State Consumer Disputes Redressal Commission
Sattar Khan Jamal Khan vs The General Manager, M/S. Dhot Motors ... on 28 April, 2016
1 F.A..No.:839/2014
Date of filing :26.12.2014
Date of order :28.04.2016
MAHARASHTRA STATE CONSUMER DISPUTE REDRESSAL
COMMISSION,MUMBAI, CIRCUIT BENCH AT AURANGABAD.
FIRST APPEAL NO. :839 OF 2014
IN COMPLAINT CASE NO.: 355 OF 2013
DISTRICT CONSUMER FORUM : AURANGABAD.
Sattar Khan S/o Jamal Khan,
R/o Plot No.78, Katkat Gate Road,
Near Asna Complex, Yunus Colony,
Aurangabad, Tq. & Dist.Aurangabad. ...APPELLANT
VERSUS
1. The General Manager,
M/s Dhoot Motors Pvt.Ltd.,
Hyundai Car dealer, adalat Road,
Aurangabad 431 001.
2. Hyundai Motors India Ltd.,
Business Square, A/102,
First Floor, Chakala, Andheri(E),
Kurla Road, Mumbai - 400093. ...RESPONDENTS.
CORAM : Mr.S.M.Shembole, Hon`ble Presiding Judicial
Member.
Mr.K.B.Gawali, Hon`ble Member.
Present : Adv.Mr.S.R.Bodade for appellant, Adv.Mr.P.N.Kapadia for respondent No.1, Adv.Mr.M.D.Narwadkar for respondent No.2.
O R A L JUDGMENT (Delivered on 28th April 2016) Per Mr.S.M.Shembole, Hon`ble Presiding Judicial Member.
1. Complainant Mr.Sattarkhan S/o Jamal Khan feeling aggrieved by the judgment and order dated 26.11.2014 passed by District 2 F.A..No.:839/2014 Consumer Forum, Aurangabad dismissing his consumer complaint No.355/2013 filed this appeal.
(For the sake of brevity appellant Shri.Sattar Khan is herein after referred as the complainant and respondents as the opponents)
2. Brief facts giving rise to this appeal are that:-
Opponent No.2 Hyundai Motors India Ltd Co. is a Hyundai motors manufacturing company. Opponent No.1 M/s Dhoot Motors Pvt.Ltd. is a dealer of opponent No.2. On 9.7.2013 complainant purchased i20 Diesel Sportz model car bearing registration No.MH-20- CH-1696 from opponent No.1 for a consideration of Rs.7,23,612/-.
3. On 5.9.2013 the car met with minor accident and its external parts were damaged. Therefore on the same day complainant took his car to the service centre of opponent No.1 and handed over it for repairs. That time there was no noise from the car engine. However, subsequently after some days opponent No.1 informed the complainant that there is noise in the engine and further informed that there is manufacturing defect i.e. camshaft and it is necessary to change it etc. It is averred by the complainant that opponent No.1 without his consent opened the car engine and falsely claimed excessive repairing charges. It is further submitted that opponent No.1 neither taken efforts to show the damaged parts to the complainant nor provided copy of job card despite his request. On 9.10.2013 he also made efforts to contact Manish Dhoot who is incharge of opponent No.1. But said Mr.Manish Dhoot refused to meet him. Therefore he confirmed that opponent has purposely opened the car engine so as to claim more repairing charges and thereby committed deficiency in service and unfair trade practice.
3 F.A..No.:839/20144. It is further submitted that on 2.10.2013 complainant received SMS from one Sujit Parma a person from the workshop of opponent No.1 informing him that the car is ready and visit the workshop for testing car. He has also claimed testing charges at Rs.600/-. On receiving message when he visited the workshop of opponent No.1 he found bonnet of the car was opened and half engine was missing. Therefore he made complaint with opponent No.2. In response to his complaint, opponent No.2 informed that the problem will be solved within two days. But no action is taken till 11.10.2013. Thus according to complainant there was deficiency in service on the part of opponent No.2 also.
5. Moreover, it is submitted by the complainant that despite his repeated request opponents failed to remove the defects from car engine. Therefore by notice dated 15.10.2013 he claimed replacement of car engine or complete car. But opponent did not give any response to his notice. Therefore alleging deficiency in service on the part of opponent, complainant has filed consumer complaint claiming replacement of car engine or complete car or in the alternative refund of price of car. He has also claimed compensation Rs.50,000/- towards mental agony and Rs.50,000/- more towards expenses incurred for hiring taxi. Further he has claimed amount of Rs.25,000/- towards cost of the proceedings, Rs.5000/- more towards notice charges.
6. In response to the complaint notice opponents appeared before the Forum and by separate written version resisted the complaint. They did not dispute that on 5.9.2013 car was handed over to the opponent No.1 for repairs. However, opponent No.1 denied that only external part of the car were damaged and the car was brought to the workshop for external repairs only. It is submitted that as the car met with an accident and thereafter was brought to the workshop for repairs, as per routine it was checked and inspected under 4 F.A..No.:839/2014 supervision of Hyundai Service Centre on 12.9.2013 and was decided to change injector. Thereafter on 24.9.2013 injectors were fixed but the some noise from engine was noticed. Thereafter when the head of the car was dismantled both the camshaft run out too high and therefore it was decided to change the same. As the same parts were not available those parts were brought by placing the order and thereafter the same parts were received on 8.10.2013. Some parts were replaced in supervision of technicians and car was made ready for delivery on 10.10.2013. Accordingly, complainant was informed but complainant did not take delivery of the car and filed false complaint. It has denied all other adverse averments made by the complainant and submitted to dismiss the complaint with compensatory cost of Rs.1 lakh.
7. Opponent No.2 by its separate written version also denied complainant's claim contending inter alia that there is no manufacturing defect in the car and therefore complainant is not entitled for replacement of the car or refund of the amount. It has denied that it was not necessary for opponent No.1 to open the engine and it was opened without consent and knowledge of complainant. It is submitted to dismiss the complaint.
8. On hearing both side and considering evidence on record District Consumer Forum held that opponents have not committed deficiency in service or unfair trade practice. However, it is observed that since the entire issue about noise from engine is being technical in nature, the same cannot be decided by the Forum and therefore declined to consider it informing the complainant that he may file complaint in proper court of law. It is further directed complainant to take possession of the vehicle if he desire as opponent No.1 has already assured to deliver the possession of the vehicle by making necessary repairs without charging anything. In keeping with these findings Dist.Consumer Forum dismissed the complaint.
5 F.A..No.:839/20149. Feeling aggrieved by that judgment and order, complainant came to this Commission in appeal.
10. We heard learned counsel for complainant and opponent No.1. We have also perused the written notes of argument submitted by counsel for all the parties. We have also perused the copy of impugned judgment and order, copies of complaint, written version , notice and other documents including insurance claim form, warranty card, survey report etc. However, we have had no opportunity to hear Mr.M.D.Narwadkar advocate appearing for opponent No.2 as he remained absent at the time of final hearing.
11. Almost all the facts except the contention of complainant that opponent No.1 without his knowledge and consent opened the engine of the car and falsely informed him that parts of the engine i.e. both camshaft run out too high and required to be changed with intention to claim more repairing charges, are not disputed. Moreover during the course of argument, it is vehemently argued by Mr.Bodade learned counsel for the complainant that opponent No.1 without knowledge and consent of the complainant received amount of insurance claim from insurance company. It is submitted that when the complainant handed over the car to the opponent No.1 his signatures were obtained on insurance claim form and subsequently by filling that form falsely received amount of insurance from insurance company. It is submitted that though opponent No.1 got assessed the damages through surveyor, no survey report was given to the complainant etc. The job card was also not given to the complainant despite his repeated request.
12. Per contra, Mr.P.N.Kapadia learned counsel appearing for opponent No.1 submitted that after inspection of the car damages were assessed through surveyor and thereafter with the consent of 6 F.A..No.:839/2014 complainant, opponent No.1 received insurance amount from insurance company but complainant has falsely alleged that insurance claim form was not given to him. But opponent No.1 without his knowledge obtained his signature on the insurance claim form etc.
13. On perusal of insurance claim form as well as survey report which are produced by opponents it manifests that insurance claim form was signed and submitted by complainant through opponent No.1. Signatures of the complainant on the insurance claim form are not disputed. Therefore the contention of complainant that his signatures were obtained on blank insurance claim form, cannot accepted. When complainant is educated businessman who maintains the car, it cannot be accepted that his signatures on the insurance claim form were obtained by opponent without his knowledge.
14. Moreover, in the evidence affidavit of opponent No.1 it is submitted that opponent No.1 repaired the car by replacing its part and informed complainant that car is ready for delivery and opponent No.1 was ready to hand over the possession of the car without claiming more replacing charges. Therefore it cannot be accepted that opponent No.1 failed to supply job card.
15. As far as complainant's averment that engine of the car was opened without his consent is concerned, when undisputedly car had met with an accident and the car handed over to the complainant for repairs. Consent of the complainant for inspection of car and opening the engine was not required. It was obligatory on the part of mechanic of service centre of opponent No.1 to inspect the car thoroughly before making repairs of damaged car. Therefore contention of complainant that the engine of the car was not required to be opened but it was 7 F.A..No.:839/2014 opened with an intention to claim more repairing charges are not to be sustainable cannot be accepted.
16. As far as the claim of the complainant for replacement of the engine or entire car or in the alternative refund amount of price is concerned, in the absence of any specific allegation that there was manufacturing defect in the engine or car such claim cannot be said to be sustainable. It is also not the contention of complainant that there is manufacturing defect in the car. However, he has averred that after opening engine by technician of opponent No.1 he was informed that there is manufacturing defect in the engine. But the same is also not proved by leading any expert evidence. In our view opponent No.1 is being a dealer of opponent No.2 manufacturing company, it would not have informed the complainant that there is manufacturing defect in the engine. Therefore such averments made by complainant are being unfounded and imaginary cannot be sustained.
17. However, without considering all these facts District Consumer Forum committed error in observing that entire issue is being technical in nature and there being various complex issues it is not possible for Forum to decide it. When the complainant has failed to prove that there is any manufacturing defect, it was not necessary for the Forum to make such observation. Anyhow Forum has rightly dismissed the complaint and directed complainant to take possession of the car if he desires as opponent No.1 is ready to hand over the car without claiming any repairing charges.
18. For the foregoing reasons since Forum has rightly dismissed the complaint, no interference is warranted.
19. In the result, appeal is being devoid of any merit deserves to be dismissed. Hence the following order.
8 F.A..No.:839/2014O R D E R 1. Appeal stands dismissed. 2. No order as to cost.
3. Copies of the judgment be supplied to both the parties.
Sd/- Sd/- K.B.Gawali, S.M.Shembole, Member Presiding Judicial Member Mane