HYUNDAI MOTOR INDIA LIMITED vs S.T. PATIL & ANR.

Sh. S.T. Patil, the complainant, purchased a Hyundai Accent CRDI car, on 31.05.2005, from Bellad Hyundai, OP1 who was the dealer. The manufacturer of Managing Director, Hyundai Motor India Ltd., OP 2 & President of Hyundai Motor India Ltd, OP 3 were also

arrayed as parties. The complainant, while he was travelling in his car to Belgaum, there was a break-down of the car on account of damage to the oil sump of the said car. It was taken to the Service Station of OP1 at Belgaum. OP1 repaired the car by replacing of sump cover, filling up oil in the sump and also got the insurance claim for the said purpose. Thereafter, the complainant used that car for about one week and he noticed severe vibration in the engine. He took the car to service station of OP1 during the first week of October, 2004.

At the work shop, the driver of the complainant over-heard the conversation among the mechanics that when the car was repaired at Belgaum service station, the mechanics at Belgaum station left a screw- driver in the sump. The workshop of OP1 could not find out the fault. They went on ''trial'' to detect the ''error'' for about more than two weeks. The complainant also visited OP1. It transpired that they were unable to repair the vehicle.

The complainant suggested OP1 to call some Experts from OPs 2 & 3 to rectify the ''errors''. OP1 promised that if they were unable to locate the ''errors'' and repair the vehicle, they would replace the new engine and see that the no further problem is caused. OP1 complied with its assurance and delivered the vehicle in the last week of November, 2004. After some time, the problem of vibration in the engine continued and the complainant reported the same to the service station of OP1 at Bijapur. The car was jointly inspected by one, Mr. Manjunath, Sales Executive and Mr. Ramesh Chigandi of OP1''s service station and they agreed and confirmed that the vehicle is not perfectly repaired and they promised that they will deliver the vehicle with repairs and reconditioned within 10 days.

It is alleged that the petitioner failed to replace the engine and went on changing the parts and later asked the complainant to collect the vehicle on 14.01.2005, i.e., after 24 days, the same was delivered to OP1. The complainant was not satisfied with the repairs and did not take delivery of the car. OP1 sent two reminders but the complainant did not take delivery of the vehicle stating that the car has lost its originality on account of inefficient service rendered by the unqualified and incapable and incompetent staff of OP1. The vehicle remained with OP1. The OPs have detained the vehicle for more than 2-3 months under the guise of affecting the repairs. The complaint was filed with the District Forum claiming a sum of Rs.19,15,000/- with interest @ 24% p.a., from 11.12.2004, till realization.

The OP1- Bellad Hyundai, has contended that the vehicle had met with an accident, wherein the oil sump was damaged, Again, oil was leaked and the car ran for 20 kms without maintaining oil level properly, hence engine parts were damaged severely, which is the main cause for vibration of the engine. The complainant did not allow the mechanics to investigate properly to see the oil sump representing that he was in a hurry. As per the request of the complainant, the OP2 filled the oil by complying the request of the complainant. Till this period, the vehicle has run for over 49000 kms, without any problem. The vehicle was got tested in the service station of the appellant at Hubli on 21.08.2004 when the vehicle, while taking delivery,

the driver of the vehicle was fully satisfied. The problem of vibration in the engine started only after 30.08.2004. The complainant himself got repaired the oil sump unauthorisedly though the vehicle met with an accident by suppressing the factum of involvement of the vehicle in an accident. The complainant has not maintained the vehicle properly. It is admitted that at that time, the vehicle was under warranty. OP2 denied deficiency on its part.

The District Forum vide its order allowed the complaint in part. It directed that the complainant was entitled for replacement of the Hyundai Accent CRDI car with new one of the same model with new warranty from the OPs and also compensation of Rs.25,000/- for mental agony, damage, etc., from the OPs, with interest @ 9% p.a., from the date of filing of the complaint, till realization, along with Rs.100/- as cost of the proceedings.

The State Commission modified the order of the District Forum, and held as under :- "Both the appeals are disposed of by modifying the order dated 24.01.2006 passed by the DF, Dharwad in Complaint No.124/2005. The appellant/OPs are directed to replace the Hyundai Accent CRDI Car with new one of the same model with new warranty within 30 days. In the event of non-availability of the same model, the appellants/OPs are directed to refund Rs.19,15,000/- with interest at 9% p.a., from the date of order till realization. Order with regard to the payment of compensation to the extent of Rs.25,000/- to the complainant by the OPs for mental agony and damages and litigation expenses is confirmed".

We have heard the counsel for the parties. This revision petition was filed by Hyundai Motors India Ltd., OPs 2 & 3, the M.D. and President of manufacturer. Counsel for the respondent/OP2 and 3 vehemently argued that in absence of M/s. Bellad Hyundai, OPI, it is difficult to tell what is the stand and position of the car in question. The car is in possession of OP1. OP2 has got the over-all liability. It is also liable vicariously. It cannot get away with the plea that OP1 is not available. Had the car been produced before this Commission, we would have asked the OPs to rectify the car, give further warranty and pay compensation. In absence of the car, it is clear that the car cannot be repaired. The OPs are not in position to repair the car.

In Tata Motors Ltd. Vs. Lachusethi, II (2005) CPJ 151 (NC) , wherein the OPs could not rectify the manufacturing defects despite repeated complaints and taking the vehicle to the workshop, this Commission held that deficiency in service stood proved. In that case, it was held that the complainant, after being fed up with the defects, surrendered the vehicle, within 3 months of purchase. The order passed by the fora below to replace the car or to refund the cost of the car was upheld.

There is no evidence on record that the vehicle in question ever met with an accident. The fact of vibration in the car stands admitted. The District Forum in its judgment, was pleased to hold :- " It may be noted that it is not denied that there is a defect of the vibration of the engine and also starting problem, etc., after the sump was replaced as per the ruling that has been relied upon by the learned counsel for the complainant, it is very clear that even if there is an accident if the manufacturing defect is proved then, the complainant is entitled for replacement of the new vehicle or refund of the cost of the vehicle and therefore, in this case also, it is proved by the complainant that there is a manufacturing defect in the vehicle and vibration of the engine is suffering from manufacturing defects and during the warranty period itself. The complaint has been filed and as per the submission of the learned counsel for the respondents themselves, it is clear that nearly about Rs.80,000/- has been spent for replacement of the parts, etc., that itself goes to show that there is a manufacturing defect in the vehicle which could not be repaired at all. Therefore, on the above discussion, we come to the conclusion that the complainant is entitled for replacement of the car with a new one and he is not entitled for the refund of the cost of the car".

It stands proved that even after replacement of the oil sump, the vibration in the engine continued. Above all, there is joint inspection report made by Sh. Manjunath and Sh. Ramesh Chigadani who are the witnesses of the OPs themselves. The State Commission was pleased to hold :- "There is no dispute with regard to the joint inspection made by one Manjunath and Ramesh Chigadani, the representatives of OP1 on 05.12.2004 and they have told the complainant that the vehicle was not perfectly repaired and issued a letter dated 10.12.2004 and promised that they will deliver the vehicle with full repairs within 10 days. But they failed to replace the engine on account of major repairs carried out within the warranty period".

It is thus clear that the petitioner attempted to repair the vehicle but they could not do the needful. It was the duty of the OPs to ask the complainant to take the vehicle and its letter should have been accompanied by a certificate stating that the vehicle was road-worthy. It is also difficult to fathom, why, the OPs did not provide the report of their own mechanic. After Sh. Manjunath and Sh. Ramesh Chigadani had reported the defects in the car, no action was taken by the OPs.

It must be borne in mind that during the repairs, the complainant was deprived of service of the car for 2-3 months. However, the claim made by him in the complaint is on the higher side. He calculated the compensation, as follows :-

a) Refund of value of Accent CRDI car on Road, with interest Rs. 8,00,000/-

b) Compensation for mental agony Rs.5,00,000/-

c) Compensation for damages suffered during non-availability of vehicle Rs.5,00,000/-

d) Expenses incurred by the complainant Rs.1,00,000/-

e) Legal expenses Rs. 15,000/-

Total Rs.19,15,000/-

(i). Keeping in view, all the facts and circumstances, we hereby direct the OPs to repair the car, because it has already run to the extent of 49000 kms, within 15 days'' from the receipt of the copy of this order. A Certificate by the President, Hyundai Motors India Ltd., that the car is road-worthy and suffers from no defects would accompany. A fresh warranty for two years shall be given. 14. (ii). If the needful is not done, within the said 15 days'', the petitioner is further directed to pay, instead of replacement of the car, a sum of Rs.8,00,000/- to the complainant, within 15 days, after receipt of this order, otherwise, it will carry interest @ 12% p.a., till realization.

(iii). The petitioner will also pay compensation in the sum of Rs.3,00,000/- and legal expenses in the sum of Rs.1,00,000/-, within the said 15 days'', otherwise, the same will carry interest @ 12% p.a., till realization. This direction will be an additional direction which will be applicable either with 14 (i) or 14 (ii), whatever the case may be.