Date of Filing: 19.06.2009
Date of Order: 10.05.2011
BEFORE THE II ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SESHADRIPURAM BANGALORE-20
Dated: 10TH DAY OF MAY 2011
PRESENT
Sri S.S. NAGARALE, B.A, LL.B. (SPL.), President
Smt. D. LEELAVATHI, M.A.LL.B, Member
Sri BALAKRISHNA. V. MASALI, B.A, LL.B. (SPL.), Member
COMPLAINT NO: 1421 OF 2009
Jitendra Gaur
S/o. Late Vijay Gaur
Meenakshi Trading Co.
APMC Yard, Sagar Road
Shimoga, Dist. Shimoga Complainant
V/S
1. M/s. Honda Siel Cars India Ltd.
Plot No. A-1, Sector 40-41
Surjapur – Kasna Road, Greater Noida
Industrial Development Area
Dist. Goutam Budh Nagar
Uttar Pradesh (U.P.) 201 306
2. M/s. Honda Ichibaan Automobiles P. Ltd.
Asha Studio Compound
Sion Trombay Road
Next to R.K. Studio
Chembur, Mumbai 400 071 (Deleted)
3. Honda (Dakshin Honda)
Elite Automobiles (P) Ltd.
Khatha No. 2/97, Survey No. 97/1A
Singasandra Village, Hosur Road
Bangalore Opposite Parties
ORDER
By the President Sri S.S. Nagarale
This is a complaint filed under section 12 of the Consumer Protection Act.
The facts of the case are that complainant had purchased vehicle bearing No. MH 04 CJ 8938 from second opposite party on 02.12.2005 for Rs. 14,25,045/-. From day one vehicle was giving trouble in the running as it has got manufacturing defect. Complainant was unable to use the car effectively. Complainant had given the vehicle for repairs. First service was done at Bombay. Even thereafter also the vehicle was not running upto the expectation and same was again given for repairs to the 3rd opposite party service centre. Even after doing repeated service and also repairs the defect in the vehicle continued. The main defect in the vehicle was suspension apart from other manufacturing defects. The rear wheels used to touch the body and running of the car was not smooth. Tyres have been replaced quite often on account of defect in the vehicle. On account of all these the complainant was not able to use the vehicle effectively. The vehicle was left with 3rd opposite party. Expert was called from Delhi to inspect the vehicle and he inspected the vehicle. However, he failed to find out solution for the defect. The opposite party expressed his helplessness in effecting repair and they have not compensated the complainant for the loss caused to him on account of non-use of vehicle. The vehicle was left with opposite party No. 3 and now it is gathering dust. Opposite parties are not putting any effective steps to make vehicle road worthy. Legal notice dated 05.06.2008 was issued followed by another notice dated 14.07.2008. Notice was not replied so far. Complainant is not able to use the vehicle due to manufacturing defect. Therefore, the opposite parties are required to return the price of the vehicle with interest. Therefore, the complainant prayed that opposite parties be directed to pay the price of the vehicle with interest and also compensation for mental agony.
2. During the pendency of the case opposite party No. 2 is deleted from the cause title and opposite party No. 3 though served with notice has not appeared before this forum and he has remained absent. Opposite party No. 1 has appeared through counsel and contested the case for filing defence version. The opposite party No. 1 stated in the defence version that car is out of warranty since it was purchased on 02.12.2005. Vehicle was met with accident twice. Therefore, accidental repairs cannot be termed as manufacturing defect. Complaint is not maintainable under the Consumer Protection Act. Vehicle was purchased for commercial purpose. Car was purchased through dealer opposite party No. 2 on 02.12.2005. In case of any manufacturing defect opposite party No. 1 is required to meet its obligation as per the terms of warranty. Complainant failed to disclose defect or deficiency in service or unfair trade practice so as to bring the complaint within the purview of the Act. Complaint cannot be adjudicated in summary manner. Civil Courts have jurisdiction to decide the present complaint. The Hon’ble Forum may direct the complainant to approach the civil court. There is no cause of action to file the complaint. For all these reasons stated above the opposite party No. 1 prayed to dismiss the complaint.
3. Complainant has filed his affidavit evidence, documents and photographs of the vehicle. Likewise, on behalf of opposite party No. 1 affidavit evidence of Amit Sinha, Deputy Manager Legal has been filed and the opposite party has also produced some documents.
4. I have gone through the pleadings of parties in detail, the affidavit evidence and documents.
5. Arguments are heard.
6. In the light of the arguments advanced by the learned counsel for the parties and the facts of the case the following points arise for consideration:
1. Whether there was deficiency of service on the part of opposite parties?
2. Whether the complainant has proved that vehicle in question is having a manufacturing defect?
3. Whether the complainant is entitled for the relief? If so, what is the relief to be granted?
REASONS
7. The complainant’s main problem with the vehicle is the suspension defect. The defects are tyres of the vehicle have no grip and vehicle has no road grip, rear tyres of vehicle touch the body vehicle while driving vehicle. This problem has been brought to the notice of opposite parties by the complainant several times. The vehicle had been left to the opposite party No. 3 service centre several times for service. The complainant has produced several job cards. The complainant got issued legal notice on 02.06.2008 through his advocate. In this legal notice also the problem faced by the complainant and the defects found in the vehicle had been brought to the notice of the opposite parties. The complainant had also given one more legal notice to the opposite parties. The complainant has produced photographs of the car before this forum for better appreciation of the case. The opposite party No. 1 has produced inspection report of the vehicle. The vehicle was inspected by the Assistant Manager, Technical Mr. Vipul Sharma on 07.12.2010. In this report customer’s complaint tyre fouling inside the wheel arch and tyre wear photographs are produced by the technician. Inspection conclusion arrived by him is that tyre fouling is due to fitment of non-genuine tyres, tyre wear is due to wheel alignment out of specification, no problem of tyre fouling found with Honda recommended tyres at speed of 80 km/hr. on normal rough roads and speed breakers. From the report of service technician of opposite party it is clearly established there is a tyre fouling and tyre wear. The service technician stated that tyre fouling is due to non-genuine tyres. This report cannot be accepted at all. Question of using non-genuine tyres does not arise at all. He has not at all specified which are the tyres used by the complainant to his vehicle. Simply stating that non-genuine tyres will not establish the fact that tyre fouling is due to the use of tyres. The Assistant Manager, Service Technical, Vipul Sharma is the person of opposite party company. His report cannot be impartial. Even by his report itself it establishes clearly there is a problem with the vehicle. By looking into the photographs produced by the complainant it is very clear that the rear tyres touch the body of the vehicle. There is no sufficient space between the wheels and the body. This forum has appointed court commissioner for inspection of the vehicle and submission of report. As per the order of this forum Regional Transport Officer, Koramangala Bangalore Central has been appointed as Court Commissioner for inspecting vehicle. Accordingly, Senior Inspector of Motor Vehicle, RTO, Bangalore Central had inspected vehicle and had a test drive of the vehicle and submitted his report which is as under:
“ INSPECTION REPORT
Sub: Inspection of M.V. No MH-04-CJ-8938, for Mechanical Defects
Ref: RTO BNG/C/NT/MH04CJ8938/10-11,
DT. 20.08.2011
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With reference to the above cited subject on 23.08.2010, I had been to M/s. DAKSHIN HONDA, Elite Automobiles (P), Ltd., Khata No. 2/97, Sy. No. 97/1A, Singasandra, Hosur Road, Bangalore, along with Sri B.N. Mahadev, Sr. IMV, Bangalore Central, to inspect Honda CRV bearing registration Number MH-04/CJ-8938, bearing chassis No. JHLRD77405C310521, and engine No. K24A15402646. At that time present were Mr. SACHIN MD, Assistant to the complainant and Mr. PRASANNA advocate for Complainant. When approached PRO we were directed to meet Mr. CHANDRASHEKAR, Assistant works manager, who intern took us near the vehicle which was kept in open stockyard. On inspection found that the tyres were deflated, battery was not in working conditions. Both the mirror of external rear view mirror were missing. I directed the Asst. work manager to replace the battery and inflate the tyres. Accordingly he done both the works, so I opened the door to check the seats and found that inside of the vehicle was full of dust, filled with excreta of rats and bad smell was coming out. In this condition since, it was not possible to drive vehicle I directed the concerned person to get the vehicle cleaned and make it road worthy to conduct the road test on 24.08.2010.
On 24.08.2010 at 2.00 pm once again visited the workshop along with Sri. B.N. Mahadev, Sr.IMV and found that vehicle was ready for road test. Vehicle was taken out of the workshop by Sri. Chandrashekar, Asst. works manager along with Sri. Bhojraj, final trial Inspector of workshop. On behalfof the complainant sri. Sachin M.D. and Sri. Ravi wre present. Sri. Sachin MD seated in the drivers seat and took the vehicle towards Parappana Agrahara, Hosa Road, Sarjapura road, H.S.R. Ring road, and back to the workshop covering approximately 40 km of distance. After completion of the road test found that there was tyre rubbing marks on the rear right inner surface of the mudguard, M.V. was fitted with good year make tyres of 225/60 R16 size and both rear tyres were wornout with visibility of inner thread of ply. Uneven tyre wear out of these tyres were observed. AC of the vehicle was not functioning at the time of road test and foul smell was coming out of the blower. Dash Board Instruments were not working because of the damage caused to the wiring harness due to rat entry into the system.
ANSWER TO THE MEMO OF INSTRUCTIONS
1. The vehicle MH-04CJ-8938, was not in driving condition on 23.08.2010. After servicing the vehicle got ready to road test on 24.08.2010.
2. YES. Rear right side tyre was rubbing and touching the inner side of mud guard while in motion.
3. About the above said defect motor vehicle is having manufacturing defect.
4. IN MY OPINION: The main defect rests on rear portion of chassis, this should be rectified by the manufacturer. Reason-major parts of the rear suspension were replaced vide invoice Dt. 11.7.2006, 01.02.07 and 22.02.2007 at 28,054, 44,883 and 45,067, odo meter reading respectively.
For your kind information and further action.
RAJESH KUMAR
SENIOR INSPECTOR OF MOTOR VEHICLES
R.T.O., BANGALORE CENTRAL ”
8. Since, Government official had been appointed as court commissioner he being impartial person not interested with anybody, the report of Senior Inspector of Motor Vehicles shall have to be accepted as true and correct and reflecting true facts of the case. The Senior Inspector has clearly stated rear right side tyre was rubbing and touching the inner side of mud-guard while in motion and the said defect of motor vehicle is having manufacturing defect. He further submitted that this defect can be rectified by the manufacturer. So under these circumstances the inspection report of the Senior Inspector of Motor Vehicles, RTO, Bangalore Central shall have to be accepted. It is the duty and obligation and commitment of the opposite parties to rectify the manufacturing defect in the vehicle. The opposite parties must be thankful to the complainant for bringing to their notice the defect in the vehicle. Opposite party company being a very highly reputed company should see that if any defect is found in the vehicle it should be rectified immediately to the satisfaction of the customers, otherwise their good name will be spoiled in the market. Contesting the case by the opposite party is not a good sign. This is the age of competition and quality. In this age the service provider or manufacturer should serve the customer to the best of their ability to the fullest satisfaction of the customers. The opposite parties instead of contesting matter should have happily come forward to rectify the manufacturing defect immediately to the full satisfaction of the customer. With the above observation I am of the opinion that this is a fit case to allow the complaint and direct the opposite parties to rectify the manufacturing defect of the vehicle immediately to the satisfaction of the complainant. After rectification of the defect free of cost the vehicle should be delivered to the custody of the complainant. For any reason if the defect cannot be rectified or corrected in that case the opposite parties shall have to pay compensation of Rs. 50,000/- to the complainant for supplying / marketing defective vehicle since the complainant has suffered lot of inconvenience, financial loss, mental agony, harassment etc. Consumer Protection Act is a social and benevolent legislation intended to protect better interests of consumers. The complainant herein is a ‘Consumer’ under the Act. His interests shall have to be protected by passing orders in his favour. In the result I proceed to pass the following:
ORDER
9. The complaint is allowed. The opposite parties are directed to rectify the tyre fouling of rear wheels of the vehicle bearing No. MH 04 CJ 8938 free of cost failing which the opposite parties are directed to pay compensation of Rs. 50,000/- to the complainant. The opposite parties should take corrective steps and rectify defects within 30 days from the date of this order.
10. The complainant is also entitled for Rs. 3,000/- as costs of the present proceedings from the opposite parties.
11. Send the copy of this Order to both the parties free of costs immediately.
12. Pronounced in the Open Forum on this 10TH DAY OF MAY 2011.
Order accordingly,
PRESIDENT
We concur the above findings.
MEMBER MEMBER
