DR. DON PAUL vs M/S. DURGA HYUNDAI & 2 ORS

17 days delay in filing the revision petitions is condoned, subject to just exceptions.

Sh. Don Pal, the complainant, purchased a Hyundai Make i-20 ASTA 1.2 E3 Berry Red on 23.04.2009, for a sum of Rs.4,96,512/- from M/s. Durga Hyundai, OP1 with financial assistance from Axis Bank, and insured the same with Oriental Insurance Co. Ltd., OP3. The complainant had to go to different stations within the District of Darjeeling. Immediately, after purchase of the said vehicle, he felt that the car is not pulling well and losing acceleration. The power of the car was very poor even when driving in lower gear. After the initial motion, he could not apply second gear during hill-driving while going up because the car started making vibrations and very rapidly the speed decreased, which was risky and unsafe in driving, especially in the hills. The complainant informed the Dealer, OP1 about the defect, who assured him that all problems will automatically be sorted out after first free service, i.e., on 17.06.2009. However, from the date of purchase till the third service, the problem remained the same. After third service, on 21.05.2010, the complainant again took the car to OP1 with the same problem, when Service Adviser of Siliguri, Rajeev Mishra and Service Engineer from Kolkata, Shantanu Bhaduri, thoroughly inspected the car and being fully satisfied about the inherent manufacturing defect, advised for change of engine and it was replaced on 10.07.2010, free of cost. Even after the change of engine, the same problem continued. Another Mechanic was deputed who inspected the vehicle. He informed OPs 1 & M/s. Hyundai Motors India Ltd. 2 that the trouble in the car was not at all sorted out. On 04.10.2010, the complainant took the car to the OP1, but it could not solve the problem. Finally, he took the car to OP1, on 17.11.2010. OP1 could not solve the problem and since then the car was lying with OP1 and further, for the last 5 years'', the complainant is deprived of use and enjoyment of his car.

According to OP 1, the engine was replaced on request of complainant. On 07.10.2010, OP1 issued a letter to the complainant stating that the vehicle was found to be road-worthy, as per standard satisfaction and norms. The vehicle was in proper condition and there is no other pending job to be carried out in the workshop. It also requested the complainant to take delivery of the car from the workshop. OP1 is an agent/Dealer of OP2 and if there is any inherent manufacturing defect in the car, the OP2 would be liable for such defect.

According to OP2, the complainant was delivered a new Hyundai i-20 by OP1 on 23.04.2009, in perfect running condition. There was no defect in the car. The complainant concealed the fact that the said car met with an accident and reported for accidental repair at workshop of OP1 on 18.06.2009. There was no complaint regarding pulling of the car. The alleged problem of pulling of car may occur due to reasons like road conditions, improper tyre pressure, etc., but cannot be attributed to a manufacturing defect in the vehicle. The warranty policy of OP2 offers 2-year unlimited mileage warranty from the date of delivery of the vehicle to the first purchaser but does not, under no circumstances, contemplate replacement of the vehicle or refund of the purchase price. The engine was changed under warranty, defects were removed and the vehicle was made road-worthy.

The District Forum accepted the complaint partly and directed the OPs 1 & 2, to jointly and severally, to pay the said sum of Rs.4,96,512/- together with compensation in the sum of Rs.20,000/-, to the complainant, within 45 days from the date of order, failing which the amount shall carry interest @ 9% p.a., from the date of institution of the instant case, i.e., 31.12.2010, till realisation.

Aggrieved by this order, M/s. Durga Hyundai, OP1 and Hyundai Motors India Ltd., OP2, filed two separate appeals before the State Commission. The State Commission referred the matter to the Government of West Bengal, Office of the Sub-Divisional Officer, Siliguiri, M.V. Section, Darjeeling. The Motor Vehicle Inspector, vide his report dated 22.09.2011, opined as under : " At the time of inspection, it is found that Engine No. G4LAAM417532 displayed on the Engine does not tally with the VIN number plate.

I have carried out road-test at Pankhabari road (Hilly area) but found pulling power unsatisfactory.

For any inherent manufacturing defect, the said vehicle is required to be sent to ARAI OR CIRT, Pune, for examination at their Technical Lab".

The State Commission partly allowed the appeals and passed the following order :- " Both the Appellants are directed to make the vehicle roadworthy and free of defects, noteworthy in respect of poor pick up and pulling while driving in hills and noiseless, even if it requires total over-hauling of the car, within three months from the date of communication of this order".

The complainant has filed this revision petition. We have heard the counsel for the parties.

Vide order dated 04.04.2014, we directed that the car should be tested by The Automotive Research Association of India (ARAI) and to report thereafter. The ARAI sent its report dated 28.05.2015. The relevant portion of it is reproduced as under :-

" Findings of their assessments are as summarized herein below:

Complaints lodged ARAI Observations

Car failed to perform in hills (Moderate climb) Car was found to negotiate gradient comfortably in dynamic condition in incline (gradient) section with full Gross Value Weight, with A/c on as well as on start-stop-start condition on gradient of 10.2 deg.

Acceleration reduced whenever Airconditioner is switched on, on plain roads. Acceleration was found to be fine in city/highway traffic on plain roads, with full Gross Vehicle Weight and A/c on.

Thus, it is clear that the vehicle can go fine on city/highway traffic on plain roads and not on hill-climb (moderate). It is further clear that the car suffers from inherent defect. It is also clear that the complainant could not ply the vehicle even after the change of engine. This vehicle can cross a flyover but cannot go up the high situated hill at considerable height. The problems are likely to crop up at such a height. The complainant visited the OP1, time and again, for rectification of his defective car. The OPs 1 & 2 have not rectified the defect, have committed unfair trade practice and further have taken the complainant for a ride. The complainant could not enjoy the use of his car. It is still lying with OP1 since five years. All the efforts to rectify the car have been exercised. There is no inkling on the record that it could be rectified to the desired result. The just and sound order rendered by the State Commission could not be complied with.

We, therefore, allow the revision petitions, set aside the order of the State Commission and restore the order of the District Forum and modify the same to the following extent that the OP 2, shall pay to the complainant, a sum of Rs.4,96,512/-, with interest @ 12% p.a., from the date of institution of the instant case, i.e., 31.12.2010, till realisation. The District Forum awarded compensation in the sum of Rs.20,000/-, which is too meagre. The compensation amount is modified and enhanced to a sum of Rs.1,00,000/- which be paid by OP1 and OP2 , jointly and severally, directly to the complainant, for unfair trade practice, harassment, mental agony, for delivering defective car and for the complainant''s per visit to OP1''s workshop, time and again, which be paid within 90 days from the receipt of the copy of this order, otherwise, it will carry interest at the rate of 12% p.a., till realisation. The revision petitions stand disposed of.