BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 26^th day of April 2017

Filed on : 29-10-2014

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.812/14

Between

Azeez K.K., : Complainant

S/o. Khalid, 14/961A (By Adv. P.E. Thomas, 41/3786,

A.P. Joseph Road, Raihan, Carmel Building, Banerji road,

Cochin, Kerala-682 005. Kochi-682 018)

And

1. M/s. Peninsular Honda : Opposite parties

Patel Cars Pvt. Ltd., NH-47, (O.P. 1 for Adv. Terry V James,

Vytilla road, bypass road, 2^nd Floor, Poothullil house,

Maradu P.O., Cochin, Mathai Manjooran road,Cochin-682 018

Rep. by its Managing Director.

2. M/s. Honda Cars India Ltd.,

Plot No. A1, Sector 40-41,

Surajpur-Kasna-road,

Greater Noida Industrial

Development Area,

Gautam Budh Nagar Dist.,

Uttarpradesh-201 306

Rep. by General Manager.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant’s case

2. The complainant purchased a Honda amaze car from the 1^st opposite party on 19-12-2013 with warranty against manufacturing defects for 24 months or 40,000 kms. which ever is earlier. The warranty was extended up to for fourth year or 80000 kms which ever is earlier. After above 6 months from the date of purchase the car had an abnormal sound from the engine and the vehicle was towed down to the service station of the opposite party for detailed check on 14-07-2014. The complainant was informed that the fuel pump was defective and it was sent to the manufacturer M/s. Bosch on 06-08-2014. The complaint was informed by the 1^st opposite party that there was water in the fuel pump and it has to be replaced on chargeable basis since the fuel pump is not covered under the new vehicle warranty. The vehicle had comprehensive insurance with M/s. Future Generallia Insurance Company and the complainant suggested the 1^st opposite party to replace the alleged defective parts under the warranty or to submit a claim before the insurance company to get the cost of repairs reimbursed. The 1^st opposite party was of the stand that neither they will not take responsibility or liability regarding the claim of insurance. Therefore the complainant had sent an e-mail to the 1^st opposite party requiring to issue details of the parts covered under the warranty and also the extended warranty. The estimate was also sought for. The 1^st opposite party gave communication that the details of warranty is stated in the warranty booklet and clarification regarding the insurance policy has to be taken directly with that company. On 22-08-2014 the complainant received a communication that the vehicle was ready for delivery and requested to take delivery on payment of the bill. The complainant however, did not instruct the opposite party to replace the defective component. According to the customer relationship manager there was no manufacturing defects of the fuel pump but the repair had to be done since the fuel used was adulterated. The complainant had to spent Rs. 47,333/- including for expenses for towing down the vehicle to the service station on account of the defective fuel pump. The 1^st opposite party had carried out the work in a hasty manner without a confirmed work order of the complainant. The complainant never had any occasion to fill fuel from unauthorized fuel filling station. The story of the opposite parties that the fuel was adulterated is unbelievable and incorrect . The defect of the fuel pump happened only because of the manufacturing defect of the vehicle and the opposite party is legally liable to refund the entire amount paid by the complainant for the repairs. The act of denying the warranty in the present case would amount to unfair trade practice. The complainant therefore seeks refund of the amount paid for the repairs along with compensation and costs through this complaint.

3. Notice was issued to the opposite party, who are the service centre and manufacturer respectively.

4. The 1^st opposite party appeared and filed a version contending that the fuel tank of the vehicle was observed and some defects were found in the fuel pump. It was therefore sent to M/s. Bosch, who were the manufacturer of the fuel pump. On 18-07-2014 the 1^st opposite party received a delivery memo stating that the fuel pump was rusted due to water ingress and since the fuel injunction pump is beyond repair it has to be replaced. Since the fuel pump was damaged due to either fuel adulteration or due to water ingression and the repairs cannot undertaken under warranty. The 1^st opposite party has nothing to do with the claim under policy. There was no manufacturing defects for the product and the complaint is sought to be dismissed.

5. The 2^nd opposite party appeared and filed their version taken similar contentions as that of the 1^st opposite party and sought to get their liability repudiated.

6. On the above pleading the following issues were settled for consideration.

1. i. Whether it is proved that there was any deficiency in service on the part of the opposite party and further that the opposite parties had committed unfair trade practice against the complainant in the facts of the case alleged?.

2. ii. Reliefs and costs

7. The evidence in this case consists of the oral evidence of PW1 and Exbts. A1 to A13 on the side of the complainant and the oral evidence of DW1 and Exbts. B1 to B3 on the side on the opposite parties.

8. Issue No. i. The complainant was examined as PW1 and he gave evidence that he purchased the vehicle in 2013. The allegation that the vehicle was towed down to the service centre of the opposite party is not in dispute . At the time of towing down the vehicle and even on the preliminary examination at the service centre of the 1^st opposite party there was not even a doubt with regard to any contamination in the fuel. The fuel pump was dismantled from the car and has dispatched to its manufacturer for replacement or repairs. The 1^st opposite party came to know that the problem was due to the rusting of the internal parts of the fuel pump and that the fuel pump was damaged due to water ingress, only when they received Ext. B2 report. Exbt. B2 report seen to have been issued on 18-07-2014 and Exbt. B2 report (delivery memo) is not seen serially numbered. The complainant had filed an application to reopen the evidence for the purpose of examining the defective fuel injunction pump which was in the custody of the opposite party, according to the complainant. The 1^st opposite party had no case on 29-04-2015 when they had filed the version that the replaced fuel pump was given back to the complainant. When the complainant sought profession of the fuel pump by the 1^st opposite party the 1^st opposite party had filed an affidavit stating that the opposite party could not get the fuel pump examined through an expert since the fuel pump was in the custody of the complainant.

9. There is no dispute to the fact that the vehicle was covered under warranty for 2 years and the fuel pump was damaged during the warranty period. Normally the opposite party should have honoured the warranty by replacing with the fuel pump under warranty. However, the 1^st opposite party chose not to honour the warranty on the ground that the fuel pump was contaminated by adulterated fuel or by ingress of water . The 1^st opposite party was not clear as to whether the damage was due to adulterated fuel or whether it as due to ingress of water . If it was ingress of water into the fuel tank it is to be deemed as a manufacturing defect as there was no proper protection provided to ensure that the water is not leaked to the fuel tank. The opposite party has not specifically taken any such contention and in the same time was attending to shift the burden to the complainant to prove that there was manufacturing defect for the vehicle . When in normal condition it was the duty of the opposite party to honour the warranty and when the opposite party chose to take advantage of an exception in the warranty clause the burden is exclusively on the opposite party to prove that the complainant was not entitled to get warranty in the proved circumstance that the defect occurred due to the adulteration of fuel or the ingress of the water into the fuel tank was due to the negligence on the part of the complainant . The case of the opposite party that the substituted and defective fuel pump was entrusted to the complainant has not been substantiated by the opposite party by producing the acknowledgment in having allegedly received the fuel pump by him. Therefore we find that the 1^st opposite party has not discharge their burden in proving that the fuel pump became defective not due to the manufacturing defect but due to the usage of adulterated fuel or by ingress of water into the fuel tank by the negligence of the complainant. In the above circumstance we find that the opposite party had committed gross deficiency in service by not honouring the warranty provided to the product complained of. The opposite party has not produced any document to show that the complainant had instructed the opposite party to replace it at the cost of the complainant. We find that the act of the 1^st posited party in repairing the vehicle without proper instruction would amount to unfair trade practice . The issue is therefore found in favour of the complainant.

10. Issue No. ii. Having found issue No. i in favour of the complainant we find that the complaint is allowable and is accordingly allowed.

i. The opposite parties 1 and 2 are jointly and severally made liable and they are directed to pay Rs. 47,333/- incurred by the complainant on account of the alleged defect of the fuel pump and to pay a compensation of Rs. 25,000/- to the complainant for the inconvenience and mental agony suffered by being a victim of unfair trade practice at the hands of the opposite parties.

ii. We father direct that the opposite parties are directed to pay Rs. 5,000/- towards costs of the proceedings for which both opposite parties would be liable jointly and severally.

The above said payments shall be made within 30 days from the date of receipt of a copy of this order till in such an event there will not be any order regarding payment of interest. If the amount is not paid within one month from the date of receipt of the copy of this order the opposite parties would be liable to pay interest @ 12% p.a from 29-10-2014 the date of filing of the complaint before this Forum.

Pronounced in the open Forum on this the 26^th day of April 2017

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : Tax invoice dt. 09-08-2014

A2 : Tax invoice dt. 05-09-2014

A3 : Copy of service provider vehicle

No. 3274

A4 : Copy of cash receipt voucher

A5 : Copy of warranty of Honda Amaze

Diesel car (KL43 F 2882)

A6 : Copy of letter dt. 7^th August

A7 : True copy of letter dt. 26-08-2014

A8 : True copy of letter dt. 27-08

A9 : True copy of re-estimate

A10 : True copy of dissatisfaction of

customer support KL 43 F 2882

A11 : True copy of letter dt. 01-09-2014 A12 : Warranty booklet

A13 : True copy of certificate

dt. 18-07-2014

Opposite party's exhibits: :

Exbt. B1 : Authorization letter dt. 12-05-2016

B2 : Delivery memo dt. 18-07-2014

B3 : True copy of dealership agreement

Deposition

PW1 : Azeez K.K.

DW1 : Manoj Sebastian

Copy of order despatched on :

By Post: By Hand: