HYUNDAI MOTOR INDIA LTD THROUGH ITS AUTHORISED SIGNATORY, B. ARUTSIVAN vs DR. R.V. LOKARE & ORS

This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 16.07.2007, passed by the Karnataka State Consumer Disputes Redressal Commission, Bangalore (hereinafter referred to as "the State Commission") in Appeal No. 2108/2005, Hyundai Motors India Ltd. vs. Dr. R. V. Lokare & Anr., vide which, while dismissing the appeal, the order passed by the District Consumer Disputes Redressal Forum, Dharwad, dated 18.11.2005, in Consumer Complaint No. 72/2003, filed by the present respondent no. 1, allowing the said complaint, was upheld.

The facts of the case are that the complainant/respondent no. 1, Dr. R. V. Lokare purchased a Santro LE Car on 18.10.2000 from the respondent no. 2 dealer, Bellad Hyundai, Hubli for a sum of Rs. 3,26,074/-. At the time of sale of the car, a warranty for 24 months was given to the complainant from the date of delivery against any defects in material and workmanship etc. The car was running well for about 10 months in the beginning, but thereafter, there were problems of engine jerking, oil leakage, wobbling of the steering etc. The complainant also found heavy and unbearable smoke emission from exhaust and found the engine making intolerable noise. The service engineer of the respondent no. 2 replaced the smoke tail pipe, but the problems in the vehicle could not be resolved, despite taking the vehicle to the workshop a number of times and getting the repairs done. As stated in the consumer complaint, the car posed severe problems in May, 2002 and it was taken to the respondent no. 2 for repairs. The respondent no. 2 took about two weeks for repairs and returned the car, saying that the engine of the car had been changed, although, there was no number on the engine and no invoice was supplied regarding the change of engine. However, the car suffered from multiple problems again, because of which, the complainant wrote to the petitioner manufacturer to replace the car. The complainant alleged that because of manufacturing defect in the car, he had suffered irreparable financial loss and undergone harassment and agony. The complainant filed the consumer complaint in question against the manufacturer/petitioner and the dealer, seeking directions to them to replace the car with a new vehicle and to pay Rs. 1,73,000/- for the expenses incurred and the losses suffered by the complainant and also to pay the cost of litigation.

The complaint was resisted by the OPs by filing their objections to the complaint before the State Commission, in which they denied the allegations against them. They also stated that the vehicle had been repaired from time to time to the satisfaction of the complainant. The complainant had used the car without any problem as evident from the mileage covered, i.e. 16306 km as on 27.01.2003.

The District Forum, after considering the averments made by the parties, allowed the consumer complaint and stated as follows in the operative portion of the order:- "The complaint of the complainant is allowed and the complainant is entitled to replacement of Santro LE Car supplied by the respondents with a new one of the same brand and he is also entitled to Rs. 25,000/- from the respondents as compensation towards loss and mental agony along with Rs. 100/- as cost of this proceedings.

The respondents are directed to carry out the above said directions jointly and severally within four weeks from the date of this order."

Being aggrieved against the above order of the District Forum, the petitioner/OP-1 challenged the same by way of an appeal before the State Commission and the said appeal having been dismissed, the petitioner/OP-1 is before this Commission by way of the present Revision Petition. During hearing, written arguments have been filed on behalf of the petitioner/OP-1 as well as by the complainant/respondent no. 1. The learned counsel for the petitioner/OP-1 and the complainant have also led their oral arguments.

It has been stated by the learned counsel for the petitioner that there was no manufacturing defect in the vehicle, as the car had been extensively used and driven by the complainant. It had run more than 16000 kms before the consumer complaint was filed. Even during the pendency of the complaint, the car had travelled upto 25000 kms. The problem in the exhaust pipe of the car was due to the use of adulterated fuel. The direction given by the consumer fora below for the replacement of the car was not justified. It has also been averred by the petitioner that every time the car reported at the workshop of OP-2, it was thoroughly checked and returned to the complainant after proper service and after ensuring that it was in perfect running condition. At the time of oral hearing also, the learned counsel reiterated the arguments given in written submissions. He also stated that the vehicle was lying in the garage of the complainant, but at this point, it had almost become junk. The learned counsel has drawn our attention to the letter dated 07.09.2002, sent by the OP-2 dealer to the Regional Transport Office (RTO), Dharwad, in which they had stated that they were required to change the engine under warranty and they sought permission of the RTO to carry out the said change.

In his written submissions, the learned counsel for the complainant/respondent no. 1 stated that both the fora below had concluded that there was manufacturing defect in the car and the same was evident from the letter dated 07.09.2002, written by OP-2, dealer to the RTO, Dharwad. The concurrent findings of the consumer fora below, therefore, did not warrant any interference in the exercise of the revisional jurisdiction. The learned counsel has drawn our attention to an order passed by the Hon''ble Supreme Court in Ruby (Chandra) Dutta vs. United India Insurance Co. Ltd., (2011) 11 SCC 269 in support of his arguments. The learned counsel stated that at the time of first and second service of the car done on 01.02.2001 and 27.04.2001 respectively, there were problems like hard gear shaft, wheel alignment and hard suspension. A few weeks before the third service of the car, there were problems of engine jerking, oil leakage, wobbling of steering etc. After the third service, the complainant found heavy and unbearable smoke emission from exhaust and the engine was making intolerable noise. Despite taking the car many times for repairs, the defects in the car could not be removed. The learned counsel stated during oral hearing that the letter written by OP-2 to the RTO, regarding change of engine showed very clearly that there was manufacturing defect in the engine itself. The said letter had been sent within the warranty period. After the replacement of the engine, a different engine number was there on the engine and there was a different number engraved on the engine cover. The learned counsel further stated that it was evident from the copies of the repair orders made by M/s Bellad Hyundai Hubli that there was breakdown of the vehicle. The learned counsel stated that the vehicle was in their custody, because the dealer had given up their dealership and they were forced to keep the vehicle with them, otherwise the OP-2 was asking for rent for parking of the vehicle.

We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

A perusal of the material on record brings out clearly that the vehicle in question suffered from problems like engine jerking, oil leakage, wobbling etc. even before the third service of the car was to be done. The documents relating to the service of the car also bring out that these defects had been noted on the relevant job cards etc. The vehicle had to be taken for repairs a number of times, but it could not be made defect-free. The definition of ''defect'' as laid down in Section 2(f) of the Consumer Protection Act, 1986 says as follows:- " Section 2(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods;"

It is amply proved from the record that the car did suffer from defects of various kinds, although it is a different question altogether whether these defects come under the category of manufacturing defect or not, but the vehicle was definitely a defective vehicle.

The crucial document in the whole episode is the letter written by the General Manager, M/s Bellad Hyundai on 07.09.2002, addressed to the RTO Dharwad, saying clearly that the vehicle had some problems in the engine and they were required to change the engine under warranty. As per the letter, permission of the RTO was sought to carry out change of the engine. This document makes it clear that within the warranty period of the vehicle, there were problems in the engine and the same was required to be changed. It has been rightly stated in the order of the District forum that keeping in view the said letter to the RTO, there was no need for further proof about the manufacturing defect in the vehicle. Further, the complainant has stated that the OPs changed the engine with an old and rusted engine of a different car and the said engine had no number printed on it. The registration number of a different car was printed on it. However, the problem in the vehicle persisted even after the said change in engine was made. It is made out clearly from these facts that the defects in the vehicle were there even during the warranty period, and the engine was also changed altogether.

A similar matter has been examined by this commission in the case Hyundai Motor India Ltd. Vs. Affiliated East West Press (P) Ltd., I (2008) CPJ 19 (NC) . It was held clearly that when a car was required to be repaired on several occasions and defects could not be rectified, the OPs were under obligation to replace such a car.

During hearing before us, it was stated that the defective car had been lying in the garage of the complainant, because the dealer had wound up its dealership with the manufacturing company and insisted that the vehicle should be taken away from his garage, otherwise he shall levy charges on the complainant for the custody. During all this period, the vehicle had become junk and was not worthy of any usage anymore.

The manufacturer has taken the plea that the said car had covered a distance of approximately 25000 kms in about three years'' time. Had there been a manufacturing defect in the vehicle, the same could not have run all this distance. Even after the filing of the complaint, the complainant had been using the car regularly. However, this plea is not tenable as the manufacturer has not been able to explain anywhere whether they or their dealer were able to remove the defects in the vehicle and provide it in a road-worthy condition to the complainant. It is amply made clear that the complainant was deprived of the use of the car after plying it initially for a few years.

From the entire facts and circumstances of the case, it is felt that since the car has become junk and there is no denial of the same, it shall be in the interest of justice that the depreciated value of the car as on the date of order of the District Forum i.e. 18.11.2005 is remitted to the complainant, alongwith interest @ 7% per annum from 18.11.2005 till date. Since the car had covered a distance of about 25000 kms in a span of three years, it shall be in the interest of justice and equity that 60% of the original price of the car is paid to the complainant alongwith interest @ 7% per annum w.e.f. the date of order of the District Forum i.e. 18.11.2005 till realisation. The present petition is, therefore, disposed of with the direction as stated above. The orders passed by the consumer fora below stand modified accordingly.