was taken out on the road the entire steering wheel fell on the lap of the complainant.
30) It is clear from the argument of the complainant that in the accident of the vehicle the complainant suffered a year long agony and it is alleged that for the negligence on the part of the opp.party No.2. She had suffered a lot. According to the complainant the costing value of repairing of car was Rs.2,52,505/- which was very high amount and it was unacceptable.
31) The long argument placed on record by the complainant is that she had continued transaction with the Hyundai Motor Ltd. by writing letters and pursuing the complaint to the different authorities of the company. According to her the service provided to the complainant towards her car was improper, defective and lack of supervision. The complainant continued by issuing legal notice through advocates highlighting on the negligence on the part of opp.parties and claim for compensation to the tune of Rs.10,00,000/- etc. and also claim for Rs. 5,00,000/- for damage the complainant vehicle and claim for a new car of the same brand etc.
32) Our observation in the matter is clear enough that the vehicle was used by the complainant after being it was purchased from the opp.party No.2 and she met with an accident. It is precisely to say that when a vehicle met with an accident it needs to be taken responsibility by the insurance company for re-imbursement etc. with a report from the surveyor. But the complainant being not disclosed anything about the payment of bill and re-imbursement etc. However , she had admitted that the Insurance company people came and collected report etc. As already discussed the transaction was basically between the complainant and the opp.party No.2 and as such Insurance company is not a necessary party for the purpose of determining the deficiency of service on the part of the workshop (Opp.party No.2).
33) From the entire discussion made here in above , it is very much clear that from the month of Feb.2013 to the end of August 2013, the complainant being the customer of the opp.party No.2 had suffered a lot by repeated visit to the Hyndai workshop for no fault of her own. If the vehicle after the accident was not fit for repairing opp.party No.2 could have explain properly and guide her for actual remedy which opp.party No.2 had not done and can be termed as deficiency of service on the part of the opp.party No.2. As per allegation the Customer Care Services was also inadequate towards the lady while she suffered from breaking down of the vehicle on the road.
34) In the result, we are of the opinion that opp.party No.2 is negligent in providing service to the complainant and accordingly issue no.III is decided in affirmative and in favour of the complainant.
35) Issue No. IV- Whether the complainant is entitled to get any compensation from the opp.party No.2 ?
So far the discussion made in Issue No. III, it appears that inspite of making payment to the tune of approximately Rs.2,50,000/- the remedy was not up to the satisfaction of the customer. As such this issue is decided and we are of the opinion that the complainant is entitle for a compensation to the tune of Rs. 1,00,000/- (Rupees one lakh) only with the interest @ 6% p.a. from the date of filing the complaint till realization along with cost of proceeding to the tune of Rs.5,000/- (Rupees five thousand) only . The decretal amount is to be paid within 45 days from the date of judgment failing which, both the amount will carry an interest @ 12% per annum till realization.
Given under our hand and seal of the District Forum, Kamrup, this the 22th day of September, 2020.
Member Member President
