Date: 30-10-2017

Sri Shyamal Gupta, Member

Record is put up today for passing order since 27-10-2017 was declared as holiday by the Govt. of West Bengal.       

This is a complaint filed by one Sri Dilip Kumar Basak alleging deficiency in service on the part of the OPs in the matter of non-repairing of his car.

Case of the Complainant, in short, is that he purchased a Honda AMAZE (diesel) 1.5 VXMT (metallic) car, manufactured by the OP No. 1, from its dealer, i.e., OP No. 2 on 28-06-2013,  The said car was given to the OP No. 2 for repairing purpose on 20-08-2013. A job-sheet was prepared by the OP No. 2 and a bill for a sum of Rs. 25,686/- was issued by it.  Allegedly, the said car was released on 28-09-2013 due to lackadaisical attitude of the OP No. 2.  Out of this amount, the Complainant paid Rs. 13,600/- and rest of Rs. 12,086/- was reimbursed by the Insurance Company.  On 02-10-2013, the car again become defunct and after several attempts, the car somehow started, however, same thing recur on the very next day.  The Complainant, therefore, on 04-10-2013 sent the car to the service centre of the OP No. 2.  Since then, although reasonable time elapsed, the OP No. 2 neither apprised him officially about the  exact nature of problem, nor intimated the expected date of delivery of the car after remedying the defect.  Hence, the complaint.

On notice, the OP No. 1 appeared to contest the case by filing WV.  This OP disputed the status of the Complainant as ‘consumer’ pointing out the self-admission of the Complainant that the said car was used for business purpose.  The OP also disputed maintainability of the case on pecuniary ground. Maintainability of the complaint was further disputed on the ground that there was no privity of contract in between the Complainant vis-à-vis this OP and that the relation between the OP No. 1 and OP No. 2 is purely on principal to principal basis wherein each party is responsible for its own action.  Thus, according to this OP, the present complaint suffers from mis-joinder of parties. It is stated that allegation of manufacturing defect in a vehicle cannot be accepted as a gospel truth on mere statement but, it requires to be proved beyond all reasonable doubt.  However, the Complainant has not furnished any Engineer’s report or any other convincing material in support of his contention.  It is alleged that the damage was caused to the car due to negligence of the Complainant himself.  The car in question experienced severe problem in its engine due to hydro lock as it was driven in a water logged area.  It is also stated that starter of a vehicle is normally changed on cost basis.  However, showing good gesture, this OP directed the OP No. 2 to replace the starter free of cost and the OP No. 2. According to this OP, the alleged damage was caused to the vehicle due to rash and negligent driving habit of the Complainant which resulted in the alleged problem.  Therefore, the Complainant cannot be permitted to take undue advantage of his own wrongdoings at the cost of this OP, who had no role, whatsoever to play in causing the alleged defects.  Therefore, this OP prayed for dismissal of the complaint.

OP No. 2 by submitting a WV denied all the material allegation of the complaint.  It is the case of this OP that the Complainant used the car recklessly and sometimes in water logged roads intentionally and driven the car  without maintaining driving norms, as a result of which the car developed critical problems.  Therefore, the Complainant is not entitled to get any benefit of warranty. It is further stated that on 21-08-2013 the car was sent to the service centre of this OP in stalled condition.  On inspection, it was found that the car was under water, hence not started.  The engine was also found to be in damaged condition.  The car was made ready on 21-09-2013 and due intimation was given to the Complainant, who took delivery of the same on 28-09-2013.  On 09-01-2014, the Complainant again sent the car  due to some starting related problem.  The Complainant also informed that USB was not working and it was further found that left-hand side rear view mirror was in damaged condition.  The OP No. 2 also informed that the self-starter got damaged.  On inspection, it was found that the car was facing problem due to negligence of the Complainant and as such, the company rejected benefit under the warranty and it was duly informed to the Complainant.  This OP sent a letter to the Complainant on 04-12-2014 asking the Complainant to give due approval for repairing the car which was also followed up by sending an e-mail on 20-12-2014.  In reply thereto, the Complainant threatened to take legal recourse.  Stating that the car was manufactured following all norms and the same was not suffering from any sort of manufacturing defect, this OP prayed for dismissal of the complaint.       

Points for consideration

1.Whether the Complainant is a ‘consumer’?

2.Whether the complaint is hit by pecuniary jurisdiction?

3.Whether the complaint is bad for mis-joinder of parties?

4.Whether there is any deficiency in service on the part of the OPs?

5.Whether the Complainant is entitled to any relief?

Decision with reasons

Point Nos. 1 to 3:

All these points are taken up collectively for the sake of brevity of discussion.

Admittedly, the Complainant used the subject vehicle for business purpose. In our considered opinion, however, merely because the Complainant used it for business purpose at times, it does not disqualify him as a ‘consumer’. First and foremost reason for this being that the same is registered in his personal name and also he took loan for the purpose of purchasing the subject car from the financier in his personal capacity.    Secondly, there is no direct nexus in between generation of profit by embarking on a commercial project vis-à-vis usage of car only for travelling purpose to attend business meetings, visit different places etc. Above all, ‘commercial purpose’ does not automatically oust the jurisdiction of Consumer For a.  In case one pursues such ‘commercial purpose’ by dint of self-employment for the purpose of maintenance of one’s livelihood, one is at always liberty to seek redressal of one’s grievance under the provisions of the Consumer Protection Act, 1986.   

The Complainant has given break-up of the monetary relief sought for by him under different heads.  It appears, the value of the car is Rs. 8,83,203/-.  Besides this, Complainant paid garage rent, EMIs etc. If we add to it the mental stress and agony on account of non-availability of the car for long duration, we do not think what the Complainant has sought for was an inflated/exorbitant claim.

Admittedly, in terms of the warranty conditions, the OP No. 1 was committed to repair  the defect/damage through its authorized dealer, OP No. 2 in the present case.  Further, the Complainant has alleged that the subject car is suffering from manufacturing defect.  In case of manufacturing defect, needless to say, the manufacturer cannot evade responsibility.  Therefore, it cannot be said that the OP No. 1 was not a necessary party to the case.

Point Nos. 4&5:

Both these points are taken up together for the sake of convenience of discussion.  More so, they are inter-linked.

It appears that the subject car was handed over to the OP No. 2 for the first time on 20-08-2013.  In this regard, it is stated by the OP No. 1 that the subject car suffered damage due to hydro-lock (water entering the engine of the vehicle).  It is further clarified that the same happens only when the car is driven in a deep water logged area.  Liquids are incomprehensible; the presence of a liquid in the engine cylinder during the compression strokes generates destructively high cylinder pressure.  Abnormally high cylinder pressures bend and break pistons, piston pins, connecting rods, crank shafts and ruin bearings and can crack or break cylinder heads and engine blocks.  Since such damages are caused due to sheer negligence of the driver of the car, warranty benefits are not provided to the owner of the car in such cases. 

In this regard, we are inclined to quote relevant portion from the Complainant’s letter dated 08-10-2013 to the OPs for proper evaluation of the case.

“That on 20-08-2013, around 7.45 p.m. when I was in travelling in the car near Dum Dum (Park), Kolkata thee was rain at that time.  One Scorpio Car came from opposite direction and rain water hit the bonnet of the car and the engine was not functioning and it was completely stopped there” (sic).

Although not admitted in as many words by the Complainant, it is clear from the above description that the road through which Complainant’s car was passing through on 20-08-2013, it was water-logged and therefore, the probable cause of abrupt stoppage of engine as explained by the OP No. 1 appears to be very much a real possibility.  Given that the Complainant paid due repairing charge to the OP No. 2 without any protest goes to show that the Complainant too appreciated the rationale put forth by the OP No. 2 for such damage to the car.

Thereafter, the Complainant stated to have faced great difficulty to start the car on 02-10-2013 and again on 03-10-2013.  So, the car was handed over to the OP No. 2 on 04-10-2013. It is alleged by the Complainant that despite lapses of reasonable time, the OP No. 2 failed and/or neglected to inform the Complainant about the exact nature of problem though verbally he was informed that there was some problem with the self-starter.  On the other hand, in its reply to the questionnaire of the Complainant under affidavit, it is pointed out by the OP No. 1 that the Complainant was informed by the official of the OP No. 2 that self-starter of the car got damaged due to over-cranking and for replacement of the same, the Complainant would be charged Rs. 4,615/-.  However, allegedly the Complainant did not give his approval for the same. Rather, on 08-10-2013, the Complainant asked the OPs to replace the car alleging manufacturing defect with the subject car.  Thereafter, on 04-12-2013, the OP No. 2 by issuing a letter again requested the Complainant to give his approval to repair the car. In turn, on 09-12-2013, the Complainant reiterated his disinclination to take the car and further informed that he filed a case before this Commission.  On 20-12-2013, the OP No. 2 further requested the Complainant to give his due approval to carry out necessary repairing job, but in vain.  Then, on 09-01-2014, the OP No. 2, in order to resolve the issue, replaced the starter of the vehicle free of cost as a mark of gesture and asked the Complainant to take back the car, but the Complainant refused to oblige. 

From the aforesaid sequence of events, as pointed out by the OP No. 1, it appears that the exact nature of problem was fixed by the OP No. 2 on 04/05-10-2013 itself and cost of the self-starter together with labour cost was demanded from the Complainant.  That the Complainant was well aware of the exact nature of defect is also evident from his own letter dated 08-10-2013, where he has admitted that on 05-10-2013 (afternoon), when he called up the service representative (Pradipto Ghosh) to enquire about the problem, he was informed that the self-start was not working due to which the problem occurred. 

Thereafter, although the OP No. 2, on several occasions, urged the Complainant to give his stamp of approval to carry out necessary repairing job that would entail an expenditure of Rs. 5,403/- plus labour charge, the Complainant was reluctant to settle the matter for anything less than replacement of the car out of his notion that the car was suffering from manufacturing defect.

From the above, it is clear that after the car was given to the OP No. 2 for repairing purpose, it did not sit idle but, insisted upon the Complainant repeatedly to give his nod to go ahead with the repairing job. 

Now, the question remains whether the car is indeed suffering from any sort of manufacturing defects.  It is rightly pointed out by the OP No. 1 that mere allegation is not suffice to establish ‘manufacturing defect’ in a car, but tangible proof like Engineer’s report is required to drive home such allegation.  Unfortunately, nothing of that sort is furnished from the side of the Complainant.  Rather, it is evident from the above discussion that the problem developed ever since rain water sneaked inside the engine of the car. 

In the light of our foregoing discussion, we are constrained to hold that the Complainant has failed to prove his case and as such, the complaint cannot be allowed.

However, considering the fact that the OPs has already replaced the starter and they have in principle agreed not to charge the Complainant anything for the same, we feel, for an amicable settlement of the matter the OPs should waive off garage parking charge and all other incidental charges and handover the vehicle to the Complainant in roadworthy condition.

The Complainant, thus, succeeds in part.

Hence,

O R D E R E D

That the complaint is allowed on contest against the OPs in part.  OPs are directed to handover the car free of cost in perfect roadworthy condition to the Complainant within 45 days hence by sending a letter to this effect.