State Consumer Disputes Redressal Commission
Saini Hyundai vs Mrs. Uma Puri on 18 March, 2011
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. FA/380/10 DATE OF FILING:09.7.2010 DATE OF FINAL ORDER:
18.03.2011 APPELLANT/OPPOSITE PARTY NO.1 Saini Hyundai A unit of Finex Merchants Pvt. Ltd.
199, Block J, New Alipore P.S. New Alipore Kolkata 700 053 OPPOSITE PARTY/COMPLAINANT Mrs. Uma Puri W/o. Sri Deepak Puri Resident of 406/2, Block G New Alipore, P.S. New Alipore Kolkata 700 053 PROFORMA OPPOSITE PARTIES Hyundai Motors India Ltd.
East Regional Office Plot No.F-4, Ground Floor Block GP, Sector V, Salt Lake City Kolkata 700 091 Hyundai Motors India Ltd.
A-30, Mohan Co-operative Industrial Estate Mathura Road, New Delhi 110 044 BEFORE :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT MEMBER :
MRS. S. MAJUMDER MEMBER :
MR. S. COARI FOR THE APPELLANT : Mr. S.R. Saha, Advocate FOR THE RESPONDENTS : Mr. P.R. Baksi, Advocate (No.2) :
O R D E R :
HONBLE JUSTICE MR. PRABIR KUMAR SAMANTA, PRESIDENT The two appeals namely FA/380/10 and FA/416/10 have been filed respectively by the dealer and manufacturer of Hyundai Motor Cars against the judgment and order dated 23.6.10 passed by the Forum below in CDF Case No.15/2009.
As per the petition of complaint, the complainant purchased a Verna-XII model car of Hyundai Motor India Ltd. on 12.3.08 at an on road price of Rs.7,40,000/- including road tax, insurance coverage charge and other allied charges. She took delivery of the car bearing Registration No.WB-02Z-5525 from the Appellant/Dealer on 16.3.08 upon payment of entire consideration money.
It was alleged in the complaint that in the online brochure the manufacturer of the car claimed that the car gives a mileage of 16km./ltr. in city and 18km./ltr. in highway. However on driving the car the actual mileage was found only about 8km/ltr. in city as against promised mileage of 16km/ltr. in city. The other allegation which is the subject matter of this appeal was that shortly after taking delivery it was noticed by the complainant that the Fully Automatic Temperature Control system abbreviated as FATC was malfunctioning in as much as the air conditioner was shutting down and the air circulation mode was changed from recirculation mode to outside air mode on its own without reference to the temperature set, cabin temperature, outside ambient temperature and duration of putting on air conditioner. These facts were brought to the notice of the OP1 the dealer of the Hyundai car who initially insisted that there was nothing wrong with the car. Ultimately the matter was referred to the Head Office of the Hyundai Motor India Ltd. at Delhi. The said manufacturer assured the complainant that the problem if any due to the defective parts in the aforesaid FATC system would be removed by replacing the same.
The parts of the FATC system were thereafter changed on 14.8.08 by the dealer/OPs in presence of the representatives of the manufacturer/OP. Even upon change of the parts of the FATC system the problem as reported by the complainant was not corrected. It was then told to the complainant that there was no defect in the FATC system and the manner in which the FATC system functions is the feature of the car.
Hence the above complaint.
The OPs took the said stand in their defence and it was specifically stated that the FATC system as introduced in the Verna-XII model car has been functioning satisfactorily and the problem as alleged that the air conditioning system was shutting down and the air circulation mode was changing from recirculation mode to outside air mode on its own without reference to the temperature set by the driver, cabin temperature or outside ambient temperature is simply the particular feature of the air conditioning system introduced in the car. The FATC system is the feature of the system to maintain any particular temperature that has been set in the automatic mode. If the room temperature cools below the temperature set by the driver, the system will shift to outside flow mode in order to maintain the set temperature. Such shifting is not a manufacturing defect but it is a feature of the FATC system for the purpose of maintaining the temperature set by the driver.
The Forum below however upon contested hearing of the case was of the view that such a system if new, innovative and novel should have been brought to the notice of the purchaser before selling. The Forum below was of further opinion that both the dealer and manufacturer of the car ought to have explained to the complainant as to the functioning of the FATC system installed in the car for its air conditioning as the manufacturer itself has confirmed that it was not because of defective part which was further established from the fact that even upon replacement of the parts in the said system, the functioning of the air conditioning system remained the same as before. The Forum below therefore held that there was no other alternative than to replace the car by a new one. On the question as to whether less number of kilometers were run per litre it was held that the complainant had not been able to prove the same by producing any technical report in this regard.
The complaint was thus allowed by directing the OPs to replace the car of the complainant by a brand new one of the same make and model with fault free air conditioning system within a month from the date of the making of the said order. The OPs were further directed to pay compensation of Rs.20,000/- and litigation cost of Rs.1,000/-. The OPs were however given a liberty to refund Rs.7,40,000/-, the price of the car by taking the car back from the consumer in lieu of replacement.
The complainant/respondent has not assailed the findings made by the Forum below on the allegation that the car runs less kilometer per litre than what promised in online brochure by filing a cross appeal. The complainant/respondent also at the hearing of this appeal has not put forward any submission in this regard.
It was not the case of the complainant that the owners manual in respect of the said car was not given to her. It was also not disputed by the complainant that the said owners manual did mention the FATC system installed in the car for its air conditioning.
In course of hearing of this appeal the respondent/appellant has not contended that she was not aware of the fact of FATC system installed in the car for its air conditioning but has merely argued that this FATC system which allows the outside air to enter the confines of the car perforcing the occupants to breath outside polluted air was not disclosed to the complainant/respondent before the sale of the car to her. The complainant/respondent also has not argued that the said system failed to maintain the temperature set in the car in running condition but has contended vehemently that because of such system allowing outside air to enter into the confines of the car the complainant has to breathe polluted air under compulsion while riding the car.
It may be stated in this regard that the air conditioning system namely FATC system as installed in the car was primarily for the purpose of maintaining a particular temperature inside the car as may be set in.
Thus it is primarily responsible for maintaining a particular temperature set in the car. The said system is not responsible for maintaining any particular air quality inside the car while running nor such system envisages pollution free air inside the car. It is common knowledge that air conditioning system does not generate air. It merely maintains a particular temperature as set inside the car by cooling the same air and thereby expelling hot air from inside the car. In the process outside air is allowed inside the car so as to make it possible for the occupants to breath air. The system namely FATC for air conditioning of the car is not the system which departs from all known system of air conditioning. The appellant has also not proved by any independent evidence that all known systems of car air conditioning do not allow outside air inside the car at any stage. The FATC system for air conditioning of the car has been disclosed in the owners manual.
If she was so much concerned with the polluted air outside, she should have made an enquiry with the dealer before purchasing the car to ensure that it would not allow outside air inside the car while A.C. is on. In the absence of any proof that FATC system alone introduced this feature of allowing outside air into the car which was not the regular system of car air conditioning, we are of the view that the dealer was not obliged to explain to the complainant the particular FATC system installed in the car for its air conditioning. The newspaper report that appeared in the Statesman because of the opinion sought for by the complainant herself is also of no consequence in the absence of proof of such technical aspects of the matter.
There is also no material to establish that there was a consensus amongst experts in the field that the said FATC system is absolutely a new system of air conditioning introduced by departing from all norms of air conditioning of the car and such system is defective as it allows outside air inside the car for the purpose of air conditioning. The complainant also has not proved anything to that effect by any technical report. It has also not been proved by any report that such system was completely innovative and introduced for the first time for air conditioning of the car for which the manufacturer of the car and/or the dealer was obliged to explain such system to the purchasers before sale of the car to them. It is evident from the materials on record that owners manual specifically mentioned about the FATC system for air conditioning of the car.
It is not the case of the complainant that owners manual was not made available to the complainant even upon asking by her. Thus it is clear that the complainant also did not seek for any information on the particular air conditioning system introduced in the car if she was so much concerned about her exposure to the outside air while riding the car. For the reasons aforesaid we are of the view that the allegations as made in the complaint were not supported by any reliable evidence and/or materials on record and therefore the OPs were not obliged to explain to the complainant as to how the FATC system worked for air conditioning of the car, at the time of her purchase.
In this regard reference may be made to the decision of the National Commission reported in IV(2009) CPJ 144 (Maruti Udyog Ltd.-Vs-CasinoDias & Another). It has been held therein that when there is no manufacturing defect it is not fair for the State Commission to direct for replacement of the vehicle. There is no material on record to support the finding of the State Commission that the vehicle is suffering from inherent manufacturing defect. The direction given by the State Commission to replace the vehicle is without any justification as the manufacturer and the dealer have made the said vehicle free from the alleged defects. It has further been observed therein that the consumers cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence or justification.
The National Commission in another decision reported in III(2009) CPJ 299(NC) (Maruti Udyog Ltd.-Vs-Hasmukh Lakshmichand and Another) in answering the question raised before it, whether there was any manufacturing defect in the car, has held that the onus to prove the defect is on the complainant. It was observed as under:-
Section 13(1)(c) of the Consumer Protection Act, 1986 provides that if a complainant alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain sample of the goods from the complainants, seal it and send it to such laboratory which makes an analysis or test whichever may be necessary with a view to find out whether such goods suffer from defect alleged in the complaint or from any other object and report it back to the District Forum based on which the District Forum determines the dispute between the parties.
The manufacturing defect is much more than an ordinary defect which can be cured by replacing the defective part.
Manufacturing defect is fundamental basic defect which creeps while manufacturing a machinery. To prove such a defect, opinion of an expert is necessary which is not forthcoming in the present case. Attempt made by the manufacturer to get the opinion of an expert or an independent agency has been thwarted by the respondent/complainant by not handing over the car for taking it to the ARAI for inspection. In this regard it may be stated herewith that in course of hearing of this appeal it was suggested that the car may be sent to a technical committee for assessing the defects if any in the air conditioning system of the car to which the complainant/respondent vehemently objected and refused to send the car to any technical committee or expert for such determination.
The National Commission in one other decision reported in I(2010) CPJ 235 (NC)(Classic Automobiles-Vs-Lila Nand Mishra and Another) has clearly held that the onus to prove that there was a manufacturing defect lies on the complainant which failed to discharge the onus by producing any cogent evidence. The National Commission agreed with the contentions raised by the Ld. Counsel for the OPs that the complainant failed to prove that there was any manufacturing defect by producing any cogent evidence. Complainant also failed to produce any expert evidence as provided under Section 13(1)(c) of the Consumer Protection Act, 1986.
In the case in hand it has been amply proved from the materials on record that repairs and rectification in the air conditioning system of the car had been effected as and when complained and lastly all the parts that were found defective were replaced. In these state of affairs the complainant has failed to show any deficiency on the part of the OPs in attending to the complaints of the complainant. Furthermore it has been established on record that whenever any defect was alleged in the air conditioning system of the car, the same was attended to and necessary replacement and repairs were done. We therefore do not find any deficiency of service on the part of OPs or any manufacturing or inherent defect in the car sold to the complainant.
For the reasons as aforesaid and in view of the above mentioned decisions of the National Commission we are unable to uphold the decision of the Forum below. The order of the Forum below is thus set aside.
The complaint case is accordingly dismissed on merits. Both the appeals are thus allowed.
(S. Majumder) (S. Coari) (Justice P.K. Samanta) MEMBER(L) MEMBER PRESIDENT