Before  the District Consumer Dispute Redressal Commission [Central], 5th Floor                                         ISBT Building, Kashmere Gate, Delhi

                               Complaint Case No.316/31.08.2016

Ruchika Gupta r/o 501A, Block-4A HIG DDA Flats,

 Motia Khan, Paharganj New Delhi-110055                                         ...Complainant   

Versus

OP1.  Capital Cars Private Ltd. (Prime Honda)

Plot No. 1, Patpadganj Industrial Area,

(Near Mother Dairy), Delhi-110092                         ...Opposite Party no.1

OP2.  Honda Cars India Ltd (Zonal Office North)

Plot No. A-1, Sector 40/41 Surajpur Kasna Road

, Greater Noida Indl. Development Area,

 District Gautam Budh Nagar-201306, U.P.

 (OP2's name struck off as per para 7.5.3.below)               ...Opposite Party no.2                                                                                                                                           

                                                                   Order Reserved on:     03.02.2023

                                                                   Date of Order:            12.04.2023

Coram: Shri Inder Jeet Singh, President

              Shri Vyas Muni Rai,    Member

              Ms. Shahina, Member -Female

Inder Jeet Singh

                                             ORDER

1.  The complaint was filed under section 12 of the Consumer Protection Act, 1986 on allegations of deficiency in services and of unfair trade practices, since OP1/ Authorised Car Service Station took service charges for service of Honda City Car no. DL 7CF 3706 (briefly 'Honda City Car' or car or vehicle) from the complainant but the services were not rendered completely and satisfactorily.  OP2 is manufacturer of the vehicle, however, there was a covenant that services of the vehicle is to be from the authorized service station, as such both OP1 and OP2 being service providers are liable and accountable.

          However, the OP1 opposed the complaint that neither the complainant is a consumer nor she is owner of the vehicle nor there is any deficiency of service or unfair trade practices on its part. OP2 also opposes the complaint that the relationship of OP1 and OP2 is on Principal to Principal basis, neither OP2 had rendered services to car of complainant nor took services charges from the complainant nor there is occasion for deficiency of services or of unfair trade practices. It is exclusively between the complainant and the OP1 in respect of services  being after sale services.

2.1.  The Honda City car was purchased against retail invoice (Annexure-A) from OP1, who is dealer of OP2, in the name of Shri Amit Gupta , then fiancée of complainant, before her marriage and later the vehicle was transferred in the name of complainant. It was a condition that a customer is under obligation to get the services of car done from authorized dealer of OP2. The spare parts of the car are not available in the open market and as such customer has to approach the dealer of OP2.

2.2. On 13.05.2016, complainant’s father booked pick-up service with OP1 for service on 14.05.2016 of Honda City car by OP1 vide booking no. 18340, Mr. Santosh Prasad came to pick-up the car in the morning of 14.05.2016, however, the car did not start due to key problem. OP1 assured on call that some expert will come to pick-up the car but no one turned for entire day, thus on 16.05.2016 complainant’s father wrote a complaint dated 16.05.2016 by speed post and also an email, apart from complaint on the customer care portal of OPs (both are Annexure- B and C respectively). Then a call was received from OP2 and also from OP1, while feeling sorry and assuring as to when let the technician to come to pick-up the car, which was also responded to the complainant by email dated 17.05.2016 (Annexure-D).

2.3. But no response was received for 07 days and complainant could not use the car for such period, thus, she through her counsel served a legal notice dated 20.05.2016 (Annexure-E, its copy was also sent to President and CEO of Honda Motors Car Ltd.) calling upon them to pick-up the car for service within 24 hours and pay Rs. 50,000/- as damages. On 23.05.2016 a technician of OP1 came at the residence of complainant but he could not start the car due to key problem for ignition, thus lock was to be replaced and he had to break the lock, then he would be able to take the car to the workshop of OP1 for replacement of lock and for service of car. The complainant had no option. Accordingly, lock of the car was broken and that technician took the car to the workshop.

          The car was delivered/returned on following 24.05.2016 at 09:00pm in night, it was taken just after inspecting the copy of manual service repair form no. 113311 dated 24.05.2016. However, the invoice generated  was of o6:o2pm (in respect of lock and service) by OP1 for Rs. 26,165/-, the gate pass was of o7:17pm.  The invoice amount was paid in cash without prejudice to rights, and an endorsement was made in the copy of invoice, which was retained by the delivery man (the manual repair form and invoice along with gate pass are respectively Annexure-F and Annexure-G). Since it was o9pm and dark, the car was not physically inspected.

2.4. On the next morning, the vehicle was checked physically, they shocked to see inside the vehicle, it was not touched at all for services, doors were dirty in the same condition, when vehicle was taken for services, doors hinges of all the four doors were loosed, rusted, non-aligned and also not lubricated; three paddles, especially clutch paddles were not touched at all, which were making frictional sound on their use and pressing. The inside of the vehicle was not touched at all during the major service done by OP1, even the engine and other parts were also not serviced. Complainant’s father sent complaint dated 01.06.2016 (Annexure-H) to both the OPs, the same were delivered to them as per uploaded information on website of post office.

          Subsequent to this complaint, on 30.05.2016 a person namely Mr. Ranjeet visited the residence of complainant to check the car and found that it was not cleaned from inside and outside during the service of car, grease was not applied to the hinges of doors, which were rusted. He went to nearby market, grease was brought and then after spending 3 hours, he was able to clean the car (inside and outside). Further, consequent to that complaint also, on 05.07.2016 one technician Mr. Balaji of OP1 also came at the residence of complainant and found that paddles especially clutch paddle was making a jarring noise on pressing, which confirmed that despite retaining the car for two days for major service, no proper service was done at all,  the OP1 charged huge amount of Rs.26,165/-. The said technician had spent one hour and he was able to properly make service of the paddle. The service note dated 05.07.2016 (Annexure-I) was accordingly endorsed by the complainant.

2.5. Thus, both the OPs failed to provide after sale service to the complainant, they indulge in unfair trade practice, there was deficiency of service, manipulation of condition of delivery of service and because of them, the complainant could not able to use and drive the car for more than 7 days , during which she suffered harassment, mental torture, trauma and deprivation of cannot be compensated in money terms. However, she is entitled and claiming refund of Rs.26,165/- charged by OP1, besides compensation of Rs.1,00,000/- and litigation charges.

3.1. OP1 opposed the complaint that there is no deficiency of services or unfair trade practice on its part. The complaint is also liable to be dismissed since the complainant is not owner of the Honda City car nor a consumer, therefore this Commission lacks jurisdiction to adjudicate the complaint. there is no contractual obligation on the part of OP1 to pick up the vehicle from the residence of complainant, however, just as a matter of facility, free picked up of vehicle is done from the place of complainant. Moreover, the complainant did not disclose cleverly and knowingly that there is problem of starting the car, when the vehicle was requested to be picked up. It came to the notice of OP1 when the vehicle was being picked up vis-à-vis the complainant never availed earlier such pick up free facility from residence. It is mala-fide on the part of complainant. The complainant ought to have disclosed on the first instance that there was starting problem, so that appropriate arrangement could have been done. Later, the vehicle was picked up as per schedule of complainant for 23.05.2016. It was serviced and delivered back on 24.05.2016, the delivery of vehicle was taken after satisfaction of the complainant and the car was in perfect working condition.

          On 30.05.2016, the technician of OP1 had also attended the car of complainant at her residence, although it happens to be a day before the date of notice of 01.06.2016 by complainant. After about 40 days, on 05.07.2016, on complainant's request, OP1 had also sent a technician to attend the call of complainant and it was done by OP1 as a good business practice  being consumer centric company. The technician had attended the complaint of clutch, which was not existing on 30.05.2016.

          The OP1 also denies other allegations of the complaint of deficiency in service or of harassment or of mental torture or the complainant could not drive the vehicle for seven days vis-à-vis the complainant is not entitled for refund of Rs. 25,165/- or any other amount of compensation as claimed or of litigation expenses.

3.2.  OP2 opposed the complaint that it is false complaint, secondly, there is no privity of contract between the complainant and the OP2, since the relationship of OP2 and OP1 is Principal to Principal and OP2 is not after sale service provider to the complainant. OP2 is only manufacturer of the vehicle and role of OP2 is limited to honour the warranty terms and conditions of the vehicle. The complainant is not a consumer.  In paragraph no. 4 of reply, OP2 mentions case law to emphasis that in the eventuality relationship of Principal to Principal, the manufacturer is not liable.

4.1. The complainant filed rejoinder to the reply of OP1, it is a detailed rejoinder, it denies the allegations of reply of OP1 and reaffirms the complaint.

4.2. The complainant also filed rejoinder to the reply of OP2, it is a detailed rejoinder, it denies the allegations of reply of OP2 and reaffirms the complaint. The complainant also supplements that OP2 admits receipt of legal notice but failed to explain as what action was initiated after receipt of that notice. Further, the case law cited in the reply is not application to the situation in hand.

5.1 (Evidence) : Complainant  Ms Ruchika Gupta filed her detailed affidavit of evidence on the lines of complaint as well the documents filed in support of her complaint,

5.2:  OP1 filed affidavit of evidence of  Shri Jitender Kumar Nanda, Director (whole time Director) and Shri Kamal Manchanda, Company Secretary & DGM-Legal, which are also on the lines of its reply coupled with documents filed with reply.

5.3 The OP2 also filed affidavit/evidence of Ms.Sonia Patel,  Deputy Manager-Legal, which is based on reply, apart from dealership agreement between OP1 and OP2 was also filed.

6. (Final hearing) : At the stage of final hearing Shri G.C.Rawal, Advocate for Complainant, Shri Manish Mishra, Advocate for OP1 and Shri Vishal Bhardwaj, Advocate for OP2 presented their respective oral submissions. The submissions of both the sides needed not to be reflected here as the same will be dealt at appropriate stage of discussions.

7.1 (Findings) : The contentions of the parties are considered, keeping in view the material on record in the form of oral and documentary evidence. However, at the outset, it is not disputed that the complainant’s vehicle was taken by the OP1 for services from the residence of complainant and it was also delivered back after services, apart from subsequent visits by the expert or technician or mechanic at the residence of complainant to attend the calls.

7.2. The OP1 has reservation that since complainant is not registered owner of the vehicle, therefore, the complaint cannot be filed by her. It is opposed by the complainant that it was her vehicle, which was taken for services and the calls were also attended at the residence of complainant.

          The answer to this issue is in the record itself. Although, initially complainant had filed  retail invoice of vehicle in the name of Sh. Amit Gupta by explaining in the complaint itself that  the vehicle was transferred in her name, and the complainant had also filed copy of registration certificate of vehicle in her name along with the rejoinder, it shows that the vehicle is registered in her name. To that extent the objection stands answered.

          Moreover, the invoice of service was also issued in the name of complainant/customer Ruchika Gupta by the OP1. Since complainant has availed the services of car from OP1 and invoice was also issued in her favour, it does not leave any scope in the plea of OP1 to took objection on this count. The complaint is covered under the provision of the Consumer Protection Act, 1986.

7.3. The OP1 also raises another objection that complainant is not a consumer and that is why the Consumer Forum/ Commission lacks the jurisdiction to decide it. Whereas, the complainant has other reservations, which have already been mentioned in para no. 7.2 above.

          In fact, the answer to this objection has already been given in conclusion of sub-paragraph no. 7.2 above, since not only the complainant is registered owner of the vehicle but also she handed over her car to the OP1 for appropriate services against consideration of service charges, thus she is consumer and consequently the present Commission/Forum has jurisdiction to adjudicate the present complaint. This objection of OP1 also stands overruled and answered.

7.4. The OP1 took the objection that the complainant failed to have regular services of the car as per scale of kilometers laid down, the complainant herself was negligent in getting the service of car done at appropriate interval. Whereas, on the other side, complainant opposed this contention that in order to side track the main issue, this kind of plea is being taken by the OP1, it has no substance.

          Since the main issue is that when complainant had called OP1 to take the vehicle for services and there are reservations on that point between the parties, therefore, it would not matter whether there was previously service was got done or not, within the scale of kilometers or otherwise. The OP1’s contentions to that extent carries no weight.

7.5.1. Now the issue pertaining to relation of the complainant and the OP2 is taken in view of fact that complainant had bought the vehicle from OP1, an authorized dealer of OP2. So far OP2 is concerned, it is  manufacture of Honda City Car, however, the complainant has impleaded OP2 as a party because of caveat/  warranty clause but as such there are no allegations of the manufacturing defects in the vehicle.

7.5.2. With regard to relationship between the parties, the OP1 is dealer of OP2. The OP2 has relied upon Maruti Udyog Ltd. vs. Arjun Singh & Anr. [III(2009) CPJ 22 (NC)] wherein it was held that a manufacturer cannot be held liable when there is relationship of manufacturer and dealer on the basis of Principal to Principal. Further reliance is placed on Ranveet Singh Bagga vs KML Royal Dutch Airlines, [1999 AIR SCW 22] that deficiency in services cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service.

          Since, there is no contract of after sale service of vehicle between the complainant and the OP2. It is OP1, who has to provide after sale service of car or other services to the complainant. The circumstances are also suggesting that the relationship between the OP1 and OP2 are of Principal to Principal, therefore, principle of vicarious liability against OP2 cannot be invoked for the breach of any contract between OP1 and the complainant or alike situation of deficiency of services, if any. Thus, OP2 is not a necessary party nor it has vicarious liability for OP1.

7.5.3.  In view of the conclusion drawn in sub-paragraph no. 7.5.1. and 7.5.2,  the name of OP2 is to be strike off from the array of parties and accordingly name of the OP2 stands strike off.

8.1. At this stage, the other issues pertaining to deficiency in services and unfair trade practices are being taken up. On plain reading of the entire case of the parties, the claim of complainant can be split into two parts viz. firstly that there is deficiency of services for want of picking up the vehicle from the residence of complainant and secondly, after  taking the vehicle for services, the services were not performed properly and completely but services charges were taken, which also amounts to unfair trade practice. The first component is taken in sub-paragraph no. 8.2 and other component will be taken in sub-paragraph no. 8.3.

8.2. On the one side, the complainant contends that when the OP1 was called to pick-up the vehicle for services, then a person from the office of OP1 reported, who found that there was key problem and the vehicle was not starting, an expert was to see the situation. However, thereafter no one came to pick up the vehicle and the complainant had to make a complaint at the customer care centre besides email to both the OPs, then the vehicle was picked up after 7 days. Later on, some mechanic/ technician came, who broke the ignition lock of vehicle and then vehicle was taken for services. On the other side, the OP has objections that complainant very cleverly asked for person to pick up the vehicle for service without disclosing that vehicle was not being ignited, had it been informed at first instance, the appropriate arrangement would have been made. Later, when the complainant side was asked as to when the vehicle is to be picked up and as per date advised by the complainant, vehicle was picked up from the residence of complainant, [although it was not a contractual or service obligation of OP1 to pick up the vehicle from residence, however, facility is being provided for the convenience of customers].

          On reconciling the rival contention, it is manifest from the record and pleading of the parties, that picking of the vehicle is not a terms and conditions of contract between the parties, therefore, it was not a legal right of the complainant to ask for picking of the vehicle from her residence. Simultaneously, when OP1 is offering the facility and it is also being offered free of cost to the customers, either as a goodwill or as a courtesy, it was also expected by the complainant to honour the same. The complainant herself place on record email dated 17.05.2016, while OP1 was confirming from the complainant as to when the car should be picked up for services, however, there was no response to email to confirm the date but otherwise, the vehicle was taken by the OP1 after having talk with the complainant side. To that extent, there is no deficiency of service, on the part of OP1 nor it can be inferred from the circumstances explained.

8.3.1. With regard to other component of taking the vehicle for services, complainant has reservations that it was not properly serviced. It is undisputed fact that the vehicle was delivered on 24.05.2016 to the complainant after service and invoice of Rs. 26,165/- was raised for that purposes. Further on plain reading record,  it is also emerging that the technician of OP1 attended the call on 3005.2016, whatever deficiency was pointed out, it were attended and completed at the residence of complainant. It was prior to complaint dated 01.06.2016 of complainant. Further, there was another visit/call of 04/05.07.2016 when the technician had also visited the complainant’s residence and carried out the appropriate services [ for which there is separate invoice at page no. 12 of the OP1 reply]. In between date of service of 24.05.2016 and 04/05.07.2016 there is a span of 40 days. It is also admitted fact that the technician of OP1 had also visited the complainant’s residence on 30.05.2016 and there is gap of 6 days from the service of 24.05.2016. To say, the service carried on 30.05.2016 at the residence of complainant is in continuation of previous service done on 24.05.2016, however, the service of 04/05.07.2016 is a separate service for which separate invoice was raised.

          The complainant had paid Rs. 26,165/- against invoice dated 24.05.2016 [Annexure-G/ page 22 and manual service repair form is Annexure-F/ page no. 21-21A] and OP1 has also furnished copy of its similar  invoice [which is at page no. 13 of the OP1’s paper-book]. This invoice issued by the OP1 is heading-wise [i.e. items of accessories along with services, replacement etc] and one of the items is 60,000 kms paid services, against which the services charges are shown as Rs. 2370.15p. To say, the services charges are shown separately and price of spare parts provided are  shown separately. In the another invoice [at page no. 23 of the complainant’s paper-book and page no. 14 of the OP1’s paper-book], its total amount is Rs. 26,165/-, which includes labour charges of Rs. 6,879/-.

8.3.2. It is apparent in the discussion in sub-paragraph no. 8.3.1. above, that after service and delivery of vehicle on 24.05.2016, the complainant had some grievances of deficiencies, which were attended by the technician of OP1 on 30.05.2016. The chapter was over at that time as matter was attended and whatever was required, it is was done too. Thereafter, a new chapter of service was opened on 04/05.07.2016 for which a separate invoice was raised.

          To say there was no deficiency of services of the Honda City car and the OP1 had rendered the services on 23/24.05.2016 and then on 30.05.2016. The total invoice bill was of Rs. 26,165/- , which was comprising  of spare parts price, replacement of parts, lubricants, labour charges, apart from 60,000 kms service charges of Rs. 2370.15p.

8.4. By taking the conclusion drawn in sub-paragraph no. 8.1., 8.2 and 8.3 above, it is held that complainant could not establish the complaint against OPs either of deficiency of services or unfair trade practice. The complaint fails. The complaint is dismissed. No order to costs.

9. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for necessary compliance.

10: Announced on this 12nd  April, 2023 [चैत्र 22 , साका 1945].

[Vyas Muni Rai]                        [ Shahina]                            [Inder Jeet Singh]

           Member                            Member (Female)                              President