Orissa

Jajapur

CC/70/2017

Sarmistha Rajanandini Nayak - Complainant(s)

Versus

DAS HONDA - Opp.Party(s)

Ld.Adv

16 Feb 2018

ORDER

IN  THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, JAJPUR.

                                                        Present:      1.Shri Jiban ballav Das , President

                                                                            2.Sri Pitabas Mohanty, Member,

                                                                            3.Miss Smita Ray, Lady Member.                      

                                             Dated the 16th day of February,2018.

                                                      C.C.Case No.70 of 2017

Sarmistha Rajanandini Nayak    , D/O Maheswar Nayak

In front of Charampa  I.T.I canal Road   

At/ P.O. Charampa ,

Dist.- Bhadrak .                                                                            …… ……....Complainant .                                                                   .                                     

                                                  (Versus)

1.DAS HONDA ,Tahasil Road, Kachery Bazar,Bhadrak ,odisha .

2. HONDA MOTOR CYCLE & SCOOTER INDIA PVT.LTD,Commercial Complex,

   11,Sector-49-50-Golf course extension Road,Gurugaon,Haryana.

3. AGASTI HONDA ,Rani Ramchandrapur,Medical Road, Town ,Jajpur ,755001.

                                                                                                                          ……………..Opp.Parties.                                                                                                              

For the Complainant:                      Self.

For the Opp.Parties : No.1 & 2        Sri P.C.Mohanty,D.R.Jena,J.Panda,G.Dash,P.Lenka,Advocates

For the Opp.parties : No.3                 None

                                                                                                     Date of order:   16.02.2018.

SHRI   PITABAS   MOHANTY ,  MEMBER .

            The petitioner has filed this  dispute U/S 12 of the C.P. Act 1986 alleging  deficiency in service against the O.P  due to defects of the vehicle  .

            The brief facts that relevantly required for disposal of the present  dispute is  that the petitioner is an inhabitant of vill. Eriel dist of Bhadrak who is at present residing at Jajpur town for working as finance  Expert at DPMU ,jajpur which is within the territorial jurisdiction of this Hon’ble forum who had  purchased a Honda Activa 3G  bearing Regd.no. 0D-22-E-2106    from O.P.no.1  on dt. 04.12.15  on  payment  vide invoice no.151NO3478  for her own use . The company provides two years  warranty from the date of purchase or covered 24,000 k.m  whichever comes first. Neither the vehicle has covered warranty period nor exceed the 24,000  k.m  but soon after within one week of purchase of the  vehicle, it  started   giving a  multiple of small and big  technical troubles like dying down of start , shock absorber problems,   inword Jerks, way word  movement etc . The petitioner approached the show room of O.P.no.1 with the shortcoming  of the vehicle, who  refused to let in her vehicle into the service center and told the vehicle is only to  be checked on its due service date .  So  the petitioner drove  the vehicle with difficulties  for  next few days and  appeared at the service center on the first service date of  the vehicle on dt.3.1.16  . The petitioner wrote  down the problem on the job sheet/ chart  .They took  the vehicle and just changed the engine oil in the name of repairment  and released  the vehicle after one hour .Thereafter the petitioner asked them about the problems of the vehicle and what repair   work they had done with  the vehicle . They gave unsatisfactory  answers  and did not make her aware of the problem of the vehicle .Thereafter the petitioner took  possession of the vehicle and  came back from the  show room after three hours and called her father to  approach  the service manager about the same problem  and  took the vehicle  one hour and handed over in the service center    after 6 P.M but the petitioner was still kept in darkness about the problems.

            After few days the vehicle showed numerous  new problems like  trouble in picking up not lingering the  start ,  automatic acceleration of  speed , non responding to change  of   acceleration,  unilaterally trailing  to one side without any control,  sudden pick up without corresponding change of acceleration .  The most notable one was the vehicle would come to halt at any time even while running in  the middle of the road at full speed which may lead  to critical situation to her . As the petitioner was a  little naïve  in driving and did not think about the intensity of  the problems and its  precarious  consequences . The petitioner routine of  visiting the        vender cum service center  of O.P.no.1 with her range of her problem every fort  night about 13 times and job card and 5 to 6 times without job card . Every time they  told that the vehicle with test drive just adjust some screws or will tighten  the knobs  in the name of repairment  and will return her vehicle. They won’t disclose about the problems  of the vehicle and replied that the petitioner complex dynamics  and engine components of the vehicle .They even  changed  the carburetor twice and many parts of the vehicle without the  knowledge of the petitioner so  when  fed up with the litany  work of going to service center regularly , she  decided took up the matter to the  Honda customer care authorities . The petitioner  given 6 complaints  on dt.05.6.16, vide complain no.1- 5968465499,  and the next dt. on 01.04.16, 13,10,16,  13.10.16 ,18.10.16 and 22.10.16 with same complain no-1-10104466330 and on dt.03.10.17 vide complaint no.1-27282310335  of O.P.no.2 after receipt of the complain the op.2 in vain in every time and they would asked the petitioner to turn up at the local service center and the service center peoples would take the vehicle for 3 to 4 days but the defect   still persist on  and  the petitioner also lodged the complaint  through website www. Complaintboard. in on 22.10.16 but still today no result come up . Accordingly the petitioner knocked the door of this Fora with the prayer to direct the O.Ps to  replace   the vehicle by exchanging  the old or return the cost  of vehicle  of Rs.63,372/- and award compensation of Rs. 35,000/- towards  mental agony.

            After notices the O.P.no.3 did not choose to contest the dispute .Hence  he has been set exparte dt.12.01.18. The O.P.no.1 and 2  entered appearance through their learned advocate and subsequently filed the written version jointly .In the written version the O.Ps have stated that the claim of the petitioner is  barred by limitation and the petitioner purchased Honda Activa  3G from o.p.no.1on dt.0412.15 . The O.P.no.1 is the authorized  dealer of M/S HONDA MOTOR CYCLE & SCOOTY INDIA (P) Ltd . The petitioner purchased  the Activa 3G from the O.P.no.1  on terms and condition contained in the owners manual, so also in the warranty policy given by the O.P.no.1 .The term and condition of the said warranty policy the op.no.1 under took to render four free service for one year in relation to the said motor cycle. As per the warranty policy the O.P would repair or replace of its discretion, those parts found to have manufacture defect  during examination.

            The O.P.no.1 rendered three free service and other service on 03.01.16,23.03.16,14.08.16,19.09.16,19.10.16 18.11.16 and 10.10.17 on the request of the complainant. The complainant purchased her vehicle on 04.12.15. As per the manual the petitioner should have done 1^st service within one month or 750km to 1000km ,2^nd free 3500 km to 4000km within 105-120 days from the date of sale and 3^rd free service 7500 to 8000 within 226-240 days from the date of sale which ever earlier first but the petitioner 2^nd service done on 03.04.16 and 3^rd free service on 10.08.16 ,2^nd and 3^rd  free service do not beyond the stipulated period. The petitioner also has  not done 4^th free service as per the warranty policy is not applicable to any Activa 3G on which free and paid service has not been carried out as per schedule given in owners manual . The petitioner also not entitled for warranty .After service of the motor cycle the petitioner gave satisfaction certificate in favour of O.P.no.1 . As such there is no deficiency of service on the part of O.P.  During service period the O.P .no.1 has done over all check  of the Activa 3G of the petitioner with the satisfaction of the petitioner.

            There is no term and condition in warranty policy to provide  new vehicle or refund the amount to the customer. This fact is  also admitted by the petitioner in her counter objection.

            The complaint petition is silent about the actual date of cause of action. The complainant originally belongs to Bhadrak Dist. and O.P.no.1 also belongs to Bhadrak dist. The complainant filed this case before this Forum only to harass the O.p.no.1. As per the warranty term and condition claim file only Gurgaon jurisdiction. The petitioner made op.no.3 as party in this case but she has no claim and allegation against op.no.3 .The O.p.no.3 is also not authorized dealer of M/S Honda Motor Cycle & Scooty India (P) Ltd. Neither O.P.no.1 nor O.p.no.2 doing business through O.p.no.3 .As per Sec.11 of C.P.Act , this Hon’ble Court has no jurisdiction to decide the matter. The case is liable to be dismissed as without jurisdiction. The entire allegation of the complaint petition are false and concocted.

            On the date of hearing we heard the argument from the petitioner along with the learned advocate from the side of the O.Ps .  After perusal of the record along with documents in details  filed from both the sides the following issues are framed :-

1. Whether this Fora gets  jurisdiction to adjudicate the dispute on the point of territorial jurisdiction ?
2. Whether this dispute is barred by limitation ?.
3. Whether  there is any deficiency  of service  on the  part of  O.Ps  so far as regarding the grievance  of the petitioner is concerned ?
4.  whether the petitioner is entitled to  any relief ?

Answer to issue no.1

As regards  the main point raised by the O.P  regarding territorial jurisdictions of this Fora  regarding  maintainability of the present dispute ,   we verify the section -11 (b) of 1986 wherein it is held that :

“any of the O.Ps where there are  more than one at the time of institution of the complain actually or voluntarily resides for carrying  on business or has a branch office or personally works for game . “

(c) The cause of action wholly or in part arise .

            Hence it is our considered view    that the O.P.no.2 is  carrying through O.P.no.3  his  business in  the territorial  jurisdiction of this fora like  other dealers doing business in  the territorial jurisdiction of this Fora.  Hence this fora gets jurisdiction  as per sec-11(b)  of C.P.Act 1986 and as per complaint petition the petitioner  working at DPMU, Jajpur which office which  is within the territorial  jurisdiction of this fora and the vehicle used by the petitioner for to and fro office and residence and the defect  of the vehicle when  arising at Jajpur  at the time   the petitioner is using of the  vehicle . Hence the cause of action  arises within the territorial jurisdiction of this fora   as per sec- 11 (C ) of C.P. Act . 1986  and in view of section-11(c) it is cristal clear that this court have ample jurisdiction to try this case as per observation  of Hon’ble National Commission  reported in 1997(20-CLT-345-M/S Patel Road way Ltd,vs.Tokusom-menson paper manufacturing Co.ltd and 1997(1) CPC-666-N.C , wherein it is held that “ jurisdiction - cause –of  action-  branch office –section 11 (2) (a)(b) of C.P. Act- R/W section-20 CPC No. Cause of action  occurred  at the place where the complaint is filed as the company has its branch office their held their mere existence of a branch  office of company does not give jurisdiction unless cause of action had accrued at that  place and  Diary no. (s) 15120/2017 (Supreme court ) arising out of imposed final judgment  and order dt. 07.02.17 in R.P.No.1396 /2016 passed by the Hon’ble National Commission  New Delhi ( spice jet Ltd. Vrs. Ranju Aery )

            Add to it we are in a digital age and due to prevalence of e-commerce most of the transaction are now performed online so the question of jurisdiction being old and out dated has lost   its significance .

Answer to issue no.2 – The stand taken by the O.P  in the written version  that the present dispute is barred by limitation as provided under C.P. Act.  In this point it is our considered views  since  the O.Ps  did not provide proper service within the warranty period of the  above vehicle  though warranty  is  provided  for a period of two years  from the date of purchase i.e  the vehicle i.e  on 4.12.15 and the dispute filed on 26.10.17 .As such the dispute is within the period of limitation as per C.P. Act  1986 We also placed reliance in the observation of  U.P State Commission reported in - 2004(2)  CLD-568- wherein it is held that

“In case of genuine claim the limitation is a technical point”.

Answer  to issue no. 3 and 4

            There are the vital issues wherein we are required to verify whether there is any deficiency in service on the part of the O.Ps  and if so the complainant  is entitled for any relief as prayed in his complain petition .

            It is undisputed fact that the complainant stated in the complaint petition along with an affidavit that she has  purchased the above vehicle from O.P.no.1 who is the authorized dealer of the vehicle. The complainant has alleged that the vehicle is defective and during the period of warranty she took the help of O.P.no.1 several times for rectifying the defect of the alleged vehicle but the O.P.no.1 did not rectify the defect . The  petitioner also has alleged that during the period of warranty   she has taken the free service and paid service  and  always has alleged for rectifying the problem of the alleged vehicle in  the service center of O.P.no.1 .but the technician  of O.P.no.1 neither rectified  the defect/ problem of the vehicle nor disclosed  the actual problem of the vehicle only insist  the petitioner to sign on the satisfactory memo before test drive of the alleged vehicle by the petitioner .  Hence the petitioner on dt .19.10.16 written on satisfactory memo that “

“I have take my vehicle but not conform after ride 3 to 4 days I will give my views “. and dt.                   10.10.17   She write in the satisfactory  memo that “ I will put my views after ride the vehicle “.

            Hence it is our considered view that the petitioner was not satisfied with the previous repair  done by the service center of O.p.no.1  the alleged vehicle time to time prior to i.e dt.19.10.16 .Accordingly the petitioner write the above line on the satisfactory memo dt.19.10.16 and 10.10.17  which is within the period of warranty of the above vehicle . On the other hand the stand taken by the o.ps  that the petitioner did not availed the free service in due date but we do  not  come across with any single scrap of paper in the record  filed from the side of the O.Ps which will establish  such pleas taken by the o.ps about the instructions at the time of service as  advice to the petitioner  regarding  delay to   avail  the free service of the above alleged vehicle . Accordingly to meet the ends of justice we are inclined to hold that the o.ps have committed  patent  deficiency  in service  or failed after lapse of 22 months   in not  providing essential service of  the above vehicle during  the warranty period. Accordingly we allowed the dispute  against

O.P.no.1 and 2 as per observation of Hon’ble State Commission Himachal Pradesh F.A No.283 of 2012 reported in 2013(2) CLT-M/S ICC Cimputer System Vrs. Gagan bharat and others) wherein it is held that

            “ Consumer protection Act 1986 section -2(1)(g) manufacturing defect-complainant purchased a laptop of H.P pavilion –during warranty period defect over heating develop – inspite of repair in authorized service center laptop could not be repaired to the satisfaction of the complainant- complaint allowed- dealer and service center both held liable  for deficiency in service- directed to replace the defective laptop with cost .”      

Hence this order

The O.P No.1 and 2  are jointly and severally liable for the above occurrence.  The O.P.no.1 and 2  are directed to provide a new vehicle of same features or same model or return the cost of the vehicle taken the from the petitioner  i.e Rs.63,372/- exchanging the old vehicle No. OD-22 E-2106 of the petitioner within one month after receipt of the order, failing which the O.P.no.1 and 2  are liable to pay  Rs.63,337/- along with compensation of Rs.10,000/- (Totaling Rs.63,372/-  plus 10,000/- = 73,372/- )   and the petitioner can recover  the same by initiating the proceeding U/S 25 and 27 of C.P. Act. No cost.

 

                        This order is pronounced in the open Forum on this the 16th  day of  February,2018. under my hand and seal of the Forum.