Haryana

Ambala

CC/278/2020

Balkar Singh - Complainant(s)

Versus

Elegant Honda Kishiv Motors Pvt ltd - Opp.Party(s)

In Person

15 Jul 2022

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                           Complaint case no.         :     278 of 2020

                                                          Date of Institution           :     13.11.2020

                                                          Date of decision     :     15.07.2022.

         

Balkar Singh aged about 53 years S/o Shri Dhan Singh, R/o Village Bhaini Khurd, Post Office-Bhaini Khurd, Tehsil Nilokheri, District Karnal (Haryana)-132116.

                                                                             ……. Complainant.

                                      Versus

1. Elegant Honda, Kishiv Motors Pvt. Ltd. 9 K.M. Stone, Village Khuddi, Ambala-Jagadhari Road, District Ambala (Haryana)-133104.
2. Honda Siel Cars Limited, Plot No.A-1, Sector 40/41, Surajpur-Kansa Road, Greater Noida, India, Development Area Gautam Budh Nagar Noida (UP)-201306

                                                                    ….…. Opposite Parties.

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.  

 

Present:       Complainant in person.

                   Shri S.R.Bansal, Advocate, counsel for the OP No.1.

Shri Aditya Verma, Advocate, counsel for the OP No.2.

 

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1.             To either replace the above said Honda City ZX Car bearing Registration No HR-05AW-6900 of total worth Rs. 1533270/- (Rupees Fifteen Lacs thirty three thousand two hundred seventy only) which include the cost of preparing Registration Certificate, MV Tax one time, Hypothecation Addition, Temporary Registration and New Registration, Insurance charges from National Insurance (Honda Assure) for one year, pollution pertaining, number plate charges, assy charges having model December 2017 by New one of the same model being having Manufacturing defect or to return the Cost of the same to the complainant.

(ii) to pay interest @ 18% P.A on the Cost of the above said defective Car from the date of purchase i.e from 12 December 2017 till the date of payment.

(iii) to pay a sum of Rs 23,38,237/- (Rupees Twenty three Lacs thirty eight thousand two hundred thirty seven only) as compensation for causing deficiency in service and unfair trade practice and metal agony and physical harassment to the complainant.

(iv) to pay litigation costs

(v) Grant any other relief which this Hon’ble Commission may   deem fit.

2.             Brief facts of this case are that on 12.12.2017, the complainant who is an ex-serviceman, had purchased a Honda City Car 1.5 ZX MT (I-DTEC) from OP No.1, manufactured by OP No.2, on making payment of Rs.13,82,465/-. The said car was purchased by him through C.S.D. canteen. An amount  of Rs.1,13,230/- was paid towards insurance of the said car. From the very beginning of purchase of the said car, it started giving  problems in its wind screen and also music system.  The complainant has approached the opposite parties through every possible means, yet, they failed to rectify the said defects. A defective car has been sold to the complainant. By not replacing the defective wind screen and also music system, the OPs have committed deficiency in service. Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version, raised preliminary objections with regard to maintainability etc.  On merits, it is stated that while admitting factual matrix of the case, it has been stated that the defective music system of the car has been replaced with a new one on 16.04.2021. The complainant has not been able to prove that there is any other defect in the car. Earlier also, the complainant had filed consumer complaint, which was withdrawn by him, which fact has been concealed by him. Rest of the averments of the complainant were denied by the answering OP No.1 and prayed for dismissal of the present complaint with special costs.
4.           Upon notice, OP No.2 appeared and filed written version, raised preliminary objections with regard to maintainability, jurisdiction, cause of action, locus standi, bad for mis-joinder and non-joinder of necessary parties, etc.  On merits, it is stated that the complainant has failed to place on record any evidence to prove that there is any manufacturing defect in the car. The bank from which car loan has been obtained has not been impleaded as party to this complaint. Also, the relationship between this Answering OP and its Dealers are on "principal to principal" basis and as such OP No.2 has no relation whatsoever with the dispute arose between the complainant and OP No.1. Rest of the averments of the complainant were denied by the answering OP No.2 and prayed for dismissal of the present complaint with exemplary costs.
5.           Complainant tendered his affidavits as Annexure CA to CC alongwith documents as Annexure C-1 to C-26 and closed the evidence on his behalf. On the other hand, learned counsel for the OP No.1 tendered affidavit of Shri Gurpreet Singh, Service Manager, Elegant Honda, Village Khudi, Jagadhari Road, Ambala as Annexure OP-1/A and closed the evidence on behalf of OP No.1. Learned counsel for the OP No.2 tendered affidavit of Shri Rishabh Bhutani, Manager Legal with Honda Cars India Limited, having office at Plot No.A-1, Sector 40/41, Surajpur Kasna Road, Greater Noida Industrial Development Area, District Gautam Budh Nagar U.P.201306 as Annexure OP-2/A alongwith documents Annexure OP-2/A to OP-C and closed the evidence on behalf of OP No.2.
6.           We have heard the complainant and learned counsel for the OPs No.1 and 2 and have also gone through the record very carefully
7.           Complainant has submitted that the car in question was suffering from manufacturing defect as a result of which it gave troubles in its wind screen and music system, so many times, within few days of purchase of the said car, as such the OPs are  liable to replace the said car with a new one, as the defects arose within the warranty period or to refund the price of the same.  
8.           On the contrary, the learned counsel for the OP No.1 and 2 has  submitted that since the complainant has failed to place on record any cogent evidence in the shape of expert report or any other document to prove that the said car suffers from any manufacturing defect, and at the same time, the defective music system has been replaced with a new one,  the complainant is not entitled to replacement of the car in question with a new one or refund of the price thereof.  It has been also submitted that this Commission lack territorial jurisdiction to entertain this complaint and it is barred by limitation.
9.           First coming to the objection taken with regard to territorial jurisdiction, it is submitted here that since the following documents in respect of the car in question have been issued from Ambala, as such, this Commission has territorial jurisdiction to entertain this complaint:-
   1. Purchase order dated 15.12.2017, Annexure C-2;
   2. Vehicle Tax Invoice dated 15.12.2017, Annexure C-4
   3. Sale Certificate dated 15.12.2017, Annexure C-5 and
   4. Payment receipt Annexure C-6 in the sum of Rs.12,86,367/-

Thus, objection taken by OP No.2 in this regard being devoid of merit stands rejected.

10.           As far as objection taken with regard to limitation is concerned, it is submitted here that because it is evident from the job card dated 25.02.2019, Annexure C-17 that defect in the music system was found in the said car, which persisted till 31.07.2020, as is further evident from job card Annexure C-9, as such, period of two years is taken from 31.07.2020, this complaint having been filed in November 2020, is well within limitation. Thus, objection taken by OP No.2 in this regard being devoid of merit, also stands rejected.
11.           Now coming to the merits of this case, it may be stated here that it is evident from the contents of complaint filed by the complainant that he is seeking replacement of the car in question or refund of the price thereof, on the ground that the car in question was suffering from two defects i.e. defective wind screen and music system.

First coming to the defective music system, it is stated here that it is an admitted fact that the said defective music system has been replaced with a new one on 16.04.2021, free of cost and as such, the said grievance of the complainant stood redressed by the OPs.

As far as alleged defect in the wind screen of the car in question is concerned, it is stated here that the complainant has totally failed to prove his case, as he has neither moved any application under section 38 (2) (c) of the Consumer Protection Act, 2019 before this Commission nor has placed on file any expert/lab report/opinion from which this Commissionis convinced that the wind screen of the car in question is suffering from any defect. In the present case, the complainant has produced, in support of his allegation of defect in the wind screen, his own affidavit. This affidavit is no substitute for an expert opinion, to hold that the wind screen of the car was indeed suffering from any defect. In Maruti Udyog Ltd. vs. Susheel Kumar Gabgotra [(2006) 4 SCC 644], it was held by the Hon’ble Supreme Court that, it is only if the manufacturing defect is established, replacement of the entire item or the replacement of the defective parts can be called for. Thus, in the instant case also, as stated above, when OP No.1 and 2 came with a plea that there was no defect in the wind screen of the car in question, then it was bounden duty of the complainant to prove the same, by placing on record some cogent and convincing evidence in the shape of report of any expert, which he failed.

12.           In view of peculiar facts and circumstances of this case, it is held that because the complainant has failed to prove his case that the wind screen of the car in question is defective and at the same time, the defective music system has admittedly been replaced with a new one, free of cost, therefore, no relief can be given to him. Resultantly, this complaint stands dismissed with no order as to cost.  Certified copy of the order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 15.07.2022.

 

                   (Ruby Sharma)                         (Neena Sandhu)

                    Member                                    President