Justice G.D. Sharma, President
1. On 7.6.2004, the Complainant purchased Accent Viva Car fitted with CRDi engine for a consideration of Rs. 6,58,510 from O.P. No. 2. O.P. No. l is the manufacturer. According to the Complainant, he was allured to purchase the said car after reading the contents of advertisement published in "Brochure B" (attached with the complaint) wherein it was stated that it had a highway mileage of 25.4 kms. per litre and pick up of 0 to 60 in 5.9 seconds flat, thus representing to the customers that it was leaving other vehicles behind it. His grievance is that hardly the said car had covered a distance of 20,000 kms. on the road; it started giving extraordinary long ignition which means the engine was not burning the fuel properly because of low pressure in the system and fuel efficiency of the engine started dropping. Ultimately after covering a distance of 50000 kms. the engine totally collapsed. Since the defect had occurred during the warranty period so the vehicle was sent to O.P. No. 2 for repairs. The defect was removed but the Complainant received back the vehicle under protest by making representation vide letter `Annexure C' wherein apprehension was shown that the vehicle fitted with CRDi engine was either suffering from manufacturing defect or had defective technology. Assurance was sought that after its overhauling the engine would become trouble free and satisfactory service would be rendered upto 2/3 lac kms. to avoid harassment and litigation. The complaint was forwarded by O.P. No. 2 to the Higher Authorities. The vehicle was plied on the road for 10,000 kms. more but again the defect surfaced. Vide Annexure D (letter dated 10.8.2006), the Complainant informed O.P. No. 2 about the defect and demanded assurance within 45 days from the Higher Authorities. O.P. No. 2 was again informed vide `Annexure G' which was the information received through e-mail. It was again reiterated that the engine was not giving satisfactory service on account of pickup and fuel economy. The engine was giving 9 kms. per litre in local running and 13 kms. per litre on the National Highway. Vide letter dated 3.11.2006, it was specifically brought to the notice of O.P. No. 2 that O.P. No. 1 had modified the design of CDRi engine and removed all the existing defects of earlier CDRi engine and launched modified model by the name of "Hyundai Verna" for a price of Rs. 6,21,000. It was specifically stated that he had purchased the car in question two years earlier at a price of Rs. 6,58,510 and because of defective technology the price had been lowered down and change in the engine was made. The Complainant was still using the vehicle in a defective condition and when no remedial steps were taken then he was forced to file the complaint on 28.12.2006. Meanwhile, the Complainant continued to ply the vehicle and after its overhauling a further distance of approximately 31,000 kms. was covered. Finally, the engine totally collapsed and it was taken to the workshop of O.P. No. 2 for repairs on 3.12.2007. That ever since 3.12.2007, the vehicle in question is lying with O.P. No. 2 and they had sent bill for its repairs in the sum of Rs. 45,572. The same has been placed on record of the case, along with the application. The application is pending for disposal. The Complainant has given the details of the alleged modified CRDi engine in Para 10 of the complaint and thereafter stated that it is the improved and modified model of the old engine. In other words, the performance of the old engine stands enhanced.
2. O.P. No. l in his written version has pleaded that car was purchased on 7.6.2004 and within a period of one month i.e.on 1.7.2004, it was brought for free service which was without any remuneration strictly in accordance with the terms and conditions of warranty period. At that time, the car had covered a distance of 3,692 kms. After covering a distance of 10668 kms, again free service was obtained. At that time, complaint was made that tailgate had been locked and that was checked. At both the above stated occasions, no manufacturing defect had surfaced and there was no complaint to that effect. After about eight months i.e. on 13.6.2005, the Complainant brought the vehicle in question for free service and at his request central locking, defoggers switch brake light bulb and A.C. were checked. Then after two months i.e.on 9.8.2005, the Complainant approached O.P. No. 2 at his workshop for air of condenser and compounding of roof and bonnet. All the defects were removed free of cost as warranty period had not expired and the vehicle was delivered in a good running condition. Then after ten months i.e.on 26.6.2006, the Complainant again for the fifth time approached O.P. No. 2 and it was found that overhauling was necessitated on account of excessive wear and tear and poor maintenance. The details are given in (Annexure C). The vehicle was delivered after overhauling and making it road worthy. On sixth occasion i.e. on 17.10.2006, the Complainant brought the vehicle to O.P. No. 2 after covering the mileage of 51,111 kms and the car was tested for mileage. It was found that the vehicle was giving an average consumption of fuel for 20 kms per litre (Annexure 1). The Complainant thereafter filed the complaint. O.P. No. l has totally denied that there existed any manufacturing defect in the vehicle. O.P. No. 2 admits that he is an authorised dealer of O.P. No. l and while admitting the statements of facts regarding the repairs delineated in the written version of O.P. No. l has additionally made the submissions that before the service was affected on 26.6.2006 for repairs, the Complainant about a month before that i.e.on 25.5.2006, had brought the Motor Vehicle in question when it had covered distance of 49909 kms. The engine oil and the oil filter were replaced. Engine tuning was done, the air cleaner filter was replaced, and the catalytic converter was checked and cleaned and the car was delivered to the Complainant in good running condition. Thereafter, on 26.6.2006, the Complainant had brought the vehicle to the workshop and at that time also the mileage covered was the same as was on 25.5.2006. This shows that after tampering with the speedometer the car had been plied. That on 17.10.2006, when the vehicle was brought for repairs on the report like low mileage, low pick up, A.C. cooling not effective and wheel noise; thorough check-up was made by trial. The car recorded a mileage of 20 kms per litre. The same was recorded in the repair order. The "rear brake" show was also cleaned and the car was delivered to the Complainant in a good condition. On the "repair order" (Annexure R8), the Complainant's driver had put his signatures. It is specifically denied that Complainant had not purchased the car the advertisement which is shown by himwith his complaint (Annexure A) because he had purchased car on 7.6.2004 and the avertisment question was published in January 2006. Regarding the allegations coverage of low mileage of the vehicle in question; it is pleaded that mileage of a car depends on various external factors like road and traffic conditioners driving habits, pattern of gear shifting, quality of fuel, braking pattern, etc. The overhauling of the engine as stated earlier was done on 26.6.2006 because the car had at that time covered a distance of nearby 50,000 kms and there was great wear and tear. Regarding the allegations made in the complaint that Hyundai Verna Model was an improved version of Accent CRDi is totally wrong statement of fact. Both these models are different in terms of mileage, performance, etc., and Hyundai Verna is sold at a higher price than Accent CRDi. That after the filing of the complaint in the Commission, on 3.12.2007, the Complainant's driver brought the car and made complaints about "running repair and engine overhauling". The alleged defects were removed and cost for repairs were demanded in the sum of Rs. 54,572 as warranty period had already expired. Complainant through the medium of application dated 31.1.2008 wants to get back the car without making any payment regarding the repairs which were affected on the basis of cash payment. The application also speaks of the mala fide on the part of the Complainant who wants to get his car replaced with new one on the concocted story of manufacturing defect.
3. Heard the arguments.
4. Mr. P.S. Powar, learned Counsel of the Complainant has stated that when the car in question had started giving trouble, the defects were being brought in time to the notice of O.P. No. 2 who had been removing the same. When the engine had finally collapsed after covering the distance of 50,000 kms. it was repaired by O.P. No. 2 within the warranty period. The Complainant had apprehension even at that time about the efficiency of the engine which was brought to their notice vide Annexure `C' which is a letter dated 23.6.2006 wherein it is stated that it had come into the notice of the Complainant that Hyundai Accent CRDi, model of the car had a manufacturing defect as it was not covering a normal distance of 2/3 lacs kms. which is a normal life of the engine. In the car in question the engine had been fitted with CRDi type and it had a manufacturing defect or a defective technology. Assurance was demanded from O.P. No. 2 that it would give satisfactory service up to 2/3 lacs kms. In Annexure'D'again it was brought into the notice of O.P. No. 1 that they had replied to Annexure `C' but assurance was not given. That letter has not been produced with the record of the case although according to the Counsel the crux of the letter has been incorporated at the end of Annexure `D' and according to that promise no communication had been received by the Complainant within 45 days from Hyundai Motors India Limited, North Region Office regarding the querry which the Complainant had made. Vide Annexure `G', dated 18.9.2006 it was reiterated to O.P. No. 2 that overhauled engine was not giving satisfactory service on account of pick-up and fuel economy as it was giving 9 kms. per hour locally and 13 kms. per litre on high-way in the long run. Again assurance was sought and the problem was highlighted. It is further argued that when the engine again totally collapsed it was taken to O.P. No. 2 for repairs but this happened during the pendency of the complaint and they have slashed the repair bill in the sum of Rs. 45,572. which the Complainant has not paid and the vehicle is lying there. The allegations made in the written version of O.P. No. 2 with regard to the tampering with the speedometer has been rebutted in the arguments by the Counsel by referring to Annexure `R6' and Annexure `R7' which are the original bills produced by the O.P. No. 2 with the record as he has stated that in Annexure `R6' the date of preparation of bill is shown 25.5.2006 and the mileage is 49,909 whereas, in Annexure `R7' mileage is the same but the date shown is 26.6.2006. Annexure `R7' is the computerized bill which was provided on 8.11.2006 as is written in the bill itself. Annexure `R7' is a doubtful document which shows its preparation on 8.11.2006 and the date reflected is 26.6.2006, then how there could be tampering with the speedometer.
5. In rebuttal the learned Counsel for the O.P. No. 1, Mr. Kamal Gupta, Advocate has stated that the whole edifice of the complaint is based on poor mileage either on account of Annexure `B' which offers a Highway mileage of 25.4 kmp and a fantastic pick-up of 0 to 60 in 5.9 seconds flat. This add is of January 2006, whereby the car in question was purchased on 7.6.2004. It is alleged in the complaint that the car in question was giving poor mileage either because of defective technology or manufacturing defect. There is no expert witness produced by the Complainant to prove mechanical defect. The vehicle was being attended by the O.P. No. 2 whenever it was brought before him and they have amply proved this assertion by leading evidence. The car had no manufacturing defect and all the defects which were brought into the notice within the warranty period they were removed free of cost. The dispute is with regard to the repairs which were done after the warranty period and that too after more than one year. That when the bill was served upon the Complainant, it was not paid to O.P. No. 2 with the result the car is lying there. With regard to the doubtful nature of Annexurel `R7' as is being projected on behalf of the Complainant, the Counsel has replied that the Complainant in his cross-examination has admitted its contents as true and correct. The learned Counsel appearing for O.P. No. 2 has stated that in the written version it is clearly admitted that whenever the car in question was being brought within a warranty period to remove the defects they were being removed without charging any fee or price. That in cross-examination the Complainant has admitted all the Annexures produced by the O.P. No. 2 from `Rl' to `R8' as true and he has also admitted that service of the vehicle were being provided whenever any approach was being made for making it road-worthy. He has also urged that the Complainant has admitted before the Hon'ble Commission that his case is regarding the use of defective technology in the engine which is not experienced by the Complainant individually but other many owners of the similar type of engine are feeling the brunt. No such person has been named or examined as a witness in the Commission. The Complainant has not examined any expert witness to prove the defective nature of the engine used in car in question. While concluding his arguments, the Counsel has stated that the Complainant has admitted the contents of Annexure `R8' as correct and Annexure `R8' shows that average test of the vehicle in question on road was conducted in presence of the driver of the Complainant and on road it had given 20 kms. per litre at the speed of 50 kms. per hour while carrying three persons in it without A.C. Annexure `R7' is not a tampered document as has been alleged because printing time given is "08.11.2006, 11:40" which could be a computerized error but the date on the top of the bill is 26.6.2006 and the same date has been reiterated below that bill under the heading, "Estimated Actual" and the signature of the Complainant's driver had also been obtained at two places on this document.
6. After considering the respective contentions of Counsel appearing for the parties, we find that the Complainant has approached the Commission not with clean hands and clear conscience. From the very beginning he had been trying to make out a case that defective engine had been used in his car as well as in others of the same model and make. He has not produced any evidence in that regard. It appears that the Complainant from the very
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beginning had been entering into correspondence with the O.Ps. which is of unilateral nature and has no authenticity. The evidence brought on record by O.Ps. proves to the hilt that whatever defects were brought to the notice of O.P. No. 2 within the warranty period those were removed and detailed arguments with facts and figures had been advanced in support of this finding. The Complainant has not brought on record even an iota of evidence to prove that the car suffered from any mechanical defect. Rather, it is found that when a major defect had developed in the vehicle after the warranty period and he brought the vehicle for repairs with O.P. No. 2 he left it there as he wanted free service against the bills which had been issued for effecting the repairs. He tried to get indulgence from the Commission by making application of frivolous nature to get the car back free of cost but did not succeed. He is found to be a consumer of unscrupulous nature who has tried his luck by using Machiavellian methods to hood-wink the Commission in order to enrich himself on the basis of a cooked and concocted story of manufacturing defect in the engine. The Consumer Fora are not meant as money minting counters for such type of consumers but being the Courts of equity, they are meant to redress the grievances of those consumers who are genuine and come with bona fide claims. Undoubtedly, the complaint is found of frivolous and vexatious nature which under Section 20 of the J&K Consumer Protection Act 1987 is dismissed with costs of Rs. 10,000 to be paid by the Complainant to the O.Ps. The complaint is consigned to records. Complaint dismissed.