State Consumer Disputes Redressal Commission
Hyundai vs Surbhi Gupta on 1 May, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 80 of 2014 Date of Institution : 4.3.2014 Date of Decision : 1.5.2014 KLG Hyundai, Ashwani Automobiles Pvt. Ltd., 181/3-B, Industrial Area, Phase-1, near Tribune Chowk through its Director. Appellant/Opposite Party No.2 V e r s u s 1. Surbhi Gupta wife of Sh.Pankaj Gupta, # 362, Sector 13 Extn. Urban Estate, Karnal (Haryana) PIN 132001 2. Hyundai Motor India Ltd., North Regional office, DLF Tower-3, 3rd Floor, Rajeev Gandhi Technology Park, Chandigarh, through its Managing Director. 3. Orion Motors Pvt. Ltd., 7th K.M.Stone, Opp. BBMB, O.P. Jindal Marg, Hisar (Haryana) 4. Samta Hyundai, 119/8, Milestrone, G.T.Road, Karnal through its Proprietor. .Respondents Argued by: Sh. Gaurav Bhardwaj, Advocate for the appellant. Sh. Sunil Narang, Advocate for respondent No.1 Sh. Amit Gupta, Advocate for respondent No.2. Service of respondents No.3 and 4 dispensed with vide order dated 5.3.2014 First Appeal No. : 89 of 2014 Date of Institution : 7.3.2014 Date of Decision : 1.5.2014 1. Hyundai Motor India Ltd., North Regional office, DLF Tower-3, 3rd Floor, Rajeev Gandhi Chandigarh Technology Park, Chandigarh, through its Managing Director now at Hyundai Motor India Limited, Plot No.H-1 SIPCOT, Industrial Park, Irrugattukottai Sriperumbudar Taluk, Kancheepuram District, Tamilnadu-602105 through its authorized representative Manish Kumar. Appellant/Opposite Party No.1 V e r s u s 1. Surbhi Gupta wife of Sh.Pankaj Gupta, # 362, Sector 13 Extn. Urban Estate, Karnal (Haryana) PIN 132001 2. KLG Hyundai, Ashwani Automobiles Pvt. Ltd., 181/3-B, Industrial Area, Phase-1, Chandigarh through its Proprietor 3. Orion Motors Pvt. Ltd., 7th K.M.Stone, Opp. BBMB, O.P. Jindal Marg, Hisar (Haryana) 4. Samta Hyundai, 119/8, Milestrone, G.T.Road, Karnal through its Proprietor Respondents BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh. Amit Gupta, Advocate for the appellant.
Sh. Sunil Narang, Advocate for respondent No.1 Sh. Gaurav Bhardwaj Advocate for respondent No.2.
Service of respondents No.3 and 4 dispensed with vide order dated 10.3.2014 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This order shall dispose of the aforesaid two First Appeals bearing No. 80 of 2014 titled as KLG Hyundai Vs. Surbhi Gupta & Others filed by Opposite Party No.2 (now appellant) and No.89 of 2014 tiled as Hyundai Motors India Ltd. Vs. Surbhi Gupta & Ors. filed by Opposite Party No.1 (now appellant), against the order dated 30.1.2014, rendered by the District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter referred to as the District Forum) vide which it allowed the complaint filed by the complainant (now respondent No.1 in both the appeals) and directed Opposite Parties No.1&2 jointly and severally in the following manner;
15] In view of the foregoing discussion & findings, we opine that the vehicle in question is suffering from manufacturing defect, as a result, the maneuvering of steering is not smooth, the vehicle is pulling on to the left hand side and there is unusual wear & tear of the tyres. Resultantly, the complainant had to undergo a lot of physical harassment, mental tension as well as he was forced to enter into unnecessary litigation on this account. Thus, the deficiency in service on the part of OPs No.1 & 2, is writ large. We therefore allow this complaint against OPs No.1 & 2. Accordingly, the OPs No.1 & 2 are jointly & severally, directed as under:-
i) To replace the said Verna Car with a brand new car of the same make & model, free of charge. In case, the car of same make & model is not available, then a new model of the same Car be supplied to the complainant, by charging or refunding the difference of amount/cost of the previous car i.e. Rs.807000/-. The complainant shall also take the car in question to the workshop of OP No.1 & 2 within 10 days from the date of receipt of copy of this order.
ii) To pay a sum of Rs.22,472/- to the complainant, which she had paid to PEC University of Technology, Chandigarh for getting the vehicle inspected, as per their demand made vide letter dated 11.06.2013 (Marked as Y).
iii) To pay Rs.1,00,000/- to the complainant as compensation for causing her great mental agony and physical harassment, apart from Rs.25,000/- as litigation cost, within 30 days from the date of receipt of copy of this order, failing which they shall be liable to jointly & severally pay the awarded compensation amount of Rs.1,00,000/- along with interest @12% p.a. from the date of filing the present complaint i.e. 02.11.2012 till its actual payment, apart from paying litigation cost of Rs.25,000/-.
iii) In case the OPs No.1 & 2 fail to comply with the order as at Para No.15(i), then they would be liable to refund the cost of the car at which rate it was sold to the complainant.
2. The facts, in brief, are that, the complainant purchased Verna VGT Car from Opposite Party No.3 (now respondent No.3) on 28.12.2010 having two years warranty vide Annexures.C-1 & C-2, and it was allotted registration NO.HR-05AB-8493. According to the complainant, right from the very beginning, there was a problem of pulling of the said vehicle towards left hand side. In other words, the vehicle used to go towards left side, on its own while being driven and the same is called LEFT HAND SIDE PULLING (LHSP). When this problem was brought to the notice of Opposite Party No.3, the complainant was told that as the vehicle was new, so it was pulling towards left side, and with the passage of time, this problem would subside. On 30.1.2011, the first service of the vehicle was got done from Samta Hyundai, Karnal (authorized dealer)- Opposite Party No.4, vide Annexure.C-3 and it was informed about the problem of left hand side pulling. The dealer did the wheel alignment, but despite that, the said problem still persisted. A complaint about the said problem, in the car, was also sent to Opposite Party NO.1 on the website, whereupon Opposite Party No.2, asked him to bring the car to its workshop for checking. Thereafter the car was taken to Opposite Party No.2, where it was checked and the complainant was told that the problem would subside with the passage of time. On 12.4.2011, at the time of service, Opposite Party No.2 was again told about the left hand side pulling of the vehicle. Opposite Party No.2 did the wheel alignment, as is evident from Annexure C-4 and told that the problem had been resolved. It was stated that when the problem of left hand side pulling of the said car still continued, it was again brought to Opposite Party No.2 on 23.4.2011. At that time Opposite Party No.2 again did the wheel alignment and told the husband of the complainant that the problem had been resolved However, the car was again taken to Opposite Party No.2, with the same problem of left hand side pulling, whereupon, it changed two nuts of left side wheel of the car, did the wheel alignment, and assured that the problem will subside soon.
3. It was further stated that due to the problem of left hand side pulling of the car, the life of the complainant and her family members was always in danger. It was further stated that the said car was again taken to Opposite Party No.2 on 20.5.2011, 30.7.2011, 3.9.2011, 22.10.2011, 21.12.2011, 30.1.2012 and on 30.6.2012, but still the problem of left hand side pulling persisted as is evident from Annexures C-9 to C-17. It was further stated that when Opposite Party No.2 was requested to either replace the car or the necessary parts to permanently resolve the problem of left hand side pulling, the same was refused and it was told that the problem lay in the tyres of the same (car). Opposite Party No.2 also handed over a letter Annexure C 18 to the complainant addressed to M/s Bridgestone Tyre, for getting the tyres checked. However, after inspection, the Company gave the report One side wear found in the tyres due to abnormal force. No manufacturing defect found in the tyre.
4. It was further stated that the complainant was shocked to receive an e-mail dated 21.8.2012 from Opposite Party No.2, that as a goodwill gesture Opposite Party No.1 had agreed to bear 20% of the cost of tyres, which was duly replied to by him vide Annexure 23 requesting to replace the car or refund the entire cost of the same. It was further stated that at that time the vehicle was still in the warranty period. It was further stated that the complainant was not in a position to get any report from an independent expert, in respect of said vehicle, because as per the terms & conditions of Opposite Party NO.1 Company, in order to maintain the validity of new vehicles basic warranty, the same (vehicle) could be checked only by an authorised dealer and Service Centre. It was further stated that the vehicle, in question, was suffering from inherent manufacturing defect. It was further stated that despite many requests, the Opposite Parties, failed to replace the vehicle. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed.
5. In its reply, Opposite Party No.1, admitted the sale of car to the complainant on 28.12.2010. It was denied that the vehicle was suffering from any manufacturing defect, as alleged by the complainant. It was stated that the car had already covered 20,233 kms as on 18.8.2012 i.e. in about 2 years, from the date of its purchase. It was further stated that had there been any manufacturing defect, in the car, the same would not have covered such an extensive mileage. It was further that even the warranty policy of the answering Opposite Party, did not contemplate replacement of the vehicle. It was further stated that since, the vehicle is a machinery, any part thereof, may have problem at any time, because of different driving conditions, usage etc. It was further stated that the Company provided a limited warranty for its various products to re-assure the performance thereof and take the responsibility to support its customers within/after the warranty period, as per the Policy. It was further stated that bringing of vehicle repeatedly to the service station for repairs, did not constitute any ground, to hold that it was suffering from manufacturing defect. The complainant after her complete satisfaction signed the repair orders. It was further stated that due and proper alignment was necessary for the performance of the vehicle. It was further stated that the problem of wheel alignment is a part of normal wear & tear. It was further stated that normal maintenance could not be treated as manufacturing defect. It was further stated that after inspection of the tyres, Bridgestone Tyre Co. prepared a report, that one side wear was found in the tyres, which was due to abnormal forces and there was no manufacturing defect found in the tyres. It was further stated that there was every possibility that tyres were damaged due to external impact. It was further stated that whenever the complainant reported any concern, best service as per the warranty policy was provided to her, by the authorized service centre of the answering Opposite Party. It was further stated that neither there was any deficiency, in rendering service, on the part of the answering Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. In its reply Opposite Party No.2, admitted the purchase of vehicle by the complainant from Opposite Party No.3. It was stated that the complainant came for wheel alignment and as such, the same was done as per the warranty terms & conditions to her entire satisfaction. The complainant also came with some problem of suspension/shockers of the car and the same was rectified to her satisfaction. It was further stated that the complainant came with the problem of noise while turning on 20.5.2011, and second free service on 30.7.2011. The wheel alignment and balancing was done on 20.5.2011 when the vehicle had covered about 4909 Kms. It had covered 6826 kms. on 30.7.2011. It was further stated that the complainant came for wheel alignment after the vehicle had covered 8493 kms. with the problem of stereo and audio. The complainant came for the third free service on 30.1.2012 when the vehicle had covered 14003 kms. It was further stated that the complainant again came for wheel alignment, poor mileage and tyre wearing and, at that time, the vehicle had covered 18762 kms. It was further stated that it was a running repair and there was no abnormality. It was further stated that the request of the complainant for replacement of the car was totally unwarranted, as there was no manufacturing defect, in the same nor she had placed on record any expert report to prove the manufacturing defect. It was denied that there was deficiency in rendering service, on the part of Opposite Party No.2 or it indulged into unfair trade practice.
7. Opposite Party No.3 in its reply admitted the purchase of car, in question, by the complainant from it. It was stated that the said car was purchased from Opposite Party No.3, but the same was never brought to it again either for service or for rectification of any other problem. It was further stated that there was neither deficiency in rendering service on the part of Opposite Party No.3, nor it indulged into unfair trade practice.
8. Opposite Party No.4, sent reply through post stating therein that the car, in question, was reported to it, only once that too, for the first free service, which was done. It was denied that the complainant reported the problem of left side pulling and wheel alignment. It was stated that there was, therefore, no deficiency in rendering service on the part of Opposite Party No.4 nor it indulged into unfair trade practice.
9. Later on none appeared on behalf of Opposite Parties No.3 & 4, and thus, they were proceeded against exparte.
10. The parties led evidence, in support of their case.
11. After hearing the Counsel for the complainant, Opposite Party No.1 &2, and, on going through the evidence and record, the District Forum allowed the complaint, as stated, in the opening para of this order.
12. Feeling aggrieved, First Appeal 80 of 2014 titled as KLG Hyundai Vs. Surbhi Gupta & Others was filed by Opposite Party No.2 (now appellant) and First Appeal No.89 of 2014 tiled as Hyundai Motors India Ltd. Vs. Surbhi Gupta & Ors. was filed by Opposite Party No.1 (now appellant), for setting aside the impugned order.
13. We have heard the Counsel for the parties, in both the appeals, and, have gone through the evidence, and record of the case, carefully. .
14. The Counsel for the appellant/Opposite Party No.2, in First Appeal No.80 of 2014 titled as KLG Hyundai Vs. Surbhi Gupta & others, submitted that the car, in question, was never purchased from it, nor it is the manufacturer of the same. He further submitted that the car was brought to it being the authorized Service Centre of Opposite Party No.1 Hyundai Motor India Ltd. from time to time, and whatever defects were pointed out by the complainant therein, the same were rectified, as was evident from the job cards placed, on the record. He further submitted that neither there was any deficiency in rendering service, on the part of the appellant/Opposite Party No.2, nor it indulged into unfair trade practice. He further submitted that the District Forum was wrong in accepting the complaint against the appellant/Opposite Party No.2. He further submitted that the impugned order against the appellant/Opposite Party No.2 being illegal is liable to be set aside.
15. The Counsel for the appellant/Opposite Parties No.1, in First Appeal No. 89 of 2014 titled as Hyundai Motor India Limited Vs. Surbhi & Ors, submitted that, no doubt, the appellant/Opposite Party No.1, is the manufacturer of the vehicle, in question. It was purchased by the complainant/respondent No.1 from Opposite Party No.3 its dealer. He further submitted that the car, in question, did not have any manufacturing defect nor any cogent and convincing expert evidence was produced on record, by the complainant/respondent No.1, to prove the same. He further submitted that the defects which were pointed out by the complainant/respondent No.1, as and when she took the car to Opposite Party No.2, the authorized service centre of the appellant/Opposite Party No.1, the same were duly rectified. He further submitted that the mere fact that the car was taken to the service centre a number of times, did not go to prove that it was suffering from manufacturing defect. He further submitted that, no doubt, vide order dated 15.5.2013 the District Forum directed the Head, Mechnical Engg. Deptt., PEC University of Technology, Chandigarh to constitute a panel of experts to inspect the car, in question, for the defects mentioned in the complaint and submit the report. He further submitted that the report was submitted by the Committee comprising Dr. V.P. Singh, Associate Professor, Dr. Sushant Samir, Assistant Professor and Sh. Goptal Dass, W.I. of Mech. Engg. Department of the aforesaid Engineering College but no clear cut conclusion was recorded that the car, in question, was suffering from manufacturing defect. He further submitted that even the objections were filed to the report, but the same were not taken into consideration by the District Forum, as a result whereof, it fell into a grave error in relying upon the same (report). He further submitted that since the car was not suffering from any manufacturing defect, the District Forum was wrong in ordering replacement of the same. He further submitted that even the District Forum was also wrong in awarding other reliefs. He further submitted that the order of the District Forum being illegal and invalid is liable to be set aside.
16. The Counsel for respondent No1/complainant, in both the appeals submitted that the car, in question, was suffering from the inherent manufacturing defect, right from the beginning. He further submitted that the Opposite Parties could not rectify the problem of left hand side pulling of the car, despite a number of visits to the service centre. He further submitted that the District Forum rightly directed the replacement of the car. He further submitted that the order of the District Forum, being legal and valid does not require interference of this Commission.
17. The first question, that falls for consideration, is, as to whether the car in question, which was purchased by respondent No.1/complainant, from Opposite Party No.3, an authorized dealer of Opposite Party No.1, on 28.12.2010, in the sum of Rs. 8,07,000/- was suffering from the problem of pulling towards left hand side, in other words, called as Left Hand Side Pulling (LHSP) and, if so, whether it constituted inherent manufacturing defect or not? Anenxure C-3 is the invoice/job card showing that the car was taken to Opposite Party No.4, for free service for the first time on 30.1.2011. Annexure C-4 is the invoice/job card dated 12.4.2011, showing that the car was taken to Opposite Party No.2, an authorized service centre of Opposite Party No.1, for wheel alignment, which was done free of charge as the vehicle, in question, was within warranty. Again the car was taken to Opposite Party No.2, on 23.4.2011 as per invoice/job card for wheel alignment. Again wheel alignment was done and since the car was within warranty period, nothing was charged. Thereafter, Annexure C-7 email dated 17.5.2011, was sent to the customer care of Opposite Party No.1, by the husband of the complainant that though wheel alignment was done by Opposite Party No.2 twice, yet the problem was not resolved. He requested that the problem be resolved immediately. Annexure C-8 dated 18.5.2011 is the reply, which was received by the complainant, from Opposite Party No.1 that the concerned Regional office had been advised to coordinate with the dealer, to arrange for necessary action, to address her (complainant) concern. Annexure C-9 is another job card dated 20.5.2011, when the vehicle was reported to Opposite Party No.2, and by that time it had covered 4909 kilometers. Again wheel alignment of the vehicle was done and nothing was charged. Again the car was taken to Opposite Party No.2 on 30.7.2011, as is evident from Annexure C-10, and wheel balancing of each wheel, wheel alignment, and tyre rotation was done when it was the second free service. The car was again taken to Ashwani Automobile Pvt. Ltd. (Opposite Party No.2) on 3.9.2011 as is evident from Annexure C-11, Job card/invoice and again wheel alignment was done. Some running repairs and checking of stereo were also done. Annexure C-16 is the sheet dated 30.6.2012 showing wheel alignment results in respect of the vehicle, in question. The aforesaid sheet clearly showed that there was problem of left hand side pulling, in the car, and that was why the same was taken to Opposite Party No.2 again and again, during the warranty period. Time and again wheel alignment was done, but still the problem was not resolved. The mere fact that the car was taken to the authorized service centre of Opposite Party No.1, again and again, from the very beginning within the warranty period, clearly proved that the vehicle, in question, was suffering from such an inherent manufacturing defect, which could not be rectified. Had the defect of left hand side pulling (LHSP) of the car been rectified, there would have no necessity, on the part of the complainant, to take the same to the service centre of Opposite Parties No.1, again and again. Thus from the aforesaid job cards, it was proved that the car was suffering from the problem of left hand side pulling (LHSP), right from the beginning, which could not be rectified by Opposite Party No.2.
18. No doubt, at the time of filing the complaint, no expert opinion was produced, by the complainant. However, during the pendency of the complaint, the complainant moved an application dated 20.3.2013, for obtaining the expert opinion from any Engineering College/Institute regarding manufacturing defect in the car. The District Forum, vide order dated 15.5.2013, directed the Head, Mechnical Engg. Deptt., PEC Univ. of Technology, Chandigarh, to constitute a panel of experts to inspect the car of the complainant for the defects mentioned in the complaint. Accordingly, the car was sent to the Mechnical Engg. Deptt., PEC Univ. of Technology, Chandigarh, for the aforesaid purpose. It is evident that the Committee of experts, comprising Dr. V.P. Singh, Associate Professor, Dr. Sushant Samir, Assistant Professor, and Sh. Gopal Dass, W.I., all from Mechanical Engineering Department, duly inspected the vehicle, in question, and gave the report, which is at page 115 of the District Forum file, the operative part whereof, is reproduced hereunder:-
Ms. Surbhi Gupta, owner of the vehicle and her husband Sh. Pankaj Gupta were present during inspection and test drive. No person(s) from opposite parties were present during inspection and test dirve.
The vehicle Hyundai Verna VGT SX BS IV having registration No.HR 05 AB 8493, Chasis No.MALCFM41VLAM096025J and engine no.D4FAAU901344 was presented for inspection and test drive. The reading of the odometer at the time of inspection was at 32422. The vehicle was test driven for 12 kms in Chandigarh.
The committee after, perusal of records, inspection and test drive is of the opinion that the vehicle in question is pulling on to the left hand side of the vehicle while driving. The wear and tear of the tyres is not normal and proper. In addition the maneuvering of steering is not smooth which is not desirable. Since the wheel balancing and wheel alignment has been done by the Hyundai service centers, all the problems seems to be because of some unbalance forces. The problem of the vehicle pulling on to the left hand side and unusual wear and tear of tyres of the vehicle seems to be because of some manufacturing defect, if the vehicle in question has not met with any major accident before the inspection and test drive.
19.
The perusal of the afore-extracted operative part of the report of the Expert Committee, clearly reveals that the vehicle, in question, was pulling on to the left hand side while being driven. It is further evident from the said report that wear and tear of the tyres was not normal and proper. In addition the maneuvering of steering was not smooth which was not desirable. It was also opined by the Committee, that since the wheel balancing and wheel alignment was done by the Hyundai service centres, all the problems seemed to be because of some unbalanced forces. It was further opined by the Expert Committee that the problem of vehicle pulling on to the left hand side, and unusual wear and tear of tyres of the same seemed to be because of some manufacturing defect, if the vehicle in question had not met with any major accident before the inspection and test drive. No evidence was produced by Opposite Party No.1 to the effect that the vehicle had met with any major accident before it was inspected by the Expert Committee. However, the complainant after receipt of the report aforesaid, filed her duly sworn affidavit, to the effect, that the vehicle had not met with any major or minor accident. The affidavit of the complainant was not rebutted by the Opposite Parties, by way of any cogent and convincing evidence, which clearly proved that the vehicle never met with any major or minor accident before inspection of the same by the Expert Committee. The members of the Expert Committee, being well qualified, in the relevant field, were competent to examine the vehicle, and find out the defects therein. Not only this, the inspection was made by the members of the Committee, in the presence of the complainant, and her husband. However, none came present, on behalf of the Opposite Parties, despite being duly informed, by the Head, Mechanical Engg. Deptt, PEC Univ. of Technology, Chandigarh vide letter dated 11.6.2013. Since the Expert Committee had given report after inspecting the vehicle that it was suffering from left hand side pulling, which constituted the manufacturing defect, we are of the considered opinion that there is no reason to disbelieve the same. The Opposite Parties did not rebut the report of the Expert Committee, by submitting the report of their own technical expert. Under these circumstances, the District Forum was right in relying upon the report placed at page No.115 of the District Forum file. The District Forum was also right, in holding that the car, in question was suffering from manufacturing defect.
20. No doubt, objections to the report, were filed by Opposite Party No.1, which were also adopted by Opposite Party No.2, to the effect, that the inspection report of the members of the Expert Committee of Mechnical Engg. Deptt. PEC Univ. of Technology, Chandigarh, was not sustainable, in the eye of law, as the same was defective. It was stated, in the objections, that the report of the Committee could not be treated to be an expert opinion. It was further stated, in the objections, that the members of the Expert Committee, did not give any conclusive report, regarding the manufacturing defect in the car.. It was further stated in the objections that pulling of the vehicle to left hand side could be due to various reasons for example low pressure in the tyres, normal wear and tear of tyres, and non-smoothness of steering. Mere filing of objections, without being supported by any expert evidence/opinion, was of no consequence. As stated above, in case, the Opposite Parties did not agree with the report of the Expert Committee, referred to above, then their own independent Engineer, could submit the report, to rebut the same, but it was not done. Opposite Party No.1, submitted the affidavit of Manish Kumar S/o Sh. S.P. Singh, Assistant Manager, Legal & Secretarial, by way of evidence.
Mr. Manish Kumar, who was working as Assistant Manager Legal & Secretarial with Opposite Party No.1, could not be said to be an expert. A technical expert could only examine the vehicle to point out as to whether the same suffered from any inherent manufacturing defect or not. On the other hand, the members of the Expert Committee, being well qualified, in the relevant field, were competent to examine the vehicle, in question. Thus the affidavit submitted by Mr. Manish Kumar, Assistant Manager Legal & Secretarial in support of the averments contained in the written reply filed by Opposite Party No.1, cannot be said to be sufficient to rebut the report of the Expert Committee. As stated above, mere filing of objections, without being supported by any cogent and convincing evidence, could not rebut the report of the Expert Committee referred to above. The District Forum was, thus, right in not relying upon the objections submitted by Opposite Party No.1, to the report of the Expert Committee. Under these circumstances, the objections submitted by the Opposite Parties, without being substantiated through any cogent and convincing expert evidence, being devoid of merit, must fail, and the same stand rejected. Thus it is proved from the report of the Committee that the vehicle, in question, was suffering from inherent manufacturing defect.
21. The next question, that falls for consideration, is as to whether, the District Forum was right in directing Opposite Party No.1, to replace the car with a brand new car of the same make & model, free of charge and in case the car of the same make & model was not available, then a new model of the same car be supplied to the complainant, by charging or refunding the difference of amount/cost of the previous car. We are of the considered opinion, that Opposite Party No.1, being manufacturer of the car, in question, which was purchased by the complainant, was rightly directed by the District Forum to replace the same, as it found that the same was suffering from inherent manufacturing defect. Such relief having been granted by the District Forum against Opposite Party No.1, could be said to be legally justified.
22. The next question, that falls for consideration, is as to whether the District Forum was right in awarding a sum of Rs.1.00 lac as compensation for causing mental agony and physical harassment, to the complainant. We are of the considered opinion, that this direction of the District Forum was not justified, because the complainant had already used the car for more than two years before filing the complaint. The car had already covered 20,233 kms as on 18.8.2012 in about 2 years from the date of its purchase. At the inspection of the vehicle by the Expert Committee, it had already covered more than 32,000 kilmeters. Till date the car is being used by the complainant. Under these circumstances, once the District Forum directed Opposite Party No.1, to replace the car free of charge, with a brand new car, and in case car of the same make & model was not available, then a new model of the same car be supplied to the complainant by charging or refunding the difference of amount/cost of the previous car, no justification was made out for the grant of compensation, because the replacement of car, in question, with a new one, even after the use thereof for a period of about 3 years till date, was sufficient to take care of the compensation, which in the normal circumstances, would have been awarded to the complainant, for mental agony and physical harassment. The direction of the District Forum, regarding grant of compensation, to the tune of Rs.1.00 lac, being not legally justified, in the facts and circumstances of the case is liable to be set aside.
23. The District Forum in para No.15(iii) of the impugned order also directed Opposite Party No.1&2, that in case they failed to comply with the order, as directed in para No.15(i) then they would be liable to refund the cost of the car, at which rate it was sold to the complainant. Once the District Forum had directed replacement of the car, in question, with a brand new car of the same make & model, free of charge, and in case, car of the same make & model was not available, then to supply a new model of the same car to the complainant, by charging or refunding the difference of amount/cost of the previous car, then such a direction was not legally justified. Failure, on the part of Opposite Party to comply with the direction in para No.15(i) of the impugned order, could entitle the complainant to file an execution application, for the enforcement of the same. Thus this direction of the District is also liable to be set aside.
24. The next question, that falls for consideration, is as to whether Opposite Party No.2/appellant, in First Appeal No.80 of 2014 could be fastened with any liability or not. It may be stated here, that no, doubt, Opposite Party No.2, is an authorized dealer of Opposite Party No.1, but the car was not purchased from it. The car was purchased from Opposite Party No.3. The car was taken to the workshop of Opposite Party No.2, with the complaint of left hand side pulling (LHSP) again and again and its Engineers tried their level best to rectify the same. If ultimately the car, in question was found to be having inherent manufacturing defect, then it was only the manufacturer, which was liable to replace the same. No liability, whatsoever, could be fastened on Opposite Party No.2. Therefore, Opposite Party No.2, was neither deficient in rendering service nor it indulged into unfair trade practice. Accordingly, the impugned order against Opposite Party No.2, is liable to be set aside.
25. For the reasons recorded above, First Appeal No.89 of 2014 tiled as Hyundai Motor India Limited Vs. Surbhi Gupta & Ors., filed by the appellant/Opposite Party No.1-Hyundai Motor India Ltd., the manufacturer, is partly accepted, with no order as costs, and the order of the District Forum is modified as under:-
i) Appellant/Opposite Party No.1, is directed to replace the said Verna Car with a brand new car of the same make & model, free of charge. In case, car of the same make & model is not available, then a new model of the same Car be supplied to the complainant, by charging or refunding the difference of amount/cost of the previous car i.e. Rs.807000/- within 45 days from the date of receipt of a certified copy of this order.
ii) The complainant/respondent shall, hand over the Verna car, in question, to Opposite Party No.1, and execute the requisite documents, in its favour, for vesting the ownership of the same in it, at the time of replacement thereof, with a brand new car.
iii) Appellant/Opposite Party No.1 is directed to pay a sum of Rs.22,472/- to the complainant, which she had paid to PEC University of Technology, Chandigarh for getting the vehicle inspected, as per their demand made vide letter dated 11.06.2013, as directed by the District Forum.
iv) Appellant/Opposite Party No.1 is directed to pay costs of litigation to the tune Rs.25000/-, as awarded by the District Forum.
v) Other directions given, and reliefs granted, by the District Forum, against Opposite Party No.1, which are contrary to, and in variance of this order, subject to the modification aforesaid, shall stand set aside.
26. First Appeal No.80 of 2014, filed by appellant/Opposite Party No.2-KLG Hyundai, Ashwani Automobile Pvt. Ltd., is accepted, with no order as to cost. The impugned order qua the appellant/Opposite Party No.2 is set aside.
27. Certified Copy of the order be placed in the connected appeal file.
28. Copies of this order be sent to the parties free of charge.
Pronounced.
1.5.2014 sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER mp STATE COMMISSION (First Appeal No. 80 of 2014 ) Argued by: Sh. Gaurav Bhardwaj, Advocate for the appellant.
Sh. Sunil Narang, Advocate for respondent No.1 Sh. Amit Gupta, Advocate for respondent No.2.
Service of respondents No.3 and 4 dispensed with vide order dated 5.3.2014 Dated the 1st day of May, 2014 ORDER Vide our detailed order of even date, recorded separately, this appeal has been accepted with no order as to costs.
DEV RAJ MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Mp.
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. :
89 of 2014 Date of Institution :
7.3.2014 Date of Decision :
1.5.2014 Hyundai Motor India Ltd., North Regional office, DLF Tower-3, 3rd Floor, Rajeev Gandhi Chandigarh Technology Park, Chandigarh, through its Managing Director now at Hyundai Motor India Limited, Plot No.H-1 SIPCOT, Industrial Park, Irrugattukottai Sriperumbudar Taluk, Kancheepuram District, Tamilnadu-602105 through its authorized representative Manish Kumar.
Appellant/Opposite Party No.1 V e r s u s
1. Surbhi Gupta wife of Sh.Pankaj Gupta, # 362, Sector 13 Extn. Urban Estate, Karnal (Haryana) PIN 132001
2. KLG Hyundai, Ashwani Automobiles Pvt. Ltd., 181/3-B, Industrial Area, Phase-1, Chandigarh through its Proprietor
3. Orion Motors Pvt. Ltd., 7th K.M.Stone, Opp. BBMB, O.P. Jindal Marg, Hisar (Haryana)
4. Samta Hyundai, 119/8, Milestrone, G.T.Road, Karnal through its Proprietor Respondents BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT.
SH. DEV RAJ, MEMBER.
Argued by: Sh. Amit Gupta, Advocate for the appellant.
Sh. Sunil Narang, Advocate for respondent No.1 Sh. Gaurav Bhardwaj Advocate for respondent No.2.
Service of respondents No.3 and 4 dispensed with vide order dated 10.3.2014 PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT Vide our separate detailed order of the even date, recorded, in the connected First Appeal Nos.80 of 2014, titled as KLG Hyundai Vs. Surbhi Gupta & Others, this appeal has been partly accepted, with no order as to costs, with modification, as per the directions given therein. Certified copy of that order be placed on this file.
2. Certified copies of the main order, alongwith this order, be sent to the parties, free-of-charge.
3. The file be consigned to Record Room, after completion Pronounced 1.5.2014 sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/ [DEV RAJ] MEMBER mp