Hyundai Motor India Limited v. Surbhi Gupta

no. 3, Orion Motors Pvt. Ltd. The said vehicle was allotted registration no. HR 5AB 8493 and carried a two year warranty. The case of the complainant is that right from the time of the purchase, there was a problem with the vehicle, since it would invariably swerve towards left side of the road. According to the complainant, at the time of first service of the vehicle by opposite party no. 4, Samta Hyundai, Karnal on 03.01.2011, the aforesaid complaint was brought to the notice of the dealer. Though wheel alignment was then done by the dealer, but the problem continued to persist. When the matter was complained to the Manufacturer, Hyundai India Motor Limited, the complainant was asked to take the vehicle to its workshop for the purpose of checking. Accordingly, the vehicle was taken to KLG, Hyundai in Chandigarh, where the complainant was told that the problem would subside with the passage of time. However, the problem did not subside and continued to persist even thereafter. The complainant claims that the vehicle was taken to KLG, Hyundai for several times for resolution of the problem from which it was suffering, but no resolution to the problem could be found. The tyres of the vehicle were also got checked from the Manufacturer M/s. Bridgestone Tyres, which reported that one side wear found in the tyres due to abnormal force and no manufacturing defect was found in the tyre. Alleging deficiency in the services rendered to her, the complainant approached the District Forum, Chandigarh by way of a complaint, seeking refund of the cost of the car alongwith interest, Rs. 8 lakhs as compensation, replacement of defective part and defective tyres and cost of litigation amounting to Rs. 25,000/-.

2. The complaint was resisted by the Manufacturer Hyundai Motor India Ltd., which denied that the vehicle was suffering from some manufacturing defects. It was stated in the reply that the vehicle had already covered 20,233 kms in about two years as on 18.08.2012 and had there been any manufacturing defects, the vehicle would not have been able to cover that much mileage. It was further pointed out in the reply that the warranty given by the Manufacturer did not contemplate replacement of the vehicle and only some part could be replaced if it was found to have some manufacturing defects in it.

3. The District Forum, vide its order dated 30.01.2014, directed the opposite party no. 1 and 2 to replace the car purchased by the complainant with a brand new car of the same make and model at their own cost. It was further directed that if another car of the same model was not available, a new model car be supplied to her after charging/refunding the difference of price of the old model car and the new model car. The opposite party no. 1 and 2 were also directed to pay Rs. 22,472/-, which the complainant had paid to PEC University of Technology, Chandigarh for getting the vehicle checked. A sum of Rs. 1 lakh was awarded towards mental agony and Rs. 25,000/- was awarded to her as cost of litigation.

4. Being aggrieved from the order of the District Forum, the Manufacturer as well as the KLG, Hyundai approached the State Commission by way of separate appeals. The State Commission partly allowed the appeal filed by the Manufacturer and directed it to replace the car with a brand new car of the same make and model. It was further directed that in case the same car of same make and model was not available, the new car be supplied to her by charging/refunding the difference of price of the old model car and the new model car. The complainant was directed to handover the vehicle, which he had purchased, to the Manufacturer. However, the direction for payment of Rs. 22,472/- towards the fee of PEC University of Technology, Chandigarh and Rs. 25,000/- as cost of litigation was maintained. The direction for payment of compensation was set aside. The appeal filed by the dealer KLG,

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Hyundai was however allowed by the State Commission.

5. When the revision petition no. 2854/2014, filed by the Hyundai Motor India Ltd. came up for hearing on 04.08.2014, the complainant was directed to take the vehicle in question to the service centre of Hyundai Motor India Ltd. at A-30, Mohan Cooperative, Mathura Road, New Delhi on 09.08.2014 to be inspected by a technical team, which will include not only the mechanic from the Service Centre, but also the mechanic from the Hyundai Motor India Ltd. It was also directed that the inspection shall be carried out under the direct supervision of some senior officer of the petitioner company, on the technical side. The petitioner, Hyundai Motor India Ltd. was directed to remove the defects, if any, found in the vehicle, by carrying out necessary repair and/or replacing the defective component, if any, at its own cost and report back to this Commission. The complainant was directed to drive the vehicle in the presence of the officials of the Company.

6. In compliance of the aforesaid directions of the conditions, the vehicle was taken by the complainant to the Company owned showroom and workshop of Hyundai Motor India Ltd. at A-30, Mohan Cooperative, Mathura Road, New Delhi. A perusal of the affidavit of Mr. Santosh Kumar Anuragi, Service Manager, who is a B.E. (Mechanical) and a qualified engineer with 21 years of experience in automobile industry would show that at the time the vehicle was taken to the showroom, it had mileage of 48,689 kms. The vehicle was attended by the technical staff and inspected under the direct supervision of Mr. Santosh Kumar Anuragi. The affidavit shows that in order to remove the concern of customer completely, gear and linkage assembly was replaced under warranty, so as to avoid any dispute and thereafter, the vehicle was driven for about 6 kms. According to the Service Manager of the petitioner company, the vehicle was in perfect running condition after replacement of gear and linkage assembly, whereas the complainant claimed that after driving for about 6 kms, there was a little improvement and the problem continued to persist.

7. The warranty policy of the Manufacturer in respect of the vehicle in question reads as under:-

Hyundai New Vehicle Warranty

Hyundai Motor India Limited hereinafter called "HMIL", warrants that each new Hyundai vehicle sold shall be free from any defects in material and workmanship, under normal use and maintenance, subject to the following terms and conditions.

1. Warranty period This warranty shall exist for a period of 24 months from the date of delivery to the first purchaser irrespective of the kilometres covered. However, the warranty for Hyundai being used for commercial pupose such as taxi/tourist operation is 12 months/20,000 kms. from the date of delivery whichsoever is earlier. This warranty is transferable to subsequent owner for the remaining warranty period.

2. What is covered Except as provided in paragraph 3 hereof, our Authorized Dealers shall either repair or

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replace, any Hyundai genuine part that is acknowledged by HMIL to be defective in material or workmanship within the warranty period stipulated above, at no cost to the owner of the Hyundai vehicle for parts or labour. Such defective parts which have been replaced will become the property of HMIL.

3. What is not covered This warranty shall not apply to:

Normal maintenance services other than the three free services, including without limitation, cleaning and polishing, minor adjustments, engine tuning, oil/fluid changes, filters replenishment, fastener retightening, wheel balancing, wheel alignment and tyre rotation etc.

• Replacement of parts as a result of normal wear and tear such as spark plugs, belts, brake pads and linings, clutch disc/facing, filters, wiper blades, fuses, etc.

• Damage or failure resulting from:• Negligence of proper maintenance as required in this Owner's Manual and Service Booklet.

i.

Misuse, abuse, accident, theft, flooding or fire.ii.

Use of improper or insufficient fuel, fluids or lubricants.iii. Use of parts other than Hyundai Genuine Parts.iv.

Any device and/or accessories not supplied by HMIL.v.

Modifications, alterations, tampering or improper repair.vi. Parts used in applications of which they were not designed or not approved by HMIL.vii. Slight irregularities not recognised as affecting quality or function of the vehicle or parts, such as slight noise or vibrations, or items considered characteristic of the vehicle. viii.

Airborne "fallout", Industrial fallout, acid rain, hail and wind storms, or that Acts of God.

ix.

Paint scratches, dents or similar paint or body damage.x.

Action of road elements (sand, gravel, dust or road debris) which results in stone chipping of paint or glass.

xi.

Incidental or consequential damages, including without limitation, loss of time, inconvenience, loss of use of vehicle or commercial loss.

• Batteries, Audio Systems, Tyres and Tubes originally equipped on Hyundai vehicles are warranted directly by the respective manufacturers and not by HMIL. This warranty is the entire warranty given by HMIL for Hyundai vehicles and no dealer or its or his agent or employee is authorized to extend or enlarge this warranty and no dealer or its or his agent or employee is authorized to make any oral warranty on HMIL's behalf.

• HMIL reserves the right to make any change in design or make any improvement on the vehicle at any time without any obligation to make the same change on vehicles previously sold.

HMIL reserves the right for the final decision in all warranty matters. Owner's Responsibilities

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Proper use, maintenance and care of vehicle in accordance with the instructions contained in this Owner's Manual and Service Booklet. If the vehicle is subject to severe usage conditions, such as operation in extremely dusty, rough, more repeated short distance driving or heavy city traffic during hot weather, maintenance of vehicle should be done more frequently as mentioned in this Owner's Manual and Service Booklet."

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8. I am in agreement with the learned counsel for the Manufacturer, Hyundai Motors India Ltd. that had there been some inherent manufacturing defect in the vehicle it would not have been possible for the vehicle to run for about 48,689 kms for over a period of more than 3½ years. The likelihood in such a case can be that some parts of the vehicle had a defect in it but the vehicle remained in drivable condition despite that defect. Had the suspected defect been serious, the owner of the vehicle would not have been able to drive it for more than 3½ years and to the extent of 48,689 kms. It is evident from the affidavit of the Service Manager that the defect if any in some parts of the vehicle, stand fully removed on account of replacement of the gear and linkage assembly. The vehicle, after change of the gear and linkage assembly has been driven on the road for 6 kms and Senior Officers of the Company has found it to be running in perfect running condition though it had already ran more than 4080 kms. The plea taken by the complainant that despite replacement of the assembly the problem in the vehicle continued to persist can not be accepted in view of the above referred affidavit of the Service Manager/Manufacturing Company. The complainant was not getting the old vehicle replaced despite the fact that he used it for more than 3½ years and it ran it for 48,689 kms.

9. Moreover, as per the warranty given by the manufacturer, it was liable to replace only that part, which it acknowledged to be defective. In the present case, the petitioner replaced the part in question, with a view to satisfy the complainant, though it did not acknowledge any manufacturing defect in it.

10. For the reasons stated herein above, I am of the considered view that no ground for replacement of the vehicle sold to the complainant by a new vehicle is made out. The direction of the State Commission for replacing the vehicle by a new vehicle is, therefore, set aside. However rest of the direction of the State Commission do not call for any interference and the order is maintained and the revision petition is dismissed. The amount of Rs. 4 lakhs which the manufacturer had deposited with this Commission be refunded to the Manufacturer.

......................J

V.K. JAIN

PRESIDING MEMBER

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