Order by:
Sh.Amrinder Singh Sidhu, President
1. This Consumer Complaint has been received by transfer vide order dated 26.11.2021 of Hon’ble President, State Consumer Disputes Redressal Commission, Punjab at Chandigarh under section 48 of CPA Act, vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 from District Consumer Commission, Ludhiana to District Consumer Commission, Moga to decide the same in Camp Court at Ludhiana and said order was ordered to be affected from 14th March, 2022.
2. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he purchased one Honda City 1.5 VMT (I-DTEC) Make GM859-LF-41007857 car bearing RC No.Pb-10-FN-0819 for Rs.10,47,300/- from Opposite Party No.1 having a warranty of two years. The complainant purchased the said car and invested in new vehicle for peace of mind hoping that the vehicle is dependable and trouble free, but unfortunately, from the very beginning it was noticed that the car is suffering from some manufacturing defects and it developed abnormal noise from engine when it run only for 1300 KMS. In this regard, the complainant made complaint with the Opposite Parties and the car was parked to Vidata Honda for several times and said problem was corrected by Opposite Party No.1 in consultation with Opposite Party No.2. When the car run only 4000 KMS it started emitting abnormal black smoke from exhaust and the matter was again reported to Opposite Parties through e-mail on 27.05.2016, thereafter, the complainant made repeated complaints with different problems in the car in question, but all the times, either the car in question was temporarily repaired or get it parked for some days and thereafter, after minor repair it was returned. The complainant spent huge amount for the purchase of the car on its allied expenses, but he has been visiting the showroom and workshop of the Opposite Parties during all this period with one complaint or the other, but the Opposite Parties have failed to cure the defects in the car and hence there is manufacturing defect in the car in question. The complainant made repeated requests to the Opposite Parties to replace the car in question or to refund the price of the vehicle, but the Opposite Parties did not pay any heed to the request of the complainant. In this way, there is clear cut deficiency in service, and cheating by the Opposite Parties towards the complainant. Vide instant complaint, the complainant has sought the following reliefs.
a) The Opposite Parties may be directed to replace the vehicle in question or to refund is price and also to pay compensation amounting to Rs.1 lakh on account of deficiency in service, financial loss and mental agony and to pay litigation expenses amounting to Rs.50,000/-.
3. Opposite Party No.1 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that there is no deficiency in service on the part of the answering Opposite Party. The Opposite Parties thoroughly checked the car for 7 times and found that there is no manufacturing defect in the vehicle and the car also does not emits black smoke. The average of the car was also checked by the driving on the road and found that average is 22.1 KMS per liter. The complainant has made wrong and false allegations about manufacturing defect abnormal noise in the engine and improper functioning of his car. The Opposite Party entertained the complaints of the complainant all the times and always checked his car thoroughly through their expert technician and Auto Mobile Engineer, but there is no alleged defect in the car in question. Rather it is the fault of the complainant that he has not been driving his car properly and he is guilty of giving sudden acceleration about 3000 RPM. On merits, Opposite Party No.1 also taken up same and similar as taken up by them in the preliminary objections. Other averments made in the complaint have been denied being wrong and denied and prayer for dismissal of the complaint has also been made.
4. Opposite Party No.2 appeared through counsel and contested the complaint by filing the written version taking preliminary objections therein inter alia that the complaint filed by the complainant is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this District Consumer Commission. It is submitted that the allegations made by the Complainant in the Complaint are false & frivolous and the same has been filed with the ulterior motive to harass the answering respondent and further to extract undue advantage from the answering respondent who has been not only meticulous as also has assisted the complainant at every front. The complaint is nothing but an afterthought, wherein the Complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead the Hon'ble Commission. In fact the complainant has withheld crucial facts from the present complaint in order to mislead this Hon'ble Commission into believing its bald allegations. Therefore, the present complaint is not maintainable before this Hon'ble Commission and the same is liable to be dismissed at its threshold. The complainant is being puzzled with the exact roles performed by each respondent herein and is therefore is clubbing the actions of one respondent to that of the other. The complainant has dragged the answering respondent into the present proceedings even though no cause of action has arisen against it. It is therefore absolutely necessary to point out that the legal relationship shared between the answering respondent and its authorized dealerships i.e. Respondent No. 1 is strictly on principal to principal basis. The said relationship is derived from an express dealership agreement entered between the answering respondent and its dealerships. The dealerships are not agents of the answering respondent, rather they have their own independent existence and separate modus operandi. The answering respondent is merely the manufacturer of the subject car, and can only be held liable in cases where there is an apparent manufacturing defect under the terms of the warranty policy. Any such grievance with respect to deficiency in service or unfair trade practice can only be made out against the dealership as the answering respondent does not engage into providing any ancillary or after sale services. In the instant case, no obligation of the answering respondent can arise as the complainant has failed to prove without any reasonable doubt that the subject car suffered from any inherent/manufacturing defect. The mere say of the complainant that the subject car suffered from numerous defects cannot suffice here as the question of manufacturing defect can only be answered qua credible documentary evidence which has not been placed on record. Therefore, the present compliant cannot be maintainable as against the answering respondent and deserves dismissal at its threshold. A true copy of the relevant pages of the dealership agreement providing the legal relationship shared between the answering respondent and Respondent No. 1 has been attached herein and marked as Annexure A. It is further most humbly submitted that the aforesaid dealership agreement and its terms and conditions are legally binding on all the Respondents herein. Reliance is placed the case titled as UIIC vs. Harchand Ral 2004 (8) SCC 644 wherein the Hon'ble Supreme Court has held that: "It is settled law that terms of the policy shall govern the contract between the parties, they have to abide by the definition given therein and all those expressions appearing in the policy should be interpreted with reference to the terms of policy and not with reference to the definition given in other laws. It is a matter of contract and in terms of the contract the relation of the parties shall abide and it is presumed that when the parties have entered into a contract of insurance with their eyes wide open, they cannot rely on definition given in other enactment." That the complainant has created a false and fabricated narration in his complaint and has only briefed this Hon'ble Commission qua his own grievances which are mere conjectures and surmises. The complainant has continuously stated in his that the subject car suffered from a manufacturing defect right from its purchase, however has failed to substantiate the same with concrete evidence. It is most humbly submitted that the subject car does not suffer from any manufacturing defect, rather any defect whatsoever is merely in the mind of the complainant. The grievances as laid down in the complaint are replied to by the answering respondent is that the complainant has stated that only after running 1300 kilometers, the subject car started developing abnormal sounds, however a perusal of the Repair Orders annexed hereto clearly prove that no such problem had occurred in the subject car. The Repair Order dated 23.12.2015 (when the subject car had covered 1583 kilometers) clearly states that the subject car was brought to the service station of Respondent No. 1 for checking brake noise as also for checking the stereo system of the subject car. The complainant has further alleged that the subject car at a run of 4000 kilometers started emitting black smoke from exhaust, however a bare perusal of the Repair Orders clearly suggest that the first time on 22.08.2016 when the subject car had covered 9970 kilometers. It is further relevant to point out that on 22.08.2016 itself, the subject car had reported to the service center of Respondent No. 1 and had undergone accidental repair works. Furthermore, on 16.11.2016, the subject car was again subjected to another road traffic accident as a result of which accidental repair and painting works were carried out on the subject ear. Therefore, it is amply clear that any problem that arose in the subject car arose solely due to the rash and negligent driving of the complainant. The complainant had not only misused the subject car, however had refused certain works to be carried out on the subject (wheel balancing and wheel alignment) to cause further consequential damages therein. Therefore, it is amply clear that any and all faults that arose in the subject car arose solely on account of the complainant's own inactions and negligence. That in light of the aforesaid, the warranty policy of the subject car had become mull and void and therefore the complainant is not entitled to free repair of the subject car nor any compensation as claimed. Undisputedly and as specifically laid down the owners's manual of the subject car, damages caused to a vehicle will not be covered under warranty if the same has been subjected to any external impact or road traffic accident. Therefore, neither the answering respondent obligated to the complainant nor it can be made liable for his negligence. On merits, Opposite Party No.2 also taken up same and similar as taken up by them in the preliminary objections. Other averments made in the complaint have been denied being wrong and denied and prayer for dismissal of the complaint has also been made.
5. In order to prove his case, the complainant has tendered into evidence his affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C64 and closed his evidence.
6. Opposite Parties No.1 tendered into evidence affidavits Ex.R1/A alongwith copies of documents Ex.R1/2 to Ex.R1/17 and close the evidence. Similarly, Opposite Party No.2 tendered into evidence affidavit Ex.RA2 alongwith copies of documents Ex.R2/1 to Ex.R2/4 and closed the evidence of Opposite Party No.2.
7. We have heard the ld.counsel for the parties and also gone through the documents placed on record.
8. Ld.counsel for the Complainant as well as ld.counsel for the Opposite Party No.1 have mainly reiterated the facts as narrated in the complaint as well as in their written statements respectively. We have perused the rival contention of the ld.counsel for the parties. The only contention of the ld.counsel for the complainant is that the car purchased by the complainant from the Opposite Parties is suffering from some manufacturing defects and it developed abnormal noise from engine when it run only for 1300 KMS. In this regard, the complainant made complaint with the Opposite Parties and the car was parked to Vidata Honda for several times and said problem was corrected by Opposite Party No.1 in consultation with Opposite Party No.2. When the car run only 4000 KMS it started emitting abnormal black smoke from exhaust and the matter was again reported to Opposite Parties through e-mail on 27.05.2016, thereafter, the complainant made repeated complaints with different problems in the car in question, but all the times, either the car in question was temporarily repaired or get it parked for some days and thereafter, after minor repair it was returned. The complainant spent huge amount for the purchase of the car on its allied expenses, but he has been visiting the showroom and workshop of the Opposite Parties during all this period with one complaint or the other, but the Opposite Parties have failed to cure the defects in the car and hence there is manufacturing defect in the car in question. The complainant made repeated requests to the Opposite Parties to replace the car in question or to refund the price of the vehicle, but the Opposite Parties did not pay any heed to the request of the complainant. In this way, there is clear cut deficiency in service, and cheating by the Opposite Parties towards the complainant. On the other hand, ld.counsel for the Opposite Parties have repelled the aforesaid contention of the ld.counsel for the complainant on the ground that Opposite Parties thoroughly checked the car for 7 times and found that there is no manufacturing defect in the vehicle and the car also does not emits black smoke. The average of the car was also checked by the driving on the road and found that average is 22.1 KMS per liter. The complainant has made wrong and false allegations about manufacturing defect abnormal noise in the engine and improper functioning of his car. The Opposite Party entertained the complaints of the complainant all the times and always checked his car thoroughly through their expert technician and Auto Mobile Engineer, but there is no alleged defect in the car in question. Rather it is the fault of the complainant that he has not been driving his car properly and he is guilty of giving sudden acceleration about 3000 RPM. Perusal of the record shows that the main plea of the complainant is that there is manufacturing defect in the vehicle in question, but he has failed to produce any evidence in this regard. The complainant has miserably failed to establish his complaint that a particular kind of defect falling within the purview of manufacturing defect is available in the product in question as neither any expert report nor any other convincing material evidence has been placed on record. Perusal of the record shows that the complainant has failed to produce any iota of evidence to prove that there occurred any problem/ defect in the product in question. The further contention of the Opposite Parties is that the car in question does not suffer from a manufacturing defect, the warranty obligation of the Opposite Party is only to the extent of repair or replacement of the part which proves defective within the limit of warranty at no charge to the customer for parts and labour. In this regard, Hon’ble Supreme Court of India in case Maruti Udyog Limited Vs.Susheel Kumar Gabgotra and Anr.reported in AIR 2006 SC 1586 has categorically held that the obligation of manufacturing of the vehicle under warranty is limited only to the extent of repair or replacement of any part found to be defective. It has also been clearly held by Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Dr.Hema Vasantilal Dakoria Vs. Bajaj Auto Limited and Ors. Reported in II (2005) CPJ 102 (NC) that when a part or component could be replaced and defect could not be rectified, replacement of vehicle can not be ordered. Moreover, the complainant has nowhere brought these problems/ defect in question in the knowledge of the Opposite Parties nor produced any job sheet in this regard or any manufacturing defect in the product in question, neither the complainant has ever produced any expert opinion to prove that the subject product suffers from any problems or to establish any manufacturing defect in the product in question. In this regard, Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case Dr.K.Kumar Advisor (Engineering) Maruti Udyog Limited Vs. Dr.A.S.Narayana Rao & Anr (1 (2010) CPJ 19 NC for the necessity of expert evidence to prove the submissions of manufacturing defects in the product made in the complaint. Not only this, Hon’ble State Consumer Disputes Redressal Commission, Uttrakhand while passing order in First Appeal No. 89 of 2010; Dee Dee Motors Pvt. Ltd. vs. Ms. Nujhat and another and First Appeal No. 215 of 2010; C.K. Birla, Director vs. Ms. Nujhat and another, has discussed a case Classic Automobiles vs. Lila Nand Mishra and another; I (2010) CPJ 235 (NC). In this case, the Hon'ble National Commission has laid down the law that onus to prove manufacturing defect in the product lies on the complainant and further that expert evidence need to be produced to prove manufacturing defect in the product. In the instant case, the complainant has not produced any iota of evidence to prove any defect/ problem or manufacturing defect in the product in question of some approved agency. Hence, we hold that the complainant has failed to prove any deficiency in service on the part of the Opposite Parties.
9. In view of the aforesaid facts and circumstances of the case, the instant complaint stands dismissed. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost by District Consumer Commission, Ludhiana and thereafter, the file be consigned to record room after compliance.
10. Reason for delay in deciding the complaint.
This Consumer Complaint was originally filed at District Consumer Disputes Redressal Commission (Now Commission) at Ludhiana and it keep pending over there until Hon’ble State Consumer Disputes Redressal Commission, Punjab vide letter No.04/22/2021/4 C.P.A/38 dated 17.1.2022 has transferred the instant Consumer Complaint alongwith Other Complaints to District Consumer Commission, Moga with directions to work on this file onward from 14th March, 2022 and accordingly District Consumer Commission, Moga has decided the present complaint at Camp Court, Ludhiana, as early as possible as it could decide the same
Announced in Open Commission at Camp Court, Ludhiana.
