BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 22nd day of December 2016
Filed on : 18-10-2013
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC - 713/2013
Between
1. Jolly Cherian, : Complainants
Thottakad house, (By Adv. Jinu Joseph, Primoris Law
Kumarakom South P.O., Banerji road, Kochi-31)
Kottayam.
And
1.Hyundai Motor India Ltd., : Opposite parties
5th-6th Floor, (1st o.p. By Adv. R. Ajit Kumar Varma,
Corporate One-Baani Building, 39/1747, Chittoor road, Ernakualam
Plot No./ 5, Commercial centre, South, Kochi-682 016)
Jasola, New Delhi-110 076,
rep. by its Corporate Head.
2. Popular Motor World Pvt. Ltd., (2nd O.P. By Adv. George Cherian
Thadathil Buildings, Karippaparambil, HB. 48, Panampilly
Sastri Road, Kottayam, Nagar, Kochi-36)
Kerala- 686 001,
rep. by its Managing Director.
O R D E R
Cherian K. Kuriakose, President.
Complainant's case
2. The complainant booked a new Hyundai i-10 full option Asta car paying an amount of Rs. 25,000/- as an advance on 18-05-2013 and the vehicle was delivered by the 2nd opposite party M/s. Popular Motor Wold for the price of Rs. 6,21,711/-. The complainant took delivery of the vehicle and he was shocked to find that some of the features including some new features as promised in the brochure were missing in the vehicle. The Micro roof antenna, ignition key reminder feature, seat belt warning, seat belt status indication, power outlet on the console and switch for the air bag were found missing in the car. The complainant immediately intimated to the 2nd opposite party regarding the shortage of facility. The 2nd opposite party promised to contact with the 1st opposite party and to get in touch with the complainant shortly. But neither of the opposite parties were contacted by the complainant. Finding deficiency in service, the opposite parties were served with lawyer notices on 20-07-2013. The contents of the lawyer notices were denied by the opposite parties by reply notices. The omissions to provide the promised features in the new car would amount to deficiency in service and therefore the complainant seeks a direction to the opposite parties to supply those omissions and to pay compensation and costs.
3. Notices were issued to the opposite parties. They appeared and filed their respective versions.
4.The manufacturer M/s. Hyundai Motors in their version inter-alia contended as follows:
5. This Forum has no territorial jurisdiction to entertain this complaint. As the vehicle was purchased from Kottayam which is within the jurisdiction of CDRF, Kottayam. The relationship between the 1st and 2nd opposite parties are on principal to Principal basis. Therefore the deficiency in providing the required facilities are to be answered by the 2nd opposite party. All aspects of retail sale is strictly inter se complainant and the selling dealer concerned. The complainant took possession of the car after verifying the features. Every car had different variants and every variants has its own features. The complainant can not rely on the specification of the any other variant of i-10 car apart from the car he has purchased. The information given in the owners manual is current at the time of publication and it was likely to be modified. It is also mentioned in the brochure that some of the equipment illustrated in the brochure are not supplied as standard items and will be available at extra cost. Since owner's manual was provided with the vehicle, there was no question of making any misrepresentation. Proper reply to the legal notice was issued and there was no cause of action for the complainant to file this complaint. The complaint is misconceived and is therefore sought to be dismissed.
6. The 2nd opposite party in its version inter-alia contended as follows:
7. The complainant approached the opposite party on 07-05-2013 and a preliminary information sheet showing the details of the pricing of the vehicle under May 2013 scheme the complainant placed order for an Asta (AT) model Carbon Gray Colour i-con car by paying an advance amount of Rs. 25,000/-. As per clause 13 of the terms and conditions, the 1st opposite party reserved the right to change model specifications and features without prior notice. The complainant had agreed to that terms. All the features highlighted in the brochure produced by the complainant were supplied to the complainant. However instead of micro roof antenna, an enhanced efficient costly antenna was provided. Instead of deluxe floor console power outlet a central console power outlet was provided. The ignition key reminder feature and the driver seat belt warning were already incorporated in the vehicle. There was no promise in the brochure to provide passenger seat belt status indication and airbag on and off switch. The brochure produced by the complainant must have the seal of the 2nd opposite party if it was provided by them. The complainant is not entitled to get any relief as prayed for. The complaint is therefore liable to be dismissed.
8. The following issues were settled for consideration.
i. Whether the complainant had proved that there was any deficiency in service on the part of the opposite parties?
ii. Is the complainant is entitled to get costs and compensation from the opposite parties?
iii. Reliefs to be granted.
9. The evidence in this case consists of the oral evidence of PWs 1 and 2 and Exbts. A1 to A10 and C1 on the side of the complainant and the oral evidence of DW1 on the side of the opposite parties.
10. Issue Nos. i and ii. The complainant purchased a Hyundai i-10 Saloon car with a carbon gray colour from the 2nd opposite party and it was registered at Kottayam RT Office with registration No. KL-05-AG-8071 as seen from Exbt. A10. Exbt. A1 is the brochure in respect of the i-10 car manufactured by the 1st opposite party. It is seen from Exbt. A1 that brochure pertains to an automatic geared car which contain features like ABS automatic gear system etc. Exb. A2 and A3 are the information given to the complainant with regard to the three different variants of the car. The complainant chose to purchase Asta (AT) (M) car. As per Exbt. A1 Asta AT Cars are seen offered to provide micro roof antenna, deluxe floor console with power outlet, driver seat belt warring and ignition key reminder. The complainant had taken up a commission to inspect the car as per the orders of this Forum. The commissioner inspected the car on 13-08-2014 and he noted in Exbt. C1 that the vehicle was fitted with roof antenna but it was not micro type. The power outlet was not provided in the deluxe floor console in the vehicle. Ignition key reminder and warning chain sound were not functioning but the mechanism was found provided in the vehicle. The seat belt warring system were provided in the car but it was not functioning.
11. The learned counsel for the complainant argued that the opposite parties have made false representations and it was believing on the false representations that the car contained the key features as shown above, the complainant happened to purchase the car. A Consumer Forum has to examine the case on both sides from the angle of a reasonable man with ordinary prudence. When the complainant alleges that there is no proper functioning of the promised instruments his statement can be taken as adequate, to meet the requirement of burden of proof, when it is supported by his affidavit. The evidence of the expert as seen from Exbt. C1 has put his case on a higher footing. The evidence in this case as proved through Exbt. A1 brochure supported by the evidence of the expert, we find that the 2nd opposite party did not deliver a car to the complainant with all the features shown in Exbt. A1 in respect of the particular variant purchased by the complainant. The opposite party did not adduce any documentary evidence to dispute the case of the complainant. The oral evidence of DW1 do not have any impact on the allegation aired by the complainant as he was not concerned with the transactions. He admitted that certain features shown in the brochure were found missing in the car supplied to the complainant. The micro roof antenna, deluxe floor console power outlet were not provided. It was found in the commission report that the seat belt warning and ignition key warning chime were not working even though provision had been made in the car for the same.
12. On going through the evidence as above, we find that the complainant had succeeded in bringing home the allegations regarding the omission to supply the promised facilities in the car. We therefore find that the opposite parties had committed deficiency in service in the matter of providing the promised facilities to the complainant and therefore they are liable to pay compensation and costs to the complainant.
13. Issue no. iii. In the result, we find that the complaint is allowable in part and make the following directions.
i. The opposite parties shall provide the complainant's car with a roof antenna of micro type. The complainant shall be provided with a deluxe floor console with power outlet. The ignition key reminder, warning chime sound is made to be functional. The seat belt warning system also shall be made functional.
ii. The opposite parties shall pay Rs. 5,000/- towards compensation and Rs.2,000/-towards costs to the complainant.
iii. The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order and on production of the car by the complainant to carry out the directions contained in respect of supplying the omissions.
Pronounced in the open Forum on this the 22nd day of December 2016
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/ByOrder,
Senior Superintendent.
APPENDIX
Complainants Exhibits
Exbt. A1 : Brochure
A2 : Preliminary information sheet
A3 : Preliminary information sheet
A4 : Order booking form
A5 : Bank receipt dt. 31-05-2013
A6 : Copy of introduction,
safely systems etc.
A7 : Lawyer notice dt. 20-07-2013
A8 : Reply notice dt. 20-08-2013
A9 : copy of brochure
A10 : Copy of license
C1 : Commission report dt. 26-08-2014
Opposite party's Exhibits:
Depositions:
PW1 : Jolly Cherian
PW2 : Sunil S
DW1 : Manoj K. Mathew
Copy of order despatched on:
By Post: By Hand:
