STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH (First Appeal No.429 of 2010) Date of Institution | : | 25.11.2010 | Date of Decision | : | 25.07.2011 |
Major General M.J.S.Virk, Resident of 1549, Sector 34, Chandigarh. Through its special power of attorney Sh. Ravinder Singh Sohal S/o Sh. Prem Singh, R/o House No. 1093, Sector 69, Mohali. Complainant/Appellant V e r s u s1] M/s. Honda Siel Cars India Ltd., Plot No.A-1, Sector 40/41, Surajpur-Kasna Road, Greater Noida, Industrial Development Area, District Gautam Budh Nagar, Uttar Pradesh through its Director 2] M/s. Lally Motors Ltd., 6, Industrial Area, Phase-I, Chandigarh. OPs/Respondents Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: HON’BLE MR. JUSTICE SHAM SUNDER, PRESIDENT. MRS. NEENA SANDHU, MEMBER. S. JAGROOP SINGH MAHAL, MEMBER. Argued by: Sh. Neeraj Sobti, Advocate for appellant. Sh. Karan Nehra, Advocate for respondent No.1 Sh. Aftab Singh, Advocate, proxy for Sh. Ashwani Talwar, Advocate for respondent No.2 PER JAGROOP SINGH MAHAL, MEMBER This is complainant’s appeal against the order dated 6.10.2010 passed by ld. District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter referred to as the District Forum) vide which the complaint filed by the complainant/appellant was dismissed. 2. Briefly Stated, the facts of the case are, that the complainant on 29.4.2006 had purchased a Honda Siel car from OP No.2 against defence quota for Rs.5,91,000/-. The grouse of the complainant was that after using the car, he noticed some defects in it of excessive noise, poor pick up in hilly roads etc. which was brought to the notice of OP No.2 by the complainant. The main grievance of the complainant was that the car could not climb on hilly roads even if only two passengers were sitting in it. The complainant sent an e-mail to OP No.1 to point out the manufacturing defect in the car but OP No.1 did not take any action to rectify the same. Affidavit of one Sh.Ravinder Singh Sohal, who had submitted that the car made excessive noise while driving and had poor pick-up in hilly roads, was also attached by the complainant. When the grievance of the complainant was not redressed by the OPs he filed this complaint alleging deficiency in service on the part of the OPs and prayed for replacement of the car free of cost and for Rs.2.00 lac for harassment, deficiency in service and unfair trade practice. 3. OP No.1 filed reply and stated that subsequent to purchase of the car whenever the complaint approached it for service, he always returned fully satisfied. It was further submitted that the complainant had concealed that the vehicle had met with an accident and repairs were carried out on the vehicle on payment. The answering OP contended that allegation, that the car was defective was made only to cover up the mishandling done to the car by complainant while driving. The car was duly checked by the Service Centre Technical Staff against whom no grievance had ever been made by the complainant. The initial complaint with the OP was made by the complainant in 2006, but despite best efforts to redress his grievance he was not satisfied. It was further alleged by the answering OP that a defective car could not be driven as extensively as had been used by the complainant. A few occasional minor defects as pointed out by the complainant in the car were duly checked and rectified by the staff of the OPs. It was denied that the car could not be used on hilly roads and had any inherent manufacturing defect, the OP No.1 prayed for dismissal of the complaint. 4. OP No.2 filed its reply and admitted that the car was purchased on 29.4.2006 and carried a warranty of 2 years. The complainant was entitled to replacement of parts suffering from manufacturing defects but not a complete replacement of the vehicle as demanded by him. The answering OP further submitted that, it was evident from the job cards attached, that the car of the complainant was brought to the workshop a number of times with very normal defects, which could be anticipated by the normal running of the vehicle. The Service Manager personally test drove the vehicle to check the abnormal noise. The car was checked on the Barog slope and found to be OK. The car had a steady run and the complainant was not harassed on any account. Even otherwise the car was now beyond warranty. The answering OP prayed for the dismissal of the complaint alleging that false allegations were made by the complainant, just to get the car replaced. 5. Parties led evidence in support of their case. 6. After hearing both the ld. Counsel for the parties and after perusing the record the ld. District Forum dismissed the complaint, as stated in the opening para of this order 7. Feeling aggrieved, the instant appeal has been filed by the appellant/complainant. 8. We have heard arguments of the ld. Counsel for the parties and have perused the record. 9. The learned counsel for the complainant/appellant has argued that the learned District Forum did not properly appreciate the real dispute between the parties and misread evidence by considering that it was the car of the complainant which was driven by the representative of the OPs on the said hilly road and that it reached its destination which fact was factually incorrect. It is also contended that several complaints in this respect were lodged by the complainant/appellant with the OPs immediately after he came to know of this defect in the car. The learned counsel therefore, argued that the impugned order passed by the learned District Forum is liable to be set aside. This argument has been opposed by the OPs. 10. The primary question to be decided in this case is as to whether the car in question cannot climb on the uphill road and if so whether it amounts to a manufacturing defect. 11. In order to prove his contention the complainant referred to Annexure R-2/1, which is job card at serial No.3 of which it was mentioned that the car had poor pick up in hilly stations. The observation of the OP was that they checked the car in their dealership on slope found OK. Immediately thereafter, the OPs wrote a letter dated 5.9.2006 (Annexure R-2/9) informing the complainant that they checked the vehicle with HDS and found all parameters OK. It was not their case if the vehicle was checked on any hilly road. Even in Annexure R-2/1 it was not mentioned if the car was taken outside the workshop on a hilly road for test drive The defect in the car was however, not rectified and the complainant wrote another letter dated 12.9.2006 again mentioning that the major defect noted in the car was that it failed to climb up a road in the town of Barog situated on Kalka Shimla Highway, whereas Maruti-800, fully loaded, Tata Mini Truck and other vehicles were comfortable on that slope. Again he wrote a letter dated 10.11.2006 informing that the car failed to climb a road in the hill where vehicles of other makes succeeded. On 12.1.2007 Ravinder Singh Sohal Attorney of the complainant sent an E-mail that during their visit to a hill station towards Shimla near Badog the car could not climb with two persons on, that different drivers tried for the same route but this vehicle stopped and fell short of power every time, whereas all other vehicles like Ford, Maruti, Accent and Mahindra Balero were climbing comfortably. The fifth complaint he made to the OPs through the job card (Annexure R-2/5) dated 12.12.2007 that the engine stopped at hill while starting to move from stoppage. The observations of the OP on this job card also are that all engine parameters/clutch operation checked and found OK. Again there is no mention if the test drive on the hill slope was taken and if the car was found picking up properly in the test drive. On 3.2.2008 the complainant again wrote an E-mail informing the OPs that the car again failed in climbing with their (i.e. OPs’) driver on the wheel. On 12.4.2008 again the complainant sent a letter to the OP No.2 informing him about the failure of the car to climb the hill roads. It all shows that the complainant had been informing the OP time and again about the defect in the car. 12. The complainant filed the present complaint on 22.4.2008 . Apart from the letter dated 5.9.2006 the OPs never intimated him as to what was the fate of the complaints lodged by him. No effort was made to find out the reason therefor and to remove the defect The silence on the part of the OPs in replying to the E-mails and complaints suggests that there was something wrong with the car which the OPs were unable to explain to the complainant. 13. The complainant produced his own affidavit and that of his attorney Ravinder Singh Sohal, Vijay Kumar, Dharmpal and R.S. Verma. Ravinder Singh Sohal is a qualified Electrical Engineer having degree of B.Sc. Engineering Electrical and retired as Engineer-in-Chief from Punjab State Electricity Board after 36 years of service with experience in both electrical and mechanical works as mentioned by him in para 1 of his affidavit dated 22.9.2009. According to him he had an Assistant Engineer in charge exclusively for maintenance and running of fleet of Bathinda Thermal Project vehicles comprising of cars /jeeps, buses, trucks, heavy trailers etc. for about two years. He drove the car in question bearing registration No.CH03W 3247 and accompanied the complainant to Barog when the car failed to climb the uphill road. Then there is an affidavit of J.S. Bhogal a qualified Civil Engineer having degree of Bachelor of Engineering (civil) and having experience of 30 years in civil works who had accompanied Ravinder Singh Sohal in his own car to examine the road at Barog where the car of the complainant failed to climb. According to him the road is pacca, made of cement concrete without any damage or potholes or loose gravel and not bad as is alleged by the witnesses of the OPs. Width of the road is 10 feet plus and overall condition was good. His own car Honda city having No.HR03F 9889 comfortably climbed upto the end. The affidavit dated 28.1.2010 of Sh. Ravinder Singh sohal prove that the slope gradient of the road was 13.5 degree and the condition of the road at Barog was good. Vijay Kumar in his affidavit deposed that he accompanied Ravinder Singh Sohal on 16.6.2006 when a mechanic of respondent No.2 accompanied him and the car did not climb upto hill but stopped midway. Dharmpal Sharma also accompanied them on that day. Thus they prove the contention of the complainant that the car in question could not climb the hilly road and stopped midway. 14. The learned counsel for the complainant has produced the test report Annexure C-11 of Sh. R.S. Verma who had examined the car in question on 30.8.2008. This witness is B.Sc. Engg. (Mech.), M,.Sc. (Mech.) and has mentioned that he has an experience of 30 years in mechanical works including machinery in Punjab State Electricity Board. He examined the car which failed to climb the road and had tried his own 800 Maruti car with 3 passengers which climbed up without any problem. According to him the Honda City ZX car owned by the complainant has more engine power and other parameters are also better than Maruti 800 and if there is no defect in the car in question it should in every case succeed where Maruti 800 succeeds. He reported that the said car failed to climb up the road at Barog and therefore, it was defective. Sh. R.S. Verma submitted his comments Annexure A and his affidavit dated 13.4.2009. He is far better qualified than the experts produced by the OPs because one of them namely Rakesh Kumar holds only a Diploma in Mechanical Engineering and the other namely Rakesh Kumar Garg holds a Diploma in Auto Mobile Engineering, though none of them have produced any such proof of their qualifications. 15. The OPs filed reply denying if there is any manufacturing defect in the car and if it does not climb the hilly road but no mention was made if they ever made any test drive and deputed their mechanic Gurpreet Singh to drive the car in question on the said road. It was the complainant who produced the affidavit of Ravinder Singh Sohal in para 4 of which it was mentioned that car was checked on 16.6.2007 by a mechanic of respondent No.2 while he was on wheel on Chandigrh-Shimla Highway in Barog Town who admitted that the defect i.e. in climbing the hilly roads in Barog town was there. Even when the complainant submitted interrogatories for the respondent and this question was specifically put (question No.2) to the witnesses of the OP, it was denied by Amit Sinha in his affidavit dated 5.7.2010 if the car failed to climb the road at Barog when their mechanic was on wheel for the test on 16.6.2007. Parminder Singh, AGM however, admitted in para No.5 of his affidavit dated 8.7.2010 that in order to satisfy the complainant that no such defect existed in the car, the answering OP deputed Mr. Gurpreet Singh for test driving the vehicle. In para 6 he denied if the car failed to climb Barog when the mechanic was on the test drive on 16.6.2007. This contention of the OP however, cannot be accepted as correct. Had the car succeeded in climbing the said road on 16.6.2007 when Gurpreet Singh the mechanic of the OP was driving it, there is no reason whey this fact would not have been intimated by the OP to the complainant in reply to the complaints and Emails sent by him. Further more, a report about the test drive done by Gurpreet Singh would have been placed on file but the OPs did not even mention in their reply about the said test drive nor they filed affidavit of Gurpreet Singh to prove their contention which requires an adverse inference to be drawn against them. The complainant was saying that the vehicle had failed to climb up hilly road every time he took it there. A befitting reply which the OPs would have given was “that in fact when they sent Gurpreet Singh their mechanic, the vehicle was successfully driven on the said road and therefore, the version of the complainant as well as his allegation about the manufacturing defect is incorrect”. The OP however, did not consider the said driving of the vehicle by Gurpreet Singh as a base to oppose the present complaint. The only reason is that the contention of the complainant was correct and Gurpreet Sigh was unable to drive the vehicle uphill. Therefore, the OPs did not have guts to reply otherwise to the complainant. That is why they did not mention about Gurpreet Singh in their reply and did not produce his affidavit. 16. The OPs have produced affidavit of Sh. Rakesh Kumar who is their Area Manager Service along with his test report dated 14.5.2008 and the photographs attached with it. The contention of Rakesh Kumar, Area Manager Service in his affidavit is that he was of the opinion that on inspection of the vehicle as well as the site, that the vehicle does not suffer from any defect and there is no abnormality reported in the vehicle. In para 4 of the affidavit he mentioned that the subject vehicle can be driven to the place on hill top where the complainant resides and the same was demonstrated to the complainant by Mr. Rakesh Garg, Workshop Controller of OPs. In this manner Rakesh Kumar in his affidavit nowhere mentioned that he had ever driven the vehicle in question on the said road or was able to take the said vehicle to the house mentioned by the complainant. All that he says is that the vehicle can be driven but it was only a presumption and not the proof. The technical report dated 14.5.2008 submitted by him is also of no help. According to him the subject car was inspected at Prestige Honda, Chandigarh workshop on 12.12.2007 and parameters like engine rpm, clutch operation, fuel injection timings etc were found in order. In his report also nowhere he mentioned if he drove the car in question on the said hill road. He however, mentions about the driving of the car by one Rakesh Garg, which would be discussed in the preceding paragraph. In this manner the affidavit of Sh. Rakesh Kumar does not prove the contention of the OPs. 17. Rakesh Kumar Garg submitted his affidavit and mentioned in para 2 that he personally inspected the vehicle and went to the place where the complainant had alleged that the vehicle failed to climb. On inspection of the vehicle parameters like engine rpm, clutch operation, fuel injection timings etc were found in order. According to him the car was scanned through computerized scanner called Honda Diagnostic System and no abnormality was found. In this para there was nothing about test driving of the car. Again in para No.3 Rakesh Kumar Garg mentioned that the complainant was duly informed that the vehicle did not suffer from any defect and the said fact was demonstrated by him to the complainant as well as his friends by driving the vehicle upto his house where the complainant resides. In this para he did not mention if the vehicle driven by him was the vehicle in dispute or some other vehicle. It would however be proved from their own evidence that it was some other vehicle and not the vehicle in question which was driven by him. He further mentioned that the same was driven up to the house where the complainant resides. There is no dispute about it that the complainant resides in H. No. 1549, Sector 34, Chandigarh and not at Badog. Rakesh Kumar Garg has therefore, very cleverly worded the affidavit to camouflage the real issue. In para 4, the condition of the road has been mentioned that the same contained pot holes and that the car of the complainant was similar to any other car being manufactured by Honda City and he did not feel that the car of the complainant has any manufacturing defect. It was mentioned in para 5 that the allegation of the complainant that the vehicle failed to climb or cannot be driven on the subject stretch road upto his house is absolutely false and that the vehicle was comfortably driven to the destination during the test drive. Which car was driven and what was the destination again have not been mentioned. The affidavit of Rakesh Kumar Garg therefore, belies the version of the OPs if the car in question was test driven on that hilly road. 18. If Rakesh Kumar Garg had driven the car in question on the said road and was successful in taking it upto the house above, there is no reason why the OPs would not have informed the complainant that his stand was wrong as the car had been driven by Rakesh Garg to the place on hill as alleged by him. No mention was made by any of the OPs in their written replies, if the car in question was ever test driven by Rakesh Kumar Garg on the hilly road or it reached the top. 19. The OPs took the photographs of the road, the house and the car which was test driven by them and the same have been attached with the technical report and affidavit of Rakesh Kumar Area Manager Service. The contention of the OPs that the road was about 5 to 7 feet wide does not appear to be true. The witnesses produced by the complainant deposed that the road was more than 10 ft. wide, without any potholes and made of concrete. The car number which was driven by the OPs is CH 02TC000187 and not the car No. CH-03W-3247 regarding which the present complaint was filed. The fact that in stead of driving the vehicle in question, the OPs took their demo vehicle to Barog to show to the complainant that their car can be driven uphill shows that the contention of the complainant is correct. If the car of the complainant had been driven and had been taken uphill there is no reason why the photographs thereof would not have been taken by the OPs. These photographs therefore, fully prove that the OPs failed to drive the said car at hilly road where their demo car could go. This fact further reinforces the contention of the complainant that if demo car and cars of other makes could reach the guest house, his car if it does not have any manufacturing defect could also have reached there. This fact further, falsifies the contention of the OPs and proves that the contention of the complainant is correct. 20. The OPs had been harping on the point that the car of the complainant was tested by them through their diagnostics system and all parameters were found to be correct. This fact appears to be totally wrong. The mere fact that the vehicle has four wheels, engine, steering wheel and seats does not mean that it has the same power and strength to go uphill as the demo vehicle or any other vehicle of the OPs had. If all parameters had been equal then the OPs would not have wasted a second in taking the said car on uphill road to demonstrate that there was no such defect in the car as was being alleged by the complainant. The facts therefore, speak themselves and in such a case, no other expert evidence is needed to prove the manufacturing defect. 21. It is argued by the learned counsel for the OPs that the parameters found in the car were same as available in any other vehicle. This is only an allegation made by the OPs but they never produced the report of any such examination if ever made by them. Further the OPs have not been able to explain as to why the car then stops midway on the uphill road if the parameters and the power of the engine is the same. This contention of the learned counsel for the OPs therefore, was not sufficient to dismiss the complaint. 22. The complainant made a last effort by moving an application dated 24.9.2009 before the learned District Forum requesting that the car be driven by an independent driver and observer be appointed by the learned Forum with participation of the representatives of all the parties to drive on the road in question which would clinch the whole controversy in the complaint. The OPs did not accept the idea. They filed reply dated 20.10.2009 opposing the said application alleging that the whole exercise as suggested by the complainant would be fruitless, that he was now trying to create evidence and alleged that parameters of performance on a particular stretch of road cannot be an index of gauging the performance of the vehicle. The reply filed by the OPs speaks volumes about the hollowness of their stand. If the vehicle had no such defect as alleged by the complainant, the OPs would have no fear of such a demonstration and rather would have themselves requested the learned District Forum to send the vehicle for test drive whereafter the complaint would have been automatically dismissed. They tried to avoid the test so as to conceal this defect even at the last opportunity given to them, though the complainant had throughout been alleging that the vehicle does not climb the uphill road and stops midway due to manufacturing defect. The application moved by the complainant was ultimately dismissed by the learned District Forum. The opposition of the application by the OP is itself a sufficient proof that OPs were sure that the vehicle will not climb uphill on that road and therefore, they were not willing to face the truth and to see for themselves the said manufacturing defect in the presence of the observer and the driver appointed by the learned District Forum, which would have been unassailable piece of evidence against them. An adverse inference should have been drawn against the OPs that the allegation mentioned in the complaint was correct 23. It is also argued by the learned counsel for OPs that the vehicle had been driven for 40000 kilometer and had no problem except on the uphill road, that if there is problem then it would be faced by the vehicle on every other road and therefore, it should be presumed that there is no manufacturing defect in the vehicle. We do not find any merit in this argument. The problem is faced when the vehicle has to climb the uphill road, where it has to exercise extra power but lacks the same. Otherwise on a plain and even, in the hilly area where slop is not much the engine does not experience any problem. 24. It is case of the complainant that the slope of the hill at the place where the vehicle in question fails to climb is 13.5. degree. It is argued that ordinarily the HONDA vehicles can climb the hilly roads with a slope gradient of 17 degree. In support of his contention the learned counsel referred to affidavit dated 2.1.2010 of complainant M.J. S Virk and affidavit dated 28.1.2010 of Sh. R.S. Sohal. Ravinder Singh Sohal also filed another affidavit dated 25.2.2010 in this respect. The OPs did not deny if the slope gradient of the road where the car in question failed to climb is 13.5. degree. They have also not denied if the car similar to the car in question was capable of climbing a slope of 17 degree i.e. much higher than that of Barog road. All that OPs produced was the affidavit dated 8.7.2010 of Parminder Singh in answer to the interrogatories in para 24 of which it was mentioned that performance test report as per ARAI with regard to gradient slope on which car can climb is enclosed. They have produced a certificate but it is with respect to a different car i.e. VTEC which is a variant of Honda City. Even according to this certificate the gradeability of Honda car is mentioned to be 16 degrees whereas gradient of the road where the car in question failed to climb is 13.5 degree as mentioned above. Further it has come in evidence that other cars like Ford, Accent, Mahindra Balero and Maruti 800 can climb that road but not the vehicle in question. We cannot expect that the complainant should buy another Maruti 800 car along with the car in question for use in the hilly areas. Further, when the demo vehicle could be driven on that road why the car in question could not be driven uphill, is a strong circumstance to suggest that there is manufacturing defect in the vehicle due to which it fails to climb the road, especially where other cars even with lesser horse power can climb. 25. The affidavit submitted by the OPs are of their own employees who are interested in getting the decision in favour of their employer and moreover none of the affidavits proves if the vehicle was ever successfully driven uphill the said road. The testimony of the witnesses produced by the OPs is not true. On the other hand the witnesses produced by the complainant are independent, reliable and trustworthy. 26. It is also argued by the learned counsel for the OPs that earlier the car had met with an accident and therefore, the defect in the car may have occurred due to the said accident. The complainant admitted that there was a minor accident of the car involving the right front door but not the engine. Otherwise also it is not conceded by the OPs if the car has any defect and the same was developed due to the said accident. The accident was a minor one in which the engine was not involved as is clear from the estimate Annexure C-10 prepared by the OP No.2 itself, which shows that there was no repair of the engine but the repair was of the fender right hand door and penal of right hand side. Moreover the accident has not been denied by the complainant and he has produced this document along with the complaint. It therefore, cannot be said if the defect occurred due to any such accident. 27. It is also argued by the learned counsel for the OP respondents that the present complaint filed on 22.4.2008 is barred by time and therefore, should have been dismissed on this ground. A perusal of the record shows that the car was purchased by the complainant on 29.4.2006, which fact has been admitted by the OPs. According to the complainant the car was defective when sold to him and it carried a warranty of two years. Viewed from any angle, the complaint filed on 22.4.2008 being within 2 years of purchase is within time. 28. It is therefore, clear that the car in question is not of that quality as the other car of same make and model are. The other cars could climb the road but this car could not. The OP instead of examining as to what the defect in the car is went on adducing false evidence that the car had same parameters as the other cars manufactured by OP No.1. and could reach the top of the road . There is manufacturing defect in the car that the capacity of the engine installed in the vehicle is not the same or it does not work properly when car is driven upto hill. 29. The OPs had been given enough time and opportunity to remove the defect but they failed to do so. Ultimately the OPs started saying that there is no defect in the car which means they are unable to remove the same. The OPs sold this defective car and took the money from the complainant projecting that it carries the same parameters as any other car has, though it is actually a defective car and the OPs were not entitled to retain the amount by giving delivery of this car to the complainant. We are therefore, of the opinion that the conclusions arrived at by the learned District Forum are contrary to the record and the complaint was not liable to be dismissed. The order of the learned District Forum is therefore, liable to be set aside and the complaint is to be allowed. 30. In view of the above discussion we are of the opinion that the present appeal must succeed and the same is allowed with costs. The OPs are directed to replace the car with a brand new Car of the same Model free of cost within 30 days from the receipt of copy of the order. If the car of some other model is available and acceptable to the complainant the said other car would be given to him and the excess amount if any, shall be refunded to him and/or the additional amount if any, shall be paid by the complainant. The consent of the complainant shall however be taken by the OP in writing in this respect. They shall also pay Rs.20,000/- as costs of litigation to the complainant/appellant. 31. The complainant has also prayed for a compensation of Rs.2 lacs for physical tension and deficiency in service. Since the complainant had been using the vehicle in question, we are of the view that no such compensation can be allowed to him. 32. If the OPs fail to deliver the new vehicle within the aforesaid period of 30 days from the receipt of copy of order, the complainant would be free either to enforce the order or get refund of the amount of Rs.5,91,000/- with interest @9% per annum since the date of purchase i.e. 29.4.2006 till the amount is refunded to him along with costs of litigation. Copies of this order be sent to the parties free of charge. Pronounced. Sd/- 25.7.2011 [JUSTICE SHAM SUNDER] PRESIDENT Sd/- [NEENA SANDHU] MEMBER Sd/- [JAGROOP SINGH MAHAL] MEMBER
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | HON'BLE MR. JAGROOP SINGH MAHAL, MEMBER | |