BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL

FORUM, BIHAR, NALANDA

CASE NO. 51/2020

IN THE MATTER OF:-
JAWAHAR KUMAR
……COMPLAINANT
VERSUS

GENERAL MANAGER, ASHIANA AUTOMOBILES PVT. LTD. & ORS.

……OPPOSITE PARTY
INDEX
S.N PARTICULARS PAGE NO
O
1. WRITTEN ARGUMENTS ON BEHALF OF THE
OPPOSITE PARTY NO. 2 & 3

THROUGH

COUNSEL FOR OPPOSITE PARTY NO. 2 & 3

DATE:
PLACE:
 BEFORE THE HON’BLE DISTRICT CONSUMER DISPUTE REDRESSAL
FORUM, BIHAR, NALANDA

CASE NO. 51/2020

IN THE MATTER OF:-
JAWAHAR KUMAR
……COMPLAINANT
VERSUS

GENERAL MANAGER, ASHIANA AUTOMOBILES PVT. LTD. & ORS.

……OPPOSITE PARTY

WRITTEN ARGUMENTS ON BEHALF OF OPPOSITE PARTY NO. 2 & 3

MOST RESPECTFULLY SHOWETH:

BRIEF FACTS OF THE CASE

1. The Complainant ordered an old Vehicle/Car (“said product”) from the

dealer i.e. Opposite Party No. 1 namely M/s Ashiana Automobiles Pvt.
Ltd., in year 2019. It is alleged by the Complainant that M/s Ashiana
Automobiles Pvt. Ltd. took (11) eleven months to deliver the said
Vehicle/Car to the Complainant and also failed to resolve the
issue(s)/Complaint(s) of the Complainant. All the above-mentioned
allegations admittedly pertain merely to the dealership M/s Ashiana
Automobiles Pvt. Ltd and does not having bearing with OP No. 2 & 3
(Hyundai Motor India Ltd). Complaint is hence liable to be dismissed qua
OP No 2 & 3.

2. The Complainant has impleaded Opposite Party No 2 & 3 as a party to

this complaint merely on the misconceived ground that the dealers are
representatives of Opposite Party No. 2 & 3 and that it is liable for the
acts and omissions of the dealer.

SUBMISSIONS:

 THE LIABILITY OF THE OPPOSITE PARTY NO. 2 & 3 IS LIMITED

AND RETAIL SALES AND AFTER-SALES SERVICES FALL WITHIN
 THE DOMAIN OF THE SELLING DEALER I.E. M/S ASHIANA
AUTOMOBILES PVT. LTD. I.E. OPPOSITE PARTY NO. 1
3. It is submitted that the liability of Answering Opposite Party No. 2 & 3
being the manufacturer of the Hyundai cars is limited and extends to its
warranty obligations alone and error/omission/ misrepresentation, if any, at
the time of accidental repair of the vehicle of the car on part of the Dealer
or Insurance company cannot be fastened upon the answering Opposite
Party No. 2 & 3 The liability of Opposite Party No. 2 & 3 i.e. the
Answering Opposite Party, being the manufacturer of the Hyundai Cars is
limited and extends to its warranty obligations alone as detailed in warranty
policy. Further all aspects of retail sales and after- sales services fall within
the domain of the selling dealer i.e. M/s Ashiana Automobiles Pvt. Ltd ie.
the Opposite Party No. 1 as in the present case.

 THE PRODUCT WAS PURCHASED THROUGH THE DEALER, SO THE

LIABILITY OF OPPOSITION PARTY 2 & 3 EXTENDS TO WARRANTY
OBLIGATIONS ALONE

4. That the Opposite Party No. 2 & 3 operates with all its dealers on a
Principle to Principle Basis and errors/ omission/representations, if
any, at the time of servicing / sale of the car is the sole responsibility of
the concerned dealer. It is submitted that the liability of Opposite Party
No 2 & 3 being the manufacturer of the Hyundai cars is limited and
extends to its warranty obligations alone. It is submitted that what is
not covered under warranty policy of HMIL is specifically mentioned
under Owner's manual & service Booklet. It is also important to
mention that the cars are purchased by the concerned dealers from
Opposite Party No. 2 & 3 against payment and thereafter, the
purchased cars are sold by the dealer to the customers. It is pertinent to
mention that the title of the "Hyundai" passes on to the concerned
dealer, the moment it is put on a common carrier. The copy of the
Dealership Agreement between Hyundai Motor India Ltd and M/s
Ashiana Automobiles -Pvt. Ltd is annexed herewith as Annexure B To
further substantiate the abovementioned statement, the Opposite Party
No 23 would rely on the Judgment of Hon'ble National Commission as
rendered in M/s Hero Honda Ltd. Vs K.B Murleedharan & Anr
 reported in 1986-94(NS) 955, Indian Airlines Corporation Vs. Patel
Kamubhai Shankerlal & Anr reported at 1986-94(NS) 437 and Vijay
Traders Vs Bajaj Auto Ltd. as rendered by Hon'ble Supreme Court and
reported at 1995(6) SCC566.

5. It is pertinent to mention here that the Complainant has impleaded

Opposite Party No 2 & 3 as a party to this complaint merely on the
misconceived ground that the dealers are representatives of Opposite
Party No. 2 & 3 and that it is liable for the acts and omissions of the
dealer.

 COMPLAINANT HAS FAILED TO ESTABLISH ANY CAUSE OF

ACTION AND DEFICIENCY OF SERVICE AGAINST THE
OPPOSITE PARTY NO. 2 & 3 AND HENCE THE NAME OF OP 1 &
2 DESERVES TO BE DELETED

6. Despite having complete knowledge that the Opposite Party No. 2 & 3
is not at all liable for sale of the vehicle and the liability for the same
falls under the domain of the dealers only, the Complainant has
malafidely impleaded Opposite Party No. 2 & 3 as a Party to this
complaint. The complaint is bad for 'mis-joinder of party' and as such
the name of Opposite Party No. 2 & 3 deserves to be deleted from the
array of parties.

7. The above mentioned facts clearly depict the malafide intention of the
Complainant only to extract exorbitant amount of money from the Opposite
Party by abusing the process of law. It has been decided by the Hon’ble
NCDRC and Supreme Court that the compensation claimed should
commensurate with the loss or damages suffered by the Complainant. In the
present case, the Complainant has failed to give bifurcation and justification
of the compensation claimed by the Complainant. Case laws relied are as
follows:

The Hon’ble National Commission vide its order dt. 30.3.2012 in Ramesh
Kumar Sihan Hans v. Goyal Eye Institute held that-
 “It is true that Complainant has the right to value his claim in the
Complaint but it is equally true that by doing so, Complainant should not
value the claim which is grossly over-valued…. It is also true that the
plaintiff cannot invoke the jurisdiction of a court by either grossly over-
valuing or gross under-valuing a suit. The court always has the
jurisdiction to prevent the abuse of the process of law.’

8. That the dispute, if any, rests amongst the Complainant and Opposite Party
No. 1 (Dealer), OP No 4 and 5 (Insurance Company) and not with the
Opposite Party No. 2 & 3, Hence, the Opposite Party No. 2 & 3 can neither
be a necessary nor a proper party to the complaint and that the Complainant
has wrongfully impleaded the Opposite Party No. 2 & 3 with misconceived
notions without there being any fault or deficiency in service of the
answering Opposite Party No. 2 & 3, which is further causing irreparable
damage to the reputation and business of the Opposite Party No 2 X Hence,
the Opposite Party No 2 & 3 is required to be deleted from the array of the
parties in the present complaint in the interest of justice.

9. It is submitted that by no stretch of imagination the manufacturer is to be

held liable for any damages or loss, if any, caused to Complainant by the
acts of the Dealership herein. It was the dealer who was solely responsible
to the Complainant for any misinformation/omission (if any) as the relation
between the manufacturer and dealer, as stated above is on principle to
principle basis. It is also important to mention that the cars are purchased
by the concerned dealers against payment and thereafter, the purchased cars
are sold by the dealer to the customers under sale invoice. As already
mentioned, that the "title of the Hyundai vehicle" passes on to the
concerned dealer, the moment it is put on a common carrier Admittedly,
there is no allegation relating to performance of the Car manufactured by
the Opposite Party No. 2 & 3.

10.It is submitted that it is well settled by the Apex Forum of the country that
under Section 14 (1) (d) of the Consumer Protection Act, 1986, any
compensation can be awarded to a consumer only in respect of loss or
injury suffered by the consumer due to the negligence of the service
 provider or any deficiency of services attributable to the actions of service
provider. In the present case, the Complainant has failed to prove any
negligence on the part of the Opposite Party No. 2 & 3 and that as a
consequence thereof, loss or injury was suffered by the Complainant. It is
submitted that on this ground alone, the present Complaint merits rejection
On this ground alone, the Complaint is liable to be dismissed with costs.

11.In view of the above submissions, it is most respectfully prayed that since
the Complainant has not come with clean hands before this Hon'ble Forum,
the present Complaint is liable to be dismissed.

THROUGH

COUNSEL FOR OPPOSITE PARTY 2 & 3

DATE:

PLACE: