IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 31st day of August, 2017.
Filed on 19/08/2016
Present
1. Smt. Elizabeth George, President
2. Smt. Jasmine.D. (Member) in
C.C.No.274/2016
between
Complainant:- Opposite Parties:-
Sri. Dr.Iran Shah 1. S.S.Hyundai
S/o Shamsudeen Mohammad, Oppo.CSI Church
Medical Practitioner Mavelikkara Thiruvalla Rd
Lotus, Varavila PO Near Mitchel Junction
Vavvakkavu(Via) Mavelikkara,
Clappana, Kollam 690528 Alappuzha 690 101.
(By Adv. Reg.V.Geroge)
(By Adv.K.K.Murukesan)
2. M/s. Pothens Hyundai
Oppo.CSI Church,
Mannamthala White House,
M.C.Road, Maruthoor,
Near Mar Ivanious College,
Trivandrum 695 028.
(By Adv. P.N. Shylaja)
3. Hyundai Motor India Ltd
5th & 6th Floor, Corporate One
Baani Building, Plot No.5,
Commercial Centre, Jasola,
New Delhi-110 076.
(By Adv.K.T.Anishmon)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
The complainant had purchased from the 1st opposite party a brand new Hyundai Polar White Model Petrol Car, Creta 1.6 VTVT SX+ on 10-3-2016. In addition to the value of the Creta car the 1st opposite party has also added an amount of Rs.1,82,372/- on different heads and altogether an amount of Rs.13,48,196/- was invested on the above said Creta car for getting the same on road. Complainant had to mortgage the entire gold of his wife for finding part of the funds to by the said car. Complainant had to further avail loan from the State Bank of India Karunagappally Branch and now the vehicle is hypothecated to Sate Bank of India. In order to purchace the brand new Creta car he had to dispose of his old car for a lessor amount. On 22/5/16 at about 7.00a.m, when the complainant was travelling alone in his said new creta car from Karunagappally to Anayara in Thiruvanathapuram, in connection with the Indian Diabetic Education Association (IDEA) meeting on that day, suddenly, the complainant heard a noice in the said car. First he thought that it was from outside. After travelling about 15 K.Ms further towards Kazhakkoottam, he developed dizziness and suffocation. Since he is a Doctor he could realize the consequences and he suddenly stoped the car, but he was not able to step out of the car as there was nobody there to help him out. So he opened the door of the car and lied down on the driver seat for about 15 miutes. After drinking a cup of water only he could step out of the car. In the meanwhile, the inside and outside temperature of the car increased heavily and fumes and smoke were coming out through the sides of the bonnet. Immediately he raised the bonnet and the engine cabin was full of fumes and smoke, which were rushing to his face. There after complainant with great difficulty managed to drive the said vehicle upto the 2nd opposite party’s office which was about 5 KM away from the spot. The help line engineers of the 2nd opposite told the complainant that it is not under their purview of repair as it is due to a manufacturing defect of water pump fully system and they would informed that service engineer. There after the said vehicle was taken away by tagging the car for repair by the service people of the 2nd opposite party to Maruthur which about 15 KMs away from the dealer show room for the necessary repair of the manufacturing defect. Complainant told to hire a taxi to go his conference. Ever since he had been using rented car for his journey. The people at the office of the 2nd opposite party also found that there is a manufacturing defect in the car. Ever since then his car is lying in the service centre of opposite party. On 1/6/16 complainant issued a notice to the opposite party detailing about his complaint in respect of the said car the complainant received an undated letter from the 2nd opposite party on 20/6/16 informing complainant that the vehicle has been ready for delivery on 30-5-16 but till date no communication was received from them informing about such condition of the car. The complainant has completely lost his faith in the product of the opposite parties and he does not want to bear with a car with a manufacturing defect for the rest of his life. Aggrieved by the inaction of the opposite parties this complaint is filed.
2. Version of the 1st opposite party is as follows.
The vehicle was in good condition and the complainant had acknowledged the condition on purchase and thereafter in the 1st free service. The complaint is due to the negligent act of the complainant. The 1st opposite party is not liable for any relief prayed by the complainant.
3.Version of the 2nd opposite party is as follows:
As per request of the complainant the 2nd opposite party took the vehicle to the service centre on 22/5/2016. The vehicle has water pump pulling problem and the problem of the vehicle is rectified and intimated to the complainant through telephone and send letter stating that the vehicle has been ready for delivery at road worthy condition from 30-05-2015 onwards and intimated through letter to the complainant but he not turned up for taking the vehicle. There was no misrepresentation by this opposite party. The whole case of the complainant is false and cooked up for making wrongful gain from this opposite party. This complainant is based on false and frivolous contention contrary to the true facts.
This opposite party is in no way liable to replace the vehicle or refund the cost incurred nor does the vehicle suffer any manufacturing defects. There is no unfair trade practice or deficiency in service.
4.Version of the 3rd opposite party is as follows.
The complainant purchased a Hyundai Creta from the 1st opposite party on 30-03-2016. The vehicle was reported for first free service on 11-04-2016 at a mileage of 1898 Kms. The vehicle was once again reported for running repairs with the 2nd opposite party on 23-05-2016 at the mileage of 4850Kms. with a concern that the vehicle was not starting. The 2nd opposite party resolved the problems and reported the complainant that the vehicle was ready for delivery from 30-05-2016. The complainant refused to take delivery of the vehicle and had filed the above complaint seeking substitution of the car or in the alternative to refund the purchase price of the car. The car was repaired as per the warranty policy but the complainant has not chosen to take delivery of his car and there is no manufacturing defect in the vehicle and vehicle was sold to the complainant in a perfect condition.
5.The complainant was examined and PW1. The documents were produced which marked as Ext.A1 to A41. The Expert Commissioner was examined as CW1. The expert report is marked as Ext.C1. No oral or documentary evidence adduced from the side of the opposite party.
6.Points for considerations are:
1) Whether there is any deficiency in service on the part of opposite parties?
2) If so the reliefs and costs.
7. Complainant purchased a brand new Hundai polar white model Petrol car Creta 1.6 VTVT SXT from the 1st opposite party on 10/3/2016 for Rs.11,62,824/-. In addition to the value of said car he had to give Rs. 1,82,372/- for the accessories and insurance etc.. Ext.A1 and Ext.A2 evidenced the same. The said car carried warranty for 3 years unlimited kilometer. Ext.A6 evidence the same. According to the complainant on 22/5/2016 at about 7 A.M while he was travelling alone in his new creta car some sounds and noise emanated from the engine side and temperature also raise and after driving about 15 km further he developed dizziness and suffocation, inside and outside temperature of the car increased heavily and fumes and smoke were coming out through the sides of the bonnet. So he raised the bonnet and found that engine cabin was full of fumes and smoke. He further alleged that he managed to drive the vehicle with great difficulties up to 2nd opposite parties office. Thereafter his vehicle was taken away by tagging the car for repair by the service people of 2nd opposite party. The 2nd opposite party filed version admitting that they took the vehicle to the service centre on 22/5/2016 and the vehicle has water pump pulling problem and problem is rectified and they informed it to the complainant through telephone and letters , but complainant did not turned up for taking the vehicle. But according to the complainant he waited for about 10 days and since there was no news he issued a lawyers notice to the opposite parties and only after receiving that notice the 2nd opposite party sent a undated letter which was received by the complainant only on 2-/6/2016. Copy of the lawyer’s notice produced and marked as Ext.A11. The postal acknowledgement card in respect of the Ext.A11 notice acknowledge by the opposite party 1 to 3 are produced and marked as Ext.A13 to Ext.A14. On verifying Ext.A11 lawyers notice we came to see that complainant demanded either a replacement of the car with a new car or an amount of Rs. 14,50,196/- from the opposite parties. According to the complainant the disputed vehicle has manufacturing defects. It is admitted by the 2nd opposite party that the vehicle has water pump pulling problem but they stated that they have rectified the problem and it is in a road worthy condition. So the principal question which falls for consideration is whether there was any manufacturing defect in the newly purchased car. At the instance of the complainant an expert commissioner was appointed and the report produced is marked as Ext.C1. The expert commissioner was examined as CW1. Ext.C1 report shows that the vehicle has covered 4850km only and at present visually there is no serious problems exists in the vehicle. But he further stated that the service authorities have found damage in water pump pulley/Bolts hence replaced the water pump assembly and refilled new coolant in the cooling system and vehicle which has just covered 4850 kilometers was not supposed to undergo a replacement of cooling water pump unless it has got a SERIOUS Defects. According to the expert commissioner the only possibility is manufacturing defect. He again noted that even if the vehicle is running smoothly the chance of recurring a pully damage/ Bolt failure cannot be ignored. While cross examing the expert commissioner he stated that ‘Cu km[-\-¯nsâ
]qf-fnbpw ]¼pw Iqsfâpw F¶nh amän-bn-«p-s¶pw AXv Cf¡n sh¨n-cn-¡p¶ t^mt«m-{Km^v F\n¡v \ÂIn-bn-«p-f-f-Xp-am-Wv’. So he stated in the report that unless the water pump has got a serious defect the vehicle was not supposed to undergo a replacement of cooling water pump. In order to contradict the statement filed by the expert commissioner no attempt was made from the parts of the opposite party 2 and 3, by producing any documentary and oral evidence. It is pertinent to notice that fumes and smokes coming out from the car within a short period of purchase the the car had been driven only up to 4850 km. So we will presume that it was due to manufacturing defect of the car. Sufficient evidence had been proved as discussed above. The learned counsel of the 3rd opposite party submitted a decision reported in 2005 CPJ(NC) page 102 and argued that if a part could he replaced or a defect could he removed then replacement of the vehicle cannot be ordered.
In this case it is an admitted fact that the vehicle has water pump pulling problem. According to the opinion of expert commissioner it is a manufacturing defect and even if the vehicle is running smoothly the chance of recurring such a pully damages/Bolt failure cannot be ignored. Complainant purchased the vehicle by spending a huge amount and he never expected such problems from a new car. So it is not fair to compel him to take back the said car when there is a chance for recurring such defects even if it is rectified. After paying a large amount the consumer would not be satisfied with the vehicle if it gives constant trouble. The supply of a defective car by accepting huge amount from the complainant amounts to defect and deficiency in service on the part of the opposite parties.
8. According to the complainant he paid Rs. 11,62,824/- towards the value of the vehicle and Rs. 1,82,372/- as addition towards insurance road tax Registration and accessories. The car was taken to the 2nd opposite party service centre on 22/5/2016 and now also it is in their custody. Complainant claimed refund of complete value of the on road price of his creta car or a new creta car and damages for mental agony caused to him. It is true that the complainant must have suffered mental agony because of the defects which occurred within a short span of purchase of the car which he purchased and with great expectation on the good will of the opposite party. Hence he is entitled for some compensation on account of mental agony and disappointment suffered by him.
In the result complaint is allowed. The opposite parties are directed to provide a new creta car to the complaint. They are also directed to give Rs.10,000/- (Rupees Ten Thousand only) towards compensation and Rs. 3000/- (Rupees Three thousand only) towards cost of the proceedings. Failing which they are directed to refund Rs. 13,45,196 (Rupees Thirteen lakh Forty five thousand One hundred and Ninety six only) [the price of the car and additional amount] which they received from the complainant with 9% interest from the date of complaint till realization. The order shall be complied within one month from the date of receipt of this order.
Pronounced in open Forum on this the 31st day of August, 2017.
Sd/- Smt.Elizabeth George (President):
Sd/-Sri.Antony Xavier (Member):
Sd/-Smt.Jasmine. D. (Member):
Appendix:-
Evidence of the complainant:-
PW1 - Iran shah (Witness)
Ext.A1 - Memorandum of complainant.
Ext.A2 - Vehicle sale statement sheet dtd. 12/3/2016.
Ext.A3 - Insurance certificate.
Ext.A4 - Copy of RC book
Ext.A5 - Copy of TAX receipt
Ext.A6 - Technical Specification copy
Ext.A7 - Account Statement
Ext.A8 - Account Statement
Ext.A9 - Account Statement
Ext.A10 - Vehicle sale deed.
Ext.A11 - lawyers notice dtd.01/6/2016.
Ext.A12 - Copy of Postal receipt
Ext.A13 - Proof of Delivery
Ext.A14 - Proof of Delivery
Ext.A15 - Copy of Letter from Hundai
Ext.A16series - Copy of letter to Hundai
Ext.A17Series - Copy of letter to Hundai
Ext.A18 - Proof of Delivery
Ext.A19 - Copy of letter from Hundai
Ext.A20Series - Copy of letter dtd 01/7/2016
Ext.A21 - Proof of Delivery.
Ext.A22 - Copy of Vehicle rent deed.
Ext.A23 - Copy of receipt dtd 26/5/16
Ext.A24 - Copy of receipt dtd 26/6/16
Ext.A25 - Copy of receipt dtd 26/7/16
Ext.A26 - Copy of receipt dtd 26/8/16
Ext.A27 - Copy of receipt dtd 26/9/2016
Ext.A28 - Copy of receipt dtd 26/10/16
Ext.A29 - Copy of receipt dtd 26/11/16
Ext.A30 - Coy of receipt dtd 26/12/16
Ext.A31 - Copy of receipt dtd 26/01/17
Ext.A32 - Coy of Invoice 30/7/16
Ext.A33 - Copy of Cash Bill dtd 10/8/16
Ext.A34 - Copy of Retail invoice dtd 24/9/16
Ext.A35 - Copy of Tax Invoice dtd 30/11/16
Ext.A36 - Copy of Tax Invoice dtd 30/11/16
Ext.A37 - Copy of Bill DD Autos dtd 9/12/16.
Ext.A38 - Copy of Receipt dtd. 15.12 16
Ext.A39 - Copy of Tax invoice dtd 30/12/16.
Ext.A40 - Copy of Insurance Certificate dtd 11/1/17
Ext.A41 - Copy of Receipt
Ext.CW1(Court witness) - Kamal Krishna .
Ext.C1 - Commission Report.
Evidence of the opposite parties:- Nil
// True Copy //
By Order
Sd/-
Senior Superintendent
To
Complainant/Opposite party/S.F.
Typed by:- br/-
Compared by:-
