BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.409 of 2018

Date of Instt. 01.10.2018

Date of Decision: 29.06.2022

Ashish Sharma s/o Sh. Tilak Raj Sharma r/o House no.568/4, St. No.3, Roop Nagar, Tehsil and District Hoshiarpur.

..........Complainant

Versus

1.       Honda Cars India Ltd. Greater Noida Plant Plot No.A-1, Sector 40/4, Surajpur-Kasna Road Greater Noida Industrial Development Area Distt. Gautam Budh Nagar, Uttar Pradesh through its Manager/Authorized Person.

2.       Frontier Vehicles Pvt. Ltd. 01A, Ground Floor, Vipul Trade Centre, Sector 48, Gurugram, Haryana through its Manager/Authorized Person.

3.       Lally Motors Pvt. Ltd. (Prestige Honda), G. T. Road, PO Thanowali, Paragpur, Jalandhar, Punjab through its Manager/Authorized Person.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Vivek Handa, Adv. Counsel for the Complainant.

                   Sh. M. K. Jain, Adv. Counsel for OP No.1.

                   OP No.2 exparte.

                   Sh. Karan Seth, Adv. Counsel for the OP No.3.

Order

Dr. Harveen Bhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is owner of the car Honda City IV Tech VXI bearing registration No.HR 26BA3605 and using the car for his personal use. OPs No.2 and 3 are the service centre and OP No.1 is head office of OPs No.2 and 3. In the month of December 2015 complainant received a call from OPs that the airbag of same model cars are needed to be changed due to some technical defect and OP advice complainant to get checked and change the same from authorized service centre located at Hoshiarpur. Complainant approached service centre Aspire Honda Hoshiarpur (now closed). Hoshiarpur service centre after checking advice complainant that the airbag of the driver side is having some technical issue and needed to change. OPs change the same free of cost as the same is under warranty on 27.12.2015. The complainant again in the month of December, 2016 received a call from OPs and advice to get checks the passenger side airbag from the authorized service centre. Complainant as per advice went to OP No.3 authorized service centre i.e. Lally Motors, Jalandhar as at Hoshiarpur the service center of OPs was shut down. On 26.12.2016 Lally Motors after checking the airbag advice to replace with new one, free of cost as there is technical defect in the airbag. OP No.3 on 26.12.2016 changed the passenger side airbag of the car. OP No.3 also assured by client that now both the airbag will work properly

during any accident condition or miss-happening. On 09.12.2017 about 09:00 pm complainant met with an accident at Gurugaon, Haryana. The car was hit from the front. The airbag of driver side was open but the airbag of the passenger side was not open despite high impact during accident. Due to the technical defect of airbag in car, Bindiya Sharma who was travelling with complainant got serious injuries. Both seat belts worn get locked during accident. Because of co-driver side air bag failure Bindiya got injuries. She immediately taken to Fortis Hospital, Gurugram, Haryana for treatment and surgical operation conducted by doctor at emergency. The accidental car was taken                                to OP No.2/Service Centre at Infinity Honda, Gurugram. The car was hit from the front of passenger side and damages both impact sensors despite only Driver side air bag open. The officials after checking the car condition told complainant that the both of the airbag should open together at the time of accident but inspite of the both impact sensor damage, due to some technical defect one airbag did not open. The complainant sent an email on 18.12.2017 to OP regarding the defected air bag failure but OP failed to give the satisfactory reply. OP No.3 also assured complainant that both the airbag will work properly in spite of that one of the airbag will not work. Due to this complainant suffered a lot however co-driver got injuries due to this failure. The OP No.2 provides the vehicle after repairing the same after two months. In this regard the complainant also sent mails. Despite of that the Op No.2 does not even try to verify that why the passenger side airbag does not open. Now complainant came to know that during the repair the OP No.2 forgot to install the airbag module in the driver side airbag. Without the airbag module the airbag never work in case of accident hence there is huge negligence of OP No.2 on their part. When the complainant ask the reason then the OPs assured that they will install the same and also assured that the amount will be adjusted in insurance claim, but till today no action was taken by the OPs 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 a compensation of Rs.80,000/- alongwith interest @ 9% per annum for causing mental tension and harassment to the complainant and further OPs be directed to check and replace the defective airbags of the car and get them in working condition which is still not checked by the OPs and to install the airbag module in the driver side airbag and to pay an amount of Rs.15,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed its written reply and contested the complaint by taking preliminary objections that at the very outset, allegations made by the complainant in the complaint are false and frivolous and the same has been filed with the ulterior motive to harass and defame the OP No.1. The complaint is an afterthought and the complainant is deliberately trying to distort the facts of the case to suit his own convenience in order to mislead before this Commission and the same is liable to be dismissed at its threshold. It is further averred that the vehicle manufactured by the OP No.1 enjoys an excellent reputation in the automobile market in India and its Honda City car has received maximum awards from critics, experts and from viewers of various TV channels. The complainant has miserably failed to bring the present complaint within the ambit of section 2 (1) (c) of the Consumer Protection Act. Further, the complainant has blatantly failed to raise any allegations against the OP No.1 and has failed to even address the critical aspects as outlined in section 2 (1) (c) of the Act. It is further averred that the complainant has made a claim to the insurance company for the accidental damages suffered by the car. The complainant by filing the present complaint is seeking to get compensated for the same cause twice. Therefore, the complainant has not come before this Commission with clean hands, the complainant is not entitled to any compensation as sought. On merits, the factum with regard to changing of airbag of the driver side as well as passenger side airbag by the OP No.3 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.

3.                OP No.3 filed its separate written reply and contested the complaint by taking preliminary objections that the complainant is not a consumer as per the definition of the Consumer Protection Act as the OP No.3 is neither the manufacturer of the car nor the vehicle was sold by the OP No.3 to the complainant. Hence, the complainant is not maintainable against the OP No.3. It is further averred that neither there is any deficiency in service on the part of the OP No.3 nor there is unfair trade practice. Hence the complaint is not maintainable under law and the same is liable to be dismissed. This Commission has no jurisdiction to entertain and try the present complaint. Neither the vehicle was sold at Jalandhar nor the alleged accident took place at Jalandhar. According to the contents of the complaint the vehicle was taken at service centre at Gurugram (Haryana) and as such, this Commission has no jurisdiction to entertain the present complaint. The present complaint is totally false, based upon wrong and concocted facts and the same has been filed with ulterior motive and malafide intention. The complainant has concealed the real facts and the frivolous complaint has been filed which is liable to be dismissed with special cost. It is further averred that the complaint is time barred and has not been filed within limitation of period. On merits, all the 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 not filed by the complainant.

5.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by counsel for complainant as well as counsel for the OP No.1, very minutely.

7.                The contention of the complainant is that he is the owner of the car Honda City IV Tech VXI bearing registration No.HR 26BA3605. The Air Bags of the driver side and the passenger side were got changed from the service centre Aspire Honda Hoshiarpur and from the OP No.3/Authorized Service Centre on 27.12.2015 and on 26.12.2016 on the asking of the OPs. The Air Bags were changed free of cost as there was allegedly a technical defect in the Air Bags. He was assured that both the Air Bags will work properly during any accident condition or mis-happening. It has further been contended by the complainant that on 09.12.2017, he met with an accident, but the Air Bags of the passenger side were not opened despite high impact with the result, Bindiya Sharma, who was travelling with him, got serious injuries and was got treated from Fortis Hospital, Gurugram, Haryana. When the car was sent for repair, he was told that due to some technical defect, one air bag did not open. Emails were sent to the OPs regarding the defected Air Bags failure, but did not receive any satisfactory reply. As per the admission of the OPs, both the impact sensors were damaged due to accident and the OPs never verified as to why the passenger side Air Bags did not open. The complainant came to know that during the repair, the OP No.2 forgot to install the Air Bag module in the driver side Air Bags and without Air Bag module, the Air Bags never work in case of accident. Thus, there is a negligence on the part of the OP No.2. Since, there is a manufacturing defect, therefore OP No.1 is also liable for unfair trade practice as they did not check the quality of the vehicle and did not verify as to why the Air Bags did not open despite the replacement of the Air Bags at the authorized service centre. Due to the negligence and unfair trade practice of the OPs, the complainant has suffered a lot of tension, agony and harassment. Request has been made to allow the complaint.

8.                The contention of the OP No.1 is that the present complaint is not maintainable as the complainant has already made a claim to the insurance company for the accidental damages suffered by the car. Now again for the same cause, the complainant is seeking to get a compensation. It has been contended by the OP No.1 that no expert evidence has been examined by the complainant to prove that there was any manufacturing defect nor it has come on the record that no module was installed as alleged by the complainant. No technical report has been filed on record by the complainant. Since, the manufacturing and technical defect has not been proved by the complainant, therefore no liability can be fastened upon the OP No.1 towards the repair or replacement of the vehicle. The present complaint has been filed just on the false grounds. It has further been contended that when the vehicle met with an accident, the vehicle was in its seventh year of operation and it cannot be believed that the car having been using optimally would suffer from the alleged manufacturing defect. Therefore, the complainant cannot claim any compensation. This fact has not come on the record even in the job sheets when the car was sent for service in the service centers. Therefore, there is no deficiency in service on the part of the OP No.1 and the complaint be dismissed.

9.                The counsel for the OP No.3 has contended that there is no deficiency in service on the part of the OP No.3 nor there is any unfair trade practice on their part. It has been alleged that the OP No.1 circulated a general notice for all buyers to get rectified the passenger side airbag of the cars and under the said scheme of the company, the vehicle was inspected during the routine service of the vehicle. The airbag inflator of passenger side of the car of the complainant was changed free of cost during the routine service on 26.12.2016. The complainant was advised to get replaced ABS Sensor, but he refused to get the same done. This fact was noted in the Invoice by the OP No.3. The Air Bags of the passenger side was never replaced only the passenger side airbag inflator was changed. There was no technical defect in the Air Bag. No unfair trade practice has been adopted by the OP No.3. Request has been made to dismiss the complaint.

10.              The complainant has alleged that he is owner of the car, but no document has been filed on the record to show he is owner of the car. No RC and no bill have been produced on record by the complainant. He might be using the car for his own personal use, but it cannot be said that he is the owner of the car. It is admitted that the Air Bag of the driver side was changed free of cost on 27.12.2015 and the passenger side Air Bag was changed on 26.12.2016. The complainant has filed on record the tax invoice Ex.C-1, which is dated 26.12.2016. This tax invoice has been issued in the name of Sachin, who is not a complainant. From this invoice, it is transpired that the vehicle was purchased in the year 2010 and these Air Bags were changed after 5-6 years. There are recommendations in this invoice i.e. ABS Sensor + Splashguard need to replace, but refused by customer. The Air Bags were changed by the OPs free of cost. It has not come on record that there was any technical or manufacturing defect in the Air Bags. Another invoice is Annexure-C3 which is dated 31.01.2018 and this bill has been issued in the name of Latika. In this invoice, there is no reference of the fact that there was any complaint or defect in the car. Annexure-C4 is the emails sent by the complainant, which have been replied by the OPs to the complainant. The complainant has not produced on record opinion of any expert to prove that there was a technical and manufacturing defect in the car. As alleged by the complainant, he was informed that the module was not installed at the time of repair of air bags, has also not been proved by the complainant. Had there been any manufacturing defect, it could have appeared immediately after the purchase of the car, but the complainant has alleged the same defect after seven years of its purchase as alleged by the OPs. Though the OPs have alleged that the complainant has filed the claim against the insurance companies regarding the same cause, but no document has been produced on record by the OP also to prove that any claim has been taken by the complainant from the insurance company. Since the complainant has failed to prove that he is the original owner of the car or he has purchased the car from the original owner and the Air Bags have already been replaced as per his own allegation and the complainant has failed to prove that the Air Bags of the car were defective and were not in working condition, therefore it cannot be said that there is deficiency in service. The complainant has also failed to prove that the Air Bag module in the driver side Air Bag was not installed by the OPs, therefore they cannot be directed to install the Air Bag module and as such, the complainant has failed to prove his case and thus, the complaint of the complainant is dismissed with no order of costs. Parties will bear their own costs. This complaint could not be decided within stipulated time frame due to rush of work.

11.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

29.06.2022         Member                          Member      President