IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 17^thday of March 2022.

Present:  Sri. Manulal V.S. President

Smt. Bindhu R.  Member

Sri. K.M. Anto, Member

C C No. 41/2018 (Filed on 06-03-2018)

Petitioner                                             :         Jojo Jose,

                                                                      Puthiyaparambil,

                                                                      Kattappana South P.O.

                                                                      Ambalakkavala.

                                                                      (Adv. Siby Mathew)

                                                                                Vs.

Opposite parties                                   :  1)   Manager,

                                                                      Vision Motors (P) Ltd.

                                                                      No.XI/243, Nattakom P.O.

                                                                      Kottayam – 686013.

                                                                      (Adv. Sreenivas V. Pillai)

                                                                   2) Managing Director,

                                                                      Honda Car India Limited,

                                                                      Plot No.A1, Sector 40/41,

                                                                      Soorajpoor, Kasna Road,

Greater Noida Industrial Development Area District,

GauthamBudha Nagar,

                                                                      Uttarpradesh – 201306.

(Adv. Vijy V. Paul, Maria Ray and Adv.Veno Jose)

O  R  D  E  R

Sri. Manulal V.S. President

          The case is filed under Section 12 of Consumer Protection Act, 1986

          The complainant had purchased a Honda City car manufactured by the 2^nd opposite party from the 1^st opposite party on 30-06-2016.  The complainant had paid Rs.9,99,900/- as the price of the car and Rs.79,992/- towards road tax and Rs.27,261/- as insurance premium.   The 2^nd opposite party offered a warranty for 24 months from the date of purchase or 40,000 kms whichever is earlier.  When the vehicle had run only 16,579/- kms the complainant noticed some unusual sound from the engine of the car while driving.  On 11-01-2018, complainant entrusted the vehicle to the 1^st opposite party for rectifying the defect, the 1^st opposite party had noted the defect as abnormal sound checkup in a service manual repair.  It is alleged in the complaint that even after 45 days, the vehicle was not delivered to the complainant when the complainant enquired about the same, he understood that the vehicle had some manufacturing defect in the engine and the 1^st opposite party repaired the vehicle after dismantling the engine.  Hence this complaint is filed by the complainant praying for an order directing the opposite parties to replace the car with a new one or in alternative to pay Rs.11,07,153/- to the complainant and compensation of Rs.25,000/- along with cost of litigation.

          Upon notice, opposite parties appeared before the Commission and filed version.

          The version of the 1^st opposite party is as follows.

The complainant is not a consumer as defined under Consumer Protection Act.  The 1^st opposite party admitted that the complainant had purchased a Honda City 4.5 V MT (i-VTEC) on 30-06-2016 for an amount of Rs.9,99,900/-.  The 1^stopposite party had submitted that the vehicle of the complainant is entrusted with the 1^st opposite party on 11-01-2018 for engine abnormal sound checkup.  The 1^st opposite party has accepted the vehicle and checked the vehicle as per the job specification of the manufacturer.  During inspection, it was found that auto tension unit, drive belt, AC compressor, water pump etc. of the vehicle are problem free.As per the direction of the 2^nd opposite party, the further checkup of the vehicle was done and forwarded a video from the inside cabin of the vehicle for further judging.  Thereafter, as per the direction of the 2^nd opposite party various correction techniques were imparted to resolve the issue of the vehicle.

          According to the 1^st opposite party, 2^nd opposite party had suggested the replacement of the piston rings with connecting rod and its bearing on 27-01-18.  It is submitted in the version that when the same was upraised to the complainant he demanded the replacement of engine of the vehicle.  It is averred in the version that the complainant had failed to provide proper, on time service to the vehicle.  Hence 2^nd opposite party denied the warranty of the vehicle as per terms and condition of warranty.  It is further submitted by the 1^stopposite party that as a goodwill gesture, the 1^st opposite party had tried to resolve the issue of the complainant.  On replacement of chain, guide bolt, the sound from the engine had completely cleared.  Even though the vehicle was ready for delivery on                      26-02-18, the complainant had collected the vehicle on 27-02-18.  The vehicle has not suffered any manufacturing defect as alleged by the complainant.  There is no delay on the part of the 1^st opposite party either in attending the complaint or in carrying out repairs.  Being a dealer of the vehicle, the 1^st opposite partycarried out all its duties and there is no deficiency in service from the side of the 1^st opposite party.  The allegation of the manufacturing defect cannot be attributed to the 1^st opposite party as they are only the dealers of the vehicle.

          2^nd opposite party filed version contenting as follows.

          The relationship between the 1^st and 2^nd opposite party is on a principal to principal basis.  The after sale servicesare exclusively provided by the 1^st opposite party and not by the 2^nd opposite party.  It is submitted in the version that in case of manufacturing defect, 2^nd opposite party is under obligation as per the terms of warranty.  There is no privity of contract between the complainant and the 2^nd opposite party.  The 2^nd opposite party has neither sold the car to the complainant nor has rendered any services.  The complainant has made the payment to the dealers and no consideration was paid to the 2^nd opposite party.

The grievances complained in the complaint was never brought to the knowledge of the 2^nd opposite party and it is on the receipt of this complaint, the 2^nd opposite party came to knowledge of the said grievances for 1^st time.  However the issue of engine noise raised by the complainant has been resolved by replacing the timing dampener bolt and after on 01-03-2018, the said issue has not been reported with the 1^st opposite party.  The allegation regarding manufacturing defect of the car are vague, misconceived and false.  It is submitted in the version that the complainant has admitted the fact that the car of the complainant has completed 16,759 kms within a period of 20 months which proves the efficient working of the car and 2^nd opposite party prays for dismissal of the complaint.

The complainant filed proof affidavit in lieu of chief examination and Ext.A1 to A4 were marked from his side.  One MukeshMurukan, who is the Service Manager of the 1^st opposite party filed proof affidavit in lieu of chief examination and for and on behalf of the 1^st opposite party and marked Ext.B3 to B6.  One RishabhBhutani, who is the Legal Manager of the 2^nd opposite party filed proof affidavit and Ext.B1 and B2 were marked.

On evaluation of complaint, version and evidence on record we would like to consider following points.

1. Whether the complainant is a consumer of the opposite party?
2. Whether there is any deficiency in service or unfair trade practice from the part of opposite parties?
3. If so, what are reliefs.

Point No.1 and 2

          The complaint was resisted by the 1^st opposite party on the ground that the complainant is not a consumer as defined under Section 2(1) (d) of Consumer Protection Act.  It is pertinent to note that the opposite party has admitted the purchase of the vehicle by the complainant from the opposite parties by paying a consideration of Rs.9,99,900/-to the opposite parties. 

Section 2 (1) (d) of Consumer Protection Act 1986 defined “consumer” means any person who-

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;

The opposite parties have no case that the complainant had purchased the car in dispute for a commercial purchase.  They have no case that the complainant had engaged in the business activities of re-selling the car.  Therefore we are of the opinion that complainant is a consumer of the opposite parties.

The specific case of the complainant is that when the vehicle had run only 16,579 kms, there was some unusual sound from the engine while driving.  According to the complainant, it was due to the inherent manufacturing defect of the car.  Though the vehicle was entrusted to the 1^st opposite party to rectify the complaints of vehicle it was not delivered to the complainant even after 45 days.  Ext.A1 proves that the vehicle of the complainant was entrusted to the 1^st opposite party on 11-01-2018, with a complaint of engine abnormal sound check.  The 1^st opposite party contented that when they had checked the vehicle as per the job specification of the manufacturer, it was found that auto tension unit, drive belt, AC compressor, water pump etc. of the vehicle are problem free.  Thereafter as per the direction of the 2^nd opposite party various correction techniques were done to dissolve the issue.  It is pertinent to note that the 1^st opposite party in the proof affidavit and version submitted that the 2^nd opposite party has suggested the replacement of the piston, piston rings with the connecting rod and its bearing to rectify the defects.  Ext.B4 is a repair order issued by the 1^stoppositepartywhich proves that they had done engine removing and fittings and it is further stated in Ext.B4 that the engine sound has corrected.  So the 2^nd opposite party’s contention that they had come to know the defect of the vehicle of the complainant only after receiving notice from this Commission cannot be accepted.  The 2^ndopposite party in version and in affidavit admitted that the complaint of engine noise had been resolved by replacement of the chain guide bolt.  Therefore, it is proved that the 2^nd opposite partywas fully aware of the complaint of the vehicle before the filing of this complaint.  Ext.B4 to B6 proves that the vehicle of the complainant had some defects.  Even though the complainant had alleged the manufacturing defect, he had not adduced any evidence to prove the same.  The complainant had not taken any step to get the vehicleinspected by an Expert to prove that the vehicle was suffering from inherent manufacturing defect.  In a Pithora of judgments the Hon’ble National Commission and Hon’bleSupereme Court has held that the allegation of manufacturing defect cannot be allowed in the absence of any expert evidence.

          It is to be considered that the vehicle was under the warranty offered by the 2^nd opposite party.  As discussed earlier, complainant has failed to prove the manufacturing defect on the vehicle.  However on perusal of record, there were certain defects which were required to be rectified under the warranty.  Though the 1^st opposite party contented that due to the negligence of the complainant in maintaining the vehicle the warranty is revoked, they did not produce any evidence to prove their contention.  On the other hand, we are of the opinion that the complainant has suffered a lot of inconvenience and misery due to the improper functioning of the vehicle. The purchaser of a new vehicle would not ever think that he would be going to repair the vehicle so often even if the repair is minor.  If this has happened, the purchaser is definitely entitled to get compensation for inconvenience and mental agony caused to him due to the supply of a vehicle having some defects.  In this case on hand though the vehicle had entrusted to 1^st opposite party on 11-01-2018, the same has been rectified only on 27-02-2018.  The 1^st opposite party has not given any explanation of such a delay and the inordinate delay caused in rectifying the defect of the vehicle amounts to imperfection and inadequacy in service from the part of the 1^st opposite party and amounts to deficiency in service.  Though the manufacturing defect is not proved by the complainant as far as warranty is concerned the manufacture ie. 2^nd opposite party is equally responsible to rectify the defect of the vehicle within a reasonable time.

          Considering the circumstances and nature of the case, we are of the opinion that 2^nd opposite party has committed deficiency in service by not rectifying the defect of the vehicle within a reasonable time limit.

          Therefore, while we hold that the complainant has not been able to prove any manufacturing defect, at the same time the 1^st and 2^nd opposite party are directed to remove the defect if any as to make the vehicle road worthy and deliver it to the complainant within a period of 30 days from the date of this Order.

We further direct the 1^st opposite party to pay compensation of Rs.10,000/- to the complainant and 1^st and 2^nd opposite parties are directed to pay Rs.2,000/- as cost of litigation.

The Order shall be complied within a period of 30 days from the date of receipt of Order.  If not complied as directed, the compensation amount will carry 9% interest from the date of Order till realization.

Order till realization.

Dictated to the Confidential Assistant, transcribed and typed by her,corrected by me and pronounced in the Open Commission on this the 17^thday of   March, 2022

Sri. Manulal V.S. President Sd/-

Smt.  Bindhu R,  Member                 Sd/-            

Sri. K.M. Anto, Member                   Sd/-

Appendix

Exhibits marked on the side of the complainant

A1 – Copy of invoice dtd.30-03-16 issued by 1^st opposite party

A2 – Tax license for the period of 12-07-16 to 30-06-2031from Motor Vehicle

Department

A3 – Warranty index of vehicle

A4 –Manual service repair form dtd.11-01-18 from 1^st opposite party

Exhibits marked from the side of opposite party

B1 – Copy of authorization letter dtd.06-12-20

B2 – Copy of agreement dtd.01-04-15 between 2^nd and 1^st opposite party

B3 - Manual service repair form dtd.11-01-18 from 1^st opposite party

B4 –Repair order dtd.17-02-18 from 1^st opposite party

B5 - –Repair order dtd.26-02-18 from 1^st opposite party

B6 – Copy of tax invoice dtd.27-02-18

                                                                                                    By Order

                                                                                Assistant Registrar