State Consumer Disputes Redressal Commission
Hyundai Motors India Ltd. vs Affiliated East West Press (P) Ltd. on 14 February, 2007
14-02-2007 IN THE STATE COMMISSION:DELHI (Constituted under Section 9 of The Consumer Protection Act, 1986) Date of Decision: 14-02-2007 Appeal No.2007/15 (Arising out of Order dated 28-11-2006 passed by the District Consumer Forum-VII, New Delhi, in Complaint Case No.210/2006) M/s. Hyundai Motors India Ltd. Through Its General Manager (Customer Care), Mr. D.S. Jang, A-30, Mohan Cooperative Industrial Area, Mathura Road, New Delhi 110044. . . . Appellant Versus 1. Affiliated East West Press (P) Ltd., Through Its Managing Director Mr. Sunny Malik, G-1/16, Ansari Road, Darya Ganj, New Delhi 110002. 2. M/s. Rama Motors (P) Ltd., A-2/12, Safdarjung Enclave, New Delhi 110029. . . . Respondents CORAM: Justice J.D. Kapoor, President Ms. Rumnita Mittal, Member
1. Whether Reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor (Oral)
1. On account of having sold a highly defective vehicle, Accent Car CRD Diesel Model, manufactured by it, the appellant has been vide impugned order dated 28-11-2006 directed to replace the vehicle with a new vehicle of the same model with fresh warranty of one year and pay Rs. 10,000/- as compensation on account of great hardship and inconvenience suffered by the respondent. Feeling aggrieved the appellant has preferred this appeal.
2. The grievances of the respondent that led to the impugned order in brief were as under:-
The respondent No. 1 purchased a Car make Hyundai Accent diesel model from respondent No.2, manufactured by the appellant for a sum of Rs.6,59,783/- on 29-12-2004, for the use of its Managing Director. The respondent purchased the car acting on the representation made by the appellant in its advertisements that the car conformed to Bharat Stage-II emission norms but just after one month of the purchase the car started emitting heavy fuel smell and there was leakage of fuel and the mileage was only 12 Kms per litre. The vehicle was taken to respondent No.2, the dealer, who brushed aside the complaint saying that it was normal. Again after some time the car started emitting black smoke and there was heavy fuel smell. Respondent lodged a complaint with respondent No.2 who carried out some repairs vide job Card dated 22-03-2005 but the problem persisted. The vehicle was subjected to frequent repairs but the defects could not be rectified. Repeated attempts to rectify the defects failed and the problem of fuel smell and smoke emission could not be rectified which appeared to be on account of some inherent manufacturing defects. However, his request did not elicit any positive response. The respondent contended that during the warranty period of one year the vehicle was subjected to repairs on several occasions and though the respondent No.2 did not charge anything but the defects could not be permanently removed. The respondent No.2 though extended the warranty for one year free of cost still he could not use the vehicle without trouble even for a short period. The respondent No.1 therefore filed the instant complaint before the District Forum claiming refund of the cost of the vehicle along with amounts spent by him for registration and insurance, compensation on account of expenditure incurred by him for using alternative transportation as the vehicle was not roadworthy and also a sum of Rs. 50,000/- as compensation for mental and physical harassment.
3. As against this, the appellant denied the existence of any manufacturing defect and maintained that they had complied with the terms and conditions of the warranty. As and when any complaint was lodged, the vehicle was repaired without any cost and also extended the warranty free of cost for one year as a goodwill gesture. According to the appellant, the car had no defects and was roadworthy and in fact the vehicle was extensively used and during one year it covered more than 20,000 Kms. It further raised the preliminary objection that the respondent was not a consumer within the ambit of Consumer Protection Act and the complaint was liable to be dismissed.
4. The impugned order has been assailed by the Ld. Counsel for the appellant, firstly, on the ground that there is no manufacturing defect in the car and there was no occasion for ordering replacement of the car as the problem in the engine was on account of use of adulterated fuel and not on account of manufacturing defect; secondly, the car had done 24000 Kms from December 2004 till January 2006, i.e. 2000 Kms per month, which no car with any manufacturing defect can do. The District Forum has not taken into account the affidavit of the Automobile Engineer of the appellant company Mr. Nitin Chug that the car has no manufacturing defect and, therefore, replacement was not required; and thirdly, if at all there was any problem with any particular part including the engine, that particular part can be ordered to be replaced; and lastly that the factum of the car having met with an accident has not been taken into account.
5. There is no dispute that the respondent lodged a report with the appellant about the heavy fuel smell or leakage of fuel within one month of the purchase of the car. The defect was attended to as is apparent from the job card but the problem persisted and sometimes the car would not start and all the time emitted black smoke and this could not be rectified though the vehicle was subjected to repeated repairs. The record also shows that even the engine was opened but the problem persisted. The record further shows that the respondent sent large number of letters to the appellant complaining about the defects and requested the appellant to replace the defective vehicle. The respondent would take the car to the repairing centre and it used to be returned to him with the assurance that the defects have been rectified.
He would drive the car for some time and again the problem would reappear. He took the car on large number of occasions for rectification of defects.
6. Representations were made by the appellant as to the quality of the car that it was a result of highly advanced technology conforming to Bharat-II Emission Norms which representation was subsequently found to be false.
7. It is a misconceived notion that a vehicle unless it suffers from manufacturing defects is not so defective that either its replacement or refund of cost cannot be ordered. There is no such concept envisaged by the provisions of the Consumer Protection Act as to the goods having manufacturing defect should be replaced by new goods of similar description which shall be free from any defect.
Whenever a consumer purchases a brand new car, and that too on the representation that the vehicle is of very high quality and potency and standard because of the advanced technology, and pays heavy amount, he does so only to avoid any hardship or inconvenience that is caused by purchasing a second hand vehicle.
8. If a brand new vehicle starts giving problem within a short duration of one month and is taken to the garage time and again at the cost of time and expenses incurred by the consumer, the amount of mental agony, harassment and emotional trauma and physical discomfort the consumer suffers is immeasurable in terms of money, though money is known as the panacea for all maladies.
9. It is again a misconceived notion that in respect of the vehicle expert opinion should be obtained so as to find out whether it suffers from any manufacturing defects or that the vehicle could be declared as a defective vehicle. Section 13 of the Act, only confines to defect in the goods which could be determined without proper analysis or test of the goods without obtaining a sample of the goods and sealing it, authenticating it and sending the sample so sealed to the appropriate laboratory for making analysis or test.
10. Wherever a question crops up for determining whether the vehicle is defective or not the factum of the vehicle being taken to the garage time and again for removing one defect or the other has to be ascertained on the anvil of the definition of the word defect provided by Sec. 2(1)(d) of the Act. As per this definition, defect means any fault, imperfection, short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract expressed or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.
11. While applying the aforesaid standard of the quality, potency and nature of the goods in respect of a vehicle the visits of a consumer to the garage, number of defects which are pointed out and showed in the job card and rectification and removal of these defects effectively, are certain factors for determining and deciding whether the vehicle is so defective that needs immediate replacement.
12. In modern days busy life, no person has time to take a brand new vehicle every second day or once in a month to the dealer or to the manufacturer for removing one defect or the other because he incurs so much expense and time at the cost of his business or profession that requires adequate compensation.
13. The word compensation has a very wide connotation and includes the damages on each and every account namely actual loss of time and expenses incurred by a consumer, mental agony, harassment and emotional suffering and physical discomfort suffered by him. So much so, the damages on account of injustice meted out to the consumer on account of having been sold a defective vehicle or goods.
These are only token compensation.
14. The Supreme Court in GDA V/s Balbir Singh (2004) 7 CLD 861 (SC) has dealt with the concept of compensation to be awarded to a consumer on account of deficiency in service on the part of the service provider or against the trader or manufacturer for selling defective goods or indulging in unfair trade practices.
15. The observations of the Supreme Court in this regard are as under:-
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
16. Under Sec.
14 of the Consumer Protection Act, 1986 the Consumer Forum / Commissions have four options. First is to direct the trader to remove the defects from the goods in questions. Second is replacement of goods with goods of similar description. Third option is to return the complainant the fees charged or price paid by him. The fourth option is to pay such amount as may be awarded as compensation (emphasis supplied) to the consumer for loss or injury suffered by him due to the negligence of the O.P. So much so, it empowers the Forum or Commissions to grant punitive damages, in such circumstances, as it deems fit.
17. These provisions were made keeping in view that the disputes under the Consumer Protection Act would be adjudicated and decided within short duration of 3-6 months. As every law perishes if its enforcement and implementation is not ensured as per statutory provisions, so has the Consumer Protection Act` met the fate.
It is almost an ineffective law, as the time consumed by the forum and Commissions in deciding case is more that what the Civil Courts used to take. That is why the axiom goes that some remedies are worse than the diseases and the perils.
18. This Commission has, during the short duration of two and a half years, decided about five thousand matters which were pending for more than ten years, whereas these should have been adjudicated within a maximum duration of six months. The fault does not lie upon the quasi judicial bodies. It lies upon the persons, who are responsible for the enforcement of the Act, i.e. the Government authorities who spend lacs of rupees by giving advertisement in the papers for awakening the consumers about their rights but doing nothing to redress their grievances.
They arouse the aspirations of the consumer, on the one hand, and, on the other hand, adopt a very cavalier and insensitive attitude in providing the infrastructure required for expeditious disposal of cases. These bodies were created for redressing the grievances of the consumers expeditiously and without any expenses but due to the inaction and careless attitude of the government, these have become cause of miseries for the consumers.
19. Without tarrying further on this aspect, we revert to the matter in question and find that the vehicle has already run more than 25000 Kms and has become about 3-4 years old and, therefore, the order for replacement of the vehicle would not be pragmatic as there is no guarantee that the new vehicle even if given to the respondent would be defect free and may relegate the parties to square one.
20. It is with this object that we have been taking the view that wherever the goods have become old and the new goods are to be replaced, the Consumer Form should order for refund of the cost of the goods and the unscrupulous trader or manufacturer be asked to take it back and over and above pay compensation for the sufferings of the consumer.
21. In the result, we partly allow the appeal by modifying the impugned order to the following effect:-
i) The appellant shall refund the entire cost of the vehicle received by it, i.e. Rs. 6,59,783-00 and take back the vehicle from the respondent along with all the necessary papers and the formalities to be performed by the respondent and pay Rs. 25,000/- as lump sum compensation for mental agony and harassment suffered by him, which shall include the cost of litigation also.
22. Appeal is disposed of in above terms. Order shall be complied with within one month from the date of receipt of this order.
23. A copy of order, as per statutory requirement, be forwarded to the parties free of cost and also to the concerned District Forum and thereafter the file be consigned to record.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member HK