BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

    24^th DAY OF MAY 2019

O R D E R

SRI. S.L PATIL, PRESIDENT

The complainant has filed this complaint U/s.12 of the Consumer Protection Act, 1986 against the Opposite Parties (herein after referred as OPs) with a prayer to direct the OPs to exchange the defected vehicle bearing No.KA-41 MA-6845, with new one of the same make or in the alternative to pay Rs.13,86,000/- with interest @ 18% p.a from 21.04.2016 till payment, to pay Rs.1,50,000/- being expenses incurred towards pro and to charges of Bangalore and Ramanagar, to pay Rs.1,00,000/- towards inconvenience and mental agony, to pay Rs.10,000/- towards legal notice charges and such other reliefs.

2. The brief allegations made in the complaint are as under:

That the OPs are the dealers of the Car of Honda make and the complainant is the customer has purchased the Honda City Car for OP-2, who is dealing and having exclusively showroom of Honda City cars which is under OP-1.  The complainant has booked the car on 21.04.2016 under the OP-2 showroom by paying Rs.30,000/-.  OP-2 has issued an invoice stating that the value of the Car/vehicle will comes at Rs.13,68,000/-.  On 21.09.2016 the complainant has paid amount of Rs.2,12,434/- as down payment and finally on 03.10.2016, the Car was delivered by receiving Rs.800/- as the balance amount.  Further complainant submits that since the day he takes the deliver of the Car, the Car engine was not in good condition and he gave many complaints about this but second of you have not made any efforts to look into his complaint.

Further complainant submits that all the service of the Car bearing No.KA-41 MA-6845, which was purchased from his client was made before OP-2 and all the time he was informing/complaining again and again regarding the sound in the engine but OP-2 has not made any efforts to look into the complaint instead of that OP-2 receiving the service charge and sending the client without looking into the problem.  That when he scrutinize the invoice of OP-1, OP-1 has send the car in the month of June 2016, the invoice of OP-1 states that the said car was delivered on 02.06.2016.  Apart from that extended warranty registration also issued.  But the car was delivered to the complainant on 30.10.2016 and at the time of delivering the car, registration in the RTO was completed and the number plate of the car was instituted and gave delivery in hurried manner.  The number plate was not contained the India mark which was needed as per the law.  It clearly goes to show that at the time of selling the car the OP-2 was very well aware of the defect of the car and by suppressing the fact OP-2 has delivered the used car which is defected car as the brand new one.

Further it is submitted that as many time as complained regarding the sound in the engine the OP-2 has not consider the complaint of the complainant, hence finding no other alternative the complainant has issued a legal notice dated 16.12.2017, demanding to exchange the defected vehicle bearing No.KA-41 MA-6845 with new one of the same make as both the OPs have received the amount assuring that the car will be given brand new one without defects, at an earliest, if not the complainant would approach the consumer forum, for which OP has replied on 09.01.2017 (09.01.2018 stating or admitting almost all the facts and denied the delivery of defected car.  Further states that the engine head will be replaced, so it is admitted that there is defect in the engine.  Hence this complaint.     

3. On receipt of notice OP-1 did appear and filed the version that the complaint filed by the complainant is not maintainable.  Further submits that it is the OP-1 who is the manufacturer its pioneering product i.e., Automobiles/Cars and sell the same to their authorized dealers which includes OP-2 alone on a no-name basis.  There is no manufacturing defect in the said vehicle and the complaint is bad for mis-joinder of necessary parties.  Further it is for the complainant to prove all other in respect of the alleged manufacturing defect and it cannot be adjudicated in the summary proceedings.  Therefore, only ordinary civil courts have jurisdiction to decide the present complaint.  Further denied the parawise contents of the complaint as alleged by the complainant.  Hence on these grounds and other grounds OP-1 prayed for dismissal of the complaint.

4. On receipt of notice, OP-2 did appear through the counsel.  The sum and substance of the version filed by OP-2 is that:

That the complainant had booked the Vehicle on 21.04.2017 and thereafter applied for a loan vehicle with State Bank of India.  The said loan was approved by the bankers in the month of May and the loan amount accordingly transferred to the account maintained by OP-2 and the OP-2 subsequently prepared an invoice of the vehicle dated 02.06.2016 and the complainant was to take the delivery of the same day after having paid the down payment amount with respect to the vehicle to the OP-2.  However, complainant at that point of time was unable to arrange for the down payment amount that was to be paid to the OP-2 and due to this which there was a delay in the complainant taking delivery of the vehicle.  On account of the OP-2 not having paid the down payment the bankers had further requested the OP-2 to transfer back the amount to bank and at this point the complainant himself had requested the OP-2 not to transfer the said amount back and made assurance towards arranging the down payment at the earliest.  Thereafter as admitted in the complaint, the complainant had made the down payment on 21.09.2016 and thereafter on 30.10.2016 the complainant had taken delivery of the vehicle.

That the vehicle was from the date of delivery of the vehicle i.e., 30.10.2016 the complainant had gotten the vehicle regularly serviced at the service centre of the OP-2 and on 24.10.2017 for the first time the complainant had raised a complaint with respect to a noise from engine of the vehicle at 44447 Kms.  OP-2 had checked the vehicle for the noise coming from the engine and found the same to be normal and thereafter informed the complainant about the same and further advised the complainant to drive the vehicle for a few days and get back to OP-2 if the complainant faces the same problem.   That on 03.11.2017 the complainant had brought back the vehicle at 49,328 Kms to service centre of the OP-2 and further complained about the noise from the engine of the vehicle and the OP-2 checked the vehicle and raised HTR bearing No.1-8466943916 on 04.11.2017.  That OP-2 suggested to the complainant that the noise from the engine can be stopped if the head assembly along with some child parts are changed.  And it was further communicated to the complainant that the repair works will be carried out under extended warranty and the order for the necessary spare parts were placed by OP-2 on 14.11.2017.  That the necessary spare parts for the vehicle were delivered to the complainant on 30.11.2017 and the same was communicated to complainant and OP-2 had requested the complainant to leave the vehicle at service centre of the OP-2 for the necessary repairs at the earliest and complainant had agreed to do the same, however, complainant not left the vehicle at their clients service centre till date and the complainant further got issued the legal notice dated 16.12.2017 and subsequently filed this complaint demanding exchange of the vehicle and further compensation.  That subsequently the OP-2 having suggested to replace the head assembly along with some child parts, the complainant had taken the vehicle for service to another dealer, namely Magnum Honda on 2 occasions on 18.12.2017 at 55929 Kms and on 08.03.2018 at 67,243 Kms.  However, on both occasion, the other dealer had returned the vehicle stating that the noise from the engine was normal.  The complainant has not come before the Forum with clean hands, therefore the maxim of “ex turpi cause non oritor actio” – one cannot take advantage of his own misfeasance and has obligation to come to court with clean hands, shall be applied in this matter.  The rest of the other allegations has been denied by OP-2.  

5. To substantiate the allegations made in the complaint the complainant submitted his affidavit evidence reiterating the allegations made in the complaint.  On behalf of OP-1 one Sri.M.K Bipin, Manager Legal, Honda Cars India Ltd., tendered his evidence by way of affidavit.  Complainant has submitted written arguments.  Complainant and OP-2 have produced certain documents.  We have also heard oral arguments.

6. The points that arise for our consideration are:

        7. Our answer to the above points are as under:

REASONS

8. Point No.1:- During course of the arguments, the learned counsel for the complainant draw our attention in respect of the version filed by OP-2 at para No.12 to 15, which reads as under:

12. It is submitted that the vehicle was from the date of delivery of the vehicle i.e., 30.10.2016, the complainant had gotten the vehicle regularly serviced at the service centre of the Opposite Party No.2 and on 24.10.2017, the complainant had for the first time raised a complaint with respect to a noise form engine of the Vehicle at 44447 Kms.  Opposite Party No.2 had checked the vehicle for the noise coming from the engine and found the same to be normal and thereafter informed the complainant about the same and further advised the complainant to drive the Vehicle for a few days and get back to Opposite Party No.2 if the Complainant faces the same problem.

13.  It is submitted that on 03.11.2017, the Complainant had brought back the vehicle at 49,328 Kms to service centre of the Opposite Party No.2 and further complained about the noise form the engine of the Vehicle and the Opposite Party No.2 checked the vehicle and raised HTR bearing No.1-8466943916 on 04.11.2017. 

14. It is submitted that Opposite Party No.2 suggested to the complainant that the noise from the engine can be stopped if the head assembly along with some child parts are changed.  And it was further communicated to the complainant that the repair works will be carried out under extended warranty and the order for the necessary spare parts were placed by Opposite Party No.2 on 14.11.2017. 

15. It is submitted that the necessary spare parts for the Vehicle was delivered to Complainant on 30.11.2017 and the same was communicated to Complainant and Opposite Party No.2 had requested the Complainant to leave the Vehicle at service centre of the Opposite Party No.2 for the necessary repairs at the earliest and Complainant had agreed to do the same, however, Complainant has not left the Vehicle at Our Clients’ service centre till date and the Complainant further got issued the Legal Notice dated 16.12.2017 and subsequently filed this instant complaint demanding exchange of the vehicle and further compensation. 

9. Referring to the above paragraphs submits that, it is the OP-2 who has specifically admits in respect of the noise from the engine and suggested the complainant that the noise from the engine can be stopped if the head assembly along with some child parts are changed.  According to the OP-2 it was further communicated to the complainant that the repair works will be carried out under extended warranty and order for the necessary spare parts were placed by OP-2 on 14.11.2017.  Further it is evident that, the spare parts for the vehicle were delivered to the complainant on 30.11.2017 and the same was communicated to him and OP-2 had requested the complainant to leave the vehicle at service centre of the OP-2 for necessary repairs at the earliest but the complainant has not left the said vehicle at OP-2 for carry out the necessary repairs.  If that being the case, this Forum has no other go, except to direct the OP-2 which is service centre to carry out the necessary repairs by changing the parts as stated in para.14 of OP-2 version, in the light of the decision cited by the learned counsel for the complainant reported in AIR 2011 Supreme Court 523 in the case of C.N Anantharam v. M/s. Fiat India Ltd. And others, wherein it is held as under:

Consumer Protection Act (68 of 1986), S.2(1)(f) – Manufacturing defect – Motor vehicle running on diesel – Only complaint was relating to noise from engine and gear box – There was no other major defect which made the vehicle incapable of operation – Engine operating on diesel makes rattling noise which does not occur in petrol driven engine – Therefore Engine was replaced with new one directions issued by National Commission regarding delivery of vehicle to purchaser after having same properly checked by an independent technical expert, not improper.

10. In this context, we also direct the complainant to hand over the said vehicle to the OP-2 to carry out the necessary repairs free of cost by replacing the parts as described in para-14 of version of OP-2 by extending another one year warranty from the date of the repair.  If not to exchange the said vehicle providing with similar model or else to refund the cost of the said vehicle as stated in the invoice found at document at serial No.6 with list dated 28.03.2018 which includes 14.50% tax.  In view of our specific direction for repair/exchange/to refund the cost of the vehicle, we do not propose to award any kind of compensation but the cost of litigation fixed at Rs.5,000/-.  Accordingly we answered the point No.1.

          11. Point No.2: In the result, we passed the following:         

  O R D E R

The complaint filed by the complainant is allowed in part.  Complainant is directed to handover the said vehicle to the OP-2 to carry out the necessary repairs i.e., for exchanging the parts as described in para-14 of OP-2 version.  In that event OP-2 is directed to carry out the necessary repairs by exchanging the defective parts as described in the version of OP-2 within 30 days from the date of receiving the said car.  If not OPs.1 & 2 are jointly and severally liable to exchange the said vehicle by replacing the similar model or else to refund the cost of the said vehicle covered under the invoice found at document No.6.  Further complainant is not entitled for any compensation any how he is entitled for cost of litigation at Rs.5,000/-.  

Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Forum on this 25^th day of April 2019)

MEMBER                                                              PRESIDENT

Vln*

Witnesses examined on behalf of the complainant dated 07.09.2018.

Sri.Hemanth Kumar

Documents produced by the complainant:

  Witnesses examined on behalf of Opposite party-1 dated
  12.10.2018.

                Sri.M.K Bipin.

Document produced by the Opposite party-2:

MEMBER                                                               PRESIDENT

Vln*