BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, JALANDHAR
Complaint No.441 of 2017
Date of Instt. 17.11.2017 Date of Decision: 23.02.2021
Harjinder Singh aged 25 years S/o Sh. Gurbachan Singh R/o W.Q.214 Basti Sheikh, Jalandhar.
..........Complainant
Versus
1. G. S. Honda, Football Chowk, Jalandhar through its Partner/Prop.
2. Honda Motorcycle and Scooter Ind Pvt. Ltd. Registered Office at Commercial Complex II, Sector: 49-50, Golf Course Extension Road, Gurgaon Haryana (122018)
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Sh. Kuljit Singh (President)
Smt. Jyotsna (Member)
Present: Sh. Anup Gautam, Adv. Counsel for the Complainant.
Smt. Harleen Kaur, Adv. Counsel for the OP No.1.
OP No.2 exparte.
Order
Kuljit Singh (President)
1. The instant complaint has been filed by the complainant, wherein alleged that the OP is dealer of Honda two-wheeler vehicles and he purchased Honda Activa 4G for domestic use bearing Registration No.PB08-DU-2555 Chassis No.ME4JF507HH7268369 Engine No.J550E75268394 on 19.08.2017 amounting Rs.58,000/- from the OP, the above said Honda Activa has major defects from the date of its purchase as follows:
a) Vibration Problem
b) Problem in Handle of Activa
c) Chimta Problem
d) Different types of noises from engine and heating problem.
That the complainant thereafter visited to G. S. Honda i.e. OP number of times for complaining about above said defects on 21.08.2017 at the workshop of Football Chowk and one part from clutch of Activa was changed and the handle was oiled but the problem was as it was, then on 25.08.2017, vide Job Sheet No.18843 at same workshop and some other parts were changed from clutch of Activa, but the problem was again as it was and then on 28.08.2017 again repaired the clutch of above said Activa to remove vibration but the problem was not solved. Then on 03.09.2017, vide Job Sheet No.18402 at workshop at Gazigulla and on that day one part of Activa’s Clutch was replaced and they assured the complainant that the problem of vibration will be automatically solved within 4 to 5 days. But it was not solved and on 09.09.2017, vide Job Sheet No.19643 at workshop at Basti Sheikh, Jalandhar. On that day, the engine oil was changed and again clutch was repaired, but the problem was still as it was. On 23.09.2017, vide Job Sheet No.3208 at workshop at Basti Sheikh. On that day, they again repaired the clutch and chimta and service manager assured that the problem will automatically be solved within 2-3 days, but still problem was not solved and lastly on 26.09.2017 at workshop at Basti Sheikh. On that day, Service Manager refused to repair the above said defects. Moreover, the Service Manager got annoyed and started quarreling with complainant and also misbehaved with complainant. That condition of above said Activa deteriorating day by day and now it become unsafe for driving. That the complainant had also served a legal notice dated 03.10.2017 upon the OP and OP gave false, wrong reply dated 16.10.2017 and according to that reply complainant made telephonic call and they said the complainant that an engineer from Honda Company will inspect the complainant’s Activa within 7-8 days and they will call the complainant when the engineer will visit at their workshop.
2. That on 25.10.2017, the complainant received a telephonic call from 8725902111 to visit the workshop for the inspection of Activa by the engineer of Honda Company. The engineer instructed the service manager to replace the chimta and some parts from the clutch. For this purpose the OP kept the above said Activa for 2 days and the parts had been changed in front of complainant and complainant wrote a comment on Jobsheet, “now he is satisfied because parts of Activa have been changed in front of him”. At that time handle of the Activa was quite heavy and the service manager said that it will be fine after driving the Activa 25-30 km because chimta was new. But after driving 25-30 km as said by the service manager, the problem was not solved and also a new problem of bubbling was arose. That on 30.10.2017 the complainant visited at workshop at Football Chowk to complain about previous and new problem and on that day Job Sheet No.1189 was made and again chimta was repaired and asked the complainant to visit after 5-7 days if the problem will not be solved. That on 06.11.2017 complainant again visited there because the problem was still not solved and on that day Job Sheet No.15897 was made and OP kept the above said Activa for two days for repairing purpose, but the problem was not totally removed and complainant gave a comment on Job Sheet on 08.11.2017 at the time of taking his Activa, “he is not satisfied by the service provided by him and he is taking defective Activa with him”. That the above said illegal and unlawful acts of OPs has caused a lot of mental tension, agony, inconvenience and harassment to the complainant and OP is liable to compensate the complainant and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay Rs.58,000/- alongwith interest @ 18% per annum from the date of purchase till the actual payment of claim or replace the above said Activa with new one and further OPs be directed to pay Rs.50,000/- as compensation on account of harassment and mental tension suffered by the complainant and Rs.20,000/- as litigation expenses.
3. Notice of the complaint was given to the OPs, but despite service OP No.2 miserably failed to appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply whereby contested the complaint by taking preliminary objections that the present complaint is an abuse of the process of law and is liable to be dismissed on this ground. In the case setup by the complainant has claimed the relief of replacement of Activa Scooter. However the complainant has neither alleged any manufacturing defect nor have been able to prove any non repairable defect therein. The complaint being baseless is liable to be dismissed on this ground alone. It is further alleged that the present complaint is also liable to be dismissed on the sole ground, that the manufacturer i.e. Honda Activa Scooter manufacturing & OEM manufacturers India, have not been impleaded in the present complaint being the necessary party to the present dispute, hence the complaint is bad for non-joinder of necessary parties. It is further alleged that the OP has been providing services as and when required as is evident from the job sheets but these were only routine services and handed over defect free vehicle which is no way qualifies to any inherent or non repairable defect. The complainant has to stand on his own legs and mere verbal allegation is not a sufficient proof. It is further submitted that in a case of allegations of any non repairable defects in a vehicle; the entire onus is upon the complainant to prove the same by way of cogent and qualified expert opinion, which is mandated by the Act itself so as to assist the Learned Fora to come to a judicious decision qua the said allegations. It is further alleged that the present complaint is an abuse of the process of law and is liable to be dismissed on the sole. ground that none of the reliefs as prayed for in the relief clause of the complaint cannot be awarded to the complainant on account of the strict interpretation of the terms and conditions of the warranty issued by the manufacturer, who is a necessary party in the present complaint and omitted by the complainant. On merits, the factum in regard to purchase of Honda Activa 4G from the OP, is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
4. Rejoinder to the written statement of OP No.1, filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied those of the written statement.
5. In order to prove his case, the complainant himself tendered into evidence his own affidavit Ex.CW1/A alongwith some documents Ex.C-1 to Ex.C-15 and further tendered an affidavit of another witness as Ex.CW2/A alongwith one document Ex.CW2/1 and closed the evidence.
6. On the other hand, the OP No.1 after availing numerous opportunities alongwith cost of Rs.200/- failed to conclude his evidence and ultimately, evidence of the OP No.1 closed by order on 27.05.2019 and OP No.2 already exparte.
7. We have heard the argument from learned counsel for the complainant and also gone through the case file as well as written arguments submitted by counsel for the OP No.1, very minutely.
8. The glance at evidence is required by us to settle the controversy in this case. The complainant has tendered in evidence his affidavit Ex.CW-1/A on the record. He alleged deficiency in service and unfair trade practice on the part of OP. Affidavit of Naveen Kumar son of Mahinderpal Mechanic as Ex.CW-2/A on the record. Ex.CW-2/1 is copy of report of Mechanic. Ex.C-1 is copy of aadhar card of the complainant. Ex.C-2 is copy of certificate of registration of Harjinder Singh. Ex.C-3 is copy of tax invoice dated 19.08.2017. Ex.C-4 is copy of Two Wheeler Package Policy Schedule. Ex.C-5 to Ex.C-8 are copies of job card of different dates. Ex.C-9 is copy of legal notice dated 03.10.2017. Ex.C-10 is original postal receipt. Ex.C-11 to Ex.C-15 are copies of job cards of different dates on the record.
9. On the other hand, the OP No.1 after availing various opportunities failed to conclude his evidence and ultimately, evidence of the OP No.1 closed by order on 27.05.2019 and OP No.2 already exparte.
10. It is an established fact that the complainant had purchased Honda Activa 4G for domestic use bearing registration no.PB08-DU-2555 amounting of Rs.58,000/- from OPs. The above said vehicle has major defects from the date of its purchase as vibration problem, problem in Handle of Activa, Chimta Problem and different types of noises from engine. This fact is clear from copies of job card Ex.C-5 dated 25.08.2017 , Ex.C-6 is copy of job card dated 03.09.2017. Ex.C-7 is copy of job card dated 09.09.2017. Ex.C-7 is copy of job card dated 23.09.2017. Ex.C-11 is copy of job card dated 25.10.2017. Ex.C-12 is copy of job card dated 30.10.2017. Ex.C-13 is copy of job card dated 06.11.2017. Ex.C-14 is copy of job card dated 24.03.2018. Ex.C-15 is copy of job card dated 28.07.2018 on the record. From perusal of these job cards, it is clear that the problem persists in the vehicle in question of the complainant. The complainant approached OPs many times for removal of defects in the vehicle which has been mentioned earlier. OPs checked the vehicle in question from time to time when complainant approached them but problem was not solved in it. If problem not persisted in the vehicle in question then why complainant again and again contacted OP for its rectification. Ex.C-5 to Ex.C-7 and Ex.C-11 to Ex.C-15 are copies of the job cards which are the vital documents on the record. Ex.CW-2/A affidavit of Naveen Kumar and his report Ex.CW-2/1 are also important documents on the record. Naveen Kumar is mechanic who has filed his affidavit along with report in support of the case of the complainant. This mechanic stated in his report that “ from inspection of the vehicle Activa in question, it has transpired that some manufacturing defects were found in the vehicle and these defects cannot rectified and if the vehicle drive in its position, then engine of the vehicle would be seized.” From perusal of letter dated 16.10.2017 placed on record addressed to OPs from complainant, it is also clear that complainant contacted OPs for removal of defects in the vehicle but problem still persist in the vehicle. No reply of this letter was given by OPs to complainant.
11. On other hand, counsel for OP no.1 refuted the allegations of the complainant in its written arguments. OP no.1 denied any deficiency in service on its part. It alleged that complainant does not bear any qualification or experience of the person making the said report in respect of the vehicle. Counsel for OP no.1 laid down various judgments in support of their case :
i) V.K.Aggarwal Vs. Swami Nath Nigam and another reported in 2016(1) CPJ 606 of Hon’ble National Commission, New Delhi that “foreman cannot be termed as expert, competent to give opinion about condition of the car. So called inspection report cannot be relied upon”.
ii) Toyota Kirloskar Pvt. Ltd., and M/s Pioneer Toyota Versus Tirath Singh Oberoi reported in 2017(1) CPJ 202 of Hon’ble National Commission, New Delhi that it would not be fair to conclude that there was any manufacturing defect in vehicle in the absence of cogent, expert evidence.”
iii) Tata Motors Ltd & others Vs. Ashish Aggarwal & others reported in 2014(2) CLT 34 of Hon’ble National Commission, New Delhi “that manufacturing defect could have been decided effectively and successfully only after obtaining expert opinion.”
iv) Maruti Udyog Ltd. Versus Susheel Kumar Gabgotra and another reported in 2006 CPJ 3 of Hon’ble Supreme Court that order for any relief outside terms and conditions of the manufacturer warranty cannot be sustained.
The counsel for OP no.1 placed on record so many other judgments in support of their case, but these judgments are not applicable in the case in hand. The OP no.1 mainly stress on the ground that there is no expert opinion in the present case but the complainant has placed on record mechanical expert report dated 15.02.2018 of Naveen Kumar as Ex.CW-2/1 along with his affidavit Ex.CW-2/A. This expert mentioned in his report that “from inspection of the vehicle Activa in question, it has transpired that some manufacturing defects were found in the vehicle and these defects cannot rectified and if the vehicle drive in its position, then engine of the vehicle would be seized.” The copies of job cards Ex.C-5 to Ex.C-7 and Ex.C-11 to Ex.C-15 are the vital documents on the record. From perusal of the same, it is clear that the complainant approached OPs many times for removal of defects in the vehicle which has been mentioned earlier. OPs checked the vehicle in question from time to time when complainant approached them but problem was not solved in it. If problem not persisted in the vehicle in question then why complainant again and again contacted OP for its rectification of the defects.
12. Hon’ble National Commission clear this fact in case titled as Hind Motors (I) Ltd & Anr Tata Motors Vs. Lakhbir Singh & Another reported in 1(2014) CPJ 120 that inherent defect in vehicle requiring major repairs after short span of eight months, found, then the vehicle should to be replaced due to deficiency in service. Same is the position in this case. So by applying the analogy of law laid down, this complaint deserves to be allowed.
13. In the light of our above discussion, we are of the considered opinion that OPs are not only deficient but unfair trade practice was also attributed on their part. Therefore, we allow the complaint against OP No.1 only and OP No.1 is directed to refund the amount of Rs.50,789/- as cost of the vehicle (Activa) in question. The complainant is also entitled for Rs.5000/- as compensation and litigation expenses .
14. The compliance of the order be made within 45 days from copy of receipt of this order.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room after its due compliance.
ANNOUNCED IN THE OPEN COMMISSION:
23rd Day of February 2021
(Kuljit Singh)
President
(Jyotsna)
Member
