ORDER

Per – Hon’ble Mr. Justice R. C. Chavan, President

          This appeal is directed against an order dated 08/02/2011 passed by Additional District Consumer Disputes Redressal Forum, Thane allowing Consumer Complaint No.59 of 2010 and directing the dealer of car viz. Hallmark Automotive Pvt. Ltd. [Appellants Nos.2 to 5 (original Opponents Nos.1 and 2)] to the replace the car of the Respondent No.1/original Complainant (hereinafter referred to as ‘the Complainant’ for the sake of brevity) with a new car or to refund to the Complainant the price of the car viz. Rs.8,31,707/- together with interest thereon @ 15% p.a. as from the date of purchase.  In addition, the District Forum directed the dealer to pay to the Complainants a further amount of Rs.1,00,000/- by way of compensation towards physical and mental agony within a period of forty-five days and failing which, even this amount was to bear interest @ 10% p.a.

[2]     Facts, which are material for deciding this appeal, are as under:-

          Complainant purchased Honda car from the Appellants Nos.2 to 5 (Dealer) after getting finance from Respondent No.2/original Opponent No.3 – Axis Bank.  Soon after purchase i.e. in the month of Nov-2009, the Complainant had taken the car to Calicut.  On way, after the rain started and then, stopped, the front windshield was found covered with mist obstructing the view.  The car was taken to Peninsular Honda at Calicut, who did not take any interest in resolving the issue.  On returning from Calicut, the Complainant went to the dealer viz. Appellant No.2 at Mumbai.  Complainant admits that the Appellants offered to replace the windshield.  The Complainant, however, declined and sought replacement of the car itself.  Since the Appellants did not agree, the Complainant filed a consumer complaint for replacement of the car or refund of entire price together with interest.

[3]     Dealer contested the complaint by filing written version inter-alia contending that there was no deficiency in service and car was not defective.  It was stated that still as a matter of goodwill, the dealer had agreed to replace the windshield, which offer was declined by the Complainant only because the Complainant wanted replacement or to extort huge compensation.  Dealer, therefore, sought dismissal of the complaint.

[4]     As far as Respondent/Opponent – Axis Bank is concerned, even the District Forum found the complaint against Axis Bank to be without any basis.

[5]     After considering rival contentions, the District Forum came to pass the impugned order.  Aggrieved thereby, manufacturer of the car together with dealer has preferred this appeal, after we allowed the manufacturer to file the appeal.

[6]     We have heard learned counsel Adv. G. I. Sodhi on behalf of the Appellants and learned counsel Adv. Vir Bhan Sharma for the Respondent No.1/original Complainant.  With the help of both the learned counsel, we have also gone through entire material placed on record.

[7]     We find that the only defect, which was mentioned by the Complainant, is about mist gathering on the front windshield after was the car was driven through rains.  Learned counsel for the Appellants pointed out that in paragraph (06) of the complaint, the Complainant had herself stated that even after the rain stopped, in order to clear the mist, the Complainant had to drive the car with wiper continuously running on a dry glass for about six hours.  Learned counsel for the Appellants submitted, and rightly in our view, that anybody can imagine as to what would happen to a windshield if the wiper continuously runs on dry windshield for about six hours.  Therefore, may be there was some initial leak, which led to mist formation on the windshield but, the remedy chosen by the Complainant was possibly worse than the disease.  Even so, the Appellants claimed that the Dealer offered to replace the windshield.  However, the Complainant declined this offer for the reasons, which the Complainant herself has mentioned in paragraph (13) of the complaint as under:-

“a.     Once changed the from W/shield the Sr. No.(year/month) of the glass will change and the resale value of the car will depreciate drastically.

b.       Car will not comply with the factory testing and perfection.

BB.    As per the rule this is the fault of the pre-delivery inspection from the factory.

CC.   Honda should sue the glass company for this matter and claim the cost of the car.

EE.    It is requested Honda to recall all the Jazz Car fitted with this serial number glass of the same manufacturer and test to avoid major accidents during monsoon season.  As the customer will not be aware of the fault.

EE.    There are lot of faults on the fitting which are done from HALLMARK HONDA.

FF.    Highly appreciate if Honda takes firm action on this matter for the sake of safety.”

[8]     Learned counsel for the Appellants submitted that the goodwill gesture of the Appellants was misunderstood by the District Forum as admission of existence of any defect in the car.  He submitted that reasons given by the Complainant, which are quoted above, would themselves show that the Complainant did not want rectification of defect but, wanted to have the car replaced by hook or crook.  We do find that the reasons for refusal to have the windshield replaced are facile and untenable.

[9]     Learned counsel for the Respondent/original Complainant relied on a decision of the Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.958 of 2007 (In the matters of M/s. Hyundai Motors India Ltd.  Vs.  M/s. Affiliated East West Press (P) Ltd. and Anr.) decided on 29/11/2007 and submitted that it is not necessary that there must be a manufacturing defect and that if a new car gives trouble, it ought to be replaced.  We are afraid that such a sweeping inference cannot be drawn from the judgment of the Hon’ble National Commission.  Order of the National Commission is to be read in the context of facts in that case.  In that case, the defects pertained to engine.  There was leakage of fuel. White smoke was coming out.  After the car had run 18,460 km., black smoke was coming out.  There was diesel smell etc.  It is in this context the National Commission held that if a car had to be repaired on several occasions and the defect of smoke emission could not be rectified, the car had to be replaced.  Such are not the facts of the present case.  In the case had hands, there was only one defect, which the dealer had offered to rectify and which the Complainant refused to have cured without any good reasons.  Therefore, we find that the decision of the Hon’ble National Commission in Hyundai’s case (cited supra) will be of no help to the Complainant.

[10]    On the other hand, learned counsel for the Appellants drew our attention to the decision of the Hon’ble Supreme Court in the matters of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr., reported in (2006)-4-SCC-644 as well as decision of the Hon’ble Supreme Court in the matters of C. N. Ananthram Vs. Fiat India Ltd. & Ors., reported in (2011)-1-SCC-460, which would show that without proof of manufacturing defect, replacement could not be ordered.  In view of this, we find that the order passed by the District Forum is thoroughly unsustainable.

          Hence, we proceed to pass the following order:-

ORDER

Pronounced on 19^th March, 2015