Filing Date:01-11-2008

Order Date:26-03-2009

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM – II,

TIRUPATI

PRESENT: - Sri. G.V.Raghavulu, President

Smt. T. Sujatha Devi, Member

Sri. M.Subbarayudu Naidu, Member

THURSDAY THE TWENTY SIXTH DAY OF MARCH, TWO THOUSAND AND NINE

C.C.No.109/2008

Between

Smt. S.Noorjahan Bi,
W/o. S.Yousuf,
D.No.4-20-4-M/1, Judicial Colony,
Krishna Nagar,
Madanapalle,
Chittoor District. … Complainant

And

1. Hyundai Motors India Ltd.,
rep. by its Managing Director,
Plot No.H-1, SIPCOT Industrial Park,
Irrungattukottai,
Sriperumbudur Taluk,
Kancheepuram District,
Tamilnadu.

2. The Branch Manager,
Kun Auto Company Pvt. Ltd.,
D.No.19-3-3A/S, Renigunta Road,
Tirupati.

3. The General Manager,
Kun Auto Company Pvt. Ltd.,
NP-54, Developed Plot,
Ekkaduthangal,
Thiru-vika Industrial Estate,
Chennai – 600 032. … Opposite parties.
This complaint coming on before us for final hearing on 13.03.09 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.M.Sreedhar Reddy and Sri. K.V.Bhaskar, counsel for the complainant and Sri.P.Ramana, counsel for the opposite party No.1, and Sri.S.V.Udayakumar and Sri.D.Johnsamuvel, counsel for the opposite party No.2 & 3, and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. G.V.RAGHAVULU, PRESIDENT

ON BEHALF OF THE BENCH

This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite parties to replace the defective Hyundai i10 car with a new vehicle or refund the entire cost of the vehicle, to pay Rs.1,50,000/- towards damages, to pay Rs.95,000/- towards taxi fare incurred by the complainant and to pay Rs.5,000/- towards costs of the complaint to the complainant.

2. The averments of the complaint in brief are:- The complainant on 03.03.2008 approached opposite party No.2 for purchase of Hyundai i10 car manufactured by opposite party No.1 and paid Rs.10,000/- on that day. The complainant paid the balance of sale consideration of Rs.4,57,500/- on 04.03.2008 and opposite party No.2 issued receipts to that effect. The vehicle was insured with Bajaj Allianz General Insurance Co.Pvt. Ltd., Pune. The complainant used the car for about one month without any trouble. The complainant, who is a chronic heart and diabetic patient is taking treatment at Vijaya hospital, Chennai, and at Wockhard hospital, Bangalore, since 4 years. As the complainant was advised for a comfortable travel, she purchased the car to travel regularly for the purpose of treatment. On 08.04.2008 the complainant along with two other women, her son and two children aged about 3 and 4 years respectively was proceeding in the car in Madanapalle town. One S.Mahaboob Basha, who is having 24 years of experience in driving and known to be an expert driver in the town, was driving the car. When they reached Reliance petrol bunk in Madanapalle town, the driver of the car noticed some smoke coming out from the engine. The driver suddenly stopped the vehicle and came out and tried to open the bonnet of the vehicle, but in vain. As the smoke increased and flames are coming out, the driver and others who gathered there tried to open the doors which are jammed and they could open them only after five minutes and the inmates suffered a lot due to suffocation and fear. With great difficulty the driver and others opened the bonnet and the flames could be controlled only after 15 minutes. The complainant’s son contacted Balaji, the Sales Consultant of opposite party No.2 by phone and informed the same, and opposite party No.2 told that they will come on the next day to inspect the vehicle. On 09.04.2008 Mr. Srinivas, Branch Manager, Hyderabad Branch, Balaji, the Sales Consultant, Mr. Umakanth, General Manager of the company and Mr.Kanakaraj, Service Adviser came to Madanapalle and inspected the vehicle and expressed deep concern about the unfortunate incident happened to the complainant. The opposite party No.2 informed the complainant that they will take the vehicle to Chennai and promised to replace the vehicle with a new one as the vehicle is a defective one. The opposite party No.2 and others took the vehicle in lorry to Chennai and promised to arrange new vehicle within 10 days. The opposite party No.2 also asked the complainant to inform the same to the insurance authorities and the complainant has done so. The Surveyor of the Insurance Company came to the place of incident and photos of the damaged vehicle were taken by opposite party No.2, the Insurance Surveyor and also the complainant. In the month of May, the opposite party No.3 asked the complainant to come over to Chennai to discuss about the vehicle. The complainant and her son were regularly contacting the opposite parties by phone and personally. The opposite parties are postponing the delivery of the new vehicle on the pretext that they have to complete certain formalities. Though six months lapsed, the opposite parties failed to keep up their promise of delivering new vehicle. All these days the complainant engaged taxi at Madanapalle on monthly rental basis at Rs.15,000/- per month. The opposite parties are informing that the vehicle is defective and the complainant is entitled to a new vehicle. On account of negligent act of the opposite parties, the complainant suffered both mentally and physically. One person belonging to opposite party No.3 from Chennai called the complainant by phone and informed her that the vehicle is ready and she can take the same. When the complainant asked the opposite parties about the damages, mental agony, and loss suffered by her financially, the opposite parties refused to settle the matter and the complainant can do whatever she likes. The complainant got issued legal notice to the opposite parties 2 and 3 on 01.08.2008 and on 04.09.2008 calling upon them to settle the matter by replacing the vehicle and paying damages. The opposite party No.3 gave reply to the second notice got issued by the complainant with false allegations. Surprisingly, the opposite party No.3 asked the complainant to pay the repair charges forgetting the fact that the incident happened during the warranty period. Thus the opposite parties committed deficiency of service. Hence the complaint.


3. In the reply (written version) filed on behalf of opposite party No.1, while denying the material allegations made in the complaint, it is inter alia stated that the complainant purchased Hyundai i10 car of opposite party No.1 from M/s. KUN Hyundai, Tirupati, an authorized dealer. The said car was delivered to the complainant by KUN Hyundai in perfect running condition as any other new car without any technical or mechanical defect whatsoever. The opposite party No.1 operates on a principal-to- principal basis with all its dealers. Omission / error / mis-representation, if any, committed by the dealer concerned while retailing / servicing / repairing the cars to its customers, is the sole responsibility of the concerned dealer. The complaint deserves outright dismissal on the ground that the complainant has not disclosed true material facts before this Forum. On thorough investigation of the vehicle, the expert technical investigation team concluded that the accident / damage to the complainant’s vehicle took place due to use of non-genuine fuel hose fitted by the complainant and there was no manufacturing defect in the vehicle. The said conclusion was intimated to the complainant by letter dt:02.05.2008. The complainant on receiving the said letter duly accepted the findings of the expert technical investigation team and never raised any allegations to the contrary on the said findings. By letter dt:09.06.2008 the complainant requested KUN Hyundai to carry out accidental repairs under insurance and she was ready to pay the difference amount as per insurance norms. As per the warranty terms the opposite party No.1, the manufacturer, offers two years unlimited mileage warranty from the date of delivery to the first purchaser on all Hyundai i10 cars sold in India. The exceptions mentioned in the warranty terms are to the effect that warranty will not apply to damage or failure resulting from misuse, abuse, accident, theft, flooding or fire, use of parts other than Hyundai genuine parts, any device and / or accessories not supplied by HMIL. In the owner’s manual and service booklet, it is recommended that all maintenance operations and repairs are entrusted to a franchised Hyundai dealer to ensure that the latest repair methods, specialized tooling and genuine Hyundai parts are used to ensure the continued reliability and safety of the vehicle. As the damage to the vehicle was caused due to use of non-genuine fuel hose, the repairs to be carried out did not come within the purview of the warranty policy of opposite party No.1. After getting request from the complainant for repair of the vehicle under insurance and approval from surveyor, the repair work was started by KUN Hyundai on 05.07.2008. The vehicle has been kept ready after its repair in perfect running condition since 17.09.2008. However, till date complainant has not turned up to take delivery of the vehicle despite several requests. No manufacturing defect exists in the vehicle delivered to the complainant. The complaint is liable to be dismissed as there is no breach of warranty policy by opposite party No.1.


4. In the written version filed on behalf of opposite parties 2 and 3, while admitting that the complainant purchased new Hyundai i10 car from opposite party No.2 on 04.03.2008 and denying the other material allegations made in the complaint, it is inter alia stated that the opposite party No.2 on hearing about the mishap had organized his representative to rush to the spot to inspect the vehicle. Mr. Srinivasan, Regional Manager of opposite party No.1 instructed the complainant to take the vehicle to the factory of opposite party No.1 for taking technical expertise opinion. In utmost care and diligence opposite parties 2 and 3 transported the vehicle to the factory and opposite party No.1 was courteous enough to bear the transportation charges. The opposite party No.2 never assured or promised to exchange the vehicle. The opposite party No.1 brought to the knowledge of opposite party No.2 that the petrol hose pipe had been tampered and substandard hose had been replaced and hence fire mishap occurred and the same was brought to the knowledge of the complainant. The opposite party No.1 had been requesting the complainant to visit the factory and they had been courteous enough to bear the travel expenses of the complainant. It was the complainant who was bent upon to harass the opposite parties for no fault of them, inspite of reiteration that there was no manufacturing defect or negligence on the part of opposite parties 1 to 3. As it was accidental repair, the complainant is liable to pay the due charges for the same. The complainant had written letter dt:09.06.2008 stating that she is willing to bear the repair charges. The complainant admitted that it was brought to her knowledge that the vehicle’s petrol hose had been tampered with. The complainant sent letter dt:09.06.2008 undertaking to take back the vehicle after repair and she had also accepted to bear the insurance formalities. The opposite party No.3 forwarded a letter dt:20.09.2008 to the complainant calling upon her to take delivery of the vehicle by paying the difference amount as agreed upon by her. Hence, the question of complainant suffering financially does not arise. There was neither manufacturing defect nor negligence of the opposite parties in service. To victimize and harass the opposite parties, the complainant filed the complaint. The complaint may be dismissed with costs.


5. In support of the averments made in the complaint, the complainant filed her affidavit. The complainant also filed 10 documents, which are marked as Exs. A1 to A10. Ex.A1 is Sales Receipt dt:03.03.2008 for Rs.10,000/- issued by opposite party No.2 in the name of the complainant towards advance payment for purchase of Hyundai i10 car. Ex.A2 is Sales Receipt dt:04.03.2008 for Rs.4,57,500/- towards balance sale consideration for purchase of Hyundai i10 car issued by the opposite party No.2 in the name of the complainant. Ex.A3 is Sales Invoice dt:05.03.2008 for Rs.3,93,830/- issued by opposite party No.2 in the name of the complainant. Ex.A4 is xerox copy of letter dt:05.03.2008 addressed by the opposite party No.2 to the complainant. Ex.A5 is xerox copy of legal notice dt:01.08.2008 got issued by the complainant to opposite parties 2 and 3. Ex.A6 is office copy of another legal notice dt:04.09.2008 got issued by the complainant to opposite parties 2 and 3. Ex.A7 is postal receipts and acknowledgements of opposite parties 2 and 3 for Ex.A6 notice. Ex.A8 is letter dt:27.09.2008 of opposite party No.1 addressed to the advocate for complainant in reply to Ex.A5 legal notice. Ex.A9 is bunch of photographs, 7 in number, of Hyundai i10 car of the complainant. Ex.A10 is bunch of receipts, 4 in number, issued in the name of the complainant towards taxi hire charges.


6. In support of the case set up in the reply (written version), the Assistant Manager (Legal & Secretariat) of opposite party No.1 – company, filed his affidavit. The opposite party No.1 also filed 7 documents, which are marked as Exs.B1 to B7. Ex.B1 is copy of Pre-Delivery Inspection & Warranty Registration Card issued by opposite party No.2 in the name of the complainant at the time of delivery of Hyundai i10 car to the complainant. Ex.B2 is xerox copy of Fire Accident Spot Investigation Report in respect of complainant’s car. Ex.B3 is xerox copy of letter dt:02.05.2008 addressed by opposite party No.1 to the complainant. Ex.B4 is xerox copy of letter dt:09.06.2008 addressed by the complainant to opposite party No.3. Ex.B5 is xerox copy of Hyundai Warranty Policy. Ex.B6 is xerox copy of letter dt:20.09.2008 addressed to the complainant by opposite party No.3. Ex.B7 is copy of Ex.A8 reply sent by opposite party No.1 to the advocate for complainant for Ex.A5 legal notice.


7. In support of the case set up in their written version, opposite parties 2 and 3 filed 4 documents, which are marked as Exs.B8 to B11. Ex.B8 is the original of Ex.B4 letter dt:09.06.2008 addressed by the complainant to opposite party No.3. Ex.B9 is xerox copy of Final Inspection cum Revised Settlement Report of Insurance Surveyor & Loss Assessor in respect of complainant’s Hyundai i10 car. Ex.B10 is copy of Fire Accident Car Investigation Report in respect of complainant’s Hyundai i10 car. Ex.B11 is Owner’s manual and service booklet.


8. On behalf of the complainant, opposite party No.1, and opposite parties 2 and 3 written arguments were filed and we have heard the oral arguments of counsel of both sides.



9. On the basis of pleadings of both sides, the points that arise for determination are:-
1.Whether Hyundai i10 car bearing registration No.AP03 AE 0021 of the complainant was having manufacturing defect?
2.Whether there is any deficiency in service on the part of opposite parties 1 to 3 towards the complainant?
3.Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?
4.To what result?


10. Points 1 & 2:- The brief facts of the case are:- The complainant purchased Hyundai i10 car of opposite party No.1 from opposite party No.2 by paying the sale consideration and opposite party No.2 issued Exs. A1 and A2 Sales Receipts and Ex.A3 Sales Invoice. The complainant registered the vehicle and the Registering Authority gave registration No. to the vehicle as AP03 AE 0021. The complainant got the vehicle insured with Bajaj Allianz General Insurance Company Ltd. On 08.04.2008 while the complainant was proceeding in the vehicle in Madanapalle town, the driver stopped the vehicle on noticing that smoke coming out from the engine. When the driver tried to open the bonnet of the vehicle he could not do so and the smoke increased and flames came out. When the complainant informed the same, the representatives of opposite parties visited Madanapalle and inspected the vehicle. On the advice of opposite party No.2 the complainant informed about the accident to the Insurance Authorities. After taking photographs of the damaged vehicle by opposite party No.2, Insurance Surveyor and the complainant, the vehicle was transported to the factory of opposite party No.1 at Chennai. The complainant got issued Exs. A5 and A6 legal notices calling upon opposite parties 2 and 3 to repay the amount paid by her along with damages and costs of the notices. The opposite party No.1 sent Ex.A8 reply to the advocate for the complainant stating that there is no manufacturing defect in the vehicle and fitment of non-genuine fuel hose had caused the smoke in the engine and the incident is attributed to complainant’s negligent act. The opposite party No.1 requested the advocate for complainant to advise his client to take delivery of the vehicle after paying necessary repair charges. The complainant filed the complaint on 01.11.2008.


11. The complainant purchased the Hyundai i10 car on 04.03.2008. On 08.04.2008 i.e., one month four days after the purchase, the incident of smoke and flames coming out of the engine took place. The counsel for the complainant submitted that opposite party No.2 and others who inspected the vehicle on 09.04.2008 took the vehicle in lorry to Chennai, promising to arrange a new vehicle to the complainant. He further submitted that the 3rd respondent asked the complainant to pay the repair charges though the incident happened during the warranty period. His contention is that since the incident occurred just one month after the purchase of the vehicle, there is manufacturing defect in the vehicle and the opposite parties committed deficiency of service in not replacing the vehicle with a new one and asking for repair charges. In this connection he placed reliance in the decisions reported in I(2006) CPJ 218, I(2008) CPJ 145 and I(2006) CPJ 3. The counsel for opposite party No.1 submitted that the damage to the vehicle was caused due to use of non-genuine fuel hose fitted by the complainant and due to hose being not locked properly over the tube. He further submitted that the complainant accepted the report of the expert technical investigation team and gave Ex.B8 letter requesting the dealer i.e., opposite party No.3 to carry out repairs and agreeing to pay the difference in expenses after adjusting the same out of insurance claim. His contention is that there was no manufacturing defect in the vehicle and opposite parties, who promptly visited Madanapalle and after inspecting the vehicle took the same to Chennai and attended the repairs, committed no deficiency in service.




12. Ex.B2 Fire Accident Car Investigation Report shows that the vehicle was run for 1956 k.m. by the date of incident. As per Ex.B5 Warranty Policy, Hyundai authorized dealers will undertake 3 free services. The first free service is after the vehicle run 1200 to 1500 k.m or within two months of delivery, whichever is earlier. Admittedly, the complainant did not take the vehicle for first free service. There is absolutely no explanation from the complainant why the vehicle was not taken for free service immediately after it runs 1200 kms. Ex.B10 Fire Accident Car Investigation Report shows that the investigating team thoroughly examined the vehicle of the complainant and found that fuel hose fitted in the vehicle was not a genuine / original part and the hose was not locked properly over the tube and fire was caused due to fuel leakage. In Exs. B2 and B10 the photographs of the fuel hose found in the damaged vehicle of the complainant and the original new part of the company were shown. In the written arguments filed on behalf of the complainant, it is stated that when the vehicle is a month old new vehicle, the question of fixing a non-genuine fuel hose by the complainant is unbelievable and only to escape their liability the opposite parties have thrown the blame on the complainant. The complainant did not adduce any evidence to disprove the version of the opposite parties that non-genuine fuel hose was used by her. The complainant received Ex.A8 reply of opposite party No.1 in which it is clearly mentioned that fitment of non-genuine fuel hose had caused smoke in the engine. The complainant received Ex.A8 reply in September 2008. In the complaint, the complainant did not even deny the fitment of non-genuine fuel hose. On 09.06.2008 the complainant addressed Ex.B8 letter to opposite party No.3 requesting to repair the car through insurance process and agreeing to pay the difference amount from the total repair cost as per the insurance norms. The opposite party No.1 filed Ex.B4, copy of Ex.B8 on 29.12.2008 along with the written version. Only at the time of written arguments, the complainant came up with the version that she never executed Ex.B8 letter and Ex.B8 document is created by taking her signature as a token of acknowledgement of taking the car to Chennai for replacement. This plea of the complainant cannot be believed and accepted. According to the opposite parties, as the complainant accepted the Fire Accident Car Investigation Report, she addressed Ex.B8 letter. Even as per the averments in the complaint, the complainant used the car for about one month without any trouble. In the complaint it is stated that the car is driven by one S.Mahaboob Basha, who is having 24 years of experience in the field of driving and known to be an expert driver in the town. The complainant in her affidavit filed along with the complaint did not even deny the version of the opposite parties about using of non-genuine fuel hose by her. She did not also file the affidavit of the driver of the car denying the version of the opposite parties. Admittedly, the warranty is for 24 months. The damage to the vehicle occurred within the warranty period. As per the terms and conditions of the warranty policy, warranty will not apply to damage or failure resulting from misuse, abuse, accident, theft, flooding or fire, use of parts other than Hyundai genuine parts, any device and / or accessories not supplied by HMIL. The complainant failed to establish that there was manufacturing defect in the vehicle. On the other hand the opposite parties established that the accident / damage to the complainant’s vehicle took place due to use of non-genuine fuel hose and there was no manufacturing defect in the vehicle. In R.Gopalnathan Vs. Ford Motor Company – I(2006) CPJ 218, the Hon’ble Karntaka State Consumer Disputes Redressal Commission held that where vehicle caught fire and burnt into ashes due to manufacturing defect and opposite parties replaced the vehicle and paid damages, the complainant is entitled to compensation for mental shock, hardship and punitive damages. In the above case, when the vehicle purchased by the complainant from the opposite parties, due to manufacturing defect caught fire and burnt into ashes, the opposite parties replaced new car and paid a sum of Rs.2,50,000/- towards loss of baggage suffered by the complainant. The complainant produced publications to show that there are complaints regarding the manufacturing defect in Ford Icon cars manufactured by opposite parties 1 and 2. The opposite parties did not explain the reason for the fire in the accident. The State Commission observed that if there was no manufacturing defect in the vehicle there was no reason for the opposite parties to replace the car and pay damages. In the present case the opposite parties explained the reason for the accident / damage to the vehicle of the complainant. The opposite parties asserted that there is no manufacturing defect in the vehicle. Hence, the above decision is in no way helpful to the complainant. In the case reported in Fiat India Pvt. Ltd. Vs. S.K.Verma – I(2008) CPJ 145, the complaint filed by the complainant alleging that the vehicle purchased from opposite parties was not giving assured fuel average. The District Forum allowed the complaint ordering replacement of old vehicle with a new one. The order of the District Forum was modified in appeal by the State Commission directing refund of cost of the vehicle. The Hon’ble National Consumer Disputes Redressal Commission dismissed the representation filed by the opposite parties. This decision has no application to the facts of the present case. In Maruthi Udyog Ltd. Vs. Susheel Kumar Gabgotra – I (2006) CPJ 3, the Hon’ble Supreme Court held that where any part in the vehicle is found to be defective, the obligation of the opposite parties under warranty is only to repair or replace the defective part free of charge during warranty period. This decision also has no application to the facts of the present case.


13. From the forgoing discussion, we find that the complainant failed to establish that there was manufacturing defect in the Hyundai i10 car purchased by her from the opposite parties. We also find that there is no deficiency in service on the part of opposite parties towards the complainant. Both these points are accordingly answered against the complainant.


14. Point No.3:- In view of our finding on points 1 and 2, the complainant is not entitled to any relief. This point is accordingly answered.


15. Point No.4:- In the result, the complaint is dismissed, but without costs.

Consumer Case No.1069/2007

Between:-
Sri K.Raji Reddy,
S/o. Late K.Chandra Reddy, Aged about 52 years,
Advocate & Spl. Standing Counsel for C.T. Dept.,
High Court of A.P.,
R/o.76/2RT, Saidabad Colony,
Hyderabad – 500059. ……Complainant
And

• The Managing Director,

M/s. Hyundai Motors India Ltd.,
Plot H-1, Sipcot Industrial Park,
Irrungattu Kottai, Sri Perumdur Taluk,
Kanchipuram District, Tamil Nadu.

• M/s. Hyundai Motors India Ltd.,

A-30, Mohan Co-operative Industrial Estate,
Madhura Raoad, New Delhi-110044,
Rep. by its Authorised person/Regional Manager.

• M/s. Talwar Mobiles Pvt.Ltd.,

No.160(44/45) Patny Plaza,
S.P. Road, Secunderabad – 500003
Rep. by its General Manager. ….. Opposite Parties

This case coming on 18-03-2009 for final hearing before this Forum in the presence of Sri V.Bhaskara Reddy, Counsel for Complainant and Sri Vijaya Kumar Reddy,Op.No.1&2, and Sri T.Sunil Kumar,Op.No.3 advocates for the opposite parties, and having stood over till this date for consideration, this Forum pronounced the following:-

O R D E R

(per Hon’ble President, Sri M.Vijaya Bhaskara Reddy on behalf of bench)

1. This is a Complaint filed by the Complainant under section 12 of C.P. Act, 1986, seeking a direction against the opposite parties to replace the defective Car with a brand new car of same model and colour by getting the life tax and insurance paid by the complainant (worth Rs.9,25,000/-) transferred to the new car, for payment of Rs.5,00,000/- towards damages for causing mental agony, for payment of Rs.50,000/- towards damages incurred by him while engaging a taxi and for payment of Rs.10,000/- towards legal expenses.
2. The case of the complainant as set out in the complaint in brief is that he purchased a new Verna CRDI SX model Car on 25-08-2007 from opposite party No.3. Opposite party No.1 is the Managing director of Opposite party No.2, who manufactured the said car.
3. After taking deliver of car, the complainant had noted a peculiar noise when the vehicle was running in 3rd gear. Immediately, he took the vehicle to opposite party No.3, who sold him the vehicle. Opposite party No.3 informed him that as it was a brand new vehicle, it would take some running hours for the gear parts to get lubrication/setting and that by the time of first service, which would be due after running of 1200 to 1500 kms., there would be free movement of the engine parts and that there won’t be any noise as the problem would be set right. However, the problem a continued till 15-10-2007, on which date, the complainant had presented his car in the workshop of the opposite party No.3 for the first service. He brought to the notice of the senior works Manager about the problem, who noted his remarks on the job card as “Shifting noise observed at road test, please check car gear, oil level and cables”. He assured the complainant that the problem would be rectified and the vehicle would be delivered in the evening on the same day. On that evening he was informed that there was some manufacturing defect and that the gear box would have to be replaced, for which, it would take one week time.
4. The complainant invested huge amount of Rs.9,25,000/-by obtaining loan from the Bank, incurring huge interest. The opposite parties delivered a defective car. They could not rectify the problem as there was a major manufacturing defect. The opposite parties deceived him. The complainant was upset sentimentally and was not willing to subject the new car for such repairs. He requested and insisted the opposite party No.3 to replace his car with a new one. Opposite party No.3 informed that he would consult opposite party No. 2. There was no response even after 8 days and as such he got issued a legal notice dated23-10-2007 calling upon the opposite parties to replace the car with a new one. He also claimed reimbursement of the charges incurred by him for engaging a taxi at Rs.2,000/-per day from 15-10-2007 till the date of delivery of a new car. There was no reply to those notices.
5. While so, on 12-11-2007 the opposite party No.3 sent the car to the complainant’s house stating that the defect was rectified. He informed that some parts in the gear box were replaced. Though the complainant was not satisfied with the repairs carried out or with their attitude, took delivery of the car under protest keeping in view of the fact that he had paid huge amount of Rs.9.25,000/- apart from the expenditure of Rs.50,000/- on seat covers and other extra fittings. The complainant registered his protest and received the vehicle without prejudice to his right to claim replacement of car.
6. As a matter of fact the defect has not been rectified and the noise has been coming even till to day. In fact, the problem has intensified as even in second gear also it is making noise. When he complained the same to opposite party No.3 he told that it would be rectified in second service. As a matter of fact, as against the claim of the opposite parties that the car would give a mileage of 30 kilometers per liter, it was giving only 10 kmpl.
7. The opposite party No.2 had to conduct thorough inspection of the vehicle before dispatching it from the factory. Opposite party No.3 also had to conduct a thorough pre delivery inspection before delivering the car. They intentionally delivered a defective car to him. They cheated him to extract substantial amount. They caused mental agony and inconvenience. Hence the complaint.
8. Opposite party Nos.1&2 filed a common written version. They admitted the purchase of the car by the complainant but pleaded that it was delivered in a perfect running condition without any technical or mechanical defects. Further, even if there were any defects, the defective parts could be replaced and when a defect could be removed, the replacement could not be ordered (they cited a couple of orders of the National Commission). Even in the warranty there is a clear clause for replacement of the defective parts but not replacement of the car itself or for refund of the purchase price.
9. As a matter of fact the rectification was carried out and the vehicle was made ready for delivery 26-10-2007. Inspite of intimation, the complainant did not take delivery of the vehicle. So, on 12-11-2007 the vehicle was delivered at his house, who received the same under protest.
10. It is further pleaded that free first service was carried out as per schedule and teflon coating, as requested by him was done free of cost. Necessary rectification was also done. There was no manufacturing defect in the vehicle. He was never informed that there was any such defect. They issued a reply to the legal notice, but it was returned un claimed. The complainant, after taking delivery of the car has not reported anything or took the vehicle for free services or paid services. The vehicle has not been suffering from any inherent manufacturing defect. They never assured that the car would give the mileage of 30 kilometers per liter. Only after thorough pre delivery check up only, the vehicle would be delivered to the customers. They never delivered the defective car or cheated the complainant. The noise problem has been rectified completely during the first free servicing on 15-10-2007 and as such the complainant is not entitled for any reliefs.
11. The 3rd opposite party field a separate written version. Practically he too took the self same defence as done by opposite party Nos.1&2. It is further pleaded that the vehicle had run for 1636 kms. by 15-10-2007 without any problem. They replaced the parts free of cost as per the warranty. The complainant has been using the car without any problem. He too took the plea that there could not be replacement of the car. As per the warranty there can be repair or replacement of the parts if found defective during the warranty period.
12. The Opposite party No.3 further denied various allegations made in the complaint specifically regarding the misrepresentations, manufacturing defects etc., He admitted that he informed the complainant that some parts in the gear box have been replaced. He denied that the noise was coming even in 2nd gear also. He never represented that the car would give the mileage of 30 kilometers per liter. Finally, he too prayed for dismissal of the complaint.
13.The points that arise for consideration are:-
I.Whether there were any manufacturing defects in the vehicle in question? and if so, whether the complainant is entitled for replacement of the car with a new one?
II.Whether the complainant is entitled for damages etc., as claimed in the complaint? and if so, to what amount?
III.To what relief?
14. To substantiate his case the complainant has chosen to file his evidence affidavit and relied on Exs.A1 to A8. He also submitted his written as well as oral arguments. On the other hand, the opposite parties filed the evidence affidavit of one Mr.Naveen kumar Trivedi on behalf of opposite parties No.1&2 and the 3rd opposite party filed the evidence affidavit of one Mr.Bhimsen Kulkarni and they relied on Exs.B1 to B5. They too submitted their written arguments and also the oral arguments.
15.Point No. I:- The initial burden is on the complainant to prove that there were manufacturing defects in the car. However, the complainant could not place any material to prove the same. He could not examine any qualified Automobile Engineer or any other expert or mechanic to prove the above point. The learned counsel for the opposite parties cited the following decisions to the effect that when there is no manufacturing defect the replacement of the car cannot be ordered. The following decisions are direct on the point in issue:-
I.III (2000) CPJ 544 (Kerala) in M.J.Abraham Vs.Angel Agencies and others.
II. III (2002) CPJ 137 (A.P) in Hussain Alikhan Vs.B.Seshagiri Rao and others.
III. III (2002) CPJ 14 (Kerala) in Cicily Kallarakkal Vs. Divya Automobiles.
IV. 1993 CPJ 225 [National Commission] in Mahindra & Mahindra Limited Vs. B.G.Thakore Desai and another.
V. 1986-95 CPJ 1367 [National Commission] in M/s.Tata Engineering and Locomotive Co. Ltd., and another Vs. M. Moosa.
VI. II (2005) CPJ 102 [National Commission] Dr.Hema Vasanthilal Dakoria and other Vs. Bajaj Automobiles.
VII. I (2006) CPJ 3 (Supreme Court) in Maruthi Udyog Ltd., Vs.Susheel Kumar Gabgotra and another.
In all the above decisions, it has been held that the replacement of the defective part by the authorized dealer alone was permissible and it does not contemplate replacement of the car in TOTO or for refund of the purchase price.
16. Even the warranty policy produced by the opposite parties [Ex.B1] reads:-
“….Authorized dealer shall either repair or replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period…..And no cost to the owner of the Hyundai vehicle for parts or labour”.
Thus even the above condition also makes it clear that there would be replacement of the defective part and not replacement of the car or refund of the purchase price. The complainant could not prove that there were manufacturing defects in the vehicle. So, the complainant is not entitled for replacement of the car or purchase price. This point is answered against the complainant.
17.Point No. II:- It is an admitted that the opposite party No.3, ultimately replaced the defective parts in the gear box, made the car ready and delivered it to the complainant at his house. Admittedly, the car was handed over to the opposite party No.3 for first service on 15-10-2007 and the complainant also had complained of shifting noise during 3rd gear. The same was rectified but the vehicle was delivered to the complainant on 12-11-2007 as admitted in Ex.B3. Of course, the complainant received the same under protest reserving his right to claim damages.
Thus there is the delay of about one month in handing over the vehicle to the complainant. According to the opposite parties they made the vehicle ready even by 26-11-2007. Of course, they could not produce any document to show the same. If, they had made the vehicle ready after replacing the defective parts, they should have intimated the same to the complainant immediately that they have not done so. So, there is clear negligence and deficiency in service in handing over the vehicle to the complainant after repairs. The complainant being an Advocate and Government Pleader must have felt definite inconvenience for want of vehicle at the earliest. The opposite parties could not place any material to show that they required one month time for completing the replacement of the defective parts in the gear box. By any standards taking of 1 month time is considered to be huge delay. For causing such inconvenience and deficiency in service, the complainant is definitely entitled for damages/compensation. The ends of Justice would be met, if we award the compensation of Rs.15,000/-. Accordingly awarded.
18. Point No. III:- In the result, the complaint is partly allowed. The opposite parties are directed to pay a sum of Rs.15,000/-(Rupees fifteen thousands only) by way of compensation to the complainant for the delay and inconvenience caused to him in returning the vehicle after repair/replacement of the defective parts. The opposite parties are also directed to pay costs of Rs.2,000/-(Rupees two thousands only) to the complainant.
For compliance 15 days time is granted.

Dr. Lovely Garg, aged about 40 years, W/o Dr. Sanjay Garg, C/o Delhi Nursing Home, Bibiwala Road, Bathinda.

.... Complainant


Versus

1. Hyundai Motors India Limited, A-30, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi, through its Managing Director
2. Bhagat Singh Motor Company Pvt. Ltd., Jhill Adda, Sirhind Road, Patiala, through its Managing Director.


... Opposite parties

O R D E R


1. The complainant Dr. Lovely Garg, has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after called the 'Act') against the opposite parties with the allegations that in the month of March, 2008, the representative of the opposite parties met her and offered various schemes including Exchange Bonus to the tune of Rs. 10,000/-, if she goes for the purchase of Hyundai Santro Car.

On the assurance of the representative of the opposite parties, she purchased a Hyundai Santro Car which was delivered to her vide delivery challan No. 65 dated 16-03-2008 from the show room of the opposite parties at Bathinda. She full-filled all the required formalities including handing over all the required documents as per sale schemes of the opposite parties for the payment of Exchange Bonus, as assured by the opposite parties, within a period of one month. Thereafter, she visited the opposite parties number of times and requested them to make payment of Exchange Bonus to her, but the opposite parties failed to pay it as promised.
Ultimately, she issued a legal notice dated 01-12-2008 through registered post which was served upon the opposite parties, but they failed to pay the Exchange Bonus of Rs. 10,000/- and in reply to notice, they denied her claim. She, therefore, claimed Exchange Bonus of Rs. 10,000/- alongwith damages to the tune of Rs. 25,000/- for mental tension and harassment caused to her due to adamant attitude of the opposite parties, alongwith litigation expenses.


2. The opposite parties in their reply to the allegations of the complainant, have not clearly denied their liability to pay Exchange Bonus to the tune of Rs. 10,000/-. They, however, tried to explain that delay in making the payment has been caused due to the reason that complainant failed to deliver all the requisite documents within time.


3. The complainant in order to establish the allegations, filed her affidavit Ex. C-1, copy of legal notice served upon the opposite parties Ex. C-2, postal receipts vide which legal notice was sent Ex. C-3 & Ex. C-4, copy of reply of legal notice Ex. C-5, l receipt Ex. C-6, copy of letter dated 10-02-2009 Ex. C-7 and copy of delivery receipt Ex. C-8.


4. The opposite parties instead of leading any evidence made the payment of Exchange Bonus amount of Rs. 10,000/- plus interest of Rs. 706/- to the complainant vide cheques dated 12-02-2009 and 25-02-2009 respectively.



5. It appears from the record that the complainant has received the Exchange Bonus of Rs. 10,000/- as per scheme of the opposite parties alongwith interest of Rs. 706/-. However, it appears from the record that the car was delivered to the complainant on 16th March 2008 and the opposite parties were required to pay Exchange Bonus of Rs. 10,000/- within a period of one month. As per affidavit of the complainant, she completed all the formalities as per requirements of the scheme for payment of the Exchange Bonus within a period of one month though it has not been accepted by the opposite parties in reply. However, it has not been specifically stated as to actually when the complainant complied with the formalities for payment of Exchange Bonus.

The complainant had to issue a legal notice Ex. C-2 and in reply Ex. C-5, instead of making payment, the opposite parties denied the claim of the complaint. Resultantly, the complainant had to file the present complaint on 6th January, 2009. The opposite parties only then moved to decide finally for payment of Exchange Bonus alongwith interest in favour of the complainant after filing of the present complaint meaning thereby that the opposite parties initially committed deficiency in service and made payment of the Exchange Bonus and interest after the complainant was forced to file complaint against them before this Forum.

The complainant, thus definitely not only put to unnecessary litigation expenses and to knock the door of this Forum for her redressal but also she was put to unnecessary mental tension, agony and unwarranted harassment by the act and conduct of the opposite parties. Therefore, the opposite parties are liable to pay adequate and reasonable charges to the complainant for unnecessary suffering mental tension and harassment etc., which we assess to the tune of Rs. 2,000/- and litigation expenses to the tune of Rs. 500/-.


6. For the aforesaid reasons, we accept the complaint and direct the opposite parties to pay to the complainant an amount of Rs. 2,000/- as compensation alognwith litigation expenses to the tune of Rs. 500/- within a period of 45 days from the date of receipt of copy of this order

I had purchased hyundai crdi verna car from kosmo hyundai jalandhar on oct2007 under warrnty period with the running of 28000km due to mechanical defect front and rear tyres worn out , now hyndai is agreed for compensation 10% for this loss , why i should bear rest of 75% and , what about future same existing problem in car , There is no assurance further it will not happen ,Despite reminding hyundai people are sielent , pl show me the right path for justice with me , Hyndai verna crdi car has become nightmare for me ,pl advice me
REGARDS

car regd no is PB36 E 0311
CUTOMER COMPLAINT ID TO HYUNDAI IS 1-26094947

Lakhbir singh

CELL NO 09815116115

Dr. Sukhjit Singh Bains aged 54 years s/o Sh Mohinder Singh r/o H.No.338/10, Vasant Vihar, Hoshiarpur.
Complainant
vs.

1.

Goyal Hyundi , Goyal Automotive Ltd., Tanda Road, Hoshiarpur through its General Manager.
2.

Goyal Hyundi, Goyal Automotive Ltd..G.T.Road, Paragpur, Jalandhar-144005 through its General Manager.
3.

Hyundi Motors India ( North Zone) A-30, Mohan Cooperative Industrial Estate, New Delhi-110044 through its Regional Manager.

Opposite parties

1.

The complainant namely Dr.Sukhjit Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant purchased i10 car (Hyundai) on 16.12.2007 for Rs.3,81,000/- from OP No.1. OP No.3 is the manufacturer. It is the case of the complainant that OP No.1 told him that thee is a facility to get the vehicle comprehensively insured , thus, he paid the premium amount through OP No.1 to OP No.4, who insured the car at the instance of OP No.1..
2.

It is the allegation of the complainant that no bill or invoice was issued to him. It is further the case of the complainant that immediately after the purchase of the said car, some problems developed as it produced lot of vibrations and jerky movements, missing on idle running on a long drive or on slow speed. The complainant after three days of the purchase of the vehicle brought the said defects to the knowledge of Service Manager and Mechanics of OP No.1 . The Mechanics of the OP No.1 tried to rectify the defects without maintaining any job card. It is further the allegation of the complainant that on 25,12,2007, he took the car to OP No.1..

The complainant was told that the necessary infrastructure and software have not been provided by OP No.3, so, the defects cannot be rectified. The complainant was advised to go to Jalandhar, as such, on 29.12.2007, he took the car to OP No.2 at Jalandhar Workshop, where the black coloured box fixed on the top of the engine was replaced with black coloured box of some other car, which was standing nearby . The complainant objected to it but he was told that new spare parts are not available, so, the black coloured box of some other car had been fixed in his car.
3.

It is further the allegation of the complainant that on way back to Hoshiarpur he experienced some problem in the car and information to this effect was given to the Service Manager of OP No.1, who told that the defect cannot be rectified as OP No.3 has not provided the floppy/data scanner. The complainant again approached OP No.1 on 2.1.2008. The complainant was told by the Service Manager that sensor of the engine was defective and need change in direction.

The complainant did not allow him to do so as the engine of the car was computerized and the OP No.1 had not the necessary infrastructure to rectify the defect. The Service Manager of OP No.1 asked the complainant to come after 4-5 days. The complainant again on 21.1.2008 took the car to OP No.1. The mechanics of the OP No.1 changed the black coloured box and recorded idle duty/RPM but could not rectify the defect. That on 26.1.2008, the complainant again took the car to OP No.1 but OP No.1 failed to rectify the defect.
4.

It is further the allegation of the complainant that the car is standing in his premises. The OPs have intentionally sold the defective car. The OP No.1 had also not issued the bill/invoice of the car and due to this, the complainant could not get the vehicle registered. The complainant made several calls and also wrote a letter to OP No.1 but no action was taken. The complainant has filed the present complaint with the prayer that the original invoice and other necessary documents be ordered to be supplied besides compensation of Rs. One lac.
5.

OPs Nos.1,2 filed the joint reply. Preliminary objection vis-a-vis maintainability, jurisdiction, concealment of material facts and non joinder and mis joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is denied that the complainant paid the insurance premium through OP No.1 to OP No.4. It is replied that at the time of the purchase of the car, the complainant requested for billing of 2008, as such, the bill of January,2008 was issued in his favour . It is denied that the car in question produces lot of vibrations and jerky movements and missing on idle running. That there is no defect in the said vehicle. It is also denied that the car stops at slow movement in heavy traffic.
6.

It is further replied that the complainant reported at the workshop of OP No.1 on 29.12.2007 to check engine misfiring , thus, engine tune was duly checked and no problem was detected in the vehicle. Thereafter, on 21.1.2008, the complainant visited the office of OP No.1 for free service. The complainant made a request to check the engine cut off at idle speed. , as such, the vehicle was checked alongwith scheduled first free service and nothing abnormal was found in the functioning of the car.

However, for the mere satisfaction of the complainant, the idle speed actuator was replaced, which controls RPM. It is denied that the said car is not in perfect running condition. It is denied that on 25.12.2007, the complainant took the car to OP No.1. It is also denied that the necessary infrastructure and software had not been provided by OP No.3. Infact, the complainant visited OP No.1 for the first time on 29.12.2007 with a complaint to check the misfiring. It is denied that the mechanics of OP NO.2 ever changed the black coloured box of the vehicle. It is also denied that complainant approached OP No.1 on 2.1.2008 and he was told by the Service Manager that the sensor of engine was defective and needs change in direction.
7.

It is further replied that the vehicle in question was taken to Kosmo Hynudai for second free service on 9.6.2008 with mileage of 5282 KM. The vehicle was delivered in perfect running condition. The vehicle has run 5282 KM within six months from the date of its purchase.
8.

OP No 3 filed a separate reply. Preliminary objection vis-a-vis cause of action, jurisdiction, concealment of material facts and non joinder of necessary parties were raised. On merits, the claim put forth by the complainant has been denied. It is replied that the complainant has filed the complaint with false allegations. The car in question was delivered in perfect condition to the complainant on 16.12.2007 without any technical or mechanical defect.

It is further replied that the complainant reported at workshop of Kosmo Hyundai at Nawanshehar on 22.4.2008 to check the engine misfiring. The necessary equipment for detection and rectification was not readily available at Nawanshehar, as such, the complainant was asked to take the vehicle to Jalandhar Workshop but he failed to do so. It is denied that the car in question produces lot of vibrations and jerky movements and missing on idle running. That there is no defect in the said vehicle. It is also denied that the car stops at slow movement in heavy traffic.
9.

It is further replied that as per information received from the dealer, the complainant reported at the workshop of OP No.1, firstly on 29.12.2007 to check engine misfiring , thus, engine tune was duly checked and no problem was detected in the vehicle. Thereafter, on 21.1.2008, the complainant visited the office of OP No.1 for free service. The complainant made a request to check the engine cut off at idle speed. , as such, the vehicle was checked and nothing abnormal was found in the functioning of the car. However, for the mere satisfaction of the complainant, the idle speed actuator was replaced, which controls RPM. It is denied that on 25.12.2007, the complainant took the car to OP No.1. It is also denied that the necessary infrastructure and software had not been provided by the replying OP. Infact, the complainant visited OP No.1 for the first time on 29.12.2007 with a complaint to check the misfiring.

It is denied that the mechanics of OP NO.2 ever changed the black coloured box of the vehicle. It is also denied that complainant approached OP No.1 on 2.1.2008 and he was told by the Service Manager that the sensor of engine was defective and needs change in direction. It is also denied that the vehicle was standing at the premises of the complainant. It is further replied that the vehicle in question was taken to Kosmo Hynudai for second free service on 9.6.2008 with mileage of 5282 KM. The vehicle was delivered in perfect running condition. The vehicle had run 5282 KM within six months from the date of its purchase.
10.

In order to prove the case, the complainant tendered in evidence his affidavits Ex.C-1, C-13, vehicle record sheet Mark C-2, delivery receipt Mark C-3, job card dated 29.12.2007 Mark C-4, job card dated 1.1.2008 Mark C-5, invoice Mark C-6, cash memo Mark C-7, letter dated 3.1.2008 Mark C-8, reply Mark C-9, postal receipts Mark C-10,C-11, letter dated 21.2.2009 Mark C-12, job card Mark C-14 and invoice Mark C-15 and closed the evidence.
11.

In rebuttal, the opposite parties Nos. 1,2 tendered in evidence affidavit of Ajay Handa Ex.OP-1, copy of courier receipt Mark OP-2 and copy of despatch register Mark OP-3 and closed the evidence. OP No.3 tendered in evidence affidavit of Navin Kumar Trivedi Ex. R-1, sale certificate Mark R-2, extract of warranty policy Mark R-3, repair order Mark R-4, reply to the letter Mark R-5, reply to the legal notice Mark R-6 and closed the evidence.
12.

The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
13.

Admittedly, the complainant purchased i10 car (Hyundai) on 16.12.2007 from OP No.1. It is the grouse of the complainant that no bill or invoice was issued to him. It is further the allegation of the complainant that immediately after the purchase of the said car, some problems developed as it produced lot of vibrations , missing on idle running on a long drive etc/ The complainant after three days of the purchase of the vehicle brought the said defects to the knowledge of Service Manager and Mechanics of OP No.1 . The Mechanics of the OP No.1 tried to rectify the defects without maintaining any job card. It is further the allegation of the complainant that on 25,12,2007, he took the car to OP No.1..

The complainant was told that the necessary infrastructure and software have not been provided by OP No.3, so, the defects cannot be rectified. That on the advise of OP No.1, the complainant took the car to OP No.2 at Jalandhar , on 29.12.2007 , where the black coloured box fixed on the top of the engine was replaced with black coloured box of some other car. The complainant was told that new spare parts are not available, therefore, the old black coloured box of some other car had been fixed in his car. It is further the allegation of the complainant that on way back to Hoshiarpur, he experienced some problem in the car and information to this effect was given to the Service Manager of OP No.1, who told that the defect cannot be rectified as the floppy/data scanner has not provided OP No.3. The complainant again approached OP No.1 on 2.1.2008 and he was told by the Service Manager that sensor of the engine was defective and need change in direction.

The complainant did not allow the Service Manager of OP No.1 to do so as the engine of the car was computerized and the OP No.1 had not the necessary infrastructure to rectify the defect. However, on 21.1.2008 ,the black coloured box was changed but other defects could not be rectified. It is further the case of the complainant that the OPs have intentionally sold the defective car and had also not issued the bill/invoice of the car and due to this, the complainant could not get the vehicle registered. The complainant has filed the present complaint with the prayer that the original invoice and other necessary documents be ordered to be supplied.
14.

Ld. Counsel for the complainant very fairly and squarely conceded during the course of arguments that form no.21 and 22 and duplicate bill/invoice of the car have been supplied during the pendency of the complaint.
15.

Admittedly, the complainant has not produced any expert evidence to prove that the vehicle has suffered any manufacturing defect. The evidence produced by the complainant is only with regard to minor repairs, which was carried out by OP No.1 and it has not been proved that there was any inherent or latent defect in the engine. In such like cases,it was held by the Hon'ble National Commission, that it is not a case where the order for the replacement of the car is to be passed as the complainant has failed to prove the manufacturing defect in the vehicle. Reliance placed on 2009 (II) CLT, 670, Vikram Bajaj vs. Hind Motors (India) Ltd. & another.
16.

The facts of the present case are almost similar to the case , referred to above, decided by Hon'ble National Commission.
17.

The complainant has produced Mark C-5, the repair order dated 21.1.2008, wherein it has been recorded that first free service/sometime engine cuts off at idl, the vehicle is under observation. Mark C-14 is also a repair order dated 22.4.2008, wherein it has been recorded that running repair, engine mis-firing . Ld. Counsel for the complainant argued that on the bottom of Mark C-14, the word “pending” has been written, therefore, it means that the defect with regard to mis-firing was not cured/rectified. Ld. Counsel for OP No.1,2 submitted that Mark C-14 did not pertain to them as the said repair order pertains to Kosmo Automobiles and Kosmo Automobiles is not a party to the lis. The argument of learned counsel for OP No.1,2 appears to be genuine as Mark C-14 does not pertain to OP No.1 and 2 and this repair order relates to Kosmo Automobiles, therefore, the complainant cannot draw any advantage from Mark C-14.
18.

The complainant has not produced any other evidence to prove the defects in the car except documents Mark C-5 and C-14. Vide Mark C-5, it was found that sometime engine cuts off at idl and the vehicle was kept under observation. It has already been stated in para supra that in place of taking the car to OP No.1 & 2 to rectify the defects, the complainant took the same to Kosmo Automobiles, therefore, OP No.1,2 cannot be blamed and it was for the complainant to take the vehicle to OP No.1 & 2 with the request to rectify the defect of “ engine cuts off at idl”. The complainant has not produced any other evidence on the file nor anything else was argued or urged to prove any inherent defect in the car in question.
19.

The matter does not rest here. The close scrutiny of Mark C-5 makes it clear that on 21.1.2008, the vehicle had run the mileage of 1244 KM. Mark C-6 shows that the vehicle had run the mileage of 4462 KM on 22.4.2008 and Mark C-7 proves that the vehicle had run the mileage of 5282 KM on 9.6.2008. It means that within the span of 4-1/2 months, the vehicle had run about 4040 KM. Since the vehicle has covered about 4040 KM within the span of 4-1/2 months, therefore, it can safely be concluded that the complainant has failed to prove any manufacturing defect/ major defect in the vehicle .

The defects like engine cuts off at idl and engine mis-firing are minor defects , which sometimes occur in the vehicle because of driving habits of the person, who drives the vehicle, therefore, it cannot be said that the vehicle in question is suffering from manufacturing or inherent defect as the vehicle has run about 4040 KM within a period of 4-1/2 months.
20.

OP No. 3 has raised the plea that the car in question was delivered in perfect condition to the complainant on 16.12.2007 without any technical or mechanical defect. It is denied that the car in question produces lot of vibrations etc.. The vehicle in question was checked and nothing abnormal was found in the functioning of the car. However, for the mere satisfaction of the complainant, the idle speed actuator was replaced,
21.

Ld. Counsel for OP No.3 raised the argument that OP No.3 deals with OP No.1 & 2 on the basis of principal to principal, therefore, no liability can be fastened upon him . More so, the car was delivered to the complainant by OP No.1,2 in perfect condition. It was also argued that there is no manufacturing or inherent defect in the vehicle. Ld. Counsel for the complainant has not countered the said argument raised by learned counsel for OP No.3 .
22.

As a result of the above discussion, it is held that the complainant has failed to prove any manufacturing or inherent defect in the vehicle. Since form no.21 and 22 had been supplied to the complainant during the pendency of the complaint, therefore, the complainant is certainly entitled for the compensation and litigation costs, which are assessed at Rs. 1000/- to be paid by the OP No.1 & 2 to the complainant within one month from the receipt of copy of the order. However, OP No.1 & 2 are directed to rectify the defect in the vehicle during the guarantee/warranty period.

V.M. Ramesh,

S/o. Late Motaiah,

Aged 52 years,

Old Siddapura Road,

Madikeri.



OPPOSITE PARTIES:



1. The Manager,

Advaith Motors,

No.14/5, IAH Towers,

JLB Road, Laxmipuram,

Mysore.



2. The Marketing and Sales Officer,

South Regional Officer,

Hundai Motor India Limited

NO-54, Development plot,

Thiru-va-ka-Industrial Estate,

Ekkaduthangal,

Guindy- Chennai.


O R D E R



Briefly stated the case of the complainant is as follows;



1. That the Hundai motor manufacturing company represented by one of its officer one Sri. Aravind Saxena has given a statement in the Kannadaprabha Daily dated 11-10-2008 that the Hondai motor company would give incentive (reduction in price) of Rs.31,000/- to all the Central and State Government employees who purchases any model of Hundai car. The complainant is a State Government employee being attracted by the above statement in the Kannadaprabha daily dated 11-10-2008 under the caption (“š®Š®N¯‹ w¹N®Š®‹Sµ œ®±0lµ¶x0u® ïýµ°Ç® u®Š® N®mq®u® By®Š¬””) has contacted one Sri. Vinod the representative of the Advaith motors in Kodagu District. 1st opposite party i.e. Advaith motors is the authorized dealer of the Hundai motors for Mysore and Kodagu District who is also having service centre in Madikeri and Virajpet.


The said Vinod also reaffirmed the offer of the company. That again the complainant has contacted the 1st and 2nd opposite parties over phone regarding the offer put forth by the Hundai Motors. They also promised the complainant that a reduction of Rs.31,000/- will be given to the complainant in the event of purchase of Hundai vehicle. That believing the words of the opposite parties the complainant has booked a Santro 5 door (DLI 1.1), N/ACEIII Car a product of Hundai Motors and paid an advance of Rs.10,000/- on 25-11-2008, the actual price of the car is Rs.2,57,054/- as per the invoice number 803 dated 30-10-2008.



2. That the complainant has paid in all Rs.2,88,514/-



3. The actual amount payable to the

opposite party no.1 –Rs.2,57,054.

The excess amount received by the 1st opposite

Party from the complainant - Rs. 31,460.

The incentives offered by the opposite

party and the entitled to be received by

the complainant is - Rs. 31,000.

The total amount the opposite parties

due to pay the complainant is -Rs. 62,460.

The interest at the rate of 12% p.a. from

November 2008 to April 2009 Rs. 3,435.

Total amount payable to the complainant

by the opposite parties is Rs.65,895.



4. That what ever amount was paid to the opposite parties was paid through cheque and DD drawn on State Bank of India Madikeri Branch and sent to the 1st opposite party through the representative Sri. Vinod.



5. That the opposite parties are jointly and severally liable to pay Rs.65,895/- to the complainant.



6. That the opposite parties have neither replied the letter nor paid the amount as demanded and as such legal notice was got issued on 7-2-2009 calling upon the opposite parties to pay the amount stated above.



7. The complainant has produced the following documents;



1. The true copy of the Kannadaprabha daily dated 11-10-09

2. True copy of the invoice No.803 dated 30-10-08

3. Sale certificate dated 4-11-08

4. True copy of the receipt dated 30-10-08

5. True copy of the receipt dated 11-11-08

6. Order form dated 25-10-2008

7. Letter dated 7-1-2008

8. Legal notice dated 7-2-2008

9. Postal receipts and acknowledgments



8. After admitting the complaint notice was sent to O.P 1 being the Manager, Advaith Motor, Lakshmipuram, Mysore O.P 2 being the Marketing and Sales Officer, South Regional Officer, Hundai Motor India Limited, Chennai.



9. On receipt of the notice from the Forum both the opposite parties have appeared through their advocates and taken contentions as shown below;



The defense taken by O.P 1 is as follows;



1. That the complaint is not maintainable either in law or on facts as the complainant has foisted false claim against O.Ps without proper grounds.



2. That it is true that one Sri. Arvind Suxena representative of Hundai Motors has given a statement in Kannadaprabha daily dated 11-10-2008 with regard to the benefit offered by the 2nd opposite party, to Government employees who purchase Hundai Car that the incentive is given up to Rs.31,000/-, but the complainant has not properly understood the statement appeared in the Kannadaprabha daily properly. The incentive varies between the model of cars from Rs,10,000/- up to Rs.31,000/- but the complainant is under the impression that the incentive of Rs.31,000/- is offered to all models of the car. However the complainant is entitled to Rs.17,000/- only as he has purchased Santro non AC car as per the scheme under the caption “ Hundai – SBI – Government employees scheme”.



3. That it is not correct to say that the complainant has contacted the opposite parties over phone with regard to the offer put forth by the 2nd opposite party and the 1s opposite party promised the complainant that a reduction of Rs.31,000/- would be given to the complainant in the event of purchase of Hundai vehicle.



4. That Sri Vinod explained the scheme offered by the 2nd opposite party to the complainant in detail.



5. That the calculations made by the complainant in para 4 is a distorted version of truth. That the 1st opposite party has not claimed the excess amount of Rs.31,460/- as alleged by the complainant. The complainant has suppressed the true and correct facts while making averments in the complaint with a view to gain unlawfully. That the complainant is not entitled for the incentives of Rs.31,000/-. The complainant has produced a paper cutting dated 11-10-2008, but in that paper cutting the incentive ranges from Rs.10,000/- to 31,000/- depending upon the model of the car. Since the complainant has purchased Santro non AC car is entitled for Rs.17,000/- only which is evidenced in the photo copies of the scheme which is enclosed as annexure 4. The range of concision starts from Rs.17,000/- and up to Rs.31,000/-.



6. That it is admitted that the complainant has paid a total sum of Rs.2,88,514/- as detail below to the 1st opposite party.



i) Rs.10,000/- paid on 25-10-2008 at the time of booking the car.

ii) Rs.2,65,914/- on 30-10-2008 vide receipt No.5605.

iii) Rs.12,600/- on 11-11-2008 at the time of taking delivery of the car.



7. That the 1st opposite party at the instructions of complainant has made certain alteration in the car and further additional accessories have been provided to the car for which the complainant is liable to pay and the total expenses of the car is Rs.2,89,310/- as detailed hereunder.



i) cost of car (ex-show room price)

after providing discount of Rs.10,788/-

as per annexure –II Rs.2,57,054



ii) Insurance Rs.0,07,971

iii) Spoiler-spares Rs.5,344.23

Rs.0,668.00

Rs.0,200.00

Rs.0,024.72

-------------- Rs.0,06,237

iv) Remove & refix of frt &

Rr bumper rear bumper Rs.0,500.00

Painting charges Rs.4,000.00

Rear spoiler painting

Charges Rs.1,333.00

80% point charges

@ 12.5% VAT Rs.0,533.00

20% labor charges@

10.36% Rs.0.194.00

---------------- Rs.0,06,560.00

v) Temporary road tax Rs.0,00,700.00

vi) Accessories

1 Kenwood MP3 player Rs.5,777.25

Speaker decibel Rs.0,799.10

Wrg horness RCL Rs.2,060.14

Wrg horness CTR-Lock Rs.0,412.44

Rubber mat kit who boot

Mat Rs.0,540.30

VAT 12.5% Rs.1,198.65

-------------------- Rs.0,10,788-00

=============

Total amount payable by the complainant Rs.2,89,310-00

=============



8. That the 1st opposite party denies the allegation that Rs.31,460/- excess amount received from the complainant. On the other hand 1st opposite party received excess amount of Rs.3,803/- which has been paid to the complainant as per the calculation furnished below;



i) Amount received from the complainant Rs.2,88,514

ii) Corporate bonus extended by 1st O.P Rs. 4,000

iii) VAT discount Rs. 599

Total amount Rs.2,93,113

Total amount payable by

Complainant Rs,2,89,310

Amount refunded to the

Complainant Rs. 3,803



9. As per the above calculation the complainant is entitled to receive Rs.3,803/- only.



10. That as per the detail furnished by the O.P 2 the customer is not eligible for any other market offer except exchange and royalty as applicable as per clause 7 of annexure 4.



11. The 1st opposite party has already extended the following benefit to the complainant.



a) Discount extended ex-showroom price of manufacturer and invoice raised

by the O.P Rs.10,788-00



b) Corporate Bonus Rs. 4,000-00

-----------------

Rs.14,788-00

============



12. That the 1st opposite party has not committed any deficiency in service on their part and as such the complainant is not liable to pay a sum of Rs.65,895/- as claimed by the complainant.



13. For the foregoing reasons 1st opposite party pray for dismissal of the complaint.



The defense taken by O.P 2 is as follows;



1. That the complaint filed by the complainant is misconceived and is based on false allegations and there is no cause of action against opposite party no.2.



2. That Hundai Motor India Limited being opposite party no.2 denies each and every allegations made in the complaint and the complaint is filed to gain undue publicity and to bring disrepute to the company.



3. That the omission by error if any that is committed by the dealer concerned while retailing/ servicing the car to its customers is the sole responsibility of the concerned dealer but the liability of the opposite party no.2 is limited and restricted to its warranty obligations alone.



4. That the present complaint if any does not lie against the opposite party no.2 and as such O.P 2’s name may be deleted from the array of parties.



5. That the complainant has not raised any issue regarding the performance of the car and with regard to the manufacturing validity of the car.



6. As per the information gather from O.P 1 the scheme offered to Government employees has been well explained by the representative of O.P 2, as such every allegation of the complaint pertains to communication between complainant and opposite party no.1 and O.P 2 had not given any advertisement as alleged by the complainant.



7. That complainant has misunderstood the statement as the incentives varies from Rs.10,000/- up to Rs.31,000/- depending upon the model of cars, but as per the information furnished by O.P 1 the complainant is entitled to the concession of Rs.17,000/- only and the corporate incentives of Rs.4,000/- has been given by O.P 1 to the complainant as per the prevailing scheme of the company.



8. That it is denied that O.P 1 and 2 are liable to pay Rs.31,000/- to the complainant.



9. That it is denied that in all the opposite parties are liable to pay a sum of Rs.65,895/- to the complainant.



10. That the information furnished by opposite party no.1 to this O.P reveal that O.P 1 has charged the complainant for putting accessories to the car and for painting as detailed in the version of O.P 1.



11. That the complainant has received the extra amount received from him by O.P 1 and nothing is due from either O.P 1 or O.P 2 and as such the complaint is liable to be dismissed.



14. Having regard to the averments made in the complainant and defence taken by the O.P 1 and 2 the following issued arise for determination;



1. Whether O.P 1 and 2 have committed deficiency in service on their part?



2. To what order?


R E A S O N S



15. As regard the payment made to the opposite party no.1 is concerned there is no dispute and with regard to the booking of the car there is no dispute as such, but the dispute is with regard to the concession offered and the extra fittings given by O.P 1.



16. The opposite party no.1 has clearly mentioned about the cost of the car the insurance paid and spare parts fitted to the car and the painting carried out and the accessories given to the complainant and admittedly O.P 1 has stated that he has received Rs.2,88,514/- and the corporate bonus extended by 1st opposite party is Rs.4,000/- VAT discount Rs.599/-. Thus from the amount paid by the complainant total amount payable by the complainant is deducted, the amount refundable to the complainant is Rs.3,803/-. Therefore, the calculation made by O.P 1 demonstrate, that the complainant is not liable to receive excess amount of Rs.31,460/- but on the other hand the complainant is entitled to receive Rs.3,803/- and the amount has already been refunded by the 1st opposite party to the complainant.


It is made clear in para 13 of the version of O.P 1 that discounts extended ex-show room price of manufacturer and invoice raised by the opposite party is Rs.10,788/- and the corporate bonus extended to complainant is Rs.4,000/- and in all it comes to Rs.14,788/-.



17. Opposite party no.1 has taken a definite stand that the cost of the car is Rs.2,57,054/- as per the invoice raised by the complainant and apart from this O.P no.1 has paid insurance amount of Rs.7,971/- and the cost of the spoiler spares comes to Rs.6,237/-. The removal and refix of several parts and the cost of the rear bumper is shown as Rs.500/- and painting charges is shown as Rs.4,000/- and rear spoiler painting charges is shown as Rs.1,333/- 12% VAT charges Rs.533/-. 20% labour charges at the rate of 10.36% is shown as Rs.194/-. In all it comes to Rs.6,560/-.


It appears O.P 1 has paid temporary road tax of Rs.700/- and accessories like Kenwood MP3 player, Speaker decibel, WRG Harness RCL Rs.2,060.14 WRG Harness CTR-Lock Rs.412.44, Rubber mat kit Rs.544.30, VAT 12.5% Rs.1,198.65. In all the accessories comes to Rs.10,788/-. Thus the total amount payable by the complainant is Rs.2,89,310/- and the amount paid by the complainant is Rs.2,88,514/-. Hence, the amount refundable to the complainant is Rs.3,803/- apart from the cheque for Rs.2,212/- tendered during the pendency of the proceedings. However the complainant has received in all six thousand and fifteen from O.P.1.



18. The complainant has averred in his complaint that apart from what is already paid by him he has paid towards insurance, spoiler spares, removing and refix of several parts, temporary road tax and accessories, therefore, he is entitled to get that amount from O.P 1. But for having paid so the complainant has not placed any materials before the Forum.


It is for the person who alleges deficiency in service to establish as to how the opposite party has failed to pay the amount paid by him and what all amount paid by him apart from paying what he has paid i.e., amount of Rs.2,88,514/- and how the opposite parties have committed deficiency in service on their part, but the complainant has failed to establish the same and on the basis of calculation made the complainant entitled to Rs.3,803/- which has been received by the complainant during the pendency of the proceedings and hence he is not entitled for more than what is received by him.



19. It is pertinent to note at this juncture that the opposite party no.1 and 2 have failed to respond immediately to the notice issued by the complainant and they have not paid the amount for which the complainant is entitled as per the calculation made by them and have unnecessarily driven the complainant to the Forum by making the complainant to spend money in this regard. Therefore, we are of the considered opinion that O.P 1 and 2 have committed deficiency in service and therefore we answer point no.1 positively.



20. Having given the finding as above opposite party no.1 and 2 are to be directed to pay compensation for complainant being put to hardship and mental agony all these days and therefore, the complainant is to be suitably compensated and for having made the complainant to incur expenditure to approach the Forum to seek his grievances rederessed. O.P 1 and 2 are liable to pay the court cost.



21. With the above observation we proceed to pass the following order.


O R D E R



The complaint is partly allowed. The opposite parties no.1 and 2 are hereby directed to pay the compensation of Rs.1,000/- and the court cost of Rs.1,000/- to the complainant.



The above order shall be complied within sixty days from the date of receipt of this order by the opposite parties.



Communicate the order to the parties.

M.Ravi,

S/o.K.A.Krishnankutty,

No.12, 'Saranya',

TKV Nagar Bank Colony,

Kalmandapam,

Palakkad – 678001. - Complainant



Vs


1. The Branch Head,

KTC Automobiles (P) Ltd.,

Vithuni Road,

Nurani, Palakkad.






2. The Deputy General Manager,

KTC Automobiles (P) Ltd.,

Guruvayoor Road,

Poonkunnam, Thrissur.






3. The Regional Head,

M/s.Hyundai Motors India Ltd.,

South Regional Office,

Chennai 600032.






4. The CEO,

M/s.Hyundai Motors India Ltd.,

A30, Mohand Co-op Industrial Estate,

Phase I, Madhm Road,

New Delhi 44. - Opposite parties.






O R D E R





Complainant purchased a car on 02/07/2007 from the opposite party No.2 through 1st opposite party, who is the service centre of 2nd opposite party at Palakkad. At the time of purchase opposite party offered an exchange bonus of Rs.10,000/- which according to the complainant was the main reason for the purchase. Advertisement offering the exchange bonus was published in Malayala Manorama daily dtd.15/03/2008. Relevant documents for claiming the exchange bonus were submitted with the dealer. So far complainant has not received any amount. Hence the complaint.




2. All opposite parties entered appearance and filed version. According to opposite parties 1 and 2, the claim received from the complainant was duly forwarded to the 4th respondent. According to 1st and 2nd opposite parties, exchange bonus is an offer made by the manufacturer, the release of which and has to be decided by the manufacturer alone. 4th opposite party disallowed the claim as it was found that the complainant was not eligible for the same.



3. According to the contentions of opposite parties 3 and 4, complainant is not entitled for the exchange bonus. As per the policy of exchange, complainant has to transfer his old vehicle within 60 days of invoice of the new car. Transfer of the old car prior to the invoicing of the new car would make the customer ineligible for the exchange bonus. According to them, in the present case, as per the information available from the retailing dealer, complainant sold his old vehicle on 10/05/2007. Complainant purchased the new Hyundai Santro XL on 02/07/2007 from opposite parties. Hence complainant is not eligible for exchange bonus. Complainant's e-mail letters were duly replied by the opposite parties. No such lawyer notice as stated by the complainant was received by the opposite parties. As the complainant is not eligible for the same, there is no deficiency in service on the part of opposite parties.




4. Complainant filed affidavit. Exts.A1 to A5 marked. Opposite parties filed affidavit. Ext.B1 to B4 marked.




5. Issues for consideration are;

1.

Whether there is deficiency in service on the part of opposite parties?
2.

If so, what is the reliefs and costs?




Point No.1:

6. The question to be decided is whether the non payment of exchange bonus by the opposite parties amounts to deficiency in service on their part. We have carefully gone through all the relevant documents on record and heard both parties in detail.




7. Induced by an advertisement published by 1st opposite party in the Malayala Manorama daily dtd.15/03/2008, complainant decided to purchase the vehicle. Advertisement published which is marked as Ext.A2 does not reveal the terms and conditions of exchange bonus. The reason stated by the opposite parties for non payment of exchange bonus is that the complainant did not satisfy the eligibility conditions for availing the bonus. Whether the relevant information regarding the terms and conditions of the exchange bonus is made known to the complainant at the time of purchase of the vehicle is a relevant fact. Opposite parties has not adduced any evidence regarding this aspect. Going through the relevant documents produced by the complainant, it can be seen that the complainant has submitted all the required documents together with the undertaking for exchange bonus.


Complainant has stated the date of sale of his old car in the said undertaking which is marked as Ext.A3. Nothing has been concealed by the complainant in the said undertaking. Opposite parties has no case that complainant concealed the fact that the vehicle was sold prior to the purchase of the new car. Opposite parties 1 and 2 accepted the whole documents together with the undertaking for exchange bonus wherein it is specifically stated that Rs.10,000/- shall be released within 30 days of submission of the documents. Here it is relevant to note that in Ext.A3 (undertaking for exchange bonus), inter alia nothing is mentioned regarding the time stipulated for transfer of old vehicle.




8. From the available evidence on record, it can only be inferred that 1st and 2nd opposite parties made believe the complainant that he is eligible for the exchange bonus and thereby induced him to buy a new vehicle. Clearly it amounts to unfair trade practice and deficiency in service on the part of 1st and 2nd opposite parties.




9. According to 3rd and 4th opposite parties, in Ext.B1, guidelines to the dealer regarding the terms and conditions of exchange bonus it is specifically stated that the old vehicle is to be sold within 60 days of the invoice of the new vehicle. Knowing this fact well in advance 1st and 2nd opposite parties caused the complainant believe that he is eligible for the offer. It is true from the records that complainant is not eligible for the exchange bonus. But the act of 1st and 2nd opposite parties in not disclosing the same amounts to deficiency in service on their part.

10. In view of the above discussions we are of the view that 1st and 2nd opposite parties are liable to compensate the complainant for the deficiency in service on their part. There is no deficiency in service on the part of 3rd and 4th opposite parties as they have acted as per rules. Hence they are exonerated from liability.



11. In the result complaint allowed. 1st and 2nd opposite parties directed to pay an amount of Rs.7,000/- (Rupees Seven thousand only) as compensation to the complainant and Rs.1,000/- (Rupees One thousand only) as cost of the proceedings. Order shall be complied within one month from the date of receipt of the order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realisation.




12. Pronounced in the open court on this the 14th day of August, 2009

Vinod Jain Proprietor of M/s Kay Jay Knitwears, 51-D, Sunder Nagar, Opposite Ritambra School, Ludhiana-141008.



…..Complainant.

Versus



1- M/s Pioneer Hyundai Motors, MRG Auto Limited, G.T. Road, Sherpur, Ludhiana, through its Managing Director.

2- M/s Hyundai Motors India Ltd., Sriperumbuder Taluk, Kancheepuram, through its Managing Director/Manager.

3- Sh. Neeraj Kohli, National Customer Relations Manager, Hyundai Motors India Ltd. A-30, Mohan Co-operative, Industrial Estate , Mathura Road, New Delhi, 110044.

…..Opposite parties.






O R D E R









1- Influenced by advertisement published by opposite party in various newspapers, proving free insurance, free registration, accessories and exchange bonus of Rs.10,000/-, complainant purchased Santro Car from opposite party no.1, manufactured by opposite party no.2. At the time of purchase, one Sandeep Sood official of opposite party no.1 referred price of the car to be Rs.3,54,333/- and that it was inclusive of free registration, free insurance, free MP players, accessories etc. Complainant instead of free insurance, with understanding of opposite party no.1, obtained alloy wheels, by paying Rs.1000/- extra.


A cheque of Rs.3,55,333/-for purchase of Santro car, was issued to opposite party no.1 and obtained receipt dated 7.5.2008.. Invoice was promised to be issued after some days and that exchange bonus would be provided after sale of previous car by the complainant. He was astonished on receipt of invoice dated 12.5.2008, to see that price of the car was mentioned Rs.3,32,333/- only. Thus, Rs.22,000/- in excess of the actual price of the car, were obtained from him by opposite partryno.1, by resorting to unfair trade practice. Hence, issued letter dated 2.6.2008, which through e-mail, was replied by opposite party no.3. But never complied with his letter. Hence, sent reminder dated 11.6.2008 which was replied by opposite party no.3, vide reply dated 23.6.2008, promising to take action. But failed to take any action.


Then sent notice dated 9.7.2008 to refund excess amount with interest, to which they paid no heed. Further grievance of the complainant that he was entitled to exchange bonus of Rs.10,000/- after sale of previous car and that claim was also not cleared, despite transfer of the vehicle and providing copy of RC of the transferred vehicle to the opposite party. Therefore, is also entitled to refund of exchange bonus Rs.10,000/- alongwith Rs.22000/- taken in excess from him. Has also sought compensation of Rs.50,000/- for mental tension, agony and litigation costs of Rs.11000/-.

2- Opposite party no.1 in reply, claimed that car was purchased by the complainant for commercial purpose, so not empowered to file complaint, which is false. They have admitted sale of vehicle to the complainant, at its actual price Rs.3,54,333/-. This was price of the car fixed by the manufacturer, opposite party no.2. They never resorted to unfair trade practice, by charging more price from the complainant. The cost of benefits was to be borne by the dealer.


Benefits of Alloy wheels, stereo, in lieu of free insurance, free registration and accessories, costing Rs.22000/- were provided to the complainant. As such, invoice of Rs.3,32,333/- was issued after adjusting the cost. Further claimed the exchange bonus was to be given by opposite party no.2, after completion of formalities as per terms and conditions, by the complainants. But his claim for exchange bonus was rejected by opposite party no.2, due to non submission of documents, information, within prescribed time. So, there is no deficiency in service on their part and complaint deserves dismissal.

3- Opposite parties no.2 & 3 in their reply, have also prayed for dismissal of complaint, on ground that there is no deficiency in service on their part. The car was purchased in perfect running condition by the complainant, through their dealer and they are not responsible for acts of the dealer. Under exchange bonus scheme, complainant was required to furnish a new Hyundai car invoice, old car RC before transfer in the same name and old car RC after transfer in the name other than that of blood relation. It was mandatory for the complainant, to have made available those documents within 120 days from the date of invoice of new car, but complainant failed to comply therewith, within aforesaid requisite period, to make him legible for exchange bonus. Hence, same wasn’t given to him.

4- Parties adduced evidence in support of their respective claims and stood heard through their respective counsels.

5- Two points stand raised in this complaint. First is whether opposite party resorted to unfair trade practice, by realizing Rs.22000/- in excess qua price of Santro car from the complainant and second is whether they defaulted in fulfilling promise to pay exchange bonus of Rs.10000/- to the complainant and consequently, would be guilty of resorting to unfair trade practice.

6- As far as first point is concerned, no doubt, complainant for purchase of the car, vide receipt dated 7.5.2008, paid Rs.3,55,333/- to opposite party no.1, who subsequently, issued invoice Annexure-1 of Rs.3,32,333/- in his favour. Therefore, argued that by issuing invoice of Rs.3,32,333/-, despite charging Rs.3,55,333/- from him, opposite party resorted to unfair trade practice, by charging Rs.22000/- in excess from him.

7- Whereas opposite party have taken defence that actual price of the car was Rs.3,55,333/- as taken from the complainant and this was also price of new car fixed by manufacture opposite party no.2. Invoice of Rs.3,32,333/- was issued, after adjusting cost of free items and accessories such as MP Player, RC, Alloy wheels and other accessories. Ex.R4 is the copy of price list of opposite party qua price of the vehicle, manufactured by them, effective from April, 2008. In it, price of Santro GLS is mentioned Rs.3,54,333/-. It was this price inclusive of Rs.1000/- as extra cost of alloy wheels received by opposite party no.1 under receipt Ex.R1 from the complainant. So, we feel that if invoice was issued for lesser amount, opposite party no.1 can not be accused of resorting to unfair trade practice. Because they adjusted the price of such items supplied free of cost to the complainant. On this account, no fault on part of opposite party, can be found.

8- Now coming to second dispute of non payment of exchange bonus of Rs.10000/-. Exchange bonus as per defence, was payable on production of RC of the newly purchased vehicle, as well as old vehicle sold to third person and providing the same to opposite party no.2, within 120 days of purchase of new vehicle. Such condition as relied by opposite party in defence, does not find mention in their newspaper advertisement, copy of which is Ex.C1. Had only specified entitlement of the purchaser of the vehicle, for free insurance, registration and exchange bonus of Rs.10000/-. In the instant case, the vehicle was purchased on 7.5.2008. Even if defence of opposite party no.2 is accepted, it would mean that by 7.8.2008, complainant was required to fulfill requirement of providing RC of new and old vehicle to opposite party no.2. Complainant has brought on record, letter Ex.C24 dated 21.7.2008, addressed to opposite party no.1. This letter reads as under:-

“Regarding your exchange bonus scheme on purchase of new car, herewith, I am giving you the copy of transferred RC and related copy of affidavit, which were required by you for the processing of no claim bonus amounting to Rs.10000/-.

So, please process my exchange bonus refund as early as possible.



9- So, it means under this letter, complainant produced to opposite party on 21.7.2008,copy of transferred RC and related copy of affidavit, for processing his no claim bonus amounting to Rs.10000/-. This letter on the same day, was received by opposite party no.1, who received the same after putting stamp and signing the copy. As such, RC of the vehicle, affidavit and documents were made available, by the complainant to opposite partry no.1 on 21.7.2008.


This he did within 120 days time. Complainant had purchased the vehicle from opposite party no.1 and only could have lodged free bonus claim from opposite party no.1. So, it was for opposite party no.1 to have referred those documents to manufacturer opposite party no.2, to honour the promise of exchange bonus of Rs.10000/-, but they failed to do so. Consequently, complainant was at pains, to issue registered letters Ex.C4, Ex.C9 and Ex.C10 to opposite parties and thereafter, served legal notice Ex.C21. Though opposite party replied certain letters vide reply Ex.C20 and Ex.C9.But his grievances were never met or explained.

10- It appears in these circumstances that opposite party failed despite fulfillment of the condition by the complainant, to pay exchange bonus ofRs.10000/- in his favour. By not doing so, opposite party no.2 certainly would be guilty of resorting to unfair trade practice. Because complainant had made available RC and affidavit of the old vehicle to opposite party no.1, who received it on behalf of opposite partyno.2.

11- As a result, for deficiency ins service on part of opposite parties, we partly allow this complaint against opposite party no.2, directing them to pay exchange bonus of Rs.10000/- to the complainant and also direct to pay compensation of Rs.5000/- and litigation costs of Rs.2000/, within 45 days of receipt of copy of order. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

Vinod Jain Proprietor of M/s Kay Jay Knitwears, 51-D, Sunder Nagar, Opposite Ritambra School, Ludhiana-141008.



…..Complainant.

Versus



1- M/s Pioneer Hyundai Motors, MRG Auto Limited, G.T. Road, Sherpur, Ludhiana, through its Managing Director.

2- M/s Hyundai Motors India Ltd., Sriperumbuder Taluk, Kancheepuram, through its Managing Director/Manager.

3- Sh. Neeraj Kohli, National Customer Relations Manager, Hyundai Motors India Ltd. A-30, Mohan Co-operative, Industrial Estate , Mathura Road, New Delhi, 110044.

…..Opposite parties.






O R D E R









1- Influenced by advertisement published by opposite party in various newspapers, proving free insurance, free registration, accessories and exchange bonus of Rs.10,000/-, complainant purchased Santro Car from opposite party no.1, manufactured by opposite party no.2. At the time of purchase, one Sandeep Sood official of opposite party no.1 referred price of the car to be Rs.3,54,333/- and that it was inclusive of free registration, free insurance, free MP players, accessories etc. Complainant instead of free insurance, with understanding of opposite party no.1, obtained alloy wheels, by paying Rs.1000/- extra.


A cheque of Rs.3,55,333/-for purchase of Santro car, was issued to opposite party no.1 and obtained receipt dated 7.5.2008.. Invoice was promised to be issued after some days and that exchange bonus would be provided after sale of previous car by the complainant. He was astonished on receipt of invoice dated 12.5.2008, to see that price of the car was mentioned Rs.3,32,333/- only. Thus, Rs.22,000/- in excess of the actual price of the car, were obtained from him by opposite partryno.1, by resorting to unfair trade practice. Hence, issued letter dated 2.6.2008, which through e-mail, was replied by opposite party no.3. But never complied with his letter. Hence, sent reminder dated 11.6.2008 which was replied by opposite party no.3, vide reply dated 23.6.2008, promising to take action. But failed to take any action.


Then sent notice dated 9.7.2008 to refund excess amount with interest, to which they paid no heed. Further grievance of the complainant that he was entitled to exchange bonus of Rs.10,000/- after sale of previous car and that claim was also not cleared, despite transfer of the vehicle and providing copy of RC of the transferred vehicle to the opposite party. Therefore, is also entitled to refund of exchange bonus Rs.10,000/- alongwith Rs.22000/- taken in excess from him. Has also sought compensation of Rs.50,000/- for mental tension, agony and litigation costs of Rs.11000/-.

2- Opposite party no.1 in reply, claimed that car was purchased by the complainant for commercial purpose, so not empowered to file complaint, which is false. They have admitted sale of vehicle to the complainant, at its actual price Rs.3,54,333/-. This was price of the car fixed by the manufacturer, opposite party no.2. They never resorted to unfair trade practice, by charging more price from the complainant. The cost of benefits was to be borne by the dealer. Benefits of Alloy wheels, stereo, in lieu of free insurance, free registration and accessories, costing Rs.22000/- were provided to the complainant. As such, invoice of Rs.3,32,333/- was issued after adjusting the cost. Further claimed the exchange bonus was to be given by opposite party no.2, after completion of formalities as per terms and conditions, by the complainants. But his claim for exchange bonus was rejected by opposite party no.2, due to non submission of documents, information, within prescribed time. So, there is no deficiency in service on their part and complaint deserves dismissal.

3- Opposite parties no.2 & 3 in their reply, have also prayed for dismissal of complaint, on ground that there is no deficiency in service on their part. The car was purchased in perfect running condition by the complainant, through their dealer and they are not responsible for acts of the dealer. Under exchange bonus scheme, complainant was required to furnish a new Hyundai car invoice, old car RC before transfer in the same name and old car RC after transfer in the name other than that of blood relation. It was mandatory for the complainant, to have made available those documents within 120 days from the date of invoice of new car, but complainant failed to comply therewith, within aforesaid requisite period, to make him legible for exchange bonus. Hence, same wasn’t given to him.

4- Parties adduced evidence in support of their respective claims and stood heard through their respective counsels.

5- Two points stand raised in this complaint. First is whether opposite party resorted to unfair trade practice, by realizing Rs.22000/- in excess qua price of Santro car from the complainant and second is whether they defaulted in fulfilling promise to pay exchange bonus of Rs.10000/- to the complainant and consequently, would be guilty of resorting to unfair trade practice.

6- As far as first point is concerned, no doubt, complainant for purchase of the car, vide receipt dated 7.5.2008, paid Rs.3,55,333/- to opposite party no.1, who subsequently, issued invoice Annexure-1 of Rs.3,32,333/- in his favour. Therefore, argued that by issuing invoice of Rs.3,32,333/-, despite charging Rs.3,55,333/- from him, opposite party resorted to unfair trade practice, by charging Rs.22000/- in excess from him.

7- Whereas opposite party have taken defence that actual price of the car was Rs.3,55,333/- as taken from the complainant and this was also price of new car fixed by manufacture opposite party no.2. Invoice of Rs.3,32,333/- was issued, after adjusting cost of free items and accessories such as MP Player, RC, Alloy wheels and other accessories. Ex.R4 is the copy of price list of opposite party qua price of the vehicle, manufactured by them, effective from April, 2008. In it, price of Santro GLS is mentioned Rs.3,54,333/-. It was this price inclusive of Rs.1000/- as extra cost of alloy wheels received by opposite party no.1 under receipt Ex.R1 from the complainant. So, we feel that if invoice was issued for lesser amount, opposite party no.1 can not be accused of resorting to unfair trade practice. Because they adjusted the price of such items supplied free of cost to the complainant. On this account, no fault on part of opposite party, can be found.

8- Now coming to second dispute of non payment of exchange bonus of Rs.10000/-. Exchange bonus as per defence, was payable on production of RC of the newly purchased vehicle, as well as old vehicle sold to third person and providing the same to opposite party no.2, within 120 days of purchase of new vehicle. Such condition as relied by opposite party in defence, does not find mention in their newspaper advertisement, copy of which is Ex.C1. Had only specified entitlement of the purchaser of the vehicle, for free insurance, registration and exchange bonus of Rs.10000/-. In the instant case, the vehicle was purchased on 7.5.2008. Even if defence of opposite party no.2 is accepted, it would mean that by 7.8.2008, complainant was required to fulfill requirement of providing RC of new and old vehicle to opposite party no.2. Complainant has brought on record, letter Ex.C24 dated 21.7.2008, addressed to opposite party no.1. This letter reads as under:-

“Regarding your exchange bonus scheme on purchase of new car, herewith, I am giving you the copy of transferred RC and related copy of affidavit, which were required by you for the processing of no claim bonus amounting to Rs.10000/-.

So, please process my exchange bonus refund as early as possible.



9- So, it means under this letter, complainant produced to opposite party on 21.7.2008,copy of transferred RC and related copy of affidavit, for processing his no claim bonus amounting to Rs.10000/-. This letter on the same day, was received by opposite party no.1, who received the same after putting stamp and signing the copy. As such, RC of the vehicle, affidavit and documents were made available, by the complainant to opposite partry no.1 on 21.7.2008. This he did within 120 days time. Complainant had purchased the vehicle from opposite party no.1 and only could have lodged free bonus claim from opposite party no.1.


So, it was for opposite party no.1 to have referred those documents to manufacturer opposite party no.2, to honour the promise of exchange bonus of Rs.10000/-, but they failed to do so. Consequently, complainant was at pains, to issue registered letters Ex.C4, Ex.C9 and Ex.C10 to opposite parties and thereafter, served legal notice Ex.C21. Though opposite party replied certain letters vide reply Ex.C20 and Ex.C9.But his grievances were never met or explained.

10- It appears in these circumstances that opposite party failed despite fulfillment of the condition by the complainant, to pay exchange bonus ofRs.10000/- in his favour. By not doing so, opposite party no.2 certainly would be guilty of resorting to unfair trade practice. Because complainant had made available RC and affidavit of the old vehicle to opposite party no.1, who received it on behalf of opposite partyno.2.

11- As a result, for deficiency ins service on part of opposite parties, we partly allow this complaint against opposite party no.2, directing them to pay exchange bonus of Rs.10000/- to the complainant and also direct to pay compensation of Rs.5000/- and litigation costs of Rs.2000/, within 45 days of receipt of copy of order. Copy of order be provided to the parties free of charge. File be completed and consigned to record room.

L.R. Muraly

S/o. L. Ramaiah

Thulasidhalam

Menonpara (P.O)

Palakkad - Complainant


V/s




1. M/s.Palghat – Automotive Pvt Ltd

Palghat Hyundai

5/428 Marutha Road

BPL Kootupatha

Palakkad.






2. Regional Office

N P 54, Developed Plot

Ekkaduthangal

Thiru-Vika Industrial Estate

Chennai

Tamil Nadu - 600032

(Adv . C. Madhavankutty) - Opposite parties




O R D E R




In short the case of the complainant is as follows.

Complainant purchased a new Santro Zing car from the Ist opposite party as per Invoice No. H200700081 dated 31/12/2007. Ist opposite party made several offers viz., exchange bonus of Rs.15,000/- Corporate offer of Rs.4000/- worth materials, Insurance 100%, cash discounts Rs.5000/- and basic accessories vide their order booking form. Ist opposite party accepted the old car of the complainant on 25/12/2007 for true value for an amount of Rs.55,000/-. According to the complainant, it is the responsibility of the dealer to produce documents pertaining to the sale of old car to the manufacturer in order to avail the exchange bonus. Ist opposite party assured the complainant that the exchange bonus will

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be paid within 3 months from the date of purchase of new car. The grievance of the complainant is that the dealer has not so far produced the said document to the company for getting the exchange bonus. The act of Ist opposite party amounts to clear deficiency in service. Complainant prays for an order directing the opposite party No.1 to pay an amount of Rs.15,000/- towards exchange bonus and Rs.10,000/- as compensation and cost of proceedings.




Both opposite parties entered appearance and filed version. As per the contention of Ist opposite party, the say of the complainant that Ist opposite party accepted the complainant's old car on 25/12/2007 for true value of an amount of Rs.55,000/- is false. According to Ist opposite party, complainant approached Ist opposite party for purchasing a Santro Car on 18/10/2007. He intended to exchange his old car when purchasing the new one. Ist opposite party offered free insurance, exchange bonus, Corporate bonus, MP3 player and basic accessories. The opposite party also agreed to arrange for a buyer for his old car at Rs.40,000/-.


Thus he was offered in house exchange of Rs.55,000/- ie, Rs.40,000/- for the old car and Rs.15,000/- as exchange bonus. Complainant agreed to these conditions and has signed in the order form which was valid till 31/10/2007. Complainant did not pay any amount till 31/10/2007 and hence the order was automatically terminated on 31/10/2007. Later on 26/12/2007, complainant came with a Demand Draft for Rs.2,60,000/- and requested for the vehicle. The Ist opposite party expressed their inability to provide in house exchange but was ready to provide other offers. Complainant has brought a buyer for his old car who has agreed to purchase it for Rs.40,000/- Further the complainant demanded immediate release of the exchange bonus.


“According to Ist opposite party the exchange bonus is paid by the manufacturer M/s. Hyundai Motors only on producing the proof of the sale of old car of the customer and purchase and registration of the new car. Usually it takes 3 to 4 months for processing the same. In the present case, Ist opposite party immediately released the same on the request of the complainant who was short of finance and on the basis of the undertaking dated 31/12/2007 that he will provide the proof of sale of his old car. The complainant failed to produce the same and hence opposite party could not claim the exchange bonus from the manufacturer which

had already been paid to the complainant on his promise to comply the formalities in time.

- 3 -

Ist opposite party has demanded the complainant either to provide Registration Certificate of his old car showing sale to the new owner or refund Rs.15,000/- already given.




But the complainant has not complied the same. Ist opposite party has given the exchange bonus of Rs.15,000/- along with the other offers to the complainant even after the lapse of the original offer. Hence there is no deficiency in service on the parts of Ist opposite party.




The main contention of 2nd opposite party is that allegation in the complaint is against Ist opposite party alone. Further the relationship of the manufacturer and the dealer operates on a principal to principal basis and the concerned dealer is solely responsible for any error or omission or misrepresentation if any at the time of retail sale. Further contentions of 2nd opposite party is in tune with that of Ist opposite party.




Both parties filed affidavits. Exhibit A1 to A3 marked on the side of the complainant. Exhibit B1 to B4 marked on the side of opposite parties.




Now the issues for consideration are:

1.

Whether there is any deficiency in service on the part of the opposite parties?
2.

If so, what is the reliefs and costs?

Issues 1 & 2

The definite case of the complainant is that the Ist opposite party has not provided the exchange bonus of Rs.15,000/- as offered by them. According to Ist opposite party, the said amount was already paid to the complainant on the date of the purchase of the vehicle itself and the complainant failed to produce the documents pertaining to the transfer of his old vehicle where by Ist opposite party lost the opportunity to claim the said amount from the manufacturer.




The sale of the vehicle by Ist opposite party and offers made is revealed by Exhibit A1

and A3. The say of the complainant that the amount was released forthwith without

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forwarding it to the manufacturer etc seems to be unbelievable. The usual practice adapted is that after furnishing the relevant documents, dealer forward the application to the manufacturer and there after on verification by the manufacturer amount will be released.




Further Ist opposite party stated that he has demanded the complainant the documents pertaining to the vehicle or else repay the amount of Rs.50,000/-. No supporting evidence to prove the same.




In view of the above facts and circumstances , we are of the view that opposite party has not adduced any cogent and convincing evidence to prove that the amount was already released. Complainant claims no relief against 2nd opposite party.




In the result complaint allowed. Ist opposite party directed to pay an amount of Rs.15,000/- being the exchange bonus to the complainant and Rs.5,000/- as compensation for the deficiency in service and Rs.500/- as cost of the proceedings. Order shall be complied within one month from the date of receipt of order failing which the whole amount shall carry interest @ 9% p.a from the date of order till realization.

Vinod Jain Proprietor of M/s Kay Jay Knitwears, 51-D, Sunder Nagar, Opposite Ritambra School, Ludhiana-141008.



…..Complainant.

Versus



1- M/s Pioneer Hyundai Motors, MRG Auto Limited, G.T. Road, Sherpur, Ludhiana, through its Managing Director.

2- M/s Hyundai Motors India Ltd., Sriperumbuder Taluk, Kancheepuram, through its Managing Director/Manager.

3- Sh. Neeraj Kohli, National Customer Relations Manager, Hyundai Motors India Ltd. A-30, Mohan Co-operative, Industrial Estate , Mathura Road, New Delhi, 110044.

…..Opposite parties.







O R D E R








1- Influenced by advertisement published by opposite party in various newspapers, proving free insurance, free registration, accessories and exchange bonus of Rs.10,000/-, complainant purchased Santro Car from opposite party no.1, manufactured by opposite party no.2. At the time of purchase, one Sandeep Sood official of opposite party no.1 referred price of the car to be Rs.3,54,333/- and that it was inclusive of free registration, free insurance, free MP players, accessories etc. Complainant instead of free insurance, with understanding of opposite party no.1, obtained alloy wheels, by paying Rs.1000/- extra.


A cheque of Rs.3,55,333/-for purchase of Santro car, was issued to opposite party no.1 and obtained receipt dated 7.5.2008.. Invoice was promised to be issued after some days and that exchange bonus would be provided after sale of previous car by the complainant. He was astonished on receipt of invoice dated 12.5.2008, to see that price of the car was mentioned Rs.3,32,333/- only. Thus, Rs.22,000/- in excess of the actual price of the car, were obtained from him by opposite partryno.1, by resorting to unfair trade practice. Hence, issued letter dated 2.6.2008, which through e-mail, was replied by opposite party no.3. But never complied with his letter. Hence, sent reminder dated 11.6.2008 which was replied by opposite party no.3, vide reply dated 23.6.2008, promising to take action. But failed to take any action.


Then sent notice dated 9.7.2008 to refund excess amount with interest, to which they paid no heed. Further grievance of the complainant that he was entitled to exchange bonus of Rs.10,000/- after sale of previous car and that claim was also not cleared, despite transfer of the vehicle and providing copy of RC of the transferred vehicle to the opposite party. Therefore, is also entitled to refund of exchange bonus Rs.10,000/- alongwith Rs.22000/- taken in excess from him. Has also sought compensation of Rs.50,000/- for mental tension, agony and litigation costs of Rs.11000/-.

2- Opposite party no.1 in reply, claimed that car was purchased by the complainant for commercial purpose, so not empowered to file complaint, which is false. They have admitted sale of vehicle to the complainant, at its actual price Rs.3,54,333/-. This was price of the car fixed by the manufacturer, opposite party no.2. They never resorted to unfair trade practice, by charging more price from the complainant. The cost of benefits was to be borne by the dealer. Benefits of Alloy wheels, stereo, in lieu of free insurance, free registration and accessories, costing Rs.22000/- were provided to the complainant.


As such, invoice of Rs.3,32,333/- was issued after adjusting the cost. Further claimed the exchange bonus was to be given by opposite party no.2, after completion of formalities as per terms and conditions, by the complainants. But his claim for exchange bonus was rejected by opposite party no.2, due to non submission of documents, information, within prescribed time. So, there is no deficiency in service on their part and complaint deserves dismissal.

3- Opposite parties no.2 & 3 in their reply, have also prayed for dismissal of complaint, on ground that there is no deficiency in service on their part. The car was purchased in perfect running condition by the complainant, through their dealer and they are not responsible for acts of the dealer. Under exchange bonus scheme, complainant was required to furnish a new Hyundai car invoice, old car RC before transfer in the same name and old car RC after transfer in the name other than that of blood relation. It was mandatory for the complainant, to have made available those documents within 120 days from the date of invoice of new car, but complainant failed to comply therewith, within aforesaid requisite period, to make him legible for exchange bonus. Hence, same wasn’t given to him.

4- Parties adduced evidence in support of their respective claims and stood heard through their respective counsels.

5- Two points stand raised in this complaint. First is whether opposite party resorted to unfair trade practice, by realizing Rs.22000/- in excess qua price of Santro car from the complainant and second is whether they defaulted in fulfilling promise to pay exchange bonus of Rs.10000/- to the complainant and consequently, would be guilty of resorting to unfair trade practice.

6- As far as first point is concerned, no doubt, complainant for purchase of the car, vide receipt dated 7.5.2008, paid Rs.3,55,333/- to opposite party no.1, who subsequently, issued invoice Annexure-1 of Rs.3,32,333/- in his favour. Therefore, argued that by issuing invoice of Rs.3,32,333/-, despite charging Rs.3,55,333/- from him, opposite party resorted to unfair trade practice, by charging Rs.22000/- in excess from him.

7- Whereas opposite party have taken defence that actual price of the car was Rs.3,55,333/- as taken from the complainant and this was also price of new car fixed by manufacture opposite party no.2. Invoice of Rs.3,32,333/- was issued, after adjusting cost of free items and accessories such as MP Player, RC, Alloy wheels and other accessories. Ex.R4 is the copy of price list of opposite party qua price of the vehicle, manufactured by them, effective from April, 2008. In it, price of Santro GLS is mentioned Rs.3,54,333/-. It was this price inclusive of Rs.1000/- as extra cost of alloy wheels received by opposite party no.1 under receipt Ex.R1 from the complainant. So, we feel that if invoice was issued for lesser amount, opposite party no.1 can not be accused of resorting to unfair trade practice. Because they adjusted the price of such items supplied free of cost to the complainant. On this account, no fault on part of opposite party, can be found.

8- Now coming to second dispute of non payment of exchange bonus of Rs.10000/-. Exchange bonus as per defence, was payable on production of RC of the newly purchased vehicle, as well as old vehicle sold to third person and providing the same to opposite party no.2, within 120 days of purchase of new vehicle.


Such condition as relied by opposite party in defence, does not find mention in their newspaper advertisement, copy of which is Ex.C1. Had only specified entitlement of the purchaser of the vehicle, for free insurance, registration and exchange bonus of Rs.10000/-. In the instant case, the vehicle was purchased on 7.5.2008. Even if defence of opposite party no.2 is accepted, it would mean that by 7.8.2008, complainant was required to fulfill requirement of providing RC of new and old vehicle to opposite party no.2. Complainant has brought on record, letter Ex.C24 dated 21.7.2008, addressed to opposite party no.1. This letter reads as under:-

“Regarding your exchange bonus scheme on purchase of new car, herewith, I am giving you the copy of transferred RC and related copy of affidavit, which were required by you for the processing of no claim bonus amounting to Rs.10000/-.

So, please process my exchange bonus refund as early as possible.



9- So, it means under this letter, complainant produced to opposite party on 21.7.2008,copy of transferred RC and related copy of affidavit, for processing his no claim bonus amounting to Rs.10000/-. This letter on the same day, was received by opposite party no.1, who received the same after putting stamp and signing the copy. As such, RC of the vehicle, affidavit and documents were made available, by the complainant to opposite partry no.1 on 21.7.2008.


This he did within 120 days time. Complainant had purchased the vehicle from opposite party no.1 and only could have lodged free bonus claim from opposite party no.1. So, it was for opposite party no.1 to have referred those documents to manufacturer opposite party no.2, to honour the promise of exchange bonus of Rs.10000/-, but they failed to do so. Consequently, complainant was at pains, to issue registered letters Ex.C4, Ex.C9 and Ex.C10 to opposite parties and thereafter, served legal notice Ex.C21. Though opposite party replied certain letters vide reply Ex.C20 and Ex.C9.But his grievances were never met or explained.

10- It appears in these circumstances that opposite party failed despite fulfillment of the condition by the complainant, to pay exchange bonus ofRs.10000/- in his favour. By not doing so, opposite party no.2 certainly would be guilty of resorting to unfair trade practice. Because complainant had made available RC and affidavit of the old vehicle to opposite party no.1, who received it on behalf of opposite partyno.2.

L.R. Muraly

S/o. L. Ramaiah

Thulasidhalam

Menonpara (P.O)

Palakkad - Complainant

(Party in person)

V/s




1. M/s.Palghat – Automotive Pvt Ltd

Palghat Hyundai

5/428 Marutha Road

BPL Kootupatha

Palakkad.





2. Regional Office

N P 54, Developed Plot

Ekkaduthangal

Thiru-Vika Industrial Estate

Chennai

Tamil Nadu - 600032

- Opposite parties




O R D E R



Complainant purchased a new Santro Zing car from the Ist opposite party as per Invoice No. H200700081 dated 31/12/2007. Ist opposite party made several offers viz., exchange bonus of Rs.15,000/- Corporate offer of Rs.4000/- worth materials, Insurance 100%, cash discounts Rs.5000/- and basic accessories vide their order booking form. Ist opposite party accepted the old car of the complainant on 25/12/2007 for true value for an amount of Rs.55,000/-. According to the complainant, it is the responsibility of the dealer to produce documents pertaining to the sale of old car to the manufacturer in order to avail the exchange bonus. Ist opposite party assured the complainant that the exchange bonus will

- 2 -

be paid within 3 months from the date of purchase of new car. The grievance of the complainant is that the dealer has not so far produced the said document to the company for getting the exchange bonus. The act of Ist opposite party amounts to clear deficiency in service. Complainant prays for an order directing the opposite party No.1 to pay an amount of Rs.15,000/- towards exchange bonus and Rs.10,000/- as compensation and cost of proceedings.




Both opposite parties entered appearance and filed version. As per the contention of Ist opposite party, the say of the complainant that Ist opposite party accepted the complainant's old car on 25/12/2007 for true value of an amount of Rs.55,000/- is false. According to Ist opposite party, complainant approached Ist opposite party for purchasing a Santro Car on 18/10/2007. He intended to exchange his old car when purchasing the new one. Ist opposite party offered free insurance, exchange bonus, Corporate bonus, MP3 player and basic accessories. The opposite party also agreed to arrange for a buyer for his old car at Rs.40,000/-. Thus he was offered in house exchange of Rs.55,000/- ie, Rs.40,000/- for the old car and Rs.15,000/- as exchange bonus. Complainant agreed to these conditions and has signed in the order form which was valid till 31/10/2007.


Complainant did not pay any amount till 31/10/2007 and hence the order was automatically terminated on 31/10/2007. Later on 26/12/2007, complainant came with a Demand Draft for Rs.2,60,000/- and requested for the vehicle. The Ist opposite party expressed their inability to provide in house exchange but was ready to provide other offers. Complainant has brought a buyer for his old car who has agreed to purchase it for Rs.40,000/- Further the complainant demanded immediate release of the exchange bonus. “According to Ist opposite party the exchange bonus is paid by the manufacturer M/s. Hyundai Motors only on producing the proof of the sale of old car of the customer and purchase and registration of the new car.


Usually it takes 3 to 4 months for processing the same. In the present case, Ist opposite party immediately released the same on the request of the complainant who was short of finance and on the basis of the undertaking dated 31/12/2007 that he will provide the proof of sale of his old car. The complainant failed to produce the same and hence opposite party could not claim the exchange bonus from the manufacturer which

had already been paid to the complainant on his promise to comply the formalities in time.

- 3 -

Dr.K.M.Ramakrishnan

‘PRASHANTHI’,

P.o.THIRUVANGAD,

Thalassery 3.

(Rep. by Adv.k.M.Pradeepnath) Complainant



1. Manager,

KTC Automobiles (P) Ltd.,

P.O.Chovva,

Kannur

(Rep. by Adv.M.K.Associates) Opposite parties



2. Mg. Director,

KTC HYUNDAI,

YMCA ROAD,

Kozhikode

(Rep. by Adv.Kauser Edappagath)



O R D E R



Sri.K.Gopalan, President

This is a complaint filed under section 12 of consumer protection Act for an order directing the opposite parties to pay Rs.10, 000/- as exchange bonus and Rs.5, 000/- as compensation.

The case of the complainant in nutshell is as follows: Complainant booked one Hyundai Santro car, Model I XU paying Rs.2000/- on 13.7.2007. As per the order booking form several additional offers had been made by the opposite parties. Complainant paid Rs.3, 74,004/- by way of cheque and cash payment for insurance and other charges. Altogether complainant paid Rs.4, 10,575/- and delivery was taken from the office of 1st opposite party. Opposite parties repeatedly promised that the additional offers made by them will be soon honoured. But even opposite party did not keep up their promises regarding the additional orders. The promise of the exchange bonus of

Rs.10, 000/- still remains unpaid. Complainant send letters to 1st opposite party on 3.11.07for which there was no reply. On 17.7.2008 again sent letter to 1st opposite party marking copy to 2nd opposite party. This was also ignored. Complainant finally sent lawyer notice dt.6.9.09 demanding payment. Opposite party did not care to send reply for this also. Hence this complaint.

Pursuant to the notice opposite parties entered appearance and filed version. The brief contents of the version as follows; the complainant had booked Hyundai Santro car through 1st opposite party and 1st opposite party promised several additional offers along with the car. He had paid an amount of Rs.4, 10,575/- and car was delivered from 1st opposite party. But it is false to say that at the time of delivery opposite party promised that the additional offers made by them in the order booking form will be honoured soon. The allegation that the promise of exchange bonus of Rs.10, 000/- remains unpaid even after a year is false. There are certain conditions to be satisfied in order to avail the said bonus. One condition is that the customer has to sell his old vehicle to any person of his choice and produce the proof showing the ownership of his own vehicle. Complainant never convinced the opposite party that he sold his old vehicle nor did he produce any document showing the transfer of ownership. Complainant submitted that he owned a Maruthi 800 car bearing No.RL.13.N.8087 and it is against the said vehicle he claim benefit. The complainant promised to produce the document but did not produce the same. The ownership still stands in his name on the RC book. It s still in his possession and ownership. The question of discharging bonus arises only when the condition is complied. At the delivery time itself the reason for non-payment of exchange claim had been informed. There is no deficiency of service and unfair trade practice on the part of opposite party.

On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complaint is entitled for the relief as claimed in the complaint?

3. Relief and cost.

The evidence consists of the oral evidence adduced by PW1, DW1 and documentary evidence Exts.A1 to A7, B1 to B3.

IssueNos.1 to 3

Admittedly complainant had booked Hyundai Santro car through 1st opposite party and there was several additional offers along with the car. Complainant paid

Rs.4, 10,575/- and took delivery. The complainant’s case is that as per the order booking form the opposite parties promised several additional offers along with the car. Ext.A1 gives details of offers given as FOC. Addl. Offers includes Rs.10, 000/- exchange bonus. Complainant’s specific case is that opposite party did not keep up their promises with respect to the additional offers. Some of the offers were satisfied after repeated reminders. But exchange bonus of Rs.10, 000/- remained unpaid. The contention of opposite party is that complainant is not entitled for exchange Bonus since he did not satisfy the conditions by producing the document showing the transfer of ownership of his old car. Ext.A1 proves that there is addition offer of Rs.10, 000/- Exchange bonus. Ext.A1 does not contain any condition any where to be satisfied in order to get the exchange bonus. Opposite party did not produce any documents to prove the condition that is necessary for the payment of exchange bonus. Opposite party failed to prove their condition that there are such conditions. A document that gives offers if lack conditions where from such conditions can be imported so as to create binding obligation on the part of complainant?

Anyone of the document produced by opposite party does not help to prove this contention of opposite party. More over complainant wrote two letters on 3.11.07 and the other on 17.7.2008 opposite party did not take pain to reply this letter which is nothing but deficiency in service. Ex.tA2 and A3 is letters requesting the opposite party to settle the issues. It is seen that the complainant had sent lawyer notice Ext.A4 dt.6.9.05 to opposite parties demanding payment. Ex.tA4 (a) and (b) proves that notice was issued to both the opposite parties. But both the opposite parties did not respond to this lawyer notice. This itself is a deficiency in service and a sign of unfair trade practice. This is an unfair trade practice since opposite party made the offer with no intention to perform it. If an offer lacks intention to perform the same that amounts to unfair trade practice. The non reply of lawyer notice stands as a clear evidnce that the opposite parties did not have any intention to perform the additional offer made at the time of purchasing the car.

The complainant herein also produced documents to prove that he had already sold and transferred his Maruthi 800 car bearing NO.K.C.13.N.8087 to one Muhammed. Ext.A7 is the registration particulars issued by Joint RTO, Kannur. The particulars shows that the name of regd. Owner Muhammad, Thailakkandy Puthan purayil, S/o.Musthafa. Hence it is clear that the contentions of opposite parties have no footing on facts of the case. The opposite parties are liable for deficiency in service that amounts to unfair trade practice. Therefore, we are of opinion that opposite party is liable to pay Rs.10, 000/- as the addition offer and also an amount of Rs.5, 000/- as compensation including cost of these proceedings. The issues 1 to 3 are found in favour of complainant.

In the result, the complaint is allowed directing the opposite parties to pay

Rs.10, 000/-(Rupees Ten thousand only) as the additional offer and an amount of

Rs.5,000/-/-(Rupees Five thousand only) as compensation including cost of this proceedings to the complainant within one month from the date of receipt of this order, failing which it shall attract 10% interest on the entire amount due from 6.9.08 the date of lawyer notice Ext.A4 till realization of the amount. The complainant is also at liberty to execute the order in accordance with provisions of consumer protection act after the expiry of 30 days.

F.A.NO.356/2006

[Against order in C.C.No.574/2000 on the file of the DCDRF, Chennai (South)]

DATED THIS THE 30th DAY OF NOVEMBER 2009

Dr. Chinnathambi, |

35/7, Surammal Street, |

Egmore, | Appellant/Complainant

Chennai 600 008. |



Vs.

1. Bohra Hyundai, |

162, Arthi Chambers, | Respondent/Opp. Parties

Anna Salai, |

Chennai 600 006. |

|

2. M/s. Hyundai Company, |

rep. by its Regional Sales Manager, |

Guindy, |

Chennai 600 032. |



The appellant as complainant filed a complaint before the District Forum against the respondents/opposite parties praying for the direction to the opposite parties not to indulge the unfair trade practice by withholding the amount, to pay a sum of Rs.12,000/- towards difference of price, to pay a sum of Rs.18,000/- as loss of interest, to pay a sum of Rs.50,000/- towards compensation and Rs.2,500/- towards cost. The District Forum dismissed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.06.06.2005 in C.C.574/2000.



This appeal coming before us for hearing finally on 20.11.2009. Upon hearing the arguments of the counsels on eitherside, this commission made the following order:



Counsel for the Appellant /complainant : M/s.K.R.A.Muthukrishnan,

V.Balaji & P.Anand, Advocates.

1st Respondent/ 1st O.P. : Absent.



Counsel for the 2nd Respt. /2nd O.P. : M/s.Fox Mandal & Associates,

Advocates.



HON’BLE M. THANIKACHALAM J, PRESIDENT



1. The unsuccessful complainant, is the appellant.





2. The complainant/appellant based on the Proforma Invoice, paid a sum of Rs.2,98,389/- for outright purchase of Santro Car from the first opposite party, who is the dealer of the second opposite party/manufacturer. The first opposite party, at the time of handing over the demand draft, promised to delivery the vehicle within a period of one week. But, first opposite party has not delivered the vehicle as promised and effected to deliver of the vehicle, giving lame excuse.



3. The complainant was forced to cancel the booking, since the vehicle was not delivered as promised, by his letter 04.08.1999, demanding the refund of the amount with interest, for which, there was no reply. The first opposite party has not delivered the vehicle, with an expectation of price hike. Because of the deficiency committed by the opposite parties, the complainant was compelled to purchase another vehicle from some other dealer, paying excess amount of Rs.12,000/-. Since the opposite parties have committed deficiency in service, in not delivering the vehicle as promised and have enjoyed the benefits of the amount, they are bound to pay interest as well as difference of price, in addition to, sum of Rs.50,000/- as compensation for mental agony. Thus, a claim came to be filed before the lower forum by the complainant.



4. The second opposite party alone opposed the claim, inter alia, on the grounds that manufacturer cannot be held liable for any default committed by the dealer, that the price of the vehicle was always chargeable on the prevailing rate at the time of delivery, irrespective of the value on the date of booking, that no assurance could have been given for the delivery of the vehicle as alleged, that as per the terms and conditions of the order if the customer cancelled the booking order, not entitled to claim any interest and denying the other allegations are false, prayed for the dismissal of the complaint.



5. The first opposite party has not contested the case.

6. The District Forum considering the terms and conditions available in Ex.B1 as well the booking cancelled by the complainant on his own, and while evaluating the contention of the parties, came to the conclusion that there was no deficiency in service, on the part of the opposite parties and thereby, the complaint came to be dismissed on 06.06.2005, which is under challenge before us.



7. Heard, the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.



8. The learned counsel for the appellant would contend that the car was not delivered with an expectation of price hike, thereby, the complainant was compelled to cancel the booking, then constrained to buy a vehicle, paying more amount and therefore the value of the difference should be paid by the opposite parties, at least by the dealer/first opposite party who remained exparte. It is the further submission of the learned counsel for the appellant that the first opposite party having enjoyed the benefits of the amount for the period retained, liable to pay interest, which were not at all considered by the lower forum. Support was sought for the above submissions from the decision of the Supreme Court in “M/s.Vikas Motors Ltd., Vs. Dr.P.K.Jain” reported in “1999(3)CPR 64 (SC)”.



9. Opposing the above submissions, the learned counsel appearing for the opposite party would contend that when the booking was cancelled by the customer on his own, as per the terms and conditions of the booking order, he is not entitled to claim any interest. It is the further submission of the learned counsel for the opposite party, that no violation of booking order is reported and this being the position, no kind of deficiency would be attributed that too against the manufacturing company. In support of the above contention, our attention was drawn to the conditions available in Ex.B1 as well as the conduct of the complainant also.



10. Admittedly, the complainant booked a car on 26.06.99, by paying a sum of Rs.2,98,389/- tendering a Demand Draft. It will take time for realization of the amount and only from the date of transfer of the account, the first opposite party would have availed the benefits of the amount. In this view, the claim of interest whatever may be the rate, from 26.06.99 is untenable. In Para-2 of the complaint, it is said that the opposite party promised to deliver the vehicle within a period of one week, for which, we do not have any material except the ipsi-dixie of the complaint. In the affidavit filed by the complainant also, he has not stated about the promise made by the opposite party to deliver the vehicle within a week, though he had alleged deficiency in service, placing reliance upon certain documents.



11. In this case, there are two opposite parties, one is dealer and another is manufacturer. From the reading of Para 2 of the complaint, it is not known, who has assured that the vehicle would be delivered within a week. Generally, delivery of the vehicle depends upon the availability of the same, as well its manufacturing. Therefore, unless it is unquestionably established, that there was an undertaking, assurance or promise to deliver the vehicle, within a week from the date of booking, for the non-delivery of the vehicle within the said period, we cannot fix the deficiency in service. In this case, no material is placed to accept that the opposite party had agreed to deliver the vehicle within a week. In the absence of any proof, we are unable to accept the case of the complainant, that non-delivery of the vehicle within a week should be construed, as deficiency in service or breach of terms of booking order.



12. It is also not the case of the complainant that the opposite parties have failed to follow the seniority in delivering the vehicle, or his junior in booking, was preferred in delivery of the vehicle, ignoring his seniority. In this view also, it is not possible to conclude, that there was violation or breach of terms of conditions leading to deficiency in service.



13. In Para 5 of the complaint, there is a bald allegation that the opposite parties have not delivered the vehicle, with an expectation of price hike. It is an admitted practice, and it is also one of the terms and conditions of the booking order, that irrespective price on the date of booking, the purchaser has to pay the value of the vehicle on the date of invoice or on the date of delivery of the vehicle. Therefore, it is highly untenable to contend that the opposite parties have not delivered the vehicle, with an expectation of price hike, which would be always available to the dealer, if the vehicle price is hiked by the manufacturer. On this ground also, it is highly impossible to affix the seal of deficiency in service.



14. Ex.B1 contains the terms and conditions of the order/purchase of Hyundai Car. As seen from Clause 12 under the heading ‘Cancellation’; notice of cancellation should be sent to the order accepting dealer, refund process will take minimum 15 working days. Clause 13 under the heading ‘Interest’ says “In case of order cancellation, no interest is paid on the amount deposited”. Clause 15 reads: ‘The vehicle specifications & price including statutory levies will be as applicable on the date of dealer invoicing’. The complainant cannot say the above terms and conditions are not binding upon him, and it is also not the case as seen from the complaint. In view of the Clauses available in the terms and conditions for order, since the complainant himself has cancelled the order, on his own for the reasons best known to him, he is not at entitled to claim interest or the difference in price also, having purchased a new vehicle, at later point of time, from some other dealer.



15. As per the letter dated 04.08.99, the complainant cancelled the booking order, requesting to refund the amount. Even before the letter reached the office concerned, an Advocate notice was issued on 05.08.99, and not satisfied with that, once again on 12.08.99, another notice was issued. As pointed out by us supra, under the terms and conditions, they are entitled to take 15 working days. Before that period is over, it seems, on 12.08.99, a police complaint was lodged by the complainant, for which, the amount was refunded on 13.8.99, though the cheque was dated 06.08.99. The attitude of the complainant would go to show, that he is not interested to take delivery of the vehicle from the opposite party for the reasons best known to him, which we are not conserved and, having decided so, it is highly deplorable to claim compensation and interest. While receiving the amount also, without any murmur or protest, it seems, he has received the amount, and having accepted the same, he is not entitled to claim interest or excess value, as now claimed and in this view, even we can say, he is estopped from claiming interest, and other money in any other form.



16. The learned counsel for the appellant urging that the dealer is liable to return the excess amount charged, as well liable to pay interest, in view of the fact, he remained exparte also, drew our attention, to a decision of the Apex Court in M/s.Vikas Motors Ltd., Vs. Dr.P.K.Jain. The case involved in the above decision, as seen from the facts of that case, the respondent therein booked a car on 7.5.90 paying the amount, later he was informed on 1.8.90 that his car was matured for payment deposit and delivery and pursuant to the same, full amount was paid on 6.8.90. However, extra amount was charged at the time of delivery. Considering the above facts, it is held that “It is also conceded that as desired the balance amount was paid by the appellant on 6.8.1990, but the vehicle was not delivered to him till 25.08.1990. There being no failure on the part of the respondent to perform his part of the contract, the appellant was not justified in demanding the excess amount of Rs.9,232/- from him”. It is also further noticed, assuring immediate delivery, after full amount was collected, the vehicle was not delivered so, whereas, excess amount was collected. In view of the above fact, it is held, consumer cannot be made to pay for their default, for the unauthorized delay, resulting, price going up. But the case on hand, is entirely different, because complainant himself has cancelled the booking order and withdrew the money also, without any protest, purchased a vehicle from elsewhere. This being the position, as per the terms and conditions of the booking order, the complainant/appellant is not entitled to claim either interest or excess amount or compensation alleging imaginary mental agony and sufferings. The trial forum considering all the above facts, has rightly dismissed the complaint, in which, we are unable to find any error of judgement, warranting our interference.



17. In the result, the appeal fails and the same is dismissed, confirming the order of the District Forum, Chennai (South), in OP.No.574/2000 dt.06.06.2005. Under the facts and circumstances of the case, there will be no order as to cost, throughout.