DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 390 of 03-07-2014

Decided on : 30-03-2016

Mohan Singh Mann S/o Jangir Singh, VPO Shekhpura, Tehsil Talwandi Sabo, District Bathinda.

….....Complainant

Versus

1. Deep Honda, Deep Auto Mobiles Pvt. Ltd., Mansa Road, Bathinda dealer/service cente of Honda Cars India Limited through its Manager, Proprietor/authorized representative

2. Honda Cars India Limited, Plot No. A-1, Sector 40-41, Surajpur-Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar (UP) through its Director/MD/authorized signatory

........Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh Pahwa President

Smt. Sukhwinder Kaur Member

Sh. Jarnail Singh Member

Present :

For the Complainant : Sh. Charan Singh, Advocate

For the opposite parties : Sh. Sandeep Baghla, counsel for OP No. 1.

Sh.Ajay Singla, counsel for OP No. 2.

O R D E R

M. P. Singh Pahwa

1. This complaint has been filed by Mohan Singh Mann, complainant against Deep Honda and others (opposite parties) under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act').

2. Briefly stated, the case of the complainant is that on 10-07-2013, he approached opposite party No. 1 for the purchase of Honda Amaze Car. At the time of purchase of the car, opposite party No. 1 assured the complainant that this is best car. There is no manufacturing defect or fault in the car. In case there is any defect, then the same will be removed free of costs as there is one year warranty provided by the opposite parties. The permanent registration of the car is PB-03AE-3591. The complainant purchased this car on 10-7-2013 on cash payment of Rs. 6,25,200/-. It is insured with Universal Sompo General Insurance Co. Limited. The complainant used the vehicle strictly as per norms and rules of warranty. He also got the service from authorized service centre i.e. opposite party No. 1. There was no accident of the vehicle.

3. It is alleged that within the warranty period, there started noise from the lower engine portion/under the body of the vehicle while plying, wheel balancing, alignment etc., in the car. Due to this, it caused lot of problem and discomfort in driving. There was even safety problem while driving the vehicle. The complainant approached the opposite parties at Bathinda i.e. opposite party No. 1. It got the vehicle thoroughly checked and found there was manufacturing defect in the wheel balancing and alignment. On 4-9-2013, the complainant got the first service of the car from opposite party No. 1 i.e. within warranty period. At that time, the complainant made complaint for alignment of wheels with noise of engine. The opposite party No. 1 made service of the car against payment of Rs. 1,000/-. On 4-1-2014, the complainant approached opposite party No. 1 for service of the car vide job sheet/invoice No. SER-INV-DD039-1314-3634 with the complaint of wheel alignment and balancing, dash board noise, front brake pin & RR leather lubricant i.e. within warranty period. The opposite party No. 1 made service of the car and illegally and arbitrarily charged Rs. 3460/- for removing said defects whereas opposite party No. 1 has got no legal right to charge the said amount from the complainant as the vehicle was within warranty period. The opposite parties have to remove the defects free of costs. Again on 1-3-2014, the complainant approached opposite party No. 1 for 3^rd service of the vehicle with the complaint of glass front door noise, pick up as well as wheel balancing and alignment vide invoice/job sheet No. SER-INV-DD165-1314-1883 i.e. within warranty period as all the four tyres of car were destroyed due to non-wheel balancing The opposite party No. 1 got the service of the vehicle and removed all the four tyres of the car. It shows that there is manufacturing and technical fault in the car. At the time of service of the vehicle, the opposite party No. 1 has also illegally and arbitrarily charged Rs. 4588.69 from the complainant for general repair and 'Good Year' tyres for which the complainant is not liable to pay. Again on 5-4-2014, the complainant approached opposite party No. 3 for 4^th service of the car with the complaint of the same problem of wheel alignment, wheel balance as well as other problems vide invoice/job sheet No. SER-INV-DD165-1415-45 i.e. within warranty period. The opposite party got the service of the vehicle and charged Rs. 6417/- illegally and arbitrarily from the complainant. The complainant again approached opposite party No. 1 on 6-5-2014 for service of the vehicle with the same complaint of wheel balancing as well as alignment vide invoice/job sheet No. SER-INV-DD165-1415-370 i.e. within warranty period. The opposite party got the service and charged Rs. 659/- as labour charges illegally and arbitrarily.

4. It is further pleaded that complainant represented to the opposite parties that manufacturing defect in the wheel balancing as well as alignment of the car is a major defect. The opposite parties should replace the car as a whole instead of only replacing/removing the manufacturing defect in the car as the said defect causes lot of discomfort while driving the vehicle as well as loss to the tyres. There were high chances of suffering accident in case the wheel balancing and alignment as the vehicle does not work properly but the opposite parties represented to the complainant that there will be no problem at all once defect in the wheel balancing and alignment is removed/changed. The said manufacturing defect will be removed/cured for all times to come. The complainant bonafidely believed the representation of opposite parties and got the wheel balancing as well as alignment removed. This defect destroyed all the four tyres with running of only 16659 Kms whereas the tyres are required to be changed after running of 2,000,00 Kms.

5. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. He has prayed for direction to the opposite parties to replace the vehicle with new one of the same make, model and price or to refund the price of Rs. 6,25,200/- alongwith interest @ 12% P.A. from the date of purchase ; Rs. 1,00,000/- on account of sufferings and Rs. 11,000/- as cost of litigation.

6. Upon notice, the opposite parties appeared through their respective counsel and filed written version.

7. The opposite party No. 1 in its separate written reply raised legal objections that complaint is not maintainable in the present form. That complainant is not 'consumer'. That this Forum has no jurisdiction to entertain and decide the complaint. That complainant is stopped from filing the present complaint by his act, conduct and acquiescence. That the complainant has failed to comply with the provisions of Section 13(1)(c) of the 'Act' and that the complainant has not sought any permission under Section 11 of the 'Act'. That the complaint is bad for non-joinder of necessary parties i.e. M/s. Lalli Motors Pvt. Ltd., Patiala. That the complainant is himself a wrong doer and is not entitled to any relief from this Forum. The vehicle in question met with accident thrice i.e. on 1-9-2013, 8-2-2014 and 1-7-2014 qua which repairs have been got conducted by the complainant from opposite party No. 1 on respective dates. It also reveals the improper handling of the vehicle in question. Moreover the complainant has also skipped 3^rd service of the car in question as per service schedule. That renders the warranty inapplicable. That the complainant has not approached this Forum with clean hands. He has concealed material facts and record. That complaint is false, frivolous and vexatious to the knowledge of the complainant.

8. On merits, it is pleaded that complainant approached opposite party No. 1 for purchase of car in question and after being satisfied with the features of the car, had opted for the purchase of the car. The car was delivered to the satisfaction of the complainant. The warranty is provided by the manufacturer i.e. opposite party No. 2 but subject to the terms and conditions of the warranty forming part of the Service Booklet. All other material averments are categorically denied.

9. As per opposite party No. 1 car in question was brought for first service on 1-9-2013 for accidental repair which was carried out by opposite party No. 1 as per requirement of the complainant to his satisfaction. The vehicle was delivered on 03-09-2013. It is denied that there was any manufacturing defect in the wheel balancing and alignment as alleged. The visit of the complainant on 4-1-2013 is denied. It is repudiated that on 4-1-2013, complainant approached opposite party No. 1 for service of the car in question. As per opposite party service was conducted by Lalli Motors Pvt. Ltd., Patiala. As per opposite party No. 1 the complainant brought the vehicle for 2^nd service on 9-10-2013 and there was no such alleged complaint of wheel alignment and balancing. The vehicle was brought for accidental repair on 8-2-2014 and it was repaired to the satisfaction of the complainant and delivered to him vide invoice dated 15-2-2014. It is denied that on 1-3-2014 complainant approached it for 3^rd service as alleged. As per opposite party, the complainant had brought the vehicle for repair of the right front door window and for replacement of one tyre which was in damaged condition. The vehicle had already run 16659 Kms on 1-3-2014. There was no scope of 3^rd service on the said date nor had the complainant ever availed 3^rd service of the vehicle in question within stipulated period. The replacement of the right regulator of the front window was made by opposite party No. 1 within warranty and replacement of one tyre was sought by the complainant as the tyres had been damaged. It is denied that all the four tyres of the car were destroyed due to non wheel balancing. It is denied that there is any manufacturing and technical fault in the car. It is further revealed that on 5-4-2014, the complainant had approached the opposite party No. 1 for paid service at 20,000 Kms. Alongwith the said service, the complainant had sought for the wheel alignment and balancing when the vehicle had run more than 20,000 Kms. The wheel alignment and wheel balancing is always according to the driving skills, road condition and the handling of the car. The service was conducted to the satisfaction of the complainant and he had duly signed the Feed Back Form conforming the service to have been conducted as per requirement and satisfaction of the complainant. It is also mentioned that on 6-5-2014 the complainant had brought the vehicle for wheel balancing and the charges relates to the balancing of the tyres as per requirement of the complainant. The complainant had signed Feed Back Form. It is also mentioned that on 1-7-2014, the complainant brought the car for accidental repair and it was conducted to the satisfaction of the complainant and vehicle was delivered on 3-7-2014. It is also mentioned that wheel alignment and balancing of the car is a normal feature that is being followed by each customer owing to road condition and the manner of driving of the car by the concerned driver. After controverting all other averments, opposite party No. 1 prayed for dismissal of complaint.

10. The opposite party No. 2 in its written reply also raised preliminary objections that allegations made by the complainant are false and frivolous. The complaint has been filed with ulterior motive to harass and defame the opposite party. The complaint is an afterthought and complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead this Forum. That the opposite party No. 2 is a leading manufacturer of premium cars in India. The vehicle manufactured by opposite party No. 2 enjoys an excellent reputation in the automobile market in India. Its Honda Amaze car has received maximum awards from critics, experts and from views of various TV channels. That the complaint is bad for misjoinder of opposite party No. 2 as the complainant has failed to establish that the particular kind of defect falling within the purview of inherent/manufacturing defect had persisted in vehicle. There is neither any engineer's report nor any other convincing material had been filed before this Forum. That there is no defect in the vehicle and there had been no deficiency in service on the part of opposite party No. 2. No liability can be fastened upon opposite party No. 2 towards repair/replacement of the subject parts of the vehicle. The alleged problem in the vehicle was not due to any manufacturing defect. The vehicle has already covered 34000 Kms within short span of time. The vehicle was last reported to the service station of the authorized dealer on 4-10-2014 for accidental repairs, which was accordingly repaired by the technicians. The major concern of the complainant is with regard to wheel alignment and balancing. It has been learnt from the authorized dealer (opposite party No. 1) that the vehicle was first reported for wheel alignment issue when it had come for its 10,000 Kms service. In further part of the objections / reply, the opposite party No. 2 has also in substance supported the version of opposite party No. 1 and prayed for dismissal of complaint. The opposite party No. 2 has also quoted some case law the reference which is not considered necessary at this stage.

11. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his affidavits dated 13-6-2015 and 19-2-2015 (Ex. C-1 and Ex. C-8), photocopy of payment receipts (Ex. C-2 & Ex. C-3) and photocopies of Tax Invoices (Ex. C-4 to Ex. C-7).

12. In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit of Sh. Surinder Singh dated 6-4-2015 (Ex.OP-1/1), photocopy of invoice (Ex. OP-1/2), photocopy of repair order (Ex. OP-1/3), photocopy of invoice (Ex. OP-1/4), photocopy of repair order (Ex. OP-1/5), photocopies of invoices (Ex, OP-1/6 to Ex. OP-1/8), photocopy of repair order (Ex. OP-1/9), photocopies of invoices (Ex. OP-1/10 & Ex. OP-1/11), photocopy of repair order (Ex. OP-1/12), photocopy of estimate (Ex. OP-1/13), photocopy of repair form (Ex. OP-1/14), photocopy of inspection check sheet (Ex. OP-1/15), photocopy of customer feedback (Ex. OP-1/16), photocopy of invoice (Ex. OP-1/17), photocopy of repair order (Ex. OP-1/18), photocopy of temporary certificate (Ex. OP-1/19), photocopy of repair form (Ex. OP-1/20), photocopy of inspection check sheet (Ex. OP-1/21), photocopy of customer feed back (Ex. OP-1/22), photocopies of invoices (Ex. OP-1/23 and Ex. OP-1/24), photocopy of repair order (Ex. OP-1/25), photocopy of repair form (Ex. OP-1/26), photocopy of body shop track sheet (Ex. OP-1/27), photocopy of final inspection sheet (Ex. OP-1/28), photocopies of invoices (Ex. OP-1/29 and Ex. OP-1/30), photocopy of battery test (Ex. OP-1/31), photocopy of repair order (Ex. OP-1/32), photocopy of estimate (Ex. OP-1/33), photocopy of repair form (Ex. OP-1/34), photocopy of check sheet (Ex. OP-1/35), photocopy of final inspection check sheet (Ex. OP-1/36), photocopy of washing inspection sheet (Ex. OP-1/37), photocopy of new vehicle warranty (Ex. OP-1/38) and photocopy of maintenance schedule (Ex. OP-1/39).

13. The opposite party No. 2 has tendered into evidence photocopy of authorization letter (Ex. OP-2/1), photocopy of certificate by ICAI (Ex, OP-2/2), photocopies of invoices (Ex, OP-2/3 to Ex. OP-2/6), photocopy of dealership agreement (Ex. OP-2/7) and affidavit of Amit Sinha dated 27-3-2015 (Ex. OP-2/8).

14. Learned counsel for opposite party No. 1 has also submitted written arguments.

15. We have heard learned counsel for the parties and gone through the record and written arguments of opposite party No. 1.

16. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant purchased Honda Amaze Car from opposite party No. 1 on 10-7-2013. Bill Ex. C-2 also proves this fact. The complainant has alleged that there were various defects in the vehicle. Wheel balancing and alignment were the main defects which required repeated checking. The complainant has produced receipt Ex. C-3 which proves that on 4-9-2013, the opposite party No. 1 charged Rs. 1,000/- for the service whereas the vehicle was within warranty period. Ex. C-4 is another invoice dated 21-6-2014 which proves that opposite party No. 1 also charged for alignment and wheel balancing. The receipt Ex. C-5 dated 1-3-2014 again shows that complainant was to spent more than Rs. 4,000/- for repair. The complainant also got replaced one tyre by spending Rs. 4363/-. The Forum can take judicial notice of the fact that within such a short period, the tyre can suffer defect only due to wheel balancing and alignment. Ex. C-6 is the invoice dated 4-7-2014 which will also proves that wheel balancing and alignment was also required at that time for which the complainant was forced to spend amount mentioned in receipt. Invoice Ex. C-7 dated 6-5-2014 is also relating to wheel balancing and alignment for which the complainant again paid charges. The defect in wheel balancing and alignment occurred from time to time and within warranty period. This fact itself proves that there was manufacturing defect in the vehicle otherwise there was no reason for checking of wheel balancing and alignment. The Forum can also take judicial notice of the fact that due to defect in the alignment and wheel balancing, the tyres also suffered damage. As such, case of the complainant stands fully proved. The opposite parties have failed to rebut this evidence of the complainant. The complaint be accepted in terms of the claimed relief.

17. On the other hand, learned counsel for the opposite parties have reiterated their stand as taken in the written versions and detailed above. It is further submitted by learned counsel for the opposite parties that complainant has firstly to allege any specific manufacturing defect and only then to lead evidence to prove this fact but the complainant has miserably failed on both these counts. The allegations of the complainant are vague and uncertain. The complainant has nowhere mentioned specific manufacturing defect. From the averments of the complainant, it is to be inferred that the main allegation of the complainant is regarding wheel balancing and alignment but there is no documentary evidence to prove that this is only due to manufacturing defect. The case is to be decided on the basis of evidence produced by the complainant, but the evidence produced by the complainant does not prove his case. Of course the complainant has brought on record number of documents but he has not produced any expert report to prove any manufacturing defect in the vehicle. These documents will prove that the vehicle of the complainant has covered sufficient mileage during short span of period and this Forum can take judicial notice of the fact that no vehicle can ply for such a considerable distance within such a short span in case there is any manufacturing defect. The complainant has also concealed material facts from this Forum. In Paragraph No. 4 of his complaint, he has categorically stated that he used the vehicle strictly as per norms and rules of warranty and always got the service from authorized service centre i.e. opposite party No. 1 and there was no accident of the vehicle. The complainant has failed to prove by affirmative evidence the defects alleged by him but the documentary evidence produced on record by the opposite parties proves that vehicle met with accident and it required accidental repair on different times. Therefore concealment of material facts dis-entitle the complainant from any relief. Moreover, the Forum can take judicial notice of the fact that there can be problem in wheel balancing and alignment due to accident and for other reasons also. The opposite parties have produced invoice Ex. OP-1/4 and Ex. OP-1/5 which prove that vehicle was brought to service centre i.e. opposite party No. 1 on 1-9-2013 for accidental job and vehicle was delivered to the complainant on 2-9-2013 after doing the job. Similarly another invoice Ex. OP-1/23 & Ex. OP-1/24 proves that vehicle was brought to opposite party No. 1 on 1-7-2014 for accidental repair and it was delivered to the complainant on 3-7-2014 after effecting required repairs. The complainant has been filed on 3-7-2014 i.e. after second accident. This fact itself proves malafide intention of the complainant. As such, complaint is liable to be dismissed with special cost.

18. We have carefully gone through the record and have considered the rival contentions.

19. The undisputed facts are that complainant purchased one car i.e. Honda Amaz Model 2013 on 10-07-2013 from opposite party No. 1 for Rs. 6,25,200/-. The complainant has filed this complaint on 3-7-2014 i.e. about one year after its purchase. The complainant has alleged manufacturing defect in the vehicle and has claimed its replacement. From the averments of the pleadings it is made out that complainant has failed to pin point any specific manufacturing defect on the basis of which he is claiming replacement. The complainant has repeatedly referred wheel balancing and alignment. Invoices are also produced on record to prove repeated wheel balancing and alignment etc., Therefore from this pleading and documents, it is to be inferred that main defect pointed out by complainant is regarding wheel balancing and alignment etc., The complainant has not produced on record any expert opinion to prove that this problem of wheel balancing and alignment is due to any manufacturing defect.

20. It is well settled that complainant is required to prove his case by affirmative evidence. The complainant has referred in his complaint that he got repaired/serviced his car on 4-9-2013, 4-1-2014, 1-3-2014, 5-4-2014 and 6-5-2014. He has also pleaded that on every time he reported about the defects in the vehicle. Therefore from the evidence produced by the complainant, it is to be seen whether the complainant has been able to prove his case as pleaded.

21. Ex. C-1 and Ex. C-8 are the affidavits of the complainant. By these affidavits, the complainant has reiterated his averments as taken in the complaint. These affidavits cannot be accepted as substantial evidence to prove manufacturing defect. Ex. C-2 is the receipt dated 10-7-2013 but this receipt only proves that complainant purchased the vehicle for Rs. 6,25,200/-. Ex. C-3 is another receipt to prove payment of Rs. 1,000/- in cash but complainant has not produced any invoice to connect this payment with any repair/service. Moreover, the purpose of payment of this amount is not mentioned in this receipt. Therefore, the complainant has failed to prove any service on 4-9-2013 as claimed by him. Ex. C-4 is receipt dated 4-1-2014. Of course this receipt proves payment for wheel balancing and alignment. It also proves free service of 10,000 Kms. By that time, the vehicle of the complainant covered mileage of 10007 Kms. Ex. C-5 is the invoice dated 1-3-2014. As per Ex. C-4 next service due date was 21-6-2014. Therefore Ex. C-5 cannot be for the purpose of next service which was due on 21-6-2014. As per this invoice, there was replacement of right regulator, front door window. There is nothing to show any defect of wheel balancing and alignment. Ex. C-6 is the invoice dated 5-4-2014. Of course the complainant got wheel balancing and wheel alignment on payment of charges but by that time, the mileage covered was 20089 Kms. Ex. C-7 is the invoice dated 6-5-2014 regarding wheel balancing. By that time, mileage covered was 22394 Kms. Of course receipts prove wheel balancing and alignment but from this fact alone, it cannot be concluded that it is due to some manufacturing defect.

22. The opposite parties have pleaded that the vehicle met with accident on 1-9-2013, 8-2-2014 and then on 1-7-2014. The opposite parties have produced invoices Ex. OP-1/4 and Ex. OP-1/5 which prove that on 1-9-2013, the vehicle was brought for accidental job. The expenses for general repair shown as Rs. 5300/-. Total labour amount is mentioned as Rs. 6217/-. This fact shows that there was some accident which require considerable labour charges. As per Invoice Ex. OP-1/7, vehicle was again brought to opposite party No. 1 on 8-2-2014 and it was delivered to complainant on 15-2-2014 i.e. after about one week. Painting charges are shown as 3539.34. This fact also leads to the inference that vehicle met with an accident which required paining and other repairs. Ex. OP-1/23 & Ex. OP-1/24 are the invoices to prove that on 1-7-2014 the vehicle was brought to opposite party No. 1 and it was delivered to the complainant on 3-7-2014 after due repairs. Ex. OP-1/24 proves accidental repairs in addition to other works which included Light Assy. L.Tail. This fact also proves that this damage might be due to some accident.

23. Therefore, the opposite parties has been successful to prove that vehicle met with accident on three different dates before filing of this complaint. The complainant has concealed this fact also. It is well settled that if the complainant conceals material facts, he is not entitled to any relief. Therefore, from both counts, the only conclusion is that the complainant has failed to prove his case.

24. In view of what has been discussed above, this complaint fails and is hereby dismissed with no order as to costs.

25. The complaint could not be decided within the statutory period due to heavy pendency of cases.

26. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    30-03-2016

    (M.P.Singh Pahwa )

    President

     

     

    (Sukhwinder Kaur)

    Member

     

     

    (Jarnail Singh )

    Member