Punjab

Rupnagar

CC/15/39

Arun Kumar - Complainant(s)

Versus

Bhakra Service Station Pvt. Ltd. & Others - Opp.Party(s)

Sh. D.S. Deol, Adv

01 Oct 2015

ORDER

ORDER

                                      MRS. NEENA SANDHU, PRESIDENT

                   Sh. Arun Kumar has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’)  against the Opposite Parties (hereinafter referred to as ‘the O.Ps.’) praying for issuance of the following directions to them:-

i)       To replace the car with a new one, 

ii)      To pay Rs.50,000/- as compensation for mental agony & unnecessary harassment caused to him,

iii)     To pay Rs.10,000/- as litigation expenses.

 

2.                In brief, the case of the complainant is that in the month of May, 2014, a representative of the O.P. No. 1 approached him at his shop and told that Hyundai Company had launched a new i10 Grand Sports Car with very attractive finance and maintenance schemes. Being swayed by the allurements of the said representative, he had shown his interest for purchase of the said car. The said representative got filled some performa from him and invited him to the premises of the O.P. No. 1. Accordingly, he visited the premises of the O.P. No. 1, whose official told him that the Hyundai (i10) was equipped with advanced equipments and expert mechanism and every type of service was being provided by the said O.P. and every type of defect could be rectified here and that the O.Ps. are providing 24x7 days road assistance, free of cost throughout India. On 28.05.2014, he had purchased the said i10 Grand Sportz Diesel car from the O.P. No. 1. Its employees had taken his signatures on so many papers, without disclosing anything, on the pretext of completing paper formalities. The car in question bears Registration No. PB-12-V-4232, chassis No. 062147 and Engine No.055513.  At the time of purchase  of the said car, the concerned official of O.P. No.1 had told him that the car would have 2 years’ warranty and if any problem arises, during the said period, then the same would be resolved, free of cost. The said official had also told that if any defect, due to defective material or workmanship is found in the said car, within warranty period, then the said defect would be repaired without any cost. It is further stated that on 10.03.2015, he along with his family had gone from Rupnagar to Kiratpur Sahib and when he was coming back to Rupnagar and had reached near village Malikpur, then suddenly, the said car stopped functioning. He, immediately, tried to contact the official of the O.P. No. 1, but nobody attended his call. Therefore, he had to tow the car to the O.P. No.1. On the next date i.e. 11.03.2015, an acknowledgement was issued by the official of the O.P. No. 1, in which it was mentioned that the engine had damaged.  Due to breakdown of the car, he and his family members had faced great difficulty and harassment.  It is further stated that the engine of the car had got damaged, when its meter reading was only 14500 KM, as such, the said defect had occured due to manufacturing defect in it, therefore, he requested the said O.P. either to repair the car or to replace the same with a new one, but no heed was paid to his request. The said act of the O.Ps. amounts to deficiency in service and adoption of unfair trade practice, due to which, he has suffered huge mental agony, financial loss and physical harassment. He had also got served a legal notice upon the O.Ps. on 20.3.2015,  and the O.P. No. 1 had replied the same, but the reply was not satisfactory. Hence, this complaint. 

 

3.                On being put to notice, the O.P. No.1 filed written version taking preliminary objections; that the complaint is not maintainable in the present form under the provision of the Act; that the complainant has no cause of action and locus standi to file the present complaint against the answering O.P.; that the complainant is not a consumer of the answering O.P.; that there is no deficiency in service on the part of the answering O.P.; that the complainant has not come to the Forum with clean hands, as he has concealed the material facts from this Forum, as such, he is not entitled to any relief and the complaint is liable to be dismissed. On merits, it is stated that the complainant himself had approached the answering O.P. for purchase of the car in question. He is an educated person and had gone through all the papers before signing the same. Moreover, no such practice is being adopted by it to get the documents signed from any customer, without disclosing about the said documents. It is further stated that if any loss or damage occurs to the vehicle due to any rash, negligent, wrong driving or any lapse on the part of the driver or the customer, then the same is not covered under the warranty. The complainant himself has disclosed the fact that he had gone to Bilaspur on the said car and had driven it on an uneven and Katcha route, due to which it got damaged. His car had stopped on the uneven road. If the warning light had appeared and the car was started again & again, then it was the gross negligence on the part of the driver, who did not even bother about the warning lights and tried to start it again & again. It is further stated that whenever any vehicle is brought in the premises of the answering O.P., then an entry is recorded at the gate and the answering O.P. charges parking fee of Rs.350/- per day, from the owner of the said vehicle. The car of the complainant was got checked from Er. Shingara Singh, Surveyor & Loss Assessor, who had opined that the driver of the car had not stopped the car, even after appearance of warning lights and had started it time & again. The damage had occurred to the car of the complainant, due to negligence of the driver and not due to any manufacturing defect in it. Neither there is any deficiency in service on the part of the answering O.P. nor adoption of any unfair trade practice on its part. Rather, it is the complainant who is harassing the answering O.P. by filing a false & frivolous complaint. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, the same being without any merit.

 

4.                The O.P. No. 2 filed a separate written version, taking preliminary objections; that the present complaint is frivolous, misconceived and has been formulated on wrong & misleading facts, and the same is devoid of any merits and deserves to be dismissed in limine; that the damage or failure resulting from negligence of proper maintenance, as required in Owner’s Manual or the accident is not to be covered under warranty; that the answering O.P. operates with all its dealers on principal to principal basis and for the error/omission, if any at the time of retailing or servicing of the car, is the sole responsibility of the concerned dealer; that the liability of the answering O.P., being the manufacture of the Hyundai cars, is limited and extends to its warranty obligations alone and error/omission/misrepresentation, if any, at the time of retail sales of the car on part of the dealer cannot be fastened upon the answering O.P.; that the car in question had already covered the mileage of 15,171/- KMs as on 11.03.2015 i.e. within less than a year of its purchase, which could not have been possible, if the car in question had any manufacturing defect in it; that the warranty neither contemplates replacement of the vehicle nor refund of its purchase price, as such, the complainant cannot seek replacement of the car or refund of its price; that the complainant has deliberately concealed the material information from this Forum; that this Forum has no territorial jurisdiction to entertain the present complaint as no cause of action qua the answering O.P. has arisen within the territorial jurisdiction of this Forum; that the complaint is also  liable to be dismissed on the ground that the complainant has not sought permission from this Forum to institute the present complaint qua the answering O.P., which was mandatory under section 11 of the Act, as the principal office of the answering O.P. is situated beyond the territorial jurisdiction of this  Forum and it has no branch office within the territorial jurisdiction of this Forum. On merits, all the transactions alleged to be happened inter-se complainant and the O.P. No. 1 were denied for want of knowledge. It is stated that the answering O.P. has no role in retail sale of the car in question. As per available information, the complainant had  reported his vehicle at the workshop of the O.P. No.1 on 11.03.2015 at the mileage of 15,171/- KMs. with concern of starting problem. The service centre thoroughly inspected the vehicle and approved the work under warranty. Accordingly, a letter was sent on 23.3.2015 clarifying that affected part would be replaced under warranty, on free of cost (F.O.C.)  basis and consent for starting the work was requested from the complainant, but he has not given his consent to start the work. It is further stated that the answering O.P. had never refused to do the repair work under warranty. The vehicle in question had suffered accidents two times, but the complainant has deliberately concealed the material information from this Forum and is alleging manufacturing defect in the vehicle without adducing any proof to that effect. The vehicle was reported for accidental repairs on 25.07.2014 at the mileage of 4,134 KMs. and on 13.10.2014 at the mileage of 8739 KMs. Frequent accidents affects vehicle performance. It is reiterated that the accidental repair of the vehicle is not covered under the warranty policy. Rest of the allegations made in the complaint have also been denied and a prayer has been made for dismissal thereof, with exemplary costs, it being misconceived &  frivolous one.

 

5.                 The O.P. No. 3 also filed separate written version in the shape of affisavit of Sh. A.K. Ahmed, Sr. Divisional Manager, refuting  the allegations made against it and taking preliminary objections; that the complainant has no cause of action & locus standi to file the instant  complaint against the answering O.P.; that the complainant is not maintainable; that this  Forum has no jurisdiction to entertain & try the same and that there is no deficiency in service on the part of the answering O.P. On merits, it is stated that as per the policy and cover note, issued by the Nangal Dam Branch of the answering O.P., the car of the complainant, bearing Engine No.05513, Chassis No.062147 was insured for the period from 28.05.2014 to 27.05.2015. It is stated that no deficiency in service has been attributed on the part of the answering O.P. in the complaint. Rest of the allegations made in the complaint have been denied and a prayer has been made for dismissal thereof against the answering O.P.

 

 6.               On being called upon to do so, the learned counsel for the complainant tendered affidavit of the complainant as Ex. CW1/A, photocopies of documents Ex. C1 to Ex. C7 and closed the evidence. On the other hand, the learned counsel for the O.P. No. 1 tendered affidavit of Sh. S.K. Chhabra, Managing Director Ex.OP1/1, photocopies of documents  Ex.OP1/2 to Ex.OP1/6 and closed the evidence. The learned counsel for the O.P. No. 2 tendered affidavit of Sh. Manish Kumar, Deputy Manager Ex.OP-2/1, photocopies of documents Ex.OP2/2 & Ex. OP2/3 and closed the evidence, whereas the learned counsel for the O.P. No. 3 closed the evidence after tendering photocopy of the policy Ex. OP3/1.

 

7.                We have heard the learned counsel for the parties and gone through the record of the file carefully.

 

8.                At the outset, the learned counsel for the O.P. No. 2 raised the objection that since no branch office of the O.P. No. 2 is situated within the territorial jurisdiction of this Forum, therefore, the complaint filed against it be dismissed solely on the ground of territorial jurisdiction. It may be stated here that O.P. No. 1, who is running its business within the territorial jurisdiction of District Ropar, is the authorized dealer of the O.P. No. 2 and admittedly, the complainant had purchased the car in question from the  O.P. No. 1, manufactured by the O.P. No. 2. As per provisions of Section 11 of the Act, this Forum has territorial jurisdiction to entertain and adjudicate upon this complaint. Therefore, the above said objection raised by the learned counsel for the O.P. No. 2 is not sustainable, hence, rejected.

9.                Now coming to the merits of the case, the learned counsel for the complainant submitted that the car in question, which was purchased by the complainant on 28.05.2014 from the O.P. No.1, was having warranty of two years. On 10.3.2015, the said car suddenly stopped on the highway, when it had run only for 14500 KMs. and the same had to be brought to the O.P. No. 1 by towing. On 11.3.2015, the said O.P. No.1, after checking the said car, issued acknowledgement stating therein that the engine had damaged. Since, the engine of the car got damaged due to the manufacturing defect in it, therefore, the O.Ps. be directed to replace the car with a new one and to pay compensation on account of mental agony & physical harassment suffered by the complainant alongwith litigation expenses.

 

10.              The learned counsel for the O.P. No. 1 submitted that the damage occurred to the car was not due to manufacturing defect, but the same had occurred due to rash & negligent driving of the said car on uneven and katcha road. The driver of the said car did not bother to stop it even after appearance of warning lights and used force to start it again & again, resulting into damage of its engine. Even otherwise, the complainant has not produced on record any document to prove that the said car suffers from any inherent manufacturing defect. Thus, the complaint is false & frivolous one, as such, the same be dismissed with costs.

 

11.              The learned counsel for the O.P. No. 2 submitted that the O.P. No. 2 is not liable for the act & omission, if any, at the time of retailing or servicing of the car by the concerned dealer because the relationship between it and the dealer is on principal to principal basis. He further submitted that the car in question was used extensively and had covered a mileage of 15171 KMs. as on 11.3.2015 i.e. within less than a year after its purchase. Had there been any manufacturing defect in it, then it could not have run to that extent. He further submitted that the complainant had brought the said car on 25.7.2014 at the mileage of 4134 KMs. and on 13.10.2014 at mileage of 8739 Kms., for accidental repairs, which shows driving habits of the owner of the car and frequent accidents affect performance of the vehicle.  From these facts, it is apparent that there is no manufacturing defect in the said car, as alleged by the complainant. Even as per warranty terms & conditions, in no case, the car in question, can be replaced nor its price can be refunded. However, the defective part(s) can either be repaired/replaced, free of cost, during the warranty period. On 11.3.2015, when the complainant had brought his vehicle at the workshop of the O.P. No.1, it was inspected thoroughly by the said service centre and it approved the work under warranty. Accordingly, on 23.3.2015, a letter was sent to the complainant clarifying that the affected part would be replaced under warranty, on free of cost basis and consent for starting the work was requested from him. However, he had not given any consent to that effect. The O.P. No. 2 had never refused repair work under warranty and is still ready to do the needful. Therefore, the complaint being without any merit be dismissed with cocsts.

 

12.              The learned counsel for the O.P. No. 3 submitted that nodoubt, the car in question was insured with it for the period from 28.5.2014 to 27.5.2015 vide policy (Ex. C4), but since the complainant has prayed for replacement of the car in question with a new and if the same is to be replaced, in that eventuality, the same has to be done by the manufacturer only. Even otherwise no deficiency in service on the part of the O.P. No. 3 has been alleged in the complaint, therefore, the complaint against it be dismissed with costs.

 

13.              Admittedly, the car in question was within the warranty period when the complainant had taken the same to the O.P. No. 1 for its repair on 11.3.2015. The complainant has alleged that due to manufacturing defect, the engine of the car had damaged and has prayed for replacement of the same with a new one. However, he has not placed on record even an iota of evidence to prove that there is some manufacturing defect in the said car. In the absence of any documentary proof, it cannot be said that the said car suffers from any manufacturing defect. Hence, the prayer made for replacement of the car with a new one cannot be accepted. From the job slip dated 11.3.2015 (Ex. OP1/6) it is evident that the car was taken with the complaint of starting problem and block damaged engine o/H. Vide Clarification Letter dated 23.3.2015 (Ex. C2), which was addressed by the O.P. No. 1 to the complainant, the O.P. No.1 had made clear that the damaged part(s) of the engine assembly alongwith affected parts would be replaced on F.O.C. (i.e. Free of Cost) basis. During the course of arguments also, the learned counsel for the O.P. No. 2 had submitted that the O.Ps. are still ready to replace the damaged part(s) of the engine assembly alongwith affected parts, free of cost. Even as per the terms & conditions of the warranty, Ex. OP2/2, during the warranty period, only defective part(s) is/are either to be repaired/replaced, free of cost. Since the O.Ps. No.1 & 2 had shown their willingness to repair the car in question free of cost, and had also intimated about the same to the complainant vide letter dated 23.3.2015, therefore, there is no deficiency in service on the part of the O.Ps. No. 1 & 2 and the complaint filed against them is liable to be dismissed. So far as complaint filed against the O.P. No. 3 is concerned, it is pertinent to mention here that neither any deficiency in service on its part has been alleged in the complaint nor the same has been proved on record, therefore, the complaint against the said O.P. is also liable to be dismissed.

14.              In view of the aforesaid discussion, we dismiss the complaint against all the O.Ps., with no order as to costs. However, the complainant is at liberty to take his car to the workshop of the O.P. No. 1 for doing necessary repairs, as conveyed to him by it vide letter dated 23.3.2015.

15.              The certified copies of this order be supplied to the parties forthwith, free of costs, as permissible under the rules and the file be indexed & consigned to the Record Room.

ANNOUNCED                                           (NEENA SANDHU)

Dated 01.10.2015                                       PRESIDENT

 

 

                                                (SHAVINDER KAUR)

                                                                     MEMBER.