State Consumer Disputes Redressal Commission
Sh. Virender Kumar, Advocate. vs Zonal Manager, North Zone, Hyundai ... on 20 September, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 58/2018
Date of Presentation: 26.03.2018
Order Reserved on : 23.04.2019
Date of Order : 20.09.2019
......
Virender Kumar son of Shri Raghu Nath R/o Village Sanyardi P.O.
Talyahar Tehsil Sadar District Mandi-H.P.
...... Appellant/Complainant
Versus
1. The Zonal Manager North Zone Hyundai Cars Unit No.C-
113-114 Ist Floor Office Suetes Elante Plot No.178-178A
Industrial & Business Park Phase-I Chandigarh-160002.
......Respondent No.1/opposite party No.1
2. The General Manager Sales Dev Bhoomi Cars Pvt. Ltd. (Dev
Bhoomi Hyundai) NH-21 Gutkar Mandi District Mandi
H.P.
3. The General Manager Services Dev Bhoomi Cars Pvt. Ltd.
(Dev Bhoomi Hyundai) NH-21 Gutkar Mandi District
Mandi H.P.
......Respondents No.2 & 3/opposite parties No.2 & 3
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Bhinder Kumar vice Mr. Virender
Kumar Advocate.
For RespondentNo.1 : Ms. Anjali Thakur Advocate.
For Respondents No.2 & 3 : Ex-parte.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors.
F.A. No.58/2018
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 27.02.2018 passed by Learned District Consumer Forum/Commission in consumer complaint No.187/2015 titled Virender Kumar Versus The Zonal Manager North Zone Hyundai Cars & Ors.
Brief facts of consumer complaint:
2. Shri Virender Kumar filed consumer complaint under Consumer Protection Act pleaded therein that complainant purchased a new vehicle LMV car Santro having registration No.HP33C-6664 from authorised dealer of Hyundai Motors in October 2013. It is pleaded that vehicle in question was financed by Corporation Bank Branch Mandi (H.P). It is pleaded that after driving vehicle in question for about 500 KMs complainant noticed little damage of front wheel from inside. It is further pleaded that complainant approached opposite parties No.2 & 3 at Gutkar and brought the problem to the notice of opposite parties No.2&3. It is pleaded that vehicle in question was checked by opposite party No.3 from mechanics and opposite party No.3 assured that problem was minor in nature and same would be solved.
It is pleaded that complainant noticed that damage to tyre of vehicle in question was continuous in nature. It is further 2 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 pleaded that complainant again brought problem to the notice of opposite party No.3 and thereafter opposite party No.3 advised complainant to bring vehicle in question in service centre at Gutkar. It is pleaded that complainant brought vehicle in question to service centre of opposite party No.3 and complainant was told by opposite party No.3 that problem was minor in nature relating to alignment of tyres. It is further pleaded that OP No.3 told complainant that problem of alignment was removed.
3. It is pleaded that after driving vehicle for some time complainant noticed that problem was not solved and during intervening period dealership of vehicle was changed and was authorised to opposite party No.2 from opposite party No.3. It is pleaded that opposite party No.2 told the complainant that problem in vehicle was relating to wheel alignment. It is pleaded that an amount of Rs.577/-(Five hundred seventy seven) was charged despite free service facility as per warranty condition. It is pleaded that complainant told opposite parties No.2&3 that problem in vehicle was manufacturing defect but opposite parties No.2 & 3 did not admit the factum of manufacturing defect in vehicle in question. It is pleaded that defective vehicle was sold to complainant having manufacturing defect in it. It is further pleaded that opposite parties committed deficiency in service. 3
Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 Complainant sought relief to the effect that opposite parties be directed to replace defective vehicle with new one. In addition complainant sought relief to the effect that opposite parties be directed to refund Rs.14000/-(Fourteen thousand) as value of four tyres. In addition complainant sought relief to the effect that opposite parties be directed to pay compensation to the tune of Rs.25000/-(Twenty five thousand) for mental agony and harassment. In addition complainant sought litigation costs.
4. Per contra version filed on behalf of opposite party No.1 pleaded therein that warranty is given by manufacturer of tyres directly to consumers as per warranty condition issued by manufacturer of vehicle. It is pleaded that manufacturer company of tyre is necessary party. It is pleaded that damage to tyre of vehicle in question depends upon various things i.e. (1) Driving condition (2) Road condition (3) Uses of car (4) Wheel balance (5) Wheel alignment (6) Pressure upon tyres. It is pleaded that complainant did not prove any manufacturing defect of vehicle in question by way of affidavit of mechanical expert. It is further pleaded that contract between manufacturer and dealers is on the concept of principal to principal basis. It is pleaded that opposite party No.1 did not commit any 4 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 deficiency in service. Prayer for dismissal of consumer complaint against opposite party No.1 sought.
5. Opposite parties No.2&3 filed separate version pleaded therein that manufacturer of tyre is necessary party in the present matter. It is pleaded that dealer namely M/s Shivansh Motor Pvt. Ltd. from whom vehicle in question was purchased by complainant for consideration amount has not been impleaded as co-party in consumer complaint. It is pleaded that vehicle in question was sold to complainant by dealer namely M/s Shivansh Motors Pvt. Ltd. who ceased to dealer of opposite party No.1 w.e.f. April 2014. It is pleaded that opposite parties No.2&3 have no direct or indirect involvement in assembling parts of vehicle in question. It is further pleaded that dealership of M/s Shivansh Motors Pvt. Ltd. was blocked by manufacturing company and new dealership of Hyundai Motors was granted to opposite parties No.2&3. It is pleaded that complainant did not pay any consideration amount of sale to opposite parties No.2&3. It is pleaded that problem relating to alignment and wheel balancing falls within exclusion clause of warranty condition. It is pleaded that opposite parties No.2&3 did not commit any deficiency in service. Prayer for dismissal of consumer complaint against opposite parties No.2&3 sought. 5
Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018
6. Complainant filed rejoinder and reasserted allegations mentioned in consumer complaint. Learned District Consumer Forum/Commission dismissed consumer complaint. Feeling aggrieved against order passed by Learned District Consumer Forum/Commission complainant filed present appeal before State Commission.
7. We have heard learned Advocates appearing on behalf of appellant & co-respondent No.1 and we have also perused entire record carefully. None appeared on behalf of Co-respondents No.2 & 3 despite notice. Co-respondents No.2 & 3 were proceeded ex-party by State Commission on dated 20.07.2018.
8. Following points arise for determination in present appeal.
1. Whether appeal filed by appellant is liable to be accepted as mentioned in memorandum of grounds of appeal and whether expert report for proving manufacturing defect is essential and whether damage of front wheel from inside fall within exclusion clause of warranty condition?
2. Final order.
Findings upon point No.1 with reasons:
9. Complainant filed affidavit in evidence.
There is recital in affidavit that complainant purchased vehicle in question. There is recital in affidavit that after driving vehicle for about 500 KMs deponent noticed damage of front tyre of vehicle in question from inside. There is recital in 6 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 affidavit that matter was brought to notice of opposite parties No.2&3 but opposite parties No.2&3 did not remove defect of vehicle in question during warranty period free of costs. There is recital in affidavit that there was manufacturing defect in vehicle in question. State Commission has carefully perused all annexures filed by complainant.
10. Opposite party No.1 filed affidavit of Shri Manish Kumar who is working as Deputy Manager Legal & Secretarial in Hyundai Motors India Ltd. There is recital in affidavit that tyre warranty is granted by manufacturer of tyre directly to consumers. There is recital in affidavit that there was no manufacturing defect in vehicle in question. There is recital in affidavit that contract between opposite party No.1 and opposite parties No.2&3 is on the concept of principal to principal basis. State Commission has carefully perused all annexures filed by opposite party No.1.
11. Opposite parties No.2 & 3 filed affidavit of Shri Sandeep Sharma General Manager in evidence. There is recital in affidavit that vehicle in question was purchased by complainant from dealer namely M/s Shivansh Motors Pvt. Ltd. who ceased to be dealer of opposite party No.1 w.e.f. April 2014. There is recital in affidavit that opposite parties No.2 & 3 are authorised dealers of opposite party No.1 w.e.f. May 2014 for Mandi and Kullu Districts. There is further recital in affidavit that dealer is not having any direct or indirect 7 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 involvement in assembling parts of vehicle. State Commission has carefully perused all annexures filed by opposite parties No.2 & 3.
12. Submission of learned Advocate appearing on behalf of complainant that opposite parties are under legal obligation to replace defective vehicle in question with new one and there was manufacturing defect in vehicle in question and on this ground appeal filed by complainant be allowed is decided accordingly. Complainant did not adduce any expert report on record in order to prove that there was manufacturing defect in vehicle in question. Finding relating to manufacturing defect could not be given by State Commission in absence of expert report. State Commission is of the opinion that complainant was under legal obligation to place on record mechanical expert report relating to manufacturing defect in vehicle in question. See 2017(3) CPR 35 NC titled Mahender Kumar Versus Hero Honda Motors Ltd. & Anr. See 2018(1) CPJ 425 NC titled Pawan Kumar Versus Nissan Motors India Pvt. Ltd. and Ors. See 2010(5) Supreme Court Cases 513 titled V. Kishan Rao Versus Nikhil Super Speciality Hospital & Anr. See 2018(2) CPR 675 NC titled Himanshu Maheshwari Versus Director Grand Nissan & Anr. In view of the above stated facts and case laws cited supra plea of complainant that there was manufacturing 8 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 defect in vehicle in question is defeated on the concept of ipse dixit (An assertion made without proof).
13. Submission of learned Advocate appearing on behalf of complainant that complainant is legally entitled for Rs.14000/-(Fourteen thousand) as value of four defective tyres with interest is decided accordingly. State Commission has carefully perused warranty condition placed on record and as per warranty condition wheel balancing, wheel alignment and tyre rotation falls within exclusion clause of warranty. Even State Commission has carefully perused Customer Satisfaction Certificate annexure-OP1 dated 31.05.2015 signed by complainant. Customer Satisfaction Certificate annexure-OP1 is quoted in toto :-
CUSTOMER SATISFACTION NOTE DEV BHOOMI HYUNDAI DATE: 3105.2015 SUTKAR MANDI (H.P) N8207 This is clarified that (work mentioned) i.e. Running Repair of vehicle REGNNO.33C6664 model Santro done on dated 28.05.2015 at DEV BHOOMI HYUNDAI. I hereby confirm & clarify that the desired work done in my vehicle is completely satisfactory job & I have also taken a road test of my vehicle. I am fully satisfied by M/S DEV BHOOMI HYUNDAI. I expect good services on your behalf even in future.
Thanking you.
Customer Name: Virender Kumar Address: L. Sadar District Mandi (H.P) Contact No.94181-14195 Virender Kumar 31.05.2015 Customer Signature.
Sd/-
9Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018
14. State Commission is of the opinion that complainant is Advocate by profession and is an educated person and complainant has himself given certificate on dated 31.05.2015 annexure-OP1 to the effect that work done in vehicle in question was completely satisfactory job and there is recital in customer satisfaction certificate that complainant also took road test of vehicle in question. Complainant has signed customer satisfaction certificate on dated 31.05.2015 in English language. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to allow complainant to approbate and reprobate at the same time. See AIR 1993 SC 352 R.N. Gosain Versus Yashpal Dhir. Complainant did not adduce any evidence by way of affidavits in order to prove that customer satisfaction certificate annexure-OP1 was obtained by Dev Bhoomi Hyundai Gutkar Mandi (H.P) from complainant under threat and duress. State Commission is of the opinion that annexure-OP1 dated 31.05.2015 signed by complainant is binding upon complainant.
15. State Commission is of the opinion that document annexure-OPI signed by complainant is nocuous document to the interest of complainant. It is proved on record that complainant has purchased vehicle in question from M/s Shivansh Motors Pvt. Ltd. Gutkar Mandi (H.P) and complainant has paid consideration amount of purchase of 10 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 vehicle in question directly to M/s Shivansh Motors Pvt. Limited. M/s Shivansh Motors Pvt. Ltd. has not been impleaded as co-party in present consumer complaint by complainant. It is held that complainant is estopped by his act and conduct for filing present consumer complaint after signing customer satisfaction certificate Annexure-OPI dated 31.05.2015.
16. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for compensation for mental agony and harassment to the tune of Rs.25000/-(Twenty five thousand) is decided accordingly. State Commission is of the opinion that after signing consumer satisfaction certificate by complainant on dated 31.05.2015 annexure-OPI wherein complainant has given certificate that desired work done in vehicle in question was completely satisfactory job. State Commission is of the opinion that in view of consumer satisfaction certificate signed by complainant it is not expedient in the ends of justice and on the principles of natural justice to grant compensation to complainant for mental agony and harassment.
17. Submission of learned Advocate appearing on behalf of complainant that complainant is entitled for litigation costs is decided accordingly. State Commission is of 11 Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018 the opinion that after signing customer satisfaction certificate annexure-OPI dated 31.05.2015 voluntarily complainant is not entitled for litigation costs as prayed.
18. Submission of learned Advocate appearing on behalf of opposite party No.1 that order of Learned District Consumer Forum/Commission is strictly in accordance with laws and is strictly in accordance with proved facts and does not warrant interference by State Commission is decided accordingly. It is held that after signing customer satisfaction certificate by complainant annexure-OPI dated 31.05.2015 placed on record it is not expedient in the ends of justice and on the principles of natural justice to interfere in order of Learned District Consumer Forum/Commission. Point No.1 is decided accordingly.
Point No.2: Final Order
19. In view of findings upon point No.1 above appeal is dismissed. Order of Learned District Consumer Forum/Commission announced in consumer complaint No.187/2015 decided on 27.02.2018 is affirmed. Customer Satisfaction Certificate Annexure-OPI dated 31.05.2015 signed by complainant shall form part and parcel of order. Parties are left to bear their own litigation costs before State Commission.
12
Virender Kumar Versus Zonal Manager North Zone Hyundai Cars & Ors. F.A. No.58/2018
20. File of Learned District Consumer Forum/ Commission alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 20.09.2019 K.D 13